Case Information

*1 . .

The Attorney General of Texas Ma:,ch 19. 1985

JIM MAl-lOX I Attorney General Eonorable Wilhclmlnc~ Delco Opinion NO. JM-302 SupromE coull BUlldIng P. 0. Box 12548 chairman AUSlIr& TX. n711.2s45 Re: Whether the legislature may Eigher education cum1ittee 51w752So1 Texas House of Reprcmentatives impose a longer residency require- TW.x OlW37C1337 meut on out-of-state residents P. 0. Box 2910 Thco~kc 51214750286 Austin, Texas who wish to ‘qualify for resident 787ti!l

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 nonresidents of the state regarding the tuition payable by students at 4S24 Albert* Ave., sun. 10 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 requested our opin:%ii?regarding the constitutionality of durational 1001 Texm. Suite 700 residence requirements applicable to a student’8 eligibility for the nou*1on. TX. 77002-3111 tuition paid by realdent students. 71- 54.05:! Section of the Texas Education Code provides that an SO5 Broadway. Suit. 312 individual who comes from outside Texas can be classified a resident Lubbock. TX. 70401379 student only if he resides In Texas for a 12-month period preceding

SoSn47-5238 55.054 enrollment in an educational institution. Article of Education Code provides that , after Tuu for at lemt 12 resid%ng 4300 N. T.ntk, Suit. 6 months, a omresiiht student may be reclassified as .a resident McAllm, lx. 785014os5 student as provided, in rules and regulations of the Coordinating SwmS2-4S47 Board, Texas Collega and Dniverslty System , and thereby qualify to pay tuition and fees. You ask whether the state constitutionally resident 200 Yaln Plau Suite 400 can adopt a residewy that is longer than 12 months for San Antonlo. TX. 7S2G527S7 tuition or that requires non-Texas. residents to qualify for resldent w?m54191 students who coaw from out of state to pay nonresident tuition throughout their college careers. Since you do not submit a special proposal or a definite period of time. ve vi11 discuss the question in An Equal OWCWWW Alllmllw ActIOn EIWIOYW abstract.

The yourteenth Amendment of the United States Constitution provides that no state may deny to any perwn vithin jurisdiction its 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 on a fundancntal infringes right or create* l II ioheren,c:Ly suspect classification. the atstute is subject strict judicial scrutiny which requires atate to establish D. 1367

gonorable Wilhcluina Delco - Page 2 (J&302)

compelling In its enactment. To do so. interest the state mat deuonetrate that its purpom or is both constitutionally interest sad permissible and eubatantial its use of classification necessary to accomplish its purpose. See In rc Criffiths, 613 U.S. If a ststute cloee not affect a fundaacntsl right or

717 (1973). creete a suspect claseificatim~. the statute is accorded a preemption that is not disturbed unless the enactment rests of constitutionality on grounds wholly irrelevant to the achievement of a legitimate state objective. The latter stan(lard frequently is referred to as the See W&van v. Maryland, 366 U.S. 420 rational basis test. (1961). A --- person challenging a classification judged by the rational basis test must establish that claeeification does not bear a fair relation- ship to a legitimate public purpose, whereas a state must justify suspect classification by s,howing a compelling state interest.

Finally, 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.

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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 United States Supreme Court applied strict judicial scrutiny because the statutes had effect of penaliring persons vho exercised the fundamental and con- stitutionally protected to travel from state to state. Shapiro right 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 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. 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). one-yeer

On the other hand, vh.en confronted, vith 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 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 require a etudcnt to reside in the state for one year as evidence of his bona fide to be permanently domiciled Intent there. See Weaver v, Kelton. 357 F. Supp. 1106 (E.D. Ter. 1973) (upholding 54.052(

section ) f the Texas Education Code es rationally to legitimate atatee interest); Starns v. Halkerson, 326 F. Supp. 234 *3 Honorable Uilhelm~na Delco - Page 3 (JH-302) 401 U.S. 985 (1971) (regulation imposing

(D.C. Hinn. 1970). aff'd, 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 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 longer rel,idency requirement penalizes or has a on chilling effect the fundancntal conetitutional right of interstate scrutiny travel, vhich in turn vould eJhject the requirement to strict and a compelling Interest teat instead of the test vhere the require- ment only needs to be reesonal,ly and rationally a leglti- one-year mate state purpose. The cese:s upholding require- ments clearly indicate that the requirement must be reasonable but In addition, have determined that the one-,year period is reasonable.

we cannot rule out the poeelbllity that a court vould adopt a "substantial interest" test. See Plyler v. Doe. s. .- F.2d 1267 (6th Cir. 1973). the court

In Kelm v. Carleon, upheld a one-year reclaseificetion as a resident student but invalidated as unreasonable a provision requiring student to submit proof that he had secured employment in the 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 interest. by compelling state The Tenth Circuit Court reiterated language in Dunn v. Blumetein,.~405 U.S. et 343. that

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 way of greater interference.’ 705 F.2d at 1284.: Savers1 federal courts and this office have requirements for veterans’ that five-year determined preferences and benefits constitute a denial of equal protection by dlscrimlnatlng against persona exercising the fundamental right of See Barnes v. Board of Trustees, Michigan Veterans interstate travel. --- Trust Fund, 369 F. Supp. 132;‘TW.D. Mlch. 1973); Carter v. Gallagher, 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 they have atruck down as unconstitutional domiciled in the state.

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

the courts 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 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 armed forces. The Court held forbidding to controvert the presumption of non- serviceman an opportunity residency violated the equal protection clause.

Following the aama rationale a6 that expressed by the Supreme courts have attick down provleions pro- Court in Carrington, hibiting students originall:{ classified as nonresident for tuition purposes from controverting the nonresident claaeiflcation entire period of their attcuiance at a college or university in the In Vlandi6 v. Kline,, 412 U.S. 441 (1973). the Supreme Court state. held a permanent, irrebuttabla presumption of nonresidency, vhich was baaed on the fact that a student wae a nonresident at the time he , violated the due process applied for admission to a state university clause of the Fourteenth Amendment. See also Robertson v. Regents of University of New Mexico. :!!iO F. Supp. 100 (D.N.M. 1972) (holding *5 (m-302) Aonorable Wilhelmins Delco - Page 5

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 that classification through- out period of attendance (Lt: the university despite fact the student established bona fjd,e domicile in the state after initial enrollment).

A permanent, irrebuttable presumption of nonresidency is not rationally 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 in order to rebut the presumption of nonresidency. the university.

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 tuition purposes 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 l etablleh Texas during their college careers probably would not be upheld by the courts.

JIU MATTOX Attorney General of Texas TOPI GRF.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