Mr. C. H. Cavness Opinion No. C-737

StateAuditor Sam Houston State Office Bldg. Re: Construction ofArticle Austin, Texas 2654C, Section l(h),Ver,- non's Civil Statutes: 1. Whether or not the benefits extend to an alien who is an employee of a Texas State institution of higher learning ‘but who is neither in this country under a visa permittingpermanent residencenor has he filed a Declaration of Intention to become a citizen of the United States; 2. Whether
or not the benefitsmay be exercised in institutions other than the employing DearMr. Cavness: institution.

In a recent letter to this office you requestedan opinion in regard to the above referencedmatters. We quote from your letter as follows:

II

. . . "1.Does House Bill No. 675 of the 59th Legislature,which extends resident tuition rates to resident teachers or professors or other employees of Texas State institutions of higher learning and their spousesand children,without regard to the length of time theymay have resided in Texas, also extend resident tuition rates to an alien who is a resident institutional employee but who is not In this country under a visa permittingpermanent residence or who has not filed a Declaration of Intention to become a citizenwith the proper Federal immigrationauthorities (as set forth in Sub-

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paragraph (f),Section I,Article 265&c,Vernon's Revised Civil Statutes)?

"2. Do theprovisions of House Bill No. 675 of the 59th Legislature relating to resident teachers or professors or other employees of Texas State institutionsof higher learning extend to enrollments in institutions other than the one employing them?"

Section l(f) of Article 2654~ of Vernon's Civil Statutes provides as follows:

"(f) All aliens shall be classifiedas 'nonresidentstudents';provided, however, that
an alien who is living in this country under
a visa permittingpermanent residence or who has filed a Declaration of Intention to become
a citizen with theproper federal immigration authorities shallhave the same privilege of qualifying for resident status for fee purposes under thisAct as has a citizen of theUnited States. Provided,however, that a resident alien residing in a junior college district located immediatelyadjacent to state boundary lines shall be charged the resident tuition by such junior college."

Section l(h) ofArticle 2654c, Vernon's Civil Statutes, provides:
"(h) Officers, enlistedmen and women, selectees or draftees of theArmy, Army Reserve,National Guard,Air Force,Air Force Reserve, Navy, Navy Reserve, or Marine Corps of theUnited States, who are stationed in Texas by assignment to duty within the borders of this State, or teachers,professors,
or other employees of Texas State institutions of higher learning, shall be permitted to register themselves, their husband or wife as the case may be, and their children, in State institutionsof higher learning by paying the regular tuition fees and other fees or charges provided for regular residents of the State of Texas, without regard to the length of time such officers, enlistedmen or women, selectees
or draftees, or teachers,professors, or other employees of Texas State institutionsof higher -3562-Mr. C. H. Cavness,page 3, (c-737)

learning have been stationed on active duty
or residedwithin the State. As amendedActs 1965, 59th Leg., p. 1003, ch. 490, T:1.

The former paragraph (6) of Section 1, Article 2654c, Vernon's Civil Statutes,now Paragraph (h),was added in 1941
as an exception to the general requirements for establishing "resident status” for fee purposes. Prior to this amendment military personnel were subject to the same requirements for establishingdomicile in Texas for fee purposes as other persons. In 1965 the benefits of Paragraph (h) of Section 1 were extended to teachers,professors, and other employees of Texas State institutions of higher learning and their families.

The effect of Section l(f) of Article 2654c, Vernon’s Civil Statutes, is that all aliens shall be classifiedas "nonresident students"and thereforemust pay non-resident tuition fees at State institutions of higher learning unless they qualify for classificationas "resident students" by conforming to certain criteria. Did the Legislature intend thatan alien professor or institutionalemployee of a State institution of higher learning in Texas, should first either be living in this country under a visa permittingpermanent residence or have filed with the proper immigrationauthorities a Declaration of Intention to becomea citizen before he could take advantage of theprovisions of Section l(h) ofArticle 2654c? We think not. Had such been the intent of the Legislature it could have added a provision to Section l(h) making alien teachers,professors, and other employees of State institutionsof higher learning specifically subject to theprovisions of Section l(f) of Article 2654~.

Paragraphs (f)and (h) ofArticle 2654c,Vernon's Civil Statutes,must Abeconstrued in pari materia. As to alien teachers, professors, or other alien employees of State institutions of higher learning, Section l(h) is an exception to the general provisions regarding aliens in Section l(f). Our answer to your first question is in the affirmative.

Your second question is whether the benefits extended to teachers,professors, and other employees of Texas State institutions of higher learning, and their families, by Article 265&c, Section l(h), Vernon's Civil Statutes,may be exercised in institutionsother than the employing institution. The wording of Section l(h) in no way limits its application to the employing institution alone; rather it clearly extends benefits whichmay 'beexercised in all State institutionsof higher learning

. The phrase "State institutions of higher learning" is plural and non-specific, and it is clear that the benefits which the statute confersmay be exercised in institutions other than the employing institution. -3563-Mr. C. H. Cavness, Page 4, (C-737)

SUMMARY
Alien employees of Texas State institutions of higher learning, theirhusband or wife as the
case may be, and their children are entitled to "resident student" status for fee purposes in State institutionsof higher learning as authorized byArticle 2654c, Section l(h), Vernon's Civil Statutes, notwithstandin of Section l(f) ofArticle 265fitheprovisions
c.
The benefits extended to teachers,professors, and other employees of Texas State institutionsof higher learning and their familiesby Article 2654c, Section l(h), Vernon's Civil Statutes,are not limited to the employing institution but may 'be exercised in all State institutionsof higher learning.

Yours very truly,

WAGGONER CARR

RLT:dh:mh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman John Reeves Malcolm Quick W. 0. Shultz 4r,+.blX

SsndLti.

APPROVED FOR THEATTORNEY GENERAL By: T. B. Wright

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