# Untitled Texas Attorney General Opinion

> Texas Attorney General Reports · July 2, 1984

URL: https://www.frixlaw.com/law-library/cases/4131226

## Case

- **Court:** Texas Attorney General Reports
- **Decided:** July 2, 1984
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Jim Mattox
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4131226

## Opinion text

.
. ‘, .

The Attorney General of Texas
JIM MATTOX Ikcsmber 12, 1984
Attorney Qrneral

Mr. Kenneth Ashworth Opinion No. m-241
Conmissioner
Coordinating Board Rc: Whether certain foreign
51214752501 Texas College and University nationals are residents of
Telex ola87+1257
System Texas for purposes of tuition
Talecopl~r 51214750255
F. 0. Box 12708 at a state university
Austin. Texas 7lli’ll
714 Jackam. SUM 700
Dallsa, TX. 75202.4508
Dear Commissioner Ashworth:
21417428944

You ask vhet h,er Toll v. Moreno, 458 U.S. 1 (1982). authorizes
certain foreign mt:ionals to establish Texas residency for purposes of
payment of tuition at a state university in spite of the limitations
of section 54.057 3f the Texas Education Code. One of your examples
involves a German national, holding a NATOvisa, who resides in Texas
dl Texea. sulle 700 as a member of the German Armed Forces in accordance with the
llouslon, TX. 77w23111 Agreement between the Parties to the North Atlantic Treaty Regarding
71312235886 the Status of The:Lr Forces, June 19, 1951, 4 U.S.T. 1792 [hereinafter
cited as NATO Stetus of Forces Agreement]. The other example involves
s dependent of a llelgium national with au E-l visa who works for a
508 Brordway. Sulla 312
Lubbock. TX. 794013479
commercial firm ln this country. We conclude that, in spite of
2W747.5231) section 54.057, both of the foreign nationals In question have the
same privilege 85: a United States citizen to present evidence and
establish Texas rmidency for purposes of tuition.
4202 N. Tenth. Suite 8
Mo*llwl. TX. 78601.1585
512ma2~7 Section 54.01~7 of the Texas Education Code provides, in pertinent
pert, that

2w MeIn Pm& sulla ux) [a]n alien vho is living in this co&try under
San Antonlo. TX. 782Q52727
a visa permitting permanent residence or who has
512l2254191
filed wj.th the proper federal immigration authori-
ties a declaration of intention to become a
An Equal Oppot-WW citizen has the same privilege of qualifying for
Alflrmatlve AcMn Employer resident. status for fee purposes under this Act as
has a citizen of the United States. . . .

The federal Immigration and Nationality Act recognizes both
immigrant aliens and nonimmigrant aliens. 8 U.S.C. 51101 et seq.
(1982). Section 54.057 of the Education Code expressly allovs two
groups of immigrant aliens to qualify for resident status, namely,
those under a visa, permitting permanent residence and those who file a
declaration of Intention to become a United States citizen. It is
veil settled that the express mention or enumeration of a particular

p. 1083
Mr. Kenneth Arhworth - Page 2 (JM-241)

thing in a statute implies an express exclusion of all others. Cam
v. T is coming temporarily to the
United States as a participant in a program
designated by t’he Director of the United States
Information Agency. . . .

. . . .

(M)(i) an alien having a residence in a
foreign country which he has no intention of
abandoning who seeks to enter the United States
temporarily and solely for the purpose of pursuing
a -full course of study at -an established
vocational or other recognized nonacademic
institution. . . . (Emphasis added).

p. 1085
Fir. Kenneth Ashworth - Page 4 (JX-241)

Congress, however, hos <allowed other nonimmigrant aliens to enter
the country on terma permkting the establishment of domicile in the
United States. In addition to section llOl(a)(15)(G)(iv) which was
considered by the court in Toll v. Moreno, section llOl(a)(l5)(E)(i)
contains no residence requir,sment which precludes the establishment of
a domicile in the United Smtes. Instead, those subdivisions provide
that

(E) an alien entitled to enter the United
States under and in pursuance of the provisions of
a treaty of comerce and navigation between the
United States and the foreign state of which he is
a national. and t.he spouse and children of any
such alien if accompanying or following to join
him; (I) solely to carry on substantial trade,
principally betwmsen the United States Andy the
foreign state of which he is a national. . . . and

(G)(i) s dlrsignated principal resident
representative of a foreign government recognized
de jure by the United States, which foreign
government is I, member of an international
organization entitled to e*joy privileges,
exemptions, and llmmunities as an international
organization under the International Organizations
Immunities Act (!i9 Stat. 669) [22 U.S.C. 288 et.
-1, accredited resident members of the staff of
such representatives, and members of his or their
immediate family;

. . . .

(iv) officers, or employees of such inter-
national organiac:tions. and the members of their
immediate families. . . .

Thus, the dependent of a Belgium national with an E-l visa is in
a nonitigrant category for which Congress did not specify a
restriction on the residen:e of the alien. See 22 C.F.R. 541.12
(1984). We conclude that application of the limitations in section
54.057 of the Education Cotlel to such an alien would impose additional
burdens not contemplated by Congress in violation of the Supremacy
Clause and would constitute! an unconstitutional burden imposed by the
state.

Pursuant to 22 C.F.:R., section 41.12 (1984). the NATO-2
classification of the German national residing in Texas is based on
his position as a member of the German Armed Forces in accordance with
the NATO Status of Forces Agreement, supra art. III.- at 1796 and the
Agreement on the Status of the North Atlantic Treaty Organization,
National Representatives and International Staff, Sept. 20, 29 and

p. 1086 .
Mr. Kenneth Aahworth - Pagr 5 (m-241)

Dec. 12. 1951, art. 13. !i U.S.T. 1094 [hereinafter cited as NATO
Statue Agreement]. The Stetus Of Their Forces. The NATO Status of
Forces Agreement contains uo express restriction 011 a member alien’s
residence. We conclude, therefore, that the application of the
limitations in section 54.057 to this German national would be an
imposition of additioual ‘mrdens on an alien not contemplated by
Congress and a violation of the Supremacy Clause.

In our opinion, the criteria established by Toll v. Moreno to
determine the constitutionel application of the limitations in section
54.057 requires a state university to ascertain a nonimigrant alien’s
classification under the Immigration and Nationality Act, under a
relevant interuatioual agreement such as the NATO Status Agreement,
and under the federal regulations , and then to decide whether Congress
has prescribed residency requirements for that alien. If Congress has
not restricted the resiLence of so alien to the country of his
citizenship, even a noniomigrant alien must be allowed the sane
privilege of qualifying for resident status in Texas for tuition
purposes that is accorded to citieens of the United States and to
aliens who hold permanent residence visas or file their intention to
becowe a citizen. In spite of the limitations in section 54.057, euch
an alien’s status ss a Texas resident for tuition purposes will then
be determined in accordance with rules and regulations of the
Coordinating Board, Texas ,:ollege and University System, as provided
by section 54.053 of the Education Code.

SUMMARY

Under the Supremacy Clause of the United States
Constitution, aliens who are permitted by Congress
to adopt the United States ss their domicile while
they are in thil# country must be ellowed the saws
privilege as citizens and permanent residents of
the United States to qualify for Texas residency
for purposes 0:: tuition at state universities,
despite the lin.itation in section 54.057 of the
Texas Education Code.

JIM MATTOX
Attorney General of Texas

TOMGREEN
First Assistant Attorney General

DAVID P. RIC?IARDS
ExecutiveAssistant Attonle!y General

p. 1087
Hr. Kanncth Ashvorth - Page ,6 (A-241)

RICK GILPIN
chairman, Opinion comittea

Prepared by Nancy Sutton
Aaaietant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Noellinger
Jennifer Riggs
Nancy Sutton

p. 1088

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4131226. Public record. Not legal advice.