Texas Attorney General Opinion: GA-0732 Page: 4 of 7
7 p.View a full description of this text.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
The Honorable Rob Eissler - Page 4
impossible for universities and colleges to comply with both federal and state law, and because "it
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress." Id. at 541-42.5
It is possible that another court could follow the reasoning of the Martinez decision.
However, a California Supreme Court decision would not bind a federal or state court in Texas, and
no other court has considered the validity under federal law of a state statute authorizing in-state
tuition for unauthorized aliens.6 Thus, while a federal or state court in Texas could find that 8 U.S.C.
1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict
with the federal law, given the paucity of judicial precedent, we cannot predict with certainty that
a court would so find.
II. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
prohibits a state from denying "to any person within its jurisdiction the equal protection of the laws."
U.S. CONST. amend. XIV, 1. The constitutional equal protection guarantee requires that similarly
situated persons be treated similarly under the law; it does not preclude a state from adopting
legislation classifying persons for "one purpose or another, with resulting disadvantage to various
groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996) (citing Personnel Adm 'r v. Feeney,
442 U.S. 256, 271-72 (1979)). The question presented suggests that unauthorized aliens and
nonresident United States citizens are similarly situated, but treated unequally with respect to
eligibility for the benefit of in-state tuition under Texas law. See Request Letter at 1. Because the
request does not specify or present legal arguments as to how or why the state statutes violate the
equal protection guarantee, our discussion is necessarily general.
First, on their face, Education Code sections 54.052(a)(3) and 54.053(3) do not allow
unauthorized aliens a benefit denied to nonresident United States citizens. See TEX. EDUC. CODE
5The Martinez court looked at the Congressional objective as stated in 8 U.S.C. 1601 regarding the national
policy with respect to immigration: "the availability of public benefits [should] not constitute an incentive for
immigration to the United States" and "[i]t is a compelling government interest to remove the incentive for illegal
immigration provided by the availability of public benefits." Martinez, 83 Cal. Rptr.3d at 542; 8 U.S.C. 1601(2)(B),
(6) (2006).
6In Day v. Sebelius, the federal district court dismissed equal protection and preemption challenges to a Kansas
in-state tuition statute similar to the Texas statutes on the grounds that the out-of-state plaintiffs lacked standing because
they were not injured as a result of the state law and there existed no private right of action under the federal statute. See
Sebelius, 376 F. Supp. 2d 1022, 1034, 1039 (D. Kan. 2005). The Tenth Circuit Court of Appeals affirmed the dismissal.
Day v. Bond, 500 F.3d 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 2987 (2008). In rejecting the out-of-state
plaintiffs' equal protection standing claim, the circuit court determined that the plaintiffs' alleged injury-having to pay
nonresident tuition-would not be redressed by a decision in the plaintiffs' favor because they still would not qualify
for in-state tuition. Bond, 500 F.3d at 1139. Regarding the plaintiffs' preemption standing claim, the circuit court
concluded that "the text and structure of 1623 do not manifest a congressional intent to create private rights, and the
Plaintiffs thus have not claimed any cognizable and individualized injury stemming from the implementation of [the
Kansas statute]." Id. at 1139-40.(GA-0732)
Upcoming Pages
Here’s what’s next.
Search Inside
This text can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Text.
Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0732, text, July 23, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275628/m1/4/: accessed June 1, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.