Hon. Raymond W. Vowel1                  Opinion No. M- 1035
Commissioner
State Department of Public Welfare      Re:   Effect of Graham v.
John H. Reagan Building                       Richardson (U.S. Sup.
Austin, Texas                                 1971) upon Art. III,
                                              Sec. 15a, Texas Con-
                                              stitution, and Art.
                                              695c, Sets. 12 and 20,
                                              V.C.S., relating to
                                              citizenship requirement
                                              for old age assistance
Dear Mr. Vowell:                              and aid to the blind.
          In your letter requesting an opinion from this office
you ask the following question:
            'Does the United States Supreme Court
       decision in Graham v. Richardeon, et al. and
       Sailer, et al. v. Legar, et al., have the
       effect of rendering unconstitutional the
       portion6 of the Texas Constitution (Art.
       III, Sec. 51-a) and the Texas statutes
       (Art. 695c, Sets. 12 and 20, V.T.C.S.)
       which relate to the citizenship require-
       ment for old age assistance and aid to
       the blind."
          On June 14. 1971. the United States Sunreme Court
decided the cases of Graham v. Richardson, et al: and Sailer,
et al. v. Legar, et al., 91 S.Ct. 1848 403 U S 365 (Isn,-
affl i    Graham v. Richardson, et al.: 313 F:S;pp. 34 (D.Arlz.
1970yaZ   Sailer, et al. v. Legar, e Y al..,321 F;Supp. 250
(E.D.Penn. 19'10). Both cases were welfare cases. The Gr&am
case~concerned the Arizona statute orovidina benefits to
permanently and totally disabled (A-PTD). The Arizona statute,
Section 46-233A01, Arizona Revised Statutes, reads:
            'No person shall be entitled to general
       assistance who does not meet and maintain the
       following requirements:
   .
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Hon. Raymond W. Vowell, page 2   (M-1035)


          "1 e Is a citizen of the United States,
     or has resided in the United States a total
     of fifteen years. * + *"
A like elfgfbflfty provfsfon conditioned upon citizenship or
durational residence appears in the Arizona statutes providing
old age assfstance and assistance to the needy blind. The
Appellee, Carmen Richardson, was a lawfully admitted alien. She
met all other qualfficatfons for (APTD) benefits except the 15
year residency specified for aliens by the Arizona statute. She
applied for (APTD) benefits but was denfed relief solely because
of the residency provision.
          The Sailer case concerned the Pennsylvania Welfare Code,
62 P.S. Section2).       It provides that those eligible for
assistance shall be (1) needy persons who qualify under the
federally-supported categorical assistance programs and (2) those
other needy persons who are citizens of the United States. The
Appellee, Elsie Legar, was a lawfully admitted resident alien,
Mrs. Sailer was fnelfgible for assistance under the federal pro-
grams and was denied State welfare assistance because of her
alienage.
          The Court in its opinion bv Mr. Justice Blackmun held
thal State statutes like those of Arizona and Pennsylvania which
deny welfare benefits to lawfully admitted resident aliens or to
lawfully admitted aliens who have not resided in the United States
for a specffied number of years, violate the Equal Protection Clause
of the Fourteenth Amendment to the Unfted States Constitution and
encroach upon the exclusive federal power over the entrance and
residence of aliens. The Court also held that there was no au-
thorization for Arizona's 15 year duratfonal residency requirement
In the Socfal Security Act.
          On December 13# 1971, a three-judge district court en-
tered a judgment In the United States District Court9 Southern
District of Texas, Houston Dfvfsfon in Perez9 et al, v. Hackney,
                                       !e
et al. consolidated with Salazar V- Hackney, ea.
                                              t a.1 * Th
                                                       Thee Perez
andazar     cases were ackions       oertained sorely to thed
                            1s which pertained sorely  to
to t-permanently
   tFz                                            ectfon 16-B,
                   and totally disabled (AFTD), Section
Article 695c, Vernon's Civil Statutes, and aid to families with
dependent children (AFDC), Section 17, Article 695c, Vernon's



* Not yet reported.
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Hon. Raymond W. Vowell, page 3 (M-1035)


Civil Statutes programs.
          The judgment entered in the Perez and Salazar cases
reads, in part, as follows:
          ,I
           . . .
          "1 . Portions of Article III, Section 51-a
     of the Texas Constitution and Texas Revised Civil
     Statutes Annotated, Article 695c, §§16-b & 17,
     and the regulations Issued pursuant to them by
     defendants, deny aid to applicants for Aid to
     the Permanently and Totally Disabled and Aid to
     Families with Dependent Children who are not
     citizens of the United States. As such those
     portions violate Article I, $8 and VI of the
     Constitution of the United States by encroaching
     upon exclusive federal power and they also
     violate the equal protection clause of the
     Fourteenth Amendment to the United States
     Constitution."
          There Is no specific provision In the Texas Constitution
relating to the citizenship requirement for aid to the permanently
and totally disabled and aid to families with dependent children,
but Sections 16-B and 17 of Article 695c, Vernon's Civil Statutes,
contain the statutory requirements for citizenship for these two
programs as follows:
          'Sec. 16-B. (1) Assistance to the per-
     manently and totally disabled shall be given
     under the provisions of this Act to any needy
     person:
          "1. Who is permanently and totally dis-
     abled as hereinafter defined; and

           .   .   .

          "3. Who is a citizen of the United States,
     and . . .
          'Sec. 17. Aid to F~amilieswith Dependent
     Children shall be given under the provisions of
     this Act with respect to any dependent child.
     'Dependent Child' is any needy child:

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Hon. Raymond W. Vowell, page 4   (M-1035)


          "(1) Who is a citizen of the United States,
     and . . .*I
          Article III, Section 51-a of the Texas Constitution
provides, in part, as follows:
          "Section 51-a. The Legislature shall have
     the power, by General Laws, to provide, subject
     to limitations herein contained, and such other
     limitations, restrictions and regulations as may
     by the Legislature be deemed expedient, for
     assistance grants to . e .
          "(1) Needy aged persons who are citizens
     of the United States or non-citizens who shall
     have resided withi th boundaries of the United
     States for at least twkty-five (25) years;
     '(Emphasisadded.)
          "(2) Needy individuals who are totally and
     permanently disabled by reason of a mental or
     physical handicap or a combination of physical
     and mental handicaps;
          “(3)   Needy blind persons;
          "(4) Needy dependent childzen and the
     caretakers of such children. . .
          The Public Welfare Act of 1941, as amended (Article 695c,
Vernon's Texas Civil Statutes) Sections 12 and 20 provide, in part,
as follows:
          "Sec. 12. Assistance shall be given under
     the provisions of this Act to any needy blind
     person who:
          11
           e e .
          “(6)   Who is a citizen of the United States."
          "Sec. 20. Old Age Assistance shall be given
     under the provisions of this Act to any needy
     person:



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Ron. Raymond W. Vowell,,page 5 (M-.1035)


          "(2) Who is a citizen of the United States
     or who is a noncitizen and has resided within the
     boundaries of the United States for at least twenty-
     five (25) years; and


          On the basis of the United States Supreme Court decision
in Graham v. Richardson, et al. and Sailer, et al. v. Legar, et al.,
                                   ez, et al. v. H ackney, et al. and
                                   t is our opinion that th t portion
                                    Texas Constitution and gections
12 and 20 of the Public Welfare Act, 1941, as amended, Article 695c,
Vernon's Civil Statutes, which make citizenship a qualification for
the old age assistance and aid to the blind programs, are in viola-
tion of the Equal Protection Clause of the United States Constitution
and encroach upon the exclusive federal power over the entrance and
residence of aliens. There 1s no authorization in the Social
Security Act for the durational residency requirement contained
in Article III, Section 51-a of the Texas Constitution and Section
20(2), Vernon's Civil Statutes.
                    SUMMARY
          On the basis of the United States Supreme
    Court decision in Graham v. Richardson, et al.,
    and Sailer, et al. v. Legar, et a1 .,    s ct
    1848,  403 U.S. 3b5 (19'/1) that portion oh A&.icle
    III, Section 51-a of the Texas Constitution and
    Sections 12 and 20 of the Public Welfare Act, 1941,
    as amended, Article 695c, Vernon's Civil Statutes,
    which make citizenship a qualification for the old
    age assistance and aid to the blind programs, are
    in violation of the Equal Protection Clause of the
    Fourteenth Amendment of the United States Constitu-
    tion and encroach upon the exclusive federal power
    over the entrance  and residence of aliens, There
    is no authorization in the Social Security Act for
    the durational residency requirement contained In
    Article III, Section 51-a of the Texas Constitution
    and Section 20(2), Article 695c, Vernon's Civil
    Statutes.
                                truly yfurs,


                                    C. MARTIN
                                 ey General of Texas
                                          .   .




Hon. Raymond W. Vowell, page 6 (M-1035)


Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sig Aronson
John Reeves
Jerry Roberts
R. D. Green
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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