# 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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An Equal Opportunityl Affirmative Action Employer Robert Bernstein,M.D., F.A.C.P. Commissionerof Health Texas Department of Health 1100West 49th Street Austin, Texas 78756 OpinionNo. 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 constitutionalityof a rider to the currentgeneralappropriationsact. The riderprovides:

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 thepurpose of thisprovision,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 (5thCir. 1981).

InMemorial Hospitalv. 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 equalprotection clause of the United StatesConstitution 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 courtmade clear that itwas not invalidatingall residencyrequirements,but merely holding the one-yearwaiting period overbroad to accomplish itsavowedpurpose:

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A mere residence requirementwould 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 residentswho had moved into the state within the qualifyingperiod.

Id. at 267. The courtnoted that less drasticmeans,not impingingon the right of interstate travel, were available to ascertain an individual'sintentionwith regard to residency. Id. -
In Andre v. Board of Trustees of Village ofMaywood, 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 formunicipal employees,declared:

All residency restrictions have an effect on the right to interstate travel, but only those residency restrictionswhich 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 requirementsas continuingconditionsofmunicipal 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 (5thCir. 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 determiningwhether an applicant for admissionwas in fact a resident of thedistrict, the courtheld:

the Texas statute only attempts to articulate a residency definition and in no way contains a durationalresidencyrequirement.
482 F. Supp. at 218. The court concluded that the statute did not burden the right of interstate travel, and that, therefore, the

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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.

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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 articulatea residencydefinition." The state clearlyhas an interest in preventing the use of its facilities without charge by non-residents. We conclude that the rider is not violative of the equalprotection clause of the federalconstitution.

You also ask whether the State Board of Health may prescribe the contentsof the affidavitsauthorizedby the rider and may define the phrase "two reputable persons." It is well settled that an administrativebody may enact rules and regulationswhere necessary to accomplish the purpose of a statute. Gulf Land Company v. Atlantic Refining Company, 131 S.W.2d 73 (Tex. 1939); Allstate Insurance Companyv. 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 reasonableregulationsprescribing the contents of the affidavitsand defining thephrase "two reputablepersons." Of course, such regulationsmay not themselves impose any restrictions which would violate the equalprotection clause.

On the otherhand, the rules of an administrativebodymust 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 reputablepersons shallbe deemed adequateevidence"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 legallypresent within this state. The rider indicates the intent of the legislature that the requisite affidavits shall constitute "adequateevidence."

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

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JOHN W. FAINTER,JR. FirstAssistantAttorney General

RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorney General

APPROVED: OPINIONCOMMITTEE

SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa Jim Moellinger GeorgeWarner BruceYoungblood

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