. . 

JIM MATTOX 

Attorney General 

supreme Court BuikW 

P. 0. Box 1254S 

Auslln. TX. 7B711. 254s 

51214752501 

Telex 9lom74-1367 

Tdecopier 51a4750266 

714 Jackson. Sulh 700 

Dallas. TX. 75202.4505 

214i742.8944 

4824 *bena Ave.. Suits 180 

El Paso, TX. 799052793 

QlY533y8( 

1001 Toras. Suits 700 

“oustan. TX. 77002.3111 

7lY220UuLb 

SW Broadway. Suite 312 

L”mclck. TX. 79401~3479 

CCW47.5238 

uoo N. Tmlh. Suite B 

McAII~n. TX. 7S501~1085 

512mS245.47 

200 MaIn Plur. !wte 400 

San Antonio. TX. 78205-2797 

512m5-4101 

The Attorney General of Texas 

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 a higher 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 a higher tuition rate at a state university than that charged 

Texas residents or l:o other students who are not Texas residents. 

latter group includes out-of-state students who are citizens of 

United States and Wudents who are 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 may not charge such foreign students a higher 

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 Texaco and 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. 55 Minn. ‘i.ev. 1139 (1971). 

Attorney Gemral Opinion m-241 discussed the applicability 

the United States Supreme Court decision in Toll v. Moreno. 458 U.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. Bg implication, section 54.057 states that 811 other 

aliens, including, all noniasslgrant alieoo, are precluded 
Honorable Carl A. Parker - PalIe 2 (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, We also conclude that the decision in 

Toll v. Moreno does not apply to a nonimmigrant 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 on conditions 

vhlch have the effect of pre’::ludlng the establishment of a domicile in 

the United States. The Immigration and Nationality Act (8 U.S.C. 

lllOl(a)(lS) (1982)) defines ,an alien with an F-l visa as 

cou:::i) 

an alien ‘having a residence in a foreign 

which he h’s6 no intention of abandoning. 

who is a bona 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 a person cannot 

be lawfully domiciled in l&i6 country while hording a student visa. 

See E1klnsVq. Uoreno, 435 ll,,S. 647, 6bS (1978); Anvo v. Imigration & 

Naturalization Service, 607’ F.Zd 435, 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. See Toll v. Moreno, 458 U.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,f the limitation6 in Eectioe 54.057 of the 

Education Code to perroos admitted to this country with F-l student 

ViEas. We conclude that the Education Code rmmtitutionally can 

p. 1408 
Bonorabls 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 a higher rate of tuition at state institutions 

of higher education for nonresident students who are aliens than the 

rate charged nonresident stui.ents who are United States citizens would 

not be upheld by the courts d.f challenged. 

The Fourteenth Amendmmt to the United States Constitution 

provides that no state may deny to any person vithin its jurisdiction 

the equal protection of the laws. The guarantee of equal protection 

applies to all persons within the territorial jurisdiction of a state 

regardless of whether a perwa is a citizen of this country or is a 

citizen of a foreign countIT. See Ambach v. 19orwick, 441 U.S. 68 

(1979); Ylck Wo v. Hopkins, 118 0.s. 356 (1886). The obligation of a 

state to provide the protection of equal laws Is imposed by the 

Constitution on the 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 “may t.appen to be” within the jurisdiction of a 

state. See Plpler v. Doe, 457 U.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 Supreme Court in Plyler 

v. Doe stated 

[t]hat a person’s :Lnltial entry Into a State, or 

into the United States, VIM unlsvful. and that he 

may for 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 and criminal laws. And until 

he leaves the jwlsdiction -- either voluntarily, 

or involuntarily ICI accordance vith the Constitution and laws of the United Ststes -- he is entitled to the equA protection of the lavs that a 

State ms9 choose 1.~8 establish. 

Id. at 215. 

- 

A person 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. The fsct that the student has a “residence In a foreign 

country vhich he has no incxntion of abandoning” does not negate his 

p. 1409 
Ronorsbls 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 a state 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 and Nationality 

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 uncoostitutionsl A state statute vhic’l provides for s higher rote of tuition to 

be charged to foreigu studer1t.e with F-l visas than the rote charged to 

citixens md sliens vith othter categories of visas who ore 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 A hlgh,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 

DAVID R. RlCRARDS 

Executive Assistant Attorrey Genersl 

p. 1410 
Bonorsbla Csrl A. Psrksr - PI#O 5 (~11-30s) 

RICR CILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Arristont Attorney General 

APPROVED: 

OPINION COIQ4ITTEE 

Rick Gilpin, Chairmen 

Jon Bible 

Susan Garrison 

Tony Gulllory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1411