Untitled Texas Attorney General Opinion ( 1988 )

TEE ATTORNEY GENERAL
OF TEXAS
October 4, 1988
Mr. Pat D. Westbrook Opinion No. JM-962
Executive Director
Texas Commission for the Blind Re: Whether the Texas Com-
P. 0. Box 12866 mission for the Blind is
Austin, Texas 78711 required to provide services
to blind children who are
illegal aliens (RQ-1318)
Dear Mr. Westbrook:
On behalf of the Texas Commission for the Blind, YOU
request our opinion on issues concerning the eligibility of
undocumented aliens to receive services from the commission.
you 'ask three questions:
(1) Should the Commission provide ser-
vices to blind children residing in Texas
regardless of their status as legal or
illegal aliens?
(2) Should the Commission provide voca-
tional rehabilitation services to adults who
are illegal aliens?
(3)If the answer to either question (1)
or (2)
is Ino' is there any reason why the
Commission cannot request documentation
before providing services to suspected
illegal aliens?
For reasons to be discussed below, we-conclude that the
Texas Commission for the Blind must provide services to
blind children eligible to receive such services without
regard to their status as legal or illegal aliens. We also
conclude that the commission may not deny vocational rehabi-
litation services to adults who are illegal or undocumented
aliens.
p. 4884
Mr. Pat D. Westbrook - Page 2 (JM-962)
I.
A. Services to visually handicapped children.
The Texas Commission for the Blind operates pursuant
to chapter 91 of the Human Resources Code. The primary
responsibility of the commission is to provide services to
visually handicapped persons other than welfare services or
services provided to children under programs established by
educational institutions or other agencies. Hum. Res. Code
5 91.021(a). The commission may provide services to visual-
ly handicapped children to supplement the services of other
state agencies. ra, 0 91.028. The commission is authorized
to cooperate with other state agencies and the federal
government to achieve these purposes and to implement
federal legislation providing for assistance to the visually
handicapped. & S§ 91.021(b), (d); 91.028.
The commission provides a number of services to visu-
ally handicapped children including blindness prevention
services, parental counseling, psychological counseling,
educational support, diagnostic and evaluation services,
physical training, and orientation and mobili~ty training.
The commission also provides funds for medical operations
and adaptive equipment. These services are provided to
children, we are told, without federal funds.
You inform us that the commission believes that it
should provide services to blind children who are undocu-
mented aliens by virtue of the United States Supreme Court
decision in Plvler v. Doe 457 U.S. 202 (1982). In Plvler,
the Court held that a pro&sion of the Texas Education Code
withholding funds from school districts for the education of
children not "legally admitted" to the United States and
authorizing school districts to deny enrollment to such
children violated the Equal Protection Clause of the Four-
teenth Amendment to the United States Constitution because
it did not further a "substantial goal" of the state. The
Commission for the Blind has determined that there is no
substantial goal of the state that will justify the denial
of services to blind undocumented alien children. There-
fore, it concludes that such children may receive services
from the commission.
We agree that the commission should provide its ser-
vices to visually handicapped children without regard to
their immigration status. However, we need not resort to
constitutional principles to resolve this issue, for this
question is essentially a matter of statutory construction.
See Attorney General Opinion H-586 (1975).
p. 4885
Mr. Pat D. Westbrook - Page 3 (JM-962)
B. Children's eligibility for services.
The Supreme Court in Plvler confronted a legislative
classification that discriminated against undocumented alien
children. It was therefore necessary for the Court to
resort to constitutional principles in order to determine
whether the legislature could enact such a classification.
Here, however, we are not confronted with a discriminatory
legislative classification. The legislature has not enacted
any criteria concerning a child's eligibility to receive
services from the commission other than the requirement that
the child have a visual handicap. The commission, presum-
ably pursuant to its authority to promulgate rules governing
the administration of its programs, Hum. Res. Code
§ 91.011(g), has imposed a residency requirement on recipi-
ents of services under the visually handicapped children's
program. 40 T.A.C. S 169.4. Assuming the commission has
authority to adopt such a standard, the residency require-
ment would not prohibit the commission from providing
services to children who are undocumented aliens.
In Attorney General Opinion WW-1274 (1962), this office
concluded that the State (now "Texas") Commission for the
.- Blind could provide vocational rehabilitation services to a
child who was an alien and whose parents "have never taken
out naturalization papers." The relevant statute required
the applicant for services to be a resident of the state at
the time of filing the application. Although residence is a
flexible concept that depends largely upon the circumstances
in which it is used, see Attorney General Opinion JM-611
(1986), the attorney general concluded that an applicant
needed only to establish bodily presence in the state at the
time of application. Thus, Texas law would permit an alien
to establish residency for the purpose of receiving services
from the commission. See also St. Josevh's Hosvital and
Medical Ce t r Maricova County 688 P.2d 986 (Ariz. 1984)
(undocumented aT;en may be a resident of county for purpose
of receiving medical assistance under state indigent health
care statute). It is therefore of little.consequence that
the commission has adopted a residency qualification for
children's services. Accordingly, your first question is
answered in the affirmative.
II.
A. Vocational rehabilitation services.
Your second question concerns the availability of
vocational rehabilitation services to adult .undocumented
aliens. The commission provides such services to blind
p. 4886
Mr. Pat D. Westbrook - Page 4 (JM-962)
disabled individuals directly or through public or private
agencies. A blind disabled individual is "a person who is
blind or who has a visual condition for which medical
prognosis indicates a progressive deterioration that may
result in a substantial vocational handicap." Hum. Res.
Code 5 91.051(5). The commission is directed to cooperate
with the federal government to accomplish the purposes of
federal laws relating to vocational rehabilitation and is
ordered to comply with conditions required by the federal
government to secure the full benefits of the federal laws.
& 5 91.053(a), (b). Section 9~1.055 of the Human Resources
Code states that the commission 'shall provide vocational
rehabilitation services to a blind disabled individual
eligible for those services under federal law." To ascer-
tain the eligibility of a blind disabled person to receive
vocational rehabilitation services from the commission, we
must consult the relevant federal law, the Rehabilitation
Act of 1973. 29 U.S.C. 55 701 et sea.
B. The.Rehabilitation Act of 1973.
The Rehabilitation Act was enacted with the purpose of
developing and implementing %omprehensive and coordinated
programs of vocational rehabilitation and independent
living" for persons with handicaps. 29 U.S.C. 5 701. The
goal of these programs is to "maximize [the] employability,
independence, and integration [of persons with handicaps]
into the workplace and the community." &
In order to be eligible to ~participate in vocational
rehabilitation programs created under the federal act,
states must submit to the federal government a state plan
for vocational rehabilitation services that fulfills certain
conditions specified in the act. Among those conditions is
that the state plan shall "provide that no residence re-
quirement will be imposed which excludes from services under
the plan any individual who is present in the state." &
$'721(a)(14); se also 34 C.F.R. 5 361.31(a)(2) (1987). The
dominant criteriaefor determining a person's eligibility are
(1) [t]he presence of a physical
mental disability which for the individuzr
constitutes or results in a substantial
handicap to employment: and
(2) [al reasonable expectation that
vocational rehabilitation services may
benefit the individual in terms of employ-
ability.
P. 4887
Mr. Pat D. Westbrook - Page 5 (JM-962)
34 C.F.R. f 361.31(b) (1987). These standards strongly
suggest that it is improper for a state to impose more
restrictive conditions on eligibility so as to deny services
to any individual with a qualifying disability. Our review
of the relevant federal regulations governing vocational
rehabilitation programs revealed no regulation expressly
addressing the issue you raise. At a time when Texas law
imposed a residency requirement upon the recipients of
commission services, including vocational rehabilitation
services, this office concluded that the commission could
provide such services to aliens "who have never taken out
naturalization papers." Attorney General Opinion WW-1274
(1962). With the residency qualification now removed, there
is even less reason to conclude that undocumented aliens are
ineligible to participate in vocational rehabilitation
programs.
The commission; however, does not couch its objection
to providing services to adult undocumented aliens in terms
of residency. Rather, the commission contends that since it
is illegal for undocumented aliens to secure jobs in the
United States, the state should not encourage their employ-
ment by providing them vocational rehabilitation services.
The commission does not refer specifically to any. federal
law or regulation that supports its decision to deny voca-
tional rehabilitation services to undocumented aliens. Nor
do you detail the commission% reasoning for this decision.
The commission's argument, however, seems grounded in the
notion that federal immigration policy, especially asp it
concerns the employment of undocumented aliens, forecloses
an undocumented alien's eligibility to receive vocational
rehabilitation services. We will now consider this aspect
of the commission's argument.
C. Federal immigration policy concerning the employment of
undocumented aliens.
Your letter requesting this opinion contains no refer-
ence to the federal laws that led to the commission's deci-
sion to deny vocationai rehabilitation services to undocu-
mented aliens. The commission apparently has in mind the
changes wrought in federal law by the Immigration Reform and
Control Act of 1986 (the IRCA), Pub. L. No. 99-603, 100
Stat. 3359 (1986). The IRCA makes the most comprehensive
change in the federal immigration laws since the McCarren-
Walter Act of 1952. N. Montwieler, The Immigration Reform
Law of 1986, at 3 (1987). Its primary features include
employer sanctions for the hiring of undocumented aliens, a
legalization program for certain undocumented aliens living
in this country since before January 1, 1982 (amnesty), and
p. 4888
Mr. Pat D. Westbrook - Page 6 (JM-962)
a separate legalization program for temporary foreign
agricultural workers. J& at v. The express purpose of the
amendments is to control illegal immigration into the United
States. See H.R. Rep. No. 99-682, 99th Cong., 2d Sess., pt.
1, at 45, revrinted in 1986 U.S. Code Cong . & Admin. News
5649. The feature most relevant to the commission's argu-
ment is the plan to implement employer sanctions.
The availability of employment has long been recognized
as the magnet that attracts undocumented aliens to this
country. &9 Plvler v. Doe, suvra, at 228; Note, Develov-
ments in the Law: Immiaration Policy and the Riahts of
Aliens, 96 HaN. L. Rev. 1286, 1438-40 (1983). The failure
or the inability of the federal government to enforce its
immigration laws, coupled with the lack of an effective
disincentive to the employment of undocumented aliens, may
have led to the perception that such employment received
implicit congressional imprimatur. &S Plvler V. Doe,
suvra. Indeed, under the so-called "Texas proviso," it was
illegal for an undocumented alien to work in the United
States, but it was not illegal for an employer to hire the
same undocumented worker. N. Montwieler, suvra, at 4. The
enactment of employer sanctions confirms that Congress in-
tends to erase this perception.
As a result of the IRCA, it is now unlawful for any
person to knowingly "hire, . . . recruit or refer for a fee"
any undocumented alien for employment anywhere in the United
States. 8 U.S.C. § 1324a(s)(l). Penalties for violations
include civil fines ranging from $250 to $10,000, and
criminal penalties of up to six months imprisonment and/or a
$3,000 fine for pattern or practice violations. Id.
5 1324a(e)(4), (f). Employers must verify the status of
every person they intend to hire after the effective date of
the act by examining certain specified documents that
establish the person's employment authorization and identi-
ty- & 5 1324a(h)(l). The IRCA eliminates the "Texas
proviso 'Iby removing the statutory language providing that
employment shall not constitute harboring an undocumented
alien. L 5 1324.
D. Plvler and an "articulable federal policy."
In Plvler the state's principle argument was that a
person's status as an undocumented alien was sufficient in
itself to authorize the state to withhold from these persons
benefits it might offer other residents of the state. 457
U.S. at 224. This argument is akin to the so-called "outlaw
theory" under which undocumented aliens, solely because they -.
have broken the immigration laws, are deemed to forfeit any
p. 4889
Mr. Pat D. Westbrook - Page 7 (JM-962)
benefits that might accrue from their unauthorized presence
in this country. See E. Hull, Without Justice for All, at
86-88 (1985). The Court acknowledged the special deference
the courts must accord congressional policy in the area of
immigration, but cautioned that the same was not true for
state policies affecting immigration:
The States enjoy no power with respect to the
classification of aliens. This power is
'committed to the political branches of the
Federal Government.* Although it is \a rou-
tine and normally legitimate part* of the
business of the Federal Government to classi-
fy on the basis of alien status, and to 'take
into account the character of the relation-
ship between the alien and this country,'
only rarely are such matters. relevant to
legislation by a State. (Citations omitted.)
457 U.S. at 225. The Court recalled that in De Canas v.
u, 424 U.S. 351 (1976), it held that the states do
possess authority to act with respect to illegal aliens, "at
least where such action mirrors federal objectives and fur-
thers a legitimate state goal." 457 U.S. 202, at 225. In
De Canas the Court upheld a California statute prohibiting
an employer from knowingly employing an alien who is not
entitled to lawful residence in this country if the hiring
adversely affects lawful resident workers. The California
law reflected Congress' intention to prohibit the employment
of ail aliens except those with a grant of permission to
work in this country. The statute was thus not preempted by
the Immigration and Nationality Act.
The Court also conceded that, despite the exclusive
federal power to control unlawful migration,
[i]n other contexts, undocumented status,
coupled with some articulable federal policy,
might enhance state authority with.respect to
the treatment of undocumented aliens . . . .
The State may borrow the federal classifica-
tion. But to justify its use as a criterion
for its own discriminatory policy, the State
must demonstrate that the classification is
reasonably adapted to 'the vurvoses for which
th state d 'r t it.' (Emphasis in
orzginal, cT%b zrnitszd.)
457 U.S. .at 226.
p. 4890
Mr. Pat D. Westbrook - Pa'ge 8 (JM-962)
The IRCA provisions described in the preceding section
mark a significant change in federal policy concerning the
employment of undocumented aliens in this country. The
legislature might enact statutes that mirror congressional
policy or it,might borrow federal classifications to promote
a legitimate state goal, but the legislature has not chosen
to adopt such a policy for the administration of the state's
vocational rehabilitation program. The legislature may not
delegate to the commission the duty to determine public
policy. See Clark v. Briscoe Irriaation Co., 200 S.W.2d 674,
684 (Tex. Civ. App. - Austin 1947, writ dism'd): The com-
mission may not impose additional burdens, conditions, or
restrictions in excess of or inconsistent with statutory
provisions. &89 Bexar Countv Bail Bond Board v. Deckard,
604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no writ).
Thus, the commission may not adopt the federal policy for
the purposes of administering its vocational rehabilitation
program. We must now consider whether the IRCA provisions
will preempt the commission8s efforts to provide vocational
rehabilitation services to undocumented aliens.
E. Undocumented aliens# eligibility to receive public
benefits.
Congress, if it so chooses, can limit an alien's access
to vocational rehabilitation services. For example, under
the Comprehensive Employment and Training Act, prior to
amendment in 1981, undocumented aliens were excluded from
the class of persons eligible to receive job training. See
20 C.F.R. 5 675.5-l(b) (1980)(current version at 20 C.F.R.
5 675.5-l(b)(1988)). Under several other programs, federal
law or regulations specify which classes of aliens are
eligible for participation. The specification of certain
classes of eligible aliens serves to exclude all other
classes, particularly undocumented aliens. See Wheeler and
Leventhal, Aliens' Riaht T Public Benefits, 20 Clearing-
house Rev. 913 (1986) a:d zuthorities cited therein. The
absence of eligibility restrictions based on alienage means
that even undocumented aliens may qualify for some forms of
public assistance.1 Id.; 59~ Attorney General Opinion
WW-1274 (1962).
1. As the result of alienage restrictions, undocu-
mented aliens are ineligible to receive assistance under the
Aid to Families with Dependent Children program, the Food
Stamp Program, federally-funded public housing, and legal
-.
(Footnote Continued)
p. 4891
Mr. Pat D. Westbrook - Page 9 (JM-962)
The passage of the IRCA did not rescind every benefit
of our laws that might accrue to an undocumented alien in an
employment context. For example, it did not repeal the
protection that undocumented aliens receive from the Fair
Labor Standards Act or the National Labor Relations Act.
pate1 v. Oualitv Inn South, 846 F.2d 700 (11th Cir. 1988).
The protection of the Occupational Safety and Health Act
extends to undocumented aliens in the workplace. &+R Hing,
Handlina Immiaration Cases 5 14.7 (1985). Undocumented
aliens may even be eligible to receive unemployment disabil-
ity benefits. L2 Our research has revealed nothing in
the IRCA or its legislative history to suggest that Congress
intended to prohibit the delivery of vocational rehabilita-
tion services to undocumented aliens. The IRCA does dis-
qualify amnesty recipients for a period of five years from
participating in many welfare programs such as Aid to
Families with Dependent Children (AFDC), the Food Stamp
Program, and Medicaid. 8 U.S.C. 5 1255a(h). Furthermore,
the IRCA requires states to verify, through the Immigration
and Naturalization Service, 'the legal status of all aliens
who apply for AFDC, Medicaid, unemployment compensation,
food stamps, housing assistance, and higher education
programs. Pub. L. 99-603, Pt. C, 5 121, 100 Stat. 3384-94
(1986).
The inclusion of unemployment compensation applicants
in the verification program is certainly indicative of an
intention to eliminate the incentive to enter this country
unlawfully for the purpose of obtaining employment. But
just as the courts doubt that undocumented aliens enter this
country for the express purpose of obtaining public benefits
(Footnote Continued)
aid services. Wheeler and L-eventhal, suvra. Undocumented
aliens are theoretically eligible to receive Supplemental
Security Income, Social Security (old age, survivors, and
disability insurance), and unemployment compensation:
however, other eligibility criteria may effectively bar
undocumented aliens from receiving such benefits. Id.
Because there are no alienage restrictions, undocumented
aliens may be entitled to receive assistance under the
Hill-Burton program, and workers' compensation and dis-
ability insurance plans. Id. As we have already seen, the
Vocational Rehabilitation Act contains no alienage-based
restrictions on eligibility.
2. Comvare note 1, suvra, regarding general unemploy-
ment benefits.
p. 4892
Mr. Pat D. Westbrook - Page 10 (JM-962)
or the protection of labor laws, B.@SPlvlert 457 U.S. at
228;
- &$g&, 846 F.2d at 704, we doubt that undocumented
aliens enter this state to avail themselves of the commis-
sion*s vocational rehabilitation program. The commission
readily concedes that it has rarely had occasion to consider
the immigration status of any applicant for its services.
If the IRCA reforms prove effective, it is likely that the
commission will seldom be confronted with this issue in the
future. Thus, we think it is significant that states are
not required to verify the legal status of alien applicants
for vocational rehabilitation services. This omission,
coupled with the absence of any alienage-based eligibility
requirement in either the Vocational Rehabilitation Act or
the Human Resources Code, effectively eliminates the commis-
sion's authority to prescribe such a qualification. see
Bexar Countv Bail Bond Board v. Deckard, m.
We recognize the obvious paradox of providing vocation-
al rehabilitation services to persons who cannot be lawfully
employed in this country. The commission has attempted to
conform to federal immigration policy by withholding its
services from undocumented aliens, see 40 T.A.C.
5 163.5(g)(5) (providing that illegal aliens are ineligible
for vocational rehabilitation services), but federal law
does not place the onus of ,compliance with immigration
policy on the commission. Rather, it is the duty of employ-
ers to verify the legal status of persons employed after the
date specified in the IRCA. Furthermore, since the IRCA
only punishes persons knowingly hiring, recruiting, or
referring undocumented aliens to employment for a fee, the
commission need not be concerned about violating federal law
by providing vocational rehabilitation services to suspected
undocumented aliens. &g 8 U.S.C. 5 1324a(s)(l). Also,
since Congress has specified those programs in which the
states are given the duty of verifying alien applicants'
status, the omission of vocational rehabilitation programs
suggests that Congress was not so alarmed by the prospect of
providing such services to undocumented aliens as to include
such programs in the verification system.. Accordingly, we
conclude that the Commission for the Blind may not deny
vocational rehabilitation services to adults who are undocu-
mented aliens. In light of this answer, we need not address
your third question.
p. 4893
Mr. Pat D. Westbrook - Page 11 (JM-962).
SUMMARY
The Texas Commission for the Blind must
provide services to visually handicapped
children eligible to receive such services
without regard to their immigration status.
The commission may not deny vocational
rehabilitation services to adults who are
undocumented aliens.
J
Very truly y
4
JIM MATTOX
Attorney General of Texas
HARYXELLER
First Assistant Attorney General
Lou KK!REARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXIEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 4894