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H.B. No. 1403

AN ACT
relating to the eligibility of certain persons to qualify as residents of this state for purposes of higher education tuition or to pay tuition at the rate provided to residents of this state.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 54.051(m), Education Code, is amended to read as follows:

(m) Unless the student establishes residency as provided by Section 54.052(j) or 54.057, tuition [Tuition] for a student [students] who is a citizen [are citizens] of any country other than the United States of America is the same as the tuition required of other nonresident students.
SECTION 2. Section 54.052, Education Code, is amended by adding Subsection (j) to read as follows:

(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:

(1) graduated from a public or private high school or received the equivalent of a high school diploma in this state;

(2) 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;

(3) registers as an entering student in an institution of higher education not earlier than the 2001 fall semester; and

(4) 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.

The law passed under HB 1403 was revised, and section 54.052 of the Texas Education Code no longer contains the "file an affidavit" language you cited.

See http://www.thecb.state.tx.us/reports/PDF/1528.PDF for a brief discussion of this, and the reason for changing the Texas law.

The same provision you noted, relating to an affidavit, now appears at section 54.053(3) of the Texas Education Code.

54.053. INFORMATION REQUIRED TO ESTABLISH RESIDENT STATUS.
A person shall submit the following information to an institution of higher education to establish resident status under this subchapter: ...
(3) if the person applies for resident status under Section 54.052(a)(3):
(A) a statement of the dates and length of time the person has resided in this state, as relevant to establish resident status under this subchapter; and
(B) if the person is not a citizen or permanent resident of the United States, an affidavit stating that the person will apply to become a permanent resident of the United States as soon as the person becomes eligible to apply.
Amended by Acts 2005, 79th Leg., ch. 888, S: 3, eff. Sept. 1, 2005.

Also, See Tex. Att'y Gen. Op. No. GA-0732 (2009) for the Texas AG's legal opinion on the conflict between the Texas law and the federal law. The below blockquote is from the Summary section of the report.

However, the terms "postsecondary education benefit" and "residence" are not defined in the federal law. In addition, no Texas or federal court has construed these terms or considered the substantive application of the federal law to a statute similar to the Texas statutes. Thus, while a federal or state court in Texas, following the reasoning of an intermediate California state appellate court decision, could find that 8 U.S.C. 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict with the federal law, given the paucity of judicial precedent, this office cannot predict with certainty that a court would so find. ...
The United States Supreme Court has "approved bona fide residency requirements in the field of public education." Martinez v. Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has recognized "that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis." Vlandis v. Kline, 412 U.S. 441, 452-53 (1973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.'" Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54).
Accordingly, a federal or state court in Texas would likely conclude that Education Code sections 54.052(a)(3) and 54.053(3) do not facially violate the federal Equal Protection Clause because the statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate or substantial interest in assuring that only bona fide residents that graduate from Texas high schools or receive the diploma equivalent from this state are eligible for in-state tuition. However, no court has addressed whether a statute similar to the Texas statutes conforms to the mandates of the Equal Protection Clause.

The point you are making still stands, but you were using dated (and no longer existing) authority as a basis.