Senator Eliot Shapleigh - El Paso, Texas

In a complex opinion letter nearly a year in the making, Texas Attorney General Greg Abbott wrote that he could not predict whether a court would uphold the law.

Texas in 2001 was the first state to adopt a law allowing undocumented immigrants to pay less expensive in-state tuition at public universities.

Students can pay the lower rate if they graduated from high school or received a GED in Texas, have lived in the state for three years, and sign an affidavit verifying they are seeking legal residency.

Critics say that the law is one more benefit that encourages illegal immigration and that it is unfair to citizens from other states, who must pay higher tuition rates.

Proponents argue that the law protects the investment Texas has already made in educating the children of undocumented immigrants and it allows them to contribute to the economy.

State Rep. Leo Berman, R-Tyler, asked for Abbott's opinion on the law last year after a court in California ruled that a similar law in that state violated the 1996 Immigration Act, which prohibits affording non-citizen students a benefit for which U.S. citizen students are ineligible. That ruling is on appeal.

"There are millions of people in Texas, millions, who want something done about illegal aliens," Berman said.

Initially, Berman, who is not a lawyer, said he did not understand the opinion. He said Abbott told him in a phone conversation Friday that the opinion meant, "if Texas courts follow the law, in-state tuition for illegal aliens is not allowed in Texas."

He said illegal-immigration opponents are trying to find a Texas student who will sue the state to challenge the law.

Mexican American Legal Defense and Educational Fund attorney David Hinojosa said Abbott's opinion did not make a judgment on whether the in-state tuition law violates federal statutes. Abbott took no stance because courts with jurisdiction in Texas have not ruled on the issue, Hinojosa said.

"I don't know how the AG could possibly read the minds of judges in courts," Hinojosa said.

AG spokesman Charles Castillo declined to provide lawyers to explain the opinion and referred reporters to the document itself. The opinion states that because courts have not ruled on whether the state and federal laws conflict, the AG cannot predict whether a court would find such a conflict.

Further, the opinion states that the Texas law would not likely violate equal protection requirements in the Constitution.

Despite their differing interpretations, Hinojosa and Berman agreed that the opinion would not affect students in Texas unless a court made a decision on the law.

Brandi Grissom may be reached at bgrissom@elpasotimes.com;512-479-6606.