Untitled Texas Attorney General Opinion ( 1952 )

Hone Gibb Gllchrist Opinion No. V-1540
Chancellor
Texas A, & Mu!College Re; Applicabilityof Article
System 2654b-1 to exemption from
College Station, Texas tultlon of certain veterans
who served insthe Armed
Forces subsequentto Juiy
Dear sir: 25,,19’+7&
We refer to,your 7.%qug%~t
far tulo.pinionaf
th;a Off$3w rpame;m~+ when wrwau wsu:,xXnytyhe ocmp
2
ar~erea lega~$&jftxm~fiateufw gwpuosea a$ Seotidn 3 of
hrtjole 2654b-1.h VH%W?% CL%%% Statute@, the Ye$sran
oalleqe+e twmp``%sh stWut;*z:
You state that the 8&h Oongress in Public.
Further, you advise that fb&lowing?:fhg enact-
ment of FUbl1c,I&w 23q,,,thefour colleges in the Texas
A,.& MI:College System have exempted from tuition only
those veterans who entered ,thearmed service prior ‘to
July E5$ 1947, the effective date of that 9awi and’who
were .okherwlseel,lglblej A+.& M. College has decently
reoe,,Wedm~%r;es from a young ex;servicemanwho
entlasW$the aa%@d servloes subeequent~ to J&y ‘25,3,F)47i
r&qawWrig ~a r@und of the fees he pahlg, !&Cb3 lyi3
#tab3
ent?olWd at A, & $L Collega “from September 1950 .to
FeljruargX952 lncludfng the summer of 1951.” He has
pointed out that he,is now enrolled In another State
,collegs¶,p!k?xas which is exempting him from the pay-
mant of feea*
In oonneotldnwith theee mattera you iiubmlt
for our opinion the followingquestIon: ‘What date
ahould be used for the terminationof the period of
servloe for which the tulticn exemption is authorized
In Section 3 of Article 265&b-l?
Article 2654b-1, Vernon’s Civil Statutea, pro-
videe in part as follows:
‘Seotlon1. The govern1 board of
the several institutionaof 00 T leglate rank,
rupparted in whole or In part by public
f&d% appropriatedfrom the State Treaewy,
ar’eher&by authorloedand dlreoted to exoept
and exeniptall oitleene of Tern---who have
resided UT xa for a period of not less
than twelve 1X2f months prior to the date of ,’
reglstrati’on, and who served during the
Spariieh-American aRd/or during the World War
a8 nurses or in the armed Poroes of the Unnited
Stattieduring the World War, and who are
honorably discharged therefrom,from the pay-
ment of all duee, fees and c,hargeswhatsoever,
including fees for correapondenoe,,.,couraea;
provided however, that the foregiSing exemp-
tion ehail not be oonatrued to aPply to de-
poslte, such a8 library, or laboratory deposits,
‘Phegqverning boards of said lnetitutlons
I& &3 $t Uhall be their duty to require evwg
applsoant claiming the benefit of.the above
exemptlon to eubmlt satisfactory‘evldenoethat
the applioant le a citizen of Texae and 18
otherwise entitled to said exemption. . . .’
3[h1943 Article 2654b-1 was amended by adding
thereto a ndw seo&Mn whiah r&ads in p~tr
‘%eo.tYon.Q~,4.11the’.
above and Poregoing
provislOns qondi’tlbns and betiefl%shereln-
above in t&s A&Sole ~p``ik&ied .tiSeo$‘ion.
1
‘a shall apply atidatiortie
to Wei ‘Banefi‘ts
of’& ntirses &mbere af ths Women~e``Arcmy
Aud.laxy Uo&s, W&nents,~AuxkXLi&?q XQIun$eer
Emergenoy Servloe, and ali metiers of the
Unlted States acme4 foraes re ardleda .df.
whether members of the Uti&d &at+3 Army’oti
l . w Navy or a . . Coaet uumd, who have,
Hon, Qibb GIlchrIst, page 3 (v-1540)
or are now serving, or who may after the pi?as-
sage af this Act. serve in the armed ~forceeof
xn 1945, Artiole 2654b-1 was again amended by
the additldh of a new section whkch reads In part aa
followB:
“Section'4. me exemption from the pay-
ment of dues, fees.and charges as provided
hereinabove‘in Section 1 and Seotlon 3 of
th18 Article shall not apply to or Include'
honorably discharged members of such United
States Armed Forces, or other person8 hereln-
agove named, 'whoare eligible for educationor
trainitigbenefits provided by the United States
Oovernment under Publla Law No.".16, 78th Con-
greatiflocatlonal rehabilltant87,or amendments
thereto, or,under Public Law. 30. 346, 78th
co ess Bor1.d War IT "GIIL" educational
“es. or amendments thereto, or any oth,er
bill
Fed&l legislationthat may.be in force at,
the tlm6 of registration In’ the oollege con- .~
oerned of such ex-serviceman or woman. * c c"
Under Article 2654b-1, as amended;*anyWorld
War Ii vet&ran who served in the armed forces of the
United States, who is a citizen of Texas and otherwise
ell&ble thereunder,ie entitled to claim the exemption
benefit& of that statute, provlded he is not eligible
for educationalbenefits made available by the fIovern-
ment in Public Law 16 or 346, 78th Congress, or in any
other Bederal legislation (e.g., Public Law 550 82na
Coogrese) . Attry Oen. Ops, O-7316 (1946), v-68&.(1948),
v-v307 (1952).
Public Law 239, 80th Congress, provides that
July 25, 1'947,Shall be deemed the date of termi.nE+tion
of any state of watitheretoforedeclared by COn@eaS and
of the national emergenciesproclaimedby the President
on September 8, 1939 and May 27, 1941, for the ~purposee
Public.LOW,346, 78th Congress,
of.. .provldlngFederal
Hon. Qibb ffilchrlst,
page 4 (V-1540)
educationalbenefits for certain World War 1: -ve*erans.
By virtue of Public Law 239, any person wno f&ret
entered the armed services on July 26, 1947, oc thexe-
after Gas rendered lnel$glblefor Pub110 Law 346
veteran educationalbenefits.
Recently, the.82nd Con eas has enaoted Pub110
Law 5500 It provides educationa !Fbeheflts to certain
veterans who serve or served in the armed force0 on or
after June 27, 1950, the date of the Prealdent’6order8
for military a&ion in South ,Xorea: 38 U.S.C*A. foil.
ah. 12, Sets:901 et seq. :~TheOovernmentbenefits of
Publlo Law 550 tarellmlted to veteran6 of the armed
aervioea during the Korean emergenoy. By virtue of the
dates f’lxedIn Public Lawe 239 and 550, supra, a Veteran
wbo,entered the armed services on OF after July 26,
1, 7; and who.oompletedhis aervioe prior to June 26,
$450, 10 provided no eduoatlonalbenefits by the Govern-
,ment under Public Law 346 or 550.
With respeat to this olaes’of veterans, not
oovered by Public Law 346 o? 550 the question arisesr
For .purpoeesof a proper apbli*aGionof ‘Seetlon3 0r
Artiole 2654b-1, the Texas World ,W@ ~:,’veteran exemp-
tlon etatute, what Is the legal date 8 terminationof
World War II? In this oonneotlon It le to be observed.
that no stat8 leglslatlonhas !been%iaoted whloh f*es
the termination(lateof World-War ti’for the -purposesof
llr?tlole
2654b-1;’ Furthermore,uhhil& ‘the-w- tern&n+
tion date fixed in Public Law 239” Bupra, has upealSl0
applicatiw to Federal “0.1.” benefits aQtho&ed lo
Public Law 346, and to certain other enu.merated statutes,
but thi8 Aot of Congress operated to terminate the W&T
0nXy With reapeot to the purposes speolfied therein,
You have s geete,dthat sinee the period for
,ofeducatlonzf benefits oonfermd~ ?J Nlio Y&w
,tertina%edon July 25 l@+?, br virEulj&~Z%%i%#&
the same date should ii&t&k&n 88 &es-& Ml@
. . ._
Hon. Gibb Gilchrist,page 5 (V-1540)
conform to Federal limitationson educationalbenefits
to World War II veterans. This office has previously
held that Public Law 239 has no application to the State
exemption a,uthorizedin Arti~cle2654b-1.. Att’y Gen. Ltr.
Op. addressed to Han, Ernest H. Poteet, President of
T;;;s College of Arts and Industries,dated Oct. 17,
. See Att’y Gen. Ltr. Op, addressed to Hon. William
Ni Hensley, Criminal District Attorney, Bexar.County,
dated June 28, lo483
As noted in Att ‘y Gen, Op, 0-7368 (1946), this
office has held in several opinions that a war Is not
concluded In the legal sense until some formal action
by a competent authority terminatingthe war and re-
establishing.the peace Is had, Attry Gen, Op. O-6828
(1945), V-30 (1947); Att’y Gen. Ltr. Op,.t,oHon. Will
R. Wilson, Criminal District Attorney, Dallas,County,
dated October.10,1950. It Is the province of the
politlcai departmentof the Federal Government to deter-
mine when war is at an end+ The .Prote;zll;;
Perkins v, Rogers; d
v. Michigan C;$?~cRiv~o~,
919). Cl,t&zensP t t
[App. Dr C..1946 certr
den. 329 U,d. 787); 67 C.Ji 429, War, SecI '195;
In Citizens Protective,League v1 Clark, supra,
decided May 2, 1946, Associate Justice Prettyman said:
No peace treaty has yet been
ai nedbw& Germany* and a state of tiarhas
no been terminatedby Act of aongrese or by
Executive Proclamatlonr Cases involvlhg the
terminationof other wars dispose of appel-
lantsI point, 19 1s not for the oourts to
determine the end of a war declared by the
Congressr”
In Ludecke v. Watkins, 335 U,S‘ 160, 170 (1948)
the Supreme Court of the United States saidp
“The political branch of the Government
has not brought the war with Germany to an
end+ On the contrary, it has proclaimed that
a ‘state of war still exists*” Presidential
Proclamation2714, 12 Fed, Reg, 1; see Woods
v. Miller Co., supra L733 U.S. 138 b194BJ~
at p. 140; Fleming v, Mogawk Wreoklng &
Lumber Co,, 331 UrS, 111, 116. ‘bq:*I’
Hon. Glbb Gilchrist,page 6 (V-1540)
This opinion, which was rendered after the effective
date of Public Law 239, did not refer to that enactment,
but it is obvious that the court did not consider that
law as having brought about a general terminationof
the state of war.
The 77th Congress of the United States, by
joint resolutionj:'formally declared a state of war
between the United States and six foreign governments,
Public Laws 328 (,Japan, Dee, 8, 1941), 331 (Germany,
Dec. 11, 1941)~ 32 Italy, Dec. 11, 1941), 563 (Bulgar-
la, June 5, 19427 5r;4 (Hungary,June 5, 1942), and 565
(Rumania,June 5,'1942). President'sProclamationNo.
2563, 7 F-R. 5535. On September 11, 1945, the designa-
tion of World*War II was approved as the officially
designatedname for the then present war covering all
Its theatres. 10 F.R. 11881.
On February 10, 1947, at Paris, separate
Treaties of Peace were concludedby designatedAllied
and Associated Powers, including the United Statesof
America, with.Italy,Bulgaria, Hungary and Rumania. 50
U.S.C.A. App., p. XXI.
Each of these Treaties contained a recltal:,in;?
the Preamble that the Allied and Associated Powers named
therein
"Heve therefore agreed to declare the
oessatl.onof the state of war and for this
purpose.tooonclude the present Treaty of
Peace, and have accordinglyappointed the
undersignedPlenlpotentlarleswho, after pre-
s.entatlonof their full powers, found in good
and due form, have agreed on the following
proviSions: e . .'I
Each of these.Treatiesocntains an Article
therein, similar to Article 90 of the Treaty of Peace
with Ita~lywhich reads in part as follows:
"The present treaty, . . . shall be
ratified by the Allied and Associated
Powers. It shall come into foroe
lmmedlateiy*u~onthe deposit of ratlfloa-
tiona by the Union of Soviet Socialist
Republics, by the United kingdom of Great
Britain and Northern Ireland, by the
United States of Amerloa.and'b$~France&!
.&an&Qabb OIlchrIst; page 7 (V-1540)
See Art. 38, Bul aria Treaty; Art. 42, Hungary Treaty,
Art. 40 Rumania $reaty.
These four Peace Treaties were each ratified
by the United States Senate on June 5, 1947* Con res-
slonal Record, 80th Gong.. 1st Sessco pp. 6409, 6$20,
6427, 6415.
The 82nd Congress of the United States, by
joint resolution approved by the President on October
19, 1951 formally declared the terminationof t.hgb;;,"te
of war between the United States and Qermany.
Law 181, 82nd Gong,, 1st Seas.; 50 U.S,C.A. App,, p,.XX
FrealdentlsProclamationaNo* 2950 was Issued pursuant
theret;,o&october 24, 1951, 16 F.R. 101915; 50 ts,S.c.~,
App.; . .
A treaty of Peace with Japan was ,slgeedat San
Franolsco b.ydesignated plenipotentiarieson SBptember
8, 1951.' 50 !J.S,i:lA:
App., .p:XIX& Cfiapter.1of Article
'1 provides:'
't(a)The state of,war between JAban and
each qf the Allied Powers Is terminated as
from the.date on which the present Treaty
comee into force between Japan and the Allied
Power.concernedas provided for in Article
23."
Article 23 of C?:apterVII, above rdPk?rredt0j
provides .inpart:
"(a) The present Treaty shall be.rati-
fled by the States whioh nign If, Including
Japan,.and will come into force for all the
States which have then ratified It, when
lnstrtimentsof ratificationhave been depos-
ited by Japan and by a majority, lncludln
the United States of Am$rica as the printfgal
occupying Power, . . D
This Treaty with.Japanwas'ratified by the
Un$$ed St$tes,Senate on March~20, 1952* Congresalonal
' Record,~82pd'.C!or@ess,~
p.+2635,
By telegram $a%$ S~p.cember4, 19~52,this of-
fice Inqulred of the Secretary of State',Washington, D,
C.j regaralng the entry fnto.frr@esf the above enumer-
Ron,.olbb Qllohrlst,pa&e 8 (V-1540)
ated treaties, We quote from the letter dated September
11, 1952, in answer thereto, a8 follows:
"ReferenceIs made to your telegram Of
September 4, 1952, in which you make oertalh
lnqulrkesregarding the entry Into foroe of
the peace treaties and the terminationof
World War II.
"The Treaty of Peace with Japan, signed
at San Franciscoon September 8, 1951, waa
approved by the Senate on March 20, 1952 and
ratified by the President on April 15 19%.
The Treaty came Into foroe on April 26, 1952,
the date on which a.majorltyof.the States,
IncludLngthe United States, deposited lnatru-
ments of'ratlfloatlonas provided In Article '~
23 of theArticle,265&b-1, supra, the date
of.the legal terminationof a stat&of war with the
owetisInvolved in World War II 1s the date that the
egislaturemust have i&ended as the date of term@a-
it
tion of the benefits therein afforded” Accordln ly, it
a.8the opln n of this offlce that April 28, 19&i, le the
date whloh s ould be used as the date of tt?rmlnaOlon
if: for
the tuition exempt$on authoriz*d in Section 3cof Article
2654bd1, v&,s.
@J&Y
The date which should be used for the
terminationof World,War II'for the purpose
of determiningellglbllity,-for the tuition
exemption authorizedWorld War II veterans
fn Section 3 of Article 2654be1, V&&3,, 18
April 28, 1952,
APPROVED:
Mary Ku Wall
Reviewing Aaslstant
Charles D. Mathews
First Asslatant
CEO:am