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# TheAttorney General ofTexas

**JIM MAl-lOX**  **Attorney General**  Ma:,ch19. 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 Houseof Reprcmentatives **P.** 0. Box2910 Austin, Texas **787ti!l Opinion**  **NO. JM-302** 

**Re:** Whether the legislature may impose alonger residency requiremeut on out-of-state residents whowish 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 madebetween 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** 

AnEqualOWCWWW Alllmllw ActIOnEIWIOYW Section 54.05:! of the Texas Education Code provides that an individual who comesfrom outside Texas canbe classified a resident student only if he resides In Texas for a 12-monthperiod preceding enrollment in an educational institution. Article 55.054 **of** the Education Codeprovides 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 andDniverslty System, andthereby qualify topay resident tuition andfees. You **ask**whether the state constitutionally
can adopt a residewy requirement that is longer than 12months 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 adefinite period of time. vevi11 discuss the question in **the** abstract.

The yourteenth Amendment of the United States Constitution provides that nostate maydeny 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

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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, 613U.S. 717 (1973). If a ststute cloee not affect a fundaacntsl right or creete asuspect claseificatim~. the statute is accorded apreemption of constitutionality that is not disturbed unless the enactment rests
ongrounds wholly irrelevant to the achievement of a legitimate state objective. The latter stan(lard frequently is referred to as the rational basis test. SeeW&van v. Maryland, 366U.S. 420 (1961). A
--- person challenging a classification judged by the rational basis test mustestablish that **the** claeeification does **not** bear a fair relationship to a legitimate public purpose, whereas a state mustjustify 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 comeunder 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 **con** stitutionally 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 hadachillings effect oninterstate travel. InDunn
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 onright to travel and not justified 'bycompelling 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 havenoreal effect onthe 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 amorejuetifisb!.e purpose than equalization of costs. but both purposes have been recognized by **the courts.**  Suchcases alloved the states **to** require aetudcnt to reside in the state **for** oneyear as evidence of his bona fide **Intent** to be permanently domiciled **there.** See Weaver v, Kelton. 357F. 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. 234Honorable 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 andreaulation sstisfled rational basis test); Sturgis v. State of iaehington; 368F. 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):** Thompsonvi Board of Regents elfUniversity of Nebraska, 188N: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;?;6test); Kirk v. Board of Regents of Univereity of California, 78Cal. Rptr. 260 (Cal. App. 1969). appeal dismissed. 396U.S. 554 (1965) (applying rational basis test because cost of tuition did not infringe onright to travel).

The courts consistently have dlstingulehed tuition vaiting periods fromvelfere veiting Ferlods and have determined that a **one** year tuition vaitlng period is lees likely than a one-year velfare waiting period to deter a pe!:rlonfrom exercising his right to change residences.

Weare not aware of anycase in vhich acourt 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. SeeNote, Th&~mstituti~na~ity df Nonreeid&t Tuition, 55I4lnn. L. Rev.1139, 1140 (1971). We cannot Dredict whether the courts would uphold aperiod longer than oneyear-and if sovhere the courts vould drav the line. Wedonot knowet 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 anda compelling Interest teat instead of the test vhere the requirementonly 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. SeePlyler 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 aprovision requiring **the** student to submit proof that he had secured employment in the state following graduation. In Smith v. Paulk. 705F.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 andvse notjustified by compelling state interest. TheTenth Circuit Court reiterated the language in Dunnv. Blumetein,.~405 U.S. et 343. that

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if there are other reasonable ways to **achieve the**  legialatlve goal vit‘h alesser burden **on constitu**  tionally 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. SeeBarnes v. Board of Trustees, Michigan Veterans
--- Trust Fund, 369F. 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. 406F.2d 883 (8th Cir. 1969). cert. denied. 396.S. 862 (1969). While aetate mayplace astrong burden of proof se to change of residence 00 a former out-of-state student who claims state residency. each caee muetbe decided on its ownfacts. Accordingly, the courts **in** several cases have struck down etatutee containing lrrebuttable. presumptions **and**have held that aperson mustbe allowed the opportunity to rebut apl,esumption of nonresidency.

Thestate unquestionably, has the power to llmft the right to vote to residents. but Texas exceeded that power as to membersof the armed forces whomoved**to** Taxaa during their military duty. In Carriagton
v. Rash. 380U.S. 89 (1965). theUnited States SupremeCourt declared unconstitutional aprovision elfthe Tune **Constitution** vhich prevented all member6of the armad forces who **moved** to Texan while in the service from acquiring Taxaa :residence for voting purposes 60long as they ramained in **the** armedforces. The Court held **that** forbidding a serviceman an opportunity to controvert the presumption of nonresidency violated the equal protection clause. Following the aamarationale 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,, 412U.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 dueprocess clause of the Fourteenth Amendment. See also Robertson v. Regents of University of New Mexico. :!!iO **F.** Supp. 100 (D.N.M. 1972) (holding

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statutory provision which pl,ecluded change of ?esldeut status unless university student mraintained domicile for oneyear vhile not enrolled for asmanyas 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. andunreaaonable a regulation requiring student at state univer6ity properly classified asnonresident tobe 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 andnOn?eSidentS. Webelieve that aprovision that requires students fromother states to pay nonresident tuition throughout their college careers without aff ’mding the Student6 an opportunity to submit evidence that they have becomeTexas resident6 since entering the university. in order to rebut the presumption of nonresidency. would notbe upheld by the courts if challenged.

,‘;UHHARY

The distinction between residents and nonresidents for charSing tuition at state colleges and**universities** 1;sreasonable andconstitutional. Also. durational residency requirements of one year have beenheld tobe reasonable andconstltutional. 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**

DAVIDR. RICRARDS Executive ASSiStAnt **Attorney** Generalihmorabla Wilhelmina Delco - :Page6 (JX-302)

RIa( GILPIN Chairman, Opinion Comittee Prepared byNancySutton Asalatant Attorney General

APPROVED: OPINIONCOEMITTPZ

Rick Gilpin. Chairman JonBible SusanGarrison TonyGuillory JimMoellinger Jennifer BiggO NancySutton

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