Case Information

*1 The. Attorney General of Texas December 31, 1984 M MAllOX

ttorney General P. 0. a0x ^[12646] 1preme court BUildh!J Mr. Garry Meuro chairman Opinion No. m-289 Texas Veterans Land Board Re: Constitutionality of Texas Austin, TX. 76711. 2646 Telecopier 51214750266 IIOX 9101874.1367 835 Stephen F. Austin Building Austin, Texas 78701 requirement of United States citizenship for eligibility for participation in the Veterans

Land and Housing Program 4 J.sckaon. Suite 706 “allal), TX. 752024606 2141742.6944

Dear Mr. Mauro: You inform us that an applicant to purchase land pursuant to the

4624 Alberta Ave., Suite 160 Veterans’ Land Progrim is a citizen of Canada. For purposes of this El Paso. TX. 799052793 .6/633.3464 opinion, we will assume that the applicant remains in the United

States lawfully. 10th article III, section 49-b of the Texas Constitution and section 161.001(7) of the Natural Resources Code It... a Texas, Suite 700 require that veterana who participate In the Veterans’ Land Program be mston. TX. 77002-3111 citizens of the United States. You ‘ask us the following question: ~Y2234666 In light cf the equal protection clause of the 18 Broadway. Suite 312 United Stzltes Constitution and recent United lbbock, TX. 79401-3479 States Supreme Court holdings in the area of 0C6l747.5238 classifications based on alienage, can resident

aliens who have served in the United States armed KB N. Tenth. Suite S forces and who are othewise~qualified veterans be McAllen. TX. i6601.1665 prevented from participating in the Veterans Land 5121662JY7 and Eousine, Programs?

206 Main Plaza. Sults 406 We predict that a cot.rt would answer your question in the negative. San Antonio, TX. 762652797 12Q254191 Article III, se:,tion 49-b of the Texas Constitution provides in

pertinent part: An Equal Opportunity/ The lands of the Veterans’ Land Fund shall be llirmalivs Action Employer

sold by sc.id Board in such quantities, on such terms, at such prices, at such rates Interest and under t:uch rules and regulations as are now or may hereafl:er be provided by law to veterans who served not !.ess than ninety (90) continuous days, unless sc oner discharged by reason of a service-cormected disability, on active duty in the Army, X.wy, Air Force, Coast Guard or Marine *2 Mr. Garry Mauro - Page 2 (JM-289)

Corps of the United States after September 16, 1940. and who. upon the date of filing his or her ~lication to purchke any such land is a citizen of the United State;:, is a bona fide resident of the State of Texas, aad has not been dishonorably discharged from any branch the Armed Forces above-named and who at the time of his or her enlistment, inducticn. comanissioning. or drafting was a bona fide resident of the State of Texas, or who has resided in Texas at least five (5) years prior to the date of filing his or her application, and provided that in the went of the death of an eligible Texas Veteran after the has filed rrfth the Board an application veteran and contract of sale to purchase through the Board the tract selected by him or her and before the purchase has been completed. then the surviving spouse may completr: the transaction. (Emphasis added).

See also Natural Resources Code 9161.001(7) (defining "veteran" to include requirement that appllcsnt be a citizen of the United States); Il62.001(8)(C) (defining "vet~eran" for purposes of the Veterans' Rousing Assistance Program to include requirement that applicant be a United States citizen).

The Fourteenth Amendment to. the United States Constitution provides in pertinent part that

[n]o State shall . . . deprive any person of life, liberty, or property!, without due process of law; nor deny to any pere,cn within its jurisdiction the equal protection or the laws. . . . (Emphasis added).

The Equal Protection Clause does not prohibit all legislative classifications. In reviewinl~ legislation under the Equal Protection Clause, the U.S. Supreme Court ' s usual approach has been a "two-tiered" standard. If a statute infringes on a fundamental right,

Earper v. Virginia State Board of Elections, 383 U.S. 663 (voting), or creates arTinherently suspect classification, m c-%P a, Loving v. Virginia, 385 U.S. 1 (1967) (race). the statute is subject to strict judicial a,crutiny which requires the state to To do so, establish a compelling interest justifying its enactment. the state must demonstrate that its purpose or interest is both constitutionally permissible aad substantial and that its use of the classification -is necessary to accomplish its purpose. See In re -- Griffiths. 413 U.S. 717 (1973:.

If a statute does not affect a fundamental right or create a suspect classification, the statute is accorded a presumption of *3 Hr. Carry lheuro - Page 3 (Jh-289)

constitutionality that is not disturbed unless the enactmsnt rests on grounds wholly irrelevant to the achievement of a legitimate state objective. The latter stamdard frequently 16 referred to as the rlrtional basil, test. See McGowan v. Maryland. 366 U.S. 420 (1961). A person challenging a classif:L:ation judged by the rationel basis test m6t establish that th6 classification does not bear a fair relationship t0 6 legitimate public purpoec. Where66 a 6t6te IPUSt justify a suspect classiffcation by showing a Compelling 6tEte intere6t. See Plyler v. Doe, ^[457] U.S. 202, 217 (1982). -

A6 a threshold matter, ue not6 that it has long been held that the auarantees of the Eousl. Protection Clause of the Fourteenth Amend&at extend to all persons regardless of citizenship. Plyler v. Doe. supra. See generally snnot.. 47 L.Ed.Zd 876 (1976). Earlier United States Supreme Court decisions held that state statutes denying aliens certain rights enjoyed by citizens ere not invalid under-ths Equal Protection Clause of the Fourteenth Amendment as long as there 16 6 "rational basis" for the classification embodied in such Rick v. Webb, 263 U.S. 326 (1923); Crane v. New -- 6tatutes. See, e.g 239 U.S. 19;' (1915); Patsone V, Pennsylvania, 232 U.S. 138 York, (1914). Bowever. more recent decision6 have held that classifications based- upon alienage 6re inherently suspect End ~subject to "strict judicial scrutiny." See, e.S Bernal v. Fainter, U.S. 104 s.ct. 2312 (1984); Examin:& Board of Engine= ArchGis Surveyors and de Otero. 426 UTS. 572 (1976); In re Griffiths, 413 U.S. 717 (1973); Grahsm v. Richardson, 403 U.S. 365 (1971). --

Statutes containing such clas6ifications vi11 be upheld only if the state imposing them is able to satisfy the burden of demonstrating "that its purpose or interest is both constitutionally permissible and substantial and that its use of the classific6tion is 'necessary . . . to the accomplishment' of :lts purpose or the safeguarding of its interest." In re Griffiths. supra, at 721-722.

The underpinninf,s of the Court'6 constitutional decisions defining the circumstances under which state and local g03rc?rnm6nt6 may favor citizens of this country by dtnying lawfully admitted aliens equal rights and op~portunities have been two. The first, based squan?!.y on the concepts embodied in the Equal Protecti,on Clause of the Fourteenth Amendment and in the Due Process Clause the Fifth Amendment, l~scognizes that '[alliens ES a class are 6 priml! example of 6 "discrete and insular" minority . . for whom . . . heightened judicial solicitude is appropriate.' Graham v. Richardson, 403 U.S.. at 372. See also San -- ;hool DIE,:.. v. Rodriguez, 4111 Antonio SC J.S. 1, 29 (1973);‘a ;armsn 1-2 ,ugall. 413 U.S., at 642. The second. arounded in the Suoremscv Clause. . I ~~~~~~. Const. Art.- Vi. and in the naturalization cl. 2. p. 1284 *4 Mr. Carry Mauro - Page 4 (JM-289)

power, Art. I, 58. cl 4. recognize6 the Feder61 GWErtu&ent'E primary re6ponsibility in the field of immigr6tion and naturalization. See, e.g., liines v. Davidowitz, 312 U.S. 52, 66 (1941); Truax v. Raich, 239 U.S. 33, 42 (1915). See Gr&x Richardson, 403 U.S., at 378; Takahax v. Fish 8 GWIE Comn’n. 334 U.S, 410 (1948).

Examining Board of Engineers, ~'rchitecte h Surveyors v. de Otero.

U.S. 572, 602 (1976).

GEnErElly. official discrimination egsinst lawfully admitted aliens ha6 taken one of three forma. First, aliens have been prohibited from enjoying public resource6 or receiving public benefits on the 86me basis as citiatns. See, e.g., Gr6ham v. Richardson, supra: Takahashi v. Fish 6 same Commission, 334 U.S. 410 (1948). Second, aliens have been excluded from public employment. See, e.g.. Sugarm6n v, Dougall, 413 U.S. 634 (1973). Third, aliens have been restricted from engaging in private enterprise6 and occupations in which they could participate if they were citizens. SEC? De cEn66 V. Bica, 424 U.S. 351 (1976); Examining Board of Engineers,Architects & Surveyors v. de Otero, Ez-In re Griffiths, w The court has developed an exception to the rule that a class distinction based upon alienage automatically invoks:s strict scrutiny. This exception has been termed the "political function,, exception End applies to lavs which exclude aliens from DO,litiOnE verv claselv associated with the process of democratic aelf-'gcrrcrnment.~ See. e.g., Bern61 v. Fainter, D; Foley v. Connelle. 43:s U.S. 291 (1978); Cabell v. Chavez- Salido, 454 U.S. 432 (1982); &bach v. Norwlck. 441 U.S. 68 (1979).

Clearly, the constitutional and statutory provisions involved in this request fall within the first grouping, 1.6. statute6 which deny to aliens public benefits available to citizens. We think that a court, when presented with this issue, would invoke the "strict 6crutiny" standard and strike, down that part of article III, section 49-b of the Texas Con6t:ttution and 6eCtion6 161.001(7) and 162.001(8)(~) of the Natur61 ILeaources Code which re6tricta applicants veteran6' 6srliat6nce programs to citizens only. for certain Admittedly, only rarely are a'tatutes 6uStEined when they are subjected to strict scrutinv: as ha6 be'rn noted strict scrutinv mav be strict in theory, but in practice it is almost always fatal.- Se; Gunther, The Supreme Court, 1971 Term -- F,,rward: In Search of Evol~g Doctrine= a Changing Court: A Model for?fewer Equal Protection, 86 Rarv. L. Rev. 1, 8 (1972). Nevertheleasl, we can discern no comuellina state interest in this instance, ncfr have you suggested one. :If th;re were one. we cannot conclude that sluch a classification would be necessary for its accomplishment. ,i:s the court declared in Graham v. Richardson, supra. at 374, ~aeither a state's desire to preserve limited welfare benefits for :Lts own citizens , nor 6 state's concern for its fiac61 integrity, constitutes a compelling justification for

D. 1285 *5 Hr. Gamy Mauro - Page 5 (JWB9)

denying public assistance to resident aliens or restricting benefits to citizens and longtime resident aliens.

We note that all persms inducted into the armed services, including resident aliens. are required by 10 U.S.C. 1502 (1982) to take an oath of allegiance to the United States Coustitution and to the President of the United S,t.ates. In striking dowu a Connecticut regulation limiting the practice of lav to citizens only, the court recited the above-mentioned st.a.tutory oath aud declared in a footnote:

If aliens cau take this 06th when the Nation is making use of their services in the national defense, residence ,a:Lien applicants for admission to the bar surely cmnot be precluded, as a class. from taking an oath to support the Constitution on the theory that they are unable to take the oath in good faith.

In re Griffiths, BIIPT(L. at 7:!Cs n. 18. Analogously, we conclude that resident aliens who are veterms the United States Armed Forces may not be precluded as a class to entitlement to benefits granted to veterans vho are United Stateo citizens.

Accordingly, we conclude that a court, if presented directly with the issue.. would conclude that those portions of article III, section 49-b of the Texas Const:Xution and sections 161.001(7) and 162.001(8)(C) of the Natural Resources Code, which restricts applicants for certain veterans’ assistance programs to citizens only, is violative of the Equal Protection Clause of the Fourteenth Amendment of the United State!; Constitution.

jjUMMARY Those portions of article III, section 49-b of the Texas Constitut:lon and sections 161.001(7) and 162.001(8)(C) of thl: Natural Resources Code, which restrict applicants for certain veterans’ assistance programs to citizens only, is violative of the Equal Protec:t.ion Clause of the Fourteenth Amendment of the Un:Lted States Constitution. dz& JIM HATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney.Gen&l

p. 1286 *6 Mr. Carry Mauro - Page 6 (JM-2a91

DAVID R. RICRARDS

Executive Assistant Attorney Gmeral

RICK GILPIN

Chairman, Opinion Committee

Prepared by Jim Moellinger

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Rick Gilpin. Chairman

Colin Carl

Susan Garrison

Jim Moellinger

Jennifer Riggs

p. 1287