| The Austin-American Statesman reported late yesterday that the Texas Higher Education Coordinating Board (THECB) modified its rules for in-state tuition eligibility for undocumented immigrants. According to the THECB, since 2001, non-U.S. citizens who did not claim legal residency status for federal purposes, but who could otherwise claim Texas residency pursuant to the Texas Education Code for the purpose of obtaining in-state tuition at the post-secondary (college) level, were entitled to in-state tuition at Texas public colleges. There was a requirement of living continuously in Texas with a parent or guardian for 36 months up to high school graduation. These students were also required to sign an affidavit indicating an intent to apply for permanent resident status. For reasons not germane to this discussion, the law was modified slightly in 2005. The law in its current state is Texas Education Code § 54.052,entitled Determination of Resident Status.
The legality of this provision was questioned in 2009. The office of Texas Attorney General Greg Abbott provided guidance on this matter. They concluded that no precedent that would be binding in Texas had yet found this statute to violate federal law, specifically Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. § 1623, and that the Attorney General's office could not predict with certainty that any court would. As a result, the rule still stands in Texas. Undocumented immigrants may qualify for in-state tuition rates at Texas public colleges and universities. The full text of the Attorney General's opinion may be read here.
The modification reported yesterday by the Statesman and other outlets now requires those colleges and universities to provide to students who are undocumented immigrants, annual reminders (as well as at graduation) that they earlier pledged to seek legal status. They must also refer these students to the federal government to inquire how to accomplish this end. The problem that has been cited is that these students may follow these admonitions, proceed imprudently, and risk deportation.
The text of the THECB's guidance on the background legislation may be read here.
The text of the relevant provision of the Texas Education Code is below:
§ 54.052. Determination of Resident Status
(a) Subject to the other applicable provisions of this subchapter governing the determination of resident status, the following persons are considered residents of this state for purposes of this title:
(1) a person who:
(A) established a domicile in this state 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
(B) maintained that domicile continuously for the year preceding that census date;
(2) a dependent whose parent:
(A) established a domicile in this state not later than one year before the census date of the academic term in which the dependent is enrolled in an institution of higher education; and
(B) maintained that domicile continuously for the year preceding that census date; and
(3) a person who:
(A) graduated from a public or private high school in this state or received the equivalent of a high school diploma in this state; and
(B) maintained a residence continuously in this state for:
(i) the three years preceding the date of graduation or receipt of the diploma equivalent, as applicable; and
(ii) the year preceding the census date of the academic term in which the person is enrolled in an institution of higher education.
(b) For purposes of this section, the domicile of a dependent's parent is presumed to be the domicile of the dependent unless the person establishes eligibility for resident status under Subsection (a)(3).
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