The Honorable Bill Presnal           opinion NO. H-761
Chairman
House Appropriations Committee       Re: Tuition exemptions
Howe  of Representatives             for World War II veterans.
P. 0. Box 2910
Austin, Texas 70767
Dear Chairman Preenal:
     You have requested our opinion on a number of questions
regarding the eligibility of World War II veterans for
tuition exemption at state institutions of higher education,
pursuant to section 54.203 of the Education Code. Specifi-
cally, you ask:
          1. Whether there is a minimum require-
          ment for time served in the military
          during World War II for eligibility
          for the tuition exemption.
          2. What constitutes 'service' in
          the armed forces during World War II.
          3. Whether a personal
                        ._.      request.   for
                                           _.
          release from military SerViCs   during
          World War II constitutes a basis    for
          disqualification from tuition exemp-
          tion eligibility regardless of the
          time served prior to the request for
          release.
          4. Whether a veteran must have been
          eligible for or received G.I. educa-
          tional benefits from the federal
          government in order to be eligible
          for the tuition exemption.




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The Honorable Bill Presnal - page 2 (H-761)


     Section 54.203 of the Education Code provides that the
governing board of each institution of higher education
shall exempt certain persons from payment of tuition and
other fees, provided such persons were "citizens of Texas at
the time they entered the services indicated and have resided
in Texas for at least the period of 12 months before the
date of registration." .The"categoryof exempt persons
pertinent to this inquiry includes
          all nurses, members of the Women's
          Army Auxiliary Corps, members of
          the Women's Auxiliary Volunteer
          Emergency Service, and all honorably
          discharged members of the armed
          forces of the United States who
          served during World War II except
          those who were discharged from
          service because they were over the
          age of 38 or because of a personal
          request on the part of the person
          that he be discharged from service. . . .
          Sec. 54.203(a)(2).
     As to your first question, it is clear that the statute
does not establish a minimum requirement for time served
during World War II. Subject to two exceptions, it provides
for tuition exemption to all "who served during World War
II. . . ." (Emphasis added). In contrast, a subsequent
portion of the statute requires a minimum of 160 days service
in order for any post-Korean War veteran to qualify for the
exemption. Sec. 54.203W (4).    Since the statute thus fixes
a minimum length-of-service requirement for certain veterans
but not for others, we believe it is reasonable to conclude
that the Legislature did not intend such a requirement to
apply to the latter group.
     We are supported in this conclusion by Attorney General
Opinion O-7316 (1946), wherein this Office was asked whether
an honorably discharged veteran with less than 90 days
service was eligible for the tuition exemption provided by
article 2654b-1, V.T.C.S., the predecessor of section 54.203.
It was there said:




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.   .




        The Honorable Bill Presnal - page 3 (H-761)


                  State legislation hereinabove
                  quoted which confers educational
                  benefits on veterans of World War,
                  II makes no requirement as to term
                 ~of service the veterans must,have
                  served in the armed forces before
                  he shall be entitled,to the benefito~,~~~
                  conferred upon him therein. Article
                ~,,
                  2654b-1 as amended, states insub-
                  stance that the benefits provided   ,,',,
                  therein shall apply and accrue to
                  all members of the United States
                 Armed Forces   provided that such
                  persons have 'beenhonorab,lydis-
                  charged from the service and were
                  ,not discharged because of being
                  over the age of 38 years or because
                  of a personal request on the part of
                  such person to be discharged from
                  such service.
        It is therefore our op'inionthat there is no minimumrequire-
        ment for time served in the military during World War II in
        order for an individual to qualify for the tuition provided
        by section 54.203 of the Education Code.
              YOU also ask what constitutes "service" in the armed
        forces during World War II. Although there appear to be
        ,only two reported cases which have addressed thia question,
        they are in agreement that a ,personis "in military service"
        from the time he is sworn in.
        'Life Ins. Co. 44 A 2d 907 ,(N,+%?$?%&::";::::':;;5)
        md-        A;2d 2 (N:J. Sup. 194;); Dew v- Davis, 222 P. 756
         (Wan. Sup. 1924). Accordingly, it Four    aon     that our
        courts would probably hold that a person has "served" in the
        armed forces during World War II for purposes of sect'ion
         54.203, if he was a member thereof for any length of time,
        beginning at the moment he was sworn in.




                                 p. 3216
                                                _.-    ,-,.,



.   ’




        The Honorable Bill Presnal - page 4 (H-761)


             Your third question inquires about the disqualification
        from tuition exemption which section 54.203 makes applicable
        to persons who were discharged as a result of their own
        personal request. The statute provides in clear terms that
        such persons are disqualified, and it makes no exception on
        the basis of their length of prior service. As the court


                  [Wle are 'dealingwith restrictions
                  and conditions imposed by the very
                  statute which creates the right,
                  and those reatrictiona and conditions
                  may not be relaxed or modified to
                  avoid what may appear to be too
                  strict or narrow a rule  in a partic-
                  ular case.
        See also Chambers v. Robison, 179 S.W. 123, 124 (Tex. Sup.
        n15); cf. AttorneyGmOpinion          O-7021 (1946). We are
        thereforeof the opinion that a discharge from service in
         satisfaction of a personal request for release from military
         service during World War II constitutes a basis for disqual-
         ification from tuition exemption eligibility,~regardless of
         the time served prior to the request for release.
             Finally, you ask whether a veteran must have been
        eligible for or received G.I. educational benefits from the
        federal government in order to be eligible for the tuition
        exemption. Subsection (d) of section 54.203 provides:
                  The exemption from fees provided for
                  in Subsection (a) of this section
                  does not apply to a person if at the
                  time of his registration he is eligible
                  for educational benefits under federal
                  legislation in effect at the time of
                  his registration. A person is covered
                  by the exemptions if his right to benefits
                  under federal legislation is extinguished
                  at the time of his registration.




                                   p. 3217
                                          ~   ,-_.. ..--.~.~- .-.-..,,.---..,.,...-   .,,,,,.,_.,..
                                                                                               ~._~...~ -,,.




.   .




        The Honorable Bill Presnal - page 5~ (H-761)


        The statute does not require that a person have ever been
        eligible for G.I. benefits in order to qualify for the
        tuition exemption. Although it specifically declares to be
        eligible a person whose "right to benefits under federal
        legislation is extinguished at the time of his registration,"
        we do not believe the implication to be that persons who
        were never eligible for federal benefits are not covered by
        the exemption. (Emphasis added). See Attorney General
        Opinion V-688 (1948). Accordingly,If is our opinion that    a
        veteran need not have been eligible for nor received G.I.
        benefits from the federal government in order to qualify for
        the tuition exemption of section 54.203.
                              SUMMARY
                  There is no minimum requirement for
                  time served in the military during
                  World War II in order for an individual
                  to qualify for the tuition exemption
                  provided by section 54.203 of the
                  Education Code. A discharge in satis-
                  faction of a personal request for release
                  from military service during World War II
                  constitutes a basis for disqualification
                  from tuition exemption eligibility under
                  section 54.203, regardless of the time
                  served prior to the request for release.
                  A veteran need not have been eligible for
                  or received G.I. educational benefits from
                  the federal government in order to qualify
                  for the tuition exemption of section 54.203.
                                    -Very truly yours,



                                        Attorney ~General of Texas




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The Honorable Bill Preanal - page 6 (~-761)


APPROVED:




Opinion Comnlittee
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