. .

JIM MATTOX AttorneyGeneral

supremeCourtBuikW P.0. Box1254S Auslln. TX.7B711.254s 51214752501 Telex 9lom74-1367 Tdecopier 51a4750266

714Jackson. Sulh 700 Dallas. TX. 75202.4505 214i742.8944

4824*benaAve..

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1001Toras. Suits700 “oustan. TX. 77002.3111 7lY220UuLb

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200MaIn Plur. !wte 400 SanAntonio. TX.78205-2797 512m5-4101 

# TheAttorney General ofTexas

April 15. 1985

Bonorable Carl A. Parker Chairman Education Comittee Texaa State Senate P. 0. Box 12068, Capitol Statlon Austin, Texas 78711 Opinion No. J-N-309

Rc: #ether **foreign** nationals admitted CO the United States under an P-l “student” visa be charged ahigher tuition rate nt a state university than that charged to Texas residents or residents of another state

Dear Senator Parker:

You inquire trbether the constitutional questions discussed Attorney General Opinions JM-267 (1984) and m-241 (1984) prevent charging foreign nationals admitted to this country with F-l student visas ahigher tuition rate at astate university than that charged Texas residents or l:oother students whoare not Texas residents. latter group includes out-of-state students who are citizens of United States andWudents whoare aliens with visas other than an visa. It Is our opinion that the state may charge foreign students with F-l visas a\d.gher rate of tuition than it charges students
are Texas residents but maynot charge such foreign students ahigher rate of tuition than ft charges studenta vho. for tuition purposes, are not Texas residents.

The Texas Edmation Code provides different ratee of tuition state eupported institutions of higher education for students vho residents of Texacoand for students who are not residents **of** Texas. See Educ. Code 154.051. The constitutionality **of that**  distinction
z questioned. See Note, The Constitutionality of Nonresident Tuition. 55Minn. ‘i.ev. 1139 (1971). Attorney Gemral Opinion m-241 discussed the applicability the United States SupremeCourt decision in Toll v. Moreno. 458U.S. (1982). to the provisions of **section** 54.057 **of** the Education Code. That section of the Education Code provides that two groups i&grant aliens may qualify for the resident stataa and resident tuition in Texas, namely, those vith a viaa permitting permanent residence and theme who declare their intention to become United States cltizeae. Bgimplication, section 54.057 states that 811 other aliens, including, all noniasslgrant alieoo, are precludedHonorable Carl A. Parker - PalIe2 (JM-309)

establishing that their domi::lle is Texas and that they are in fact Texas residents who qualify for resident ruition. Ue contluded in Attorney General Opinion a-241 that the Supremacy Cleuse of the United States Constitution, a6 interpreted by Toll v. Moreno, prohibits a state from der@ng certain categories of noniamigrant l lienn the right to qualify for resident tuition when such nonimmigrant aliens cao show tlrtrt they meet the standards for resident 6Catus required of citizens, Wealso conclude that the decision in Toll v. Morenodoes not apply to anonimmigrant alien in this country under an F-l visa because that ir one of the categories for which Congress expreasly condltionlcd admission to this country onconditions vhlch have the effect of pre’::ludlng **the**establishment of adomicile in the United States. The Immigration and Nationality Act (8 U.S.C. lllOl(a)(lS) (1982)) defines ,analien with anF-l visa as

cou:::i) an alien ‘having aresidence in aforeign

which he h

’s6no intention of abandoning. whois abona fid; student qualified to pursue a full course **of** study and vho seeka to enter the United States te!porarlly and solely for the purpose of pursut9g such a course of stud1 at an established college, university, seminary, consemstory, academic high school, elementary 6chOd. or other academic institution or in a language train*Ig program In the United State6.

. . . Although the word domicile is not defined in the Immigration and Nationality Act, it general.1.y Is accepted that domicile Is not establl6hed unless the person intends to e6tabli6h a permanent abode or re6ide indeffnltelp in a hCatiC% In order to qualify for so F-l student vIea, the alien muot:“enter the United State6 temporarily and 6olely for the purpose of pursuing 6uch a courw of 6tudy ” and mu6t maintain “a residence in a **foreign** country which he ha6 **no** intention of abandoning. ” Eence. the court6 have concluded that aperson cannot be lawfully domiciled in l&i6 country while hording a student visa. SeeE1klnsVq. **Uoreno,** 435ll,,S. 647, 6bS (1978); Anvov. Imigration & Naturalization Service, 607 ’F.Zd435, 437 (D.C. Cm Imigration **and**Natlonalit~ Act doe6 not impore 6uch recltriction6 on eve6 nonimIigrant class. t.hc Court6 interpret the act to mean that Congress intended to allow uonre6tritted. nonimlgrant alien6 to adopt the United State6 as their domicile. SeeToll v. Moreno, 458U.S. at - 14. Accordingly, It i6 ow opinion that the Suprwcy Clause of the United State6 Con6titutiom a6 interpreted by Toll v. Moreno doe6 not prevent the application o,fthe limitation6 in Eectioe 54.057 of the Education Code to perroos admitted to this country with F-l student ViEas. Weconclude that the Education Code rmmtitutionally can

p. 1408Bonorabls Carl A. Pocksr - Page 3 (m-309)

provide for s higher tuition rate to be charged to foreign students with F-l vtsas than the tuil::ion rate charged students who are Texas residents for tuition purposes,

In Attorney General Opinion m-267 vc concluded that a state statute which provides ahigher rate of tuition at state institutions of higher education for nonresident students who are aliens than the rate charged nonresident stui.ents whoare United States citizens would not be upheld bythe courts d.fchallenged.

The Fourteenth Amendmmt to the United States Constitution provides that no state maydeny to anyperson vithin its jurisdiction the equal protection of the laws. The guarantee of equal protection applies to all persons within the territorial jurisdiction of astate regardless of whether aperwa is a citizen of this country or is a citizen of a foreign countIT. See Ambachv. 19orwick, 441 U.S. 68 (1979); Ylck Wov. Hopkins, 1180.s. 356 (1886). Theobligation of a state to provide the protection **of** equal laws Is imposed **by** the Constitution onthe state wl!:b each state responsible for Its ovn laws establishing the rights and duties of persons within its borders. See Missouri ex rel. Gaines ‘L, Canada, 305 U.S. 337, 350 (1938). Congressional debate conce,rning the resolution vhlch became the Fourteenth Amendment confines the intention to make Its provisions applicable to all who“mayt.appen to be” within thejurisdiction of a state. See Plpler v. Doe, 457U.S. 202. 214-15 (1982). In concluding that illegal aliens may c.laim the benefits of the Fourteenth Amendment’s guarantee of equsl protection, the SupremeCourt in Plyler
v. Doestated

[t]hat a person

’s :Lnltial entry Into aState, or into the United States, VIMunlsvful. andthat he mayfor that reason be expelled, cannot negate the simple fsct of his presence within tbe State’s territorial perimeter. Given such presence, he is subject to the full rmge of obligations imposed by the State’s ciull andcriminal laws. Anduntil he leaves the jwlsdiction -- either voluntarily,
or involuntarily ICIaccordance vith the Constitution and laws of the United Ststes -- he is entitled to the equA protection of the lavs that a State ms9choose 1.~8establish.

Id. at 215.
- Aperson of foreign mtlonalitp with an F-l student viss who Is attending school in this s ’:ate is present within the state’s terrltorial perimeter and is ent,itled to the equal protectloo of the laws of the state. Thefsct that the student has a“residence In aforeign country vhich he has no incxntion of abandoning” does not negate his

p. 1409Ronorsbls Csrl A. Porksr - Pspr 4 (Jn-309)

presence in this country md in this state and does not deny the ntudent the right to equnl pwtection of the 10~s. Additionally. we concl~lded in Attorney Genersl Opinion m-267
that the courts would not ol:lou astate subtly to affect the country ’s lntetnstional relations or foreign policy or to interfere with the federal government’s exclus%ve right to control the immigration and dmlseion of *liens to this county. In Elkins v. **Moreno,** 435 U.S. 647, the United States Suprena **Court** determined that Congress defined the nonipligront classes of allenr in the Immigration andNationality **Act** to provide **for** the needu of international diplomacy, tourism, and
commerce.
It is our opinion that the conetitutionsl problems discussed in Attorney Cenersl Opinion JW-267 are applicable to foreign students admitted to this country vith **F-l** viros sad would render uncoostitu**tionsl** Astate statute vhic’l provides for shigher rote of tuition to be charged to **foreigu** studer1t.ewith F-l visas than the rote charged to citixens md sliens vith othter categories of visas whoore subject to **the** payment of nonresident tuition **because** they ore not Texas residents eligible for resident tuition **in** this state.

SUMMARY

The Texss Edwation Code constitutionally can provide for Ahlgh,er tuition rste to be charged to foreign students admitted to this country with F-l visas than the tuition rote charged Texas resident students. The Rducation Code csnnot provide constitutionally for s higher tuition rote to be charged to foreign students with F-l visas than the tuition rote charged citizens and other alien students vbo **sre not**  Texsa reridents for tuition purposes.

JIM HATTOX ‘- **Attorney** Genersl of Texss

TOM GREEN First Asslstsnt Attorney General

DAVIDR.RlCRARDS Executive Assistant Attorrey Genersl

p. 1410Bonorsbla Csrl **A.** Psrksr - PI#O5 (~11-30s)

RICRCILPIN Chairman, Opinion Committee Prepared byNancy Sutton Arristont **Attorney** General

APPROVED: OPINIONCOIQ4ITTEE

Rick Gilpin, Chairmen JonBible Susan Garrison TonyGulllory JimMoellinger Jennifer **Riggs** NancySutton

p. 1411