The Honorable Bill Presnal

Chairman opinionNO. H-761
House Appropriations Committee Re: Tuition exemptions Howe of Representatives for World War II veterans. P. 0. Box 2910 Austin, Texas 70767
Dear Chairman Preenal:
You have requested our opinion on a number of questions regarding the eligibility of World War II veterans for tuition exemption at state institutionsof higher education, pursuant to section 54.203 of the Education Code. Specifically, you ask:

1. Whether there is a minimum requirement for time served in the military during World War II for eligibility for
2. the
3. the tuition exemption.
What constitutes 'service'in **armed** forces during World War II. Whether a personal request for

._. . _. release frommilitary **SerViCs** during World War II constitutes a basis for disqualification from tuition exemption eligibilityregardlessof the time servedprior to the request for release.
4. Whether a veteranmust have been eligible for or receivedG.I. educational benefits from the federal government in order to be eligible for the tuition exemption.

p. 3214The Honorable Bill Presnal - page 2 (H-761)

Section 54.203 of the EducationCode provides that the governing board of each institutionof higher education shall exempt certainpersons from payment of tuition and other fees, provided such personswere "citizens of Texas at the time they entered the services indicated and have resided in Texas for at least the period of 12months before the date of registration." .The"category of exempt persons pertinent to this inquiry includes

all nurses,members of the Women's Army Auxiliary Corps,members of the Women'sAuxiliaryVolunteer Emergency Service, and all honorably dischargedmembers of the armed forces of the United Stateswho served duringWorld War II except thosewho were discharged from servicebecause theywere over the age of 38 or because of a personal request on the part of the person that he be discharged from service.

. . . Sec. 54.203(a)**(2).**
As to your first question, it is clear that the statute does not establish a minimum requirement for time served during World War II. Subject to two exceptions, it provides for tuition exemption to all "who served during World War II.

. . ." (Emphasisadded). In contrast, a subsequent portion **of** the statuterequiresa minimum of 160 days service in order for any post-KoreanWar veteran to qualify for the exemption. Sec. 54.203W **(4).** Since the statute thus fixes a minimum length-of-servicerequirement for certain veterans but not for others,we believe it is reasonable to conclude that the Legislaturedid not intend such a requirement to apply to the latter group.
We are supported in this conclusion by Attorney General Opinion O-7316 (1946),wherein this Office was asked whether an honorably dischargedveteranwith less than 90 days service was eligible for the tuition exemption provided by article 2654b-1,V.T.C.S., the predecessor of section 54.203. It was there said:

po3215. .

The Honorable Bill Presnal - page 3 (H-761)

State legislationhereinabove quoted which confers educational benefits on veterans of World War, II makes no requirementas to term ~ofservice the veteransmust,have served in the armed forces before he shallbe entitled,tothe benefito~,~~~ conferredupon him therein. Article
~,, 2654b-1 as amended, states insubstance that the benefitsprovided ,,' ,, therein shall apply and accrue to all members **of** the United States Armed Forces provided that such persons have 'beenhonorab,lydischarged from the service and were ,notdischargedbecause of being over the age of 38 years or because of a personal requeston the part of suchperson to be discharged from such service.
It is therefore our op'inion that there is no minimumrequirement for time served in themilitary during World War II in order for an individual to qualify for the tuition provided by section 54.203 of the Education Code.
YOU also ask what constitutes "service" in the armed forces during World War II. Although there appear to be ,onlytwo reported caseswhich have addressed thia question, they are in agreement that a ,personis "inmilitary service" from the time he is sworn in. 'LifeIns. Co. 44 A 2d 907 ,(N,+%?$?%&::";::::':;;5) md- A;2d 2 (N:J.Sup. 194;);Dew v- Davis, 222 P. 756 (Wan.Sup. 1924). Accordingly, it Four aon that our courts would probablyhold that a person has "served" in the armed forces duringWorld War II for purposes of sect'ion 54.203, if he was a member thereof for any length of time, beginning at themoment he was sworn in.

p.3216_.- ,-,.,

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The Honorable Bill Presnal - page 4 (H-761)

Your third question inquiresabout the disqualification from tuition exemptionwhich section 54.203 makes applicable to persons who were dischargedas a result of their own personal request. The statuteprovides in clear terms that such persons are disqualified,and itmakes no exception on the basis of their length **of** prior service. As the court

[Wleare 'dealing

with restrictions and conditions imposedby the very statute which creates the right, and those reatrictionaand conditions may not be relaxed or modified to avoid what may appear to be too strict or narrow a rule in a particular case. See also Chambersv. Robison, 179 S.W. 123, 124 (Tex.Sup. n15); cf. AttorneyGmOpinion O-7021 (1946). We are thereforeof the opinion that a discharge from service in satisfaction of a personal request for release frommilitary service during World War II constitutesa basis for disqualification from tuition exemption eligibility,~ regardless of the time servedprior to the request for release. Finally, you ask whether a veteranmust have been eligible for or receivedG.I. educationalbenefits from the federal government in order to be eligible for the tuition exemption. Subsection (d)of section 54.203provides:

The exemption from fees provided for in Subsection (a)of this section does not apply to a person if at the time of his registrationhe is eligible for educationalbenefits under federal legislation in effect at the time of his registration. A person is covered by the exemptions if his right to benefits under federal legislation is extinguished at the time of his registration.

p.3217.,,,,,.,_.,.. ~._~. .~-,,. ~ ,-_....--.~.~-.-.-..,,.---..,.,... -

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The Honorable Bill Presnal - page 5~ (H-761)

The statute does not require that a person have ever been eligible for G.I. benefits in order to qualify for the tuition exemption. Although it specificallydeclares to be eligible a person whose "right to benefits under federal legislation is extinguishedat the time of his registration," we do not believe the implicationto be that persons who were never eligible for federalbenefits are not covered by the exemption. (Emphasisadded). See Attorney General Opinion V-688 (1948). Accordingly,If is our opinion that a veteran need not have been eligible **for** nor received G.I. benefits from the federalgovernment in order to qualify for the tuition exemption of section 54.203.
SUMMARY There is no minimum requirement for time served in themilitary during World War II in order for an individual to qualify for the tuition exemption provided by section 54.203 of the Education Code. A discharge in satisfaction of a personal request for release frommilitary serviceduringWorld War II constitutes a basis for disqualification from tuition exemption eligibilityunder section 54.203,regardlessof the time served prior to the request for release. A veteran need not have been eligible for or receivedG.I. educationalbenefits from the federalgovernment in order to qualify for the tuition exemption of section 54.203. -Very truly yours,

Attorney~Generalof Texas

p.3218The Honorable Bill Preanal - page 6 (~-761)

**APPROVED**

**:**

Opinion Comn

littee jwb

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