Untitled Texas Attorney General Opinion ( 1973 )

November 21, 1973
The Honorable David Wade Opinion No. H- 156
Commissioner
Department of Mental Health and Re: Effect of Vaughan v.
Mental Retardation Bower, 313 F.Supp. 37,
Box 12668, Capitol Station on residency require-
Austin, Texas 78711 ments of various statutes
having to do with mental
health and mental retard-
Dear Commissioner Wade: ation.
You have asked our opinion on several questions haying to do with
admission requirements to State hospitals and schools under the jurisdiction
of your department in light of the decision in Vaughan V. Bower, 313 F. Supp.
37 (D, Akiz. 1970), affirmed without opinion, 400 U.S. 884 (1970).
The Vaughan decision concerned’an Arizona statute which permitted
the superintendent of a state hospital for mental patients to return “non
resident” patients to the home of known relatives or friends or to proper
authorities in the state of his residence, defining a “non resident” as a
person who had not resided in the state continuously for at least one year
prior to admittance to the facility. Relying upon Shapiro V. Thompson, 394
U.S. 618 (1969), the court held that, in the absence of a compelling state
interest, the statute set up an “invidious classification” penalizing the exer-
cise of the federally protected, fundamental right to travel, and was uncon-
stitutional as violating the Equal Protection Clause of the Fourteenth Amend-
ment to the Constitution.
Your first question asks, “What are the residency requirements, if
any, for admission to a Texas state school for the mentally retarded?”
Article 387113, Vernon’s Texas Civil Statutes, is The Mentally Retarded
Persons Act. Generally, it provides for admission to a state school in one
of two ways - either judicially (§ 5 5-8) or voluntarily (§ 9). There is no
specific requirement that a mentally retarded person be a resident or citizen
p. 723
The Honorable David Wade, page 2 (H-156)
of Texas to be admitted to a State school. Texas “citizenship” is required
for admission to a State diagnostic center, and “Texas citizen” is defined
in $3(2) is a way which would seem to be invalid under the Vaughan decision.
Unless otherwise compelled to do so, we should not read into the require-
ments for admission to a State school one which would raise serious ques-
tions concerning the Act’s constitutionality. Newsom v. State, 372 S. W.
2d 681 (Tex. Grim. 1963) ; Alobaidi v. State, 433 S. W. 2d 440 (Tex. Grim.
1968),cert den., 393 U.S. 943 (1968).
Section 2 of the Act provides:
“It is the purpose of this Act to afford
mentally retarded Texas citizens an -opportunity
to develop to the fullest practicable extent their
respective mental capacities. ” (emphasis added)
This, in our opinion, does not establish a requirement of citizenship
or residence.
It is our opinion, therefore, that Article 3871b. V. T. C. S., imposes
no residency requirements on admission to a Texas state school for the
mentally retarded. However, our answer is rendered academic by 5 2(e)
of the. Special Provisions Relating to Institutions, etc., of the Appropriation
Act for fiscal 1974-197.5 (House Bill 139, 63rd Leg., p. U-70) that:
“None of the moneys appropriated to the . . . Depart-
ment of Mental Health and ~Mental Retardation . . .
may be expended for the training or medical treatment
except in emergencies of any student or patient who is
not a citizen or resident of this state. . . . ”
If “citizen” is intended to exclude a resident alien, it violates the
Equal Protection Clause of the Fourteenth Amendment to the Constitution
of the United States. Graham v. Richardson, 403 U.S. 367 (1971).
However, we cannot say that a compelling state interest in limiting
such admittance to bona fide ” residents” could not be demonstrated. “Resi-
dency” in that sense connotes a union of volition, intention and action. m
p. 724
The Honorable David Wade, page 3 (H-156)
v. Bartlett, 377 S. W. 2d 636 (Tex. 1964). Compare Paudler v. Paudler,
185 F. 2d 901 (5th Cir. 1950), cert. den. 341 U.S. 920 (1951). Distinctions
designed to preserve state supported facilities for bona fide residents of
the state are not necessarily invidious. See Toomer v. Witsell, 334 Il. S.
385 (1948); Blake v. McClung, 172 U.S. 239 (1898); American Commuters
Association v. Levitt, 279 F. Supp.,40 (S.D.N.Y. 1967). aff’d 405 F. 2d
1148 (2d Cir. 1969). Vaughan only condemns arbitrary durational require-
ments to establish residency.
Therefore, however we may construe Article 3871b, there are no
funds available to support the admission of non resident students and the
answer to ,your first question must be that, except in emergencies, persons
who are not bona fide residents of Texas should not be admitted to a Texas
school for the mentally retarded.
.Your other two questions, raising similar inquiries concerning the
provisions of b 2.20 of Article 5547-282,and Article 5547-16, V. T. C.S., are:
“2. What are the residency requirements with
respect to the application of the provisions of Article
5547-202, Section 2.‘20 :. . .?
“3. What~ are the residency requirements with
.~ respect to the application of the provisions of Article
5547-16 . . . . ?~”
Article 5547-16(a), part of the Mental Health Code adopted in 1957
(Acts 1957. 55th Leg., p. 505, ch. 243), provides that the Board for Texas
State Hospitals and Special Schools may return a nonresident patient committed
to a me&al hospital in Texas to a proper agency of the state of his residence.
“Resident” is defined [Article 5547-4(n), V. T. C. S.] as a person who has lived
in Texas continuously for a period of one year or more and who has not acquired
a residence in another state by living there continuously for one year subsequent
to his residence in Texas.
It is our opinion that Article 5547-16, V. T. C. S., insofar as it incorpo-
rates the definition of “resident” found in Article 5547-4(n), V. T. C. S., is
p. 725
The Honorable David Wade, page 4 (H-156)
unconstitutional and unenforceable under the rationale of the Vaughan case.
Our opinion would result in removing from the statute any requirement
that a person becomes a resident entitled to hospitalization only by living
in the state continuously for a period in excess of one year.
Section 2.20 of Article 5547-202, V. T. C.S., the statute creating
the Texas Department of Mental Health and Mental Retardation, provides
in its Subsection (a) :
“The Department may return a non-resident
mentally retarded person committed to a facility
for thementally retarded in this state to the proper
agency of the state of his residence.”
“Non-resident” is not defined. We construe it to mean a person who is not
a bona fide resident, regardless of length of residence. The state may order
all patients or students in those institutions, who are not bona fide residents,
sent back to the state d which they are bona fide residents.
SUMMARY
Non residents of the State may not be admitted to
a Texas state school for the mentally retarded. Under
§ 2.20 of Article 5547-202, V. T. C.S., a student in such
a school, who is not a bona fide resident of Texas, may
be returned to the State of his residence. Similarly,
under Article 5547-16, V. T. C. S., a patient in a mental
hospital who is not a’bona fide resident of Texas, may
be returned to the State of his residence.
However, in no event may the status of the person
as a bona fide resident be made to depend solely upon
his residence in this State for one year or more. Such
a requirement, under Vaughan v. Bower, supra, would
violate the Equal Protection Clause of the Fourteenth
Amendment.
Attorney General of Texas
p; 726
The Honorable David Wade, page 5 (H-156)
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 727