                                 November    21, 1973


The Honorable A. Bryan Spires, Jr., M.D.         Opinion No. H- 157
Secretary
Texas State Board of Medical Examiners           Re:    Examination and licensing
900 Southwest Tower                                     of aliens by the Texas
Austin, Texas 78701                                     State Board of Medical
                                                        Examiners
Dear Dr. Spires:

      You have asked two questions regarding tk obligation of the Texas
State Board of Medical Examiners to examine aliens.   Your first question
seeks a reconsideration of two prior Attorney General Opinions and asks:

             “Is the Texas State Board of Medical Examiners
             required to admit to examination aliens who have
             not filed their declaration of intent to become
             citizens? ”

      Article 4501, Vernon’s Texas Civil Statutes, provides in part that,
“an applicant, to be eligible for the examination,  must be a citizen of the
United States, or have filed his declaration of intention to become a citizen
. . . . I,

         This office has twice conc,luded that the provision of Article 4501 limit-
ing examination and licensing on the baais of citizenship is constitutionally
invalid.    Attorney General Opinions O-866 (1939) and R-2247 (1950). Identical
conclusions have been reached in opinions regarding certified public account-
ants, Attorney General Opinion H-81 (19731, and vocational nurses, Attorney
General Opinion M-447 (1969).

      All of these opinions were based on the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.      The amendment
speaks of “persons” rather than “citizens, ” and it has long been settlsdthat
its guarantees extend to all persons within the territorial jurisdiction of a




                                    p. 728
The Honorable   A.   Bryan Spires,   Jr.,   page 2   (H-157)




state without regard to citizenship.     Yick Wo v. Hopkins, Sheriff, 118 U. S.
356, 369 (1886). The continuing vitality of the doctrine is demonstrated by
recent decisions of the United States Supreme Court which struck down an
Arizona law setting more stringent residency requirements for aliens than
for citizens to qualify for welfare benefits [Graham v. Richardson,       403 U.S.
365 (1971)]; a New York law limiting civil service jobs to United States citi-
aens [Sugarman v. Dougall,         U. S.-,     93 S. Ct. 2842 (1973)]; and a Con-
necticut requirement that 1aG.s       be citizens of the United States [In -. re
Griffiths, -Il.  S. -,    93 S. Ct. 2851 (1973)].

      It is still our opinion that the portion of Article 4501 which limits
admission to examination to citizens of the United States and to those per-
sons who have filed their declarations    of intention to become citizens is
unconstitutional,    The Board LL required to examine applicants without
regard to citizenship.

      In connection with your second question you indicate     that:

            II . . . individual doctors, otherwise qualified, who
            are aliens, have applied to the Board for examination
            and licensure even though the immigration     laws of the
            United States would prohibit such persons from prac-
            ticing medicine authorized by the license for the reason
            that the alien holds a visa which prohibits him from
            being employed except in a student category. ”

      Your second question asks:

            11. . . may the Texas State Board of Medical Examiners
            under the authority of Article 4496 prescribe   rules and
            regulations to insure that licenses shall be issued to aliens
            only if the applicant alien is authorized to remain in the
            United States and earn a living or be employed in a regu-
            lar non-student capacity? ”

      Article 4496, Vernon’s Texas Civil Statutes, provides in part that, “The
board may prescribe  rules, regulations and by-laws, in harmony with the pro-




                                     p. 729
--      .




     The Honorable   A.   Bryan Spires,   Jr.,   page 3 (H-157)




     visions of this title, for its own proceedings and government     for the examina-
     tion of applicants for the practice of medicine and obstetrics.    ”

           It is axiomatic that any regulations the Board adopts must conform        to
     the requirements    of the Fourteenth Amendment.

             Although your letter indicates that some applicants hold visas forbidding
     employment,      it is unlikely that any applicant is absolutely precluded from
     working in this country.        Federal regulations recognize that persons on non-
     immigrant visas may be granted permission            to obtain employment in this
     country.     8 C. F. R. $ 214. L(c) (1973). Special provisions are made for employ-
     ment of students [8 C. F. R. 5 214.2(f) (6) (1973)], of interns and residents [8
     C. F. FL 8 214. 2(h) (4) (ii) (1973)]. and of physicians [8 C. F. R. § 5 214.2(h) (2)
     (iii) (1973) and 214. 2(h) (4) (iv) (1973)].

            The power to control immigration    is vested solely in Congress.   Fang
     Yue Ting v. U.S., 149 U.S. 698, 713 (1893). The statutory scheme enacted
     by Congress is pervasive,    and a state may not enact statutes or regulations
     which curtail, interfere with or conflict with the comprehensive    Congressional
     program.    Hines v. Davidowitz.   312 U.S. 52 (1941). Any attempt to deny aliens
     a right to earn a livelihood when lawfully admitted to a state is clearly invalid.
     Truax v. Raich, 239 U.S. 33, 42 (1915); Purdy & Fitzpatrick     v. State, 456 P 2d
     645 (Cal. 1969).

             It is our conclusion that any regulation by the Board that sets special
     qualificati.ons for aliens which do not apply to citizens would be an unconstitu-
     tional interference    with the federal program of regulating immigration  and
     would be a violation of the equal protection guarantees of the Fourteenth
     Amendment to the United States Constitution.


                                     SUMMARY

                         The Texas State Board of Medical Examiners
                  may not refuse to admit to examination an alien,
                  legally within the United Stafes,but:ivho~has not
                  filed a declaration of intention to become a citi-
                  zen for any reason relating solely to his alienage,




                                          p. 730
The Honor?ble   A.   Bryan Spires,   Jr.,   page 4 (H-157)




            unless he is specifically prohibited    from taking the
            examination by federal law.

                                      Very truly yours,




                                     Attorney   General   of Texas

APPROYED:
      ”




DAVID M. KENDALL.         Chairman
Opinion Committee




                                     p. 731
