Untitled Texas Attorney General Opinion ( 1946 )

THEA~TORNEYGENERAL
OF %-EXAS
Honorable John H. Winters, Executive Director
State Department of Public Welfare
Austin, Texas
Dear Sir: Opinion NO. o-7496
Re: Is a woman who was a native born
American citizen but who was
expatriated because of her mar-
riage to an alien and who comes
within the provisions of the
statutes of June 25, 1936, and
the amendatory act of July 2,
1940, eligible to apply for and
receive assistance before she
has taken the Oath of Allegiance?
In your letter of November 8, 1946, you stated that in
. the administration of old age assistance and ai.dto the needy
blind your department has had the occasion to consider the
citizenship status of many women who were born Ianthe Uni.ted
States but whose citizenship had been affected by reason of
their marriage to aliens during the period of time when the
Federal Law provided that the marriage of a native born woman
to an alien resulted in her expatriation. You further state
that many of these people are applying to you for aid who come
within the purview of the Repatriation Act of June 25, 1936,
as amended on July 2, 1940, except for the fact that they have
not taken the oath of allegiance as Is provided therein. With
these facts In mind, you have posed the captioned question of
whether these women are eligi,bleto apply and receive assistance
before they have taken the oath of allegiance.
Before a woman is eligible to receive old age assistance
or assistance to the needy blLnd, she must be a citizen of the
United States. Article 695cSection 12 and Section 20, V.A.C.S.
Your question therefore Is whether a woman comi within the
provlslons of the above said Act of June 25, 193“$5 as amended
July 2, 1940, is a citizen of the United States within our Pub-
lic Welfare Act before she takes the oath of allegiance.
This Act reads as follows:
“That hereafter a woman, being a native-
born citizen, who has or is believed to have
.- ,
Honorable John H. Winters, page 2 o-7496
lost her United States Citizenship solely by rea-
son of her marriage prior to September 22, 1922,
to an alien, and whose marital status with such
alien has or shall have terminated, or who has
resided continuously in the United States since
the date of such marriage, shall be deemed to be
a citizen of the United States to the same extent
as though her marriage to said ali,enhad taken
place on or after September 22, 1922: Provided,
however, that no such woman shall have or claim
any rights as a citizen of the United Statesuntil
she shall have duly taken the oath of allegiance
as prescribed in section 4 of the Act approved June
29, 1906."
Although the cases upon the point involved herein are
few, they are unfortunately~in conflict. The courts in the
cases of In re Waston's Repatriation, 42 F. Supp. 163, and
Petition dDavls, 53 F. SUQQ. 426 held that the woman re-
gained citizenship on June 25, 1936, the effective date of the
act, and that it was unnecessary for her to take the oath of
allegiance except as tangible evidence of the existence of her
rights of citizenship. These cases are authority for the pro-
position that every woman coming within the purview of the
Act of June 25, 1936, on that day became a citizen of the
United States, yet these courts said that such a woman "Is not
entitled to any rights or privileges as a citizen of the United
States until she shall have taken an oath of allegiance to the
United States."
The foreaolna cases have been criticized and deemed,
weak by subsequent d&lsions. In re Portner, 56 F. Supp. 103;
Petition of Norbeck, 65 F, Supp. 748. These cases have pointed
out that the traditional function of an oath of allegiance in
restoration of citizenship or the assumption of citizenship, is
to mark the time when the assumption of duties as well as the
rights and privileges of citizenship, takes place.
This department la of the opinion that these subsequent
decisions coupled with the considerations set forth in the case
of Shellg v. United States, 120 F.2d 734, present the proper
construction that should be placed on this Act. We further be-
lieve that even under the former decisions, a woman who has not
taken the oath of allegiance could not receive assistance under
our Welfare Act, for receiving such assistance is a right or
privilege enjoyed only by a United States citizen; as heretofore
shown, these former decisions recognize that although a woman
automatically becomes a citizen on June 25, 1936, she is not
entitled to the rights or privileges of a citizen until ahe has
taken the oath of allegiance.
Honorable John H. Winters, page 3 o-7496
In view of the foregoing, we answer your question In
the negative.
We call your attention to the fact that this Act of
June 25, 1936, as amended July 2, 1940, was repealed by the
Nationality Act of 1940, however the repeal did not terminate
the nationality acquired under,this Act of June 25, 1936.
Under the Nationality Act of 1940, 8 U.S.C.A. Section 717 (b)
(l), it is rather well established~from the plain language of
the act and the interpretation placed thereon that a woman
coming within its Qrovislons becomes a citizen from and after
taking the oath of allegiance.
We trust that the foregoing satisfactorily answers
your question.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Robert 0. Koch
Roberts0. Koch
Assistant
ROK:ms:wc
APPROVZI DEC 7, 1946
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman