A person who complies with and satisfies the requirements of sections 1.015, 11.001, 11.002, 13.001, and 13.002 of the Texas Election Code is an "eligible voter". See TEX. ELEC. CODE ANN. §§ 1.015, 11.001-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).

The meaning of "residence" for purposes of voting and voter registration is governed by section 1.015 of the Texas Election Code. "Residence" is defined to mean "domicile," i.e. , one's home and fixed place of habitation to which one intends to return after any temporary absence. Id . §1.015(a) (Vernon 2003). Residence must be determined in accordance with the common- law rules, as enunciated by the courts of this state, unless the code provides otherwise. See id. § 1.015(b). A person does not lose his residence by leaving his home to go to another place for temporary purposes only; nor does a person acquire a residence in a place to which he has come for temporary purposes only and without the intention of making that place his home. See id. § 1.015(c). Both bodily presence and current intention on the part of the applicant or voter are necessary to establish residence.

The intention of the voter registration applicant is crucial to a proper determination of residence, and every person is strongly presumed to have "the right and privilege of fixing his residence according to his own desires." McBeth v. Streib , 96 S.W.2d 992, 995 (Tex. Civ. App. San Antonio 1936, no writ). For example, one student who is living in a dormitory, and is therefore physically present for purposes of voter registration, yet who intends his residence to remain the same as that of his parents, can permissibly register to vote in the county of his parent's residence. On the other hand, another student living in the same dormitory who intends that the dormitory be his residence for purposes of voter registration, can permissibly register to vote in the county where the dormitory is located. And the mere fact that an applicant claims a post office box as an address or that many applicants claim the same post office box as an address is not dispositive regarding the determination of residence.

Chapter 13 of the Texas Election Code sets forth a detailed administrative procedure to be conducted by the voter registrar governing the submission and approval of voter registration applications. Chapter 16 of the Texas Election Code sets forth a detailed administrative procedure to be conducted by the voter registrar governing the cancellation, whether through the initiative of the registrar or any registered voter, of voter registration applications already approved. Chapter 17 of the Texas Election Code provides for judicial review of any administrative decision made under those chapters. No section of any of these chapters affords an official role to local prosecutors. Therefore, local prosecutors have no authority to prevent any voter registrar from performing the registrar's duties as provided by law. However, local prosecutors are authorized to investigate and prosecute whenever credible evidence is brought to their attention, or a complaint is filed regarding alleged violations of section 13.007 of the Texas Election Code, which makes it a criminal offense to submit false or fraudulent information on a voter registration application.

Opinion No. GA-0142

The Honorable John L. Forrest

Parker County Attorney

118 West Columbia Street

Weatherford, Texas 76086

Re: Obligation of a state agency to pay for the services of an attorney ad litem appointed for a parent under section 107.013 of the Family Code (RQ-0090-GA)

S U M M A R Y

A court does not have authority to order the Department of Family and Protective Services to pay for the services of an attorney ad litem appointed for a parent under Family Code section 107.013. Except for the express provision in section 107.015, which states that an attorney appointed to represent an indigent parent shall be paid from county funds, the court may not award attorney ad litem fees under chapter 107 against the county, any other political subdivision, a state agency, or the state.

Opinion No. GA-0143

Mr. Michael W. Behrens, P.E.

Executive Director

Texas Department of Transportation

125 East 11th Street

Austin, Texas 78701-2483

Re: Whether proceeds from the sale of an agency's salvage or surplus personal property, originally purchased with revenues constitutionally dedicated to highway purposes, may be placed in the state's general revenue fund (RQ-0082-GA

S U M M A R Y

Proceeds from the sale of agency salvage or surplus personal property purchased with funds dedicated to highway purposes by Texas Constitution article VIII, sections 7 a and 7 b are not themselves constitutionally dedicated to highway purposes. Accordingly, proceeds from the sale of agency salvage or surplus property that was purchased with revenues constitutionally dedicated to highway purposes and sold on or after September 1, 2003 may be placed in the general revenue fund

Opinion No. GA-0144

Mr. Don W. Brown

Commissioner of Higher Education

Texas Higher Education Coordinating Board

P.O. Box 12788

Austin, Texas 78711

Re: Whether schools of acupuncture are subject to regulation by the Texas Higher Education Coordinating Board under chapter 61, subchapter G of the Education Code, or whether they are exempt from regulation under section 61.303(a) of the code (RQ-0091-GA)

S U M M A R Y

Schools of acupuncture are subject to regulation by the Texas Higher Education Coordinating Board.

Opinion No. GA-0145

The Honorable Edwin E. Powell Jr.

Coryell County Attorney

P.O. Box 796

Gatesville, Texas 76528

Re: Whether a justice of the peace may receive, in addition to a salary, fees for issuing certified copies of birth and death certificates as provided by section 154.005(a) of the Local Government Code (RQ-0092-GA)

S U M M A R Y

Section 154.005(a) of the Local Government Code violates article XVI, section 61 of the Texas Constitution to the extent it permits a justice of the peace to receive fees for issuing certified copies of birth and death certificates in addition to his or her annual salary. A justice of the peace must deposit such fees in the county treasury, and the fees may not be used to supplement the official's salary.

Opinion No. GA-0146

The Honorable Greg Lowery

Wise County Attorney

Wise County Courthouse, Room 300

Decatur, Texas 76234

Re: Whether an officer, as bailiff and head of courthouse security, is entitled to judicial immunity from a suit for injuries occurring while removing an individual from the courthouse (RQ-0094-GA)

S U M M A R Y

Derived judicial immunity applies to officials exercising the functional equivalent of judicial discretion. Generally, a bailiff and chief of courthouse security screening individuals from the courthouse would not be exercising the functional equivalent of judicial discretion. Derived judicial immunity may also apply to an official acting pursuant to facially valid judicial orders or instructions.

For further information, please access the website at www.oag.state.tx.us. or call the Opinion Committee at 512/463-2110.

TRD-200400956

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: February 11, 2004