Case Information
*1 Hon. Raymond W. Vowel1 Opinion No. M- 1035 Commissioner
State Department of Public Welfare Re: Effect of Graham v. John H. Reagan Building Richardson (U.S. Sup. Austin, Texas 1971) upon Art. III,
Sec. 15a, Texas Con- stitution, and Art. 695c, Sets. 12 and 20, V.C.S., relating to citizenship requirement for old age assistance Dear Mr. Vowell: and aid to the blind.
In your letter requesting an opinion from this office you ask the following question:
'Does the United States Supreme Court decision in Graham v. Richardeon, et al. and Sailer, et al. v. Legar, et al., have the
effect of rendering unconstitutional the portion6 of the Texas Constitution (Art.
III, Sec. 51-a) and the Texas statutes
(Art. 695c, Sets. 12 and 20, V.T.C.S.)
which relate to the citizenship require- ment for old age assistance and aid to
the blind."
On June 14. 1971. the United States Sunreme Court decided the cases of Graham v. Richardson, et al: and Sailer, et al. v. Legar, et al., 91 S.Ct. 1848 403 U S 365 (Isn,- affl i Graham v. Richardson, et al.: 313 F:S;pp. 34 (D.Arlz. 1970yaZ Sailer, et al. v. L egar, e Y al.., 321 F;Supp. 250 cases were welfa re cases. The Gr&am (E.D.Penn. 19'10). Both case~concerned the Arizona statute orovidina benefits to permanently and totally disabled (A-PTD). The Arizona statute, Section 46-233A01, Arizona Revised Statutes, reads:
'No person shall be entitled to general assistance who does not meet and maintain the following requirements:
"1 e Is a citizen of the United States, or has resided in the United States a total
of fifteen years. * + *" A like elfgfbflfty provfsfon conditioned upon citizenship or durational residence appears in the Arizona statutes providing old age assfstance and assistance to the needy blind. The Appellee, Carmen Richardson, was a lawfully admitted alien. She met all other qualfficatfons for (APTD) benefits except the 15 year residency specified for aliens by the Arizona statute. She applied for (APTD) benefits but was denfed relief solely because of the residency provision.
The Sailer case concerned the Pennsylvania Welfare Code, 62 P.S. Section2). It provides that those eligible for assistance shall be (1) needy persons who qualify under the federally-supported categorical assistance programs and (2) those other needy persons who are citizens of the United States. The Appellee, Elsie Legar, was a lawfully admitted resident alien, Mrs. Sailer was fnelfgible for assistance under the federal pro- grams and was denied State welfare assistance because of her alienage.
The Court in its opinion bv Mr. Justice Blackmun held thal State statutes like those of Arizona and Pennsylvania which deny welfare benefits to lawfully admitted resident aliens or to lawfully admitted aliens who have not resided in the United States for a specffied number of years, violate the Equal Protection Clause of the Fourteenth Amendment to the Unfted States Constitution and encroach upon the exclusive federal power over the entrance and residence of aliens. The Court also held that there was no au- thorization for Arizona's 15 year duratfonal residency requirement In the Socfal Security Act.
On December 13# 1971, a three-judge district court en- tered a judgment In the United States District Court9 Southern District of Texas, Houston Dfvfsfon in Perez9 et al, v. Hackney, Th e Perez et al. consolidated with Salazar V- Hackney, !e ea. t a. 1 * The Perez to thed andazar cases were ackions which pertained 1s which oertained sorely to thed sorely ectfon 16-B, to t-permanently and totally disabled (AFTD), Section 16-B, to tFz Article 695c, Vernon's Civil Statutes, and aid to families with Article 695c, Vernon's Civil Statutes, and aid to families with dependent children (AFDC), Section 17, Article 695c, Vernon's dependent children (AFDC), Section 17, Article 695c, Vernon's * Not yet reported.
-
Civil Statutes programs.
The judgment entered in the Perez and Salazar cases reads, in part, as follows:
,I . . .
"1 . Portions of Article III, Section 51-a of the Texas Constitution and Texas Revised Civil Statutes Annotated, Article 695c, §§16-b & 17, and the regulations Issued pursuant to them by defendants, deny aid to applicants for Aid to the Permanently and Totally Disabled and Aid to Families with Dependent Children who are not
citizens of the United States. As such those portions violate Article I, $8 and VI of the
Constitution of the United States by encroaching upon exclusive federal power and they also
violate the equal protection clause of the
Fourteenth Amendment to the United States
Constitution."
There Is no specific provision In the Texas Constitution relating to the citizenship requirement for aid to the permanently and totally disabled and aid to families with dependent children, but Sections 16-B and 17 of Article 695c, Vernon's Civil Statutes, contain the statutory requirements for citizenship for these two programs as follows:
'Sec. 16-B. (1) Assistance to the per- manently and totally disabled shall be given
under the provisions of this Act to any needy person:
"1 . Who is permanently and totally dis- abled as hereinafter defined; and . .
"3. Who is a citizen of the United States, and . . .
'Sec. 17. Aid to F~amilies with Dependent Children shall be given under the provisions of this Act with respect to any dependent child.
'Dependent Child' is any needy child: *4 "(1) Who is a citizen of the United States, and . . .*I
Article III, Section 51-a of the Texas Constitution provides, in part, as follows:
"Section 51-a. The Legislature shall have the power, by General Laws, to provide, subject to limitations herein contained, and such other limitations, restrictions and regulations as may by the Legislature be deemed expedient, for
assistance grants to . e .
"(1) Needy aged persons who are citizens of the United States or non-citizens who shall have resided withi th boundaries of the United
States for at least twkty-five (25) years;
'(Emphasis added.)
"(2) Needy individuals who are totally and permanently disabled by reason of a mental or
physical handicap or a combination of physical and mental handicaps; Needy blind persons;
“(3) "(4) Needy dependent childzen and the caretakers of such children. . .
The Public Welfare Act of 1941, as amended (Article 695c, Vernon's Texas Civil Statutes) Sections 12 and 20 provide, in part, as follows:
"Sec. 12. Assistance shall be given under the provisions of this Act to any needy blind
person who:
11 e e . Who is a citizen of the United States."
“(6) "Sec. 20. Old Age Assistance shall be given under the provisions of this Act to any needy
person:
Ron. Raymond W. Vowell,,page 5 (M-.1035)
"(2) Who is a citizen of the United States or who is a noncitizen and has resided within the boundaries of the United States for at least twenty- five (25) years; and
On the basis of the United States Supreme Court decision in Graham v. Richardson, et al. and Sailer, et al. v. Legar, et al.,
ez, et al. v. H ackney, et al. and t is our opinion that th t portion Texas Constitution and gections 12 and 20 of the Public Welfare Act, 1941, as amended, Article 695c, Vernon's Civil Statutes, which make citizenship a qualification for the old age assistance and aid to the blind programs, are in viola- tion of the Equal Protection Clause of the United States Constitution and encroach upon the exclusive federal power over the entrance and residence of aliens. There 1s no authorization in the Social Security Act for the durational residency requirement contained in Article III, Section 51-a of the Texas Constitution and Section 20(2), Vernon's Civil Statutes.
SUMMARY On the basis of the United States Supreme Court decision in Graham v. Richardson, et al., and Sailer, et al. v. Legar, et 1 a ., s ct 1848, 403 U.S. 3b5 (19'/1) that portion oh A&.icle III, Section 51-a of the Texas Constitution and Sections 12 and 20 of the Public Welfare Act, 1941, as amended, Article 695c, Vernon's Civil Statutes, which make citizenship a qualification for the old age assistance and aid to the blind programs, are in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitu- tion and encroach upon the exclusive federal power over the entrance and residence of aliens, There is no authorization in the Social Security Act for the durational residency requirement contained In Article III, Section 51-a of the Texas Constitution and Section 20(2), Article 695c, Vernon's Civil Statutes. truly yfurs, C. MARTIN ey General of Texas *6 . Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Sig Aronson
John Reeves
Jerry Roberts
R. D. Green
SAM MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant