### 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 toprovide services toblind children who are illegal aliens (RQ-1318)

Dear Mr. Westbrook:

Onbehalf 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 'askthree 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' isthere any reasonwhy the Commission cannot request documentation before providing services to suspected illegal aliens?

For reasons to be discussed below, we-conclude that the Texas Commission forthe 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 denyvocational rehabilitation services to adults who are illegal or undocumented aliens.

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I.

A. Services tovisually handicapped children.

The Texas Commission forthe Blind operates pursuant to chapter 91 of the Human Resources Code. The primary responsibility of the commission istoprovide services to visually handicapped persons other thanwelfare services or services provided to children under programs established by educational institutions orother agencies. Hum. Res. Code 591.021(a). The commission may provide services tovisuallyhandicapped children to supplement the services of other state agencies. ra, 091.028. The commission isauthorized to cooperate with other state agencies and the federal government to achieve these purposes and to implement federal legislation providing forassistance to thevisually handicapped. & S§ 91.021(b), (d);91.028.

The commission provides a number of services to visuallyhandicapped children including blindness prevention services, parental counseling, psychological counseling, educational support, diagnostic and evaluation services, physical training, and orientation andmobili~ty training. The commission also provides funds formedical 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 toblind children who are undocumented aliens byvirtue of theUnited States Supreme Court decision inPlvler v. Doe 457U.S. 202 (1982). In Plvler, the Court held that apro&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 itdid not further a "substantial goal" of the state. The Commission forthe Blind has determined that there is no substantial goal of the state thatwill justify the denial of services to blind undocumented alien children. Therefore, itconcludes 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 isessentially amatter of statutory construction. See Attorney General Opinion H-586 (1975).

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.- B.Children's eligibility for services.

The Supreme Court inPlvler 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 itsauthority topromulgate rules governing the administration of its programs, Hum. Res. Code §91.011(g), has imposed aresidency requirement on recipients of services under thevisually handicapped children's program. 40T.A.C. S169.4. Assuming the commission has authority to adopt such a standard, the residency requirement would not prohibit the commission from providing services to children who areundocumented aliens.

InAttorney General Opinion WW-1274 (1962),this office concluded that the State (now "Texas") Commission for the Blind could provide vocational rehabilitation services to a childwho was analien andwhose parents "havenever taken out naturalization papers." The relevant statute required the applicant for services tobe a resident of the state at the time of filing the application. Although residence isa flexible concept that depends largely upon the circumstances inwhich it isused, see Attorney General Opinion JM-611 (1986),the attorney general concluded that an applicant needed only to establish bodily presence inthe state at the time of application. Thus, Texas lawwould permit an alien to establish residency for thepurpose 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;enmay be aresident 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 aresidency qualification for children's services. Accordingly, your first question is answered inthe 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

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disabled individuals directly or through public or private agencies. Ablind disabled individual is "aperson who is blind or who has avisual condition for which medical prognosis indicates a progressive deterioration that may result in a substantial vocational handicap." Hum. Res. Code 591.051(5). The commission isdirected to cooperate with the federal government to accomplish the purposes of federal laws relating tovocational rehabilitation and is ordered to comply with conditions required by the federal government to secure the fullbenefits of the federal laws. & 591.053(a), (b). Section 9~1.055of theHuman 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 fromthe commission, we must consult the relevant federal law, the Rehabilitation Act of 1973. 29U.S.C. 55 701et sea.

B. The.Rehabilitation Act of 1973.

The Rehabilitation Actwas enacted with the purpose of developing and implementing %omprehensive and coordinated programs of vocational rehabilitation and independent living" forpersons with handicaps. 29U.S.C. 5701. The goal of these programs isto "maximize [the] employability, independence, and integration [of persons with handicaps] into theworkplace and the community." &

Inorder to be eligible to ~participatein vocational rehabilitation programs created under the federal act, states must submit to the federal government a state plan forvocational rehabilitation services that fulfills certain conditions specified inthe act. Among those conditions is that the state plan shall "provide that no residence requirement will be imposedwhich excludes from services under theplan any individual who ispresent inthe state." & $'721(a)(14); se also 34C.F.R. 5 361.31(a)(2) (1987).The dominant criteriaefor determining aperson'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.

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34C.F.R. f 361.31(b) (1987). These standards strongly suggest that it is improper fora state to impose more restrictive conditions oneligibility soas todeny services to any individual with aqualifying disability. Our review of the relevant federal regulations governing vocational rehabilitation programs revealed no addressing the issueyou regulation expressly raise. At a timewhen 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 iseven less reason to conclude that undocumented aliens are ineligible to participate in vocational rehabilitation programs.

The commission; however, does not couch its objection toproviding 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 byproviding themvocational rehabilitation services. The commission does not refer specifically to any. federal lawor regulation that supports itsdecision to deny vocational rehabilitation services toundocumented aliens. Nor doyou 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 ofundocumented aliens, forecloses
anundocumented alien's eligibility to receive vocational rehabilitation services. Wewill 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 ledto the commission's decision todeny vocationai rehabilitation services to undocumented aliens. The commission apparently has inmind the changes wrought in federal lawby the Immigration Reform and Control Act of 1986 (the IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986). The IRCAmakes themost comprehensive change inthe federal immigration laws since the McCarrenWalter Act of 1952. N.Montwieler, The Immigration Reform Law of 1986, at 3 (1987). Itsprimary features include employer sanctions forthehiring ofundocumented aliens, a legalization program forcertain undocumented aliens living inthis country since before January 1, 1982 (amnesty), and

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a separate legalization program for temporary foreign agricultural workers. J& atv. The express purpose of the amendments isto control illegal immigration into theUnited States. See H.R. Rep. No. 99-682, 99th Cong., 2d Sess., pt. 1,at 45,revrinted in 1986U.S. Code Cong.&Admin. News 5649. The feature most relevant to the commission's argument isthe plan to implement employer sanctions.

The availability ofemployment has longbeen 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, 96HaN. 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 ofundocumented 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 itwas not illegal foran employer tohire 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 isnow unlawful for any person to knowingly "hire,
. . .recruit or refer for a fee" any undocumented alien foremployment anywhere intheUnited States. 8U.S.C. §1324a(s)(l). Penalties for violations include civil fines ranging from $250 to $10,000, and criminal penalties ofup to sixmonths imprisonment and/or a $3,000 fine for pattern or practice violations. Id. 51324a(e)(4), (f). Employers must verify the status of every person they intend tohire 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 51324.

D. Plvler and an "articulable federal policy."

InPlvler the state's principle argument was that a person's status as an undocumented alienwas sufficient in itself to authorize the state towithhold fromthese persons benefits itmight offer other residents of the state. 457 U.S. at 224. This argument isakin to the so-called "outlaw theory" under which undocumented aliens, solely because they have broken the immigration laws, aredeemed to forfeit any -.

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benefits thatmight accrue from their unauthorized presence inthis country. See E. Hull,Without Justice forAll, at 86-88 (1985). The Court acknowledged the special deference the courts must accord congressional policy inthe area of immigration, but cautioned that the same was not true for state policies affecting immigration:

The States enjoy nopower with respect to the classification of aliens. This power is 'committed to the political branches of the Federal Government.* Although it is \aroutine and normally legitimate part* of the business of the Federal Government to classifyon thebasis ofalien status, and to 'take into account the character of the relationshipbetween the alien and this country,' only rarely are suchmatters. relevant to legislation by a State. (Citations omitted.)

457U.S. at 225. The Court recalled that in DeCanas v. u, 424 U.S. 351 (1976), it held that the states do possess authority to actwith respect to illegal aliens, "at leastwhere such action mirrors federal objectives and furthers a legitimate state goal." 457U.S. 202, at 225. In De Canas the Court upheld a California statute prohibiting
an employer from knowingly employing analien who is not entitled to lawful residence in this country ifthe hiring adversely affects lawful resident workers. The California lawreflected Congress' intention toprohibit the employment of ail aliens except those with agrant ofpermission to work inthis country. The statutewas thus not preempted by the Immigration andNationality 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 ofundocumented aliens
. . . . The Statemay borrow the federal classification. But to justify itsuse asa criterion for itsowndiscriminatory policy, the State must demonstrate that the classification is reasonably adapted to 'thevurvoses forwhich th state d 'r orzginal, t it.'

cT%b zrnitszd.) (Emphasis in

457U.S. .at226.

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The IRCAprovisions described inthe preceding section mark a significant change in federal policy concerning the employment of undocumented aliens in this country. The legislature might enact statutes thatmirror congressional policy or it,might borrow federal classifications topromote
a legitimate state goal, but the legislature has not chosen to adopt such apolicy forthe 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. -SanAntonio 1980, nowrit). Thus, the commission may not adopt the federal policy for the purposes of administering itsvocational rehabilitation program. Wemust now consider whether the IRCA provisions will preempt the commission8s efforts toprovide vocational rehabilitation services to undocumented aliens.

E. Undocumented aliens# eligibility to receive public benefits.

Congress, if it sochooses, can limit an alien's access tovocational rehabilitation services. For example, under the Comprehensive Employment and Training Act, prior to amendment in 1981, undocumented aliens were excluded from the class ofpersons eligible to receive job training. See 20C.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) -.

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The passage of the IRCA did not rescind every benefit ofour laws that might accrue to anundocumented alien inan employment context. For example, it did not repeal the protection that undocumented aliens receive from the Fair Labor Standards Act or theNational Labor Relations Act. pate1 v. Oualitv Inn South, 846 F.2d 700 (11thCir. 1988). The protection of the Occupational Safety andHealth Act extends toundocumented aliens intheworkplace. &+R Hing, Handlina Immiaration Cases 514.7 (1985). Undocumented aliens may evenbe itybenefits. L2 eligible to receive unemployment disabilOur research has revealed nothing in the IRCA or its legislative history to suggest that Congress intended toprohibit thedelivery ofvocational rehabilitation services to undocumented aliens. The IRCAdoes disqualify amnesty recipients fora period of fiveyears from participating in many welfare programs such as Aid to Families with Dependent Children (AFDC), the Food Stamp Program, andMedicaid. 8U.S.C. 51255a(h). Furthermore, the IRCA requires states toverify, through the Immigration andNaturalization Service, 'the legal status ofall aliens who apply for AFDC, Medicaid, unemployment compensation, food stamps, housing assistance, and higher education programs. Pub. L. 99-603, Pt. C, 5121, 100 Stat. 3384-94 (1986).

The inclusion ofunemployment compensation applicants intheverification program iscertainly indicative of an intention to eliminate the incentive to enter this country unlawfully for thepurpose ofobtaining employment. But just as the courts doubt that undocumented aliens enter this country for the express purpose ofobtaining 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. Aswehave already seen, the Vocational Rehabilitation Act contains no alienage-based restrictions oneligibility.

2. Comvare note 1,suvra, regarding general unemployment benefits.

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or the protection of labor laws, 228; &$g&, 846 F.2d at 704, we - 

### B.@SPlvlert 457U.S. at doubt that undocumented aliens enter this state to avail themselves of the commission*s vocational rehabilitation program. The commission readily concedes that ithas rarely had occasion to consider the immigration status of any applicant for its services. Ifthe 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 toverify the legal status of alien applicants for vocational rehabilitation services. This omission, coupled with the absence ofany alienage-based requirement ineither the eligibility Vocational Rehabilitation Act or the Human Resources Code, effectively eliminates the commission's authority toprescribe such a qualification. see Bexar Countv Bail Bond Boardv. Deckard, m.

We recognize the obvious paradox ofproviding vocational rehabilitation services topersons who cannot be lawfully employed inthis country. The commission has attempted to conform to federal immigration policy by withholding its services from undocumented aliens, see 40 T.A.C. 5163.5(g)(5) (providing that illegal aliens are ineligible forvocational rehabilitation services), but federal law does not place the onus of ,compliance with policy on the commission. immigration Rather, it isthe duty of employers toverify the legal status ofpersons employed after the date specified inthe IRCA. Furthermore, since the IRCA only punishes persons knowingly hiring, recruiting, or referring undocumented aliens to employment for a fee, the commission need notbe concerned about violating federal law byproviding vocational rehabilitation services to suspected undocumented aliens. &g 8U.S.C. 51324a(s)(l). Also, since Congress has specified those programs inwhich the states are given the duty of verifying alien applicants' status, the omission ofvocational rehabilitation programs suggests that Congress was not soalarmed by the prospect of providing such services toundocumented aliens as to include such programs inthe verification system.. Accordingly, we conclude that the Commission forthe Blindmay not deny vocational rehabilitation services toadults who are undocumented aliens. In light of this answer, we need not address your third question.

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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 ofTexas

HARYXELLER FirstAssistant Attorney General

LouKK!REARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAXIEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

Prepared by Steve Aragon Assistant Attorney General

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