                     TEE   ATTORNEY    GENERAL
                              OF TEXAS

                             October 4, 1988




Mr. Pat D. Westbrook                 Opinion No. JM-962
Executive Director
Texas Commission for the Blind       Re:   Whether the Texas Com-
P. 0. Box 12866                      mission  for the Blind is
Austin, Texas   78711                required to provide services
                                     to blind children who are
                                     illegal aliens   (RQ-1318)

Dear   Mr. Westbrook:

     On behalf of the Texas Commission   for the Blind, YOU
request our opinion on issues concerning the eligibility  of
undocumented aliens to receive services from the commission.
you 'ask three questions:

              (1) Should the Commission provide ser-
          vices to blind children residing  in Texas
          regardless  of their status as legal    or
          illegal aliens?

              (2) Should the Commission provide voca-
          tional rehabilitation services to adults who
          are illegal aliens?

               (3)If the answer to either question        (1)
          or   (2)
                 is Ino' is there any reason why the
          Commission   cannot   request   documentation
          before providing    services   to        suspected
          illegal aliens?

     For reasons to be discussed below, we-conclude that the
Texas Commission   for the Blind must provide    services to
blind children   eligible to receive such services without
regard to their status as legal or illegal aliens. We also
conclude that the commission may not deny vocational rehabi-
litation services to adults who are illegal or undocumented
aliens.




                                  p. 4884
Mr. Pat D. Westbrook - Page 2    (JM-962)




                                I.

A.   Services to visually handicapped children.

     The Texas Commission   for the Blind operates   pursuant
to chapter 91 of the Human Resources Code.       The primary
responsibility of the commission   is to provide services  to
visually handicapped persons other than welfare services   or
services provided to children under programs established   by
educational institutions or other agencies.   Hum. Res. Code
5 91.021(a).   The commission may provide services to visual-
ly handicapped children to supplement the services of other
state agencies. ra, 0 91.028. The commission is authorized
to cooperate   with other state agencies    and the federal
government   to achieve these purposes     and to implement
federal legislation providing for assistance to the visually
handicapped.   &   S§ 91.021(b), (d); 91.028.

     The commission provides a number of services to visu-
ally handicapped   children  including blindness   prevention
services,  parental   counseling,  psychological  counseling,
educational support, diagnostic    and evaluation   services,
physical training,   and orientation  and mobili~ty training.
The commission also provides funds for medical     operations
and adaptive   equipment.   These services   are provided   to
children, we are told, without federal funds.

     You inform us that the commission believes     that   it
should provide services to blind children who are undocu-
mented aliens by virtue of the United States Supreme    Court
decision in Plvler v. Doe 457 U.S. 202 (1982). In Plvler,
the Court held that a pro&sion  of the Texas Education   Code
withholding funds from school districts for the education of
children not "legally admitted"   to the United States and
authorizing school districts   to deny enrollment   to such
children violated the Equal Protection Clause of the Four-
teenth Amendment to the United States Constitution   because
it did not further a "substantial goal" of the state.     The
Commission for the Blind has determined that there is no
substantial goal of the state that will justify the denial
of services to blind undocumented   alien children.    There-
fore, it concludes that such children may receive services
from the commission.

     We agree that the commission should provide its ser-
vices to visually handicapped   children without  regard to
their immigration status.   However, we need not resort to
constitutional principles to resolve this issue, for this
question is essentially a matter of statutory  construction.
See Attorney General Opinion H-586 (1975).



                             p. 4885
     Mr. Pat D. Westbrook - Page 3      (JM-962)




     B. Children's eligibility for services.

          The Supreme Court in Plvler confronted a legislative
     classification that discriminated against undocumented alien
     children.   It was therefore    necessary for the Court to
     resort to constitutional   principles in order to determine
     whether the legislature could enact such a classification.
     Here, however, we are not confronted with a discriminatory
     legislative classification.   The legislature has not enacted
     any criteria   concerning a child's eligibility   to receive
     services from the commission other than the requirement that
     the child have a visual handicap.    The commission,   presum-
     ably pursuant to its authority to promulgate rules governing
     the administration    of   its programs,    Hum. Res.     Code
     § 91.011(g), has imposed a residency requirement on recipi-
     ents of services under the visually handicapped     children's
     program.  40 T.A.C.   S 169.4. Assuming   the commission   has
     authority to adopt such a standard, the residency     require-
     ment would not prohibit the commission        from providing
     services to children who are undocumented aliens.

          In Attorney General Opinion WW-1274 (1962), this office
     concluded that the State (now "Texas") Commission for the
.-   Blind could provide vocational rehabilitation services to a
     child who was an alien and whose parents "have never taken
     out naturalization papers."    The relevant statute required
     the applicant for services to be a resident of the state at
     the time of filing the application.   Although residence is a
     flexible concept that depends largely upon the circumstances
     in which it is used, see Attorney General Opinion JM-611
     (1986), the attorney general concluded that an applicant
     needed only to establish bodily presence in the state at the
     time of application.   Thus, Texas law would permit an alien
     to establish residency for the purpose of receiving services
     from the commission.    See also St. Josevh's Hosvital    and
     Medical Ce t r     Maricova County 688 P.2d 986 (Ariz. 1984)
     (undocumented aT;en may be a resident of county for purpose
     of receiving medical assistance under state indigent health
     care statute).   It is therefore of little.consequence   that
     the commission   has adopted a residency   qualification  for
     children's services.    Accordingly, your first question   is
     answered in the affirmative.

                                        II.

     A. Vocational   rehabilitation   services.

          Your second question concerns the availability     of
     vocational rehabilitation  services to adult .undocumented
     aliens. The commission    provides such services to blind



                                      p. 4886
Mr. Pat D. Westbrook - Page 4      (JM-962)




disabled individuals directly or through public or private
agencies. A blind disabled individual     is "a person who    is
blind or who has a visual condition        for which medical
prognosis indicates   a progressive deterioration     that may
result in a substantial    vocational handicap."     Hum. Res.
Code 5 91.051(5).   The commission   is directed to cooperate
with the federal government to accomplish     the purposes   of
federal laws relating to vocational     rehabilitation and is
ordered to comply with conditions required by the federal
government to secure the full benefits of the federal laws.
&   5 91.053(a), (b). Section 9~1.055 of the Human Resources
Code states that the commission     'shall provide   vocational
rehabilitation   services to a blind disabled        individual
eligible for those services under federal law." To ascer-
tain the eligibility of a blind disabled person to receive
vocational rehabilitation services    from the commission,   we
must consult the relevant federal law, the Rehabilitation
Act of 1973. 29 U.S.C. 55 701 et sea.

B.   The.Rehabilitation    Act of 1973.

     The Rehabilitation Act was enacted with the purpose    of
developing and implementing   %omprehensive   and coordinated
programs  of vocational     rehabilitation   and   independent
living" for persons with handicaps.     29 U.S.C. 5 701.   The
goal of these programs is to "maximize [the] employability,
independence, and integration [of persons with handicaps]
into the workplace and the community."    &

     In order to be eligible to ~participate in vocational
rehabilitation  programs  created under the federal act,
states must submit to the federal government a state plan
for vocational rehabilitation services that fulfills certain
conditions specified in the act. Among those conditions    is
that the state plan shall "provide that no residence     re-
quirement will be imposed which excludes from services under
the plan any individual who is present in the state."    &
$'721(a)(14);  se also 34 C.F.R. 5 361.31(a)(2) (1987). The
dominant criteriaefor determining a person's eligibility are

             (1) [t]he presence   of a physical
         mental disability  which for the individuzr
         constitutes  or results   in a   substantial
         handicap to employment: and

             (2)  [al      reasonable    expectation that
         vocational       rehabilitation    services  may
         benefit the      individual in terms of employ-
         ability.




                                 P. 4887
Mr. Pat D. Westbrook - Page 5    (JM-962)




34 C.F.R.   f 361.31(b)   (1987).   These standards   strongly
suggest that it is improper for a state to impose more
restrictive conditions on eligibility so as to deny services
to any individual with a qualifying disability.    Our review
of the relevant    federal regulations   governing  vocational
rehabilitation programs    revealed no regulation    expressly
addressing the issue you raise. At a time when Texas        law
imposed a residency     requirement  upon the recipients     of
commission   services,   including vocational   rehabilitation
services, this office concluded that the commission      could
provide such services to aliens "who have never taken out
naturalization papers."     Attorney General Opinion WW-1274
(1962). With the residency qualification now removed, there
is even less reason to conclude that undocumented aliens are
ineligible   to participate    in vocational    rehabilitation
programs.

     The commission; however, does not couch its objection
to providing services to adult undocumented aliens in terms
of residency.   Rather, the commission contends that since it
is illegal for undocumented aliens to secure jobs in the
United States, the state should not encourage their employ-
ment by providing   them vocational rehabilitation   services.
The commission does not refer specifically     to any. federal
law or regulation that supports    its decision to deny voca-
tional rehabilitation services to undocumented aliens.     Nor
do you detail the commission%   reasoning for this decision.
The commission's argument, however, seems grounded in the
notion that federal immigration policy, especially      asp it
concerns the employment   of undocumented aliens,   forecloses
an undocumented   alien's eligibility   to receive vocational
rehabilitation services. We will now consider this aspect
of the commission's argument.

C.   Federal immigration policy concerning the employment of
     undocumented aliens.

     Your letter requesting this opinion contains no refer-
ence to the federal laws that led to the commission's   deci-
sion to deny vocationai  rehabilitation services to undocu-
mented aliens. The commission apparently has in mind the
changes wrought in federal law by the Immigration Reform and
Control Act of 1986 (the IRCA), Pub. L. No. 99-603,       100
Stat. 3359 (1986).   The IRCA makes the most comprehensive
change in the federal immigration laws since the McCarren-
Walter Act of 1952.   N. Montwieler, The Immigration   Reform
Law of 1986, at 3 (1987).     Its primary   features  include
employer sanctions for the hiring of undocumented aliens,   a
legalization program for certain undocumented aliens   living
in this country since before January 1, 1982 (amnesty), and




                              p. 4888
Mr. Pat D. Westbrook   - Page 6   (JM-962)




a  separate  legalization  program  for temporary    foreign
agricultural workers. J& at v. The express purpose of the
amendments is to control illegal immigration into the United
States. See H.R. Rep. No. 99-682, 99th Cong., 2d Sess., pt.
1, at 45, revrinted  in 1986 U.S. Code Cong . & Admin. News
5649. The feature most relevant to the commission's    argu-
ment is the plan to implement employer sanctions.

     The availability of employment has long been recognized
as the magnet that attracts undocumented aliens to this
country. &9 Plvler v. Doe, suvra, at 228; Note, Develov-
ments in the Law: Immiaration     Policy and the Riahts    of
Aliens, 96 HaN. L. Rev. 1286, 1438-40 (1983). The failure
or the inability   of the federal government to enforce   its
immigration laws, coupled with the lack of an effective
disincentive to the employment   of undocumented aliens, may
have led to the perception that such employment      received
implicit congressional    imprimatur.   &S   Plvler V.   Doe,
suvra.   Indeed, under the so-called "Texas proviso," it was
illegal for an undocumented    alien to work in the United
States, but it was not illegal for an employer to hire the
same undocumented worker.   N. Montwieler, suvra, at 4.   The
enactment of employer sanctions   confirms that Congress  in-
tends to erase this perception.

     As a result of the IRCA, it is now unlawful for any
person to knowingly "hire, . . . recruit or refer for a fee"
any undocumented alien for employment anywhere in the United
States.   8 U.S.C.   § 1324a(s)(l).  Penalties for violations
include civil fines ranging from $250 to $10,000,          and
criminal penalties of up to six months imprisonment and/or a
$3,000 fine for pattern or practice violations.           Id.
5 1324a(e)(4), (f).     Employers must verify the status of
every person they intend to hire after the effective date of
the act by examining       certain specified   documents that
establish the person's employment authorization and identi-
ty- &      5 1324a(h)(l).    The IRCA eliminates   the "Texas
proviso 'Iby removing the statutory language providing   that
employment shall not constitute harboring an undocumented
alien. L     5 1324.

D.   Plvler and an "articulable federal policy."

     In Plvler  the state's principle argument was that a
person's status as an undocumented alien was sufficient   in
itself to authorize the state to withhold from these persons
benefits it might offer other residents of the state.    457
U.S. at 224. This argument is akin to the so-called "outlaw
theory" under which undocumented aliens, solely because they     -.
have broken the immigration laws, are deemed to forfeit any



                              p. 4889
Mr. Pat D. Westbrook - Page 7     (JM-962)




benefits that might accrue from their unauthorized  presence
in this country. See E. Hull, Without Justice for All, at
86-88 (1985). The Court acknowledged the special deference
the courts must accord congressional  policy in the area of
immigration, but cautioned  that the same was not true for
state policies affecting immigration:

        The States enjoy no power with respect to the
        classification   of aliens.     This power   is
        'committed to the political branches of the
        Federal Government.*   Although it is \a rou-
        tine and normally    legitimate part* of the
        business of the Federal Government to classi-
        fy on the basis of alien status, and to 'take
        into account the character of the relation-
        ship between   the alien and this country,'
        only rarely are such matters.      relevant to
        legislation by a State.    (Citations omitted.)

457 U.S. at 225. The Court recalled that in De Canas v.
u,    424 U.S. 351 (1976), it held that the states do
possess authority to act with respect to illegal aliens, "at
least where such action mirrors federal objectives and fur-
thers a legitimate state goal." 457 U.S. 202, at 225.     In
De Canas the Court upheld a California statute prohibiting
an employer from knowingly employing   an alien who is not
entitled to lawful residence in this country if the hiring
adversely affects lawful resident workers.   The California
law reflected Congress' intention to prohibit the employment
of ail aliens except those with a grant of permission     to
work in this country. The statute was thus not preempted by
the Immigration and Nationality Act.

     The Court also conceded that, despite     the   exclusive
federal power to control unlawful migration,

        [i]n other contexts, undocumented      status,
        coupled with some articulable federal policy,
        might enhance state authority with.respect to
        the treatment of undocumented   aliens . . . .
        The State may borrow the federal classifica-
        tion. But to justify its use as a criterion
        for its own discriminatory policy, the State
        must demonstrate that the classification    is
        reasonably adapted to 'the vurvoses for which
        th state d    'r  t        it.'  (Emphasis in
        orzginal, cT%b      zrnitszd.)

457 U.S. .at 226.




                                p. 4890
Mr. Pat D. Westbrook - Pa'ge 8     (JM-962)




     The IRCA provisions described in the preceding    section
mark a significant change   in federal policy concerning   the
employment of undocumented    aliens in this country.      The
legislature might enact statutes that mirror     congressional
policy or it,might borrow federal classifications to promote
a legitimate state goal, but the legislature has not chosen
to adopt such a policy for the administration of the state's
vocational rehabilitation program. The legislature may not
delegate to the commission    the duty to determine     public
policy. See Clark v. Briscoe Irriaation Co., 200   S.W.2d 674,
684 (Tex. Civ. App. - Austin 1947, writ dism'd): The com-
mission may not impose additional    burdens, conditions,    or
restrictions in excess of or inconsistent     with statutory
provisions.   &89 Bexar Countv Bail Bond Board v. Deckard,
604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ).
Thus, the commission   may not adopt the federal policy     for
the purposes of administering its vocational   rehabilitation
program.   We must now consider whether the IRCA provisions
will preempt the commission8s efforts to provide vocational
rehabilitation services to undocumented aliens.

E.    Undocumented   aliens# eligibility to receive public
      benefits.

     Congress, if it so chooses, can limit an alien's access
to vocational rehabilitation   services.  For example,   under
the Comprehensive   Employment  and Training Act, prior to
amendment in 1981, undocumented aliens were excluded      from
the class of persons eligible to receive job training.      See
20 C.F.R. 5 675.5-l(b) (1980)(current version at 20 C.F.R.
5 675.5-l(b)(1988)).   Under several other programs,   federal
law or regulations    specify which classes of    aliens are
eligible for participation.    The specification of certain
classes of eligible aliens serves to exclude all other
classes, particularly undocumented aliens. See Wheeler      and
Leventhal, Aliens' Riaht T     Public Benefits, 20 Clearing-
house Rev. 913   (1986) a:d zuthorities  cited therein.     The
absence of eligibility restrictions based on alienage means
that even undocumented aliens may qualify for some forms of
public assistance.1     Id.; 59~ Attorney    General Opinion
WW-1274   (1962).




     1. As the result of alienage restrictions,      undocu-
mented aliens are ineligible to receive assistance under the
Aid to Families with Dependent Children program, the Food
Stamp Program,  federally-funded public housing, and legal
                                                                  -.
                                        (Footnote Continued)




                                p. 4891
Mr. Pat D. Westbrook - Page 9    (JM-962)




     The passage of the IRCA did not rescind every benefit
of our laws that might accrue to an undocumented alien in an
employment context.     For example,  it did not repeal the
protection that undocumented    aliens receive  from the Fair
Labor Standards    Act or the National   Labor Relations  Act.
pate1 v. Oualitv Inn South, 846 F.2d 700 (11th Cir. 1988).
The protection   of the Occupational Safety and Health Act
extends to undocumented aliens in the workplace.    &+R Hing,
Handlina   Immiaration   Cases 5 14.7 (1985).     Undocumented
aliens may even be eligible to receive unemployment disabil-
ity benefits.   L2      Our research has revealed nothing    in
the IRCA or its legislative history to suggest that Congress
intended to prohibit the delivery of vocational    rehabilita-
tion services to undocumented aliens. The IRCA does dis-
qualify amnesty recipients for a period of five years      from
participating in many welfare      programs  such as Aid to
Families with Dependent     Children (AFDC), the Food Stamp
Program, and Medicaid.     8 U.S.C. 5 1255a(h).   Furthermore,
the IRCA requires states to verify, through the Immigration
and Naturalization Service, 'the legal status of all aliens
who apply for AFDC, Medicaid,      unemployment  compensation,
food stamps, housing assistance,       and higher    education
programs.   Pub. L. 99-603, Pt. C, 5 121, 100 Stat. 3384-94
(1986).

     The inclusion of unemployment compensation   applicants
in the verification  program is certainly  indicative of an
intention to eliminate the incentive to enter this country
unlawfully for the purpose   of obtaining  employment.   But
just as the courts doubt that undocumented aliens enter this
country for the express purpose of obtaining public benefits


(Footnote Continued)
aid services. Wheeler    and L-eventhal, suvra.   Undocumented
aliens are theoretically eligible to receive Supplemental
Security Income, Social Security (old age, survivors,       and
disability   insurance),   and    unemployment   compensation:
however, other eligibility     criteria may effectively     bar
undocumented   aliens from receiving     such benefits.     Id.
Because there are no alienage restrictions,       undocumented
aliens may   be entitled to receive assistance      under the
Hill-Burton program,   and workers'    compensation  and dis-
ability insurance plans. Id. As we have already seen, the
Vocational Rehabilitation   Act contains no alienage-based
restrictions on eligibility.

     2. Comvare note 1, suvra, regarding general     unemploy-
ment benefits.




                              p. 4892
Mr. Pat D. Westbrook - Page 10     (JM-962)




or the protection   of labor laws, B.@SPlvlert     457 U.S. at
228;
 -   &$g&,  846   F.2d at  704,   we  doubt  that  undocumented
aliens enter this state to avail themselves of the commis-
sion*s vocational   rehabilitation program.     The commission
readily concedes that it has rarely had occasion to consider
the immigration status of any applicant      for its services.
If the IRCA reforms prove effective, it is likely that the
commission will seldom be confronted with this issue in the
future. Thus, we think it is significant that states are
not required to verify the legal status of alien applicants
for vocational    rehabilitation   services.    This omission,
coupled with the absence   of any alienage-based    eligibility
requirement in either the Vocational Rehabilitation Act or
the Human Resources Code, effectively eliminates the commis-
sion's authority   to prescribe   such a qualification.     see
Bexar Countv Bail Bond Board v. Deckard, m.

     We recognize the obvious paradox of providing vocation-
al rehabilitation services to persons who cannot be lawfully
employed in this country.      The commission has attempted    to
conform to federal immigration      policy by withholding     its
services    from   undocumented     aliens,     see   40   T.A.C.
5 163.5(g)(5) (providing that illegal aliens are ineligible
for vocational   rehabilitation    services), but federal law
does not place the onus of ,compliance with immigration
policy on the commission.     Rather, it is the duty of employ-
ers to verify the legal status of persons employed after the
date specified   in the IRCA. Furthermore,        since the IRCA
only punishes    persons    knowingly   hiring,   recruiting,  or
referring undocumented aliens to employment for a fee, the
commission need not be concerned about violating federal law
by providing vocational rehabilitation services to suspected
undocumented aliens.     &g    8 U.S.C.   5 1324a(s)(l).    Also,
since Congress   has specified those programs       in which the
states are given the duty of verifying alien applicants'
status, the omission   of vocational rehabilitation      programs
suggests that Congress was not so alarmed by the prospect of
providing such services to undocumented aliens as to include
such programs in the verification system.. Accordingly,        we
conclude that the Commission      for the Blind may not deny
vocational rehabilitation services to adults who are undocu-
mented aliens.   In light of this answer, we need not address
your third question.




                               p. 4893
Mr. Pat D. Westbrook - Page 11     (JM-962).




                             SUMMARY

           The Texas Commission for the Blind must
        provide   services to visually   handicapped
        children eligible to receive such services
        without regard to their immigration  status.
        The commission    may  not deny   vocational
        rehabilitation services to adults who are
        undocumented aliens.




                                       J
                                       Very truly y


                                             4
                                       JIM     MATTOX
                                       Attorney General of Texas

HARYXELLER
First Assistant Attorney General

Lou KK!REARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXIEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




                               p. 4894
