March 18, 1975
The Honorable James E. Peavy M. D. Opinion No. H- 556
Commissioner of Health
Texas State Department of Health Re: Are benefits under the
1100 W.*49th St. Kidney Health Care Act, art.
i Austin, Texas 78756 4477-20, V. T. C. S. limited
to citizens of the United States
or residents of Texas?
Dear Dr. Peavy:
You have asked whether the Kidney Health Care Act, article
4477-20, V. T. C. S., requires or permits the Department of Health
to make benefits available under the Act on the basis of United States
citizenship, or Texas residence.
It is well-established that a state may not invidiously discriminate
against resident aliens, and that the denial of health or welfare benefits
on the basis of alienage is constitutionally impermissible. Graham v.
Richardson, 403 U.S. 365 (1971). See a, Takahashi v. Fish and
Game Commission, 334 U.S. 410 (1948);Yick Wo V. Hopkins, 118 U.S.
356 (1886); Attorney General Opinions H-333(1974), H-157 (1973),
H-156 (1973), H-81 (1973).
While there are references to “citizens” and “citizens of the
State of Texas” in sections 2, 3(3), and 3(13) of the Act, we do not
believe that it is necessary to interpret these references as exclusive.
To do so would raise serious constitutional problems. These same
sections also refer more generally to “persons” or “patients” “suffering
from chronic kidney disease” as the group intended to be eligible for
benefits under the Act. The most pertinent provision of the Act, in
section 3, authorizes the State Board of Health, through the Division
of Kidney Health Care, to:
p. 2,501
The Honorable Ja,mes E. Peavy page 2 (H- 556)
(2) Determine the terms, conditions and
standards for the eligibility of persons suffering
from chronic kidney disease for aid, care or
treatment provided under the provisions of this
Act.
In our opinion, this provision authorizes the board to establish
reasonable and constitutional standards for eligibility without regard
to citizenship. Our answer to the first question is that the Act does
not require, and the constitution does not permit, eligibility for benefits
to be conditioned on United States citizenship.
The second question is whether the Act requires or permits
eligibility for benefits to be conditioned on Texas residency. We find
no provision in the Act which expressly requires residency as a condi-
tion of eligibility for benefits. Neither does the Act prohibit such a
requirement from being adopted by the Board which has power to
determine the terms, conditions and standards for eligibility under
section 3(2).
However, our answer is rendered academic by a provision of
the Appropriations Act for fiscal 1974-1975. Acts 1973, 63rd Leg.,
ch. 659, section 2(e), p. 1881. The special provision states in pertinent
part:
None of the moneys appropriated to the Department
of Health . . . may be expended for the . . . medical
treatment except in emergencies of any . . . patient
who is not a citizen or resident of this state. . . .
In Attorney General Opinion H-156(1973), we said that this pro-
vision would be violative of the Equal Protection Clause of the Fourteenth
Amendment if “citizen” were intended to exclude a resident alien, but
that distinctions designed to preserve state supported faciiities for bona
fide residents of the state are not necessarily invidious.
Since there are no funds available to provide benefits to persons
other than residents, the Appropriations Act effectively imposes a
residency requirement for eligibility for benefits under the Kidney Health
Care Act.
p. 2502
The Honorable James E. Peavy page 3 (H-556)
SUMMARY
Benefits under the Kidney Health Care Act,
article 4477-20, V. T. C. S., may not be denied
on the basis of alienage.
Eligibility for benefits under the Act is
limited to residents by the Appropriations Act.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2503