## THEA~TORNEYGENERAL OF %-EXAS

Honorable John H. Winters, ExecutiveDirector StateDepartment of PublicWelfare Austin, Texas
Dear Sir: OpinionNO.

## o-7496 Re: Is a woman who was a native born American citizenbut who was expatriatedbecause of her **mar** riage to an alien and who comes within the provisions of the statutes of June 25, 

## 1936, and the amendatory act of July 2, 1940, eligible to apply for and receive assistancebefore she has taken the Oath ofAllegiance?
In your letter of November 8, 1946, you stated that in

.the administration of old age assistanceand ai.dto the needy blind your department has had the occasion to consider the citizenship status of manywomen who were born Ian the Uni.ted States but whose citizenshiphad been affectedby reason of theirmarriage to aliens during the period of timewhen the Federal Law provided that the marriage of a native born woman to an alien resulted in her expatriation. You further state thatmany of these people are applying to you for aid who come within the purview of the Repatriation Act of June 25, 

## 1936, as amended on July 2, 1940, except for the fact that they have not taken the oath of allegianceas Is provided therein. With these facts In mind, you have posed the captionedquestion of whether thesewomen are eligi,ble to apply and receive assistance before they have taken the oath of allegiance.

Before a woman is eligible to receive old age assistance or assistance to the needy blLnd, she must be a citizen of the United States. Article

## 695c Section 12 and Section 20, V.A.C.S. Your question therefore Iswhether a woman comi“$5 within the provlslons of the above said Act of June 25, 193 as amended July 2, 1940, isa citizen of the United Stateswithin our Public Welfare Act before she takes the oath of allegiance.

This Act reads as follows: “Thathereafter a woman, being a nativeborn citizen,who has or is believed to have.- ,

Honorable John H. Winters, page 2 o-7496

lost herUnited States Citizenship solelyby reason of her marriage prior to September 22, 1922, to an alien, and whose marital statuswith such alien has or shallhave terminated, orwho has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said ali,en had taken place on or after September 22, 1922: Provided, however, that no suchwoman shallhave or claim any rights as a citizen of the United Statesuntil she shall have duly taken the oath of allegiance as prescribed in section 4 of the Act approved June 29, 1906." Although the casesupon the point involvedherein are few, they are unfortunately~in conflict. The courts in the cases of In re Waston'sRepatriation, 42 F. Supp. 163, and PetitiondDavls, 53 F. SUQQ. 426 held that thewoman regained citizenship on June 25, 1936, the effectivedate of the act, and that itwas unnecessary for her to take the oath of allegiance except as tangible evidence of the existence of her rights of citizenship. These cases are authority for the proposition that everywoman comingwithin the purview of the Act of June 25, 1936, on that day became a citizen of the United States, yet these courts said that such a woman "Isnot entitled to any rights or privilegesas a citizen of the United Statesuntil she shall have taken an oath of allegiance to the United States."

The foreaolna cases have been criticized and deemed, weak by subsequentd&lsions. In re Portner, 56 F. Supp. 103; Petition of Norbeck, 65 F, Supp. 748. These cases have pointed out that the traditional function of an oath of allegiance in restoration of citizenship or the assumption of citizenship, is to mark the timewhen the assumption of duties as well as the rights and privileges of citizenship, takes place.

This department la of the opinion that these subsequent decisions coupledwith the considerationsset forth in the case of Shellgv. United States, 120 F. 2d 734, present the proper construction that shouldbe placed on this Act. We furtherbelieve that even under the formerdecisions, a woman who has not taken the oath of allegiance couldnot receive assistanceunder ourWelfare Act, for receiving such assistance is a right or privilege enjoyed only by a United States citizen; as heretofore shown, these formerdecisions recognize that although a woman automaticallybecomes a citizen on June 25, 1936, she isnot entitled to the rights or privileges of a citizenuntil ahe has taken the oath of allegiance.Honorable John H. Winters, page 3 o-7496

In view of the foregoing,we answer your question In the negative.

We call your attention to the fact that thisAct of June 25, 1936, as amendedJuly 2, 1940,was repealedby the NationalityAct of 1940, however the repealdid not terminate the nationality acquiredunder,thisAct of June 25, 1936. Under the NationalityAct of 1940, 8 U.S.C.A. Section 717 (b) (l), it is ratherwell established~fromthe plain language of the act and the interpretationplaced thereon that a woman comingwithin itsQrovislonsbecomes a citizen from and after taking the oath of allegiance.

We trust that the foregoing satisfactorilyanswers your question.
Yours very truly
ATTORNEYGENERAL OF TEXAS By s/Robert 0. Koch Roberts0. Koch Assistant
ROK:ms:wc

APPROVZIDEC 7, 1946 s/Grover Sellers ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BWB Chairman