In your letter of July 12, you state that the Texas State Board of Public Accountancy has received a reciprocal application which it would like to approve provided the United States citizenship requirement 41a, $12, Vernon’s Texas Civil Statutes, the Public Accountancy Act of 1945 (hereafter “the Act”) does not apply to reciprocal applicants further that the foreign accounting body granting the original certificate agrees to reciprocate in a like manner.

The granting of a certificate by reciprocity is governed by $13 of the Act, which provides in part:

“(a) The Board may in its discretion waive the examination of, and may issue a certificate ‘Certified Public Accountant’ tq any person possess- ing the other qualifications mentioned in Section 12 of this Act . ”

Section 12 of the Act, delineating those entitled to be certificated, states that the certificate of a Certified Ptiblic Accountant shall be granted by the Board to any person:

“(a) Who is a citizen of the United States or who, if not a citizen, has lived in the State of Texas for the ninety days immediately preceding the date of submitting to the Board the initial application to take the written examination conducted by the Boar,d *2 L. LudweILI Jones, page 2 (H-81) for the purpose of granting a certificate of ‘Certified Public Accountant.‘, or has ma~intained his permanent legal residence for the six months immed- la,t&y prece&ing said date of submissi,on; “(‘b) Who i,s a resident of the State of Texas, or has a pl.ace of business therein, or as an employee, ‘1s regularly employed therein, that any person who shall{ have qualified to take the examination for the certificate in th,,is stat:e, and who, while so qualified shall,:! have received credit. for all or any part thereof, s’ha1.l rema,in qu;l.li,fied under this Subsection until he rece,ives his certyificate; . . . ” Prior t:u amendmerIt of the st:atute in 1971. (Acts 1971, 62nd Leg., p. 935, ch. 146) $12 of 1:he Act merel,,y provided:

“Wh,o is 3, citizen of the Unitted States or has duly decl.ared his intention of becoming such citizen; . ‘I This office on several occasions has held licens,ing statutes which require, as a condition precedent t:hst applicants for license be citizens of the United States,, are unconstitut.lonal. in v;olation of the Fourteenth Amendment to the Constitution of the United States. For instance, Opini,on O-866 (1939) held unconstitutional, and vo’id the requirement 4501, V. T. C. S. , ‘that an appiicact for Recense to practi~re medi~ci,ne must ‘be a citizen of the United See also States or have fi!ed his decI,aPation of intention to become a citizen. Attorney General Op,ir&n R,-2247 (1950).

In 1969 the sd.me ruI1.e was appl,ied ,in At:torney General Opinion M-447 (1969) to Article 4528~ auempting t:o l,imit :Kcensure of \oca,tiona:l, nurses to citizens of the Un;ted States. .We doubt,

These opi.nixr~s may hd!T~e prompted the amendment in 1971 to $ 12. however, t.hat l.hey achieved tha,t: resu1l.t. It: is our opin:on t.hat 5 i2 as amended still 1imil:s certif icat:ion to cit:izens of the United States or to non-citizens who in t:he State of Texas for :uinety days or who have maintained permanent legal resideu e for six months. No such cunditions are imposed upon those who

The Honorable L. Ludwell Jones, page 3 (H-81) are citizens. Citizens of the United States may be certificated wherever they for the ninety day period or regardless of whether they have main- tained a legal residence for six months. In our opinion this consti- tutes an invidious discrj.mination which cannot be justified as a reasonable classification when applied to an alien who has lawfully been admitted to this country. Graham v. Richardson, 403 U.S. 365, 29 L. Ed.2d 534, 91 S. Ct. 1848 (1971). However, a non-resident aliin, i. e., one who is not resident in the United States, is not protected by the Fourteenth Amendment to the Con- stitution of the Unitred States and therefore, we think, the provis.ions requirements of the statute, as applied to such a person would be valid.

Therefore, it is our opinion that as to reciprocity, an alien resident the United States, who holds a certificate as Certified Public Accountant issued under the laws of any state or territory or its equivalent having been issued in any foreign country shall be entitled to reciprocal certification as a Certified Pub1i.c Accountant if he meets the other requirements of 5 $ 12 and 13 as to age, character, educati,on, etc.

SUMMARY Aliens who lawfully reside in the United States may, not ‘be denied the right to be reciprocally licensed under State law sole?y because they are not citizens and may not be subjected to Texas residency requirements which are not imposed upon United States citizens. Non-resident aliens may ‘be const:itutional.ly subjected to such residency requirements.

Very truly yours, xj?i& JOHN L. H L Attorney General of Texas JwC

DAVID M. KENDALL, Chairman

Opinion Committee