Texas Attorney General Opinion: GA-0732 Page: 3 of 7
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The Honorable Rob Eissler - Page 3
Section 1623, however, does not define "postsecondary education benefit" or "residence."
See id.2 We are not aware of any federal agency that has administratively defined these terms; nor
are we aware of any federal court or state supreme court that has construed these terms or considered
the substantive application of section 1623(a) to a statute similar to the Texas statutes. See Jones
v. Rath Packing Co., 430 U.S. 519, 526 (1977) (stating that obstacle preemption inquiry requires a
consideration of the "relationship between state and federal laws as they are interpreted and applied,
not merely as they are written") (emphasis added).
To date, the only judicial decision on this specific question is from an intermediate California
state appellate court, and it is currently pending review by the California Supreme Court. See
Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518 (Cal. App. 3d), superseded by 198 P.3d
1 (Cal. 2008) (granting respondents' petition for review on Dec. 23, 2008).3 In Martinez v. Regents
of University ofCalifornia, the court of appeals held that a California statute exempting unauthorized
aliens from paying nonresident tuition at certain state colleges and universities4 provided a benefit
on the basis of residence in violation of 8 U.S.C. 1623, and was thus preempted by the federal law.
See Martinez, 83 Cal. Rptr. 3d at 540-45. The court construed "benefit" in 8 U.S.C. 1623 to
include in-state tuition, rejecting the argument that it means only payment of money or direct
financial assistance. See id. at 531-33. The court also determined that the state statute requiring
attendance at a California high school for at least three years created a de facto residence requirement
and thus conferred a benefit to unauthorized aliens on the basis of residence in California. Id. at
537-40. Finally, the Martinez court determined, because the California statute did not provide in-
state tuition to United States citizens from other states "'without regard to' California residence, [the
statute] conflicts with ... 8 U.S.C. section 1623." Id. at 540. Accordingly, the Martinez court
concluded, the California statute was preempted to the extent of the conflict because it was
2A provision in the related Personal Responsibility and Work Opportunity Reconciliation Act of 1996, codified
at 8 U.S.C. 1621(c), defines "state or local benefits" as
any retirement, welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefit, or any other similar benefit for
which payments or assistance are provided to an individual, household, or family
eligibility unit by an agency of a State or local government or by appropriated funds
of a State or local government.
8 U.S.C. 1621(c)(1)(B) (2006) (emphasis added). Section 1621 does not further define "postsecondary education
benefit."
3Under California court rules, if the California Supreme Court grants review, a court of appeals' opinion may
be treated as an unpublished opinion or a partial publication. See Cal. R. Ct. 8.1105(e), 8.1110, 8.1115. Pursuant to
California's Rules of Court, Martinez has been certified for partial publication. See Martinez, 83 Cal. Rptr. 3d at n.*
(providing that the "opinion is certified for publication with the exception of parts II and III of the DISCUSSION"); Cal.
R. Ct. 8.1110 (concerning partial publication).
4The California statute provides that to qualify for in-state tuition rates, (1) students must have attended high
school in California for a least three years; (2) they must have graduated from a California high school or attained the
equivalent thereof; and (3) unauthorized alien students must submit an affidavit that they have either filed an application
to legalize status or will file such an application as soon as they become eligible. Martinez, 83 Cal. Rptr. 3d at 522 n. 1.(GA-0732)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0732, text, July 23, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275628/m1/3/: accessed June 1, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.