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### THE L~TITORNEY GE,I'ERAJ.

OFTEXAS

Honorable Preston Smith Opinion No. M-869 Governor of Texas Capitol Building Austin, Texas 78711 Re:

Dear Governor Smith: Whether certain provisions of Section 51-a, Article III of the Constitution of Texas authorize the Legislature to specify limitations in excess of the Eighty Million Dollar ($80,000,000.00) ceiling when federal matching funds are available for assistance and/or medical care for or on behalf of needy persons? You have requested the opinion of this office as to whether the following provision contained in Section 51-a of Article III of the Constitution of Texas:

“Provided further, that if the limitations and restrictions herein conta’iiied are found to be in conflict with the provisions of approas they now are or as he extent that federal matching money is not available to the state for these purposes, then and in that event the Legislature is specifically authorized and empowered to prescribe such limitations and restrictions and enact such laws as may be necessary in order that such federal matching money will be available for assistance and/or medical care for or on behalf of needy persons.” (Emphasis added.), would authorize the Legislature to specify limitations in excess of the Eighty Million Dollar ($80,000,000.00) ceiling when federal matching funds are available for assistance and/or medical care for or on behalf of needy persons.

In addition to the above quoted provision, Section 51-a -4221-Hon. Preston Smith, page 2 

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of Article III of the Constitution of Texas, which was adopted by the voters on August 5, 1969, also provides that:

“The Legislature shall have the power, by General Law,-to provide, subject to limitations herein contained, and such other limitations, restrictions and reeulations as mav bv the Legislature be deemed expedient, for assistance grants to and/or medical care for

. . .

“(1) Needy aged persons who are citizens of the United States or noncitizens who shall have resided within the boundaries of the United States for at least twenty-five (25) years;

“(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 children and the caretakers of such children; I,

. . . II

. . . provided that the maximumamount paid out of state funds to or on behalf of anv needv person shall not exceed the amount that is matchable out of federal funds; provided that the total amount of such assistance payments only out of state funds on behalf of such individuals shall not exceed the amount of Eighty Million Dollars ($80.000.000) during any fiscal year . . .” (Emphasis added.) It may prove helpful at this point to provide a historical background regarding the adoption of constitutional provisions in the State of Texas relating to financial assistance authorized to be paid by the State of Texas to certain needy individuals. Section 51 of Article III of the Constitution of Texas
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in its original form as placed in the Constitution of 1876 was
a prohibition placed upon the Legislature that it:

II

. . . shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever

. . .ll The above prohibition has been retained in Section 51 of Article III of the Constitution of Texas from the date of the adoption of the Constitution of 1876 to the present time. It has not been repealed. Exceptions to such prohibition have been made from time to time rather than repealing the prohibition. Therefore, in order to provide the payment of assistance to needy individuals, various constitutional amendments permitting such assistance have from time to time been adopted by the people of Texas.

In 1933, Section 51-a of Article III of the Constitution of Texas was adopted which authorized the issuance and sale of bonds of the State of Texas not to exceed the sum of $20,000,000.00, II

. . . the proceeds of the sale of such bonds to be used in financing relief and work relief to needy and distressed people and in relieving the hardships resulting from unemployment

. . .'I S.J.R. No. 30 of the 43rd Legislature, 1933.

In 1935, the Constitution was again amended so as to authorize Old Age Assistance to "actual bona fide citizens of Texas who are over the age of sixty-five (65) years , . .I' H.J.R.
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No. 19 of the 44th Legislature, 1935. Article III, Section 51-b, Constitution of Texas. The maximumgrant out of State funds was $15.00 per month per recipient.

In 1937,the Constitution was amended to provide for assistance “to destitute children under the age of fourteen (14) years . . .‘I H.J.R. No. 26-a of the 44th Legislature, 1937. Article III, Section 51-d of the Constitution of Texas. The maximumgrant out of State funds was not to exceed $8.00 per month for one child, nor more than $12.00 per month for children in one family, with a maximumoverall limit out of State funds not to exceed $1,500,000.00 per year.

In 1945, the above referred to amendments were consolidated into Section 51-a of Article III of the Constitution of Texas, as well as broadening the class of citizens eligible to receive grants of public moneys by the State of Texas. H.J.R. No; 13 of the 49th Legislature, 1945. The foregoing limited payments out of State funds per individual to $20.00 for Old Age Assistance; provided no individual limit for Aid to the Blind; and removed the maximumfor Aid to Dependent Children; and placed a $35,000,000.00 per year limit on State funds for the three programs combined.

In 1951, the Legislature submitted to the voters H.J.R. No. 6 of the 52nd Legislature, but such constitutional provision was defeated. It would have eliminated citizenship and have reworded the residence requirements on all three
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programs. It provided a maximumper individual Old Age Assistance recipeint of $30.00 out of State funds and raised the overall maximumout of State funds from $35,000,000.00 to $42,000,000.00.

In 1954, an amendment was made to Section 51-a of Article III of the Constitution of Texas. S.J.R. No. 7 of the 53rd Legislature. This provision provided a maximumof $20.00 out of State funds for Old Age Assistance per individual and raised the ceiling of total expenditures on the part of the State from $35,000,000.00 to $42,000,000.00.

In 1956, amendments to Article III, Section 51-b-1 were adopted. H.J.R. No. 30 of the 54th Legislature. This provided for Aid to the Permanently and Totally Disabled and placed a limit not to exceed $20.00 per month per individual, and a total overall maximumout of State funds not to exceed $1,500,000.00 per year. In 1958, Section 51-a-1, Article III of the Constitution of Texas was added. H.J.R. No. 36 of the 55th Legislature. This provided for vendor medical care on behalf of Old Age Assistance, Aid to the Blind, Aid to Dependent Children and Aid to the Permanently and Totally Disabled. The only limit as to amounts was that the expenditure of State funds could not exceed payments out of Federal funds. In 1957, an amendment was adopted to Section 51-a of
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In 1962, an amendment was enacted to Section 51-a of Article III of the Constitution of Texas. S.J.R. No. 9 of the 57th Legislature. This constitutional amendment raised the ceiling from $47,000,000.00 to $52,000,000 .OO for Old Age Assistance, Aid to the Blind, and Aid to Dependent Children. This provision retained the maximumof $25.00 per ind,ividual Old Age Assistance recipient. Article III of the Constitution of Texas. H.J.R. No. 2 of the 55th Legislature. This amendment placed a maximumof $25.00 per Old Age Assistance recipient, or $21.00 until additional amounts
were matched by the Federal Government. This provision raised the ceiling from $42,000,000.00 to $47,000,000.00 payable from State funds.

In 1962, an amendment was made to Section 51-b of Article III of the Constitution of Texas. S.J.R. No. 7 of the 57th Legislature. It raised the ceiling in connection with the Aid to the Permanently and Totally Disabled from $1,500,000.00 to $2,500,000.00.

In 1963, an amendment was made combining Sections 51-a and 51-b-1 of Article III of the Constitution of Texas to be known
as Article 51-a. It dealt with Old Age Assistance, Aid to the Blind, Aid to Dependent Children and Aid to the Permanently and Totally Disabled. This provision raised the ceiling from $52,000,000.00 to $60,000,000.00 and changed residence requirements
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on all programs. The dollar maximumon individual Old Age Assistance cases was deleted. S.J.R. 21 of the 58th Legislature.

In 1965, an amendment combined Section 51-a and Subsections 51-a-l and 51-a-2 of Article III of the Constitution of Texas to be known as Section 51-a of Article III of the Constitution of Texas. It provided for assistance grants for Old Age Assistance, Aid to the Blind, Aid to Families with Dependent Children and Aid to the Permanently and Totally Disabled, and medical assistance for all categories, and medical assistance for all non-categories. A $60,000,000.00 maximumon grants only
was retained. H.J.R. No. 81 of the 59th Legislature.

In 1968, S.J.R. No. 41 of the 60th Legislature was submitted tothe voters. This proposed constitutional amendment which would have raised the ceiling on State expenditures for the various programs from $60,000,000.00 to $75,000,000.00 was defeated by the voters.

S.J.R. No. 8 of the 61st Legislature, which was adopted
on August 5, 1969, constitutes the present Section 51-a of Article III of the Constitution of Texas. The ceiling was raised from $60,000,000.00 to $80,000,000.00 on assistance grants which could be made to the four categories of recipients -- the aged (OAA), the blind (AB), the totally and permanently disabled (APTD) and dependent children (AFDC). Out of the additional $20,000,000.00,
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the sum of $15,000,000.00 was appropriated for each fiscal year beginning on September 1, 1969, and ending on August 31, 1971.

See also the case of Jefferson v. Hackney, 304 F.Supp. 1332 (N.D. Texas, 1969) for a further historical background of the constitutional amendments pertaining to public welfare assistance. OnMay 18, 1971, the voters of Texas defeated a proposed constitutional amendment, S.J.R. 5 of the 62nd Legislature, Regular Session, 1971, which would have removed the limitation or ceiling upon State expenditure for assistance grants to the needy aged, needy disabled, and needy blind, but would have retained a limitation or ceiling upon assistance grants for needy children and the caretakers of such children,

OnMay 20, 1971, S.J.R. 57 and S.J.R. 58 were introduced in the Legislature. Each of such proposed amendments to Section 51-a of Article III of the Constitution of Texas would
remove the ceiling or limitation upon assistance grants to the four categories of welfare recipients.

The foregoing historical review of the constitutional amendments, concerning State expenditures for assistance grants to welfare recipients, discloses that for over thirty-five (35) years the Legislature has consistently followed a pattern of submitting constitutional amendments to the voters of the State of
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Texas which would limit the increase in expenditures of State funds for welfare assistance grants to a specified amount or ceiling. The only proposed constitutional amendment submitted to the voters by the Legislature which would have removed the
ceiling or limitation as to assistance grants to some recipients of public welfare was S.J.R. 5 which was defeated by the voters
on May 18, 1971.

It is also enlightening to note at this point that S.J.R. 9, adopted by the voters on November 6, 1962, and which raised the limitation or ceiling upon welfare assistance grants from $47,000,000 to $52,000,000, was initially introduced in a form which would have completely removed the limitation or ceiling
. See the Senate Journal for the 57th Legislature, Regular Session, 1961, pp. 1330-1333. In addition, S.J.R. 21, adopted ised the welfare ,ooo,ooo to by the voters on November 9, 1963, and which ra assistance grant ceiling or limitation from $52 $60,000,000, was also initially introduced in a form which would have completely removed such limitation or ceiling. See the Senate Journal for the 58th Legislature, Regular Session, 1963, PP. 144, 397, 1259, and House Journal for the 58th Legislature, Regular Session, 1963, pp. 1968-1971.

In this same vein, numerous proposed constitutional amendments have been introduced in the Legislature which had
as their purpose the removal of the ceiling or limitation upon expenditure of State funds for welfare assistance grants. See -422g-Hon. Preston Smith, page 10 

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islature, 1947, Regular Session (House Journal p. 206); H.J.R. 37 of the 54th Legislature, 1955, Regular Session (House Journal p. 603); H.J.R. 11 of the 55th Legislature, 1957, Regular Session (House Journal p. 133).

In light of the foregoing historical background, it for example H.J.R. 16 of the 50th Leg

is evident that the Legislature had not departed from some thirty-five (35) years of custom or practice when it submitted S.J.R. 8 of the 61st Legislature, Regular Session, 1969, the present Section 51a of Article III of the Constitution of Texas, to the voters. The present constitutional amendment authorizing assistance grants to welfare recipients once again raised the ceiling but did not remove it.

In determining the meaning of a constitutional provision the court will give weight to a construction given it by the legislative or executive branch of government. American Indemnity Co. v. Austin, 112 Tex. 239, 246 S.W

. 1019 (1922); Hill County v. Sheppard, 142 Tex. 358, 178 S.W '.2d 261 (1944); Walker v. Baker, 145 Tex. 321, 196 S.W.2d 324 (1946); Koy v. Schneider, 110 Tex. 369, 218 S.W. 479 (1920). A constitutional provision is to be construed with a view of understanding the intention of the voters, and their purpose should be ascertained and followed. Cox v. Robinson, 105 Tex. 426 (1912); Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922); Collingsworth County
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### Hon. Preston Smith,page 11 (M-869)

v.Allrcd, 120Tex. 473, 40 S.W.2d 13 (1331);Deason v. Orange CountyWater Control& ImprovementDistrict, 151Tex. 29, 244 S.W.2d 981 (1.952).No part of the constitutionmay be allowed to defeat another part of the constitutionif by any rea~sona~ble constructionthe two can bemade to stand together. Lastro v. State, 3 Crim.Rep. 363 (1878). An interpretationthatwould produce conflictbetweenprovisions of the constitutionwill be avoi.ded

,and the provisionswill be so construed, ifpossible,
so as to reconcileapparent repugnanciesand give effect to every part. Holman v.Broadway Improv. Co., 300 S.W. 15 (Tex.Comm.App.1927); CollingsworthCounty v.Allred, supra; Jones v.Williams, 121Tex. 94, 45 S.W.2d 130 (1931);Texas National GuardArmoryBoard v.McGraw, 132Tex. 613, 126 S.W.2d 627 (1939);Hanson v. Jordan, 145Tex. 320, 198 S.W.2d 262 (1946).

Applying the foregoinggneeralprovisionsof law concerning the constructionand Interpretationof the provisions of our state constitutionto the historicalbackground of Section 51-a of Article III of the Constitutionof Texas can lead to but one conclusion. The Legislature for over thirty-five (35)yearshas treated the limitationor ceiling contained in our Constitution
as to welfare assistancegrants as just that--a limitationor restrictionupon the amount of state fundswhich couldbe appropriated 3n-ls,.cnL.Whenever Itwas sought to increasethis celling or limitation,itwas done by submittinga constitutional
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### Hon. Preston Smith, page 12 (M-869) .



### assistance grants as just that--a limitationor restriction upon the amount of state fundswhich couldbe appropriatedand spent. Whenever it was sought to Increase this celling or limitation,itwas done by submittinga constitutionalamendment for actionby the voters. (Seethe recommendationof the Report of the Senate InterimCommittee onWelfare 'Reform--Breaking the Poverty Cycle inTexas-p. 52). All attemptsby the Legislature to remove such cellingor limitationhavemet with
no success In the Legislaturewith the exception of S.J.R. 5 of the 62nd Legislature,Regular Session, 1971,which was submittedto the voters onMay 18, 1971, and which was defeated. Certainly,nomore strikingexample couldbe given to disclose the intentionof the votersas well as the Legislature. Once thewill of the voterhas spoken, It Is not for the courts or this office to supplantor thwart this decision of the electorate but to follow theirmandate. See authoritiespreviously cited. Also, if a change Is to be effected Into the Constitution,only the people canmake it--thecourts cannot and will not. Carpenter
v. Sheppard, 135Tex. 413, 145 S.W.2d 562 (1940).

Also, to construeone portion of Section 51-a of Article III of the Constitutionof Texas in such amanner as to negate anotherportion of the Constitutionis completelyrepugnant to the rules of constructionpreviously cited. The initialprovisions of Section 51-a of Article III of the Constitutionclearlyplaces a llmltatlonor ceiling of $80,000,000on the expenditureof state funds for welfare assistancegrants.To construe the remainingportions of Section 51-a of Article III so as to completelyremove such limitation would defeat the clear intent of both the voter and Legislature. -b232-. .



### Hon. PrestonSmith,page 13 (M-869)

Consequently,we are of the opinion that none of the provisions of Section 51-a of Article III of the Constitution of Texas have the effect of removing the $8O,OOO,OOO limltatlonupon the expenditureof state funds for assistancegrants to recipientsof publicwelfare in the absence of any showing that such ceiling or limitation is in conflictwith the provisionsof appropriate federal statutes.

The authoritygranted to the Legislature in that portion of Section 51-a of Article III of the Constitutionof Texas, towhich you have referred inyour opinionrequest, is a conditionalauthority. The Legislature is authorized to act only if:

"(1) the limitationsand restrictions herein contal;ed/Section 51-a of Article IIITare found to be in coiiflict with the provisions ?if appropriate federal statutes . . .,and, to the extent that "(2)
. . . federalmatchingmoney is not available to the state for thesepurposes. . .' 1

r The provisionsof Section 51-a, Article III in questionwas initiallyproposedby H.J.R. 81 in 1965 and was approvedby the voters onNovember 2, 1965,and has remained a portion of Section 51-a ofArticle III since suchdate being, once again incorporated into the amendmentmade to Section 51-a of Article III in 1969. A study of theMedical AssistanceAct of 1967,Article 6953-1, V.C.S., enacted to implementthe provisionsand requirementsof Title XIX of the Social SecurityAct (SocialSecurityAmendments of 1965 - PublicLaw 89-97) and theprogramswhich will ultimately have to be implementedby the states to complywith the provisions of Title XIX of the Social SecurityAct, lead to the conclusion that the Legislatureundoubtedly inserted the provision in question in Section 51-a of Article III to gain authorizationto ultimately Implementtheseprograms at a futuredate or as r law. See in this connectionAtty. Gen. Op. M-20 t~~~~e”&“~-~f”tf~~7). -'4233-.

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### Hon. Prest3

n Smith, page 14 (M-869)

This then raises the questionofwhether the present limitationsor ceilingsupon state expenditureof funds for welfare assistancegrants are In conflictwith existing federal statutes.In the case of King v. Smith, 392U.S. 309, 88 S.Ct. 2128, 2'3

L.Ed.2d 1118 (1968)the courthad before It certain questionspertainingto the operationof theAFDC programs (aid to needy children) In Alabama. The Court In Its opinion made the following observation:

II

. . .There is no question that Stateshave considerablelatitude In allocating theirAFDC resources, since each State Is free to set its own standardof need and to determine the level ofbenefitsby the amount of funds it devotes to the program. . . .- (Emphasisadded.) In addition,at page 319, footnote 15provides that:

"Therather complicatedformula for federal funding Is contained in 42U.S.C. $603. The level ofbenefits Is within the State'sdiscretion, but theFederal Government's contributionis a varyingpercentageof the totalAFDC expenditures within each State. . . .' (Emphasisadded.) In the case of Rosado v.Wyman, 397U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970)the court stated In its opinion that: 'Webeginwith a brief review of the general structureof the FederalAid to Families With Dependent Children (AFDC)program, one of the four 'categoricalassistance'programs establishedby the Social SecurityAct of lYj5
. -4234-.

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### Hon. Preston Smith, page lj (M-869)

'lnegeneral topographyof the AFDC program wasmapped in part by this Court in King v. Smith, 392U.S. 309 (19681,and several lower court opinions, in addition to the opinionbelow, have surveyedthe pertinent statutoryand regulatory provisions. While participating statesmust complywith the termsof the federal legislation, seeKing v. Smith, supra, the program isbasically voluntaryand stateshave traditionallybeen at liberty to pay as little or as much as they choose,

. . . (Emphasisadded.) In the case of Dandridge v.Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) the court stated that:

"InKing v. Smith, supra,we stressedthe states' 'undisputedpower'under theseprovisions of the Social SecurityAct, 'toset the level of benefits and the standard of need.' Id., at 334. We described theAFDC enterpriseas 'ascheme of cooperative federalism 'Id.,at 316, and noted carefully that 'rt7here Is no question that stateshave consiTeFablelatitude in allocating their AFDC resources, since each state is free to set Its own standardof need and to determine the level of benefitsby the amount of funds It devotes to the program. 'Id.,at 318-319.' "Congresswas Itself cognizant of the limitationson stateresources from the very outset of the federalwelfare program. The first section of theAct, 42U.S.C. $601 (1964 ed., Supp. IV), provides that the Act is 'Forthe purpose of encouraging the care of dependent children In their own homes or in the homes of relativesby enabling each state to furnish financialassistanceand rehabilitation and other services,as far as practicable under the conditions in such state, to needy dependent children.
. . .I" [Em Court.) phasis by the

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### Hon. Preston Smith ,page 16 (M-869)

These recent decisionsby the United States Supreme Court completelynegate the possibilitythat there presently exists any conflictbetween themonetary limitationor celling that Section 51-a ofArticle III of the ConstitutionofTexas places upon the expenditureof state funds for assistance grants to welfarerecipientsand federal legislation In this
area. Consequently,as there exists no conflictbetween themonetary limitationsof Section 51-a of Article III of the Constitutionof Texas and the Social SecurityAct of 1935,
as amended, the conditionalauthorizationgiven to the Leglslature in that portion of Section 51-a of Article III which is the subjectof this opinionremains Inoperative,and does not authorize the Legislatureto appropriate funds in excess of $80,000,000for assistancegrants to the four categories of welfare assistance.

It shouldbe notedat this point that expenditures of state funds formedical assistance to welfare recipients has no cellingor limitationplaced upon it by theprovisions of Section 51-a of Article III of the Constitutionof Texas. SUMMARY None of the provisionsof Section 51-a of Article III of the Constitutionof Texas have the effect of removing the $80,000,000limitationor
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### Hon. PrestonSmith, page 17 (M-869)
cellingupon the expenditureof State funds for assistancegrants to recipients of public welfare in the absence of any showing that such ceilingor limitation is in conflictwith the provisionsof appropriate federal statutes. The authoritygranted to the Legislature In the penultimateparagraph of Section 51-a of Article III of the Constitutionof Texas is a conditionalauthoritywhichwould only become operative in the event that the limitationsor restrictions containedin Section 51-a of Article III are found to be In conflictwith federal statutes. The monetarg restrictionsor limitations upon the expenditureof state funds for assistance grants torecipients of welfare assistance found in Section 51-a of Article III of the Constitution of Texas are not In conflictwith the corresponding orovislonsof the Social SecurltsAct of 1915.as &ef;dezOting v. Smith, 392U.S."309, 88 S:ct:

Ed 2d 1118 (1968);Rosado v.Wyman, 97 6.s. 397;90 s.ct. 1970); 1207, 25 L Ed 2 442 Dandridgev.Williams, 39:U1.S:' 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (199).

Attor&y Generalof Texas Preparedby PatBailey AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman James H. Broadhurst Bob Flowers Dyer Moore,Jr. J. C. Davis
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### Hon. PrestonSmith, page 18

MEADE F. GRIFFIN Staff LegalAssistant ALFREDWALKER Exeoltive Assistant NOLA WHITE First Assistant (M-869)

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