Untitled Texas Attorney General Opinion

. . The Attorney General of Texas Ma:,ch 19. 1985 JIM MAl-lOX Attorney General I SupromE coull BUlldIng Eonorable Wilhclmlnc~ Delco Opinion NO. JM-302 P. 0. Box 12548 chairman AUSlIr&TX. n711.2s45 Eigher education cum1ittee Re: Whether the legislature may 51w752So1 Texas House of Reprcmentatives impose a longer residency require- TW.x OlW37C1337 Thco~kc 51214750286 P. 0. Box 2910 meut on out-of-state residents Austin, Texas 787ti!l who wish to ‘qualify for resident tuition at * state university 714 Jmkwn. Suite 700 cwlar. TX. 7S20245oS Dear Representative Delco: ZW742dou In all 50 statmes, a distinction ie made between residents and 4S24Albert* 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 1001Texm. 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. Section 54.05:! of the Texas Education Code provides that an SO5Broadway.Suit. 312 Lubbock.TX. 70401379 individual who comes from outside Texas can be classified a resident SoSn47-5238 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 4300 N. T.ntk, Suit. 6 McAllm, lx. 785014os5 months, a omresiiht student may be reclassified as .a resident SwmS2-4S47 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 200 Yaln Plau Suite 400 can adopt a residewy requirement that is longer than 12 months for San Antonlo. TX. 7S2G527S7 non-Texas. residents to qualify for resldent tuition or that requires w?m54191 students who coaw from out of state to pay nonresident tuition throughout their college careers. Since you do not submit a special An Equal OWCWWW proposal or a definite period of time. ve vi11 discuss the question in Alllmllw ActIOn EIWIOYW 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 legis- lation under the equal protection clause, the Court adhere@ to a three-tiered test. If s statute infringes on a fundancntal right or create* lII 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 relation- ship 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 legisla- tion furthers the “substantial interest” of the state. See Plyler v. Doe, - 457 U.S. 202 (1982); reh’ -- 8 denied, 458 U.S. 1131 (19m. 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 con- stitutionally protected right to travel from state to state. Shapiro v. Thompson, 394 U.S. 618 (1969). 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 one- year 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 require- ment only needs to be reesonal,ly and rationally related to a leglti- mate state purpose. The cese:s upholding one-year residency require- ments 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