. .
THE L~TITORNEY GE,I'ERAJ.
OFTEXAS
Honorable Preston Smith Opinion No. M-869
Governor of Texas
Capitol Building Re : Whether certain provisions of
Austin, Texas 78711 Section 51-a, Article III of
the Constitution of Texas
authorize the Legislature to
specify limitations in excess
of the Eighty Million Dollar
($80,000,000.00) ceiling when
federal matching funds are
available for assistance
and/or medical care for or
Dear Governor Smith: on behalf of needy persons?
You have requested the opinion of this office as to
whether the following provision contained in Section 51-a of
Article III of the Constitution of Texas:
“Provided further, that if the limitations
and restrictions herein conta’iiied are found to
be in conflict with the provisions of appro-
as they now are or as
he extent that federal
matching money is not available to the state
for these purposes, then and in that event
the Legislature is specifically authorized and
empowered to prescribe such limitations and
restrictions and enact such laws as may be
necessary in order that such federal matching
money will be available for assistance and/or
medical care for or on behalf of needy persons.”
(Emphasis added.),
would authorize the Legislature to specify limitations in excess
of the Eighty Million Dollar ($80,000,000.00) ceiling when federal
matching funds are available for assistance and/or medical care
for or on behalf of needy persons.
In addition to the above quoted provision, Section 51-a
-4221-
Hon. Preston Smith, page 2 (M-869)
of Article III of the Constitution of Texas, which was adopted
by the voters on August 5, 1969, also provides that:
“The Legislature shall have the power, by
General Law,-to provide, subject to limitations
herein contained, and such other limitations,
restrictions and reeulations as mav bv the
Legislature be deemed expedient, for assistance
grants to and/or medical care for . . .
“(1) Needy aged persons who are citizens
of the United States or noncitizens who shall
have resided within the boundaries of the United
States for at least twenty-five (25) years;
“(2) Needy individuals who are totally and
permanently disabled by reason of a mental or
physical handicap or a combination of physical
and mental handicaps;
“(3) Needy blind persons;
“(4) Needy dependent children and the care-
takers of such children;
I, . . .
II. . . provided that the maximum amount paid
out of state funds to or on behalf of anv needv
person shall not exceed the amount that is match-
able out of federal funds; provided that the total
amount of such assistance payments only out of
state funds on behalf of such individuals shall
not exceed the amount of Eighty Million Dollars
($80.000.000) during any fiscal year . . .”
(Emphasis added.)
It may prove helpful at this point to provide a his-
torical background regarding the adoption of constitutional pro-
visions in the State of Texas relating to financial assistance
authorized to be paid by the State of Texas to certain needy in-
dividuals.
Section 51 of Article III of the Constitution of Texas
-&222-
Hon. Preston Smith, page 3 (M-869)
in its original form as placed in the Constitution of 1876 was
a prohibition placed upon the Legislature that it:
II. . . shall have no power to make any grant
or authorize the making of any grant of public
moneys to any individual, association of individuals,
municipal or other corporations whatsoever . . .ll
The above prohibition has been retained in Section 51 of Article
III of the Constitution of Texas from the date of the adoption of
the Constitution of 1876 to the present time. It has not been
repealed. Exceptions to such prohibition have been made from
time to time rather than repealing the prohibition. Therefore,
in order to provide the payment of assistance to needy individuals,
various constitutional amendments permitting such assistance have
from time to time been adopted by the people of Texas.
In 1933, Section 51-a of Article III of the Constitution
of Texas was adopted which authorized the issuance and sale of
bonds of the State of Texas not to exceed the sum of $20,000,000.00,
II. . . the proceeds of the sale of such bonds to be used in
financing relief and work relief to needy and distressed people
and in relieving the hardships resulting from unemployment . . .'I
S.J.R. No. 30 of the 43rd Legislature, 1933.
In 1935, the Constitution was again amended so as to
authorize Old Age Assistance to "actual bona fide citizens of
Texas who are over the age of sixty-five (65) years , . .I' H.J.R.
-4223-
Hon. Preston Smith, page 4 (M-869)
No. 19 of the 44th Legislature, 1935. Article III, Section 51-b,
Constitution of Texas. The maximum grant out of State funds was
$15.00 per month per recipient.
In 1937,the Constitution was amended to provide for as-
sistance “to destitute children under the age of fourteen (14)
years . . .‘I H.J.R. No. 26-a of the 44th Legislature, 1937.
Article III, Section 51-d of the Constitution of Texas. The
maximum grant out of State funds was not to exceed $8.00 per
month for one child, nor more than $12.00 per month for children
in one family, with a maximum overall limit out of State funds
not to exceed $1,500,000.00 per year.
In 1945, the above referred to amendments were consoli-
dated into Section 51-a of Article III of the Constitution of
Texas, as well as broadening the class of citizens eligible to
receive grants of public moneys by the State of Texas. H.J.R.
No; 13 of the 49th Legislature, 1945. The foregoing limited
payments out of State funds per individual to $20.00 for Old
Age Assistance; provided no individual limit for Aid to the
Blind; and removed the maximum for Aid to Dependent Children;
and placed a $35,000,000.00 per year limit on State funds for
the three programs combined.
In 1951, the Legislature submitted to the voters
H.J.R. No. 6 of the 52nd Legislature, but such constitutional
provision was defeated. It would have eliminated citizenship
and have reworded the residence requirements on all three
-4224-
Hon. Preston Smith, page 5 (M-869)
programs. It provided a maximum per individual Old Age Assistance
recipeint of $30.00 out of State funds and raised the overall
maximum out of State funds from $35,000,000.00 to $42,000,000.00.
In 1954, an amendment was made to Section 51-a of Article
III of the Constitution of Texas. S.J.R. No. 7 of the 53rd Legis-
lature. This provision provided a maximum of $20.00 out of State
funds for Old Age Assistance per individual and raised the ceil-
ing of total expenditures on the part of the State from $35,000,000.00
to $42,000,000.00.
In 1956, amendments to Article III, Section 51-b-1 were
adopted. H.J.R. No. 30 of the 54th Legislature. This provided
for Aid to the Permanently and Totally Disabled and placed a limit
not to exceed $20.00 per month per individual, and a total over-
all maximum out of State funds not to exceed $1,500,000.00 per
year.
In 1958, Section 51-a-1, Article III of the Constitution
of Texas was added. H.J.R. No. 36 of the 55th Legislature. This
provided for vendor medical care on behalf of Old Age Assistance,
Aid to the Blind, Aid to Dependent Children and Aid to the Permanent-
ly and Totally Disabled. The only limit as to amounts was that the
expenditure of State funds could not exceed payments out of Federal
funds.
In 1957, an amendment was adopted to Section 51-a of
-4225-
Hon. Preston Smith, page 6 (M-869)
Article III of the Constitution of Texas. H.J.R. No. 2 of the
55th Legislature. This amendment placed a maximum of $25.00 per
Old Age Assistance recipient, or $21.00 until additional amounts
were matched by the Federal Government. This provision raised
the ceiling from $42,000,000.00 to $47,000,000.00 payable from
State funds.
In 1962, an amendment was enacted to Section 51-a of
Article III of the Constitution of Texas. S.J.R. No. 9 of the
57th Legislature. This constitutional amendment raised the ceil-
ing from $47,000,000.00 to $52,000,000 .OO for Old Age Assistance,
Aid to the Blind, and Aid to Dependent Children. This provision
retained the maximum of $25.00 per ind ,ividual Old Age Assistance
recipient.
In 1962, an amendment was made to Section 51-b of Article
III of the Constitution of Texas. S.J.R. No. 7 of the 57th Legis-
lature. It raised the ceiling in connection with the Aid to the
Permanently and Totally Disabled from $1,500,000.00 to $2,500,000.00.
In 1963, an amendment was made combining Sections 51-a
and 51-b-1 of Article III of the Constitution of Texas to be known
as Article 51-a. It dealt with Old Age Assistance, Aid to the
Blind, Aid to Dependent Children and Aid to the Permanently and
Totally Disabled. This provision raised the ceiling from
$52,000,000.00 to $60,000,000.00 and changed residence requirements
-4226-
Hon. Preston Smith, page 7 (M-869)
on all programs. The dollar maximum on individual Old Age As-
sistance cases was deleted. S.J.R. 21 of the 58th Legislature.
In 1965, an amendment combined Section 51-a and Sub-
sections 51-a-l and 51-a-2 of Article III of the Constitution of
Texas to be known as Section 51-a of Article III of the Constitu-
tion of Texas. It provided for assistance grants for Old Age
Assistance, Aid to the Blind, Aid to Families with Dependent
Children and Aid to the Permanently and Totally Disabled, and
medical assistance for all categories, and medical assistance
for all non-categories. A $60,000,000.00 maximum on grants only
was retained. H.J.R. No. 81 of the 59th Legislature.
In 1968, S.J.R. No. 41 of the 60th Legislature was sub-
mitted tothe voters. This proposed constitutional amendment
which would have raised the ceiling on State expenditures for the
various programs from $60,000,000.00 to $75,000,000.00 was de-
feated by the voters.
S.J.R. No. 8 of the 61st Legislature, which was adopted
on August 5, 1969, constitutes the present Section 51-a of Article
III of the Constitution of Texas. The ceiling was raised from
$60,000,000.00 to $80,000,000.00 on assistance grants which could
be made to the four categories of recipients -- the aged (OAA),
the blind (AB), the totally and permanently disabled (APTD) and
dependent children (AFDC). Out of the additional $20,000,000.00,
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Hon. Preston Smith, page 8 (M-869)
the sum of $15,000,000.00 was appropriated for each fiscal year
beginning on September 1, 1969, and ending on August 31, 1971.
See also the case of Jefferson v. Hackney, 304 F.Supp.
1332 (N.D. Texas, 1969) for a further historical background of
the constitutional amendments pertaining to public welfare as-
sistance.
On May 18, 1971, the voters of Texas defeated a pro-
posed constitutional amendment, S.J.R. 5 of the 62nd Legislature,
Regular Session, 1971, which would have removed the limitation or
ceiling upon State expenditure for assistance grants to the needy
aged, needy disabled, and needy blind, but would have retained a
limitation or ceiling upon assistance grants for needy children
and the caretakers of such children,
On May 20, 1971, S.J.R. 57 and S.J.R. 58 were intro-
duced in the Legislature. Each of such proposed amendments to
Section 51-a of Article III of the Constitution of Texas would
remove the ceiling or limitation upon assistance grants to the
four categories of welfare recipients.
The foregoing historical review of the constitutional
amendments, concerning State expenditures for assistance grants
to welfare recipients, discloses that for over thirty-five (35)
years the Legislature has consistently followed a pattern of sub-
mitting constitutional amendments to the voters of the State of
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Hon. Preston Smith, page 9 (M-869)
Texas which would limit the increase in expenditures of State
funds for welfare assistance grants to a specified amount or
ceiling. The only proposed constitutional amendment submitted
to the voters by the Legislature which would have removed the
ce i ling or limitation as to assistance grants to some recipients
of public welfare was S.J.R. 5 which was defeated by the voters
on May 18, 1971.
It is also enlightening to note at this point that
S.J.R. 9, adopted by the voters on November 6, 1962, and which
raised the limitation or ceiling upon welfare assistance grants
from $47,000,000 to $52,000,000, was initially introduced in a
form which would have completely removed the limitation or ceil-
ing . See the Senate Journal for the 57th Legislature, Regular
Session, 1961, pp. 1330-1333. In addition, S.J.R. 21, adopted
by the voters on November 9, 1963, and which ra ised the welfare
assistance grant ceiling or limitation from $52 ,ooo,ooo to
$60,000,000, was also initially introduced in a form which would
have completely removed such limitation or ceiling. See the
Senate Journal for the 58th Legislature, Regular Session, 1963,
PP. 144, 397, 1259, and House Journal for the 58th Legislature,
Regular Session, 1963, pp. 1968-1971.
In this same vein, numerous proposed constitutional
amendments have been introduced in the Legislature which had
as their purpose the removal of the ceiling or limitation upon
expenditure of State funds for welfare assistance grants. See
-422g-
Hon. Preston Smith, page 10 (M-869)
for example H.J.R. 16 of the 50th Leg islature, 1947, Regular
Session (House Journal p. 206); H.J.R. 37 of the 54th Legislature,
1955, Regular Session (House Journal p. 603); H.J.R. 11 of the 55th
Legislature, 1957, Regular Session (House Journal p. 133).
In light of the foregoing historical background, it
is evident that the Legislature had not departed from some
thirty-five (35) years of custom or practice when it submitted
S.J.R. 8 of the 61st Legislature, Regular Session, 1969, the
present Section 51a of Article III of the Constitution of Texas,
to the voters. The present constitutional amendment authorizing
assistance grants to welfare recipients once again raised the
ceiling but did not remove it.
In determining the meaning of a constitutional pro-
vision the court will give weight to a construction given it by
the legislative or executive branch of government. American
Indemnity Co. v. Austin, 112 Tex. 239, 246 S.W . 1019 (1922);
Hill County v. Sheppard, 142 Tex. 358, 178 S.W'.2d 261 (1944);
Walker v. Baker, 145 Tex. 321, 196 S.W.2d 324 (1946); Koy v.
Schneider, 110 Tex. 369, 218 S.W. 479 (1920). A constitutional
provision is to be construed with a view of understanding the
intention of the voters, and their purpose should be ascertained
and followed. Cox v. Robinson, 105 Tex. 426 (1912); Williams v.
Castleman, 112 Tex. 193, 247 S.W. 263 (1922); Collingsworth County
-4230-
.
Hon. Preston Smith, page 11 (M-869)
v. Allrcd, 120 Tex. 473, 40 S.W.2d 13 (1331); Deason v. Orange
County Water Control & Improvement District, 151 Tex. 29, 244
S.W.2d 981 (1.952). No part of the constitution may be allowed
to defeat another part of the constitution if by any rea~sona~ble
construction the two can be made to stand together. Lastro v.
State, 3 Crim.Rep. 363 (1878). An interpretation that would
produce conflict between provisions of the constitution will
be avoi.ded
, and the provisions will be so construed, if possible,
so as to reconcile apparent repugnancies and give effect to
every part. Holman v. Broadway Improv. Co., 300 S.W. 15
(Tex.Comm.App. 1927); Collingsworth County v. Allred, supra;
Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1931); Texas
National Guard Armory Board v. McGraw, 132 Tex. 613, 126 S.W.2d
627 (1939); Hanson v. Jordan, 145 Tex. 320, 198 S.W.2d 262 (1946).
Applying the foregoing gneeral provisions of law
concerning the construction and Interpretation of the provisions
of our state constitution to the historical background of Section 51-a
of Article III of the Constitution of Texas can lead to but one
conclusion. The Legislature for over thirty-five (35) years has
treated the limitation or ceiling contained in our Constitution
as to welfare assistance grants as just that--a limitation or
restriction upon the amount of state funds which could be ap-
propriated 3n-l s,.cnL. Whenever It was sought to increase this
celling or limitation, it was done by submitting a constitutional
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.
Hon. Preston Smith, page 12 (M-869)
assistance grants as just that--a limitation or restriction
upon the amount of state funds which could be appropriated and
spent. Whenever it was sought to Increase this celling or
limitation, it was done by submitting a constitutional amendment
for action by the voters. (See the recommendation of the Report
of the Senate Interim Committee on Welfare 'Reform--Breaking
the Poverty Cycle in Texas-p. 52). All attempts by the
Legislature to remove such celling or limitation have met with
no success In the Legislature with the exception of S.J.R. 5
of the 62nd Legislature, Regular Session, 1971, which was
submitted to the voters on May 18, 1971, and which was defeated.
Certainly, no more striking example could be given to disclose
the intention of the voters as well as the Legislature. Once
the will of the voter has spoken, It Is not for the courts or
this office to supplant or thwart this decision of the electorate
but to follow their mandate. See authorities previously cited.
Also, if a change Is to be effected Into the Constitution, only
the people can make it--the courts cannot and will not. Carpenter
v. Sheppard, 135 Tex. 413, 145 S.W.2d 562 (1940).
Also, to construe one portion of Section 51-a of
Article III of the Constitution of Texas in such a manner as to
negate another portion of the Constitution is completely repugnant
to the rules of construction previously cited. The initial provisions
of Section 51-a of Article III of the Constitution clearly places a
llmltatlon or ceiling of $80,000,000 on the expenditure of state funds
for welfare assistance grants. To construe the remaining portions of
Section 51-a of Article III so as to completely remove such limitation
would defeat the clear intent of both the voter and Legislature.
-b232-
. .
Hon. Preston Smith, page 13 (M-869)
Consequently, we are of the opinion that none of
the provisions of Section 51-a of Article III of the Constitu-
tion of Texas have the effect of removing the $8O,OOO,OOO limlta-
tlon upon the expenditure of state funds for assistance grants
to recipients of public welfare in the absence of any showing
that such ceiling or limitation is in conflict with the pro-
visions of appropriate federal statutes.
The authority granted to the Legislature in that
portion of Section 51-a of Article III of the Constitution of
Texas, to which you have referred in your opinion request,
is a conditional authority. The Legislature is authorized
to act only if:
"(1) the limitations and restrictions
herein contal;ed /Section 51-a of Article IIITare
found to be in coiiflictwith the provisions ?if
appropriate federal statutes . . ., and, to the
extent that
"(2) . . . federal matching money is not
available to the state for these purposes. . .' 1
r The provisions of Section 51-a, Article III in question was
initially proposed by H.J.R. 81 in 1965 and was approved by the
voters on November 2, 1965, and has remained a portion of Section
51-a of Article III since such date being, once again incorporated
into the amendment made to Section 51-a of Article III in 1969.
A study of the Medical Assistance Act of 1967, Article 6953-1,
V.C.S., enacted to implement the provisions and requirements of
Title XIX of the Social Security Act (Social Security Amendments
of 1965 - Public Law 89-97) and the programs which will ultimately
have to be implemented by the states to comply with the provisions
of Title XIX of the Social Security Act, lead to the conclusion
that the Legislature undoubtedly inserted the provision in question
in Section 51-a of Article III to gain authorization to ultimately
Implement these programs at a future date or as r
law. See in this connection Atty. Gen. Op. M-20 t~~~~e”&“~-~f”tf~~7).
-'4233-
.
.
Hon. Prest3n Smith, page 14 (M-869)
This then raises the question of whether the present
limitations or ceilings upon state expenditure of funds for
welfare assistance grants are In conflict with existing federal
statutes.
In the case of King v. Smith, 392 U.S. 309, 88 S.Ct.
2128, 2'3L.Ed.2d 1118 (1968) the court had before It certain
questions pertaining to the operation of the AFDC programs
(aid to needy children) In Alabama. The Court In Its opinion
made the following observation:
II
. . . There is no question that States have
considerable latitude In allocating their AFDC
resources, since each State Is free to set its
own standard of need and to determine the level
of benefits by the amount of funds it devotes to
the program. . . .- (Emphasis added.)
In addition, at page 319, footnote 15 provides that:
"The rather complicated formula for federal
funding Is contained in 42 U.S.C. $603. The
level of benefits Is within the State's discretion,
but the Federal Government's contribution is a
varying percentage of the total AFDC expenditures
within each State. . . .' (Emphasis added.)
In the case of Rosado v. Wyman, 397 U.S. 397, 90
S.Ct. 1207, 25 L.Ed.2d 442 (1970) the court stated In its opinion
that:
'We begin with a brief review of the
general structure of the Federal Aid to Families
With Dependent Children (AFDC) program, one of
the four 'categorical assistance' programs es-
tablished by the Social Security Act of lYj5 .
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.
.
.
Hon. Preston Smith, page lj (M-869)
'lnegeneral topography of the AFDC program
was mapped in part by this Court in King v. Smith,
392 U.S. 309 (19681, and several lower court
opinions, in addition to the opinion below, have
surveyed the pertinent statutory and regulatory
provisions. While participating states must
comply with the terms of the federal legislation,
see King v. Smith, supra, the program is basically
voluntary and states have traditionally been at
liberty to pay as little or as much as they choose,
. . . (Emphasis added.)
In the case of Dandridge v. Williams, 397 U.S. 471,
90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) the court stated that:
"In King v. Smith, supra, we stressed the
states' 'undisputed power' under these provisions
of the Social Security Act, 'to set the level of
benefits and the standard of need.' Id., at 334.
We described the AFDC enterprise as 'a scheme of
cooperative federalism 'Id., at 316, and noted
carefully that ' rt7here Is no question that
states have consiTeFable latitude in allocating
their AFDC resources, since each state is free
to set Its own standard of need and to determine
the level of benefits by the amount of funds
It devotes to the program. 'Id., at 318-319.'
"Congress was Itself cognizant of the
limitations on state resources from the very
outset of the federal welfare program. The
first section of the Act, 42 U.S.C. $601 (1964
ed., Supp. IV), provides that the Act is
'For the purpose of encouraging the care
of dependent children In their own homes or in
the homes of relatives by enabling each state
to furnish financial assistance and rehabilita-
tion and other services, as far as practicable
under the conditions in such state, to needy
dependent children. . . .I" [Emphasis by the
Court.)
-4235-
,
Hon. Preston Smith , page 16 (M-869)
These recent decisions by the United States Supreme
Court completely negate the possibility that there presently
exists any conflict between the monetary limitation or celling
that Section 51-a of Article III of the Constitution of Texas
places upon the expenditure of state funds for assistance
grants to welfare recipients and federal legislation In this
area.
Consequently, as there exists no conflict between
the monetary limitations of Section 51-a of Article III of the
Constitution of Texas and the Social Security Act of 1935,
as amended, the conditional authorization given to the Legls-
lature in that portion of Section 51-a of Article III which
is the subject of this opinion remains Inoperative, and does
not authorize the Legislature to appropriate funds in excess
of $80,000,000 for assistance grants to the four categories
of welfare assistance.
It should be noted at this point that expenditures
of state funds for medical assistance to welfare recipients
has no celling or limitation placed upon it by the provisions
of Section 51-a of Article III of the Constitution of Texas.
SUMMARY
None of the provisions of Section 51-a of
Article III of the Constitution of Texas have the
effect of removing the $80,000,000 limitation or
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. .
.
. .
Hon. Preston Smith, page 17 (M-869)
celling upon the expenditure of State funds
for assistance grants to recipients of public
welfare in the absence of any showing that
such ceiling or limitation is in conflict with
the provisions of appropriate federal statutes.
The authority granted to the Legislature In
the penultimate paragraph of Section 51-a of
Article III of the Constitution of Texas is a
conditional authority which would only become
operative in the event that the limitations or
restrictions contained in Section 51-a of
Article III are found to be In conflict with
federal statutes.
The monetarg restrictions or limitations
upon the expenditure of state funds for assistance
grants to recipients of welfare assistance found
in Section 51-a of Article III of the Constitution
of Texas are not In conflict with the corresponding
orovislons of the Social Securlts Act of 1915. as
&ef;dezO ting v. Smith, 392 U.S."309, 88 S:ct:
Ed 2d 1118 (1968); Rosado v. Wyman,
97 6.s. 397;90 s.ct. 1207, 25 L Ed 2 442
1970); Dandridge v. Williams, 39: U1.S:'
471, 90
S.Ct. 1153, 25 L.Ed.2d 491 (199).
Attor&y General of Texas
Prepared by Pat Bailey
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James H. Broadhurst
Bob Flowers
Dyer Moore, Jr.
J. C. Davis
-4237-
. .
Hon. Preston Smith, page 18 (M-869)
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Exeoltive Assistant
NOLA WHITE
First Assistant
-4238-