No. DM-0468 (1998).

• Case Date: March 12, 1998
• Court: Texas

Texas Attorney General Opinions 1998. No. DM-0468 (1998). March 12, 1998Opinion No. DM-468Morales Opinion No. DM-468 Office of the Attorney General State of TexasMr. Ray Farabee Vice Chancellor and General Counsel The University of Texas System 201 West Seventh Street Austin, Texas 78701-2981SYLLABUS: 1998-468Re: Whether Education Code section 54.203 violates the Equal Protection Clause of the United States Constitution by exempting from dues, fees, and charges at an institution of higher education only those veterans who were Texas citizens at the time they entered the service, and related questions (RQ-937)Dear Mr. Farabee: You ask about the constitutionality of Education Code section 54.203(a), which requires the governing board of an institution of higher education to exempt from certain "dues, fees, and charges" every honorably discharged, resident veteran(fn1) who resided in Texas at the time he or she entered the service. You appear concerned that distinguishing honorably discharged, resident veterans who resided in Texas at the time they entered the service from honorably discharged, resident veterans who did not reside in Texas at the time they entered the service may contravene the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We believe a court would conclude that the statutory classification is unconstitutional. We further believe a court would remedy the unconstitutionality by extending the exemption to all honorably discharged, resident veterans. You also ask whether a determination that section 54.203(a) is unconstitutional will be applied retrospectively. We are ultimately unable to answer this question, although we provide the test we believe a court would use to resolve the issue. Finally, you ask whether a particular student, a resident veteran who was not a citizen of this state at the time he entered the service, is entitled to a refund of the tuition and fees he has paid under protest. Because we cannot determine whether a determination that the subsection is unconstitutional will be applied retrospectively, we cannot answer this question. We begin by describing the statute at issue. Education Code section 54.203(a) requires the governing board of an institution of higher education to exempt certain resident veterans from the payment of specified costs: The governing board of each institution of higher education shall exempt the following persons from the payment of all dues, fees, and charges, including fees for correspondence courses but excluding property deposit fees, student services fees, and any fees or charges for lodging, board, or clothing, provided the persons seeking the exemptions 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: (1) all nurses and honorably discharged members of the armed forces of the United States who served during the Spanish-American War or during World War I; (2) 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 . . . ; (3) all honorably discharged men and women of the armed forces of the United States who served during the . . . Korean War; and (4) all persons who were honorably discharged from the armed forces of the United States after serving on active military duty . . . for more than 180 days and who served a portion of their active duty during: (A) the Cold War . . . ; (B) the Vietnam era . . . ; (C) the Grenada and Lebanon era . . . ; (D) the Panama era . . . ; (E) the Persian Gulf War . . . ; or (F) any future national emergency declared in accordance with federal law. [Emphasis added.] Thus, to receive the exemption under section 54.203(a), an honorably discharged veteran who served during one of the listed conflicts must satisfy two statutory residence requirements. The first, a fixed-point residence requirement, limits the exemption to those veterans who resided in Texas at the time they entered the service. The second, a durational residence requirement, limits the exemption to those veterans who have resided in Texas for at least one year before registering in an institution of higher education. You ask only about the fixed-point residence requirement.(fn2) We note, as a threshold matter, that this country has a long tradition of rewarding those who have served in the armed forces by providing statutory preferences that favor veterans over nonveterans:(fn3) "[T]he various preferences for veterans are grounded in a '[d]esire to compensate in some measure for the disruption of a way of life . . . and to express gratitude . . . .'"(fn4) We are not considering the constitutionality of a statutory preference favoring veterans, however; rather, we are considering here the constitutionality of a statutory preference favoring one class of honorably discharged, resident veterans--those who satisfy Education Code section 54.203(a)'s fixed-point residence requirement--over another--those who do not satisfy the statutory fixed-point residence requirement. The United States Supreme Court twice has struck as unconstitutional under the Fourteenth Amendment's Equal Protection Clause statutes that distinguish among veterans on the basis of fixed-point residence requirements similar to that in Education Code section 54.203(a).(fn5) In the most recent, Attorney General of New York v. Soto-Lopez,(fn6) the United States Supreme Court struck New York laws that "grant[] a civil service employment preference, in the form of points added to examination scores," to honorably discharged veterans who resided in New York and who resided in New York when they entered the military service.(fn7) The New York laws thus distinguished among honorably discharged, resident veterans on the basis of when they first established residence in the state.(fn8) At a minimum,(fn9) the Soto-Lopez court held that the laws at issue did not survive even rational-basis scrutiny. In general, a classification will survive rational-basis scrutiny if the statutory classification rationally furthers a legitimate state purpose.(fn10) The Court found that the New York classification was irrational,(fn11) rejecting the State's four proffered justifications. First, the Court denied that the classification encourages New York residents to enlist during times of war, primarily because no service personnel could be sure, at the time he or she enters the service, that the legislature would amend the...