TEE ATTORNEY GENERAL 

OF TEXAS 

October 4, 1988 

Mr. Pat D. Westbrook 

Executive Director 

Texas Commission for the Blind 

P. 0. Box 12866 

Austin, Texas 78711 

Opinion No. JM-962 

Re: Whether the Texas Commission for the Blind is 

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 services to blind children residing in Texas 

regardless of their status as legal or 

illegal aliens? 

(2) Should the Commission provide vocational 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 rehabilitation 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 visually 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 visually 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 undocumented 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 Fourteenth 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. Therefore, it concludes that such children may receive services 

from the commission. 

We agree that the commission should provide its services 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, presumably 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 recipients 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 requirement 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 ascertain 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 requirement 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 employability. 

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 

addressing the issue you 

regulation expressly 

raise. At a time when Texas law 

imposed a residency 

commission services, 

requirement upon the recipients of 

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 employment by providing them vocational rehabilitation services. 

The commission does not refer specifically to any. federal 

law or regulation that supports its decision to deny vocational 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 

of the commission's argument. 

aspect 

C. Federal immigration policy concerning the employment of 

undocumented aliens. 

Your letter requesting this opinion contains no reference to the federal laws that led to the commission's decision to deny vocationai rehabilitation services to undocumented 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 McCarrenWalter 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 argument 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, Develovments 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 intends 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 identity- & 5 1324a(h)(l). The IRCA eliminates the "Texas 

proviso 'I by 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 routine and normally legitimate part* of the 

business of the Federal Government to classify on the basis of alien status, and to 'take 

into account the character of the relationship 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 furthers 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 classification. 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 

orzginal, 

t it.' 

cT%b zrnitszd.) 

(Emphasis in 

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 commission 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 Clearinghouse 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, undocumented 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 

ity benefits. L2 

eligible to receive unemployment disabilOur research has revealed nothing in 

the IRCA or its legislative history to suggest that Congress 

intended to prohibit the delivery of vocational rehabilitation services to undocumented aliens. The IRCA does disqualify 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 disability 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 unemployment benefits. 

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

or the protection of labor laws, 

228; &$g&, 846 F.2d at 704, we - 

B.@SPlvlert 457 U.S. at 

doubt that undocumented 

aliens enter this state to avail themselves of the commission*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 

requirement in either the 

eligibility 

Vocational Rehabilitation Act or 

the Human Resources Code, effectively eliminates the commission's authority to prescribe such a qualification. see 

Bexar Countv Bail Bond Board v. Deckard, m. 

We recognize the obvious paradox of providing vocational 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 

policy on the commission. 

immigration 

Rather, it is the duty of employers 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 undocumented 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. 

Very truly y J 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