  +- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN CORNYN




                                                July lo,2001



The Honorable Michael A. Stafford                       Opinion No. JC-0394
Harris County Attorney
1019 Congress Avenue, 15th Floor                        Re: Whether Harris County Hospital District may
Houston, Texas 77002- 1700                              provide discounted health care to persons residing
                                                        in Harris County, without regard to their
                                                        immigration or legal status (RQ-034 1-JC)
Dear Mr. Stafford:

         The Harris County Hospital District would like to provide free or discounted nonemergency
health care to persons residing within its boundaries, without regard to their immigration or legal
status. Your predecessor asked whether the district may do so consistently with state and federal
law, in particular, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
8 U.S.C. $0 1601-l 646 (1994 & Supp. V 1999) (“PRWORA”).’ PRWORA prohibits the district
from providing free or discounted nonemergency health care to undocumented aliens, even if they
reside within the district’s boundaries. If the district implements a policy that violates PRWORA,
it is asked what the penalty would be for the violation. PRWORA does not state a penalty for
providing public benefits to undocumented aliens in violation of its requirements, although there
may be sanctions to the district pursuant to conditions attached to federal funding. There may also
be legal consequences pursuant to state law for spending public funds for an unauthorized purpose.

         The Harris County Hospital District, created under chapter 281 of the Health and Safety
Code, is required to provide “medical aid and hospital care to indigent and needy persons residing
in the district.” TEX. HEALTH & SAFETY CODE ANN. 9 281.002 (Vernon 2001); see also TEX.
CONST. art. IX, 55 4,9 (hospital districts “shall assume full responsibility for providing medical and
hospital care to needy inhabitants of the county”). The Indigent Health Care and Treatment Act,
chapter 61 of the Health and Safety Code, defines the responsibilities of hospital districts in
providing medical care to indigent residents. See TEX. HEALTH & SAFETY CODE ANN. 5 61.052
(Vernon 2001). If a patient from the county in which the hospital is located or relatives responsible
for his or her support are unable to pay for the patient’s care, the district must treat the patient
without charge. See id. 5 281.071(a) (patient or relatives must pay for care in proportion to their
financial ability to pay); see also id. 5 61.052 (public hospital or hospital district shall provide health
care assistance to eligible residents in service area). If a county, municipality, or public hospital



           ‘See Letter and Brief from Michael P. Fleming, Harris County Attorney,to HonorableJohn Corqq Texas
Attorney    General (Jan. 25,200l)  ( on f 11e with Opinion Committee) [hereinafter Request Letter].
The Honorable     Michael A. Stafford    - Page 2       (JC-0394)




located outside the boundaries of the hospital district is liable for a patient’s care, the hospital district
board must seek reimbursement        from that entity as provided by the Indigent Health Care and
Treatment Act. See id. 8 28 1.072; see generally, San Patricia County v. Nueces County Hosp. Disk,
721 S.W.2d 375, 377 (Tex. Civ. App.-Corpus              Christi 1968, writ refd n.r.e.) (meaning of
“residence” in hospital district statute).

         An individual’s status as an alien does not preclude him or her from being a state or
county resident under state statutes establishing public benefit programs. See Tex. Att’y Gen. Op.
Nos. JM-962 (1988) at 3, 8 (Commission for the Blind may not deny vocational rehabilitation
services to adults on ground that they are undocumented aliens); WW-1274 (1962) at 3 (fact that
child is an alien does not prevent him from being “resident of the State” within statute providing eye
surgery at public cost). In considering an individual’s eligibility for nonemergency health care,
however, the hospital district may not ignore applicable federal law. The federal government has
broad constitutional powers over the admission, naturalization and residence of aliens, while the
states have no such power and cannot add to or remove conditions lawfully imposed by Congress
on the admission, naturalization and residence of aliens in the United States. See generally, Toll v.
Moreno, 458 U.S. 1, 12 (1982). State laws that are inconsistent with federal immigration policy are
preempted by federal law. See DeCanas v. Bica, 424 U.S. 351, 354-55 (1976); Graham v.
Richardson, 403 U.S. 365, 368 (1971) (overturning state restrictions on the provision of welfare
benefits as incompatible with the federal immigration power). Accordingly, the hospital district’s
provision of services to aliens may not be inconsistent with federal immigration law and policy.

          PRWORA provides that undocumented or illegal aliens are ineligible for state and local
public assistance, subject to specific exceptions. See 8 U.S.C. 9 1621 (1994 & Supp. V 1999). This
provision preempts contrary state laws and renders illegal the state and local programs that provide
public benefits to illegal aliens contrary to its terms. See Doe v. Wilson, 67 Cal. Rptr.2d 187, 189
(Cal. App. 1997, review denied); see generally DeCanas, 424 U.S. at 354-55 (discussing preemption
of state laws regulating immigration).       An undocumented alien is ineligible for health services
provided at public expense by the hospital district, except for those health services specifically
authorized by PRWORA. In deciding whether an indigent resident is eligible for nonemergency
services at public cost, the hospital district must also consider whether the resident is an alien, and
if so, that person’s immigration status. Questions about the eligibility of an alien residing within the
hospital district’s boundaries must be resolved by reference to 8 U.S.C. 8 1621.

          PRWORA provides that an alien is ineligible for any state or local public benefit if the alien
is not:

                         (1) a qualified alien (as defined in section 1641 of this title),

                        (2) a nonimmigrant under the Immigration           and Nationality
                 Act [8 U.S.C.A. 8 1101 et seq.], or
The Honorable      Michael A. Stafford           - Page 3           (JC-0394)




                          (3) an alien who is paroled into the United States under
                  section 212(d)(5) of such Act [8 U.S.C.A. 8 1182(d)(5)] for less than
                  one year[ .]

8 U.S.C. 8 162 l(a) (1994 & Supp. V 1999). Undocumented aliens are ineligible for state or local
health benefits “for which payments or assistance are provided to an individual, household, or family
eligibility unit by an agency of a State or local government or by appropriated funds of a State or
local government.” Id. 8 162 1(c)(l)(B). This eligibility restriction does not apply to:

                           (1) Assistance for health care items and services that are
                  necessary for the treatment of an emergency medical condition
                  (as defined in section 1396b(v)(3) of Title 42) of the alien involved




                         (3) Public health assistance for immunizations with respect to
                  immunizable diseases and for testing and treatment of symptoms of
                  communicable diseases whether or not such symptoms are caused by
                  a communicable disease.

                            ....

Id. 8 1621(b).

        Section 1621 (d) authorizes             states to provide additional pub lit benefits to undocumented
aliens as follows:

                          A State may provide that an alien who is not latwmlly present
                  in the United States is eligible for any State or local public benefit


         2An “emergency    medical condition”      is defined as:

                  a medical condition (including emergency labor and delivery) manifesting itself by
                  acute symptoms of sufficient severity (including severe pain) such that the absence
                  of immediate      medical attention   could reasonably   be expected to result in--

                            (A) placing the patient’s     health in serious jeopardy,

                            (B) serious impairment       to bodily functions,   or

                            (C) serious dysfunction      of any bodily organ or part.

42 U.S.C. 5 1396b(v)(3)   (1994).
The Honorable Michael A. Stafford         - Page 4       (JC-0394)




                   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.

Id. 8 1621(d).

         The authority of the Harris County Hospital District to provide nonemergency health care
at public expense to undocumented aliens is limited by 8 U.S.C. 5 162 1. The hospital district may
not provide such care to undocumented aliens unless the Texas Legislature has adopted a law after
August 22, 1996, “which affirmatively provides for [their] eligibility.” Id. We find no statute
applicable to the hospital district that complies with section 1621(d).

         The word “af&-matively” has been defined to mean “[b]y way of assertion or express
declaration.” I OXFORD ENGLISH DICTIONARY 2 19 (2d ed. 1989). An enactment that “affirmatively
provides for such eligibility” would expressly state the legislature’s intent that undocumented aliens
are to be eligible for certain public benefits. The legislature adopted two such provisions in 1997.
See Act ofMay 19,1997,75thLeg.,          R.S., ch. 575’5 23’1997 Tex. Gen. Laws 2012,202O. The Act
amended Family Code section 264.004 to state that the Department of Protective and Regulatory
Services may use state and federal funds to provide child protective services and related benefits to
eligible children and families “without regard to the immigration status of the child or the child’s
family.” TEX.FAM. CODEANN. 8 264.004(c) (Vernon Supp. 2001); see Act of May 19’1997, supra,
§ 23, at 2020. At the same time, the legislature amended section 264.006 of the Family Code to
provide that the commissioners court of a county may provide for services to and support of children
in need of protection and care “without regard to the immigration status of the child or the child’s
family.” TEX. FAM. CODE ANN. 8 264.006 (Vernon Supp. 2001); see Act of May 19’1997, supra,
9 25, at 2020. The language of these Family Code provisions adopted after August 22’1996, makes
clear the legislature’s intent to provide for the eligibility ofundocumented  aliens for publicly-funded
child protective services.

         The requestor has not cited any statute applicable to the Harris County Hospital District
expressly stating that aliens unlawfully in the county may receive publicly-funded health care from
the district, nor have we identified such a statute. It is suggested that House Bill 1398 of the
Seventy-sixth Texas Legislature, which amended provisions of the Indigent Health Care and
Treatment Act, provides that undocumented aliens may receive public benefits from the Harris
County Hospital District .3 This bill left unchanged the definition of residency and amended and
reenacted provisions on residence and eligibility for health care.4 See Act of May 27, 1999, 76th
Leg., R.S., ch. 1377, $5 1.02-.04, 1.08, 1999 Tex. Gen. Laws 4654,4655-56,4657-58        (amending



       3See Brief from Joseph P. Berra, Staff Attorney, Mexican American Legal Defense and Educational Fund
(MALDEF), to Honorable John Comyn, Texas Attorney General, at 5 (Apr. 2,200l) (on file with Opinion Committee).



        4See id.
The Honorable Michael A. Stafford               - Page 5       (JC-0394)




sections 6 1.004,6 1.0045,6 1.006, and 6 1.028 of the Health and Safety Code). However, House Bill
1398 does not expressly refer to the immigration status of aliens nor does it include any indication
that the legislature intended it to provide that an alien “not lawfully present in the United States”
would be eligible for a state or local public benefit for which the alien was ineligible under
PRWORA. House Bill 1398 does not “affirmatively provide[]” that undocumented aliens will be
eligible for any public benefit under chapter 61 of the Health and Safety Code. The Harris County
Hospital District has no authority to provide publicly-funded health care services to undocumented
aliens aside from the services expressly authorized by section 162 1.

         An argument is also made that 8 U.S.C. 5 1621(d) violates the Tenth Amendment of the
United States Constitution.’ The Tenth Amendment provides that “[tlhe powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” U.S. CONST.amend. X. Pursuant to this amendment, “Congress may
not assume control over the legislative processes of the states by directly compelling them to enact
and enforce a federal regulatory program.” New York v. United States, 505 U.S. 144, 157 (1992);
State v. United States, 106 F.3d 661, 665-66 (5th Cir. 1997); see also City ofNew York v. United
States, 179 F.3d 29’33 (2d Cir. 1999)’ cert. denied 528 U.S. 1115 (2000). Moreover, “Congress
cannot circumvent that prohibition by conscripting the State’s officers directly.” Printz v. United
States, 521 U.S. 898 (1997); City of New York v. United States, 179 F.3d at 33.

         Section 162 1(d) authorizes a state to provide that an undocumented alien is eligible for a state
or local public benefit for which the alien is ineligible under PRWORA “only through the enactment
of a State law after August 22, 1996 which affirmatively provides for such eligibility.” 8 U.S.C. 8
 1621 (d) (1994 & Supp. V 1999). It has been argued that section 162 1(d) violates the Tenth
Amendment because it invades a central aspect of state sovereignty: “the states’ ability to determine
and establish their own legislative decision makers and decision making process?            That is, section
 162 1(d) requires a state to express its intent to provide public benefits for undocumented aliens “only
through the enactment of a State law,” rather than through any method the state might choose. See
Doe v. Wilson, No. C-97-2427 (N.D. Cal. Dec. 16, 1997) (order granting defendants’ motion to
dismiss), 1997 WL 811788 (if court found “reenactment clause” unconstitutional,              it could grant
relief only by severing provision in its entirety).7

        We accord federal statutes a strong presumption of constitutionality.      See United States v.
Morrison, 529 U.S. 598,607 (2000). Section 1621 does not compel a state government to enact or
administer any federal regulatory program. Instead, it prohibits state and local entities from allowing
undocumented aliens to participate in all but a few public benefit programs. Section 1621(d) does



              ‘See id. at 8-9.

              61d.at 9.


              ‘This case was settled when the challenged regulations were withdrawn and California eventually   enacted
legislation     reauthorizing programs that had extended eligibility to undocumented aliens. See id. at 8.
The Honorable Michael A. Stafford           - Page 6       (JC-0394)




not require any action by a state, but if a state wishes to provide more public benefits to
undocumented      aliens, this provision authorizes it to do so by adopting legislation.       The Tenth
Amendment does not bar Congress from encouraging a state to regulate in a particular way or
holding out incentives to the states as a method of influencing a state’s policy choices. See New
York v. United States, 505 U.S. at 166. The cases of the United States Supreme Court “have
identified a variety of methods, short of outright coercion, by which Congress may urge a State to
adopt a legislative program consistent with federal interests.” Id. Section 1621 (d) enables each state
to make decisions about public benefits for undocumented aliens based on its own circumstances.
This provision does not coerce any state to adopt a legislative program, but instead it offers each
state the option of departing from the federal restrictions on public benefits for aliens, which the state
may accept by enacting a statute that complies with section 1621(d). Thus, section 1621(d) may
encourage states to legislate in a particular area, but it does not require them to do so. In our opinion,
section 162 1(d) does not violate the Tenth Amendment of the United States Constitution.

        If the hospital district board chooses to provide routine health care to undocumented aliens
despite PRWORA, your predecessor asked what the penalty is for violating this Act. As the Harris
County brief points out, there are no specific enforcement procedures for violating 8 U.S.C. 8 162 1.’
Nonetheless, there could be consequences under state or federal law to the hospital district and its
officers for spending public funds for a purpose specifically barred by 8 U.S.C. 8 1621. See
generally TEX. HEALTH & SAFETY CODE ANN. $5 281.021(c) (Vernon 2001) (hospital district is
governed by board of hospital managers appointed by Harris County Commissioners               Court);
28 1.026 (administrator appointed by the board directs affairs of the district).

         If the hospital district chooses to spend public funds to provide services that it lacks authority
to provide and that it is forbidden to provide by PRWORA, it may be accountable for that decision
under various state and federal laws. We will point out legal consequences that may apply to the
Harris County Hospital District, its board members and administrator. Whether the district, its board
members and administrator are subject to legal consequences for a particular unauthorized
expenditure of public funds depends upon all the relevant facts and circumstances and cannot be
determined in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0328 (2000) at
6; JC-0285 at 5, n.2; JC-0020 at 2; DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-291 1
(1940) at 2.

         As the Harris County brief points         out, the hospital district receives funds from Medicare and
Medicaid and as a condition for receiving           these funds, it must comply with applicable federal laws
related to the health and safety of patients.        See 42 C.F.R. 4 482.11 (2000).9 The brief also states that
“it is not unusual for state funded grants          allocated to the District to include requirements that the




        *See Request Letter, supra note 1, at 5.

        9See id.
The Honorable       Michael A. Stafford   - Page 7    (JC-0394)




District comply with all applicable state and federal laws.y’1oIf section 162 1 is an “applicable federal
law” under such grants, the brief indicates that the hospital district’s noncompliance with that statute
could jeopardize the receipt of state or federal funding. 1’

          The hospital district may also be subject to consequences under state law for making an
unauthorized expenditure of public funds. The district is subject to accounting and control
procedures prescribed by the commissioners court or by the hospital district board under authority
delegated by the commissioners court. See TEX.HEALTH& SAFETYCODEANN. 5 28 1.049 (Vernon
2001); see also id. 8 28 1.092 (hospital district administrator must prepare an annual report for board,
cornmissioners court, Texas Board of Health and Comptroller showing the district’s operations for
the fiscal year).. Questions about the expenditure could arise in an audit of the district’s financial
records. The district’s budget, prepared by the administrator and approved by the board, is subject
to final approval by the commissioners court. Id. § 28 1.091. The commissioners court could take
into account the board’s unauthorized expenditures when it considers approving the budget. See
Tex. Att’y Gen. Op. No. JM-79 (1983) at 3 (authority of commissioners court to reject hospital
district’s budget). The board could also be subject to a taxpayer’s suit to enjoin future unauthorized
expenditures.     See, e.g., Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555-56 (Tex. 2000);
Osborne v. Keith, 177 S.W.2d 198,200 (Tex. 1944).

        Finally, the request letter notes that public policy arguments have been made that
undocumented aliens residing within the district’s boundaries should be eligible for nonemergency
health care from the district.** For example, it is suggested that providing such health care would
reduce the costs of emergency health care.13 Arguments in favor of amending section 1621 of title
8 should be addressed to Congress, while arguments for legislative action under section 1621(d)
should be addressed to the Texas Legislature.




        “Id.


        “Id.

        ‘2See id.


        ‘3See id.
The Honorable Michael A. Stafford     - Page 8       (JC-0394)




                                        SUMMARY

                        The Personal      Responsibility    and Work Opportunity
               Reconciliation    Act of 1996 provides in 8 U.S.C. 8 1621 that
               undocumented aliens are ineligible for state and local public benefits,
               with certain exceptions. Under this Act, a state may provide that an
               alien not lawfully present in the United States is eligible for any state
               or local benefit only through the enactment of a state law after August
               22,1996, which affirmatively provides for such eligibility. No Texas
               statute adopted before or after August 22, 1996, affirmatively
               provides that residents of hospital districts are eligible for public
               benefits without regard to immigration status. The Act therefore
               prohibits the Harris County Hospital District from providing free or
               discounted nonemergency health care to undocumented aliens, even
               if they reside within the district’s boundaries.

                                               Y ursvrytrul      ,



                                            AJiJOHN
                                                        e

                                                        CORNYN
                                                               CnJ
                                                                 T
                                                                      ’



                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
