 .       .




                              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
