Is the Hazlewood Act's requirement that a veteran entered service in Texas constitutional?

Plain-English summary

State Senator Jane Nelson, who chaired the Senate Finance Committee, asked the Attorney General whether part of the Hazlewood Act is constitutional. The Hazlewood Act, section 54.341 of the Education Code, requires Texas public colleges and universities to waive tuition and certain fees for qualifying veterans. To qualify, the veteran has to meet a residency condition, and the piece the senator asked about is the requirement that the veteran "entered the service" in Texas. Lawyers call that a "fixed-point residency requirement," because it looks at where the person lived at one fixed point, the moment of entering the military.

There was a live dispute about whether that requirement is legal. Back in 1998, a prior Attorney General opinion (DM-468) had concluded a court would find the requirement unconstitutional. And in January 2015, a federal district court in Harris v. Cantu held that the requirement was not rationally related to any legitimate state interest and so violated the Equal Protection Clause. That case was on appeal to the United States Court of Appeals for the Fifth Circuit when this opinion issued, so the question was not finally settled.

The AG agreed on the legal test, that the requirement must rationally further a legitimate state purpose to survive rational-basis review, but disagreed on the result. It distinguished the U.S. Supreme Court cases the earlier opinion and the district court had relied on (Soto-Lopez, Hooper, and Zobel), pointing out that each involved a residency requirement that simply rewarded past conduct, like prior residence, without encouraging anything going forward. The Hazlewood benefit, the AG argued, is different: it creates an ongoing incentive for current Texas high school students to graduate and enlist, and it channels limited education funds toward veterans most likely to have strong Texas ties and to stay in Texas, increasing the chance the state recoups the economic value of its investment. On that reasoning, the AG concluded the fixed-point residency requirement rationally furthers legitimate state purposes, should withstand rational-basis review, and should be held constitutional under the Equal Protection Clause.

The AG was candid that this was its view of how the case should come out, not a settled answer. It noted the State would get to make its full argument to the Fifth Circuit, and cautioned that until the appellate courts (or the U.S. Supreme Court) resolved the issue, the status of the law on the Hazlewood Act's residency requirement was in flux.

Currency note

This opinion was issued in 2015, while the constitutionality of the Hazlewood Act's fixed-point residency requirement was being actively litigated in federal court (Harris v. Cantu), and the opinion itself described the law as in flux. The courts and the Legislature may have resolved or changed the requirement since then. Treat this page as historical context, not current legal advice, and check the current status of the Hazlewood Act and any court rulings before relying on anything here.

What the opinion meant for those who asked

Veterans seeking the Hazlewood exemption (as the opinion described it): The opinion described the Hazlewood Act as waiving tuition and fees for qualifying veterans, and described the AG's position that the requirement of having entered service in Texas should be upheld as constitutional, while noting the issue was unresolved in the courts.

Colleges and universities administering the benefit (as the opinion described it): The opinion described the fixed-point residency requirement as, in the AG's view, a rational way to direct limited education funds toward veterans with strong Texas ties. It noted that a prior 1998 opinion reaching the opposite conclusion had gone unheeded by the entities administering the Act.

The State and its litigators (as the opinion described it): The opinion described the State as able to articulate, on appeal to the Fifth Circuit, the reasons the requirement rationally furthers legitimate state purposes, and framed those purposes as encouraging enlistment by current residents and maximizing the return on the State's education spending.

Anyone tracking the legal status (as the opinion described it): The opinion expressly cautioned that the law on the Hazlewood Act's residency requirement was in flux, pending the Fifth Circuit appeal in Harris v. Cantu and any later U.S. Supreme Court resolution. It did not claim to predict the outcome with certainty.

Common questions

What is the Hazlewood Act?
The opinion described it as section 54.341 of the Education Code, which requires Texas public colleges and universities to exempt qualifying veterans from tuition and certain fees.

What is the "fixed-point residency requirement"?
The AG used that phrase for the rule that the veteran must have entered military service in Texas to qualify. It looks at the veteran's residency at the single fixed point of entering the service.

Did the AG say the requirement is constitutional?
The AG said it believed the requirement rationally furthers a legitimate state interest, should withstand rational-basis review, and should be held constitutional. It also stressed that the courts had not finally resolved the question and the law was in flux.

Didn't a court strike it down?
A federal district court in Harris v. Cantu held in January 2015 that the requirement violated the Equal Protection Clause, and a 1998 AG opinion had reached a similar conclusion. The AG disagreed with both. That case was on appeal to the Fifth Circuit when this opinion issued.

Why did the AG think this case was different from the Supreme Court residency cases?
The AG argued the U.S. Supreme Court cases (Soto-Lopez, Hooper, and Zobel) involved residency requirements that only rewarded past conduct, while the Hazlewood benefit creates a forward-looking incentive to enlist and keeps education funds with veterans likely to stay in Texas.

Background and statutory framework

The Hazlewood Act, section 54.341 of the Education Code, requires the governing boards of institutions of higher education to exempt certain U.S. Armed Forces veterans from tuition and fees, provided the veteran currently resides in Texas and entered the service in Texas, declared Texas as a home of record, or would have been a Texas resident at the time of entering the service (Tex. Educ. Code Ann. § 54.341(a)). The opinion addressed only the "entered the service in Texas" condition. The Act extends the exemption to those who serve during the national emergency that began with the September 11, 2001 attacks or any future declared national emergency (Tex. Educ. Code Ann. § 54.341(a)(4)(F-G)).

The constitutionality of the fixed-point residency requirement was contested. A 1998 opinion (DM-468) had concluded a court would find the classification unconstitutional, and in January 2015 a federal district court held the requirement was not rationally related to any legitimate state interest under the Equal Protection Clause, relying in part on DM-468 (Harris v. Cantu, No. H-14-1312, 2015 WL 338938, at *6 (S.D. Tex. Jan. 26, 2015)). That decision was on appeal to the Fifth Circuit (Harris v. Cantu, No. 15-20105 (5th Cir. filed Feb. 23, 2015)). The AG noted that earlier opinions had declined to reach definitive conclusions where rational-basis scrutiny applied (Tex. Att'y Gen. Op. Nos. DM-468 (1998), GA-0670 (2008), MW-421 (1982)).

Applying rational-basis review, the AG distinguished the three U.S. Supreme Court decisions the earlier analyses relied on, each of which involved a residency requirement that rewarded only past conduct: a New York civil-service preference for veterans who lived there when they entered service (Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986)), a New Mexico tax exemption for Vietnam veterans resident before a fixed date (Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985)), and an Alaska dividend scaled to years of prior residency (Zobel v. Williams, 457 U.S. 55 (1982)). The AG argued the Hazlewood benefit instead creates a forward-looking incentive for current Texas students to enlist and directs limited funds to veterans most likely to remain in Texas, so the requirement rationally furthers legitimate state purposes and the analysis in those cases is not controlling. The AG concluded the requirement should withstand rational-basis review and be held constitutional, while cautioning the law was in flux pending the Fifth Circuit appeal and any U.S. Supreme Court resolution.

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 54.341(a) (Hazlewood Act tuition and fee exemption; residency conditions)
• Tex. Educ. Code Ann. § 54.341(a)(4)(F-G) (service during the post-September 11, 2001 or future national emergency)

Cases:

• Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986) (U.S. Supreme Court)
• Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985) (U.S. Supreme Court)
• Zobel v. Williams, 457 U.S. 55 (1982) (U.S. Supreme Court)
• Harris v. Cantu, No. H-14-1312, 2015 WL 338938 (S.D. Tex. Jan. 26, 2015) (federal district court)
• Harris v. Cantu, No. 15-20105 (5th Cir. filed Feb. 23, 2015) (federal court of appeals)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. DM-468 (1998), GA-0670 (2008), MW-421 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0015
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0015.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 29, 2015

The Honorable Jane Nelson Opinion No. KP-0015
Chair, Committee on Finance
Texas State Senate Re: Constitutionality of section 54.341 of the
Post Office Box 12068 Education Code, the Hazlewood Act
Austin, Texas 78711-2068 (RQ-0009-KP)

Dear Senator Nelson:

You ask for an opinion addressing the constitutionality of section 54.341 of the Education Code, commonly referred to as the Hazlewood Act. [1] Section 54.341 requires the governing boards of institutions of higher education to exempt certain veterans of the United States Armed Forces from paying tuition and fees,

provided the person seeking the exemption currently resides in this state and entered the service at a location in this state, declared this state as the person's home of record in the manner provided by the applicable military or other service, or would have been determined to be a resident of this state for purposes of Subchapter B at the time the person entered the service.

TEX. EDUC. CODE ANN. § 54.341(a) (West Supp. 2014). You ask specifically about the requirement that veterans receiving the exemption have "entered the service in Texas," and we limit this opinion to addressing that so-called "fixed-point residency requirement." Request Letter at 1.

As you note, a prior opinion by former Attorney General Dan Morales addressed "whether a court would find that the state has a legitimate interest in" distinguishing between veterans who resided in Texas at the time they entered service and those who did not. Tex. Att'y Gen. Op. No. DM-468 (1998) at 8. Opinion DM-468, which was issued 17 years ago and has since gone unheeded by the state entities administering the Hazlewood Act, reached a conclusion without the benefit of an adversarial process to fully explore what legitimate state interests the fixed-point residency requirement of the Hazlewood Act serves. See id.; cf. Tex. Att'y Gen. Op. Nos. GA-0670 (2008) at 5 (declining to reach a definitive legal conclusion when rational-basis scrutiny was required), MW-421 (1982) at 2-3 (same). Dismissing all of the proffered state interests without discussion or analysis, DM-468 opined that "a court would conclude that the statutory classification is unconstitutional." Tex. Att'y Gen. Op. No. DM-468 (1998) at 1, 8.

As you are likely also aware, in January a federal district court addressed the constitutionality of the fixed-point residency requirement and determined that in order for it to be constitutional under the Equal Protection Clause, it must withstand rational basis review, meaning it "must rationally further a legitimate state purpose." Harris v. Cantu, No. H-14-1312, 2015 WL 338938, at 6 (S.D. Tex. Jan. 26, 2015). Relying in part on DM-468, the court concluded that the fixed-point residency requirement was not "rationally related to any legitimate state interest." Id. at 8. Harris v. Cantu currently is on appeal before the United States Court of Appeals for the Fifth Circuit. Harris v. Cantu, No. 15-20105 (5th Cir. filed Feb. 23, 2015). The question you raise is therefore not finally resolved by the courts.

While we agree with both DM-468 and the federal district court that the classification created by the Hazlewood Act must rationally further a legitimate state purpose, we disagree with the conclusion that the fixed-point residency requirement is not doing so. In concluding that the fixed-point residency requirement cannot withstand rational basis review, DM-468 and the federal district court relied on previous United States Supreme Court opinions that addressed challenges under the Equal Protection Clause to other statutes with residency requirements. See Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986); Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985); Zobel v. Williams, 457 U.S. 55 (1982). The residency requirements and underlying statutes addressed in those three opinions, however, are distinguishable from the requirement at issue here. Soto-Lopez addressed a New York statute that gave preferences in civil service employment opportunities to veterans who lived in the state at the time they entered military service. Soto-Lopez, 476 U.S. at 899. Hooper involved a New Mexico tax exemption given to Vietnam veterans who resided in the state prior to May 8, 1976. Hooper, 472 U.S. at 616-17. Zobel addressed an Alaska law that gave an annual oil-income dividend to the state's residents, the amount of which was determined by the number of years a given individual had resided in the state. Zobel, 457 U.S. at 57.

Not one of these cases addressed a fixed-point residency requirement in the context of providing an education benefit like that conveyed through the Hazlewood Act. Furthermore, in each of these cases, the statutes addressed rewarded prior conduct and did not serve a state interest by creating incentives for future conduct. See Soto-Lopez, 476 U.S. at 913 (Burger C.J., concurring) ("the preference is granted only retrospectively following definitive action by the legislature"); Hooper, 472 U.S. at 619 ("The legislature set this eligibility date long after the triggering event occurred ... and cannot plausibly encourage veterans to move to the State by passing such retroactive legislation."); Zobel, 457 U.S. at 62 ("Assuming, arguendo, that granting increased dividend benefits for each year of continued Alaska residence might" create an incentive to remain in the state, "the State's interest is not in any way served by granting greater dividends to persons for their residency during the 21 years prior to the enactment.").

Conversely, the benefit provided through the Hazlewood Act creates an ongoing incentive for current Texas high school students to graduate and enlist in the armed services. TEX. EDUC. CODE ANN. § 54.341(a)(4)(F-G) (West Supp. 2014) (offering the exemption to individuals who serve in active duty during "the national emergency by reason of certain terrorist attacks that began on September 11, 2001" or "any future national emergency declared in accordance with federal law"). The vast opportunities and skills acquired through military service benefit both the individual veterans and the states in which they return to live and work after their service. Texas therefore has an interest in encouraging enlistment by its current residents, who are those most likely to return to the state as veterans.

In addition, with finite resources available for education benefits like those provided through the Hazlewood Act, the State has an interest in allocating those resources in a manner that achieves the highest return possible. By limiting the financial benefit to only those individuals who resided in Texas at the time they entered the service, the State is providing the benefit to those veterans who are most likely to have strong ties to Texas and to remain in Texas after graduation. In doing so, Texas thereby increases the likelihood that it will receive the economic benefit from its investment of funds, which it would be less able to do if the benefit was provided to all veterans. Thus, the Legislature is rationally furthering legitimate state purposes by providing the Hazlewood benefit to only those individuals who resided in Texas at the time they entered the service. The underlying interests served by the fixed-point residency requirement in the Hazlewood Act differ from those addressed in Soto-Lopez, Hooper, and Zobel, such that the analysis in those cases should not be considered controlling here.

On appeal to the Fifth Circuit, the State will have the opportunity to articulate all reasons why using the fixed-point residency requirement rationally furthers legitimate state purposes, and the court will provide further clarification on this area of law. Until it does, or until the United States Supreme Court finally resolves this issue, we must caution you that the status of the law regarding the Hazlewood Act's fixed-point residency requirement is in flux. While we cannot predict with certainty how the federal courts will ultimately resolve this issue, we believe that the Hazlewood Act's provision of benefits to only those individuals who resided in Texas at the time they entered the service rationally furthers a legitimate state interest, should withstand rational basis review, and should therefore be held constitutional under the Equal Protection Clause of the Constitution.

SUMMARY

While we cannot predict with certainty how the federal courts will ultimately resolve this issue, we believe that the Hazlewood Act's provision of benefits to only those individuals who resided in Texas at the time they entered the service rationally furthers a legitimate state interest, should withstand rational basis review, and should therefore be held constitutional under the Equal Protection Clause of the United States Constitution.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Assistant Attorney General

[1] See Letter from Honorable Jane Nelson, Chair, Senate Comm. on Finance, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 10, 2015), https://www.texasattorneygeneral.gov/opinion/request-for-opinion-rqs ("Request Letter").