ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

July 23,2009 

The Honorable Rob Eissler Opinion No. GA-0732 

Chair, Committee on Public Education 

Texas House of Representatives Re: Whether the State of Texas may permit 

Post Office Box 29 10 unauthorized aliens to receive the benefit of inAustin, Texas 78768-2910 state tuition at Texas state colleges and universities 

(RQ-0742-GA) 

Dear Representative Eissler: 

You have requested that we answer the questions submitted by your colleague, 

Representative Leo Berman, former chair of the Committee on Elections. We were asked whether 

Texas "is in violation of federal law and the Equal Protection Clause of. . . the United States 

Constitution, by allowing illegal aliens in Texas the benefit of instate tuition in state colleges and 

universities to the exclusion of nonresident United States citizens."' Although the request does not 

cite to any particular provision of Texas law, we understand it to inquire about Education Code 

sections 54.052(a)(3) and 54.053(3). Section 54.052 governs the determination of resident status 

for in-state tuition eligibility at state colleges and universities in Texas and includes as a resident a 

person who: 

(A) graduated from a public or private high school in this state 

or received the equivalent of a high school diploma in this state; and 

(B) maintained a residence continuously in this state for: 

(i) the three years preceding the date of graduation or 

receipt of the diploma equivalent, as applicable; and 

(ii) the year preceding the census date of the academic term 

in which the person is enrolled in an institution of higher education. 

TEX. EDUC. CODE ANN. 5 54.052(a)(3) (Vernon 2006). To establish residency under this provision, 

section 54.053(3) requires a person to submit information to establish the resident status and "if the 

person is not a citizen or permanent resident of the United States, an affidavit stating that the person 

'Request Letter at 1 (available at http://www.texasattorneygeneral.gov). 
The Honorable Rob Eissler - Page 2 

will apply to become a permanent resident of the United States as soon as the person becomes 

eligible to apply." Id. 5 54.053(3). 

We consider here only whether sections 54.052(a)(3) and 54.053(3) violate 8 U.S.C. 5 1623 

and the Equal Protection Clause, the federal provisions specifically raised. Section 505 of the Illegal 

Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. 5 1623, 

provides as follows: 

Notwithstanding any other provision of law, an alien who is not 

lawfully present in the United States shall not be eligible on the basis 

of residence within a State . . . for any postsecondary education 

benefit unless a citizen or national of the United States is eligible for 

such a benefit (in no less an amount, duration, and scope) without 

regard to whether the citizen or national is such a resident. 

8 U.S.C 5 1623(a) (2006). The Equal Protection Clause of the Fourteenth Amendment to the United 

States Constitution generally requires states to treat similarly situated persons in a similar manner. 

See U.S. CONST. amend. XIV, 5 1. Because the request does not specify or present legal arguments 

as to how or why the state statutes may violate the federal law, ow discussion is necessarily general. 

I. Federal Statutory Preemption 

Under the Supremacy Clause of the United States Constitution, "any state law, however 

clearly within a State's acknowledged power, which interferes with or is contrary to a federal law, 

must yield." Gade v. Nut '1 Solid Wastes Mgmt. Ass 'n, 505 U.S. 88, 108 (1992) (quoting Free v. 

Bland, 369 U.S. 663, 666 (1962)). State laws may be preempted under the Supremacy Clause by 

federal law in several ways. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-74 

(2000) (discussing express preemption and the two categories of implied preemption, i.e., field and 

conflict preemption); De Canas v. Bica, 424 U.S. 351, 358 n.5, 360-65 (1976) (discussing 

preemption of immigration-related state law), The request suggests that the Texas statutes may 

conflict with 8 U.S.C. 5 1623. See Request Letter at 1 ; Crosby, 530 U.S. at 372 (explaining that state 

law is impliedly preempted to the extent of conflict with federal law). A conflicting state statute is 

preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes 

and objectives of Congress" or if compliance with both the state and federal law is impossible. 

De Canas, 424 U.S. at 363; Crosby, 530 U.S. at 372-73; see also Villas at Parkside Partners v. City 

of Farmers Branch, 496 F. Supp. 2d 757, 764-66 (N.D. Tex. 2007) (discussing the De Canas 

decision as construed by federal district courts). 

Section 1623 would preempt Education Code sections 54.052(a)(3) and 54.053(3) under the 

conflict preemption test ifthese sections provide a "postsecondary education benefit" to an alien who 

is not lawfully present in the United States (hereinafter "unauthorized alien") on the basis of 

"residence," within the meaning of the federal statute, "unless a citizen or national of the United 

States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to 

whether the citizen or national is such a resident." 8 U.S.C. 5 1623 (2006). 
The Honorable Rob Eissler - Page 3 (GA-0732) 

Section 1623, however, does not define "postsecondary education benefit" or "residence." 

See id.2 We are not aware of any federal agency that has administratively defined these terms; nor 

are we aware of any federal court or state supreme court that has construed these terms or considered 

the substantive application of section 1623(a) to a statute similar to the Texas statutes. See Jones 

v. Ruth Packing Co., 430 U.S. 5 19,526 (1 977) (stating that obstacle preemption inquiry requires a 

consideration of the "relationship between state and federal laws as they are interpreted and applied, 

not merely as they are written") (emphasis added). 

To date, the only judicial decision on this specific question is from an intermediate California 

state appellate court, and it is currently pending review by the California Supreme Court. See 

Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 51 8 (Cal. App. 3d), superseded by 198 P.3d 

1 (Cal. 2008) (granting respondents' petition for review on Dec. 23, 200Q3 In Martinez v. Regents 

of University of California, the court of appeals held that a California statute exempting unauthorized 

aliens from paying nonresident tuition at certain state colleges and universities4 provided a benefit 

on the basis of residence in violation of 8 U.S.C. 6 1623, and was thus preempted by the federal law. 

See Martinez, 83 Cal. Rptr. 3d at 540-45. The court construed "benefit" in 8 U.S.C. 5 1623 to 

include in-state tuition, rejecting the argument that it means only payment of money or direct 

financial assistance. See id. at 53 1-33. The court also determined that the state statute requiring 

attendance at a California high school for at least three years created a de facto residence requirement 

and thus conferred a benefit to unauthorized aliens on the basis of residence in California. Id. at 

537-40. Finally, the Martinez court determined, because the California statute did not provide instate tuition to United States citizens from other states "'without regard to' ~aliforniaresidence, [the 

statute] conflicts with . . . 8 U.S.C. section 1623." Id. at 540. Accordingly, the Martinez court 

concluded, the California statute was preempted to the extent of the conflict because it was 

'A provision in the related Personal Responsibility and Work Opportunity Reconciliation Act of 1996, codified 

at 8 U.S.C. § 1621(c), defines "state or local benefits" as 

any retirement, welfare, health, disability, public or assisted housing,postsecondary 

education, food assistance, unemployment benefit, or any other similar benefit for 

which payments or assistance are provided to an individual, household, or family 

eligibility unit by an agency of a State or local government or by appropriated funds 

of a State or local government. 

8 U.S.C. 8 1621(c)(l)(B) (2006) (emphasis added). Section 1621 does not further define "postsecondary education 

benefit." 

3Under California court rules, if the California Supreme Court grants review, a court of appeals' opinion may 

be treated as an unpublished opinion or a partial publication. See Cal. R. Ct. 8.1 105(e), 8.1 1 10, 8.1 1 15. Pursuant to 

California's Rules of Court, Martinez has been certified for partial publication. See Martinez, 83 Cal. Rptr. 3d at n.* 

(providing that the "opinion is certified for publication with the exception ofparts I1 and I11 ofthe DISCUSSION); Cal. 

R. Ct. 8.11 10 (concerning partial publication). 

4The California statute provides that to qualify for in-state tuition rates, (1) students must have attended high 

school in California for a least three years; (2) they must have graduated from a California high school or attained the 

equivalent thereof; and (3) unauthorized alien students must submit an affidavit that they have either filed an application 

to legalize status or will file such an application as soon as they become eligible. Martinez, 83 Cal. Rptr. 3d at 522 n. 1. 
The Honorable Rob Eissler - Page 4 (GA-0732) 

impossible for universities and colleges to comply with both federal and state law, and because "it 

stands as an obstacle to the accomplishment and execution of the full purposes and objectives of 

Congress." Id. at 54142.5 

It is possible that another court could follow the reasoning of the Martinez decision. 

However, a California Supreme Court decision would not bind a federal or state court in Texas, and 

no other court has considered the validity under federal law of a state statute authorizing in-state 

tuition for unauthorized aliens6 Thus, while a federal or state court in Texas could find that 8 U.S.C. 

5 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict 

with the federal law, given the paucity of judicial precedent, we cannot predict with certainty that 

a court would so find. 

11. Equal Protection 

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 

prohibits a state from denying "to any person within its jurisdiction the equal protection ofthe laws." 

U.S. CONST. amend. XIV, 1. The constitutional equal protection guarantee requires that similarly 

situated persons be treated similarly under the law; it does not preclude a state from adopting 

legislation classifying persons for "one purpose or another, with resulting disadvantage to various 

groups or persons." Romer v. Evans, 5 17 U.S. 620,63 1 (1 996) (citing Personnel Adm 'r v. Feeney, 

442 U.S. 256, 271-72 (1979)). The question presented suggests that unauthorized aliens and 

nonresident United States citizens are similarly situated, but treated unequally with respect to 

eligibility for the benefit of in-state tuition under Texas law. See Request Letter at 1. Because the 

request does not specify or present legal arguments as to how or why the state statutes violate the 

equal protection guarantee, our discussion is necessarily general. 

First, on their face, Education Code sections 54.052(a)(3) and 54.053(3) do not allow 

unauthorized aliens a benefit denied to nonresident United States citizens. See TEX. EDUC. CODE 

'The Martinez court looked at the Congressional objective as stated in 8 U.S.C. Ij 1601 regarding the national 

policy with respect to immigration: "the availability of public benefits [should] not constitute an incentive for 

immigration to the United States" and "[ilt is a compelling government interest to remove the incentive for illegal 

immigration provided by the availability of public benefits." Martinez, 83 Cal. Rptr.3d at 542; 8 U.S.C. 1601(2)(B), 

(6) (2006). 

61n Day v. Sebelius, the federal district court dismissed equal protection and preemption challenges to a Kansas 

in-state tuition statute similar to the Texas statutes on the grounds that the out-of-state plaintiffs lacked standing because 

they were not injured as a result of the state law and there existed no private right of action under the federal statute. See 

Sebelius, 376 F. Supp. 2d 1022, 1034, 1039 (D. Kan. 2005). The Tenth Circuit Court of Appeals affirmed the dismissal. 

Day v, Bond, 500 F.3d 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 2987 (2008). In rejecting the out-of-state 

plaintiffs' equal protection standing claim, the circuit court determined that the plaintiffs' alleged injury-having to pay 

nonresident tuition-would not be redressed by a decision in the plaintiffs' favor because they still would not qualify 

for in-state tuition. Bond, 500 F.3d at 1139. Regarding the plaintiffs' preemption standing claim, the circuit court 

concluded that "the text and structure of Ij 1623 do not manifest a congressional intent to create private rights, and the 

Plaintiffs thus have not claimed any cognizable and individualized injury stemming from the implementation of [the 

Kansas statute]." Id at 1 13940. 
The Honorable Rob Eissler - Page 5 (GA-0732) 

ANN. $5 54.052(a)(3), .053(3) (Vernon 2006). Nonresident United States citizens can obtain the 

benefit of sections 54.052(a)(3) and 54.053(3) by graduating from a Texas high school or obtaining 

the equivalent of a Texas high school diploma; and living continuously in Texas for the three years 

preceding the graduation or receipt of the diploma and the year before the census date of the term 

of enrollment in a Texas college or university. See id. 5 54.052(a)(3). 

Second, high school attendance and residency requirements by themselves would not violate 

the equal protection guarantee. The United States Supreme Court has approved "bona fide residency 

requirements in the field of public education." Martinez v. Bynum, 46 1 U.S. 32 1, 326-27 (1 983). 

Additionally, the Court has recognized "that a State has a legitimate interest in protecting and 

preserving the quality of its colleges and universities and the right of its own bona fide residents to 

attend such institutions on a preferential tuition basis." VZundis v. Kline, 412 U.S. 441, 452-53 

(1 973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state 

status as to make virtually certain that students who are not, in fact bona fide residents of the State, 

but who have come there solely for educational purposes, cannot take advantage of the in-state 

rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54). An appropriately defined 

bona fide residence requirement uniformly applied furthers "the substantial state interest in assuring 

that services provided for [a state's] residents are enjoyed only by residents[,]" and "[s]uch a 

requirement with respect to attendance in public free schools does not violate the Equal Protection 

Clause." Id. at 328. Finally, such a requirement does not burden or penalize a fundamental right 

protected by the Constitution or implicate a suspect classification requiring strict scrutiny. Id. at 

328-29 & n.7; see also Plyler v. Doe, 457 U.S. 202, 221-23 (1982) ("[plublic education is not a 

'right' granted to individuals by the Constitution") (citing Sun Antonio Indep. Sch. Dist, v. 

Rodriguez, 41 1 U.S. l,35 (1973)).7 

Accordingly, a federal or state court in Texas would likely conclude that Education Code 

sections 54.052(a)(3) and 54.053(3) do not facially violate the Equal Protection Clause because the 

statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate 

or substantial interest in assuring that only bona fide residents that graduate or receive diplomas from 

Texas high schools are eligible for in-state tuition. However, as with the issue of preemption, we 

caution that no court has addressed whether a statute similar to the Texas statutes conforms to the 

mandates of the Equal Protection Clause.' 

71f a legislative classification targets a suspect class or impacts a fundamental right "it will be strictly scrutinized 

and upheld only if it is precisely tailored to further a compelling government interest." Sonnier v. Quarterman, 476 F.3d 

349, 368 (5th Cir. 2007) (citing Plyler, 457 U.S. at 217-18). If the legislative classification "neither burdens a 

hndamental right nor targets a suspect class," it will be upheld "so long as it bears a rational relation to some legitimate 

end." Romer, 517 U.S. at 631. 

'The California appellate court in Martinez did not determine that the similar California statute violated the 

Equal Protection Clause. See Request Letter at 1 ("the Third District Court of Appeals in California ruled that California 

law conflicts with federal law and the Equal Protection Clause"). It merely allowed the plaintiffs in the case to amend 

their complaint regarding the equal protection claim. See Martinez, 83 Cal. Rptr. 3d at 545-46. In discussing the equal 

protection claim, the Martinez court, in fact, observed that the "high school attendance requirement of [the California 

statute] is not troubling in and of itself, because a state may favor its own residents." Id. at 545. 
The Honorable Rob Eissler - Page 6 

SUMMARY 

Education Code sections 54.052(a)(3) and 54.053(3) would 

conflict with and thus be preempted by section 505 of the Illegal 

Immigration Reform and Immigrant Responsibility Act of 1996, 

codified at 8 U.S.C. fj 1623, if the state statutes provide a 

"postsecondary education benefit" to an alien who is not lawfully 

present in the United States on the basis of "residence," within the 

meaning of the federal statute, "unless a citizen or national of the 

United States is eligible for such a benefit . . . without regard to 

whether the citizen or national is such a resident." 8 U.S.C. 5 1623(a) 

(2006). However, the terms "postsecondary education benefit" and 

"residence" are not defined in the federal law. In addition, no Texas 

or federal court has construed these terms or considered the 

substantive application of the federal law to a statute similar to the 

Texas statutes. Thus, while a federal or state court in Texas, 

following the reasoning of an intermediate California state appellate 

court decision, could find that 8 U.S.C. fj 1623 preempts Education 

Code sections 54.052(a)(3) and 54.053(3) to the extent ofthe conflict 

with the federal law, given the paucity of judicial precedent, this 

office cannot predict with certainty that a court would so find. 

The United States Supreme Court has "approved bona fide 

residency requirements in the field of public education." Martinez v. 

Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has 

recognized "that a State has a legitimate interest in protecting and 

preserving the quality of its colleges and universities and the right of 

its own bona fide residents to attend such institutions on a preferential 

tuition basis." Vlandis v. Kline, 412 U.S. 441,452-53 (1973). "This 

'legitimate interest' permits a 'State [to] establish such reasonable 

criteria for in-state status as to make virtually certain that students 

who are not, in fact, bona fide residents of the State, but who have 

come there solely for educational purposes, cannot take advantage of 

the in-state rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 

U.S. at 453-54). 

Accordingly, a federal or state court in Texas would likely 

conclude that Education Code sections 54.052(a)(3) and 54.053(3) do 

not facially violate the federal Equal Protection Clause because the 

statutory prerequisites for in-state tuition are reasonable requirements 

that serve Texas's legitimate or substantial interest in assuring that 

only bona fide residents that graduate from Texas high schools or 

receive the diploma equivalent from this state are eligible for in-state 
The Honorable Rob Eissler - Page 7 (GA-0732) 

tuition. However, no court has addressed whether a statute similar to 

the Texas statutes conforms to the mandates of the Equal Protection 

Clause. 

Very tr ly yours, A%& 

Attorney General of Texas 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Sheela Rai 

Assistant Attorney General, Opinion Committee