The Attorney General of Texas 

December 22, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 78711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 5121475-0266 

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Dallas, TX. 75201-4709 

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McAllen, TX. 76501-1665 

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San Antonio. TX. 762052797 

512,225-4191 

An Equal Opportunityl 

Affirmative Action Employer 

Robert Bernstein, M.D., F.A.C.P. 

Commissioner of Health 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 78756 

Opinion No. Mw-538 

Re: Proof of Texas residency 

required before Department of 

Health may spend appropriated 

funds to treat individual 

Dear Dr. Bernstein: 

You have requested our opinion as to the constitutionality of a 

rider to the current general appropriations act. The rider provides: 

e. ADMISSION AND DEPORTATION OF NONRESIDENTS 

AND ALIENS. (1) None of the moneys appropriated 

to the Department of Health and Department of 

Mental Health and Mental Retardation may be 

expended for the training or medical treatment, 

except in emergencies of any student or patient 

who is not a citizen or resident of this state. 

For the purpose of this provision, affidavits from 

two reputable persons shall be deemed adequate 

evidence of citizenship or residency. (Emphasis 

added). 

Acts 1981, 67th Leg., ch. 875, §2e(l), at 3604. The terms 

"citizenship" and "residency" as they appear in this rider are 

equivalent with domicile. See Arredondo v. Brockette, 648 F.2d 425 

(5th Cir. 1981). 

In Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), the 

United States Supreme Court considered an Arizona statute which 

required any indigent, in order to be eligible for free non-emergency 

medical care, to have been a county resident for the preceding twelve 

months. The court held that a durational residency requirement 

violates the equal protection clause of the United States Constitution 

because it creates an invidious classification, not justified by a 

compelling state interest, that impinges on the right to travel by 

denying newcomers to the state the basic necessities of life. 415 

U.S. at 261-62. The court made clear that it was not invalidating all 

residency requirements, but merely holding the one-year waiting period 

overbroad to accomplish its avowed purpose: 

p. 1950 
Dr. Robert Bernstein - Page 2 mw-538) 

A mere residence requirement would accomplish the 

objective of limiting the use of public medical 

facilities to bona fide residents of the county 

without sweeping within its prohibitions those 

bona fide residents who had moved into the state 

within the qualifying period. 

Id. at 267. The court noted that less drastic means, not impinging on 

the right of interstate travel, were available to ascertain an 

individual's intention with regard to residency. - Id. 

In Andre v. Board of Trustees of Village of Maywood, 561 F.2d 48 

(7th Cir. 1977), cert. denied, 434 U.S. 1013 (1978), the Court of 

Appeals for the Seventh Circuit, in upholding a residency requirement 

for municipal employees, declared: 

All residency restrictions have an effect on the 

right to interstate travel, but only those 

residency restrictions which can be characterized 

SS 'durational' have been found to 

unconstitutionally impinge or penalize the right 

to travel, in the absence of some compelling state 

interest. Durational residency requirements 

classify residents into groups of residents who 

have fulfilled the residency requirements and 

those who have not.... Bona fide residency 

requirements as continuing conditions of municipal 

employment rest upon footings significantly 

different from those of durational residency 

requirements. 

561 F.2d at 52. See also McCarthy v. Philadelphia Civil Service 

Comm'n., 424 U.S. 645 (1976); Wright v. City of Jackson, Mississippi, 

506 F.2d 900 (5th Cir. 1975). 

Finally, in Arredondo v. Brockette, 482 F. Supp. 212 (S.D. Tex. 

1979), aff'd, 648 F.2d 425 (5th Cir. 1981), the court upheld a Texas 

statute which provided that, if a student lived apart from his 

parents, he was required, in order to establish residency, to show 

that his presence in the school district was not for the primary 

purpose of attending the public free schools. Although the statute 

permitted the board of trustees to act as the sole arbiter in 

determining whether an applicant for admission was in fact a resident 

of the district, the court held: 

the Texas statute only attempts to articulate a 

residency definition and in no way contains a 

durational residency requirement. 

482 F. Supp. at 218. The court concluded that the statute did not 

burden the right of interstate travel, and that, therefore, the 

p. 1951 
Dr. Robert Bernstein - Page 3 (MW-538) 

rational basis test, rather than the compelling state interest test, 

was applicable, and that the statute was justified by a compelling 

state interest. Id. at 218. - 

In our opinion, the rider at issue here, since it imposes no 

durational residency requirement, must also be judged by the rational 

basis test. Like the statute in Arredondo, it merely "attempts to 

articulate a residency definition." The state clearly has an interest 

in preventing the use of its facilities without charge by 

non-residents. We conclude that the rider is not violative of the 

equal protection clause of the federal constitution. 

You also ask whether the State Board of Health may prescribe the 

contents of the affidavits authorized by the rider and may define the 

phrase "two reputable persons." It is well settled that an 

administrative body may enact rules and regulations where necessary to 

accomplish the purpose of a statute. Gulf Land Company v. Atlantic 

Refining Company, 131 S.W.2d 73 (Tex. 1939); Allstate Insurance 

Company v. State Board of Insurance, 401 S.W.2d 131 (Tex. Civ. App. - 

Austin 1966, writ ref'd n.r.e.). We believe that the Board of Health 

is authorized to enact reasonable regulations prescribing the contents 

of the affidavits and defining the phrase "two reputable persons." Of 

course, such regulations may not themselves impose any restrictions 

which would violate the equal protection clause. 

On the other hand, the rules of an administrative body must be in 

harmony with the general objectives of a statute. Jefco, Inc. v. 

Lewis, 520 S.W.2d 915 (Tex. Civ. App. - Austin 1975, writ ref'd). In 

our view, since the rider clearly states that "affidavits from two 

reputable persons shall be deemed adequate evidence" of residency, the 

Board of Health is not authorized to enlarge upon this provision by 

requiring independent evidence that an applicant for program benefits 

is legally present within this state. The rider indicates the intent 

of the legislature that the requisite affidavits shall constitute 

"adequate evidence." 

SUMMARY 

A requirement that free non-emergency medical 

treatment be made available only to bona fide 

residents of the state is not violative of the 

equal protection clause of the United States 

Constitution. 

MARK WHITE 

Attorney General of Texas 

p. 1952 
Dr. Robert Bernstein - Page 4 (MW-538) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

George Warner 

Bruce Youngblood 

p. 1953