The     Honorable            L.     Ludwell          Jones                             Opinion      No.       H-     81
Chairman,            Texas         State       Board        of
Public       Accountancy                                                               Re:         Requirement              that a
Perry        Brooks         Building                                                              person           to be certified
Austin,         Texas       78701                                                                  as a certified            public
                                                                                                   accountant             be a citizen
Dear      Mr.       Jones:                                                                         of the United            States


       In your       letter       of July          12,    you      state     that the Texas            State       Board     of Public
Accountancy             has       received          a reciprocal             application         which        it would       like    to
approve         provided          the United              States      citizenship           requirement            of Article        41a,
$12,      Vernon’s          Texas          Civil     Statutes,             the Public        Accountancy            Act    of 1945
(hereafter           “the     Act”)        does      not apply           to reciprocal          applicants          and provided
further       that    the foreign              accounting            body        granting     the original           certificate
agrees       to reciprocate                 in a like          manner.


       The      granting          of a certificate               by reciprocity              is governed           by $13     of the
Act,     which       provides             in part:


                     “(a)      The        Board          may     in its     discretion        waive         the
             examination              of,      and may           issue       a certificate        of
              ‘Certified          Public         Accountant’               tq any person          possess-
             ing the other                qualifications             mentioned          in Section          12 of
             this     Act     . .     .    ”


       Section       12 of the            Act,      delineating             those    entitled      to be certificated,                states
that the certificate                  of a Certified               Ptiblic       Accountant        shall       be granted           by the
Board        to any person:


                     “(a)      Who        is a citizen             of the     United     States        or
             who,       if not a citizen,                  has     lived     in the State        of Texas
             for     the ninety            days      immediately                 preceding       the date
             of submitting                to the Board              the initial        application          to
             take     the written              examination               conducted          by the Boar,d




                                                                    p.     367
The     Honorable               L.     LudweILI Jones,               page       2        (H-81)




               for     the purpose              of granting            a certificate                 of ‘Certified
               Public          Accountant.‘,            or has         ma~intained              his        permanent
               legal        residence           in Texas         for      the     six      months            immed-
               la,t&y        prece&ing           said    date     of submissi,on;                     and


                       “(‘b)     Who       i,s a resident            of the State               of Texas,             or
               has     a pl.ace         of business            therein,          or as an employee,
               ‘1s regularly             employed          therein,             and provided                  that    any
               person          who      shall{ have        qualified            to take          the       examination
               for     the certificate               in th,,is stat:e,           and who,                 while      so
               qualified             shall,:! have      received           credit.        for       all    or any part
               thereof,          s’ha1.l rema,in           qu;l.li,fied         under          this       Subsection
               until        he rece,ives         his     certyificate;              .    . .    ”


        Prior        t:u amendmerIt              of the st:atute             in 1971. (Acts                 1971,     62nd         Leg.,      p. 935,
ch.     146)     $12        of 1:he Act         merel,,y       provided:


                      “Wh,o          is 3, citizen       of the Unitted States                        or has         duly
               decl.ared         his     intention        of becoming                   such        citizen;         . .    . ‘I


        This     office         on several           occasions            has       held       licens,ing            statutes        which      require,
as a condition                 precedent         t:hst applicants                for       license           be citizens            of the United
States,,        are        unconstitut.lonal.              in v;olation                 of the Fourteenth                   Amendment              to the
Constitution                of the United            States.         For        instance,                 Opini,on        O-866      (1939)     held
unconstitutional,                and vo’id the           requirement                    of Article            4501,        V. T. C. S. , ‘that          an
appiicact            for     Recense       to practi~re         medi~ci,ne               must        ‘be a citizen           of the   United
States      or have            fi!ed     his    decI,aPation           of intention                 to become              a citizen.    See           also
Attorney         General              Op,ir&n        R,-2247      (1950).


        In 1969        the     sd.me      ruI1.e was       appl,ied         ,in At:torney                 General          Opinion         M-447       (1969)
to Article            4528~          auempting          t:o l,imit        :Kcensure             of \oca,tiona:l,            nurses         to citizens
of the Un;ted                States.


        These         opi.nixr~s        may     hd!T~e prompted                 the amendment                       in 1971 to $ 12.            .We doubt,
however,             t.hat l.hey achieved                tha,t: resu1l.t.               It: is our         opin:on         t.hat 5 i2 as amended
still    1imil:s       certif        icat:ion    to cit:izens          of the           United        States         or to non-citizens                 who
have     lived        in t:he State            of Texas        for     :uinety           days       or who have              maintained            permanent
legal      resideu            e for      six    months.          No such                cunditions           are      imposed          upon     those       who




                                                                     p.     368
      The     Honorable            L.    Ludwell         Jones,     page            3    (H-81)




      are     citizens.          Citizens         of the     United      States           may         be certificated            wherever             they
      have     lived      for    the ninety          day period          or     regardless                of whether           they     have        main-
      tained      a legal        residence          in Texas       for        six       months.           In our       opinion         this    consti-
      tutes     an invidious             discrj.mination           which            cannot        be justified           as a reasonable
      classification             when      applied       to an alien           who has            lawfully         been     admitted           to this
      country.           Graham          v.   Richardson,           403        U.S.        365,         29 L. Ed.2d            534,     91 S. Ct.
      1848     (1971).      However,              a non-resident              aliin,           i. e.,     one who          is not resident                in
      the United          States,       is not protected           by the Fourteenth                          Amendment               to the Con-
      stitution        of the Unitred States               and therefore,                  we think,            the provis.ions               and
      requirements               of the statute,           as applied           to such            a person            would     be valid.


             Therefore,               it is our     opinion       that    as to reciprocity,                       an alien       resident           of
      the     United      States,        who holds         a certificate                 as Certified             Public       Accountant            issued
      under      the laws          of any        state   or territory               or its       equivalent            having         been     issued
      in any foreign             country         shall    be entitled           to reciprocal                   certification           as a
      Certified          Pub1i.c       Accountant         if he meets               the other            requirements             of 5 $ 12 and
      13 as to age,             character,           educati,on,         etc.


                                                         SUMMARY


                          Aliens         who lawfully         reside          in the United                   States    may,
                  not ‘be denied              the right       to be      reciprocally                   licensed        under
                  State         law     sole?y     because        they    are           not citizens             and may
                  not be subjected                 to Texas        residency               requirements                 which
                  are      not imposed             upon    United        States           citizens.             Non-resident
                  aliens         may      ‘be const:itutional.ly              subjected            to such         residency
                   requirements.


                                                                          Very           truly        yours,


                                                                                            xj?i&
                                                                          JOHN            L.      H       L
                                                                          Attorney               General          of Texas




JwC




      DAVID       M.      KENDALL,                Chairman
      Opinion       Committee                                       p.        369
