The Honorable Bill Presnal opinion NO. H-761
Chairman
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 institutions of higher education,
pursuant to section 54.203 of the Education Code. Specifi-
cally, you ask:
1. Whether there is a minimum require-
ment for time served in the military
during World War II for eligibility
for the tuition exemption.
2. What constitutes 'service' in
the armed forces during World War II.
3. Whether a personal
._. request. for
_.
release from military SerViCs during
World War II constitutes a basis for
disqualification from tuition exemp-
tion eligibility regardless of the
time served prior to the request for
release.
4. Whether a veteran must have been
eligible for or received G.I. educa-
tional benefits from the federal
government in order to be eligible
for the tuition exemption.
p. 3214
The Honorable Bill Presnal - page 2 (H-761)
Section 54.203 of the Education Code provides that the
governing board of each institution of higher education
shall exempt certain persons from payment of tuition and
other fees, provided such persons were "citizens of Texas at
the time they entered the services indicated and have resided
in Texas for at least the period of 12 months before the
date of registration." .The"categoryof exempt persons
pertinent to this inquiry includes
all nurses, members of the Women's
Army Auxiliary Corps, members of
the Women's Auxiliary Volunteer
Emergency Service, and all honorably
discharged members of the armed
forces of the United States who
served during World War II except
those who were discharged from
service because they were 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. . . ." (Emphasis added). In contrast, a subsequent
portion of the statute requires a minimum of 160 days service
in order for any post-Korean War veteran to qualify for the
exemption. Sec. 54.203W (4). Since the statute thus fixes
a minimum length-of-service requirement for certain veterans
but not for others, we believe it is reasonable to conclude
that the Legislature did 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 discharged veteran with 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:
po 3215
. .
The Honorable Bill Presnal - page 3 (H-761)
State legislation hereinabove
quoted which confers educational
benefits on veterans of World War,
II makes no requirement as to term
~of service the veterans must,have
served in the armed forces before
he shall be entitled,to the benefito~,~~~
conferred upon him therein. Article
~,,
2654b-1 as amended, states insub-
stance that the benefits provided ,,',,
therein shall apply and accrue to
all members of the United States
Armed Forces provided that such
persons have 'beenhonorab,lydis-
charged from the service and were
,not discharged because of being
over the age of 38 years or because
of a personal request on the part of
such person to be discharged from
such service.
It is therefore our op'inionthat there is no minimumrequire-
ment for time served in the military 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
,only two reported cases which have addressed thia question,
they are in agreement that a ,personis "in military service"
from the time he is sworn in.
'Life Ins. 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 probably hold that a person has "served" in the
armed forces during World War II for purposes of sect'ion
54.203, if he was a member thereof for any length of time,
beginning at the moment he was sworn in.
p. 3216
_.- ,-,.,
. ’
The Honorable Bill Presnal - page 4 (H-761)
Your third question inquires about the disqualification
from tuition exemption which section 54.203 makes applicable
to persons who were discharged as a result of their own
personal request. The statute provides in clear terms that
such persons are disqualified, and it makes no exception on
the basis of their length of prior service. As the court
[Wle are 'dealingwith restrictions
and conditions imposed by the very
statute which creates the right,
and those reatrictiona and conditions
may not be relaxed or modified to
avoid what may appear to be too
strict or narrow a rule in a partic-
ular case.
See also Chambers v. 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 from military
service during World War II constitutes a basis for disqual-
ification from tuition exemption eligibility,~regardless of
the time served prior to the request for release.
Finally, you ask whether a veteran must have been
eligible for or received G.I. educational benefits from the
federal government in order to be eligible for the tuition
exemption. Subsection (d) of section 54.203 provides:
The exemption from fees provided for
in Subsection (a) of this section
does not apply to a person if at the
time of his registration he is eligible
for educational benefits 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 specifically declares to be
eligible a person whose "right to benefits under federal
legislation is extinguished at the time of his registration,"
we do not believe the implication to be that persons who
were never eligible for federal benefits are not covered by
the exemption. (Emphasis added). 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 federal government in order to qualify for
the tuition exemption of section 54.203.
SUMMARY
There is no minimum requirement for
time served in the military 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 satis-
faction of a personal request for release
from military service during World War II
constitutes a basis for disqualification
from tuition exemption eligibility under
section 54.203, regardless of the time
served prior to the request for release.
A veteran need not have been eligible for
or received G.I. educational benefits from
the federal government in order to qualify
for the tuition exemption of section 54.203.
-Very truly yours,
Attorney ~General of Texas
p. 3218
The Honorable Bill Preanal - page 6 (~-761)
APPROVED:
Opinion Comnlittee
jwb
p. 3219
Untitled Texas Attorney General Opinion
Combined Opinion