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        Honorable   William     S. Fly,   Chairman     Opinion    No,    WW-41
        Finance   Committee
        Senate                                         Re:     Conformity   of Senate Bill
        Austin, Texas                                          61 to the requirements      of
                                                               Section 51-b of Article     III
                                                               of the Texas   Constitution
                                                               and to 551351-55,    Title 42,
        Dear   Senator   Fly:                                  U.S.C.A.

                     You have    requested   an opinion      of this   office   on the following
        questIons.

                    1.   Does Senate Bill. 61, as introduced at the
               current legislative  session,   comply with the provisions
               of Section 51-b of Article    III of the Texas Constitution?

                    2. Does Senate B,ili 61 comply with the require-
               ments of Sections  1351-55  of Title 42 of the United
               States Code Annotated?

                    3.  If Senate Bill 61 does not comply with the
               requirements    of 42 U.S.C.A.   881351-55,    can compliance
               be obtained consistently    with the provisions    of Section
               51-b of Article   III of the Texas   Constitution?

                    Section 51-b of Article III, H.J.R.   30, Acts 54th Leg.,   R.S.,
        1955, p. 1824, was adopted at the general      election in 1956 and is set
        out in full in the footnote below. 1 Speaking generally,    this Section

        1
                     UThe Legislature       shall have the power to provide
               by general      laws, under such limitations        and restrictions
               as may be deemed by the Legislature               expedient,   for
               assistance     to needy individuals,     who are citizens       of the
               United States, who shall have passed            their eighteenth
               (18th) birthday but have not passed their sixty-fifty              (65th)
               birthday,    who are totally and permanently          disabled    by reason
               of a mental or physical         handicap or a combination         of physical
               and mental handicaps         and not feasible     for vocational     rehabiii-
               tation, and who are residents          of the State of Texas,       who have
               resided    in this State for at least one (1) year continuously              lm-
               mediately     preceding    the application    and who have resided         in
               the State for at least an additional         five (5) years during the
               nine (9) years      immediately     preceding    the application      for
               assbstance;      and providing    further t&it ~no individual shall
               receive    assistance    under this program~for        the (Cont’d next page)
Hon.     William   S. Fly,   page   2 (WW-41)




authorizes  the Legislature   to enact laws providing for assistance      to
needy individuals  who are totally and permanently       disabled and to
accept financial aid from the Federal     Government     under the Social
Security Act.   Senate Bill 61 is obviously     designed  to put into effect
the necessary   enabling legislation  authorized   by Section 51-b.

           We have concluded that the bill in most of its parts com-
plies with the requirements    of Section 51-b and that those portions of
the bill which do not comply can be changed so as to effect a com-
pliance with both Section 51-b and with Sections      1351-55,    Title 42,
U.S.C.A.   We will take up the questions     of compliance     presented  by
various  parts of the bill seriatim   in the order  of their importance.

           The most serious      question   raised by your request    1s whether
Subsection  4 of Section 16-B of the bill is within the residence        limita-
tions imposed by Section 51-b of the Constitution.         Subsection  4 sets
out the residence  qualifications    requisite   to coming within the provisions
of the Act and reads as follows:

              “Who has resided      in the State of Texas for
         five (5) years or more within the last nine (9) years
         preceding    the date of his application  for assistance
         and has resided     in the State of Texas   continuously
         for one (1) year immediately      preceding   the applica-
         tion; . . .*

              The residence     requirements     of the constitutional provision
limit’    authorized  assistance    to needy    individuals ‘who have resided




         permanently      and totally disabled during any period when
         he is receiving      old age assistance,    aid to the needy
         blind, or aid to dependent children,        nor while he is
         residing     permanently    in any completely    State supported
         institution;    and provided further that not more than
         Twenty Dollars       ($20) a month out of State funds may be
         paid to any individual recipient ; and provided further            that
         the amount paid out of State funds to any individual may
         never exceed the amount paid to that individual out of
         Federal    funds; and provided further that the amount paid
         out of State funds for assistance        payments     shall not exceed
         One Million,      Five Hundred Thousand       Dollars   ($1,500,000)    per
         year.

                “The Legislature   shall have the authority to accept from
          the Government     of the United States such financial    aid for
          individuals who are permanently      and totally disabled   as that
          Government    may offer not inconsistent    with the restrictions
          herein provided.”
Hon. Wiiiiam     S. Fly,   page   3 (WW-41)




In this State for at least one (,l) year continuously     immediately
preceding   the application   and who have resided    in this State for at
least an additional five (5) years during the nine (9) years       immediate-
ly preceding   the application   for assistance; . . .”

            Section 1352(b) (l), 42 US.C.A.,     prohibits   the use of federal
funds if the State residence    requirements    exclude   “any resident of the
State who has resided    therein five years during the nine years
immediately    preceding  the application  fo.r aid to the permanently    and
totally disabled and has resided therein continuously        for one year
immediately    preceding  the application. ”

            If Section 51-b requires     a total residence    period of six
years rather than five years during the nine years immediately
preceding   application for assistance,    the total residence     requirement
contained in the bill as presently      drawn is unconstitutional;     and the
Legislature   lacks the power to enact a law which would enable the
State of Texas to comply with the provisions         oft the federal   act.

             The word “additional”        makes the constitutional       provision
ambiguous.      Both the requirement        for continuous     residence   and the
requirement     for total residence      are measured     from the date of appli-
cation for assistance       and thus necessarily     overlap.      The Constitution
places a residential       requirement    of the year lmmediateiy        preceding
the application    plus an additional five years during the nine-year
period immediately        preceding   the application.     If the applicant     cannot
count the first year of the nine-year          period, he is then limited to
compiling    his five-year     total from a period of eight years,         and the
Constitution    expressly    allows him to accumulate         the five years dur-
ing the nine-year      period.

             Although th.e total residence        requirement    need not be con-
tinuous,   continuity is not prohibited.        If for five years     immediately
preceding    application    the applicant has continuously        resided   in Texas,
obviously    the applicant has met the requirement            for continuous
residence    for one year immediately         preceding    the application.     The
people of Texas      in adopting this amendment          unquestionably    intended
that the requirement       of total residence      be met within a nine- ear
period immediately       preceding    application    for assistance. *he
two residence     requirements      are treated as cumulative         of each
other, the five-year      total requirement      must be met within an eight
rather than a nine-year        period, as expressly       permitted    by the
Constitution.    The constitutional     provision     is undoubtedly ambiguous.

            It is evident that the two residence       requirements        which
must be met before aid can be granted are entirely              different.
First,  there is the requirement      pertaining   to continuous      residence
and second,    the additional   requirement    pertaining    to total residence.
It is obviously    desirable  to have a requirement       of a stated period
of continuous    residence   within the State before an individual may be
                                                                                       ..




Hon.   William   S. Fly,   page   4 (WW-41)




granted aid from State funds.        It is also desirable    to have an
additional  requirement     of a stated period of total residence      within
the State before such aid can be granted and at the same time
reasonable    that such period of total residence     need not be continuous.
It is not logical to make these two requirement,s          cumulative    of each
other.   Each is based on entirely       different considerations.     The
motivating   factors   which lead to a choice of a requisite       period of
continuous   residence   are different   from the motivating     factors
determinative     of a requisite  period of total residence,     An addition    of
the two periods to obtain a new total residence          requirement     is not
logical and produces     a hybrid.

             The object of construing       a written constitution      is to give
effect to the intent of the people adopting it.           1 Cooley on Constitu-
tional Limitations       (8th Ed. 1927) 124.      When a difficulty     really
exists   in ascertaining      meaning of constitutional     provisions,    certain
extrinsic   aids mav be resorted        to.   Amone    these, savs Cooiev,       at
pages 141-142,      is * “a contemplation    of the “object .to de accomplished
or the mischief      designed to be remedied        or guarded against by the
clause in which the ambiguity         is met with.      When we once know
the reason which alone determined           the will of the lawmakers,          we
ought to interpret       and apply the words used in a manner suitable
and consonant     to that reason,     and as wilt be best calculated         to
effectuate   the intent. . ..* (Emphasis      his.)

           Prior to the adoption of Section 51-b,   the Legislature   had
been authorized   to enact and had enacted laws establishing    Federal-
State cooperative   programs  for three clas2ses of persons:    the needy
aged, the needy blind and needy children.

           The original constitutional   residence requirements which
had to be met before assistance     could be granted a needy aged indi-
vidual were stated in the following    language:
             “
             . . . provided further that the requirements     for
       length of time of actual residence     in Texas shall never
       be less than five (5) years during the nine (9) years
       immediately   preceding  the application   for old-age

2
       The Social Security Act was enacted by the Federal             Government
in 1935.    At that time the Texas        Constitution  was amended to author-
ize aid for the needy aged and to take advantage of the federal             act,
In 1937 two constitutional      amendments      were added which permitted       the
State to receive    federal   grants-in-aid    and authorized   State aid up to
fifteen dollars   a month for the needy blind as well as assistance            for
needy children.      These amendments        were subsequently     combined and
are presently    carried    in the Constitution     as Section 51-a of Article
III.
Hon.    William      S. Fly,     page        5 (WW-41)




            assistance  and continuously  for one (1) re3ar
            immediately   preceding  such application.

             There has been no substantial                       change ln the above           quoted
language,4 and the residence  requirement                         for the needy blind          is stated
ln identical   terms. 5

             Although technically      there is a difference     in the language
used ln the residence       requirements     of Section 51-b and that used ln
Section 51-a(l)      and 51-a(2),  the simila’rity   is greater    than the dlffer-
ence.    It has been the consistent       departmental    construction    of the
State agency which has been charged with the duty of administering                  the
statutes   enacted in pursuance       to the provisions    of Section 51-a that
the residence      requirements    are not cumulative,     and administrators
of the Social Security Act have accepted           this construction.     The people
of Texas are well familiar        with the welfare     programs     which have
been carried      out pursuant to the provisions       of Section 51-a.     It should
be presumed       that they contemplated     the establishment      of a similar
program     to fill the remaining     gap by covering     an omitted class,      newly
provided for by the 81st Congress.

             Prior to the adoption of Section 51-b,        the Legislature    was
not authorized     to aid needy permanently      disabled   persons.    The only
purpose of the Legislature        in passing H.J.R. 30 ’ was to submit to
the people a measure        which, lf adopted, would authorize       the Legisla-
ture to enact a law which would permit the State to enter into a
Federal-State     cooperative   program    for aids to such persons.      In
adopting this measure,       the people evidenced     their intention that the
Legislature    be authorized    to enact such a law.       That it was never

3
    H.J.R.     19, Acts      44th     Leg.,    Reg.     Sess.,   1935,   pp.   1227,   1228.

4
    Article     III, Section     51-a(1)       reads,    ,in part,   as follows:
                  Y
                   . . . provided that no such assistance      shall be
            paid. . . to any person who shall not have actually
            resided   in Texas for at least five (5) years during
            the nine (9) years    immediately  preceding    the appli-
            cation for such assistance     and continuously   for one
            (1) year immediately     preceding  such application;...”

5
    Article     III, Section     51-a(2).

6
    Acts,     54th   Leg.,    1955,     p.    1824.
Hon.   William       S, Fly,   page   6 (WW-41)



contemplated   that any program    of this type be lnstltuted unless
federal aid was obtained is evidenced      by the provision  in Section
51-b which states    “that the amount paid out of Stats funds to
any individual may never exceed      the amount paid to that individual
out of Federal funds.’      Yet obviously the people of Texas desired
to spend a substantial    sum in asslstlng   needy, totally and
permanently   disabled parsons --up   to a total of One Million Five
Hundred Thousand Dollars -per. year.

             Therefore,  sin’ce there is ambtguity    in the constitutional
provision,   any doubt as to authorization    to comply with the residence
requirements     of the federal  act should be resolved     in favor of
authorization.    Any other interpretation   would prevent putting into
effect this new welfare     program   and would thwart the evident
purpose of the people in adopting the constitutional        provision.   You
are therefore    advised that the residence    requirements     imposed by
Senate Bill 61 are in conformity      with the Texas Constitutional
requirements.

             Under Section 51-b certain express          qualifications    must be
met before an applicant is qualified        to receive    assistance.      These
constitutional   limitations   should be expressly      included in the enabling
Act since the constitutional      provision   is not self-executing       and since
it could not necessarily      be inferred   that the Legislature       intended to
include all of requisite     constitutional  limitations.

             The Constitution      in identtfylng eldgible applicants        described
them as being “totally and permanently           disabled     by reason of a
mental or physical     handicap or a combination          of physical      and mental
handicaps    and not feasible     for vocational    rehabilitation,   . ..” (Emphasis
ours.)    We call your attention to the fact that in Section 16-B of the
bill, the third paragraph      on page 3 states the requirement             that the
individual is not feasible      for vocational    rehabilitation    in a clause
following   the description    of an individual totally and permanently
disabled by reason of a mental condition.             We would suggest that
this clause be drafted so as to make it clear that this constitutional
requirement     also applies to those individuals        who are disabled by
reason    of physical  disability    and to thus avoid any question of
ambiguity.

        The Legislature     is expressly  authorized to add to the basic
constitutional  restrictions    7 as long as the additional restrictions

7
    Section   51-b    contains   the following    provision:

             “The Legislature  shall have the power to provide by
        general  laws, under such limitations   and restrictions   as
        may be deemed by the Legislature      expedient,  for assist-
        ance to needy individuals.  . .”
,




    Hon.   William   S. Fly,   page   7 (WW-41)




    are not in conflict with the constitutional      limitstions.  With regard
    to the additional   restrictions    contained in the bill, and without
    enumerating    them, you are advised that these restrictions        are in
    conformity   not only with the constitutional      provision but also with
    the pertinent provisions      of the Social Security Act.

                                        SUMMARY

                The residence      requirements      of Senate Bill 61
                are in conformity      with the residence      requirements
                of Section 51-b of Article        III of the Texas     Consti-
                tution which requires       a total residence     period of
                five years before assistance         can be granted to a
                totally and permanently       disabled    person.     The
                constitutional   restrictions    should be expressly
                included in the bill since Section 5 l-b is not self-
                executing.     Section 51-b authorizes       restrictions
                additional   to those contained therein.         The addition-
                al restrictions    embodied     in the bill are constitutional
                and in conformity      with the Social Security Act.

                                            Yours   very   truly,

                                            WILL WILSON
                                            Attorney General




    APPROVED:

    OPINION     COMMITTEE
    H. Grady    Chandler, Chairman

    MMP:cs
