Untitled Texas Attorney General Opinion

. .

The Attorney General of Texas

Ma:,ch 19. 1985

JIM MAl-lOX

Attorney General I

SupromE

coull BUlldIng Eonorable Wilhclmlnc~ Delco Opinion NO. JM-302

P. 0. Box 12548 chairman

AUSlIr&TX. n711.2s45 Eigher education cum1ittee Re: Whether the legislature may

51w752So1 Texas House of Reprcmentatives impose a longer residency require-

TW.x OlW37C1337

Thco~kc 51214750286 P. 0. Box 2910 meut on out-of-state residents

Austin, Texas 787ti!l who wish to ‘qualify for resident

tuition at * state university

714 Jmkwn. Suite 700

cwlar. TX. 7S20245oS

Dear Representative Delco:

ZW742dou

In all 50 statmes, a distinction ie made between residents and

4S24Albert* Ave., sun. 10 nonresidents of the state regarding the tuition payable by students at

El Paso, TX. -2293 state-supported colleges and universities. The ~onstitutlonallty of

01- that distinction is not questioned. See Note, The Coostitutionalit~

of Nonresident Tuition, 55 Mm. L.?kv. 1139 (1971). You have

1001Texm. Suite 700 requested our opin:%ii?regarding the constitutionality of durational

nou*1on.

TX. 77002-3111 residence requirements applicable to a student’8 eligibility for the

71- tuition paid by realdent students.

Section 54.05:! of the Texas Education Code provides that an

SO5Broadway.Suit. 312

Lubbock.TX. 70401379 individual who comes from outside Texas can be classified a resident

SoSn47-5238 student only if he resides In Texas for a 12-month period preceding

enrollment in an educational institution. Article 55.054 of the

Education Code provides that , after resid%ng in Tuu for at lemt 12

4300 N. T.ntk, Suit. 6

McAllm, lx. 785014os5

months, a omresiiht student may be reclassified as .a resident

SwmS2-4S47 student as provided, in the rules and regulations of the Coordinating

Board, Texas Collega and Dniverslty System , and thereby qualify to pay

resident tuition and fees. You ask whether the state constitutionally

200 Yaln Plau Suite 400 can adopt a residewy requirement that is longer than 12 months for

San Antonlo. TX. 7S2G527S7

non-Texas. residents to qualify for resldent tuition or that requires

w?m54191

students who coaw from out of state to pay nonresident tuition

throughout their college careers. Since you do not submit a special

An Equal OWCWWW proposal or a definite period of time. ve vi11 discuss the question in

Alllmllw ActIOn EIWIOYW the abstract.

The yourteenth Amendment of the United States Constitution

provides that no state may deny to any perwn vithin its jurisdiction

the equal protecttm of the IAWS. The equal protection clause does

not prohibit all legislative classifications. In revleving legis-

lation under the equal protection clause, the Court adhere@ to a

three-tiered test. If s statute infringes on a fundancntal right or

create* lII ioheren,c:Ly suspect classification. the atstute is subject

to strict judicial scrutiny which requires the atate to establish a

D. 1367

gonorable Wilhcluina Delco - Page 2 (J&302)

compelling interest In its enactment. To do so. the state mat

deuonetrate that its purpom or interest is both constitutionally

permissible and eubatantial sad that its use of the classification is

necessary to accomplish its purpose. See In rc Criffiths, 613 U.S.

717 (1973). If a ststute cloee not affect a fundaacntsl right or

creete a suspect claseificatim~. the statute is accorded a preemption

of constitutionality that is not disturbed unless the enactment rests

on grounds wholly irrelevant to the achievement of a legitimate state

objective. The latter stan(lard frequently is referred to as the

rational basis test. See W&van

--- v. Maryland, 366 U.S. 420 (1961). A

person challenging a classification judged by the rational basis test

must establish that the claeeification does not bear a fair relation-

ship to a legitimate public purpose, whereas a state must justify a

suspect classification by s,howing a compelling state interest.

Finally, in certain instances , the Court has inquired whether legisla-

tion furthers the “substantial interest” of the state. See Plyler v.

Doe,

- 457 U.S. 202 (1982); reh’

-- 8 denied, 458 U.S. 1131 (19m.

Statutes requiring one-year residency as a condition of welfare

and voter eligibility have come under attack as violations of the

equal protection clause in cases in which the United States Supreme

Court applied strict judicial scrutiny because the statutes had the

effect of penaliring persons vho exercised the fundamental and con-

stitutionally protected right to travel from state to state. Shapiro

v. Thompson, 394 U.S. 618 (1969). is a landmark case in which the

United States Supreme Cour: nullified statutory provisions vhich

conditioned eligibility for welfare benefits on a one-year residency

requirement which had a chillings effect on interstate travel. In Dunn

v. Blumeteln~ 405 U.S. 330 (1972). the Supreme Court struck d=

one-year durational residency requirament for voting in elections

because the state uas penalizing persons who had exercised their

conetitutionally protected right to interstate travel. See also

Plemorlal Eospital v. Maricops County. 415 U.S. 250 (1974) (one-year

residency requirement for m&Cal care to indigents impinges on right

to travel and not justified 'by compelling state interest); Attorney

. General Opinions MU-538 (1981); B-1208 (1978).

On the other hand, vh.en confronted, vith one-yeer residency

requirements for purposes of tuition costs et public colleges. state

and federal courts have determined that such residency requirements

have no real effect on the fundamental right of interstate travel and

have upheld one-year requi:remente by applying the rational basis

standard instead of the “ccmpelling state interest test.” In such

cases. proof of the student’s intent to be domiciled in the state

probably is a more juetifisb!.e purpose than equalization of costs. but

both purposes have been recognized by the courts. Such cases alloved

the states to require a etudcnt to reside in the state for one year as

evidence of his bona fide Intent to be permanently domiciled there.

See Weaver v, Kelton. 357 F. Supp. 1106 (E.D. Ter. 1973) (upholding

section 54.052( ) f the Texas Education Code es rationally related to

legitimate atatee interest); Starns v. Halkerson, 326 F. Supp. 234

Honorable Uilhelm~na Delco - Page 3 (JH-302)

(D.C. Hinn. 1970). aff'd, 401 U.S. 985 (1971) (regulation imposing

one-year waiting period for resident status for tuition purposes

uuheld because riaht of interrtate travel not infrinned and reaulation

sstisfled rational basis test); Sturgis v. State of iaehington; 368 F.

SUPP. 38 (U.D. Wash. 1973), _- aff'd. 414 U.S. 1057 (1973) (one-year

residency requirement for tuition purposes. scrutinized under rational

basis test. bore reasonable rc!lationehiu to leaitlmate state ournose):

Thompson vi Board of Regents elf University of Nebraska, 188 N:U.id 8i0

(Neb. 1971) (holding durati&al residency requirerent for tuition

purposes not penalty~ on exercise of righi of interstate travel and

reasonable under rational bar;?;6 test); Kirk v. Board of Regents of

Univereity of California, 78 Cal. Rptr. 260 (Cal. App. 1969). appeal

dismissed. 396 U.S. 554 (1965) (applying rational basis test because

cost of tuition did not infringe on right to travel).

The courts consistently have dlstingulehed tuition vaiting

periods from velfere veiting Ferlods and have determined that a one-

year tuition vaitlng period is lees likely than a one-year velfare

waiting period to deter a pe!:rlon from exercising his right to change

residences.

We are not aware of any case in vhich a court ves confronted vith

the ccmetltutionality of a durational residency requirement for

tuition purposes in excess of one year. A one-year period of

resldencv is the usual reauirement emnloved bv virtuallv all state

universitiee. See Note, Th&~mstituti~na~ity df Nonreeid&t Tuition,

55 I4lnn. L. Rev.1139, 1140 (1971). We cannot Dredict whether the

courts would uphold a period longer than one year-and if so vhere the

courts vould drav the line. We do not know et what point a court may

determine that a longer rel,idency requirement penalizes or has a

chilling effect on the fundancntal conetitutional right of interstate

travel, vhich in turn vould eJhject the requirement to strict scrutiny

and a compelling Interest teat instead of the test vhere the require-

ment only needs to be reesonal,ly and rationally related to a leglti-

mate state purpose. The cese:s upholding one-year residency require-

ments clearly indicate that the requirement must be reasonable but

have determined that the one-,year period is reasonable. In addition,

we cannot rule out the poeelbllity that a court vould adopt a

"substantial interest" test. See

.- Plyler v. Doe. s.

In Kelm v. Carleon, 473 F.2d 1267 (6th Cir. 1973). the court

upheld a one-year residency requirement for reclaseificetion as a

resident student but invalidated as unreasonable a provision requiring

the student to submit proof that he had secured employment in the

state following graduation. In Smith v. Paulk. 705 F.2d 1279 (10th

Cir. 1983). the court held unconstitutional a requirement that private

emploment agency license applicants be residents of the state for one

year preceding such epplicat~lon because it penalized the exercise of

the conetitutional r<ght of $nterstate migration and vse not justified

by compelling state interest. The Tenth Circuit Court reiterated the

language in Dunn v. Blumetein,.~405 U.S. et 343. that

p. 1369

Ronorable Wllhel~iaa Delco - 'Page 4 (m-302)

if there are other reasonable ways to achieve the

legialatlve goal vit‘h a lesser burden on constitu-

tionally Iprotected activity, ‘a State may not

choose the way of greater interference.’

705 F.2d at 1284.: Savers1 federal courts and this office have

determined that five-year residency requirements for veterans’

preferences and benefits constitute a denial of equal protection by

dlscrimlnatlng against persona exercising the fundamental right of

interstate travel. See

--- Barnes v. Board of Trustees, Michigan Veterans

Trust Fund, 369 F. Supp. 132;‘TW.D. Mlch. 1973); Carter v. Gallagher,

337 F. Supp. 626 (D. Wm. 1.971); Stevens v. Campbell, 332 F. Supp.

102 (D. Mass. 1971); Attorney General Opinion E-654 (1975).

While the cases general.l,y uphold the constitutionality of pro-

vlalone calculated to eetabbl.leh a student’s boua fide intent to be

domiciled in the state. they have atruck down as unconstitutional

provisions vhich have the effect of denying an out-of-state student

the right to show that he became a resident of the state after

entering the university. Rebuttable presumptions of nonresidency lo

these cases have been held conatittitionally permissible. See Clarke

v. Redeker. 406 F.2d 883 (8th Cir. 1969). cert. denied. 396.S. 862

(1969). While a etate may place a strong burden of proof se to change

of residence 00 a former out-of-state student who claims state

residency. each caee muet be decided on its own facts. Accordingly,

the courts in several cases have struck down etatutee containing

lrrebuttable. presumptions and have held that a person must be allowed

the opportunity to rebut a pl,esumption of nonresidency.

The state unquestionably, has the power to llmft the right to vote

to residents. but Texas exceeded that power as to members of the armed

forces who moved to Taxaa during their military duty. In Carriagton

v. Rash. 380 U.S. 89 (1965). the United States Supreme Court declared

unconstitutional a provision elf the Tune Constitution vhich prevented

all member6 of the armad forces who moved to Texan while in the

service from acquiring Taxaa :residence for voting purposes 60 long as

they ramained in the armed forces. The Court held that forbidding a

serviceman an opportunity to controvert the presumption of non-

residency violated the equal protection clause.

Following the aama rationale a6 that expressed by the Supreme

Court in Carrington, the courts have attick down provleions pro-

hibiting students originall:{ classified as nonresident for tuition

purposes from controverting the nonresident claaeiflcation for the

entire period of their attcuiance at a college or university in the

state. In Vlandi6 v. Kline,, 412 U.S. 441 (1973). the Supreme Court

held a permanent, irrebuttabla presumption of nonresidency, vhich was

baaed on the fact that a student wae a nonresident at the time he

applied for admission to a state university , violated the due process

clause of the Fourteenth Amendment. See also Robertson v. Regents of

University of New Mexico. :!!iO F. Supp. 100 (D.N.M. 1972) (holding

p. 1370

Aonorable Wilhelmins Delco - Page 5 (m-302)

statutory provision which pl,ecluded change of ?esldeut status unless

university student mraintained domicile for one year vhile not enrolled

for as many as 6ix hours in 4~quarter or semester created irrebuttable

presumption of nonresidency in violation of due process aod equal

protection clauses of Fourteenth Amendment); N-n v. Graham. 349

P.2d 716 (Idaho 1960) (holdinS as arbitrary , capricious. and unreaaon-

able a regulation requiring student at state univer6ity properly

classified as nonresident to be frozen in that classification through-

out period of attendance (Lt: the university despite the fact the

student established bona fjd,e domicile in the state after initial

enrollment).

A permanent, irrebuttable presumption of nonresidency is not

rationally related to the purpose of distinguishing between bona fide

re6ldenta and nOn?eSidentS. We believe that a provision that requires

students from other states to pay nonresident tuition throughout their

college careers without aff’mding the Student6 an opportunity to

submit evidence that they have become Texas resident6 since entering

the university. in order to rebut the presumption of nonresidency.

would not be upheld by the courts if challenged.

,‘;UHHARY

The distinction between residents and non-

residents for charSing tuition at state colleges

and universities 1;s reasonable and constitutional.

Also. durational residency requirements of one

year have been held to be reasonable and constltu-

tional. A durational residency requirement for

tuition purposes that is longer than one year

would probably Iaise constitutional questions

which have not yet: been considered or determined

by the courts. A :?ennanent. irrebuttable presump-

tion denying 6tudenl:s the opportunity to letablleh

Texas residency during their college careers

probably would not be upheld by the courts.

JIU MATTOX

Attorney General of Texas

TOPIGRF.EN

First ASSiStant Attorney Gem.raI

DAVID R. RICRARDS

Executive ASSiStAnt Attorney General

ihmorabla Wilhelmina Delco - :Page 6 (JX-302)

RIa( GILPIN

Chairman, Opinion Comittee

Prepared by Nancy Sutton

Asalatant Attorney General

APPROVED:

OPINION COEMITTPZ

Rick Gilpin. Chairman

Jon Bible

Susan Garrison

Tony Guillory

Jim Moellinger

Jennifer BiggO

Nancy Sutton

p. 1372