                                          The Attorney          General of Texas
                                                          December 22, 1982
MARK WHITE
Attorney General

                                        Robert Bernstein, M.D., F.A.C.P.        Opinion No. Mw-538
Supreme      Court Building             Commissioner of Health
P. 0. Box 12546
Austin.    TX. 78711. 2546
                                        Texas Department of Health             Re: Proof of Texas residency
5121475-2501                            1100 West 49th Street                  required before Department of
Telex    9101674-1367                   Austin, Texas   78756                  Health may spend appropriated
Telecopier     5121475-0266                                                    funds to treat individual

1607 Main St.. Suite 1400
                                        Dear Dr. Bernstein:
Dallas,  TX. 75201-4709
2141742~6944                                 You have requested our opinion as to the constitutionality of a
                                        rider to the current general appropriations act. The rider provides:
4024 Alberta       Ave.. Suite    160
El Paso, TX.       799052793
                                                     e. ADMISSION AND DEPORTATION OF NONRESIDENTS
915/533-3464                                      AND ALIENS. (1) None of the moneys appropriated
                                                  to the Department of Health and Department of
                                                  Mental Health and Mental Retardation may be
1220 Dallas Ave.. Suite          202
                                                  expended for the training or medical treatment,
Houston.     TX. 77002-6966
7131650.0666
                                                  except in emergencies of any student or patient
                                                  who is not a citizen or resident of this state.
                                                  For the purpose of this provision, affidavits from
60.3 Broadway.       Suite 312                    two reputable persons shall be deemed adequate
Lubbock,     TX.    79401-3479
                                                  evidence of citizenship or residency. (Emphasis
6061747.5236
                                                  added).

4309 N. Tenth, Suite B                  Acts 1981, 67th Leg., ch. 875, §2e(l), at 3604.         The terms
McAllen,     TX. 76501-1665             "citizenship" and "residency" as they appear in this rider are
5121682-4547
                                        equivalent with domicile. See Arredondo v. Brockette, 648 F.2d 425
                                        (5th Cir. 1981).
200 Main Plaza, Suite 400
San Antonio.  TX. 762052797                  In Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), the
512,225-4191                            United States Supreme Court considered an Arizona statute which
                                        required any indigent, in order to be eligible for free non-emergency
An Equal      Opportunityl
                                        medical care, to have been a county resident for the preceding twelve
Affirmative     Action     Employer     months.   The court held that a durational residency requirement
                                        violates the equal protection clause of the United States Constitution
                                        because it creates an invidious classification, not justified by a
                                        compelling state interest, that impinges on the right to travel by
                                        denying newcomers to the state the basic necessities of life. 415
                                        U.S. at 261-62. The court made clear that it was not invalidating all
                                        residency requirements, but merely holding the one-year waiting period
                                        overbroad to accomplish its avowed purpose:




                                                                     p. 1950
Dr. Robert Bernstein - Page 2   mw-538)




         A mere residence requirement would accomplish the
         objective of limiting the use of public medical
         facilities to bona fide residents of the county
         without sweeping within its prohibitions those
         bona fide residents who had moved into the state
         within the qualifying period.

Id. at 267.  The court noted that less drastic means, not impinging on
the right of interstate travel, were available to ascertain an
individual's intention with regard to residency. -Id.

     In Andre v. Board of Trustees of Village of Maywood, 561 F.2d 48
(7th Cir. 1977), cert. denied, 434 U.S. 1013 (1978), the Court of
Appeals for the Seventh Circuit, in upholding a residency requirement
for municipal employees, declared:

         All residency restrictions have an effect on the
         right to interstate travel, but only those
         residency restrictions which can be characterized
         SS    'durational'    have    been     found    to
         unconstitutionally impinge or penalize the right
         to travel, in the absence of some compelling state
         interest.    Durational   residency   requirements
         classify residents into groups of residents who
         have fulfilled the residency requirements and
         those who have not.... Bona fide residency
         requirements as continuing conditions of municipal
         employment rest upon      footings significantly
         different from those of durational residency
         requirements.

561 F.2d at 52. See also McCarthy v. Philadelphia Civil Service
Comm'n., 424 U.S. 645 (1976); Wright v. City of Jackson, Mississippi,
506 F.2d 900 (5th Cir. 1975).

     Finally, in Arredondo v. Brockette, 482 F. Supp. 212 (S.D. Tex.
1979), aff'd, 648 F.2d 425 (5th Cir. 1981), the court upheld a Texas
statute which provided that, if a student lived apart from his
parents, he was required, in order to establish residency, to show
that his presence in the school district was not for the primary
purpose of attending the public free schools. Although the statute
permitted the board of trustees to act as the sole arbiter in
determining whether an applicant for admission was in fact a resident
of the district, the court held:

         the Texas statute only attempts to articulate a
         residency definition and in no way contains a
         durational residency requirement.

482 F. Supp. at 218.   The court concluded that the statute did not
burden the right of    interstate travel, and that, therefore, the



                                p. 1951
Dr. Robert Bernstein - Page 3     (MW-538)




rational basis test, rather than the compelling state interest test,
was applicable, and that the statute was justified by a compelling
state interest. -Id. at 218.

     In our opinion, the rider at issue here, since it imposes no
durational residency requirement, must also be judged by the rational
basis test. Like the statute in Arredondo, it merely     "attempts to
articulate a residency definition." The state clearly has an interest
in preventing the use of its facilities without charge by
non-residents. We conclude that the rider is not violative of the
equal protection clause of the federal constitution.

     You also ask whether the State Board of Health may prescribe the
contents of the affidavits authorized by the rider and may define the
phrase "two reputable persons."       It is well settled that an
administrative body may enact rules and regulations where necessary to
accomplish the purpose of a statute. Gulf Land Company v. Atlantic
Refining Company, 131 S.W.2d 73 (Tex. 1939); Allstate Insurance
Company v. State Board of Insurance, 401 S.W.2d 131 (Tex. Civ. App. -
Austin 1966, writ ref'd n.r.e.). We believe that the Board of Health
is authorized to enact reasonable regulations prescribing the contents
of the affidavits and defining the phrase "two reputable persons." Of
course, such regulations may not themselves impose any restrictions
which would violate the equal protection clause.

     On the other hand, the rules of an administrative body must be in
harmony with the general objectives of a statute. Jefco, Inc. v.
Lewis, 520 S.W.2d 915 (Tex. Civ. App. - Austin 1975, writ ref'd). In
our view, since the rider clearly states that "affidavits from two
reputable persons shall be deemed adequate evidence" of residency, the
Board of Health is not authorized to enlarge upon this provision by
requiring independent evidence that an applicant for program benefits
is legally present within this state. The rider indicates the intent
of the legislature that the requisite affidavits shall constitute
"adequate evidence."

                                SUMMARY

             A requirement that free non-emergency medical
          treatment be made available only to bona fide
          residents of the state is not violative of the
          equal protection clause of the United States
          Constitution.




                                          MARK      WHITE
                                          Attorney General of Texas




                                   p. 1952
Dr. Robert Bernstein - Page 4   (MW-538)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
George Warner
Bruce Youngblood




                                   p. 1953
