March 18, 1975

The Honorable James E. Peavy M. D. Commissioner ofHealth Opinion No. H- 556 Texas State Department ofHealth Re: Are benefits under the 1100W.*49th St. Kidney Health Care Act, art. i Austin, Texas 78756 4477-20, V. T. C.S. limited tocitizens ofthe 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 ofHealth tomake benefits available under theAct onthe basis of United States citizenship, or Texas residence.

Itis well-established that a state may not invidiously discriminate against resident aliens, and that the denial ofhealth or welfare benefits onthe basis ofalienage 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, 118U.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 ofthe State of Texas” in sections 2, 3(3), and 3(13) ofthe Act, we do not believe that itis necessary tointerpret 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 ofthe Act, in section 3, authorizes the State Board ofHealth, through the Division ofKidney Health Care, to:

p. 2,501The Honorable Ja,mes E. Peavy page 2 (H- 556)
(2) Determine the terms, conditions and standards for the eligibility ofpersons suffering from chronic kidney disease for aid, care or treatment provided under the provisions ofthis Act. In our opinion, this provision authorizes the board to establish reasonable and constitutional standards for eligibility without regard to citizenship. Our answer tothe first question is that theAct does not require, and the constitution does not permit, eligibility for benefits to be conditioned onUnited 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 theAct which expressly requires residency as a condition ofeligibility 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 aprovision of the Appropriations Act for fiscal 1974-1975. Acts 1973, 63rd Leg., ch. 659, section 2(e), p. 1881. The special provision states inpertinent part: None ofthe moneys appropriated to the Department

ofHealth
. . . may be expended for the
. . . medical treatment except in emergencies ofany . . . patient who is not a citizen or resident ofthis state. . . . InAttorney General Opinion H-156(1973), we said that this provision would be violative ofthe Equal Protection Clause ofthe Fourteenth Amendment if “citizen” were intended to exclude a resident alien, but that distinctions designed topreserve state supported faciiities for bona fide residents ofthe state are not necessarily invidious.

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

p. 2502The 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 onthe basis ofalienage. 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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