. 

. ‘, . 

JIM MATTOX 

Attorney Qrneral 

51214752501 

Telex ola87+1257 

Talecopl~r 51214750255 

714 Jackam. SUM 700 

Dallsa, TX. 75202.4508 

21417428944 

dl Texea. sulle 700 

llouslon, TX. 77w23111 

71312235886 

508 Brordway. Sulla 312 

Lubbock. TX. 794013479 

2W747.5231) 

4202 N. Tenth. Suite 8 

Mo*llwl. TX. 78601.1585 

512ma2~7 

2w MeIn Pm& sulla ux) 

San Antonlo. TX. 782Q52727 

512l2254191 

An Equal Oppot-WW 

Alflrmatlve AcMn Employer 

The Attorney General of Texas 

Ikcsmber 12, 1984 

Mr. Kenneth Ashworth 

Conmissioner 

Coordinating Board 

Texas College and University 

System 

F. 0. Box 12708 

Austin. Texas 7lli’ll 

Opinion No. m-241 

Rc: Whether certain foreign 

nationals are residents of 

Texas for purposes of tuition 

at a state university 

Dear Commissioner Ashworth: 

You ask vhet h,er Toll v. Moreno, 458 U.S. 1 (1982). authorizes 

certain foreign mt:ionals to establish Texas residency for purposes of 

payment of tuition at a state university in spite of the limitations 

of section 54.057 3f the Texas Education Code. One of your examples 

involves a German national, holding a NATO visa, who resides in Texas 

as a member of the German Armed Forces in accordance with the 

Agreement between the Parties to the North Atlantic Treaty Regarding 

the Status of The:Lr Forces, June 19, 1951, 4 U.S.T. 1792 [hereinafter 

cited as NATO Stetus of Forces Agreement]. The other example involves 

s dependent of a llelgium national with au E-l visa who works for a 

commercial firm ln this country. We conclude that, in spite of 

section 54.057, both of the foreign nationals In question have the 

same privilege 85: a United States citizen to present evidence and 

establish Texas rmidency for purposes of tuition. 

Section 54.01~7 of the Texas Education Code provides, in pertinent 

pert, that 

[a]n alien vho is living in this co&try under 

a visa permitting permanent residence or who has 

filed wj.th the proper federal immigration authorities a declaration of intention to become a 

citizen has the same privilege of qualifying for 

resident. status for fee purposes under this Act as 

has a citizen of the United States. . . . 

The federal Immigration and Nationality Act recognizes both 

immigrant aliens and nonimmigrant aliens. 8 U.S.C. 51101 et seq. 

(1982). Section 54.057 of the Education Code expressly allovs two 

groups of immigrant aliens to qualify for resident status, namely, 

those under a visa, permitting permanent residence and those who file a 

declaration of Intention to become a United States citizen. It is 

veil settled that the express mention or enumeration of a particular 

p. 1083 
Mr. Kenneth Arhworth - Page 2 (JM-241) 

thing in a statute implies an express exclusion of all others. Cam 

v. T<xaa State Board -of lIxsm.iners in Optomatry, 401 S.W.Zd 639,-~ ~~ 

(Tex. Civ. App. - Dallss :?166), aff’d 412 S.W.Zd 307 (Tex. 1967); 

Attorney General Opinion MU-324 (19sr)I By implication, all classes 

of nonimmigrant aliens would, be precluded under the Texas statute from 

establishing Texas residency,. 

In Toll v. Moreno, the United States Supreme Court considered the 

constitutionality of the pc~licy of the University of Maryland under 

which only United States citizens and immigrant aliens lawfully 

admitted for permanent resii,ence in the United States were eligible to 

establish in-state status Ear tuition purposes. The supreme court 

pointed out in that case tt.a,t it had “long recognized the preeminent 

role of the Federal Goverrnent with respect to the regulation of 

aliens within our borders,” reiterating the broad principle that 

state regulation not congressionally sanctioned 

that discriminat,es against aliens lswfully 

admitted to the county is impermissible if it 

imposes additional burdens not contemplated by 

Congress. 

See De Csnas v. Bica, 425 U.S. 351, 358, n.6 (1976); Graham v. 

Richardson, 403 U.S. 365 (l!)?l); Takahashi v. Fish & Game Comm’n, 334 

U.S. 410. 419 (1948). The supreme court found that the University of 

Maryland’s in-state policy is invalid under the Supremacy Clause of 

the United States Constitution insofar as the policy categorically 

made domiciled nonimmigrant aliens with G-4 visas ineligible for such 

status despite a showing of residence in the state. G-4 visas are 

issued to nonimmigrant aliens; who are officers or employees of certain 

international organisation;3 and to members of their immediate 

families. 8 U.S.C. $1101(a) (15)(G)(iv). 

The issue before us is the effect of the supreme court decision 

in Toll V. Moreno on the :!sxas statutory law. The Immigration and 

Nationality Act establishes various categories of nonimmigrant aliens. 

Congress, expressly conditioned admission of aliens in some uouimmigrant categories on an Lntent not to abandon a foreign residence, 

a fact which precludes the establishment of a domicile in the United 

States for those aliens wh1l.s allowing the establishment of a domicile 

for certsin other nonimmigrat~t categories. Section llOl(a)(15) of the 

Imigration end Nationality Act provides, in part, that 

(15) The term ‘immigrant’ means every alien 

except an alien who is within one of the following 

classes of nonimm:.grant aliens -- 

. . . . 

(B) an alien . . . having a residence in a 

foreign country yhich he has no intention of 

p. 1084 
Mr. Kenneth Ashworth - Page 3 (JH-241) 

abandoning and ~110 is visiting the United States 

temporsrily for businese or tamporarily for 

pleasure; 

. . . . 

(F)(i) an alien having a residence in a 

foreign country which he has no intention of 

abandoning. who %s a bone fide student qualified 

to pursue a full course of study and who seeks to 

enter the United States temporarily and solely for 

the purpose of P'ursuing such a course of study at 

an established college, university, seminary, 

conservatory, academic high school, elementary 

school, or other academic institution or in s 

language trait.ing program in the United 

States. . . . 

. . . . 

(Ii) an alier: having a residence in a foreign 

country which he has no intention of abandoning 

(I) who is of d:E;tinguished merit and ability and 

who is coming tt:rporarily to the United States to 

perform service:s of an exceptional nature 

requiring such merit and ability, and. . . . 

. . . . 

(J) an slier, having a residence in a foreign 

country which he has no intention of abandoning 

who is a bona -fide student, scholar, trainee, 

teacher, pro:ieseor. research assistant, 

specialist, or Leader in a field of specialized 

knowledge or sk,ill, or other person of similar 

description, wh'> is coming temporarily to the 

United States as a participant in a program 

designated by t’he Director of the United States 

Information Agency. . . . 

. . . . 

(M)(i) an alien having a residence in a 

foreign country which he has no intention of 

abandoning who seeks to enter the United States 

temporarily and solely for the purpose of pursuing 

a -full course of study at -an established 

vocational or other recognized nonacademic 

institution. . . . (Emphasis added). 

p. 1085 
Fir. Kenneth Ashworth - Page 4 (JX-241) 

Congress, however, hos <allowed other nonimmigrant aliens to enter 

the country on terma permkting the establishment of domicile in the 

United States. In addition to section llOl(a)(15)(G)(iv) which was 

considered by the court in Toll v. Moreno, section llOl(a)(l5)(E)(i) 

contains no residence requir,sment which precludes the establishment of 

a domicile in the United Smtes. Instead, those subdivisions provide 

that 

(E) an alien entitled to enter the United 

States under and in pursuance of the provisions of 

a treaty of comerce and navigation between the 

United States and the foreign state of which he is 

a national. and t.he spouse and children of any 

such alien if accompanying or following to join 

him; (I) solely to carry on substantial trade, 

principally betwmsen the United States Andy the 

foreign state of which he is a national. . . . and 

(G)(i) s dlrsignated principal resident 

representative of a foreign government recognized 

de jure by the United States, which foreign 

government is I, member of an international 

organization entitled to e*joy privileges, 

exemptions, and llmmunities as an international 

organization under the International Organizations 

Immunities Act (!i9 Stat. 669) [22 U.S.C. 288 et. 

-1, accredited resident members of the staff of 

such representatives, and members of his or their 

immediate family; 

. . . . 

(iv) officers, or employees of such international organiac:tions. and the members of their 

immediate families. . . . 

Thus, the dependent of a Belgium national with an E-l visa is in 

a nonitigrant category for which Congress did not specify a 

restriction on the residen:e of the alien. See 22 C.F.R. 541.12 

(1984). We conclude that application of the limitations in section 

54.057 of the Education Cotlel to such an alien would impose additional 

burdens not contemplated by Congress in violation of the Supremacy 

Clause and would constitute! an unconstitutional burden imposed by the 

state. 

Pursuant to 22 C.F.:R., section 41.12 (1984). the NATO-2 

classification of the German national residing in Texas is based on 

his position as a member of the German Armed Forces in accordance with 

the NATO Status of Forces Agreement, supra art. III.- at 1796 and the 

Agreement on the Status of the North Atlantic Treaty Organization, 

National Representatives and International Staff, Sept. 20, 29 and 

p. 1086 . 
Mr. Kenneth Aahworth - Pagr 5 (m-241) 

Dec. 12. 1951, art. 13. !i U.S.T. 1094 [hereinafter cited as NATO 

Statue Agreement]. The Stetus Of Their Forces. The NATO Status of 

Forces Agreement contains uo express restriction 011 a member alien’s 

residence. We conclude, therefore, that the application of the 

limitations in section 54.057 to this German national would be an 

imposition of additioual ‘mrdens on an alien not contemplated by 

Congress and a violation of the Supremacy Clause. 

In our opinion, the criteria established by Toll v. Moreno to 

determine the constitutionel application of the limitations in section 

54.057 requires a state university to ascertain a nonimigrant alien’s 

classification under the Immigration and Nationality Act, under a 

relevant interuatioual agreement such as the NATO Status Agreement, 

and under the federal regulations , and then to decide whether Congress 

has prescribed residency requirements for that alien. If Congress has 

not restricted the resiLence of so alien to the country of his 

citizenship, even a noniomigrant alien must be allowed the sane 

privilege of qualifying for resident status in Texas for tuition 

purposes that is accorded to citieens of the United States and to 

aliens who hold permanent residence visas or file their intention to 

becowe a citizen. In spite of the limitations in section 54.057, euch 

an alien’s status ss a Texas resident for tuition purposes will then 

be determined in accordance with rules and regulations of the 

Coordinating Board, Texas ,:ollege and University System, as provided 

by section 54.053 of the Education Code. 

SUMMARY 

Under the Supremacy Clause of the United States 

Constitution, aliens who are permitted by Congress 

to adopt the United States ss their domicile while 

they are in thil# country must be ellowed the saws 

privilege as citizens and permanent residents of 

the United States to qualify for Texas residency 

for purposes 0:: tuition at state universities, 

despite the lin.itation in section 54.057 of the 

Texas Education Code. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID P. RIC?IARDS 

Executive Assistant Attonle!y General 

p. 1087 
Hr. Kanncth Ashvorth - Page ,6 (A-241) 

RICK GILPIN 

chairman, Opinion comittea 

Prepared by Nancy Sutton 

Aaaietant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Noellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1088