.
.
Honorable William S. Fly, Chairman Opinion No, WW-41
Finance Committee
Senate Re: Conformity of Senate Bill
Austin, Texas 61 to the requirements of
Section 51-b of Article III
of the Texas Constitution
and to 551351-55, Title 42,
Dear Senator Fly: U.S.C.A.
You have requested an opinion of this office on the following
questIons.
1. Does Senate Bill. 61, as introduced at the
current legislative session, comply with the provisions
of Section 51-b of Article III of the Texas Constitution?
2. Does Senate B,ili 61 comply with the require-
ments of Sections 1351-55 of Title 42 of the United
States Code Annotated?
3. If Senate Bill 61 does not comply with the
requirements of 42 U.S.C.A. 881351-55, can compliance
be obtained consistently with the provisions of Section
51-b of Article III of the Texas Constitution?
Section 51-b of Article III, H.J.R. 30, Acts 54th Leg., R.S.,
1955, p. 1824, was adopted at the general election in 1956 and is set
out in full in the footnote below. 1 Speaking generally, this Section
1
UThe Legislature shall have the power to provide
by general laws, under such limitations and restrictions
as may be deemed by the Legislature expedient, for
assistance to needy individuals, who are citizens of the
United States, who shall have passed their eighteenth
(18th) birthday but have not passed their sixty-fifty (65th)
birthday, who are totally and permanently disabled by reason
of a mental or physical handicap or a combination of physical
and mental handicaps and not feasible for vocational rehabiii-
tation, and who are residents of the State of Texas, who have
resided in this State for at least one (1) year continuously lm-
mediately preceding the application and who have resided in
the State for at least an additional five (5) years during the
nine (9) years immediately preceding the application for
assbstance; and providing further t&it ~no individual shall
receive assistance under this program~for the (Cont’d next page)
Hon. William S. Fly, page 2 (WW-41)
authorizes the Legislature to enact laws providing for assistance to
needy individuals who are totally and permanently disabled and to
accept financial aid from the Federal Government under the Social
Security Act. Senate Bill 61 is obviously designed to put into effect
the necessary enabling legislation authorized by Section 51-b.
We have concluded that the bill in most of its parts com-
plies with the requirements of Section 51-b and that those portions of
the bill which do not comply can be changed so as to effect a com-
pliance with both Section 51-b and with Sections 1351-55, Title 42,
U.S.C.A. We will take up the questions of compliance presented by
various parts of the bill seriatim in the order of their importance.
The most serious question raised by your request 1s whether
Subsection 4 of Section 16-B of the bill is within the residence limita-
tions imposed by Section 51-b of the Constitution. Subsection 4 sets
out the residence qualifications requisite to coming within the provisions
of the Act and reads as follows:
“Who has resided in the State of Texas for
five (5) years or more within the last nine (9) years
preceding the date of his application for assistance
and has resided in the State of Texas continuously
for one (1) year immediately preceding the applica-
tion; . . .*
The residence requirements of the constitutional provision
limit’ authorized assistance to needy individuals ‘who have resided
permanently and totally disabled during any period when
he is receiving old age assistance, aid to the needy
blind, or aid to dependent children, nor while he is
residing permanently in any completely State supported
institution; and provided further that not more than
Twenty Dollars ($20) a month out of State funds may be
paid to any individual recipient ; and provided further that
the amount paid out of State funds to any individual may
never exceed the amount paid to that individual out of
Federal funds; and provided further that the amount paid
out of State funds for assistance payments shall not exceed
One Million, Five Hundred Thousand Dollars ($1,500,000) per
year.
“The Legislature shall have the authority to accept from
the Government of the United States such financial aid for
individuals who are permanently and totally disabled as that
Government may offer not inconsistent with the restrictions
herein provided.”
Hon. Wiiiiam S. Fly, page 3 (WW-41)
In this State for at least one (,l) year continuously immediately
preceding the application and who have resided in this State for at
least an additional five (5) years during the nine (9) years immediate-
ly preceding the application for assistance; . . .”
Section 1352(b) (l), 42 US.C.A., prohibits the use of federal
funds if the State residence requirements exclude “any resident of the
State who has resided therein five years during the nine years
immediately preceding the application fo.r aid to the permanently and
totally disabled and has resided therein continuously for one year
immediately preceding the application. ”
If Section 51-b requires a total residence period of six
years rather than five years during the nine years immediately
preceding application for assistance, the total residence requirement
contained in the bill as presently drawn is unconstitutional; and the
Legislature lacks the power to enact a law which would enable the
State of Texas to comply with the provisions oft the federal act.
The word “additional” makes the constitutional provision
ambiguous. Both the requirement for continuous residence and the
requirement for total residence are measured from the date of appli-
cation for assistance and thus necessarily overlap. The Constitution
places a residential requirement of the year lmmediateiy preceding
the application plus an additional five years during the nine-year
period immediately preceding the application. If the applicant cannot
count the first year of the nine-year period, he is then limited to
compiling his five-year total from a period of eight years, and the
Constitution expressly allows him to accumulate the five years dur-
ing the nine-year period.
Although th.e total residence requirement need not be con-
tinuous, continuity is not prohibited. If for five years immediately
preceding application the applicant has continuously resided in Texas,
obviously the applicant has met the requirement for continuous
residence for one year immediately preceding the application. The
people of Texas in adopting this amendment unquestionably intended
that the requirement of total residence be met within a nine- ear
period immediately preceding application for assistance. *he
two residence requirements are treated as cumulative of each
other, the five-year total requirement must be met within an eight
rather than a nine-year period, as expressly permitted by the
Constitution. The constitutional provision is undoubtedly ambiguous.
It is evident that the two residence requirements which
must be met before aid can be granted are entirely different.
First, there is the requirement pertaining to continuous residence
and second, the additional requirement pertaining to total residence.
It is obviously desirable to have a requirement of a stated period
of continuous residence within the State before an individual may be
..
Hon. William S. Fly, page 4 (WW-41)
granted aid from State funds. It is also desirable to have an
additional requirement of a stated period of total residence within
the State before such aid can be granted and at the same time
reasonable that such period of total residence need not be continuous.
It is not logical to make these two requirement,s cumulative of each
other. Each is based on entirely different considerations. The
motivating factors which lead to a choice of a requisite period of
continuous residence are different from the motivating factors
determinative of a requisite period of total residence, An addition of
the two periods to obtain a new total residence requirement is not
logical and produces a hybrid.
The object of construing a written constitution is to give
effect to the intent of the people adopting it. 1 Cooley on Constitu-
tional Limitations (8th Ed. 1927) 124. When a difficulty really
exists in ascertaining meaning of constitutional provisions, certain
extrinsic aids mav be resorted to. Amone these, savs Cooiev, at
pages 141-142, is * “a contemplation of the “object .to de accomplished
or the mischief designed to be remedied or guarded against by the
clause in which the ambiguity is met with. When we once know
the reason which alone determined the will of the lawmakers, we
ought to interpret and apply the words used in a manner suitable
and consonant to that reason, and as wilt be best calculated to
effectuate the intent. . ..* (Emphasis his.)
Prior to the adoption of Section 51-b, the Legislature had
been authorized to enact and had enacted laws establishing Federal-
State cooperative programs for three clas2ses of persons: the needy
aged, the needy blind and needy children.
The original constitutional residence requirements which
had to be met before assistance could be granted a needy aged indi-
vidual were stated in the following language:
“
. . . provided further that the requirements for
length of time of actual residence in Texas shall never
be less than five (5) years during the nine (9) years
immediately preceding the application for old-age
2
The Social Security Act was enacted by the Federal Government
in 1935. At that time the Texas Constitution was amended to author-
ize aid for the needy aged and to take advantage of the federal act,
In 1937 two constitutional amendments were added which permitted the
State to receive federal grants-in-aid and authorized State aid up to
fifteen dollars a month for the needy blind as well as assistance for
needy children. These amendments were subsequently combined and
are presently carried in the Constitution as Section 51-a of Article
III.
Hon. William S. Fly, page 5 (WW-41)
assistance and continuously for one (1) re3ar
immediately preceding such application.
There has been no substantial change ln the above quoted
language,4 and the residence requirement for the needy blind is stated
ln identical terms. 5
Although technically there is a difference in the language
used ln the residence requirements of Section 51-b and that used ln
Section 51-a(l) and 51-a(2), the simila’rity is greater than the dlffer-
ence. It has been the consistent departmental construction of the
State agency which has been charged with the duty of administering the
statutes enacted in pursuance to the provisions of Section 51-a that
the residence requirements are not cumulative, and administrators
of the Social Security Act have accepted this construction. The people
of Texas are well familiar with the welfare programs which have
been carried out pursuant to the provisions of Section 51-a. It should
be presumed that they contemplated the establishment of a similar
program to fill the remaining gap by covering an omitted class, newly
provided for by the 81st Congress.
Prior to the adoption of Section 51-b, the Legislature was
not authorized to aid needy permanently disabled persons. The only
purpose of the Legislature in passing H.J.R. 30 ’ was to submit to
the people a measure which, lf adopted, would authorize the Legisla-
ture to enact a law which would permit the State to enter into a
Federal-State cooperative program for aids to such persons. In
adopting this measure, the people evidenced their intention that the
Legislature be authorized to enact such a law. That it was never
3
H.J.R. 19, Acts 44th Leg., Reg. Sess., 1935, pp. 1227, 1228.
4
Article III, Section 51-a(1) reads, ,in part, as follows:
Y
. . . provided that no such assistance shall be
paid. . . to any person who shall not have actually
resided in Texas for at least five (5) years during
the nine (9) years immediately preceding the appli-
cation for such assistance and continuously for one
(1) year immediately preceding such application;...”
5
Article III, Section 51-a(2).
6
Acts, 54th Leg., 1955, p. 1824.
Hon. William S, Fly, page 6 (WW-41)
contemplated that any program of this type be lnstltuted unless
federal aid was obtained is evidenced by the provision in Section
51-b which states “that the amount paid out of Stats funds to
any individual may never exceed the amount paid to that individual
out of Federal funds.’ Yet obviously the people of Texas desired
to spend a substantial sum in asslstlng needy, totally and
permanently disabled parsons --up to a total of One Million Five
Hundred Thousand Dollars -per. year.
Therefore, sin’ce there is ambtguity in the constitutional
provision, any doubt as to authorization to comply with the residence
requirements of the federal act should be resolved in favor of
authorization. Any other interpretation would prevent putting into
effect this new welfare program and would thwart the evident
purpose of the people in adopting the constitutional provision. You
are therefore advised that the residence requirements imposed by
Senate Bill 61 are in conformity with the Texas Constitutional
requirements.
Under Section 51-b certain express qualifications must be
met before an applicant is qualified to receive assistance. These
constitutional limitations should be expressly included in the enabling
Act since the constitutional provision is not self-executing and since
it could not necessarily be inferred that the Legislature intended to
include all of requisite constitutional limitations.
The Constitution in identtfylng eldgible applicants described
them as being “totally and permanently disabled by reason of a
mental or physical handicap or a combination of physical and mental
handicaps and not feasible for vocational rehabilitation, . ..” (Emphasis
ours.) We call your attention to the fact that in Section 16-B of the
bill, the third paragraph on page 3 states the requirement that the
individual is not feasible for vocational rehabilitation in a clause
following the description of an individual totally and permanently
disabled by reason of a mental condition. We would suggest that
this clause be drafted so as to make it clear that this constitutional
requirement also applies to those individuals who are disabled by
reason of physical disability and to thus avoid any question of
ambiguity.
The Legislature is expressly authorized to add to the basic
constitutional restrictions 7 as long as the additional restrictions
7
Section 51-b contains the following provision:
“The Legislature shall have the power to provide by
general laws, under such limitations and restrictions as
may be deemed by the Legislature expedient, for assist-
ance to needy individuals. . .”
,
Hon. William S. Fly, page 7 (WW-41)
are not in conflict with the constitutional limitstions. With regard
to the additional restrictions contained in the bill, and without
enumerating them, you are advised that these restrictions are in
conformity not only with the constitutional provision but also with
the pertinent provisions of the Social Security Act.
SUMMARY
The residence requirements of Senate Bill 61
are in conformity with the residence requirements
of Section 51-b of Article III of the Texas Consti-
tution which requires a total residence period of
five years before assistance can be granted to a
totally and permanently disabled person. The
constitutional restrictions should be expressly
included in the bill since Section 5 l-b is not self-
executing. Section 51-b authorizes restrictions
additional to those contained therein. The addition-
al restrictions embodied in the bill are constitutional
and in conformity with the Social Security Act.
Yours very truly,
WILL WILSON
Attorney General
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
MMP:cs