1. DETERMINATION OF RESIDENCE STATUS FOR TUITION PURPOSES
Priscilla Lozano
Office of General Counsel
Presented with
Budge Mabry
Texas Medical &Dental Schools Application Service
Deana Williams
UT Austin Graduate & International Admissions
October 5, 2005(Modified Jan. 2006)
* Texas Education Code
** Texas Higher Education Coordinating Board Rules and Regulations Determining Residence Status

2. Developments in the Law
SB 1528, 79th Legislative Session
Fall, 2006 – new law applies (SB 1528, Section 12(b)
January 1, THECB required to adopt rules
Texas Higher Education Coordinating Board Rules and Regulations
October, posted for comment
October 27, 2005 – proposed for CB adoption
Based on the new Legislation, Coordinating Board staff has proposed new rules and regulations. In the rule development they solicited input from Residency Advisory Committee. The Rules are posted on the CB website for review and comment. They will be presented to the CB for adoption on October 27th.

3. Highlights of New Law
Major redrafting of the General Rules, although basis for claim of residency remain:
Self: Non-dependant person is domiciliary of Texas
Parent: Dependant’s Parent is domiciliary of Texas
High School Graduation: HB 1403(modified)

4. Highlights of New Law (cont.)
Texas residency eligibility still requires domicile and 12 months physical presence; however, establishment of a domicile is presumed if certain steps have been taken
Documentation
Documentation to establish residency is specifically limited by THECB rules
Core Residency Questions only

5. Highlights of New Law (cont.)
Continuing Resident Status
Once classified as a resident, status follows to other Texas institutions unless break in enrollment
Non-resident presumption removed from reclassification rules

6. Key Definitions
“Domicile” – a person’s principal, permanent residence to which the person intends to return after any temporary absence. § (3)*
vs.
“Residence” – a person’s home or other dwelling place. § (6)*
Discussion of “intent”. Issues of determining intent.

7. Key Definitions (cont.)
“Establishment of a domicile” – a person has established a domicile in Texas if he/she has met the conditions shown in (d). §21.728(7)**
“Maintenance of a residence” – to physically reside in a location unless temporarily absence in accordance with definition 24. §21.728(13)**

8. Key Definitions (cont.)
“Temporary absence” – absence from the State of Texas with the intention to return, generally for a period of less than five years. §21.728(24)**
“Parent” - a natural or adoptive parent, managing or possessory conservator, or legal guardian of a person. § (5)*

9. Key Definitions (cont.)
“Dependant” - a person who:
is less than 18 years of age and has not been emancipated by marriage or court order; or
as provided by coordinating board rule, is eligible to be claimed as a dependent of a parent of the person for purposes of determining the parent's income tax liability under the Internal Revenue Code of § (2)*

10. Basis For Claim Of Resident Status - §54.052*
Dependent’s parent domiciled in Texas (§54.052a(2))*
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
maintained that domicile continuously for the year preceding that census date

11. Basis For Claim Of Resident Status - §54.052*(cont.)
Non-dependant person is domiciled in Texas (§54.052a(1))*
established a domicile in this state not later than one year before the census date of the academic term in which enrolled in an institution of higher education; and
maintained that domicile continuously for the year preceding that census date

12. Domicile Presumed to be Established in Texas §21. 730(d).**
Gainful employment
Ownership of real property
Ownership of business
Marriage to domiciliary of Texas

13. Basis For Claim Of Resident Status - §54.052* (cont.)
HB 1403 (modified)
(§54.052a(3))
graduated from a public or private high school in this state or received the equivalent of a high school diploma in this state; and
maintained a residence continuously in this state for
the three years preceding the date of graduation or receipt of the diploma equivalent, as applicable; and
the year preceding the census date of the academic term in which the person is enrolled in an institution of higher education.
§54.053(3)(B)
HB 1403
(j) Notwithstanding any other provision of this subchapter, an individual shall be classified as a Texas resident until the individual establishes a residence outside this state if the individual resided with the individual's parent, guardian, or conservator while attending a public or private high school in this state and:
graduated from a public or private high school or received the equivalent of a high school diploma in this state;
resided in this state for at least three years as of the date the person graduated from high school or received the equivalent of a high school diploma;
registers as an entering student in an institution of higher education not earlier than the 2001 fall semester; and
provides to the institution an affidavit stating that the individual will file an application to become a permanent resident at the earliest opportunity the individual is eligible to do so.
Does this encompass a larger group?
What about home schoolers?
Affidavit is still required in documentation provisions of the statute

14. Documentation
Required statement of the dates and length of time of residence and that the purpose of residence was to establish a domicile. §54.053*
Required affidavit if the person is not a citizen or permanent resident and seeks residency under §54.052(a)(3)*
An institution of higher education may not require a person to provide evidence of resident status that is not required by coordinating board rule. §54.075(b)*

15. Documentation (cont.) Core Residency Questions §21.731(a)**
Documentation to support core questions (as indicated in Chart IV) may be requested §21.731(b).**
Affidavit of non-US citizen non-Permanent Resident who establishes claim under §21.730(a)(1)** (amended HB 1406 provision). §21.730(c)**

16. Continuing Residence Status -§54.054*
Once classified Texas resident always Texas resident, regardless of whether the student changes institutions, unless:
the person does not enroll for two (2) or more consecutive regular semesters, §54.054(c)*;
the person is reclassified based on additional or changed information;
the person is erroneously classified

17. Reclassification
A person classified as a non-resident may request reconsideration and reclassification §54.055*
A person is required to provide the institution with any additional or changed information which may affect his or her current resident status §54.055*(21.733(b)**)

18. Errors In Classification
Erroneously classified as resident because of omission or falsification §54.057*:
person failed to provide information that reasonable person would know is relevant to an accurate classification by the institution
person falsified information

19. Errors In Classification (cont.)
Consequence of erroneously classification because of omission or falsification
Student may be required to pay difference for each semester
Payment due not later than the 30th day after notification
Student not entitled to diploma or certificate (if applicable) or official transcript that includes credit while erroneously classified until paid in full

20. Errors In Classification (cont.)
Required notice by institution when omission/falsification
1st day of following semester provide notification that difference between resident and nonresident tuition must be paid
Consequence if not omission or falsification
Classified as non-resident next semester
If erroneous non-resident classification
Institution shall refund out of state portion of tuition for each semester

21. Sample Case #1 Dependent Classification
father domiciliary of Texas; mother is not
student lives with mother
father claims as dependent on federal income tax return
Classification
Resident

22. Sample Case #2 Dependent Classification
father domiciliary of Texas; mother is not
student lives with mother
father is eligible to claim (providing at least 50% of support) but mother has right to claim under divorce decree
Classification
Resident
Discussion - eligibility to claim vs. actually claiming
Review of Core Questions

23. Sample Case #3 Graduate of Texas High School Classification Discussion
maintained a residence in Texas for the 3 years preceding graduation
lived in Texas for year preceding census date
lived with grandmother
Classification
Resident
Discussion
no longer required to live with parent or legal guardian

24. Sample Case #4 Graduate of Texas High School Classification Discussion
maintained a residence in Texas for the 3 years preceding graduation
lived in Texas for year preceding census date
in Texas on an F-1 visa
Classification
Resident
Discussion
Visa status is irrelevant for residency determination (for §54.052(a)(3)* portion of statue only.
Affidavit
change scenario - student returned country of origin yr preceding census date. Change in classification?? Would not be eligible because did not reside in Tx 1 year before census date.

25. Sample Case #5 Non-dependant foreign national Classification
Visa allows domicile
owns property in Texas - purchased 5 years ago
lived in Texas for year preceding census date
Classification
Resident

26. Sample Case #5(cont.) Discussion
Eligible to establish a domicile (see: CB Chart 1)
Presumed to have established a domicile
During the last 12 months has owned property
Has maintained physical residence during 12 months preceding enrollment

27. Sample Case #6 Discussion Non-dependant foreign national
Applied for visa permitting permanent residency 1 year prior to enrollment
lived in Texas for year preceding census date
Classification
Resident
Discussion
Must verify that individual has applied for adjustment of status to PR (I-485). A fee filing receipt or notice of action is required.

28. Sample Case #7 Non-dependant Born in Texas Graduated from high school
Moved out of state 2 years prior to census date
Worked in Texas for year prior to move

29. Sample Case #7(cont.) Discussion Classification
Presumed to have established a domicile
At least 12 months prior was gainfully employed for a year
Has not maintained physical residence during 12 months preceding enrollment
Classification
Non-resident unless demonstrate that absence was temporary

30. Sample Case #8 Non-dependant Born in Texas Graduated from high school
Moved out of state 2 years prior to census date
Owns property in Texas
Explains that Texas is principal, permanent residence to which he/she plans to return

31. Sample Case #8(cont.) Discussion Classification
Presumed to have established a domicile
During the last 12 months has owned property
Has not maintained physical residence during 12 months preceding enrollment
Temporarily absent from Texas
Classification
Resident

32. Sample Case #9 Married Classification Discussion
Married Texas resident 6 months before census date
Lived in Texas for year preceding census date
Had no basis for claiming residency other than marriage (i.e. no employment, does not own ppty)
Classification
Non-Resident
Discussion
Did not establish a domicile 12 months before census date because was not married full 12 months prior to census date.

33. Sample Case #10 Dependant Classification Discussion
Parent military legal residence (DD 2058) is not Texas
Parent stationed in Texas
Classification
Non-Resident
Discussion
Military Waiver eligible

34. Sample Case #11 Classified as non-resident
Enrolls and attends year one
12 months prior to next year’s census date establishes domicile (see (d)**)
Applies for reclassification
Produces requested documentation
Proof from Chart IV**
Classification
Resident
Discussion
Presumption of non-resident status continuing while enrolled removed from rules

35. Appeals Discussion of appeals processes at institutions
CB appeal for members of same family eliminated

36. Resident Rate for Non-residents
Technology/Science development and discovery agreements, ie. Sandia §65.45
Person employed by the entity with whom UT enters an agreement for funding the discovery, development, and commercialization of new products, technology, and scientific information, including an agreement to manage a national laboratory engaged in any of those endeavors, or the person’s spouse or child, may pay resident tuition and fees in UT System institutions.
Effective September 1, 2005

37. Residence Determination Official §21.736**
Each institution required to designate an employee
Employee must attend one CB training regarding Residency Rules each fiscal year