Untitled Texas Attorney General Opinion ( 1971 )

Hon. Raymond W. Vowel1 Opinion No. M- 1035
Commissioner
State Department of Public Welfare Re: Effect of Graham v.
John H. Reagan Building Richardson (U.S. Sup.
Austin, Texas 1971) upon Art. III,
Sec. 15a, Texas Con-
stitution, and Art.
695c, Sets. 12 and 20,
V.C.S., relating to
citizenship requirement
for old age assistance
Dear Mr. Vowell: and aid to the blind.
In your letter requesting an opinion from this office
you ask the following question:
'Does the United States Supreme Court
decision in Graham v. Richardeon, et al. and
Sailer, et al. v. Legar, et al., have the
effect of rendering unconstitutional the
portion6 of the Texas Constitution (Art.
III, Sec. 51-a) and the Texas statutes
(Art. 695c, Sets. 12 and 20, V.T.C.S.)
which relate to the citizenship require-
ment for old age assistance and aid to
the blind."
On June 14. 1971. the United States Sunreme Court
decided the cases of Graham v. Richardson, et al: and Sailer,
et al. v. Legar, et al., 91 S. Ct. 1848 403 U S 365 (Isn,-
affl i Graham v. Richardson, et al.: 313 F:S;pp. 34 (D.Arlz.
1970yaZ Sailer, et al. v. Legar, e Y al..,321 F;Supp. 250
(E.D.Penn. 19'10). Both cases were welfare cases. The Gr&am
case~concerned the Arizona statute orovidina benefits to
permanently and totally disabled (A-PTD). The Arizona statute,
Section 46-233A01, Arizona Revised Statutes, reads:
'No person shall be entitled to general
assistance who does not meet and maintain the
following requirements:
.
-5047-
Hon. Raymond W. Vowell, page 2 (M-1035)
"1 e Is a citizen of the United States,
or has resided in the United States a total
of fifteen years. * + *"
A like elfgfbflfty provfsfon conditioned upon citizenship or
durational residence appears in the Arizona statutes providing
old age assfstance and assistance to the needy blind. The
Appellee, Carmen Richardson, was a lawfully admitted alien. She
met all other qualfficatfons for (APTD) benefits except the 15
year residency specified for aliens by the Arizona statute. She
applied for (APTD) benefits but was denfed relief solely because
of the residency provision.
The Sailer case concerned the Pennsylvania Welfare Code,
62 P.S. Section2). It provides that those eligible for
assistance shall be (1) needy persons who qualify under the
federally-supported categorical assistance programs and (2) those
other needy persons who are citizens of the United States. The
Appellee, Elsie Legar, was a lawfully admitted resident alien,
Mrs. Sailer was fnelfgible for assistance under the federal pro-
grams and was denied State welfare assistance because of her
alienage.
The Court in its opinion bv Mr. Justice Blackmun held
thal State statutes like those of Arizona and Pennsylvania which
deny welfare benefits to lawfully admitted resident aliens or to
lawfully admitted aliens who have not resided in the United States
for a specffied number of years, violate the Equal Protection Clause
of the Fourteenth Amendment to the Unfted States Constitution and
encroach upon the exclusive federal power over the entrance and
residence of aliens. The Court also held that there was no au-
thorization for Arizona's 15 year duratfonal residency requirement
In the Socfal Security Act.
On December 13# 1971, a three-judge district court en-
tered a judgment In the United States District Court9 Southern
District of Texas, Houston Dfvfsfon in Perez9 et al, v. Hackney,
!e
et al. consolidated with Salazar V- Hackney, ea.
t a.1 * Th
Thee Perez
andazar cases were ackions oertained sorely to thed
1s which pertained sorely to
to t-permanently
tFz ectfon 16-B,
and totally disabled (AFTD), Section
Article 695c, Vernon's Civil Statutes, and aid to families with
dependent children (AFDC), Section 17, Article 695c, Vernon's
* Not yet reported.
-5048-
-
Hon. Raymond W. Vowell, page 3 (M-1035)
Civil Statutes programs.
The judgment entered in the Perez and Salazar cases
reads, in part, as follows:
,I
. . .
"1 . Portions of Article III, Section 51-a
of the Texas Constitution and Texas Revised Civil
Statutes Annotated, Article 695c, §§16-b & 17,
and the regulations Issued pursuant to them by
defendants, deny aid to applicants for Aid to
the Permanently and Totally Disabled and Aid to
Families with Dependent Children who are not
citizens of the United States. As such those
portions violate Article I, $8 and VI of the
Constitution of the United States by encroaching
upon exclusive federal power and they also
violate the equal protection clause of the
Fourteenth Amendment to the United States
Constitution."
There Is no specific provision In the Texas Constitution
relating to the citizenship requirement for aid to the permanently
and totally disabled and aid to families with dependent children,
but Sections 16-B and 17 of Article 695c, Vernon's Civil Statutes,
contain the statutory requirements for citizenship for these two
programs as follows:
'Sec. 16-B. (1) Assistance to the per-
manently and totally disabled shall be given
under the provisions of this Act to any needy
person:
"1. Who is permanently and totally dis-
abled as hereinafter defined; and
. . .
"3. Who is a citizen of the United States,
and . . .
'Sec. 17. Aid to F~amilieswith Dependent
Children shall be given under the provisions of
this Act with respect to any dependent child.
'Dependent Child' is any needy child:
-5049-
.
Hon. Raymond W. Vowell, page 4 (M-1035)
"(1) Who is a citizen of the United States,
and . . .*I
Article III, Section 51-a of the Texas Constitution
provides, in part, as follows:
"Section 51-a. The Legislature shall have
the power, by General Laws, to provide, subject
to limitations herein contained, and such other
limitations, restrictions and regulations as may
by the Legislature be deemed expedient, for
assistance grants to . e .
"(1) Needy aged persons who are citizens
of the United States or non-citizens who shall
have resided withi th boundaries of the United
States for at least twkty-five (25) years;
'(Emphasisadded.)
"(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 childzen and the
caretakers of such children. . .
The Public Welfare Act of 1941, as amended (Article 695c,
Vernon's Texas Civil Statutes) Sections 12 and 20 provide, in part,
as follows:
"Sec. 12. Assistance shall be given under
the provisions of this Act to any needy blind
person who:
11
e e .
“(6) Who is a citizen of the United States."
"Sec. 20. Old Age Assistance shall be given
under the provisions of this Act to any needy
person:
-5050-
Ron. Raymond W. Vowell,,page 5 (M-.1035)
"(2) Who is a citizen of the United States
or who is a noncitizen and has resided within the
boundaries of the United States for at least twenty-
five (25) years; and
On the basis of the United States Supreme Court decision
in Graham v. Richardson, et al. and Sailer, et al. v. Legar, et al.,
ez, et al. v. H ackney, et al. and
t is our opinion that th t portion
Texas Constitution and gections
12 and 20 of the Public Welfare Act, 1941, as amended, Article 695c,
Vernon's Civil Statutes, which make citizenship a qualification for
the old age assistance and aid to the blind programs, are in viola-
tion of the Equal Protection Clause of the United States Constitution
and encroach upon the exclusive federal power over the entrance and
residence of aliens. There 1s no authorization in the Social
Security Act for the durational residency requirement contained
in Article III, Section 51-a of the Texas Constitution and Section
20(2), Vernon's Civil Statutes.
SUMMARY
On the basis of the United States Supreme
Court decision in Graham v. Richardson, et al.,
and Sailer, et al. v. Legar, et a1 ., s ct
1848, 403 U.S. 3b5 (19'/1) that portion oh A&.icle
III, Section 51-a of the Texas Constitution and
Sections 12 and 20 of the Public Welfare Act, 1941,
as amended, Article 695c, Vernon's Civil Statutes,
which make citizenship a qualification for the old
age assistance and aid to the blind programs, are
in violation of the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitu-
tion and encroach upon the exclusive federal power
over the entrance and residence of aliens, There
is no authorization in the Social Security Act for
the durational residency requirement contained In
Article III, Section 51-a of the Texas Constitution
and Section 20(2), Article 695c, Vernon's Civil
Statutes.
truly yfurs,
C. MARTIN
ey General of Texas
. .
Hon. Raymond W. Vowell, page 6 (M-1035)
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sig Aronson
John Reeves
Jerry Roberts
R. D. Green
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-5052-