. . 

The Attorney General of Texas 

JIM MAl-lOX 

Attorney General 

Ma:,ch 19. 1985 

I 

SupromE coull BUlldIng 

P. 0. Box 12548 

AUSlIr& TX. n711.2s45 

51w752So1 

TW.x OlW37C1337 

Thco~kc 51214750286 

Eonorable Wilhclmlnc~ Delco 

chairman 

Eigher education cum1ittee 

Texas House of Reprcmentatives 

P. 0. Box 2910 

Austin, Texas 787ti!l 

Opinion NO. JM-302 

Re: Whether the legislature may 

impose a longer residency requiremeut on out-of-state residents 

who wish to ‘qualify for resident 

tuition at * state university 

714 Jmkwn. Suite 700 

cwlar. TX. 7S20245oS 

ZW742dou Dear Representative Delco: 

In all 50 statmes, a distinction ie made between residents and 

4S24 Albert* 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 

1001 Texm. 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. 

SO5 Broadway. Suit. 312 

Lubbock. TX. 70401379 

SoSn47-5238 

4300 N. T.ntk, Suit. 6 

McAllm, lx. 785014os5 

SwmS2-4S47 

200 Yaln Plau Suite 400 

San Antonlo. TX. 7S2G527S7 

w?m54191 

An Equal OWCWWW 

Alllmllw ActIOn EIWIOYW 

Section 54.05:! of the Texas Education Code provides that an 

individual who comes from outside Texas can be classified a resident 

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 

months, a omresiiht student may be reclassified as .a resident 

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 

can adopt a residewy requirement that is longer than 12 months for 

non-Texas. residents to qualify for resldent tuition or that requires 

students who coaw from out of state to pay nonresident tuition 

throughout their college careers. Since you do not submit a special 

proposal or a definite period of time. ve vi11 discuss the question in 

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 legislation under the equal protection clause, the Court adhere@ to a 

three-tiered test. If s statute infringes on a fundancntal right or 

create* l II 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 relationship 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 legislation furthers the “substantial interest” of the state. See 

Doe, 457 U.S. 202 (1982); reh’8 denied, 458 U.S. 1131 (19m. 

Plyler v. 

- -- 

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 constitutionally protected right to travel from state to state. 

v. Thompson, 394 U.S. 618 (1969). 

Shapiro 

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 oneyear 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 requirement only needs to be reesonal,ly and rationally related to a legltimate state purpose. The cese:s upholding one-year residency requirements 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 constitutionally 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 provlalone 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 nonresidency violated the equal protection clause. 

Following the aama rationale a6 that expressed by the Supreme 

Court in Carrington, the courts have attick down provleions prohibiting 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 unreaaonable a regulation requiring student at state univer6ity properly 

classified as nonresident to be frozen in that classification throughout 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 nonresidents 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 constltutional. 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 presumption denying 6tudenl:s the opportunity to l etablleh 

Texas residency during their college careers 

probably would not be upheld by the courts. 

JIU MATTOX 

Attorney General of Texas 

TOPI GRF.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