Untitled Texas Attorney General Opinion

-. . 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