                               The Attorney        General of Texas

JIM   MAl-TOX                                   Qril 8, 1986
Attorney   General



Supreme Court Building         Honorable Erwin W. Barton          Opinion No. .IiG4'0
P. 0. Box 12548                cheirman
Austin, TX. 78711. 2549
                               Humsn sarviccs Committee           Re: CoGtitutional validity of a
5121475.2501
Telex 91O/S74-1387             Texas Aouse of Re~lresentatives    municipal ordinance which requires
Telecopier 512/475-0255        P. 0. Box 2910                     participants in a medical assis-
                               Austin, Texas   'Et769             tance program to apply for other
                                                                  available benefits
714 Jackson, Suite 700
Dallas, TX. 75202-4505
214i742-8944                   Dear Repre8entati.c:Barton:

                                    You ask whether the Similar Benefits Rule which is incorporated
4824 Alberta Ave., Suite 160   in the Medical P.ssistance Program of the city of Austin violates
El Paso, TX. 793052793
                               individuals' constItutiona "freedom of choice." The city of Austin's
915/533-34a4
                               Similar Benefits Rule makes it a prerequisite to the expenditure of
                               city funds for 'xalth care services for indigent or low income
1001 Texas, Suite 700          recipients that liuch persons must first utilize whatever "federal,
Houston, TX. 77002~3111        state or private funds or similar benefits are available for the
713/223-59@                    payment for [such] services. . . ." We find that this rule does not
                               violate any constjxutional "freedom of choice."
808 Broadway, Suite 312
Lubbock, TX. 79401.3479             Austin is a Rome Rule City, created pursuant to article XI,
KW747-5235                     section 5 of the Texas Constitution, with broad authority to provide
                               for the health antiwelfare of its citizens. V.T.C.S. arr. 1175, 5528,
4309 N. Tenth, Suite S         34. Its governir.gbody is empowered to establish and regulate the
MAtlen, TX. 78501-1685         provision of medical and health services, including the operation of
512l5824547                    hospitals. V.T.C.S. art. 1015, §§l, 4. The Austin City Council
                               enacted the SimiLr' Benefits Rule in 1977, by resolution, as follows:
200 Main Plaza, Suite 400
San Antonio, TX. 792052797                 Whenever federal, state or private funds or
512l225.4191                            similar benefits are available for the payment for
                                        servicczi to indigent or low income health care
                                        recipient:s,no city funds shall be used to pay for
An Equal Opportunityl                   such care. Persons who are eligible for partial
Aftirmatlve Action Employer
                                        benefitzl from other third party sources may be
                                        eligible for supplamental clinic card benefits
                                        provided that such supplemental benefits are
                                        extended only as a source of payment of last
                                        resort lrhenbenefits from other sources have been
                                        exhausted or are inadequate to fully cover the
                                        cost of medically necessary services.




                                                     p. 2150
Honorable Erwin W. Barton - Page 2     (JM-470)




You ask whether this rule violates any right to "freedom of choice,"
to choose between various Sovernment benefit programs.

     The right to "freedom of choice”  in certain matters is part of
the right to privacy. See Roe v. Wade, 410 U.S. 113, 152-53 (1973);
see also Harris v. M&a,,'448 U.S. 297, 312 (1980) (part of liberty
interest protected by the Due Process Clause of the Fourtemth
Amandment). The most commonly recognized matters of personal privacy
involve activities and dlzcisions regarding marriage, procreation,
contraception, and a freedom of personal choice in certain other
matters associated with family life. sci?3      see also Santosky v.
Kramer, 455 U.S. 745, 753 (1,982). Thereye.no   cases which hold that
a person has a constitut&xlal right to select the source of public
assistance under the right of privacy.

     In Harris v. &Rae, 44.8U.S. 297, 316 (1980), the United States
Supreme Court denied the ezristenceof a constitutional entitlement to
sufficient financial resources to participate in the full range of
protected choices. See aljg;Maher v. Roe, 432 U.S. 464, 474 (1977).
As the McRae court explainsd,

          [allthough the l.iberty protected by the Due
          Process Clause affords protection against un-
          warranted government interference with freedom of       '
          choice in the context of certain personal
          decisions, it does not confer an entitlement to
          such funds as ma:rbe necessary to realize all the
          advantages of that freedom.

448 U.S. at 317-18. The c.ourtreasoned that the manner of providing
benafits which the government   is not constitutionally required to
provide Is a legislative matter rather than a matter of constitutional
entitlement. 448 U.S. at 318; see also Burgess v. City of Houston,
718 F.2d 151. 154 (5th CII. 19S3);mney      v. Meade, 466 S.W.2d 341,
342 (Tax. Civ. App. - Austdn 1971, writ ref'd n.r.e.1.

     Consequently, the constitutional right of individuals to privacy
and the freedom of choice j,npersonal matters which that right antalls
does not prevent the city c’f Austin from requiring that applicants for
medical assistance which ::s funded bv the citv first exhaust other
available sources of medical assistance. See alao Schweiker v. Hogan.
457 U.S. 569, 591 (1982) (allocating scarce benefits ou the basis of
financial ability to meet needs not inconsistent with constitutional
principles of equal treatmfnt).

                             SUMMARY

             The constitul:ional right of individuals to
          privacy and the freedom of choice in personal




                              p. 2151
Honorable Erwin W. Barton -'Page 3      (JM-470)




         matters which t3,o.tright entails do not prevent
         the city of AustLn from requiring that applicants
         for medical assistance which is funded by the city
         first exhaust other available sources of medical
         assistance.



                                                        IA-t+-
                                         VeryItruly your!



                                         JIM     MATTOX
                                         Attorney General of Texas

JACE HIGHTOWER
First Assistant Attorney Goneral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICE GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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