Fifth Circuit Affirms Denial of Intervention in United States’ Suit Over Texas In-State Tuition Provisions

The decision

On July 9, 2026, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court order denying post-judgment motions to intervene filed by two advocacy groups, a community college and a student who sought to defend two provisions of the Texas Education Code after the United States and Texas agreed to a consent judgment enjoining them. The court held that intervention was futile because 8 U.S.C. § 1623(a) preempts the provisions as to aliens not lawfully present, whom the majority opinion refers to as “illegal aliens.” It dismissed the rest of the appeal, including the challenge to the consent judgment itself, for want of appellate jurisdiction.

The court did not review the consent judgment or the permanent injunction, and it did not decide whether the movants satisfied the intervention requirements of Rule 24. Judge Irma Carrillo Ramirez dissented.

Background

According to the opinion, Texas charges residents a discounted tuition rate at public colleges, typically $50 per credit hour, and nonresidents a higher rate. Section 54.052(a) of the Texas Education Code provides three ways to establish residency, and § 54.051(m) charges students who are citizens of other countries nonresident tuition “[u]nless the student establishes residency” or is otherwise entitled to pay resident tuition. The opinion refers to §§ 54.051(m) and 54.052(a) as the “Challenged Provisions.”

In June 2025, the United States sued Texas in the Northern District of Texas, alleging that Texas had “ignored” federal law “for years” by allowing illegal aliens to pay in-state tuition while out-of-state U.S. citizens paid more. The complaint relied on § 1623(a) and on Young Conservatives of Texas Foundation v. Smatresk, which held that § 54.051(d) was not preempted but observed that “a different, unchallenged portion” of Texas’s scheme “seems to conflict with § 1623(a).”

Texas settled, and the district court approved a consent judgment and entered a final judgment permanently enjoining enforcement of the two provisions. Austin Community College, La Union del Pueblo Entero and Oscar Silva (the “LUPE Group”), and Students for Affordable Tuition, then moved to intervene; the LUPE Group also moved for relief from the judgment under Rules 59(e) and 60(b). In August 2025, the district court denied both intervention motions on the ground that “intervention is legally futile,” held the provisions expressly preempted, and dismissed the Rule 59/60 motion as moot.

The court’s reasoning

Futility as a threshold question

Judge Jerry E. Smith’s opinion began with Saavedra v. Murphy Oil U.S.A., Inc.: “[A] proper basis for denying leave to intervene may be a finding that the proposed intervention would fail to state a claim.” Under Pin v. Texaco, Inc., the court stated, a proposed intervenor’s pleading is tested under Rule 12(b) standards before the court turns to the Rule 24 factors, and “a claim need not be frivolous to be futile.”

The court rejected the appellants’ argument that a futility requirement amounts to requiring them to show a “winning argument on the merits” before participating. It also rejected the LUPE Group’s contention that futility does not apply to defense-side intervenors: “our sister circuits have long held that futility rules apply to both plaintiff- and defense-side intervenors,” the court wrote, “and we now join that longstanding practice.”

Preemption under § 1623(a)

The court held that the Challenged Provisions are the portion of the Texas scheme that Young Conservatives had flagged: § 54.051(m) charges nonresident rates unless a student establishes residency, and § 54.052 sets out three residency pathways, none of which requires lawful presence. Because illegal aliens who meet the residency requirements are eligible for resident tuition while out-of-state U.S. citizens are not, the court agreed with the district court that § 1623(a) “bars such a disparity.”

The court then addressed six challenges to the preemption analysis. First, the appellants argued that in-state tuition is not granted “on the basis of residence” because § 54.052(a)(3) also requires Texas high school graduation. The court found each pathway tied to a “domicile” or “residence” in Texas, treated any dispute over the first two pathways as inadequately briefed, and, citing Bostock v. Clayton County, read “on the basis of” as a but-for standard: “Plainly put, residence is a necessary condition for in-state tuition in Texas.”

Second, the LUPE Group argued that eligibility for in-state tuition is “nothing more than a status,” not a “postsecondary education benefit,” borrowing a definition from 8 U.S.C. § 1621(c)(1)(B). The court responded that the Challenged Provisions “afford recipients a financial subsidy to pay discounted tuition.”

Third, the appellants argued that because some out-of-state U.S. citizens may pay in-state rates under discrete exceptions, the statute’s “unless a citizen or national” clause is satisfied. The court called that focus on the indefinite article an “abstruse grammatical debate” and read the clause as a condition precedent: “if some U.S. citizens or nationals, regardless of residency, are ineligible for reduced in-state tuition rates, then all illegal aliens must be ineligible to receive the same benefit based on residency.”

Fourth, the court held the presumption against preemption inapplicable because § 1623(a) contains an express preemption clause. Fifth, it rejected the Tenth Amendment argument, writing that constitutional avoidance applies only to ambiguous text and characterizing the statute, drawing on Young Conservatives, as one that “denies permission” and “merely targets offending laws” rather than commanding the States under Murphy v. NCAA. Sixth, applying Texas severability law, it declined to sever § 54.052(a)(3)(A) from (B), stating that the subsections “were written to work in tandem” and that severance would create an eligibility pathway Texas never enacted.

“All of Appellants’ preemption contentions are meritless,” the court wrote, and it did not address the Rule 24(a) or (b) requirements.

Appellate jurisdiction

Quoting Edwards v. City of Houston, the court stated: “It is well-settled that one who is not a party to a lawsuit, or has not properly become a party, has no right to appeal a judgment entered in that suit.” Because the appellants were denied intervention and never became parties, it dismissed their appeals insofar as they sought review of the consent judgment. It also found no abuse of discretion in the denial of the nonparties’ Rule 59(e) and 60(b) motion and dismissed that claim for want of jurisdiction.

Separate opinions

Judge Ramirez dissented. She opened: “Six hours after the United States sued the State of Texas, the district court entered a consent judgment invalidating the 25-year-old Texas Dream Act based on the parties’ agreement that the law is preempted by 8 U.S.C. § 1623(a).” Because the United States and Texas agreed on the constitutional question, she wrote that Article III jurisdiction was uncertain under Pool v. City of Houston, INS v. Chadha and United States v. Windsor: “Because its existence is unclear, I would remand for the district court to evaluate its jurisdiction under Article III in the first instance.”

The dissent agreed that a threshold futility analysis was proper and that it applies to defense-side intervenors, but wrote that because the movants sought to intervene as defendants, Rule 12(c) supplied the standard and required assessment of their proposed defenses, including a Tenth Amendment defense, so “the district court’s analysis was incomplete.” On the merits, she concluded under Murphy that § 1623(a) regulates only States, since it neither confers rights on nor restricts noncitizens, and that Young Conservatives did not foreclose the argument. If jurisdiction exists, she would reverse and remand.

Status

The opinion affirms the denial of intervention and dismisses the remaining claims. It does not address further proceedings or the mandate. The district court’s permanent injunction against §§ 54.051(m) and 54.052(a), entered in 2025, was not reviewed on the merits. The decision was widely reported, including by The Texas Tribune, the Houston Chronicle and KERA News.