                                        March    18, 1975


    The Honorable James E. Peavy M. D.                  Opinion No.   H-   556
    Commissioner     of Health
    Texas State Department     of Health                Re: Are benefits under the
    1100 W.*49th St.                                    Kidney Health Care Act, art.
i   Austin,  Texas   78756                              4477-20,   V. T. C. S. limited
                                                        to citizens of the United States
                                                        or residents of Texas?

    Dear Dr.   Peavy:

             You have asked whether the Kidney Health Care Act, article
    4477-20,     V. T. C. S., requires  or permits the Department of Health
    to make benefits available      under the Act on the basis of United States
    citizenship,    or Texas residence.

            It is well-established    that a state may not invidiously   discriminate
    against resident aliens,     and that the denial of health or welfare benefits
    on the basis of alienage is constitutionally    impermissible.     Graham v.
    Richardson,    403 U.S. 365 (1971).      See a,     Takahashi  v.  Fish  and
    Game Commission,        334 U.S. 410 (1948);Yick Wo V. Hopkins, 118 U.S.
    356 (1886); Attorney General Opinions H-333(1974),         H-157 (1973),
    H-156 (1973), H-81 (1973).

            While there are references       to “citizens”   and “citizens  of the
    State of Texas” in sections 2, 3(3), and 3(13) of the Act, we do not
    believe that it is necessary    to interpret these references      as exclusive.
    To do so would raise serious constitutional         problems.     These same
    sections also refer more generally        to “persons”    or “patients”  “suffering
    from chronic kidney disease” as the group intended to be eligible for
    benefits under the Act.     The most pertinent provision of the Act, in
    section 3, authorizes    the State Board of Health, through the Division
    of Kidney Health Care, to:




                                           p.   2,501
The Honorable    Ja,mes E.    Peavy        page 2   (H- 556)




                      (2) Determine the terms,   conditions and
                 standards for the eligibility of persons suffering
                 from chronic kidney disease for aid, care or
                 treatment provided under the provisions    of this
                 Act.

         In our opinion, this provision authorizes     the board to establish
reasonable    and constitutional   standards for eligibility without regard
to citizenship.    Our answer to the first question is that the Act does
not require,    and the constitution does not permit,      eligibility for benefits
to be conditioned on United States citizenship.

           The second question is whether the Act requires or permits
eligibility   for benefits to be conditioned on Texas residency.    We find
no provision in the Act which expressly      requires  residency as a condi-
tion of eligibility for benefits.    Neither does the Act prohibit such a
requirement      from being adopted by the Board which has power to
determine the terms,       conditions and standards for eligibility under
section 3(2).

        However,   our answer is rendered academic by a provision of
the Appropriations  Act for fiscal 1974-1975.   Acts 1973, 63rd Leg.,
ch. 659, section 2(e), p. 1881.   The special provision states in pertinent
part:

                 None of the moneys        appropriated  to the Department
                 of Health . . . may       be expended for the . . . medical
                 treatment except in       emergencies   of any . . . patient
                 who is not a citizen      or resident of this state. . . .

         In Attorney General Opinion H-156(1973),       we said that this pro-
vision would be violative of the Equal Protection       Clause of the Fourteenth
Amendment if “citizen” were intended to exclude a resident alien, but
that distinctions    designed to preserve   state supported faciiities  for bona
fide residents    of the state are not necessarily   invidious.

        Since there are no funds available to provide benefits to persons
other than residents,  the Appropriations    Act effectively imposes a
residency  requirement   for eligibility for benefits under the Kidney Health
Care Act.




                                      p.   2502
The Honorable   James   E.   Peavy    page 3    (H-556)




                                 SUMMARY

                     Benefits under the Kidney Health Care Act,
                article 4477-20,   V. T. C. S., may not be denied
                on the basis of alienage.

                     Eligibility for benefits under the Act is
                limited to residents by the Appropriations     Act.

                                                  Very    truly yours,




                                                  Attorney    General    of Texas




DAVID   M.   KENDALL,    First   Assistant




C. ROBERT HEATH,        Chairman
Opinion Committee




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