-. .
IionorakleDorsey B. Hardeman ~'
Chalrman
State Affa!rs ComrMttee
Senate of Texas
Austin, Texas
Opinion No. W-575
R.e: Ctinstitutionalltyof
Senate 3111 54, 56th
Leglslatcre,,,
relating
to eligibility require-
ments of per,sonswho
may receive public wel-
fare benef!ts, and re-
Dear Senator Hardeman: lated questions.
We have received your request of March 3, 1959,
in.‘wh!chyou seek our opinion on the valid:ityof Senate
R-:1154 of the 56th Legislature::relatlnS toellS!.bll-tty
reqt:'remqntscf persons who may recef.iie
::uhI?cwelfare
benefits or who may be.admi’ttedto eleemoeynary.inst?tu-
tions of th?s State.
Senate B;ll 54 reads rn par! as follows: '~.
"AN ACT relating to ellgibllity requ’re-
ments of persons who may receive
benefits from programs paid out of
p1~bli.c
funds and’!admTn!steredby the
Board and Department of Public Wel-
fare and admission to the eleemosy-
nary inst;tutlons'of thl.sState ?y
prodding that the requ:rement of
~United States citizenship shall be
waived as to any such person who
meets the other rcqu:Trenenter;ccj-
fied in this ‘act; providtng severa-
bilfty and d~eclaringan einergency.
"BE IT EXACTED BY THE LEGI%ATURE OF ,THESTATE OF TEXAS:
"Sect;~on1. Hotwlthst~nd no,any cthei~
provis-loneof st;tutes 01 thi:,tijtatc,
utile
requirement thatone be a citizen of the
Hono!?ableDorsey B. Hardeman, page'2 (W-575)
United States to be eligible to receive
assistance from the Doard and Department
of Public Welfare under Title 20A, Re-
vised Civl.1Statutes of Texas, as amended,
or to be admitted to any eleemosynary in-
stitutions of this state under Title 51,
Revised Civil Statutes of,Texas, as amend-
ed, shall be waived and be of no force and
effect as to any person who has
"(a) Reslded in this State for at
least twenty,(20) years; and has either
"(1) A child who has served In
the Armed Forces of the United States; ,or
,"(2), Paid ad valorem taxes on
property in thls‘State'whlle a resident
thereof for a period of ten (10) years."
Section 2. (Provides severability.)
Section 3. (Declares an emergency.)
We shall first consider the effect of Senate Bill
5'1as it relates to eligibility of persons to receive
:~bl:'.c
funds admlnistere*dand paid .by the Board and De-
partment of Public Welfare. Under Title 20A, V.A.C.S.,
the various public assistance programs are set out, as
are the eligibll,ityreq,uirementstherefor. A consistent
requirement is'that the recipient must be a citizen of
the United States. As we interpret Senate Bill 54, it
would have the effect,of removing or "waiving" the re-
quirement that reclple,ntsbe citizens of the United States,
provfded they can show themselves to come under Secti~on1,
Subsection (a) of Senate Bill 54.
Section 51 of Article ,111of the Consti.ut!on
+ .~of
Texas reads in part as follows:
"See . 51.. The Legislatuhi shall have
no power to make any grant or authorize the
making ~of any grant of public moneysto any
Individual, association of Individuals, mu-
niciptl or other corporations whatsoever;
. . . (,Wlth,certainexceptions.)
Honorable Dorsep B. Hardeaan, page 3 (WW-575)
BY way ~of additional exceptiona, Section 5la of
Article III provides in part ae follows:
“Set . 51s. The Legislature shall have
the power, by General Laws, to provide, sub-
ject to llmltatlons and restrictions herein
contained, and such other limitatlona, re-
strictions and regulations as may ,by the
Legislature be deemed expedient for aesie-
tance to, and for the payment of assistanoe
to:
“(I) Needy aged persons who are actual
bona fide citizens of Texas;, and,who art over
the age of silty-fi,ve J65)
with certain other ~requirei%I’s& ‘fckth) .
Emphasis added.)
“(2) Needy blind persons who are actu-
al bona fide citlzena of Texas and are tver
the age of twenty-one (21)
with certain other requir&~~~~~‘sk*f&th).
Emphasis ,added.)
“(3) Needy children who are actual
bona fide citizens of Texas and are ;nder
the age of sixteen (161 (with
certain other re
(Emphasis added.
‘The Legislature shall have the authori-
ty to accept from the Federal Government of
the United States such financial aid for the
assistance of the nee,dy aged, needy blind,
and needy.children 88 such Government may of-
fer not lnconeietent with restrictions herein
set forth; provided, however, that the amount
of such assistance out of State funds to eaoh
peraon aaleted rhall never exceed the $mount
so expended out of Federal funds; . . .
Section 51a-1, Artlole, III or the Constitution of
Texas reads In part ae hollows:
“The Legislature shall have the power to
provide by Weral Laws &nd to .make payment for
came, under swh limltatlons and restr,lctlons a8
nay be deemed by the LegiaLatur,e expedient, for
.-
Honorable Dorsey B. Hardeman, page.4 (W-5,75)
direct or vendor payments for medical care,
on behalf of needy,reciplents of Old,Age
Aaslstance, Ald,to the Blind. or Aid to
Dependent Children as providkd’for In Sec-
t ion 51a of Article III and on behalf of
needy recipients of Aid to the Permanently
and Totally Disabled as provided for in
Secti.on51-b of Article III of the Consti-
tution of the State of Texas. The payments
for such medical care on behalf of such re-
cipients shall be in addition to the direct
assistance to such recipients, and shall be
in such’amounts as provided by the Legisla-
ture; provided, however, that the amounts
paid out of State funds for such purposes
shall never exceed the amounts paid out of
Federal funds for such purposes.
“The Legislature shall have the au-
.thorityto accept from the Federal Govern-
ment of the United States, such financial
aid on behalf of the needy aged, needy blind,
needy children, an,dneedy permanently and
totally disabled persons as such Government
may offer not 3nconsistent with restrl,ctions
herein set forth.” (Emphasis added.)
Section 51-b of Article III reads in part as fol-
lows :
“Sec. 51-b.~ The Legislature shall have
the power to provide by general laws, under
such limitations and restrictions as may be
deemed bs the Legislature exoedient. for as-
sistance-to need; individuals, who are citi-
zens of the United States, who shall ,have
passed their eighteenth ~(18th)birthday but
have not passed-their sixty-fifth (65th)
birthday, who are totally and permanently
disabled by reason of a mental or physi~cal
handicap or .a combination of physical and
‘mental hand.ldapsand not feasible for voca-
tional rehabilitation, and ryhoare residents
of the State of Texas, . . .
“The Legislature shall have the authori-
ty to accep,tfrom the Government of ,theUnited
States such financial aid for individuals who
. .
::on:,r;;!:'l~c
Dorsey F,.hardernan.,
page 5 (.WW-575)
are permanently and totally disabled as that
Government may offer,not inconsistent with
the restrictions herein provided.," (Emphasis
ours.)
Your attention iscalied to'the fact that Section
51a provides that needy aged persons, needy blind persons,
and needy ch~i~ldren
must ,be "citizens of Texas" in order
to be eligible for the payments therein.provi:ded.,Section
51a-1 provides for payments for medical care on behalf of
needy recipients of old age assistance, aid to the blind,
or aid to dependent ch'ldren, as. provided for in Sections
51a and 51-b, but restricts such payments to individuals
'who are citizens of the United States." It is seen that
in order for individuals to become eligible under the stated
exceptions to Sectfon 51 of Article 111, they must be "citi-
zens of Texas” or “citizens of the United States”.
The fu~ndsprovided by the various types of public
assistance payments are partially composed of federal funds.
In order fora recipient to be eligible,,he must be eligible
under the State law, as well as under the federal law and
regulations. There is no requirement under the federal law
that the recipient must be a citizen of the United States.
It is merely urovided that no State mav have any ci~tizenship
equirement-which excludes 'a y c'tizen of the United States"
7See: 42 U.S.~C.A. Sec.,3dd (31fi. ~,
‘Section 51 of Art!.cleIII prshlbits the making of any
such grant unless the recipient may bring himself within one
of the exceptions enumerated in Sections 51, 51a, 51a-1 or
51-b.
Section,,51-bof Article 111 authorizes paym$nts there-
under only to . . . citizens of the United St$tes . Clearly
any Act of the Legislature which attempted to waive" or re-
move such requirement would violate that Section, as well as
Section 51 of.Artlcle III. Section 51a and Section 5la-1
only require the rer-i,pient
thereunder to be citizens of Texas.
Senate R<.ll5!Iw3:?l.d
allow payments to be made to persons who,
under ccrta!n crndP;i.onsare not citizens of the United State?.
;.I&~;~
::I
pcrssn be a cj.t;izen..of
Texas ,vditho,u.t
i:ej.ng
a citizen of
tllc Unl~ted Ststes?
2 Tex. Jcr. 677! Aliens 2 2, states, :~nsart:
f,
. . . Generally speaking, a citizen is
one who is a member of a nation or sovereign
Honorable Dorsey B. Hardeman, Page 6 (W-575)
State, especially of a republic; one who owes
allegiance to a government, and Is entitled
to protection from it. By the federal consti-
tution, ‘All persons born or naturalized in
the United States, and subject to the juris-
dictl.on thereof, are citizens of the United
States and of the State wherein they reside’.
Citizens are to be distinguished from resl-
dente; the terms are neither eynonymous nor
interchangeable; while a citizen has the right
of residence, citizenship la not implied from
the fact of residence. Citizens are also dis-
tinguished from Inhabitants -- who may be
strangers --,allowed to settle and remain in
a country. Aliens living in the state are
inhabitants. ”
2 Am.Jur. 464, Aliens % 2, states, in part:
“The term ‘alien’ is defined by atatute
as comprehending any Individual not a natlve-
;;;be;r nat~uralized citizen of the United
. . . . .
“The term also Includes subjects and
citizens of foreign countries, and not
merely persons resident in the United States
who owe allegiance elsewhere. Residence in
the United States is without effect to change
the status of a person as an alien; and it is
now settled that the term ‘aliens’ as uaed in
the Immigration Laws, includea not only ‘alien
Immigrants’ but every alien, irrespective of
any previous residence or domicile in this
county.”
The early case of Ex Parte Blumer, (Supreme Court)
27 Tex. 735 (18651, the Court considered who were residents
of the Confederate States for the purpose of conscription.
The Court said at page 737:
” hg Congress &f the Confederate
States ? designed that the term should include
more Than citizens, native and naturalized,
otherwise the word citizen would have been
uaed . . .”
. . .
Honorable Dorsey B. Hardeman, page 7 (W-575)
This certainly implies that a citizenship require-
ment is more restrictive than a mere residence requirement.
In Town of New Hartford v. Town of Canaan, 5 A. 360,
the Supreme Court of Errors of Connecticut, considered
whether the son of a naturalized citizen of the United
States acquired the status of a citizen of that State. The
Court disoussed the attributes of citizenship and said that:
. The ripht of citizenship as dis-
tinguished from alienage, Isa national right,
character, or condition, and does not pertain
to th; individual states, separately considered.
. . .
It is well settled that a person may be a citizen of
the United States without being a citizen of any particular
State. (For example, a resident of the District of Colum-
bia,,or the children of United States Ambassadors abroad);
but we have found only one case intima,tingthe converse.
In lWDone1 v. State (Supreme CourtsInd.) 90 Ind. 320
(1883), the Court said:
"One may be a citizen of a State and yet
not a citizen of the United States."
However, the Court goes on to say:
I,
. . . in most of the States of the Union
persons who are notcitizens of the United
States are not admitted to State citizenship."
It Is, therefore, our opinion that the provisions of
Senate B-11 jl+,which seek to waive the requirement that one
be a citizen of the United States to be eligible to recei.ve
assistance from the Board and Department of Public Welfare
under Title 20 A, V.A.C.S., as amended, is prohibited by
Sections 51, 5la, 51a-1 and 51-b of Article III of the Con-
rtltution of the State of Texas. Section gla of;Article,,
III of the Constitution of Texas uses the term citizens of
Texas. This Bill would allow persons to receive such funds
without being a citizen of Texas even though they reside in
the State of Texas and have resided in this county for a
period of twenty years or longer; and had a child who served
in the Armed Forces of the United States or paid ad valorem
taxes on property in this State while a resident for a period
.
Honorable Dorsey C. Hardenan, page 8 (WW-575)
of ten (10) years. These people are inhabitants of the
State who have been allowed to settle and rema!.nin this
country and State. They are aliens and remain as such
until they have been naturalized according to. law. In
our opinion, Senate Bill 54 violates Sections .51, 51a,
51a-1 and 51-b of Article III of the Constitution of Tex-
as insofar as It purports to allow persons not citizens
of Texas to receive publ:c assistance payments.
Insofar as Senate Bill 54 relates to eliglblllty
of persons who are not citizens of the United States for
admission to any eleemosynary lnstitutlon of this State
under Tj~tle51, V.A.C.S, as amended, we find no constitu-
t'onal prerequisite sett?'.ngforth who may be admitted to
such Institutions. In thL~sconnection see Attorney Gen-
eral's Opinion O-2223 (1CjM). Therefore, In our opinion
it is w!.th!nthe discretion of the Legislature to prescribe
the eligibility requirements for admlsslon into the various
eleemosynary institutions. Senate Bill 54 does not violate
the Constitution of Texas insofar as It relates to admissions
to such institutions. Reference Is made to Attorney General's
'Opinion WW-251 (1957) whi.chnames the eleemosynary institu-
tions of Texas.
We find no violations of the Constitution:of Texas
by Senate Bill 54'other than as set out above.
SUMMARY
Senate B:lll54 of the 56th Legislature
violates Sections 51, 51a, 51a-1 and
51-b of Article III of the Constitution
of Texas insofar as it allows public
assistance payments to persons not citi-
zens of the UnIted States, because Uni-
ted States citizenship is a prerequisite
to being a citizen of Texas.
Honorable Dgrsey D. Hardeman, page 9 (W-575)
Senate Bill 54 of the 56th Leg%slature
is constitutional Insofar as it relates
to admission requirements to the eleemo-
synary institutions.
Yours very truly,
WILL WILSON
Attorney General of Texas
& .A :rn&Lky
BY i,
Tom I. McFarling
Assistant
By&J 6zL.Lb
Leon F. Pesek
Assistant
TIM:zt:rm
APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman
Riley Eugene Fletcher
Charles D. Cabaniss
Will-iamR. Hemphill
REVIEWED FCR THE ATTORNEY GENERAL
3y : W. V. Gcgpert