March 18, 1975 

The Honorable James E. Peavy M. D. 

Commissioner of Health 

Opinion No. H- 556 

Texas State Department of Health Re: Are benefits under the 

1100 W.*49th St. Kidney Health Care Act, art. 

i Austin, Texas 78756 4477-20, V. T. C. S. limited 

to citizens of the 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 of Health 

to make benefits available under the Act on the basis of United States 

citizenship, or Texas residence. 

It is well-established that a state may not invidiously discriminate 

against resident aliens, and that the denial of health or welfare benefits 

on the basis of alienage 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, 118 U.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 of the 

State of Texas” in sections 2, 3(3), and 3(13) of the Act, we do not 

believe that it is necessary to interpret 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 of the Act, in 

section 3, authorizes the State Board of Health, through the Division 

of Kidney Health Care, to: 

p. 2,501 
The Honorable Ja,mes E. Peavy page 2 (H- 556) 

(2) Determine the terms, conditions and 

standards for the eligibility of persons suffering 

from chronic kidney disease for aid, care or 

treatment provided under the provisions of this 

Act. 

In our opinion, this provision authorizes the board to establish 

reasonable and constitutional standards for eligibility without regard 

to citizenship. Our answer to the first question is that the Act does 

not require, and the constitution does not permit, eligibility for benefits 

to be conditioned on United 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 the Act which expressly requires residency as a condition of eligibility 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 a provision of 

the Appropriations Act for fiscal 1974-1975. Acts 1973, 63rd Leg., 

ch. 659, section 2(e), p. 1881. The special provision states in pertinent 

part: 

None of the moneys appropriated to the Department 

of Health . . . may be expended for the . . . medical 

treatment except in emergencies of any . . . patient 

who is not a citizen or resident of this state. . . . 

In Attorney General Opinion H-156(1973), we said that this provision would be violative of the Equal Protection Clause of the Fourteenth 

Amendment if “citizen” were intended to exclude a resident alien, but 

that distinctions designed to preserve state supported faciiities for bona 

fide residents of the state are not necessarily invidious. 

Since there are no funds available to provide benefits to persons 

other than residents, the Appropriations Act effectively imposes a 

residency requirement for eligibility for benefits under the Kidney Health 

Care Act. 

p. 2502 
The 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 

on the basis of alienage. 

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 

p. 2503