The opinion
The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Robert Bernstein, M.D., F.A.C.P. Opinion No. Mw-538
Supreme Court Building Commissioner of Health
P. 0. Box 12546
Austin. TX. 78711. 2546
Texas Department of Health Re: Proof of Texas residency
5121475-2501 1100 West 49th Street required before Department of
Telex 9101674-1367 Austin, Texas 78756 Health may spend appropriated
Telecopier 5121475-0266 funds to treat individual
1607 Main St.. Suite 1400
Dear Dr. Bernstein:
Dallas, TX. 75201-4709
2141742~6944 You have requested our opinion as to the constitutionality of a
rider to the current general appropriations act. The rider provides:
4024 Alberta Ave.. Suite 160
El Paso, TX. 799052793
e. ADMISSION AND DEPORTATION OF NONRESIDENTS
915/533-3464 AND ALIENS. (1) None of the moneys appropriated
to the Department of Health and Department of
Mental Health and Mental Retardation may be
1220 Dallas Ave.. Suite 202
expended for the training or medical treatment,
Houston. TX. 77002-6966
7131650.0666
except in emergencies of any student or patient
who is not a citizen or resident of this state.
For the purpose of this provision, affidavits from
60.3 Broadway. Suite 312 two reputable persons shall be deemed adequate
Lubbock, TX. 79401-3479
evidence of citizenship or residency. (Emphasis
6061747.5236
added).
4309 N. Tenth, Suite B Acts 1981, 67th Leg., ch. 875, §2e(l), at 3604. The terms
McAllen, TX. 76501-1665 "citizenship" and "residency" as they appear in this rider are
5121682-4547
equivalent with domicile. See Arredondo v. Brockette, 648 F.2d 425
(5th Cir. 1981).
200 Main Plaza, Suite 400
San Antonio. TX. 762052797 In Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974), the
512,225-4191 United States Supreme Court considered an Arizona statute which
required any indigent, in order to be eligible for free non-emergency
An Equal Opportunityl
medical care, to have been a county resident for the preceding twelve
Affirmative Action Employer months. The court held that a durational residency requirement
violates the equal protection clause of the United States Constitution
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 court made clear that it was not invalidating all
residency requirements, but merely holding the one-year waiting period
overbroad to accomplish its avowed purpose:
p. 1950
Dr. Robert Bernstein - Page 2 mw-538)
A mere residence requirement would 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 residents who had moved into the state
within the qualifying period.
Id. at 267. The court noted that less drastic means, not impinging on
the right of interstate travel, were available to ascertain an
individual's intention with regard to residency. -Id.
In Andre v. Board of Trustees of Village of Maywood, 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
for municipal employees, declared:
All residency restrictions have an effect on the
right to interstate travel, but only those
residency restrictions which 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
requirements as continuing conditions of municipal
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 (5th Cir. 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
determining whether an applicant for admission was in fact a resident
of the district, the court held:
the Texas statute only attempts to articulate a
residency definition and in no way contains a
durational residency requirement.
482 F. Supp. at 218. The court concluded that the statute did not
burden the right of interstate travel, and that, therefore, the
p. 1951
Dr. Robert Bernstein - Page 3 (MW-538)
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.
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
articulate a residency definition." The state clearly has an interest
in preventing the use of its facilities without charge by
non-residents. We conclude that the rider is not violative of the
equal protection clause of the federal constitution.
You also ask whether the State Board of Health may prescribe the
contents of the affidavits authorized by the rider and may define the
phrase "two reputable persons." It is well settled that an
administrative body may enact rules and regulations where necessary to
accomplish the purpose of a statute. Gulf Land Company v. Atlantic
Refining Company, 131 S.W.2d 73 (Tex. 1939); Allstate Insurance
Company v. 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 reasonable regulations prescribing the contents
of the affidavits and defining the phrase "two reputable persons." Of
course, such regulations may not themselves impose any restrictions
which would violate the equal protection clause.
On the other hand, the rules of an administrative body must 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
reputable persons shall be deemed adequate evidence" 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 legally present within this state. The rider indicates the intent
of the legislature that the requisite affidavits shall constitute
"adequate evidence."
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
p. 1952
Dr. Robert Bernstein - Page 4 (MW-538)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
George Warner
Bruce Youngblood
p. 1953