Case Information

*1 THEA~TORNEYGENERAL

OF %-EXAS Honorable John H. Winters, Executive Director State Department of Public Welfare

Austin, Texas Opinion NO. Dear Sir: Re: Is a woman who was a native born American citizen but who was expatriated because of her mar- riage to an alien and who comes within the provisions of the statutes of June 25, 1936, and the amendatory act of July 2, 1940, eligible to apply for and receive assistance before she has taken the Oath of Allegiance?

In your letter of November 8, 1946, you stated that in . the administration of old age assistance and ai.d to the needy

blind your department has had the occasion to consider the citizenship status of many women who were born Ian the Uni.ted States but whose citizenship had been affected by reason of their marriage to aliens during the period of time when the Federal Law provided that the marriage of a native born woman to an alien resulted in her expatriation. You further state that many of these people are applying to you for aid who come Act of June 25, 1936, within the purview of the Repatriation as amended on July 2, 1940, except for the fact that they have not taken the oath of allegiance as Is provided therein. With these facts In mind, you have posed the captioned question of whether these women are eligi,ble to apply and receive assistance before they have taken the oath of allegiance.

Before a woman is eligible to receive old age assistance or assistance to the needy blLnd, she must be a citizen of the United States. Article 695c Section 12 and Section 20, V.A.C.S. Your question therefore Is whether a woman comi within the provlslons of the above said Act of June 25, 193 as amended “$5 July 2, 1940, is a citizen of the United States within our Pub- lic Welfare Act before she takes the oath of allegiance. This Act reads as follows:

“That hereafter a woman, being a native- born citizen, who has or is believed to have *2 .- , Honorable John H. Winters, page 2

lost her United States Citizenship solely by rea- son of her marriage prior to September 22, 1922, to an alien, and whose marital status with such alien has or shall have terminated, or who has resided continuously in the United States since the date of such marriage, shall be deemed to be a citizen of the United States to the same extent as though her marriage to said ali,en had taken place on or after September 22, 1922: Provided, however, that no such woman shall have or claim any rights as a citizen of the United Statesuntil she shall have duly taken the oath of allegiance as prescribed in section 4 of the Act approved June 29, 1906."

Although the cases upon the point involved herein are few, they are unfortunately~in conflict. The courts in the cases of In re Waston's Repatriation, 42 F. Supp. 163, and Petition dDavls, 53 F. SUQQ. 426 held that the woman re- gained citizenship on June 25, 1936, the effective date of the act, and that it was unnecessary for her to take the oath of allegiance except as tangible evidence of the existence of her rights of citizenship. These cases are authority for the pro- position that every woman coming within the purview of the Act of June 25, 1936, on that day became a citizen of the United States, yet these courts said that such a woman "Is not entitled to any rights or privileges as a citizen of the United States until she shall have taken an oath of allegiance to the United States."

The foreaolna cases have been criticized and deemed, weak by subsequent d&lsions. In re Portner, 56 F. Supp. 103; Petition of Norbeck, 65 F, Supp. 748. These cases have pointed out that the traditional function of an oath of allegiance in restoration of citizenship or the assumption of citizenship, is to mark the time when the assumption of duties as well as the rights and privileges of citizenship, takes place.

This department la of the opinion that these subsequent decisions coupled with the considerations set forth in the case of Shellg v. United States, 120 F. 2d 734, present the proper construction that should be placed on this Act. We further be- lieve that even under the former decisions, a woman who has not taken the oath of allegiance could not receive assistance under our Welfare Act, for receiving such assistance is a right or privilege enjoyed only by a United States citizen; as heretofore shown, these former decisions recognize that although a woman automatically becomes a citizen on June 25, 1936, she is not entitled to the rights or privileges of a citizen until ahe has taken the oath of allegiance.

Honorable John H. Winters, page 3

In view of the foregoing, we answer your question In the negative.

We call your attention to the fact that this Act of June 25, 1936, as amended July 2, 1940, was repealed by the Nationality Act of 1940, however the repeal did not terminate the nationality acquired under,this Act of June 25, 1936.

Under the Nationality Act of 1940, 8 U.S.C.A. Section 717 (b) (l), it is rather well established~from the plain language of the act and the interpretation placed thereon that a woman coming within its Qrovislons becomes a citizen from and after taking the oath of allegiance.

We trust that the foregoing satisfactorily answers your question.

Yours very truly ATTORNEY GENERAL OF TEXAS By s/Robert 0. Koch Roberts 0. Koch Assistant ROK:ms:wc

APPROVZI DEC 7, 1946

s/Grover Sellers

ATTORNEY GENERAL OF TEXAS

Approved Opinion Committee By s/BWB Chairman