 Honorable W. W. Heath            Opinion No. c-183
 Chairman, Board of Regents
'The University of Texas.         Re:   Tuition fees to be collected
 Perry-Brooks Building                  by the University of Texas
 Austin, Texas                          under Section l(h) of Article
                                        26%~ of Vernon's Civil Stat-
Dear Mr. Heath:                         utes under the facts stated.
          Your reque~stfor opinion on the above subject matter
indicates that numerous nonresident military personnel stationed
in Texas are desirous of obtaining the resident status for tui-
tion fees pursuant to'Section l(h) of Article 26%~ of Vernon's
Civil Statutes. Subsection (h) states as follows:
          "Officers. enlisted men and women, selectees
     or draftees of the Army, Army Reserve, National
     Guard, Air Force, Air Force Reserve, Navy, Navy
     Reserve, or E?arineCorps of the United States, who
     are stationed in Texas bv assignment to dutv wimp
     the borders of.;&: state. shall be Dermitted to
     resister themseAs., their husband or wife as the
     case may be, arj their,ch<.ldren,in state institu-
     tions of,higher learning hi paying the regular tui-
     tion fees and other fees or charges provided for
     regular residents of the State of Texas, without
     regard to th.eJ'Jngthof time such officers, enlisted
     men orwomeq, srtlecteescr draftees have been sta-
     tioned on actiivedUtym,,hd.thin
                                  the state." (Emphasis
     added).
          The departmental construction applied by The University
to recurring fact situations is outlined in your letter as fol-
lows :
          "In'construing the phrase 'by assignment to
     duty within the borders of this state,' it has been
     the administrative interpretation of long standing
     at The,University of Texas that nonresident military
     personnel in order to qualify for the resident tui-
     tion rate must be assigned to a duty station within
     the borders of this state, actively engaged in mili-
     tary duties as contrasted to student assignment and

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Hon. W. W. Heath, page 2   (c-183)


    attending school during their off-duty hours
    or during their normal annual accrued leave,
    rather than in an 'excess leave' status. Such
    administrative interpretation has been applied
    according to the following three factual situa-
    tions:
         "1. Nonresident students whose permanent
    military assignment is to a Student Detachment
    at Fort Sam Houston, Texas, and whose duty sta-
    tion is at The University of Texas in Austin.
    These students are attending school full time
    with same being charged to future leave (in ef-
    fect in an 'excess leave' category). Such stud-
    ents receive no pay or allowances and pay their
    own fees, etc. They are required, however, to
    report to Fort Sam Houston during any period in
    excess of three days when the University is not
    in session and receive pay for military duties
    performed during such period. These students
    are classified as nonresidents for tuition pur-
    poses, for the reason that they are not con-
    sidered to be assigned to military duty while
    attending the University full time.
          "2. Military personnel who are assigned
     temporarily to a duty station in Texas for the
     purpose of playing in a sporting event or par-
     ticipating in some other special service of
     short duration and who enroll their dependents.
     in the University and pay full~tuition fees with-
     out government assistance are classified as non-
     residents for tuition purposes, for the reason of
     thentransient nature of their assignment in Texas.
     On the other hand, personnel who are assigned to
     an Officers Candidate School for period of seven-
     teen weeks' duration, even though on TDY orders,
     have been classified as residents for tuition
     purposes. The length of time  and purpose of their
     duty is considered in making such a determination.
          "3. Non resident students attending The Uni-
     verslty of Texas during their normal <annualleave
     and paying all fees are permitted to pay the resi-
     dent fee if they are on a continuing assignment to
     a Texas base or installation .


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    Hon. W. W. Heath, page 3    (C-183)


                 "In construing the phrase 'shall be permit-
           ted .to register
                     - _ _ . themselves
                               _        _. . . in state
                                                    .   insti-
           tutlonsof higher learning by paying the regular
           tuition fees . . .I it has also been the long-
           standing administrative interpretation.that
           nonresident military personnel in order to qualify
           for the resident tuition rate must have no part of
           the tuition and fees paid directly to the University
           by the federal government under any of the various
           educational programs. Such administrative interpre-
           tation has been applied accordingly to the following
           three factual situations:
                "4. Students whose active military assignment
           is in Texas and who attend classes or participate in
           University sponsored extension programs during their
           off-duty hours and for whom the federal government.,
           pays to the University a specified portion of the
           tuition and fees under what is commonly known as the
           'Midnight Oil' (Air Force).program. These students
           are classified as nonresidents for tuition purposes
           since the federal government is paying part of the
           tuition directly to the University.
                “5.  Students whose active military assignment
           is in Texas but who utilize annual accrued leave.in
           order,to attend classes full time and during which
           time they perform no military duties. They receive
           full pay and allowances, and the federal government
           pays a specified part of the tuition and feea. Such
           students are classified,as nonresidents for tuition
           purposes since the federal government is paying a
           part of the tuition directly to the University.
                "6. Students assigned by the military to perma-
           nent duty station at the University for the purpose
           of full-time study and who receive full pay and
           allowances during such period as a student. The fed-
           eral government pays .a& tuition, fees end book costs.
           As to Air Force officers attending school under the
           'USAFIT' program, they are also attached to Bergstrom
           Air Force Base for flying purposes in order to mnin-
           tain their flying proficiency. These students are
           classified as nonresidents for tuition purposes since
           the federal government is paying all the fees, etc.,
           to the University under a contract. Further, such
           students are on student assignment and perform no
           military duties."
Hon. W. W. Heath, page 4   (C-183)


          Section l(h) of Article 26%~ permits the enumerated
military personnel and their families to register in the state
institutions of higher learning by paying the resident tuition
fee only if they are assigned to duty within the borders of
Texas. The length of service is not controling, but the person-
nel must "have been stationed on active duty within the state,"
prior to the date of admission. The material accompanying your
request brings to our attention one situation wherein an offi-
cer is transferred from.Germany to Fort Sam Houston so that he
may attend the University. The officer is considered by the
military to be '*onactive duty," however he is authorized a
"three and one-half years excess leave without pay and allowance."
            The statute in question makes no distinction between
 active duty with pay or active duty on excess leave without pay.
 We cannot distinguish the various terms of active duty assign-
 ment which the Legislature itself failed to distinguish. If the
 Department of Defense through the app-opriate military division
 stations a person on active dutv in Texas, The University of
,Texas can charge only the resident tuition fee for the person,
 his 'or her spouse and their children without regard to the length
 of duty or purpose of duty within Texas. Even though the service
 person is assigned to a duty station at an institution of higher
 learning in Texas, or if he is on an excess leave status to at-
.tend school, the active duty status is the determining factor, be
 it permanent or temporary.
           Although the University's policy over a long period of
 time has been to the effect that nonresident military personnel
 must not have any portion of their tuition and fees paid directly
 or indirectly'by the federal.government in order to qualify for
 the resident status, we find no authcrity in Article 2654~ to
 justify such an interpret.ation. The statute itself grants resi-
 dent privileges to those service peop1.eand their families as-
 signed to active duty in Texas without regard to who actually pays
~the fees, or from what source they are obtained.

                              SUMRY
                              ---

           Those military personnel enumerated in Section
      l(h) of Article ;)654cof Wrnon's Ci.vilStatutes and
                         cntltieo !.::q
      the.Lrfamilies :lrl:           :I.t.tend
                                            The University
      of Texas by paying the rcsi.dcnt.u:tion and fees if c
      thcy’are assigned t:,,
                           active cr;ipwithin Texas without
Hon. W.   W. Heath, page 5   (c-183)


      -regard to the length and nature of such assignment
      or from what source their fees and tuition are ac-
      tually paid.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General



                                      Fred D. Ward
FDWtwb                                Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Scott Garrison
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY:   Stanton Stone




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