Could Texas limit a veteran tuition exemption to veterans who lived in Texas when they entered military service?

TX AG Opinion DM-0468: Could Texas restrict a veteran tuition exemption based on where the veteran entered service?

Plain-English summary

The University of Texas System asked whether Education Code section 54.203(a) violated equal protection by limiting a tuition and fee exemption to honorably discharged veterans who were Texas citizens when they entered military service. The statute also required the veteran to have lived in Texas for at least twelve months before registering. The opinion addressed only the first condition, which it called a fixed-point residence requirement.

The Attorney General concluded that a court probably would find the fixed-point requirement unconstitutional. United States Supreme Court decisions had rejected similar laws that divided resident veterans according to where or when they first established residence. Attorney General of New York v. Soto-Lopez invalidated a New York civil-service preference limited to veterans who entered service from New York, and Hooper v. Bernalillo County Assessor invalidated a New Mexico property-tax exemption limited to veterans who lived there before a fixed date. The opinion also agreed with the California Supreme Court's application of those cases in Del Monte v. Wilson.

The likely remedy was narrow. Because the 1959 act that added the fixed-point requirement contained a severability clause, the opinion concluded that a court probably would delete only that requirement. The tuition exemption would then extend to every honorably discharged veteran who met the statute's separate one-year residence requirement.

The opinion did not decide whether that judicial change would apply retroactively. It said a court would use the three-part test from Wessely Energy Corp. v. Jennings, which considers whether the decision was foreshadowed, whether retroactivity would advance the holding, and whether retroactive application would create substantial inequity. Those inquiries involved facts the Attorney General's office could not resolve. For the same reason, the opinion did not decide whether a veteran who had paid tuition under protest was entitled to a refund.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1998)

Honorably discharged veterans: The opinion treated veterans who satisfied the one-year Texas residence requirement as similarly situated for the exemption, regardless of where they lived when entering military service.

Public colleges and universities: The opinion predicted that a court would remove the fixed-point condition rather than invalidate the entire tuition exemption, extending the exemption to qualifying resident veterans.

University tuition and residency offices: The opinion distinguished the challenged fixed-point condition from the separate twelve-month residence requirement, whose constitutionality the request did not ask the Attorney General to decide.

Veterans seeking refunds: The opinion did not decide whether a veteran who paid tuition under protest was entitled to repayment because that depended on a court's unresolved retroactivity analysis.

Common questions

Why did the opinion treat the entry-from-Texas condition as unconstitutional?
The opinion read Soto-Lopez and Hooper to prohibit a state from favoring established residents over newer bona fide residents solely because of their date of arrival. It found no rational basis for distinguishing between resident veterans based on the state from which they entered service.

Did the opinion invalidate the one-year Texas residency requirement?
No. The request concerned only the fixed-point requirement. The opinion expressly did not consider the constitutionality of the separate requirement that a veteran live in Texas for at least twelve months before registration.

Would striking the fixed-point condition end the veteran exemption?
The opinion concluded it probably would not. The 1959 legislation contained a severability clause, so a court likely would remove only the unconstitutional condition and leave the rest of section 54.203(a) in place.

Did veterans who already paid tuition have a right to a refund?
The opinion did not answer that question. A refund depended on how far back a court made the judicial change effective, and the Attorney General concluded that the Wessely retroactivity test required factual judgments for a court.

Background and statutory framework

Education Code section 54.203(a), as quoted in the opinion, exempted specified honorably discharged veterans from tuition and certain fees if they were Texas citizens when they entered the listed military service and had resided in Texas for at least twelve months before registration. The opinion called the first condition a fixed-point residence requirement because a person who did not meet it could never cure the disqualification. It called the second a durational residence requirement because any new resident could satisfy it after living in the state for the required period.

Soto-Lopez involved New York civil-service preference points for veterans who had lived in New York when entering military service. Hooper involved a New Mexico property-tax exemption for Vietnam veterans who lived there before May 8, 1976. Both classifications failed rational-basis review. The opinion emphasized the Supreme Court's reasoning that veterans served the nation rather than a particular state, that service disrupted veterans regardless of their former state of residence, and that a state could not permanently disadvantage bona fide residents because they arrived after a fixed date.

The opinion rejected the argument that Texas courts would take a different approach based on Nunez v. Autry and Smith v. Board of Regents of University of Houston System. Nunez concerned a guaranty fund limited to people who were Texas residents when their insurance claim arose, a distinction tied to protecting Texas residents rather than dividing current residents by arrival date. Smith upheld the twelve-month rule used to identify bona fide resident students. Neither case supported a permanent exclusion among current resident veterans.

On severability, the opinion relied on the express severability clause in the 1959 act that added the fixed-point requirement. It concluded that the Legislature's underlying purpose was to compensate resident veterans for national service and disruption, so removing the condition better preserved the exemption than eliminating it altogether. On retroactivity, Wessely Energy Corp. v. Jennings supplied the three-part test, but the opinion declined to apply it because each part required factual determinations outside the opinion process.

Citations

Statute and constitution:

• Tex. Educ. Code § 54.203(a)
• U.S. Const. amend. XIV, Equal Protection Clause
• Act of July 15, 1959, 56th Leg., 2d C.S., ch. 12, §§ 2, 4, 1959 Tex. Gen. Laws 99, 100-01

Cases:

• Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986)
• Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985)
• Zobel v. Williams, 457 U.S. 55 (1982)
• Del Monte v. Wilson, 824 P.2d 632 (Cal. 1992) (en banc), cert. denied, 506 U.S. 984 (1992)
• Bunyan v. Camacho, 770 F.2d 773 (9th Cir. 1985), cert. denied, 477 U.S. 903 (1986)
• Nunez v. Autry, 884 S.W.2d 199 (Tex. App.-Austin 1994, no writ)
• Smith v. Board of Regents of University of Houston System, 874 S.W.2d 706 (Tex. App.-Houston [1st Dist.] 1994, writ denied), cert. denied, 514 U.S. 1111 (1995)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Wessely Energy Corp. v. Jennings, 736 S.W.2d 624 (Tex. 1987)

Related opinions:

• Tex. Att'y Gen. Op. DM-98 (1992); H-56 (1973); M-187 (1968); O-2911 (1940); O-6833 (1945)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0468
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0468.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 12, 1998

Mr. Ray Farabee
Vice Chancellor and General Counsel
The University of Texas System
201 West Seventh Street
Austin, Texas 78701-2981

Opinion No. DM-468

Re: 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)

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 veteran¹ 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.

¹Throughout this opinion, we use the term “resident veteran” to refer to a veteran who has satisfied the statutory
durational residence requirement. For instance, with respect to Education Code section 54.203(a), a resident veteran
is one who has resided in Texas for at least one year before he or she registers for university.

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.²

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.³ “[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. . . .’”⁴ 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).⁵ In the most
recent, Attorney General of New York v. Soto-Lopez,⁶ 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.⁷ The New York laws thus distinguished among

²We do not consider in this opinion the constitutionality of section 54.203(a)’s durational residence
requirement. The United States Supreme Court has distinguished between statutes that adopt a durational residence
requirement and those that adopt a fixed-point residence requirement. A statute establishing a durational residence
requirement requires a new resident “to reside in the State a fixed minimum period” before he or she is eligible for
certain benefits available to other residents. Zobel v. Williams, 457 U.S. 55, 58 (1982). The asserted purpose of a
durational residence requirement is to ensure that only a bona fide resident receives rights and benefits provided for
residents. Id. A fixed-point residence requirement, on the other hand, conditions rights and benefits on residence within
the state on a particular date. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 904-05 (1986). While
any individual may satisfy a durational residence requirement, an individual who does not meet a fixed-point residence
requirement never will satisfy the requirement. See id. at 909 (resident who cannot meet fixed-point residence
requirement is “permanently deprived” of receiving benefits).

³See Soto-Lopez, 476 U.S. at 910-11 (and cases cited therein); Hooper v. Bernalillo County Assessor, 472 U.S.
612, 620 (1985) (and cases cited therein).

⁴Hooper, 472 U.S. at 620 (quoting Russell v. Hodges, 470 F.2d 212, 218 (2d Cir. 1972)).

⁵See Soto-Lopez, 476 U.S. 898 (1986); Hooper, 472 U.S. 612 (1985).

⁶476 U.S. 898 (1986).

⁷Id. at 900.

honorably discharged, resident veterans on the basis of when they first established residence in the
state.*

At a minimum,’ 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." The Court found that the New York
classification was irrational," 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 preference to include veterans of the conflict during which he or she
served.” Furthermore, according to the Chief Justice, the laws do not distinguish between veterans
who enlisted voluntarily and those who were drafted.“ Second, the Court refuted New York's
contention that the preference partially compensates residents for service during time of war,"
countering that New York residents who entered the military suffered no more nor less than residents
of other states who entered the military.“ Third, the Court disagreed with the State’s argument that
the preference encourages honorably discharged, past-resident veterans to return to New York to

"Id. at 905; see also id. at 913 (Burger, C.J., concurring).

*Soto-Lopez is a plurality opinion. Six justices agreed that the New York statute at issue violated the Fourteenth
Amendment's Equal Protection Clause, applying a rational-basis analysis. See Del Monte v. Wilson, 824 P.2d 632, 637
(Cal. 1992) (en banc), cert. denied, 506 U.S. 984 (1992). Four of the justices agreed that the statute also violated the
fundamental, constitutional right to travel, requiring the state to articulate a compelling state purpose for the law. See
id. We must rely solely upon the narrow holding upon which a majority of the Court agreed: “When a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest
grounds.” Marks v. United States, 430 U.S. 188, 193 (1977).

See Zobel, 457 U.S. at 60.

"See Soto-Lopez, 476 U.S. at 916 (White, J., concurring).

"See id. at 913 (Burger, C.J., concurring). Chief Justice Burger noted that the legislature must amend the
statute to “fix both the period when ‘war’ is deemed to have commenced and when that war has ended.” Id.
Consequently, a New York resident may not know, at the time he or she enters the armed services, whether he or she
will be entitled to the preference following a successful tour of duty and honorable discharge. Id.

57d, at 914.

“See id.

‘S]d. (quoting Hooper, 472 U.S. at 621). The Chief Justice stated that “‘it is difficult to grasp how [New York]

residents serving in the military suffered more than residents of other States who served, so that the latter would not
deserve the benefits a State bestows for national military service.” Id. (quoting Hooper, 472 U.S. at 621).

settle.' While the Chief Justice conceded that the preference might have such an effect, he believed
the preference also might discourage other veterans from settling in the state.” Fourth, the Court
denied that the preference targeted a special group of veterans who know local affairs, who have
learned valuable skills in the military, and who would, consequently, make exceptional public
servants;' in the Court’s view, all resident veterans possess those same attributes, regardless of
where they resided when they entered the military.”

Ultimately, the Court determined that the State may not discriminate against a bona fide
resident veteran solely on the basis of his or her date of arrival in the state:

“The State may not favor established residents over new residents based
on the view that the State may take care of ‘its own,’ if such is defined by
prior residence. Newcomers, by establishing bona fide residence in the State,
become the State’s ‘own’ and may not be discriminated against solely on the
basis of their arrival in the State after [a fixed date].”"”

The Soto-Lopez decision echoes the Court’s earlier opinion in Hooper v. Bernalillo County
Assessor." In Hooper the Court declared unconstitutional a New Mexico statute that exempted
$2,000 of the taxable value of property for any honorably discharged, resident Vietnam veteran who
resided in New Mexico before May 8, 1976.7 The Court explained that the statute classified
resident Vietnam veterans who resided in the State before May 8, 1976, differently from those
resident veterans who arrived after that date.“ Like the subsequent Soto-Lopez opinion, the Hooper
Court determined that the statute did not survive even rational-basis scrutiny.“ New Mexico argued
that the exemption encourages veterans to settle in the State,” but the Court opined that the
classification actually discourages veterans who had not been New Mexico residents before

“See id.

"See id.

"See id, at 915.

"See id.

Id. at 915-16 (quoting Hooper, 472 U.S. at 623); see also id. at 911.
1472 U.S. 612 (1985).

2d, at 614.

See id. at 616-17.

Id. at 621-22.

*See id. 618-19.

May 8, 1976, from moving to the State.” New Mexico also asserted that the classification rewards
veterans for their military service,”’ but the Court insisted that a state could not do so by making “an
invidious [or] irrational distinction among its residents."°* New Mexico’s distinction, like New
York’s in Soto-Lopez, was irrational in part because military service during wartime disrupts the
lives of all who serve, not just those who lived in New Mexico before May 8, 1976.”

Soto-Lopez and Hooper provide a framework for analyzing a statutory fixed-point residence
requirement that serves to demarcate among honorably discharged, resident veterans. First, these
cases indicate that a court reviewing such a fixed-point residence requirement would review the
resulting classification using the rationality standard. Second, although a court applying rationality
analysis usually defers to the legislature's wisdom and upholds the statute, the Supreme Court in
Soto-Lopez and Hooper declared irrational every justification the states offered.” Significantly, the
Court declared, in both cases, that a state may not discriminate against a resident solely on the basis
of his or her date of arrival. Additionally, the Court cited, in both cases, the fact that veterans
served this nation, not a particular state, as well as the fact that veterans who entered the service from
one state suffered no more, or less, than veterans who entered from another state?

In our opinion, in Del Monte v. Wilson® the California Supreme Court correctly applied these
Supreme Court precedents to hold unconstitutional a statute markedly similar to Education Code
section 54.203(a). The statute at issue in Del Monte premised a veteran’s receipt of benefits on the
fact that “at the time of entry into active duty,” the veteran was a native or bona fide resident of
California and had lived in the state “for six months immediately preceding entry into active duty.”

*See id. at 619-20. Repeating its admonishment in Zobel v. Williams, the Hooper Court stated that separating
residents into classes “hardly seems . . . likely . . . to persuade new [residents] that the State welcomes them and wants
them to stay."” /d. (quoting Zobel, 457 U.S. at 62 9).

See id. at 620.

Id.

Jd, at 621. Moreover, the Court saw that the annual exemption would benefit the veteran long after the
disruption had occurred, and the exemption therefore could not be considered a helpful aid to a veteran struggling to
readjust to civilian life. See id.

See Del Monte, 824 P.2d at 635.

See Soto-Lopez, 476 U.S. at 915-16 (quoting Hooper, 472 U.S. at 623).

*See id. at 914 (quoting Hooper, 472 U.S. at 621).

3824 P.2d 632 (Cal. 1992) (en banc), cert. denied, 506 U.S. 984 (1992).

Id, at 633; cf. Bunyan v. Camacho, 770 F.2d 773, 776 (9th Cir. 1985), cert. denied, 477 U.S. 903 (1986). In

Bunyan the Ninth Circuit Court of Appeals struck as unconstitutional under the Fourteenth Amendment's Equal
(continued...)

So, like the New York laws at issue in Soto-Lopez, the California statutes discriminated against
veterans who were not California natives or who did not reside in the state at a fixed time in the
past. Relying upon Soto-Lopez and Hooper," the California court subjected the statute to rational-
basis scrutiny.’ Regardless of the State’s proffered rationales, though, Supreme Court precedent
compelled the California court, it said, to declare illegitimate the statutes’ central object, “that is[,]
preferring long-term residents over recent migrants.”*

Protection Clause a Guam statute that grants retroactive retirement credit to local-government employees who were
Guam residents before they started college. id. at 774. Written after the United States Supreme Court's decisions in
Zobel, 457 U.S. 55 (1982), see infra note 36 (discussing Zobel), and Hooper, 472 U.S. 612 (1985), see supra text
accompanying notes 3-5, 15, 20-29, 31-32 (discussing Hooper), but before the Soto-Lopez decision (a 1986 decision),
the Bunyan court relied upon Zobel and Hooper in reaching its conclusion. See Bunyan, 770 F.2d at 775-76. “Even
if Guam may legitimately decide to reward its residents who obtained a higher education and entered the Guamanian
civil service,” the court summarized, “rewarding only ‘established’ residents for such past conduct is not a legitimate
purpose. . . . Furthermore, the statute's distinction between different classes of resident civil servants with college
degrees is not rationally related to the asserted goal of rewarding, encouraging and compensating persons for the alleged
sacrifices.” Id. at 776.

See Del Monte, 824 P.2d at 638. For example, according to the Del Monte court, the California statute would
permanently disqualify from receiving benefits a disabled World War II veteran who moved to California shortly after
the war, no matter how long he resided in the state, paid taxes to the state, or contributed to society. Id.

“The Del Monte court also relied upon Zobel, where the United States Supreme Court declared
unconstitutional, under the Fourteenth Amendment’s Equal Protection Clause, an Alaska statute that tied the amount
of money a resident would receive under the state’s dividend-distribution statute to the length of time he or she had lived
in the state. Zobel, 457 U.S. at 65. The Supreme Court found that the statute did not survive rational-basis scrutiny,

refuting the State of Alaska’s three proffered justifications:

1. The statutory distinctions created a financial incentive for individuals to establish and
   maintain residence in Alaska.

2. The statutory distinctions furthered prudent management of the state’s dividend fund.

3. The statutory distinctions recognized that the longer a resident had lived within the state,
   the more he or she had contributed, tangibly and intangibly, to the state.

See id. at 61-64.
See Del Monte, 824 P.2d at 638.

*Id. at 640 The court found that the state’s first claim, that the distinction was justified because the state “may
choose to ‘take care of its own,” failed under Soto-Lopez. See Del Monte, 824 P.2d at 638-39. Likewise, the court
found that the state’s second justification, that the distinction compensated and assisted those who were residents when
they entered the service, failed under Hooper. See id. at 639. The court also denied that the statutory scheme primarily
serves to assist veterans struggling to reintegrate into society because the statute sets no time limit on the benefits’
availability. See id. 639-40. As a result, a veteran may receive a low-interest loan, for example, thirty years after being
discharged. See id. at 639. The court finally refused to “observe the usual rule” that a court defer to economic

(continued...)

We believe your argument that a Texas court would not follow Del Monte must fail. In the
first place, federal courts as well as state courts have jurisdiction over federal constitutional
questions. Second, you contend that two opinions of the Texas court of appeals, Nunez v. Autry”
and Smith v. Board of Regents of University of Houston System,” suggest that a Texas court would
approach the question of constitutionality differently than the California court. We disagree. In
Nunez the court affirmed the constitutionality of a Texas statute that permitted an insured or third-
party liability claimant to collect from the insurance guaranty fund only if the claimant was a Texas
resident at the time the claim arose.“' The court likened the statute at issue to one that assures that
only residents enjoy services provided for residents.* Additionally, the court determined that the
statute was rationally related to the state’s legitimate interest in protecting state residents, as opposed
to residents of other states, from insolvent insurers.© Education Code section 54.203(a), on the other
hand, provides a benefit to only some resident veterans. Moreover, we question whether a court
would find that the state has a legitimate interest in making this distinction. Smith also is consistent
with the Del Monte decision. In Smith the court declared constitutional a statute permitting a
nonresident student in a state institution of higher education to be reclassified as a resident, and thus
be eligible for resident tuition rates, only after the student had resided in Texas for at least twelve
months.“ By contrast to the statute at issue in Soto-Lopez, according the Smith court, the statute in
Smith “seeks to establish which students are in fact bona fide residents of the state of Texas”: it
does not “seek to . . . limit the benefits accorded to the citizens of Texas based on the length or
timing of their residence.”

Consequently, we believe a court would conclude that Education Code section 54.203(a) is
unconstitutional because it invidiously or irrationally discriminates against honorably discharged,
resident veterans who did not reside in Texas at the time they entered the service. Using the rational-
basis standard, we believe a court would consider all of Texas’ proffered rationalizations, but we can
think of none that the Supreme Court has not already declared insufficient to justify the

continued)
legislation that is claimed to violate the Equal Protection Clause. See id. at 640.

884 S.W.2d 199 (Tex. App.—Austin 1994, no writ).

“874 S.W.2d 706 (Tex. App.—Houston [1st Dist.] 1994, writ denied), cert. denied, 514 U.S. 1111 (1995).
“'See Nunez, 884 S.W.2d at 204.

“See id. at 203-04.

“See id. at 204.

“See Smith, 874 S.W 2d at 708.

“Sid, at 711.

“Id..

classification. In particular, we do not think a court would deem discrimination against one group
of honorably discharged, resident veterans rationally related to saving the state money.” The United
States Supreme Court has refused to defer to fixed-point residence requirements even though the
state justifies the requirement on its power to regulate its economic affairs.“

Having concluded that a court probably would decide that Education Code section 54.203(a)
unconstitutionally distinguishes between honorably discharged, resident veterans on the basis of a
fixed-point residence requirement, we proceed to consider whether a court would strike the entire
section or only the fixed-point residence requirement. Under the former option, no veteran would
be eligible for the tuition exemption. Conversely, under the latter option, every honorably
discharged, resident veteran would be eligible for the tuition exemption.

We believe a court would conclude that the legislature intended the limitation at issue here
to be severable from the remainder of the subsection, and the court accordingly would invalidate
only the offending fixed-point residence requirement. The remainder of section 54.203(a) would be
left intact, and the court thus would extend the tuition exemption to every honorably discharged
veteran who satisfies the statutory durational residence requirement.” In the 1959 legislation that

“The legislature added the fixed-point residence requirement to Education Code section 54.203(a)'s statutory
predecessor in 1959. See Act of July 15, 1959, 56th Leg., 2d CS., ch. 12, § 2, 1959 Tex. Gen. Laws 99, 100-01.
Although we were unable to locate any legislative history specifying the purpose for the fixed-point residence
requirement, we deduce that the legislature was motivated by a desire to save the state money. But see infra note 48
(recounting Representatives Willis’ and Raymond's testimony to the House Committee on Higher Education, 74th
Legislature).

“See Del Monte, 824 P.2d at 640. Additionally, in response to your claim that striking only the fixed-point
residence requirement, as opposed to section 54.203(a) in its entirety, will cost the state too much money, we note
Representative Doyle Willis’ 1995 response to a comment that the veterans’ tuition-exemption statutes cost institutions
of higher education over $9.5 million in tuition waivers: “[The veterans in this State] are all... good men. . . . Anything
we can do for them isn’t too much.” Hearings on S.B. 114 Before the House Comm. on Higher Educ., 74th Leg., RS.
(Feb. 14, 1995) (testimony of Representative Willis) (tape available from House Video/Audio Services Office).
Representative Raymond responded similarly: “[It is] a small price to pay for . . . the service that these . . . citizens of
our state have given to keep this country free.” Id. (statement of Representative Raymond). A witness testifying in 1995
further pointed out that the statutes do not exempt veterans from paying fees such as student services fees and locker
fees, and so, according to the witness, veterans actually are a source of revenue to the institutions of higher education.
See Hearings on S.B. 114 Before the House Comm. on Higher Educ., 74th Leg., R.S. (Mar. 28, 1995) (testimony of Bill
McLemore, representing Texas Coalition of Veterans’ Organizations) (tape available from House Video/Audio Services
Office).

“We recognize the common-law doctrine that would void section 54.203(a) in its entirety because striking only
the fixed-point residence requirement causes the statute to have a broader scope than the legislature intended. See
Anderson v. Wood, 152 S.W.2d 1084, 1087 (Tex. 1941) (and sources cited therein). But we believe that the severability
clause in the 1959 legislation that enacted the fixed-point residence requirement prevails over the common-law doctrine.
See Act of July 15, 1959, 56th Leg., 24 C.S., ch. 12, § 4, 1959 Tex. Gen. Laws 99, 101.

inserted the fixed-point residence requirement into the statutory predecessor to Education Code
section 54.203(a), the legislature included a severability clause:

If any . . . part of this Act is held to be unconstitutional . . . , such decision
shall not affect the remaining portions of this Act. The Legislature hereby
declares that it would have passed this Act and each . . . part thereof despite
the fact that one or more . . . parts . . . be declared unconstitutional . . . .⁵¹

Indeed, we believe this conclusion is absolutely consistent with the legislature’s purposes in
creating the tuition exemption. Prior to 1959, the statutory predecessor to section 54.203(a) sought
to compensate all honorably discharged veterans who were citizens of Texas for their service to the
nation and for the disruption service in the military caused. For example, when the legislature first
adopted the tuition exemption in 1923, it expressed its wish to benefit honorably discharged, resident
veterans who “served the Nation” in World War I and who must avail themselves of getting a college
education “without long delays." In 1943 the legislature included honorably discharged, resident
World War I veterans,® citing the supreme sacrifices these service men and women had made and

The fact that there are a great many of the members of the United States
Armed Forces who have already been killed in action and a great many who
have been discharged from active service because of injuries received in
action, or who have been discharged because of sickness or illness while in
active service and now desire to attend state educational institutions of higher
learning and continue in the educational pursuits in which they were engaged
at the time of entering into active service, and the further fact that [tuition
exemptions presently are not provided them necessitates this amendment.]⁵⁴

Similarly, in 1953 the legislature included all honorably discharged, resident Korean war veterans™
because “a great many persons who have served in the [Korean War] have been discharged from

*See Act of July 15, 1959, 56th Leg., 2d C.S., ch. 12, § 2, 1959 Tex. Gen. Laws 99, 100-01.

Id. § 4, 1959 Tex. Gen. Laws 99, 101.

"See Act approved Mar. 28, 1923, 38th Leg., R.S., ch. 147, §§ 1, 3, 1923 Tex. Gen. Laws 316, 316-17.
*See Act of Apr. 29, 1943, 48th Leg., RS., ch. 337, § 1, 1943 Tex. Gen. Laws 568, 568-69.

Id. § 2, 1943 Tex. Gen. Laws 568, 569.

See Act of Mar. 24, 1953, 53d Leg., RS., ch. 55, § 1, 1953 Tex. Gen. Laws 75, 75-76.

such service and now desire to . . . continue in the educational pursuits in which they were engaged
at the time of entering into active service . . . .”

You next question whether our conclusion, that a court would find that section 54.203(a)
unconstitutionally excludes from the tuition exemption honorably discharged, resident veterans who
were not Texas citizens at the time they entered the service, applies prospectively only or
retrospectively as well as prospectively. Ultimately, we are unable to resolve this question. We
believe, however, that a court would resolve the question by applying the test the Texas Supreme
Court articulated in Wessely Energy Corp. v. Jennings:"

To determine whether, and to what extent, a judicially modified rule will
apply retroactively, a court should determine (1) whether the holding decided
an issue of first impression not clearly foreshadowed by prior decisions; (2)
whether retroactive operation will further or retard the holding in question;
and (3) whether a retroactive application could produce substantial
inequitable results.*

Under this test, judicial modifications to a statute may apply prospectively only or retrospectively
as well as prospectively; furthermore, the judicial modifications may apply retrospectively to the
extent the court deems retrospective application just. Here, for example, a court may determine that
section 54.203(a), modified to delete the fixed-point residence requirement, should apply
retrospectively to 1959, the date the fixed-point residence requirement was adopted; to 1985, the
year of the Hooper decision; to 1986, the year of the Soto-Lopez decision; or to some other date.
Weighing the justice of a particular date of retrospective application is the province of a court, not
this office. Moreover, each of the three prongs of the Wessely test involves the consideration of fact
questions, which this office is not equipped to resolve.”

Because we cannot determine whether a conclusion that section 54.203(a) is unconstitutional
will be applied retrospectively, we cannot determine whether an honorably discharged veteran who
meets section 54.203(a)’s durational residence requirement is entitled to a refund of tuition he paid
under protest. We therefore are unable to answer your last question.

Id. § 3, 1953 Tex. Gen. Laws 75, 76.
57736 S.W.2d 624, 628 (Tex. 1987).
Id. (citing Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983), cert. denied, 464 U.S. 894 (1983). A federal

court would apply a similar three-part test to determine whether the conclusion that Education Code section 54.203(a)
should apply prospectively or retrospectively. See Chevron Oil Co. v. Huson, 404 U.S. 97, 105-08 (1971).

See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940)
at 2.

“But see Wessely, 736 S.W.2d at 628 (quoting Stovall v. Denno, 388 U.S. 293, 301 (1967)) (noting that party
(continued...)

SUMMARY

A court examining Education Code section 54.203(a), which exempts
from the payment of tuition all honorably discharged, resident veterans who
were Texas citizens at the time they enlisted, probably would find that the
statute unconstitutionally discriminates against honorably discharged,
resident veterans who did not reside in Texas when they entered the service.
To remedy the unconstitutionality, the court probably would strike only the
fixed-point residence requirement, thereby extending tuition exemption to all
honorably discharged, resident veterans.

A court probably would evaluate the extent to which section 54.203(a),
judicially modified to delete the unconstitutional fixed-point residence
requirement, should be applied retrospectively using a three-part test. First,
the court would examine whether the holding decided an issue of first
impression not clearly foreshadowed by prior decisions. Second, the court
would consider whether retrospective operation will further or retard the
holding in question. Third, the court would determine whether a
retrospective application could produce substantial inequitable results. A
court would decide whether an honorably discharged veteran who meets
section 54.203(a)’s durational residence requirement is entitled to a refund
of tuition paid under protest after the court had established the extent to
which the judicial modification of section 54.203(a) would apply

retrospectively.

Yours very truly,
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

⁶⁰(...continued)
who establishes new constitutional precept should benefit from decision); Attorney General Opinion O-6833 (1945) at
5 (stating that veterans are entitled to refund for tuition wrongly paid).