AGO GA-0732.

• Case Date: July 23, 2009
• Court: Texas

Texas Attorney General Opinion 2009. AGO GA-0732. July 23, 2009The Honorable Rob Eissler Chair, Committee on Public Education Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910Opinion No. GA-0732 Re: Whether the State of Texas may permit unauthorized aliens to receive the benefit of in-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."(fn1) 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. § 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 will apply to become a permanent resident of the United States as soon as the person becomes eligible to apply." Id.§ 54.053(3). We consider here only whether sections 54.052(a)(3) and 54.053(3) violate 8 U.S.C. § 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. § 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 § 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, § 1. Because the request does not specify or present legal arguments as to how or why the state statutes may violate the federal law, our 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. Nat'l 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. § 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...