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Honorable William S. Fly, Chairman Opinion No, WW-41

Finance Committee Senate Re: Conformity ofSenate Bill Austin, Texas 61 to the requirements of Section 51-b ofArticle III of the Texas Constitution and to 551351-55, Title 42, Dear Senator Fly: U.S.C.A.

You have requested anopinion of this office on the following questIons.

1. Does Senate Bill. 61, as introduced at the

current legislative session, comply with the provisions ofSection 51-b ofArticle IIIofthe Texas Constitution?

2. Does Senate B,ili 61 comply with the requirements ofSections 1351-55 of Title 42 of the United States Code Annotated?

3. IfSenate Bill 61 does not comply with the requirements of 42 U.S.C.A. 881351-55, can compliance be obtained consistently with the provisions ofSection 51-b ofArticle IIIofthe Texas Constitution?

Section 51-b ofArticle III, H.J.R. 30, Acts 54th Leg., R.S., 1955, p. 1824, was adopted at the general election in 1956 and is set out infull inthefootnote below. 1 Speaking generally, this Section

1 UThe Legislature shall have the power to provide by general laws, under such limitations and restrictions
as may be deemed by the Legislature expedient, for assistance to needy individuals, who are citizens ofthe United States, who shall have passed their eighteenth (18th) birthday buthave not passed their sixty-fifty (65th) birthday, who are totally and permanently disabled by reason of a mental or physical handicap or a combination of physical and mental handicaps and notfeasible for vocational rehabiiitation, and who are residents of the State ofTexas, who have resided inthis State for at least one (1) year continuously lmmediately preceding the application and who have resided in the State for at least anadditional five (5) years during the nine (9) years immediately preceding the application for assbstance; and providing further t&it~noindividual shall receive assistance under this program~for the (Cont’d next page)Hon. William S. Fly, page 2 (WW-41)

authorizes the Legislature toenact laws providing for assistance to needy individuals who are totally andpermanently disabled and to accept financial aid from the Federal Government under the Social Security Act. Senate Bill 61 is obviously designed to put into effect the necessary enabling legislation authorized by Section 51-b.

We have concluded that the bill inmost of its parts complies with the requirements ofSection 51-b and that those portions of the bill which donot comply can be changed so as to effect a compliance with both Section 51-b and with Sections 1351-55, Title 42, U.S.C.A. We will take upthe questions of compliance presented by various parts of the bill seriatim **in** the order oftheir importance.

The most **serious** question raised byyour request 1swhether Subsection 4 ofSection 16-B of the bill is within the residence limitations imposed by Section 51-b of the Constitution. Subsection 4 sets out the residence qualifications requisite to coming within the provisions of theAct and reads as follows:

“Who has resided inthe State ofTexas for five (5)years or more within the last nine (9) years preceding the date ofhis application for assistance and has resided inthe State ofTexas continuously for one (1) year immediately preceding the application;

. . .*
The residence requirements ofthe constitutional provision limit’ authorized assistance toneedy individuals ‘who have resided

permanently and totally disabled during any period when he is receiving old age assistance, aid to the needy blind, or aid to dependent children, nor while he is residing permanently inany completely State supported institution; and provided further that not more than Twenty Dollars ($20) amonth out ofState funds may be paid to any individual recipient ;and provided further that the amount paid out ofState funds toany individual may never exceed the amount paid to that individual out of Federal funds; and provided further that the amount paid out of State funds for assistance payments shall not exceed One Million, Five Hundred Thousand Dollars ($1,500,000) per year.
“The Legislature shall have the authority to accept from the Government ofthe United States such financial aid for individuals who are permanently and totally disabled as that Government may offer not inconsistent with the restrictions herein provided.”Hon. Wiiiiam S. Fly, page 3 (WW-41)

Inthis State for at least one (,l)year continuously immediately preceding the application and who have resided inthis State for at least an additional five (5) years during the **nine** (9)years immediately preceding the application for assistance;

. . .”

Section 1352(b) (l), 42 US.C.A., prohibits the use offederal funds ifthe State residence requirements exclude “any resident of the State who has resided therein five years during thenine years immediately preceding the application fo.raid tothe permanently and totally disabled and has resided therein continuously for one year immediately preceding the application. ”

IfSection 51-b requires a total residence period of six years rather than five years during the nine years immediately preceding application for assistance, the total residence requirement contained inthe bill as presently drawn is unconstitutional; andthe Legislature lacks the power toenact a law which would enable the State ofTexas to comply with the provisions oftthe federal act.

The word “additional” makes the constitutional provision ambiguous. Both the requirement for continuous residence and the requirement for total residence are measured from the date of application for assistance and thus necessarily overlap. The Constitution places a residential requirement oftheyear lmmediateiy preceding the application plus an additional five years during the nine-year period immediately preceding the application. Ifthe applicant cannot count the first year ofthe nine-year period, he is then limited to compiling his five-year total from aperiod ofeight years, and the Constitution expressly allows him toaccumulate thefive years duringthe nine-year period.

Although th.etotal residence requirement need not be continuous, continuity is not prohibited. Iffor five years immediately preceding application the applicant has continuously resided inTexas, obviously the applicant has met the requirement for continuous residence for one year immediately preceding the application. The people of Texas inadopting this amendment unquestionably intended that the requirement of total residence be met within anine- ear period immediately preceding application for *he assistance. two residence requirements are treated as cumulative ofeach other, the five-year total requirement must be met within an eight rather than anine-year period, as expressly permitted by the Constitution. The constitutional provision is undoubtedly ambiguous.

Itis evident that the two residence requirements which must be met before aid can be granted are entirely different. First, there is the requirement pertaining to continuous residence and second, theadditional requirement pertaining tototal residence. It is obviously desirable to have arequirement ofa stated period of continuous residence within the State before an individual may be..

Hon. William S. Fly, page 4 (WW-41)

granted aid from State funds. Itis also desirable tohave an additional requirement ofa stated period oftotal residence within the State before such aid can be granted andat the same time reasonable that such period oftotal residence need not be continuous. Itis **not** logical to make these two requirement,s cumulative ofeach other. Each is based on entirely different considerations. The motivating factors which lead toa choice of arequisite period of continuous residence are different from the motivating factors determinative ofa requisite period oftotal residence, An addition of the two periods to obtain anew total residence requirement is not logical and produces ahybrid.

The object of construing awritten constitution is to give effect tothe intent of the people adopting it. 1Cooley on Constitutional Limitations (8th Ed. 1927) 124. When adifficulty really exists inascertaining meaning of constitutional provisions, certain extrinsic aids mav be resorted to. Amone these, savs Cooiev, at pages 141-142, is*“a contemplation ofthe“object .tode accomplished
or the mischief designed to be remedied or guarded against by the clause inwhich the ambiguity is met with. When we once know the reason which alone determined the will of the lawmakers, we ought to interpret and apply the words used inamanner suitable and consonant to that reason, and as wilt be best calculated to effectuate the intent.

...* (Emphasis his.)

Prior to the adoption ofSection 51-b, the Legislature had been authorized toenact and had enacted laws establishing FederalState cooperative programs for three clas2ses ofpersons: the needy aged, the needy blind and needy children.

The original constitutional residence requirements which had to be met before assistance could be granted aneedy aged individual were stated inthe following language:

“

. . . provided further that the requirements for length oftime of actual residence inTexas shall never be less than five (5) years during the nine (9) years immediately preceding the application for old-age

2 The Social Security Act was enacted by the Federal Government in 1935. At that time the Texas Constitution was amended to authorize aid for the needy aged and to take advantage of the federal act, In 1937 two constitutional amendments were added which permitted the State to receive federal grants-in-aid and authorized State aid upto fifteen dollars amonth for theneedy blind as well as assistance for needy children. These amendments were subsequently combined and
are presently carried inthe Constitution as Section 51-a ofArticle III.Hon. William S. Fly, page 5 (WW-41)

assistance and continuously for one (1)re3ar immediately preceding such application.

language,4 There has been no substantial change lnthe above quoted

and the residence requirement for the needy blind is stated lnidentical terms. 5

Although technically there is adifference **in** the language used ln the residence requirements of Section 51-b and that used ln Section 51-a(l) and 51-a(2), the simila’rity is greater than the dlfference. Ithas been the consistent departmental construction ofthe State agency which has been charged with the duty ofadministering the statutes enacted inpursuance to the provisions of Section 51-a that the residence requirements are not cumulative, and administrators ofthe Social Security Act have accepted this construction. The people of Texas are well familiar with thewelfare programs which have been carried out pursuant to the provisions ofSection 51-a. Itshould be presumed that they contemplated the establishment ofa similar program tofill the remaining gap by covering anomitted class, newly provided for by the 81st Congress.

Prior to the adoption ofSection 51-b, the Legislature was not authorized toaid needy permanently disabled persons. The only purpose ofthe Legislature inpassing H.J.R. 30’ was to submit to the people ameasure which, lfadopted, would authorize the Legislature to enact a law which would permit the State toenter into a Federal-State cooperative program for aidsto such persons. In adopting this measure, the people evidenced their intention that the Legislature be authorized toenact such a law. That itwas never
3 H.J.R. 19, Acts 44th Leg., Reg. Sess., 1935, pp. 1227, 1228.

4Article III, Section 51-a(1) reads, ,in part, as follows:

Y

. . . provided that no such assistance shall be paid.

. .to any person whoshall not have actually resided inTexas for at least five (5) years during the nine (9) years immediately preceding the application for such assistance and continuously for one (1) year immediately preceding such application;...”

5Article III, Section 51-a(2).

6Acts, 54th Leg., 1955, p. 1824.Hon. William S, Fly, page 6 (WW-41)

contemplated that any program ofthis type be lnstltuted unless federal aid was 

### obtained is evidenced by the provision inSection 51-b which states “that the amount paid out of Stats funds to any individual may never exceed the amount paid to that individual 

### outofFederal funds.’ Yetobviously the people ofTexas desired to spend a substantial sum inasslstlng needy, totally and permanently disabled parsons --up to atotal ofOne Million Five Hundred Thousand Dollars -per. **year.**

Therefore, sin’ce there is ambtguity inthe constitutional provision, any doubt as toauthorization to comply with the residence requirements ofthe federal act should be resolved infavor of authorization. Any other interpretation would prevent putting into effect this new welfare program and would thwart the evident purpose of the people inadopting the constitutional provision. You
are therefore advised that the residence requirements imposed by Senate Bill 61 are inconformity with the Texas Constitutional requirements.

Under Section 51-b certain express qualifications must be met before an applicant is qualified to receive assistance. These constitutional limitations should be expressly included inthe enabling Act since the constitutional provision is not self-executing and since it could **not** necessarily be inferred that the Legislature intended to include all of requisite constitutional limitations.

The Constitution inidenttfylng eldgible applicants described them as being “totally and permanently disabled by reason of a mental or physical handicap or a combination of physical and mental handicaps andnot feasible for vocational rehabilitation,

...” (Emphasis **ours.)** We call your attention tothe fact that inSection 16-B ofthe bill, the third paragraph on page 3states the requirement that the individual is not feasible for vocational rehabilitation ina **clause** following the description of an individual totally and permanently disabled by reason of amental condition. We would suggest that this clause be drafted so as to make it clear that this constitutional requirement also applies to those individuals who are disabled by
reason ofphysical disability and to thus avoid any question of ambiguity.
The Legislature is expressly authorized toadd to the basic constitutional restrictions 7as long as the additional restrictions

7 Section 51-b contains the following provision:

“The Legislature shall have the power toprovide by general laws, under such limitations and restrictions as may be deemed by the Legislature expedient, for assistance toneedy individuals.

. .”,

Hon. William S. Fly, page 7(WW-41)

are not 

### inconflict with the constitutional limitstions. With regard tothe additional restrictions contained inthe bill, and without enumerating them, you are advised that these restrictions are in conformity not only with

### theconstitutional provision but also with 

### thepertinent provisions ofthe Social Security Act.

SUMMARY
The residence requirements ofSenate Bill 61
are inconformity with the residence requirements of Section 51-b ofArticle IIIofthe Texas Constitution which requires atotal residence period of five years before assistance can be granted toa totally and permanently disabled person. The constitutional restrictions should be expressly included inthe bill since Section 5l-b is not selfexecuting. Section 51-b authorizes restrictions additional to those contained therein. The additional restrictions embodied inthe bill are constitutional and inconformity with the Social Security Act.

**Yours** very truly,

WILL WILSON Attorney General

APPROVED:

OPINION COMMITTEE H. Grady Chandler, Chairman

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