. 

. 

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

Finance Committee 

Senate Re: Conformity of Senate Bill 

Austin, Texas 61 to the requirements of 

Section 51-b of Article III 

of the Texas Constitution 

and to 551351-55, Title 42, 

Dear Senator Fly: U.S.C.A. 

You have requested an opinion of this office on the following 

questIons. 

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

current legislative session, comply with the provisions 

of Section 51-b of Article III of the Texas Constitution? 

2. Does Senate B,ili 61 comply with the requirements of Sections 1351-55 of Title 42 of the United 

States Code Annotated? 

3. If Senate Bill 61 does not comply with the 

requirements of 42 U.S.C.A. 881351-55, can compliance 

be obtained consistently with the provisions of Section 

51-b of Article III of the Texas Constitution? 

Section 51-b of Article 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 in full in the footnote 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 of the 

United States, who shall have passed their eighteenth 

(18th) birthday but have 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 not feasible for vocational rehabiiitation, and who are residents of the State of Texas, who have 

resided in this State for at least one (1) year continuously lmmediately preceding the application and who have resided in 

the State for at least an additional five (5) years during the 

nine (9) years immediately preceding the application for 

assbstance; and providing further t&it ~no individual shall 

receive assistance under this program~for the (Cont’d next page) 
Hon. William S. Fly, page 2 (WW-41) 

authorizes the Legislature to enact laws providing for assistance to 

needy individuals who are totally and permanently 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 in most of its parts complies with the requirements of Section 51-b and that those portions of 

the bill which do not 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 up the questions of compliance presented by 

various parts of the bill seriatim in the order of their importance. 

The most serious question raised by your request 1s whether 

Subsection 4 of Section 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 the Act and reads as follows: 

“Who has resided in the State of Texas for 

five (5) years or more within the last nine (9) years 

preceding the date of his application for assistance 

and has resided in the State of Texas continuously 

for one (1) year immediately preceding the application; . . .* 

The residence requirements of the constitutional provision 

limit’ authorized assistance to needy 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 in any completely State supported 

institution; and provided further that not more than 

Twenty Dollars ($20) a month out of State funds may be 

paid to any individual recipient ; and provided further that 

the amount paid out of State funds to any 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 of the 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) 

In this State for at least one (,l) year continuously immediately 

preceding the application and who have resided in this 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 of federal 

funds if the State residence requirements exclude “any resident of the 

State who has resided therein five years during the nine years 

immediately preceding the application fo.r aid to the permanently and 

totally disabled and has resided therein continuously for one year 

immediately preceding the application. ” 

If Section 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 in the bill as presently drawn is unconstitutional; and the 

Legislature lacks the power to enact a law which would enable the 

State of Texas to comply with the provisions oft the 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 of the year lmmediateiy preceding 

the application plus an additional five years during the nine-year 

period immediately preceding the application. If the applicant cannot 

count the first year of the nine-year period, he is then limited to 

compiling his five-year total from a period of eight years, and the 

Constitution expressly allows him to accumulate the five years during the nine-year period. 

Although th.e total residence requirement need not be continuous, continuity is not prohibited. If for five years immediately 

preceding application the applicant has continuously resided in Texas, 

obviously the applicant has met the requirement for continuous 

residence for one year immediately preceding the application. The 

people of Texas in adopting this amendment unquestionably intended 

that the requirement of total residence be met within a nine- ear 

period immediately preceding application for assistance. *he 

two residence requirements are treated as cumulative of each 

other, the five-year total requirement must be met within an eight 

rather than a nine-year period, as expressly permitted by the 

Constitution. The constitutional provision is undoubtedly ambiguous. 

It is 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, the additional requirement pertaining to total residence. 

It is obviously desirable to have a requirement of a 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. It is also desirable to have an 

additional requirement of a stated period of total residence within 

the State before such aid can be granted and at the same time 

reasonable that such period of total residence need not be continuous. 

It is not logical to make these two requirement,s cumulative of each 

other. Each is based on entirely different considerations. The 

motivating factors which lead to a choice of a requisite period of 

continuous residence are different from the motivating factors 

determinative of a requisite period of total residence, An addition of 

the two periods to obtain a new total residence requirement is not 

logical and produces a hybrid. 

The object of construing a written constitution is to give 

effect to the intent of the people adopting it. 1 Cooley on Constitutional Limitations (8th Ed. 1927) 124. When a difficulty really 

exists in ascertaining meaning of constitutional provisions, certain 

extrinsic aids mav be resorted to. Amone these, savs Cooiev, at 

pages 141-142, is * “a contemplation of the “object .to de accomplished 

or the mischief designed to be remedied or guarded against by the 

clause in which 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 in a manner suitable 

and consonant to that reason, and as wilt be best calculated to 

effectuate the intent. . ..* (Emphasis his.) 

Prior to the adoption of Section 51-b, the Legislature had 

been authorized to enact and had enacted laws establishing FederalState cooperative programs for three clas2ses of persons: the needy 

aged, the needy blind and needy children. 

The original constitutional residence requirements which 

had to be met before assistance could be granted a needy aged individual were stated in the following language: 

“ 

. . . provided further that the requirements for 

length of time of actual residence in Texas 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 up to 

fifteen dollars a month for the needy blind as well as assistance for 

needy children. These amendments were subsequently combined and 

are presently carried in the Constitution as Section 51-a of Article 

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 ln the above quoted 

and the residence requirement for the needy blind is stated 

ln identical terms. 5 

Although technically there is a difference 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. It has been the consistent departmental construction of the 

State agency which has been charged with the duty of administering the 

statutes enacted in pursuance to the provisions of Section 51-a that 

the residence requirements are not cumulative, and administrators 

of the Social Security Act have accepted this construction. The people 

of Texas are well familiar with the welfare programs which have 

been carried out pursuant to the provisions of Section 51-a. It should 

be presumed that they contemplated the establishment of a similar 

program to fill the remaining gap by covering an omitted class, newly 

provided for by the 81st Congress. 

Prior to the adoption of Section 51-b, the Legislature was 

not authorized to aid needy permanently disabled persons. The only 

purpose of the Legislature in passing H.J.R. 30 ’ was to submit to 

the people a measure which, lf adopted, would authorize the Legislature to enact a law which would permit the State to enter into a 

Federal-State cooperative program for aids to such persons. In 

adopting this measure, the people evidenced their intention that the 

Legislature be authorized to enact such a law. That it was never 

3 

H.J.R. 19, Acts 44th Leg., Reg. Sess., 1935, pp. 1227, 1228. 

4 

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

Y 

. . . provided that no such assistance shall be 

paid. . . to any person who shall not have actually 

resided in Texas 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;...” 

5 

Article III, Section 51-a(2). 

6 

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

contemplated that any program of this type be lnstltuted unless 

federal aid was obtained is evidenced by the provision in Section 

51-b which states “that the amount paid out of Stats funds to 

any individual may never exceed the amount paid to that individual 

out of Federal funds.’ Yet obviously the people of Texas desired 

to spend a substantial sum in asslstlng needy, totally and 

permanently disabled parsons --up to a total of One Million Five 

Hundred Thousand Dollars -per. year. 

Therefore, sin’ce there is ambtguity in the constitutional 

provision, any doubt as to authorization to comply with the residence 

requirements of the federal act should be resolved in favor of 

authorization. Any other interpretation would prevent putting into 

effect this new welfare program and would thwart the evident 

purpose of the people in adopting the constitutional provision. You 

are therefore advised that the residence requirements imposed by 

Senate Bill 61 are in conformity 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 in the 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 in identtfylng 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 and not feasible for vocational rehabilitation, . ..” (Emphasis 

ours.) We call your attention to the fact that in Section 16-B of the 

bill, the third paragraph on page 3 states the requirement that the 

individual is not feasible for vocational rehabilitation in a clause 

following the description of an individual totally and permanently 

disabled by reason of a mental 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 of physical disability and to thus avoid any question of 

ambiguity. 

The Legislature is expressly authorized to add to the basic 

constitutional restrictions 7 as long as the additional restrictions 

7 

Section 51-b contains the following provision: 

“The 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. . .” 
, 

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

are not in conflict with the constitutional limitstions. With regard 

to the additional restrictions contained in the bill, and without 

enumerating them, you are advised that these restrictions are in 

conformity not only with the constitutional provision but also with 

the pertinent provisions of the Social Security Act. 

SUMMARY 

The residence requirements of Senate Bill 61 

are in conformity with the residence requirements 

of Section 51-b of Article III of the Texas Constitution which requires a total residence period of 

five years before assistance can be granted to a 

totally and permanently disabled person. The 

constitutional restrictions should be expressly 

included in the bill since Section 5 l-b is not selfexecuting. Section 51-b authorizes restrictions 

additional to those contained therein. The additional restrictions embodied in the bill are constitutional 

and in conformity with the Social Security Act. 

Yours very truly, 

WILL WILSON 

Attorney General 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chairman 

MMP:cs