                                     GENERALOF TEXAS
                              ATTORNEY
                                           GREG        A B B O T T




                                                July 23,2009


The Honorable Rob Eissler                              Opinion No. GA-0732
Chair, Committee on Public Education
Texas House of Representatives                         Re: Whether the State of Texas may permit
Post Office Box 29 10                                  unauthorized aliens to receive the benefit of in-
Austin, Texas 78768-2910                               state tuition at Texas state colleges and universities
                                                       (RQ-0742-GA)

Dear Representative Eissler:

         You have requested that we answer the questions submitted by your colleague,
Representative Leo Berman, former chair of the Committee on Elections. We were asked whether
Texas "is in violation of federal law and the Equal Protection Clause o f . . . the United States
Constitution, by allowing illegal aliens in Texas the benefit of instate tuition in state colleges and
universities to the exclusion of nonresident United States citizens."' Although the request does not
cite to any particular provision of Texas law, we understand it to inquire about Education Code
sections 54.052(a)(3) and 54.053(3). Section 54.052 governs the determination of resident status
for in-state tuition eligibility at state colleges and universities in Texas and includes as a resident a
person who:

                     (A) graduated from a public or private high school in this state
                or received the equivalent of a high school diploma in this state; and

                      (B) maintained a residence continuously in this state for:

                           (i) the three years preceding the date of graduation or
                receipt of the diploma equivalent, as applicable; and

                          (ii) the year preceding the census date of the academic term
                in which the person is enrolled in an institution of higher education.

TEX.EDUC.CODEANN.5 54.052(a)(3) (Vernon 2006). To establish residency under this provision,
section 54.053(3) requires a person to submit information to establish the resident status and "if the
person is not a citizen or permanent resident of the United States, an affidavit stating that the person


        'Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
The Honorable Rob Eissler - Page 2



will apply to become a permanent resident of the United States as soon as the person becomes
eligible to apply." Id. 5 54.053(3).

        We consider here only whether sections 54.052(a)(3) and 54.053(3) violate 8 U.S.C. 5 1623
and the Equal Protection Clause, the federal provisions specifically raised. Section 505 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. 5 1623,
provides as follows:

               Notwithstanding any other provision of law, an alien who is not
               lawfully present in the United States shall not be eligible on the basis
               of residence within a State . . . for any postsecondary education
               benefit unless a citizen or national of the United States is eligible for
               such a benefit (in no less an amount, duration, and scope) without
               regard to whether the citizen or national is such a resident.

8 U.S.C 5 1623(a) (2006). The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution generally requires states to treat similarly situated persons in a similar manner.
See U.S. CONST.amend. XIV, 5 1. Because the request does not specify or present legal arguments
as to how or why the state statutes may violate the federal law, o w discussion is necessarily general.

I.      Federal Statutory Preemption

        Under the Supremacy Clause of the United States Constitution, "any state law, however
clearly within a State's acknowledged power, which interferes with or is contrary to a federal law,
must yield." Gade v. Nut '1 Solid Wastes Mgmt. Ass 'n, 505 U.S. 88, 108 (1992) (quoting Free v.
Bland, 369 U.S. 663, 666 (1962)). State laws may be preempted under the Supremacy Clause by
federal law in several ways. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-74
(2000) (discussing express preemption and the two categories of implied preemption, i.e., field and
conflict preemption); De Canas v. Bica, 424 U.S. 351, 358 n.5, 360-65 (1976) (discussing
preemption of immigration-related state law), The request suggests that the Texas statutes may
conflict with 8 U.S.C. 5 1623. See Request Letter at 1;Crosby, 530 U.S. at 372 (explaining that state
law is impliedly preempted to the extent of conflict with federal law). A conflicting state statute is
preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress" or if compliance with both the state and federal law is impossible.
De Canas, 424 U.S. at 363; Crosby, 530 U.S. at 372-73; see also Villas at Parkside Partners v. City
of Farmers Branch, 496 F. Supp. 2d 757, 764-66 (N.D. Tex. 2007) (discussing the De Canas
decision as construed by federal district courts).

        Section 1623 would preempt Education Code sections 54.052(a)(3) and 54.053(3) under the
conflict preemption test ifthese sections provide a "postsecondary education benefit" to an alien who
is not lawfully present in the United States (hereinafter "unauthorized alien") on the basis of
"residence," within the meaning of the federal statute, "unless a citizen or national of the United
States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to
whether the citizen or national is such a resident." 8 U.S.C. 5 1623 (2006).
The Honorable Rob Eissler - Page 3                       (GA-0732)



        Section 1623, however, does not define "postsecondary education benefit" or "residence."
See id.2 We are not aware of any federal agency that has administratively defined these terms; nor
are we aware of any federal court or state supreme court that has construed these terms or considered
the substantive application of section 1623(a) to a statute similar to the Texas statutes. See Jones
v. Ruth Packing Co., 430 U.S. 5 19,526 (1977) (stating that obstacle preemption inquiry requires a
consideration of the "relationship between state and federal laws as they are interpreted and applied,
not merely as they are written") (emphasis added).

         To date, the only judicial decision on this specific question is from an intermediate California
state appellate court, and it is currently pending review by the California Supreme Court. See
Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518 (Cal. App. 3d), superseded by 198 P.3d
1 (Cal. 2008) (granting respondents' petition for review on Dec. 23, 200Q3 In Martinez v. Regents
of University of California, the court of appeals held that a California statute exempting unauthorized
aliens from paying nonresident tuition at certain state colleges and universities4provided a benefit
on the basis of residence in violation of 8 U.S.C. 6 1623, and was thus preempted by the federal law.
See Martinez, 83 Cal. Rptr. 3d at 540-45. The court construed "benefit" in 8 U.S.C. 5 1623 to
include in-state tuition, rejecting the argument that it means only payment of money or direct
financial assistance. See id. at 53 1-33. The court also determined that the state statute requiring
attendance at a California high school for at least three years created a de facto residence requirement
and thus conferred a benefit to unauthorized aliens on the basis of residence in California. Id. at
537-40. Finally, the Martinez court determined, because the California statute did not provide in-
state tuition to United States citizens from other states "'without regard to' ~aliforniaresidence,[the
statute] conflicts with . . . 8 U.S.C. section 1623." Id. at 540. Accordingly, the Martinez court
concluded, the California statute was preempted to the extent of the conflict because it was


         'A provision in the related Personal Responsibility and Work Opportunity Reconciliation Act of 1996, codified
at 8 U.S.C. § 1621(c), defines "state or local benefits" as

                   any retirement, welfare, health, disability, public or assisted housing,postsecondary
                   education, food assistance, unemployment benefit, or any other similar benefit for
                   which payments or assistance are provided to an individual, household, or family
                   eligibility unit by an agency of a State or local government or by appropriated funds
                   of a State or local government.

8 U.S.C. 8 1621(c)(l)(B) (2006) (emphasis added). Section 1621 does not further define "postsecondary education
benefit."

         3Under California court rules, if the California Supreme Court grants review, a court of appeals' opinion may
be treated as an unpublished opinion or a partial publication. See Cal. R. Ct. 8.1 105(e), 8.1 110, 8.1 115. Pursuant to
California's Rules of Court, Martinez has been certified for partial publication. See Martinez, 83 Cal. Rptr. 3d at n.*
(providing that the "opinion is certified for publication with the exception ofparts I1 and I11 ofthe DISCUSSION); Cal.
R. Ct. 8.11 10 (concerning partial publication).

          4The California statute provides that to qualify for in-state tuition rates, (1) students must have attended high
school in California for a least three years; (2) they must have graduated from a California high school or attained the
equivalent thereof; and (3) unauthorized alien students must submit an affidavit that they have either filed an application
to legalize status or will file such an application as soon as they become eligible. Martinez, 83 Cal. Rptr. 3d at 522 n. 1.
The Honorable Rob Eissler - Page 4                        (GA-0732)



impossible for universities and colleges to comply with both federal and state law, and because "it
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress." Id. at 54142.5

         It is possible that another court could follow the reasoning of the Martinez decision.
However, a California Supreme Court decision would not bind a federal or state court in Texas, and
no other court has considered the validity under federal law of a state statute authorizing in-state
tuition for unauthorized aliens6 Thus, while a federal or state court in Texas could find that 8 U.S.C.
5 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict
with the federal law, given the paucity of judicial precedent, we cannot predict with certainty that
a court would so find.

11.       Equal Protection

         The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
prohibits a state from denying "to any person within its jurisdiction the equal protection ofthe laws."
U.S. CONST.amend. XIV, 1. The constitutional equal protection guarantee requires that similarly
situated persons be treated similarly under the law; it does not preclude a state from adopting
legislation classifying persons for "one purpose or another, with resulting disadvantage to various
groups or persons." Romer v. Evans, 5 17 U.S. 620,63 1 (1996) (citing Personnel Adm 'r v. Feeney,
442 U.S. 256, 271-72 (1979)). The question presented suggests that unauthorized aliens and
nonresident United States citizens are similarly situated, but treated unequally with respect to
eligibility for the benefit of in-state tuition under Texas law. See Request Letter at 1. Because the
request does not specify or present legal arguments as to how or why the state statutes violate the
equal protection guarantee, our discussion is necessarily general.

       First, on their face, Education Code sections 54.052(a)(3) and 54.053(3) do not allow
unauthorized aliens a benefit denied to nonresident United States citizens. See TEX.EDUC.CODE


         'The Martinez court looked at the Congressional objective as stated in 8 U.S.C. Ij 1601 regarding the national
policy with respect to immigration: "the availability of public benefits [should] not constitute an incentive for
immigration to the United States" and "[ilt is a compelling government interest to remove the incentive for illegal
immigration provided by the availability of public benefits." Martinez, 83 Cal. Rptr.3d at 542; 8 U.S.C. 1601(2)(B),
(6) (2006).

           61nDay v. Sebelius, the federal district court dismissed equal protection and preemption challenges to a Kansas
in-state tuition statute similar to the Texas statutes on the grounds that the out-of-state plaintiffs lacked standing because
they were not injured as a result of the state law and there existed no private right of action under the federal statute. See
Sebelius, 376 F. Supp. 2d 1022, 1034, 1039 (D. Kan. 2005). The Tenth Circuit Court of Appeals affirmed the dismissal.
Day v, Bond, 500 F.3d 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 2987 (2008). In rejecting the out-of-state
plaintiffs' equal protection standing claim, the circuit court determined that the plaintiffs' alleged injury-having to pay
nonresident tuition-would not be redressed by a decision in the plaintiffs' favor because they still would not qualify
for in-state tuition. Bond, 500 F.3d at 1139. Regarding the plaintiffs' preemption standing claim, the circuit court
concluded that "the text and structure of Ij 1623 do not manifest a congressional intent to create private rights, and the
Plaintiffs thus have not claimed any cognizable and individualized injury stemming from the implementation of [the
Kansas statute]." Id at 113940.
The Honorable Rob Eissler - Page 5                         (GA-0732)



ANN.$5 54.052(a)(3), .053(3) (Vernon 2006). Nonresident United States citizens can obtain the
benefit of sections 54.052(a)(3) and 54.053(3) by graduating from a Texas high school or obtaining
the equivalent of a Texas high school diploma; and living continuously in Texas for the three years
preceding the graduation or receipt of the diploma and the year before the census date of the term
of enrollment in a Texas college or university. See id. 5 54.052(a)(3).

         Second, high school attendance and residency requirements by themselves would not violate
the equal protection guarantee. The United States Supreme Court has approved "bona fide residency
requirements in the field of public education." Martinez v. Bynum, 46 1 U.S. 32 1, 326-27 (1983).
Additionally, the Court has recognized "that a State has a legitimate interest in protecting and
preserving the quality of its colleges and universities and the right of its own bona fide residents to
attend such institutions on a preferential tuition basis." VZundis v. Kline, 412 U.S. 441, 452-53
(1 973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state
status as to make virtually certain that students who are not, in fact bona fide residents of the State,
but who have come there solely for educational purposes, cannot take advantage of the in-state
rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54). An appropriately defined
bona fide residence requirement uniformly applied furthers "the substantial state interest in assuring
that services provided for [a state's] residents are enjoyed only by residents[,]" and "[s]uch a
requirement with respect to attendance in public free schools does not violate the Equal Protection
Clause." Id. at 328. Finally, such a requirement does not burden or penalize a fundamental right
protected by the Constitution or implicate a suspect classification requiring strict scrutiny. Id. at
328-29 & n.7; see also Plyler v. Doe, 457 U.S. 202, 221-23 (1982) ("[plublic education is not a
'right' granted to individuals by the Constitution") (citing Sun Antonio Indep. Sch. Dist, v.
Rodriguez, 41 1 U.S. l , 3 5 (1973)).7

        Accordingly, a federal or state court in Texas would likely conclude that Education Code
sections 54.052(a)(3) and 54.053(3) do not facially violate the Equal Protection Clause because the
statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate
or substantial interest in assuring that only bona fide residents that graduate or receive diplomas from
Texas high schools are eligible for in-state tuition. However, as with the issue of preemption, we
caution that no court has addressed whether a statute similar to the Texas statutes conforms to the
mandates of the Equal Protection Clause.'


        71fa legislative classification targets a suspect class or impacts a fundamental right "it will be strictly scrutinized
and upheld only if it is precisely tailored to further a compelling government interest." Sonnier v. Quarterman, 476 F.3d
349, 368 (5th Cir. 2007) (citing Plyler, 457 U.S. at 217-18). If the legislative classification "neither burdens a
hndamental right nor targets a suspect class," it will be upheld "so long as it bears a rational relation to some legitimate
end." Romer, 517 U.S. at 631.

          'The California appellate court in Martinez did not determine that the similar California statute violated the
Equal Protection Clause. See Request Letter at 1 ("the Third District Court of Appeals in California ruled that California
law conflicts with federal law and the Equal Protection Clause"). It merely allowed the plaintiffs in the case to amend
their complaint regarding the equal protection claim. See Martinez, 83 Cal. Rptr. 3d at 545-46. In discussing the equal
protection claim, the Martinez court, in fact, observed that the "high school attendance requirement of [the California
statute] is not troubling in and of itself, because a state may favor its own residents." Id. at 545.
The Honorable Rob Eissler   -   Page 6



                                         S U M M A R Y

                     Education Code sections 54.052(a)(3) and 54.053(3) would
             conflict with and thus be preempted by section 505 of the Illegal
             Immigration Reform and Immigrant Responsibility Act of 1996,
             codified at 8 U.S.C. fj 1623, if the state statutes provide a
             "postsecondary education benefit" to an alien who is not lawfully
             present in the United States on the basis of "residence," within the
             meaning of the federal statute, "unless a citizen or national of the
             United States is eligible for such a benefit . . . without regard to
             whether the citizen or national is such a resident." 8 U.S.C. 5 1623(a)
             (2006). However, the terms "postsecondary education benefit" and
             "residence" are not defined in the federal law. In addition, no Texas
             or federal court has construed these terms or considered the
             substantive application of the federal law to a statute similar to the
             Texas statutes. Thus, while a federal or state court in Texas,
             following the reasoning of an intermediate California state appellate
             court decision, could find that 8 U.S.C. f j 1623 preempts Education
             Code sections 54.052(a)(3) and 54.053(3) to the extent ofthe conflict
             with the federal law, given the paucity of judicial precedent, this
             office cannot predict with certainty that a court would so find.

                      The United States Supreme Court has "approved bona fide
             residency requirements in the field of public education." Martinez v.
             Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has
             recognized "that a State has a legitimate interest in protecting and
             preserving the quality of its colleges and universities and the right of
             its own bona fide residents to attend such institutions on a preferential
             tuition basis." Vlandis v. Kline, 412 U.S. 441,452-53 (1973). "This
             'legitimate interest' permits a 'State [to] establish such reasonable
             criteria for in-state status as to make virtually certain that students
             who are not, in fact, bona fide residents of the State, but who have
             come there solely for educational purposes, cannot take advantage of
             the in-state rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412
             U.S. at 453-54).

                     Accordingly, a federal or state court in Texas would likely
             conclude that Education Code sections 54.052(a)(3) and 54.053(3) do
             not facially violate the federal Equal Protection Clause because the
             statutory prerequisites for in-state tuition are reasonable requirements
             that serve Texas's legitimate or substantial interest in assuring that
             only bona fide residents that graduate from Texas high schools or
             receive the diploma equivalent from this state are eligible for in-state
The Honorable Rob Eissler - Page 7           (GA-0732)



              tuition. However, no court has addressed whether a statute similar to
              the Texas statutes conforms to the mandates of the Equal Protection
              Clause.

                                            Very tr ly yours,


                                           A%&
                                            Attorney General of Texas


ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
