-.   .




         IionorakleDorsey B. Hardeman    ~'
         Chalrman
         State Affa!rs ComrMttee
         Senate of Texas
         Austin, Texas
                                        Opinion No. W-575
                                        R.e: Ctinstitutionalltyof
                                             Senate 3111 54, 56th
                                             Leglslatcre,,,
                                                          relating
                                             to eligibility require-
                                             ments of per,sonswho
                                             may receive public wel-
                                             fare benef!ts, and re-
         Dear Senator Hardeman:              lated questions.

                 We have received your request of March 3, 1959,
         in.‘wh!chyou seek our opinion on the valid:ityof Senate
         R-:1154 of the 56th Legislature::relatlnS toellS!.bll-tty
         reqt:'remqntscf persons who may recef.iie
                                                 ::uhI?cwelfare
         benefits or who may be.admi’ttedto eleemoeynary.inst?tu-
         tions of th?s State.
                 Senate B;ll 54 reads rn par! as follows:    '~.
                 "AN ACT relating to ellgibllity requ’re-
                     ments of persons who may receive
                     benefits from programs paid out of
                     p1~bli.c
                            funds and’!admTn!steredby the
                     Board and Department of Public Wel-
                     fare and admission to the eleemosy-
                     nary inst;tutlons'of thl.sState ?y
                     prodding that the requ:rement of
                    ~United States citizenship shall be
                     waived as to any such person who
                     meets the other rcqu:Trenenter;ccj-
                     fied in this ‘act; providtng severa-
                     bilfty and d~eclaringan einergency.
         "BE IT EXACTED BY THE LEGI%ATURE OF ,THESTATE OF TEXAS:
                "Sect;~on1. Hotwlthst~nd no,any cthei~
             provis-loneof st;tutes 01 thi:,tijtatc,
                                                  utile
             requirement thatone be a citizen of the
Hono!?ableDorsey B. Hardeman, page'2   (W-575)




     United States to be eligible to receive
     assistance from the Doard and Department
     of Public Welfare under Title 20A, Re-
     vised Civl.1Statutes of Texas, as amended,
     or to be admitted to any eleemosynary in-
     stitutions of this state under Title 51,
     Revised Civil Statutes of,Texas, as amend-
     ed, shall be waived and be of no force and
     effect as to any person who has
           "(a) Reslded in this State for at
      least twenty,(20) years; and has either
                "(1) A child who has served In
      the Armed Forces of the United States; ,or
                ,"(2), Paid ad valorem taxes on
      property in thls‘State'whlle a resident
      thereof for a period of ten (10) years."
           Section 2.     (Provides severability.)

           Section   3.   (Declares an emergency.)
      We shall first consider the effect of Senate Bill
5'1as it relates to eligibility of persons to receive
:~bl:'.c
       funds admlnistere*dand paid .by the Board and De-
partment of Public Welfare. Under Title 20A, V.A.C.S.,
the various public assistance programs are set out, as
are the eligibll,ityreq,uirementstherefor. A consistent
requirement is'that the recipient must be a citizen of
the United States. As we interpret Senate Bill 54, it
would have the effect,of removing or "waiving" the re-
quirement that reclple,ntsbe citizens of the United States,
provfded they can show themselves to come under Secti~on1,
Subsection (a) of Senate Bill 54.
      Section 51 of Article ,111of the Consti.ut!on
                                             +    .~of
Texas reads in part as follows:
          "See . 51.. The Legislatuhi  shall have
     no power to make any grant or authorize the
     making ~of any grant of public moneysto any
     Individual, association of Individuals, mu-
     niciptl or other corporations whatsoever;
     . . .    (,Wlth,certainexceptions.)
Honorable      Dorsep B. Hardeaan,      page 3 (WW-575)



           BY way ~of additional exceptiona,        Section   5la of
Article     III provides in part ae follows:
                   “Set . 51s.  The Legislature      shall have
           the power, by General Laws, to provide,           sub-
           ject to llmltatlons      and restrictions      herein
           contained,     and such other limitatlona,       re-
           strictions     and regulations   as may ,by the
           Legislature     be deemed expedient for aesie-
           tance to, and for the payment of assistanoe
           to:
                “(I)   Needy aged persons who are actual
           bona fide citizens     of Texas;, and,who art over
           the age of silty-fi,ve    J65)
            with certain other ~requirei%I’s&       ‘fckth) .
            Emphasis added.)
                “(2)   Needy blind persons who are actu-
           al bona fide citlzena  of Texas and are tver
           the age of twenty-one (21)
            with certain other requir&~~~~~‘sk*f&th).
            Emphasis ,added.)
                  “(3) Needy children who are actual
           bona fide citizens  of Texas and are ;nder
           the age of sixteen (161                 (with
           certain other re
           (Emphasis added.
                  ‘The Legislature   shall have the authori-
           ty to accept from the Federal Government of
           the United States such financial        aid for the
           assistance   of the nee,dy aged, needy blind,
           and needy.children     88 such Government may of-
           fer not lnconeietent     with restrictions     herein
           set forth;   provided,   however, that the amount
           of such assistance     out of State funds to eaoh
           peraon aaleted     rhall never exceed the $mount
           so expended out of Federal funds; . . .
          Section     51a-1, Artlole, III   or the Constitution     of
Texas reads         In part ae hollows:
                 “The Legislature   shall have the power to
          provide by Weral      Laws &nd to .make payment for
          came, under swh limltatlons     and restr,lctlons    a8
          nay be deemed by the LegiaLatur,e expedient,      for
                                                             .-




Honorable Dorsey B. Hardeman, page.4 (W-5,75)


         direct or vendor payments for medical care,
         on behalf of needy,reciplents of Old,Age
         Aaslstance, Ald,to the Blind. or Aid to
         Dependent Children as providkd’for In Sec-
         t ion 51a of Article III and on behalf of
         needy recipients of Aid to the Permanently
         and Totally Disabled as provided for in
         Secti.on51-b of Article III of the Consti-
         tution of the State of Texas. The payments
         for such medical care on behalf of such re-
         cipients shall be in addition to the direct
         assistance to such recipients, and shall be
         in such’amounts as provided by the Legisla-
         ture; provided, however, that the amounts
         paid out of State funds for such purposes
         shall never exceed the amounts paid out of
         Federal funds for such purposes.
              “The Legislature shall have the au-
         .thorityto accept from the Federal Govern-
         ment of the United States, such financial
         aid on behalf of the needy aged, needy blind,
         needy children, an,dneedy permanently and
         totally disabled persons as such Government
         may offer not 3nconsistent with restrl,ctions
         herein set forth.” (Emphasis added.)
         Section 51-b of Article III reads in part as fol-
lows :
               “Sec. 51-b.~ The Legislature shall have
          the power to provide by general laws, under
          such limitations and restrictions as may be
          deemed bs the Legislature exoedient. for as-
          sistance-to need; individuals, who are citi-
          zens of the United States, who shall ,have
          passed their eighteenth ~(18th)birthday but
          have not passed-their sixty-fifth (65th)
          birthday, who are totally and permanently
          disabled by reason of a mental or physi~cal
          handicap or .a combination of physical and
         ‘mental hand.ldapsand not feasible for voca-
          tional rehabilitation, and ryhoare residents
          of the State of Texas, . . .
              “The Legislature shall have the authori-
         ty to accep,tfrom the Government of ,theUnited
         States such financial aid for individuals who
.   .




        ::on:,r;;!:'l~c
                  Dorsey F,.hardernan.,
                                      page 5 (.WW-575)


                are permanently and totally disabled as that
                Government may offer,not inconsistent with
                the restrictions herein provided.," (Emphasis
                ours.)
               Your attention iscalied to'the fact that Section
        51a provides that needy aged persons, needy blind persons,
        and needy ch~i~ldren
                           must ,be "citizens of Texas" in order
        to be eligible for the payments therein.provi:ded.,Section
        51a-1 provides for payments for medical care on behalf of
        needy recipients of old age assistance, aid to the blind,
        or aid to dependent ch'ldren, as. provided for in Sections
        51a and 51-b, but restricts such payments to individuals
        'who are citizens of the United States." It is seen that
        in order for individuals to become eligible under the stated
        exceptions to Sectfon 51 of Article 111, they must be "citi-
        zens of Texas” or “citizens of the United States”.
               The fu~ndsprovided by the various types of public
        assistance payments are partially composed of federal funds.
        In order fora recipient to be eligible,,he must be eligible
        under the State law, as well as under the federal law and
        regulations. There is no requirement under the federal law
        that the recipient must be a citizen of the United States.
        It is merely urovided that no State mav have any ci~tizenship
         equirement-which excludes 'a y c'tizen of the United States"
        7See: 42 U.S.~C.A. Sec.,3dd    (31fi. ~,
              ‘Section 51 of Art!.cleIII prshlbits the making of any
        such grant unless the recipient may bring himself within one
        of the exceptions enumerated in Sections 51, 51a, 51a-1 or
        51-b.
               Section,,51-bof Article 111 authorizes paym$nts there-
        under only to . . . citizens of the United St$tes . Clearly
        any Act of the Legislature which attempted to waive" or re-
        move such requirement would violate that Section, as well as
        Section 51 of.Artlcle III. Section 51a and Section 5la-1
        only require the rer-i,pient
                                   thereunder to be citizens of Texas.
        Senate R<.ll5!Iw3:?l.d
                             allow payments to be made to persons who,
        under ccrta!n crndP;i.onsare not citizens of the United State?.
        ;.I&~;~
            ::I
              pcrssn be a cj.t;izen..of
                                     Texas ,vditho,u.t
                                                   i:ej.ng
                                                         a citizen of
        tllc Unl~ted   Ststes?

                2 Tex. Jcr. 677! Aliens 2 2, states, :~nsart:
                     f,
                      . . . Generally speaking, a citizen is
                one who is a member of a nation or sovereign
Honorable   Dorsey B. Hardeman, Page 6 (W-575)


       State, especially        of a republic;    one who owes
       allegiance     to a government, and Is entitled
       to protection      from it.     By the federal consti-
       tution,    ‘All persons born or naturalized         in
       the United States, and subject to the juris-
       dictl.on thereof,       are citizens    of the United
       States and of the State wherein they reside’.
       Citizens    are to be distinguished        from resl-
       dente; the terms are neither eynonymous nor
       interchangeable;       while a citizen     has the right
       of residence,      citizenship     la not implied from
       the fact of residence.          Citizens   are also dis-
       tinguished     from Inhabitants      -- who may be
       strangers --,allowed        to settle and remain in
       a country.      Aliens living in the state are
       inhabitants. ”
       2 Am.Jur. 464, Aliens      % 2, states,    in part:
               “The term ‘alien’ is defined by atatute
       as comprehending any Individual     not a natlve-
       ;;;be;r    nat~uralized citizen of the United
                . . . . .
              “The term also Includes subjects      and
       citizens   of foreign countries,    and not
       merely persons resident in the United States
       who owe allegiance    elsewhere.    Residence in
       the United States is without effect       to change
       the status of a person as an alien; and it is
       now settled    that the term ‘aliens’ as uaed in
       the Immigration Laws, includea not only ‘alien
       Immigrants’ but every alien,     irrespective    of
       any previous residence or domicile in this
       county.”
       The early case of Ex Parte Blumer, (Supreme Court)
27 Tex. 735 (18651, the Court considered who were residents
of the Confederate States for the purpose of conscription.
The Court said at page 737:
             ” hg Congress &f the Confederate
       States ? designed that the term should include
       more Than citizens,   native and naturalized,
       otherwise the word citizen   would have been
       uaed . . .”
. .   .




          Honorable Dorsey B. Hardeman, page 7 (W-575)


                 This certainly implies that a citizenship require-
          ment is more restrictive than a mere residence requirement.

                 In Town of New Hartford v. Town of Canaan, 5 A. 360,
          the Supreme Court of Errors of Connecticut, considered
          whether the son of a naturalized citizen of the United
          States acquired the status of a citizen of that State. The
          Court disoussed the attributes of citizenship and said that:
                              . The ripht of citizenship as dis-
                    tinguished from alienage, Isa national right,
                    character, or condition, and does not pertain
                    to th; individual states, separately considered.
                    . . .
                 It is well settled that a person may be a citizen of
          the United States without being a citizen of any particular
          State. (For example, a resident of the District of Colum-
          bia,,or the children of United States Ambassadors abroad);
          but we have found only one case intima,tingthe converse.
                    In lWDone1 v. State (Supreme CourtsInd.) 90 Ind. 320
          (1883),    the Court said:
                         "One may be a citizen of a State and yet
                    not a citizen of the United States."
                    However, the Court goes on to say:
                         I,
                          . . . in most of the States of the Union
                    persons who are notcitizens of the United
                    States are not admitted to State citizenship."
                 It Is, therefore, our opinion that the provisions of
          Senate B-11 jl+,which seek to waive the requirement that one
          be a citizen of the United States to be eligible to recei.ve
          assistance from the Board and Department of Public Welfare
          under Title 20 A, V.A.C.S., as amended, is prohibited by
          Sections 51, 5la, 51a-1 and 51-b of Article III of the Con-
          rtltution of the State of Texas. Section gla of;Article,,
          III of the Constitution of Texas uses the term citizens of
          Texas. This Bill would allow persons to receive such funds
          without being a citizen of Texas even though they reside in
          the State of Texas and have resided in this county for a
          period of twenty years or longer; and had a child who served
          in the Armed Forces of the United States or paid ad valorem
          taxes on property in this State while a resident for a period
                                                                .




Honorable Dorsey C. Hardenan, page 8 (WW-575)


of ten (10) years. These people are inhabitants of the
State who have been allowed to settle and rema!.nin this
country and State. They are aliens and remain as such
until they have been naturalized according to. law. In
our opinion, Senate Bill 54 violates Sections .51, 51a,
51a-1 and 51-b of Article III of the Constitution of Tex-
as insofar as It purports to allow persons not citizens
of Texas to receive publ:c assistance payments.
        Insofar as Senate Bill 54 relates to eliglblllty
of persons who are not citizens of the United States for
admission to any eleemosynary lnstitutlon of this State
under Tj~tle51, V.A.C.S, as amended, we find no constitu-
t'onal prerequisite sett?'.ngforth who may be admitted to
such Institutions. In thL~sconnection see Attorney Gen-
eral's Opinion O-2223 (1CjM). Therefore, In our opinion
 it is w!.th!nthe discretion of the Legislature to prescribe
the eligibility requirements for admlsslon into the various
eleemosynary institutions. Senate Bill 54 does not violate
the Constitution of Texas insofar as It relates to admissions
to such institutions. Reference Is made to Attorney General's
'Opinion WW-251 (1957) whi.chnames the eleemosynary institu-
tions of Texas.
       We find no violations of the Constitution:of Texas
by Senate Bill 54'other than as set out above.
                         SUMMARY
            Senate B:lll54 of the 56th Legislature
            violates Sections 51, 51a, 51a-1 and
            51-b of Article III of the Constitution
            of Texas insofar as it allows public
            assistance payments to persons not citi-
            zens of the UnIted States, because Uni-
            ted States citizenship is a prerequisite
            to being a citizen of Texas.
Honorable Dgrsey D. Hardeman, page 9 (W-575)


            Senate Bill 54 of the 56th Leg%slature
            is constitutional Insofar as it relates
            to admission requirements to the eleemo-
            synary institutions.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas

                                    &        .A     :rn&Lky
                               BY                             i,
                                    Tom I. McFarling
                                    Assistant


                               By&J               6zL.Lb
                                    Leon F. Pesek
                                    Assistant

TIM:zt:rm
APPROVED:
OPINION COMMITTEE
Geo . P. Blackburn, Chairman
Riley Eugene Fletcher
Charles D. Cabaniss
Will-iamR. Hemphill
REVIEWED FCR THE ATTORNEY GENERAL
3y : W. V. Gcgpert
