Facts about Immigration:
Separating the wheat from chaff (Luke 3:17).
Texas In-State Tuition and Illegal Aliens – What’s up?
Texas Tuition law- a brief overview:
Texas state colleges and universities have different tuition requirements for residents and non-residents. Generally, resident tuition aka "in-state" tuition is less expensive than non-resident aka "out-of-state" tuition. Additionally, Texas residency is independent and distinct from federal immigration residency.
This leads to a curious anomaly: a person can be a resident of Texas for public higher education tuition purposes but not be authorized to remain in the United States because of federal immigration law. This issue along with a prior definition of what defined a Texas "resident," caused much confusion as to whether an undocumented alien would qualify for in-state tuition at a state college or university.
In 2001, the Texas Legislature passed HB 1403 which attempted to clarify this issue and the new law allowed some undocumented immigrants to qualify for "in-state" tuition at a public college or university. Nevertheless, since immigration law is the province of the U.S. Congress, this new state law could not provide any legal status for undocumented students.
Almost immediately after the law was passed, concerns were raised that the HB 1403 was unconstitutional because it treated certain legal non-residents and U.S. citizens differently. As a result, the Texas Legislature passed SB 1528 in 2005. This new law modified HB 1403 and addressed some of the equal protection concerns that were raised by the legal community.
According to the current Texas Education Code, a Texas "resident" is someone who established a domicile in Texas "not later than one year before the census date of the academic term in which the person is enrolled in an institution of higher education; and maintained that domicile continuously for the year preceding that census date." A Texas resident could also be someone whose parent met the above criteria. Additionally, a resident is also defined as a person who has graduated from a Texas high school (public or private or received their GED) and resided in Texas for at least three years prior to graduation or receipt of their GED and the year preceding the census date "of the academic term in which the person is enrolled in an institution of higher education." See generally TEX. ED. CODE CHAP. 54A§54.052(a).
An undocumented alien can apply to a public college and be considered a Texas resident if they submit to the college or university:
(A) a statement of the dates and length of time the person has resided in this state, as relevant to establish resident status under this subchapter; and
(B) 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.
TEX. ED. CODE CHAP. 54A§54.053. Read a good summary of these changes and the current law… (pdf)
A similar but not identical law was challenged in California by a group of Plaintiffs that claimed, among other things, that such "in-state" tuition laws violated the constitutional rights of legal residents and U.S. Citizens. The California state trial court dismissed the case on procedural grounds and the plaintiffs appealed. The California Appeals Court reversed the trial court and sent the case back to the trial court for further proceedings. The Appeals court did not rule on the merits of the case. Read the full opinion… (pdf)
After this California decision, a Texas legislator requested a formal Texas Attorney General Opinion about the Texas in-state tuition law. Read his request here… (pdf)
Attorney General opinions are significant because they are given great weight and authority by agencies and courts when interpreting the law. Read more about Attorney General Opinions…
Some groups have asked the Attorney General not to issue an opinion or if he does, to opine that the Texas law is distinguishable from the California law and that it does not conflict with the Texas or U.S. Constitution. Read more… (pdf)
It is unknown whether the Texas Attorney General will weigh in on this issue. Nevertheless, as of the time of this writing, an undocumented immigrant that meets the residency requirements set out in the Texas Education Code and who submits the required affidavit is entitled to received "in-state" tuition at the public college or university in which he has enrolled.
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