In 2011, during his first regular session, state Sen. Brian Birdwell, R-Granbury, filed a bill to repeal the state’s decade-old law allowing some undocumented immigrants to pay in-state tuition rates to attend public universities in Texas.
The proposal didn’t get anywhere — Birdwell concedes that he was unable to wrangle enough votes to pass it out of the Senate Higher Education Committee — but the issue has become increasingly controversial.
Heading into the 2013 session, which begins in January, Birdwell told The Texas Tribune that he intends to file the bill again. This time, because of changes in public sentiment and the makeup of the Texas Senate, he may have momentum in his favor.
Under the current law, signed by Gov. Rick Perry in 2001 and broadened in 2005, students may establish residency and qualify for in-state tuition if they graduate from a Texas high school, have lived in the state for three years before applying and sign an affidavit indicating their intent to apply for permanent residency status as soon as possible.
Birdwell said his objections to the policy stem from his view of citizenship. “It is not intended to be harsh,” he said. “It is intended to affirm that I serve those that are citizens — black, white, pink, purple, I don’t care. Citizenship is the center of gravity.”
He also said the benefit of lower tuition could incentivize illegal activity rather than addressing the country’s immigration issues. “It’s conceding the failure of the federal government, so let’s get comfortable with it,” he said.
So far, the biggest barriers to Birdwell’s success have come from within the GOP, but an influx of new conservative senators may change that.
“It’s a debated issue within our own party,” state Rep. Kelly Hancock, R-Fort Worth, acknowledged at a TribLive event last month featuring three incoming Republican senators — Hancock, Larry Taylor of Friendswood and Ken Paxton of McKinney.
All three said they would side with Birdwell on the issue.
“I think the status quo is at risk because of the new members,” state Sen. Judith Zaffirini, D-Laredo, a supporter of the current policy, recently told the Tribune.
She has also publicly speculated that the failure of Birdwell’s bill to pass out of the Higher Education Committee under her chairmanship may have influenced Lt. Gov. David Dewhurst’s decision, announced last week, to remove her from that position. Though, she said she would have allowed it to pass if it had the necessary votes.
Birdwell, a retired U.S. Army officer, said that despite a more conservative Senate and changes in the committees, he is not taking victory for granted this session. “There are still too many unknowns to know the battle ahead,” he said. “I will enjoin the battle. But how the battlefield will be arrayed, I don’t know yet.”
One of the biggest questions is whether Perry, who has — to the ire of some conservatives — spoken out in favor of the state’s existing policy, will use his veto pen.
In an interview at The Texas Tribune Festival in September, Perry said the policy, which was not controversial when it passed in 2001, was the “correct economic decision for this state.” But he did not say outright that he would veto a bill to repeal it.
He said he was amenable to “an open and vigorous debate” on the matter but added, “My bet is that bill will never get to my desk to make a decision on.”
Perry said lawmakers have a choice between helping successful students who were brought to Texas “through no fault of their own” to succeed or allowing them to become a drag on the state’s economy. “We have to deal with reality,” he said.
This week, Birdwell told the Tribune, “Those are correct arguments.” But he said that the fact remained that the policy creates a situation where the state provides an incentive for "conduct that’s illegal.”
“There are many things I agree with Gov. Perry on,” Birdwell said. “I reserve the right to disagree, and this is obviously one in which we disagree, but my duty is to do what I’m compelled to do. If I succeed in getting it to his desk, if he’s compelled to sign it or veto it, it will be based on what is in his heart.”
If by veto or votes Birdwell is unsuccessful, then he can be expected to keep pushing in future sessions.
“The bottom line is, you take these battles one day at a time, one session at a time, and many bills take several sessions to pass,” he said. “Ultimately, I see it as my duty to affirm my obligations to the citizens of Texas and the citizens of the United States, by virtue of Texas being a member of the Union. That’s precious.”