                           ATTORNEY           GENERAL       OF   TEXAS
                                       GREG       ABBOTT




                                            July 22,2004



The Honorable Jane Nelson                             Opinion No. GA-02 19
Chair, Health and Human Services Committee
Texas State Senate                                    Re:     Whether section 285.201, Health and
Post Office Box 12068                                 Safety Code, requires a hospital district to
Austin, Texas 7871 l-2068                             provide nonemergency public health services
                                                      to undocumented     persons who are otherwise
                                                      ineligible for those benefits under federal law
                                                      (RQ-0178-GA)


Dear Senator Nelson:

         You ask whether section 285.201 of the Health and Safety Code requires a hospital district
to provide nonemergency public health services to undocumented       persons who are otherwise
ineligible for those benefits under federal law.’

I.      Background

         In 2001, this office was asked whether the Harris County Hospital District was authorized
to provide free or discounted nonemergency health care to persons residing within its boundaries,
without regard to their immigration or legal status. The opinion noted first that the Federal Personal
Responsibility and Work Opportunity Reconciliation Act (‘PRWORA”),               8 U.S.C. $9 1601-41
(2002), provided that “undocumented       or illegal aliens are ineligible for state and local public
assistance, subject to specific exceptions.” Tex. Att’y Gen. Qp. No. JC-0394 (2001) at 2. The
federal statute “preempts contrary state laws and renders illegal the state and local programs that
provide public benefits to aliens contrary to its terms. ” Id. The opinion concluded that, under the
present state of Texas law, the federal statute prohibited the Harris County Hospital District from
providing free or discounted nonemergency health care to undocumented persons. See id. at 4.

         Opinion JC-0394noted, however, that the PRWORA contains an exception authorizing states
to provide additional public benefits to undocumented persons:




          ‘SeeLetterfromHonorableJaneNelson, Chair,HealthandHumanServicesCommittee,Texas StateSenate,
to HonorableGregAbbott,TexasAttorneyGeneral(Feb.4,2004) (on file with the OpinionCommittee,also available
at http://www.oag.state.tx.us)
                            [hereinafterRequestLetter].
The Honorable Jane Nelson       - Page 2          (GA-0219)




                A state may provide that an alien who is not lawtilly present in the
                United States is eligible for any State or local public benefit for which
                such alien would otherwise be ineligible under subsection (a) of this
                section only through the enactment of a State law after August 22,
                1996, which affirmatively provides for such eligibility.

8 U.S.C. $j 1621(d) (2002).     In its regular session, the Seventy-eighth    Legislature   enacted such a
provision:

                As authorized by 8 U.S.C. Section 1621(d), this chapter affirmatively
                establishes eligibility for a person who would otherwise be ineligible
                under 8 U.S.C. Section 1621(a), provided that only local funds are
                utilized for the provision of nonemergency public health benefits. A
                person is not considered a resident of a governmental          entity or
                hospital district if the person attempted to establish residence solely
                to obtain health care assistance.

TEX.HEALTH& SAFETYCODEANN. 3 285.201 (Vernon Supp. 2004).2 Your question is whether the
enactment of this provision requires a hospital district to furnish nonemergency public health
benefits to undocumented persons, or, on the other hand, whether it merelypemtits a hospital district
to do so. The answer depends upon the meaning of the word “eligibility.”

II.     Analvsis

        A.      The Meaning of “Eligibility”

                 The word “eligible” has a different meaning from that of “entitled.” According to
Black’s Law Dictionary, “eligible” means “fit and proper to be selected or to receive a benefit.”
BLACK’S LAWDICTIONARY538 (7th ed. 1999). An “entitlement,” by contrast is “an absolute right
toa... benefit, such as social security, granted immediately upon meeting a legal requirement.” Id.
at 575. Other dictionaries support this definition of “eligible.” The Oxford English Dictionary, for
example, defines “eligible” as “fit or proper to be chosen. ” V OXFORD ENGLISHDICTIONARY 140
(2d ed. 1989). Webster’s states that “eligible” means “fitted or qualified to be chosen or elected.”
WEBSTER’SNEW INTERNATIONAL           DICTIONARY83 1 (2d ed. 1939). Both of these definitions, like
that of Black’s, seem to accord “eligible” a lesser status than “entitled.”

         At least one Texas case has distinguished “eligible” from “entitled.” Jn Foreman v. Security
Insurance Co. of Hartford, 15 S.W.3d 214 (Tex. App.-Texarkana            2000, no pet.), the court, in
discussing workers compensation benefits, said that “eligibility is determined solely by whether the
individual meets the applicable criteria for receipt of benefits, not by whether the benefits are
actually received.” Id. at 217. Moreover, “an eligible spouse and child may not be qualified or



        ‘TheSeventy-eighthLegislatureaddedtwoprovisionsnumberedsection285.201 of theHealth& SafetyCode.
Theprovisionatissue herewas enactedby Act ofJune 1,2003,7Sth Leg.,R.S., ch. 198,s 2.70(a),2003 Tex. Gen.Laws
611, 673.
The Honorable Jane Nelson     - Page 3          (GA-0219)




entitled to receive any further benefits, but their status as eligible to receive benefits does not
change.” Id. In Hughes v. Kerfoot, 263 P.2d 226 (Kan. 1953), the Supreme Court of Kansas made
a similar distinction:

               Webster defines “eligible” as meaning “fitted or qualified to be
               chosen; legally . . . suitable . . . .” “Eligible” thus expresses the idea
               of potentiality rather than of realization. It looks to the future and
               signifies a present qualification to enjoy prospective rights and
               benefits contingent not only thereon but also upon something else
               which must be done preliminary thereto. To illustrate, a person must
               be more than thirty years of age and have practiced law for at least
               four years to fill the office of district judge. Many lawyers meet these
               conditions and they are therefore eligible to be district judges, but
               they cannot fill the office until they have put themselves in the way
               of securing appointment or election to it.

Id. at 229-30; see aZso Samuels v. Hite, 216 P.2d 879, 880 (Cal. 1950) (“eligible” means “capable
of being chosen, the subject of selection or choice”).

       B.      Legislative   History

               Legislative history also sheds light on the legislature’s intent in enacting section
285.201 of the Health and Safety Code. During the House floor debate on House Bill 2292,
Representative RichardNoriega offered Amendment 126, which added the present version of section
285.201. In explaining his amendment, Representative Noriega stated as follows:

               [T]his amendment allows local hospital districts to use their local
               monies, not state dollars, in accordance with federal law.

Debate on Tex. H.B. 2292 on the Floor of the House, 78th Leg., R.S. (Apr. 25,2003)          (transcript
available from House Video/Audio Dep’t) (emphasis added).

         Representative Noriega’s statement of intent before the full House of Representatives
provides convincing evidence that the legislature intended to distinguish the word “eligibility’ from
that of “entitlement.” An undocumented person meets the federal standard: he or she is eligible to
receive public health benefits. But an undocumented person is not entitled to receive those benefits
from state funds by virtue of the eligibility language contained in section 285.201 of the Health and
Safety Code. And he or she may be entitled to receive such benefits from local funds only if a
particular hospital district permits the use of its Iimds for that purpose.

         We conclude that section 285.201 of the Health and Safety Code permits, but does not
require, a hospital district to provide nonemergencypublic health services to undocumented persons
who are otherwise ineligible for those benefits under federal law. We emphasize that we here
address the availability of nonemergency health care to undocumented persons only under section
285.201 of the Health and Safety Code.
The Honorable Jane Nelson    - Page 4        (GA-021 9)




                                        SUMMARY

                        Section 285.201 of the Health and Safety Code permits, but
               does not require, a hospital district to provide nonemergency public
               health services to undocumented persons who are otherwise ineligible
               for those benefits under federal law.

                                             Yours very truly,



                                         4                 --
                                             GREG      ABBOTT
                                             Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
