                                 November       21, 1973


The Honorable David Wade                              Opinion No.   H-   156
Commissioner
Department   of Mental Health and                     Re:   Effect of Vaughan v.
   Mental Retardation                                       Bower,   313 F.Supp.    37,
Box 12668, Capitol Station                                  on residency   require-
Austin, Texas 78711                                         ments of various   statutes
                                                            having to do with mental
                                                            health and mental retard-
Dear   Commissioner    Wade:                                ation.

       You have asked our opinion on several questions haying to do with
admission  requirements   to State hospitals and schools under the jurisdiction
of your department in light of the decision in Vaughan V. Bower,    313 F. Supp.
37 (D, Akiz. 1970), affirmed without opinion, 400 U.S. 884 (1970).

        The Vaughan decision concerned’an       Arizona   statute which permitted
the superintendent     of a state hospital for mental patients to return “non
resident” patients to the home of known relatives        or friends or to proper
authorities   in the state of his residence,   defining a “non resident” as a
person who had not resided in the state continuously         for at least one year
prior to admittance to the facility.      Relying upon Shapiro V. Thompson,         394
U.S. 618 (1969), the court held that, in the absence of a compelling          state
interest,   the statute set up an “invidious classification”     penalizing  the exer-
cise of the federally protected,     fundamental right to travel,     and was uncon-
stitutional as violating the Equal Protection      Clause of the Fourteenth Amend-
ment to the Constitution.

        Your first question asks,      “What are the residency      requirements,   if
any, for admission     to a Texas state school for the mentally retarded?”
Article   387113, Vernon’s   Texas Civil Statutes,    is The Mentally Retarded
Persons Act.      Generally,   it provides for admission      to a state school in one
of two ways - either judicially      (§ 5 5-8) or voluntarily   (§ 9).  There is no
specific requirement     that a mentally retarded person be a resident or citizen




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The Honorable    David Wade,    page 2     (H-156)




of Texas to be admitted to a State school.       Texas “citizenship”  is required
for admission    to a State diagnostic center,   and “Texas citizen” is defined
in $3(2) is a way which would seem to be invalid under the Vaughan decision.
Unless otherwise compelled        to do so, we should not read into the require-
ments for admission      to a State school one which would raise serious ques-
tions concerning the Act’s constitutionality.      Newsom v. State, 372 S. W.
2d 681 (Tex. Grim. 1963) ; Alobaidi v. State, 433 S. W. 2d 440 (Tex. Grim.
1968),cert den.,    393 U.S.   943 (1968).

      Section   2 of the Act provides:

                    “It is the purpose of this Act to afford
             mentally retarded Texas citizens an -opportunity
             to develop to the fullest practicable  extent their
             respective   mental capacities.  ” (emphasis added)

       This, in our opinion,   does not establish    a requirement   of citizenship
or residence.

       It is our opinion, therefore,   that Article   3871b. V. T. C. S., imposes
no residency    requirements   on admission   to a Texas state school for the
mentally retarded.      However,   our answer is rendered academic by 5 2(e)
of the. Special Provisions   Relating to Institutions,   etc., of the Appropriation
Act for fiscal 1974-197.5 (House Bill 139, 63rd Leg.,       p. U-70) that:

             “None of the moneys appropriated     to the . . . Depart-
             ment of Mental Health and ~Mental Retardation . . .
             may be expended for the training or medical treatment
             except in emergencies    of any student or patient who is
             not a citizen or resident of this state. . . . ”

       If “citizen” is intended to exclude a resident alien, it violates the
Equal Protection    Clause of the Fourteenth Amendment     to the Constitution
of the United States.    Graham v. Richardson,    403 U.S. 367 (1971).

      However,   we cannot say that a compelling   state interest in limiting
such admittance to bona fide ” residents” could not be demonstrated.      “Resi-
dency” in that sense connotes a union of volition,  intention and action. m




                                     p.   724
The Honorable     David Wade,    page 3    (H-156)




v. Bartlett,  377 S. W. 2d 636 (Tex. 1964).       Compare Paudler v. Paudler,
185 F. 2d 901 (5th Cir. 1950), cert. den. 341 U.S. 920 (1951). Distinctions
designed to preserve     state supported facilities  for bona fide residents   of
the state are not necessarily    invidious.   See Toomer v. Witsell,     334 Il. S.
385 (1948); Blake v. McClung,      172 U.S. 239 (1898); American     Commuters
Association  v. Levitt,    279 F. Supp.,40    (S.D.N.Y.   1967). aff’d 405 F. 2d
1148 (2d Cir. 1969).    Vaughan only condemns arbitrary      durational require-
ments to establish residency.

      Therefore,   however we may construe Article     3871b, there are no
funds available to support the admission   of non resident students and the
answer to ,your first question must be that, except in emergencies,    persons
who are not bona fide residents   of Texas should not be admitted to a Texas
school for the mentally retarded.

      .Your other two questions,   raising similar inquiries concerning    the
provisions  of b 2.20 of Article 5547-282,and   Article 5547-16, V. T. C.S., are:

                     “2. What are the residency   requirements   with
              respect to the application of the provisions of Article
              5547-202,  Section 2.‘20 :.  . .?

                      “3. What~ are the residency   requirements   with
            .~ respect to the application of the provisions  of Article
               5547-16 . . . . ?~”

       Article 5547-16(a),   part of the Mental Health Code adopted in 1957
(Acts 1957. 55th Leg.,     p. 505, ch. 243), provides that the Board for Texas
State Hospitals and Special Schools may return a nonresident patient committed
to a me&al hospital in Texas to a proper agency of the state of his residence.
“Resident” is defined [Article    5547-4(n),  V. T. C. S.] as a person who has lived
in Texas continuously for a period of one year or more and who has not acquired
a residence in another state by living there continuously for one year subsequent
to his residence in Texas.

        It is our opinion that Article   5547-16,  V. T. C. S., insofar as it incorpo-
rates   the definition of “resident”   found in Article  5547-4(n),   V. T. C. S., is




                                     p.   725
The Honorable   David Wade,   page 4     (H-156)




unconstitutional  and unenforceable  under the rationale of the Vaughan case.
Our  opinion would result in removing from the statute any requirement
that a person becomes a resident entitled to hospitalization   only by living
in the state continuously for a period in excess of one year.

       Section 2.20 of Article 5547-202, V. T. C.S.,       the statute creating
the Texas Department of Mental Health and Mental          Retardation,   provides
in its Subsection  (a) :

                   “The Department may return a non-resident
            mentally retarded person committed to a facility
            for thementally  retarded in this state to the proper
            agency of the state of his residence.”

“Non-resident”   is not defined.  We construe      it to mean a person who is not
a bona fide resident,  regardless  of length of    residence.   The state may order
all patients or students in those institutions,     who are not bona fide residents,
sent back to the state d which they are bona       fide residents.

                               SUMMARY

                   Non residents of the State may not be admitted to
            a Texas state school for the mentally retarded.         Under
            § 2.20 of Article  5547-202,   V. T. C.S.,  a student in such
            a school,  who is not a bona fide resident of Texas,       may
            be returned to the State of his residence.      Similarly,
            under Article   5547-16,  V. T. C. S., a patient in a mental
            hospital who is not a’bona fide resident of Texas,       may
            be returned to the State of his residence.

                   However,    in no event may the status of the person
            as a bona fide resident be made to depend solely upon
            his residence   in this State for one year or more.    Such
            a requirement,    under Vaughan v. Bower,     supra, would
            violate the Equal Protection   Clause of the Fourteenth
            Amendment.




                                          Attorney    General    of Texas




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The Honorable     David Wade,   page 5    (H-156)




APPROVED:




DAVID     M.   KENDALL,   Chairman
Opinion   Committee




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