Hon. RaymondW. Vowel1

Commissioner OpinionNo. M- 1035
State Department of PublicWelfare Re: Effect of Graham v. John H. Reagan Building Richardson (U.S. Sup. Austin, Texas 1971)upon Art. III, Sec. 15a, Texas Constitution,and Art. 695c, Sets. 12 and 20, V.C.S., relating to citizenshiprequirement for old age assistance Dear Mr. Vowell: and aid to the blind.

In your letter requesting an opinion from this office you ask the following question:

'Does the United States Supreme Court decision in Graham v. Richardeon, et al. and Sailer, et al. v. Legar, et al., have the effect of renderingunconstitutional the portion6 of the Texas Constitution (Art. III, Sec. 51-a) and the Texas statutes (Art. 695c, Sets. 12 and 20,V.T.C.S.) which relate to the citizenshiprequirement for old age assistance and aid to the blind."
On June 14. 1971. theUnited States Sunreme Court decided the cases of Graham v.Richardson, et al: and Sailer, et al. v. Legar, et al., 91 S.Ct. 1848 403 U S 365 (Isn,- affl i Graham v.Richardson, et al.: 1970yaZ Sailer, et al. v. 313 F:S;pp. 34 (D.Arlz. L (E.D.Penn. 19'10).Both egar, e cases were welfa

Yal..,321 F;Supp. 250 re cases. The Gr&am case~concerned the Arizona statute orovidinabenefits to permanently and totally disabled (A-PTD).The Arizona statute, Section 46-233A01,ArizonaRevised Statutes,reads:

'Noperson shall be entitled to general assistancewho does not meet and maintain the following requirements:

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"1e Is a citizen of the United States, or has resided in the United States a total of fifteen years. * + *"
A like elfgfbflftyprovfsfon conditionedupon citizenship or durationalresidence appears in the Arizona statutesproviding old age assfstance and assistance to the needy blind. The Appellee, Carmen Richardson,was a lawfullyadmitted alien. She met all other qualfficatfonsfor (APTD)benefits except the 15 year residency specified for aliens by the Arizona statute. She applied for (APTD)benefitsbut was denfed relief solelybecause of the residency provision.

The Sailer case concerned the PennsylvaniaWelfare Code, 62 P.S. Section2). It provides that those eligible for assistance shall be (1) needy persons who qualify under the federally-supportedcategoricalassistanceprogramsand (2) those other needy persons who are citizens of the United States. The Appellee, Elsie Legar, was a lawfully admitted resident alien, Mrs. Sailer was fnelfgible for assistanceunder the federal programs and was denied State welfare assistancebecause of her alienage. The Court in its opinionbv Mr. JusticeBlackmun held thal State statutes like those of Arizona and Pennsylvaniawhich deny welfare benefits to lawfully admitted resident aliens or to lawfullyadmitted aliens who have not resided in the United States for a specffiednumber of years, violate the Equal ProtectionClause of the FourteenthAmendment to the Unfted States Constitutionand encroach upon the exclusive federal power over the entrance and residence of aliens. The Court also held that there was no authorization for Arizona's 15 year duratfonal residency requirement In the Socfal SecurityAct.

On December 13# 1971, a three-judgedistrict court entered a judgment In theUnited States District Court9 Southern District of Texas, Houston Dfvfsfon in Perez9 et al, v. Hackney, et al. consolidatedwith Salazar V- Hackney, !e ea. andazar caseswere ackionswhich pertained t a. 1 * The Perez 1swhich oertained sorely to thed sorely to to tFz -permanently and totally disabled (AFTD), Section 16-B, f Article Vernon's Civil Statutes, families Article 695c, Vernon's Statutes, and aid to families with dependent children (AFDC),Section 17, Article 695c,Vernon's dependent children (AFDC),Section Article Vernon's

* Not yet reported. -5048--

Hon. RaymondW. Vowell, page 3 (M-1035)

Civil Statutesprograms.

The judgment entered in the Perez and Salazar cases reads, in part, as follows:

,I

. . . "1

. Portions of Article III, Section 51-a of the Texas Constitutionand Texas Revised Civil Statutes Annotated,Article 695c, §§16-b& 17, and the regulations Issuedpursuant to them by defendants, deny aid to applicants for Aid to the Permanently and Totally Disabled and Aid to Families with Dependent Childrenwho are not citizens of the United States. As such those portions violateArticle I, $8 andVI of the Constitution of the United States by encroaching upon exclusive federalpower and they also violate the equal protection clause of the FourteenthAmendment to the United States Constitution." There Is no specificprovision In the Texas Constitution relating to the citizenshiprequirement for aid to the permanently and totally disabled and aid to familieswith dependent children, but Sections 16-B and 17 of Article 695c,Vernon's Civil Statutes, contain the statutoryrequirements for citizenship for these two programs as follows:

'Sec. 16-B. (1) Assistance to the permanently and totally disabled shallbe given under the provisions of this Act to any needy person: "1

. Who is permanently and totally disabled as hereinafterdefined; and

. . . "3. Who is a citizen of the United States, and

. . . 'Sec. 17. Aid to F~amilies with Dependent Children shallbe given under the provisions of this Act with respect to any dependent child. 'DependentChild' is any needy child:

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Hon. RaymondW. Vowell, page 4 (M-1035)

"(1) Who is a citizen of the United States, and

. . .*I Article III, Section 51-a of the Texas Constitution provides, in part, as follows:

"Section51-a. The Legislature shallhave the power, by General Laws, to provide, subject to limitationsherein contained,and such other limitations,restrictions and regulations as may by the Legislaturebe deemed expedient, for assistancegrants to
. e . "(1) Needy aged persons who are citizens of the United States or non-citizenswho shall have resided withi th boundaries of the United States for at least twkty-five (25) years; '(Emphasis

added.) "(2) Needy individualswho are totally and permanentlydisabled by reason of a mental or physical handicap or a combinationof physical and mental handicaps; “(3) Needy blind persons; "(4) Needy dependent childzen and the caretakers of such children.

. . The PublicWelfare Act of 1941, as amended (Article695c, Vernon's Texas Civil Statutes) Sections 12 and 20 provide, in part, as follows:

"Sec. 12. Assistance shallbe givenunder the provisions of this Act to any needy blind person who: 11 e e . “(6) Who is a citizen of the United States."
"Sec. 20. Old Age Assistance shallbe given under the provisions of this Act to any needy person:

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"(2) Who is a citizen of the United States or who is a noncitizenand has resided within the boundaries of the United States for at least twentyfive (25)years; and

On the basis of the United States Supreme Court decision in Graham v. Richardson, et al. and Sailer, et al. v. Legar, et al., ez, et al. v. Hackney, et al. and t is our opinion that th t portion Texas Constitutionand gections 12 and 20 of the PublicWelfare Act, 1941, as amended, Article 695c, Vernon's Civil Statutes,which make citizenshipa qualification for the old age assistance and aid to the blind programs, are in violation of the Equal Protection Clause of the United States Constitution and encroachupon the exclusive federalpower over the entrance and residence of aliens. There 1s no authorization in the Social Security Act for the durational residency requirement contained in Article III, Section 51-a of the Texas Constitutionand Section 20(2),Vernon's Civil Statutes.
SUMMARY
On the basis of the United States Supreme Court decision in Graham v. Richardson, et al., and Sailer, et al. v. Legar, et 1 a ., s ct 1848, 403 U.S. 3b5 (19'/1)that portion oh A&.icle III, Section 51-a of the Texas Constitutionand Sections 12 and 20 of the PublicWelfare Act, 1941, as amended,Article 695c,Vernon's Civil Statutes, which make citizenshipa qualification for the old age assistance and aid to the blind programs, are in violation of the Equal ProtectionClause of the Fourteenth Amendment of the United States Constitution and encroachupon the exclusive federalpower over the entrance and residence of aliens, There is no authorization in the Social SecurityAct for the durational residency requirement contained In Article III, Section 51-a of the Texas Constitution and Section 20(2),Article 695c,Vernon's Civil Statutes. truly yfurs,

C. MARTIN ey General of Texas. .

Hon. RaymondW. Vowell, page 6 (M-1035)

Preparedby Ivan R. Williams, Jr. AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Sig Aronson John Reeves JerryRoberts R. D. Green
SAM MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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