ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
hmlaly 3,2005
The Honorable Susan Combs Opinion No. GA-0289
Commissioner
Texas Department of Agriculture Re: Whether an applicant for a commercial
Post Office Box 12847 pesticide applicator license is required to furnish
Austin, Texas 78711 a social security number for purposes of child
support enforcement (RQ-0247-GA)
Dear Commissioner Combs:
You pose numerous questions that relate to section 231.302(c)( 1) of the Texas Family Code
(hereinafter “section 231.302(c)(l)“). Your initial question is whether a commercial pesticide
applicator license is an occupational license for which submission of a social security number (or
suitable affidavit) is required under state and federal laws for purposes of child support enforcement.’
In the event the answer to the initial question is in the affirmative, and in the event an applicant for
such a license claims to have no social security number, you pose several follow-up questions. See
Request Letter, supra note 1, at l-2.
I. Backeround
The Texas Department of Agriculture (the “Department”) is the state agency responsible for
regulating pesticides and herbicides, TEX.AGFUC.CODEANN. $5 11.001,76.003 (Vernon 2004), and
licensing use ofthe same. Id. §§ 76.071, ,102, ,105. By way ofbackground, you advise us that an
individual has applied to the Department for the renewal of a commercial pesticide applicator
license. Request Letter, supra note 1, at 6 (Exhibit B). You inform us that the applicant, because
of the applicant’s religious beliefs, has not provided a social security number as required in the
license renewal application; nor has the individual executed an unqualified affidavit supplied by the
Department as an alternative to the requirement of providing a social security number attesting to
the fact that the person does not have a social security number. Id.
Section 23 1.302(c)(l), which imposes the requirement that a social security number be
provided with a commercial pesticide applicator license, was enacted to comply with the child
support enforcement provisions ofthe federal Social Security Act (42 U.S.C. 55 601-617,651-669).
‘Letter from Martin A. Hubert, Deputy Commissioner, Texas Department of Agriculture, to Honorable Greg
Abbott, Texas Attorney General (July 8,2004) (on file with Opinion Committee, also available at http://www.oag
.state.tx.us) [hereinafterRequest Letter].
The Honorable Susan Combs - Page 2 (GA-0289)
SeeTEX. FAM. CODE ANN. 3 231.302(c)(l) (v emon 2002). Section 666 of title 42, United States
Code, requires that states have in place laws requiring certain procedures, including “[plrocedures
requiring the social security number of any applicant for a professional license, driver’s license,
occupational license, recreational license, or marriage license be recorded on the application.”
42 U.S.C. 5 666(a)(13) (2000). Pursuant to that federal statute, the Texas Family Code requires that
“each licensing authority shall request and each applicant for a license shall provide the applicant’s
social security number.‘” TEX. FAM. CODE ANN. 5 231.302(c)(l) (Vernon 2002). The Department
may request a social security number in its application form. See TEX. AGRIC. CODE ANN.
9 76.108(b) (Vernon 2004) (“A person shall apply for an original or renewal commercial applicator
license on forms prescribed by the [Department].“). Both the federal and state provisions have as
their stated purpose to enhance the effectiveness ofchild support collection efforts.) The state’s Title
IV-D Agency, which is the Office of the Attorney General: may use the social security number
to enforce child support orders under section 231.302(f). TEX. FAM. CODE ANN. 5 231.302(f)
(Vernon 2002).
II. Commercial Pesticide Apolicator License as Occwational License
Your initial question is whether a “commercial pesticide applicator license [is] an
occupational license” as contemplated by federal law, 42 U.S.C. 5 666(a)(13), and state law, Texas
Family Code, section 23 1.302(c)( 1). Request Letter, supra note 1, at 1.
Section 231.302(c)(l) is not limited to occupational licenses, but instead applies to all
licenses issued by state licensing authorities. See TEX. FAM. CODE ANN. 5 23 1.302(c)(l) (Vernon
2002). It is the federal statute that specifically enumerates occupational licenses. See 42 U.S.C.
5 666(a)(13) (2000). Because neither the federal Social Security Act nor any other federal statute
define the term “occupational license ” we must look for the plain meaning of the term. See Smith
‘As the agency that issues commercial pesticide applicator licenses, the Department is a licensing authority
within the auspices of section 231.302(c)(l) of the Family Code. Section 232.001 defines licensing authority as a
“department,commission, board, off&, or other agency of the state or a political subdivision of the state that issues a
license.” TEX.FAM.CODEANN.5 232.001(2) (Vernon 2002).
‘In 1975,Congress created Child Support Enforcement(“CSE”)programs to help needy familiesby improving
child support collection. Seegenerally Mich. Dep ‘fofsiate v. UnitedStairntes, 166 F. Supp. 2d 1228 (W.D.Mich. 2001).
Congress sought to obtain the assistance of the states by paying them for participating in CSE programs. Id. at 1231.
The Federal Parent Locator Service (“FPLS”), used to track absent parents, was an important tool in interstate child
support. Id. at 1232. Initially, the FPLS contained only an individual’saddress and place of employment. Id. In 1984,
Congress added the requirement of the inclusion of the individual’s social security number. Id. The Personal
Responsibilityand Workopportunity ReconciliationActof 1996(“PRWORA”)changedtheCSEprogramsandrequired
states to collect social security numbers from applicants for differenttypes of commercial and professional licenses and
provided the ability to suspend all types of licenses of individuals owing past child support. Id. Combining new
databasescreatedby PRWORA,the social securitynumbers f’mmlicenseapplicationsandthe expandedFPLS, Congress
intended to create a rapid response and automated mechanism by which to locate and withhold wages legally obligated
for child support payments. Id. The key to the effort was the social security numbers. Id.
“‘The office of the Attorney General is designated by Texas law as the state’s Title IV-D Agency to perform
thefUnctionsandprovidetheservicesrequiredbythe SocialSecurityAct, titleIV,partD;42UnitedStatesCode $5 651,
etseq.” 1 TEX.ADMIN.CODE5 55.1 (2004).
The Honorable Susan Combs - Page 3 (GA-0289)
v. United States, 508 U.S. 223, 228 (1993) (“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.“). “‘Occupation’ as commonlyundcrstood
signified the business or activity in which a person engaged in order to secure a living or to obtain
wealth” Gennaro v. United States, 369 F.2d 106, 108 (8th Cir. 1966). “Occupational license” is
defined in a similar manner by Texas statutes. The Texas Government Code defines “occupational
license” as a “license, certificate, registration, permit, or other form of authorization, including a
renewal of the authorization, that . . a person must obtain to practice or engage in a particular
business, occupation, or profession.“5 TEX. GOV’T CODE ANN. 5 2054.25 1 (Vernon Supp. 2004-05)
(chapter 2054 relating to Information Resources). The Texas Occupations Code defines the term as
a “license, certificate, registration, permit, or other form of authorization required by law or rule that
must be obtained by an individual to engage in a particular business or occupation.” TEX. OCC.
CODE ANN. 5 58.001(7) (Vemon2004)(chaptcr58 containedin title2, “GeneralProvisionsRelating
to Licensing”). See also TTXX.HUM. RES. CODE ANN. 4 91.051(10) (Vernon 2001) (defining term
as “license, permit, or other written authorization required by a governmental unit as a condition for
engaging in an occupation”) (chapter 91 contained in title 5, “Services for the Blind and Visually
Handicapped”). All three definitions offered by Texas statutes comport with a plain-language
understanding of an “occupational license.” The definition in the Texas Government Code appears
to encompass all aspects of the other definitions, therefore we will utilize it to examine whether a
commercial pesticide applicator license is an occupational license.
“A person who operates a business or is an employee of a business that applies state-limited-
use or restricted-use pesticides or regulated herbicides to the land of another person for hire or
compensation. . . shall apply to the [Department] for a commercial applicator license issued for the
license use categories and subcategories in which the pesticide application is to be made.” TEX.
AGRIC. CODE ANN. 5 76.108(a) (Vernon 2004). The commercial application of a pesticide is a
business activity for which a license is required. Id. 5 76.105. Thus, we conclude that a license
procured to engage in the business or occupation of pesticide application is an occupational license
within the scope of 42 U.S.C. 5 666(a)(13). We now address your remaining questions.
this definition is consistent with deftitions for “occupationallicense”contained in other states’stahrks. See
GA.CODEANN.5 34-15-l(7) (2004) (“any license,permit, or other writtenauthority required by any governmental unit
to be obtained in order to engage in an occupation”); MICH.COMP.LAWSANN.5 552.602(q)(West Supp. 2004-05)(“a
certificate, registration, or license issued by a state department, bureau, or agency that has regulatory authority Overan
individual that allows an individual to legally engage in a regulated occupation or that allows the individual to use a
specific tide in the practice of an occupation, profession, or vocation”); MISS.CODEANN.5 37-33-13(h)(2003) (“any
license, permit or other written authority required by any governmental unit to be obtained in order to engage in an
occupation”); MONT.CODEANN.9 53-7-lOl(4) (2003) (“a license, permit, or other written authority required by any
governmental unit to engage in an occupation”); N.C. GEN.STAT.$15OB-2(4a)(2004) (“any certificate,permit, or other
evidence, by whatever named called, of a right or privilege to engage in a profession, occupatior&or field of endeavor
that is issued by an occupational licensing agency”).
The Honorable Susan Combs - Page 4 (GA-0289)
III. Constitutionalitv of Social Securitv Number Requirement
Because religious principle? compel the applicant’s refusal to provide a social security
number,’ we must first examine the constitutionality of 42 U.S.C. § 666 and section 23 1.302(c)(l),
Family Code, under the Free Exercise Clause of the First Amendment to the United States
Constitution.’
A. Free Exercise Clause
The Free Exercise Clause, made applicable to the states through operation of the
Fourteenth Amendment, Cantwell v. Conneckui, 310 U.S. 296 (1940), provides that “Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
U.S. CONST. amend. I. As its principal guarantee, the Free Exercise Clause guarantees individuals
the “right to believe and profess whatever religious doctrine” they desire, and prohibits
“‘governmental regulation of religious beliefs.“’ Employment Div., Dep ‘tof Human Rex of Or. Y.
Smith, 494U.S. 872,877 (1990) (quotingsherbert v. Vemer, 374 U.S. 398,402 (1963)). However,
free exercise jurisprudence has long recognized the distinction between the absolute tieedom of
individual belief and the non-absolute freedom of individual conduct. Id. at 877-79 (holding that
Free Exercise Clause did not prohibit application of Oregon drug laws to ceremonial ingestion of
peyote); see also UnitedStates Y.Lee, 455 U.S. 252,261 (1982) (“every person cannot be shielded
from all the burdens incident to exercising every aspect of the right to practice religious beliefs”).
“[T]he Free Exercise Clause is written in terms ofwhat the government cannot do to the individual,
not in terms ofwhat the individual can extract from the government,” Bowen Y.Roy, 476 U.S. 693,
700 (1986) (quoting Sherbert, 374 U.S. at 412), and “cannot be understood to require the
government to conduct its own internal affairs in ways that comport with the religious beliefs of
particular citizens.” Bowen, 476 U.S. at 699. Accordingly, the guarantee of f?ee exercise “does not
relieve an individual ofthe obligation to comply with a ‘valid and neutral law of general applicability
on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).“’ Smith, 494 U.S. at 879 (quoting Lee, 455 U.S. at 263 n.3).
6Youinformus that the applicant’sreligious beliefs prompt his refusal to provide a social securitynumber. See
Request Letter, supra note 1, at 6. In the materials you submit for OUT
review, the applicant claim his “sincerelyheld
Christian”beliefs preclude use of a social security number. Id. (Exhibit B). See, e.g., Mauldin Y Tex. State Ed. of
Plumbing Exam ‘rs,94 S.W.3d 867,870 (Tex. App.-Austin 2002, no pet.) (explaining scriptural basis for objectionsto
use of social security number).
‘The applicant’s own affidavit attests to the fact that applicant “doesnot have a valid social security number.”
Request Letter, supra note 1, at 6 (Exhibit B) (emphasis added). Nowhere in the information provided us does the
applicant unequivocally state that applicant does not have a social security number.
8ArticleI, section 6 of the Texas Constitutionprovides that “Nohuman authority ought, in any case whatever,
to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law
to any religious society OImode of worship.” TEX. CONST.art. I, 5 6. Relatively few judicial opinions have examined
the parameters of the free exercise aspect of the Texas Constitution. In Tilton v. Marshall, the Texas Supreme Court
“assme[d] without deciding that the state and federal free exerciseguaranteesare coextensive.” Tiltonv. Marshall, 925
S.W.Zd 672,677 (Tex. 1996). In this op’ mm, we assume that the Texas Constitution’s protection of tbe free exercise
of religion is coextensive with the protections afforded by the United States Constitution.
The Honorable Susan Combs - Page 5 (GA-0289)
B. Standard of Review
The right to work in a particular profession is not a tidamental right that requires
review under a strict scrutiny standard. ’ See Mauldin v. Tex. State Bd. of Plumbing Exam ‘rs,
94 S.W.3d 867, 872 (Tex. App.-Austin 2002, no pet). Instead, it is a protected right subject to
rational regulation. See id. (citing State v. Project Principle, Inc., 724 S.W.2d 387,391 (Tex.1981);
Schyhre v. Bd. ofBar Exam ‘rs ofN.M., 353 U.S. 232,239 (1957)). Although the “right to worship
without governmental restriction or compulsion is fundamental, the Supreme Court has retised to
strictly scrutinize laws that are generally applicable and neutral towardreligion yet have an incidental
effect oncertainreligious practices.” Mauldin, 94 S.W.3d at 872 (citing Smith, 494U.S. at 878-79).
“Absent proof of an intent to discriminate against particular religious beliefs or against religion in
general, the Government meets its burden when it demonstrates that a challenged requirement for
governmental benefits, neutral and uniform in its application, is a reasonable means of promoting
a legitimate public interest.” Bowen, 476 U.S. at 707-08 (plurality opinionlO holding that statutory
requirement that a state agency use a social security innnber in administering certain programs does
not violate the Free Exercise Clause, notwithstanding religious beliefs concerning use of social
security numbers); Smith, 494 U.S. at 882-90 (adopting test utilized in Bowen). Thus, the
appropriate standard of review of 42 U.S.C. 5 666 and section 231.302(c)(l) is whether the
%ndamental rights are those that arise from the express and @lied protections ofpersonal libertyrecognized
in the federal and state constitutions. See Richards v. League of United Latin Am. Voters (LULAC), 868 S.W.Zd306,
314 (Tex. 1993). Governmental enactments that impinge upon fundamental rights are reviewed under a strict scrutiny
standard of review wherein the enactment must be narrowly tailored to serve a compelling govemmental interest. See
Austin v. Mid. Chamber of Commerce, 494 US. 652, 666 (1990) (“[S]tatutory classifications impinging upon [a
fundamental] right must be narrowly tailored to serve a compelling governmental interest.“);Dunn v. Blumstein, 405
U.S. 330,342 (1972) (stating a classification involving a fundamental right must be a compelling state interest).
‘T~ecauseit was set forth in a plurality opinion, the validity of the Bowen standard has been the subjectof some
debate. However, the subsequentSmith decision adopted the standard used in Bowen. Thus, the “reasonablemeans of
promoting a legitimatepublic interest”standardis the proper standardby which to measurZfree exerciseclaimsinvolving
a facially neutral and generally applicable regulation. As one court recently explained,
In [Bowen v.] Roy, Chief Justice Burger fnst articulated a lower standard to be used with neutral,
generally applicable laws which incidentally burden religious beliefs. This standard was met when
such a law was a “reasonable means of promo$ng a legitimate public interest.” At the time of the
decision, five justices expressly rejected this standard. At that same time, the standard that was
generally applied to challengesbrought under the free exercise clause was that the First Amendment
prevented infringementson the exercise ofreligious beliefs except whenjustified by some compelling
state interest. However, in 1990 the Supreme Court in Employmenr Div., Dept. ofHuman Resources
of Oregon v. Smith, changed the standard to one akin to the one articulated in Roy, so that facially
neutral laws of general applicability would not be subject [to] this higher level of scrutiny. In
1993,in direct response to the Smith decision, the Religious Restoration Act was passed by Congress
restoring the compelling interest and least restrictive test t0 government actions which incidentally
burden religious beliefs, but in 1997, in City of Boerne Y.Flora, the United States Supreme Court
struck that law down as unconstitutional, taking us back to the law as expressed in Smith.
Kocher v. Bid&y, 722 A.2d 756,761 n.13 (Pa. Commw. Ct. 1999) (citations omitted).
The Honorable Susan Combs - Page 6 (GA-0289)
requirement that a license applicant provide a social security number is neutral and uniform in
application and is a reasonable means of promoting a legitimate public interest.”
C. Analysis ~of42 U.S.C. § 666(a)(13)
42 U.S.C. 5 666(a)(13) requires states to have a procedure in place for the acquisition
of social security numbers from applicants for certain licenses. See 42 U.S.C. 5 666(a)(l3) (2000).
A similar requirement, that applicants for federal benefits provide a social security number, has been
determined to be constitutional because the requirement was facially neutral, generally applicable
and served a legitimate and important public interest. Bowen, 476 U.S. at 708-09. In Bowen, the
requirement to provide a social security number was facially neutral and served the legitimate and
important public interest of preventing fraud in the federal benefit programs. Similarly, the
requirement in 42 U.S.C. 5 666(a)(l3) is facially neutral and generally applicable and serves the
legitimate and public interest of nationwide enforcement of child support obligations. See Yelder
Y.Homsby, 666 F. Supp. 15 l&l5 19 (M.D. Ala. 1987). Thus, in accordance with Bowen and Smith,
we conclude that the requirement of 42 U.S.C. 5 666(a)(l3) passes constitutional muster.
D. Analysis of Texas Family Code 5 231.302(c)(l)
Section 231.302(c)(l) requires the Department (as well as all other Texas agencies
offering a license) to request, and applicants to supply, the applicant’s social security number for all
license applications. The requirement that applicants provide a social security number is facially
neutral and applies to any person in Texas who applies for a license from any licensing authority.
The statute is obviously not aimed at any particular religious practice and does not attempt to
regulate religious behavior. Section 23 1.302(c)(l) IS neutral and uniform in its application.
A Texas court has already determined that section 231.302(c)(l)
is rationally related to the goal of enforcing child-support obligations.
Congress and the legislature have determined that the threat of license
denial or revocation could be useful in prodding recalcitrant child-
support obligors to pay. They have determined that collecting the
social-security numbers of license applicants will assist in enforcing
that penalty more quickly and accurately.
“The Texas Civil Practice and Remedies Code prohibits a governmental agency from substantiallyburdening
a person’s free exercise of religion unless the application of the burden is in furtherance of a compelling governmental
interest and is the least restrictive means of furthering that interest. See TEX.Cw. PRAC.& REM. CODE ANN. 5
110.003(a)-(b)(Vernon Supp. 2004-05). This statute mandates a different, and stricter, standard of review for free
exerciseclaims under Texas law. However,under the federal SupremacyClause,ifa state law conflicts with federal law,
the state law is preempted and without effect. Maryland v. Louisiana, 45 1 U.S. 725,746 (1981). A state law presents
an actual conflict when the state law would obstruct Congress’purposes and objective. Great Dane Trailers, Inc. v.
EstateofWeNs,52 S.W.3d 737,743 (Tex. 2001). Here, the comprehensivefederal Social Security Act promptedTexas
to adopt section 23 1.302(c)(1). See 42 U.S.C. 5 666(a)(13)(2000). To the extent that the stricter standard in the Texas
Civil Practice and Remedies Code would prohibit a licensing authority in Texas to withhold a license Tom a license
applicant who refused to provide a social security number, it would thwart the purpose and effect of 42 U.S.C. 5
666(a)(13),and therefore, must yield to the supremacy of the federal statute,
The Honorable Susan Combs - Page 7 (GA-0289)
Mauldin, 94 S.W.3d at 874-75 (equal protection challenge to section 23 1.302 in context ofrequiring
social security numbers for applications for plumbing license). The State of Texas has a legitimate
interest in locating absent parents and procuring from them obligated child support payments.
Requiring a social security number as a unique identifier from license applicants is a reasonable
means of promoting that interest. Accordingly, it is our opinion that section 231.302(c)(l) is
constitutional under the reasonable means to promote a legitimate interest standard enumerated
in Smith. See Smith, 494 U.S. at 882-90. Therefore, the Department may, pursuant to section
23 1.302(c)( 1) of the Family Code, require that a license applicant who has a social security number
provide that number with the application regardless of the applicant’s religious beliefs.
IV. ScoDe of Section 231.302(cM11 of the Texas Familv Code
Your numerous remaining questions regarding the scope of section 231.302(c)(l) are:
May the department require an applicant to obtain, not merely
provide, a social security number?
May TDA require or allow an applicant to submit a sworn affidavit
stating that the applicant has never been issued a social security
number, in lieu of the applicant obtaining and/or providing a social
security number?
May TDA require the applicant to submit information (e.g., birth
date) necessary to confirm the applicant’s claim that the applicant has
never been issued a social security number?
May TDA require the applicant to provide within said affidavit or
separately a release authorizing TDA to query the federal Social
Security Administration in order to confirm the applicant’s claim that
the applicant has never been issued a social security number?
May TDA require the applicant to submit a sworn affidavit in or on
a form prescribed by the department, specifically the form attached
as Exhibit A?
May TDA incorporate into the affidavit that it is submitted “under
penalty of perjury?”
May TDA continue to require an affidavit, from persons claiming to
have no social security number, during each subsequent renewal of a
person’s license to ensure that a social security number has not been
issued since the original license was issued?
May an applicant refuse to provide a social security number, or an
affidavit of no social security number in lieu thereof if such an
The Honorable Susan Combs - Page 8 (GA-0289)
affidavit is permissible or required, on the basis of religious
objections?
Apart l?om professional, recreational, driver’s or marriage licenses,
does Section 23 1.302 apply to all licenses issued by Texas agencies
or only to “occupational” licenses?
If Section23 1.302 applies only to “occupational” licenses (apart from
professional, recreational, driver’s or marriage licenses), what
constitutes an “occupational” license for purposes of Section 23 1.302
and should the department seek an opinion from your office for each
type of license we issue?
Must the department obtain SSNs from applicants that are artificial
persons, that is applicants other than sole proprietorships, such
as corporations, partnerships,, limited liability companies, and
cooperatives?
If the answer to the preceding question is affirmative, from whom
must the department obtain SSNs when the applicant is a corporation,
partnership, limited liability company, or other artificial person’2
Request Letter, supra note 1, at l-2.
There are only two Texas cases that mention section 23 1.302. SeeMauldin, 94 S.W.3d 867;
see also Vaughn v. State, No. 13-99-676-CR, 2002 WL 1380382 (Tex. App.-Corpus Christi June
27,2002) (not designated for publication). Neither opinion provides much guidance with respect
to your remaining questions. Because section 231.302(c)(l) was adopted on the mandate of
42 U.S.C. 5 666(a)(13) to “assist in the administration of laws relating to child support enforcement
under Parts A and D of Title IV of the federal Social Security Act,” TEX. FAM. CODE ANN.
231.302(c)(Vemon2002),wetreatsection231.302(c)(1)and42U.S.C. § 666(a)(13) togetherwhere
appropriate. See, e.g., Tex. Att’y Gen. Op. No. JC-0409 (2001) (construingtheDepartment ofPublic
Safety’s authority to require a social security number under section 23 1.302 of the Family Code in
light of 42 U.S.C. 5 666).
A. Requirement That Applicant Obtain Social Security Number
We believe a prior opinion from this office addresses your question as to whether the
Department may require an applicant for a license to obtain a social security number. In Attorney
General Opinion JC-0409, this office concluded that an individual applicant for a Texas driver’s
license is not required to have a social security number as a condition of receiving a driver’s
license.” Tex. Att’y Gen. Op. No. JC-0409 (2001) at 1. As you point out in your letter, JC-0409
?bis off& has also previously opined that section 11.15(b),Texas Family Code, requiring a social security
number be included in a decree in a suit affectingthe parent-childrelationship, does not require parties to such a suit to
obtain a social security number. Tex. Att’y Gen. Op. No. M-159 (1984) at 2.
The Honorable Susan Combs - Page 9 (GA-0289)
relies, in large part, on Policy Interpretation Question PIQ-99-05, a memorandum of the United
States Department of Health and Human Services, Office of Child Support Division, (“HHS”)”
which states that 42 U.S.C. § 666(a)( 13) should not be interpreted to mean that a person must obtain
a social security number in order to obtain a license. Request Letter, supra note 1, at 3. PIQ-99-05
instead suggests that states may require persons who do not have a social security number to submit
a “sworn affidavit, under penalty of perjury . . . stating that they do not have a social security
number.” PIQ-99-05, supra note 13. While you question the analytical rigor of PIQ-99-05, Request
Letter, supra, note 1, at 3-4, we decline to second-guess the interpretation of 42 U.S.C. 5 666(a)( 13)
by the statute’s implementing agency. See Tex. Att’y Gen. Op. No. JC-0330 (2001) at 2 (“[S]o long
as [an agency’s] interpretation . is a reasonable one that does not do violence to the statutory
language, this office will defer to it.“); Tex. Att’y Gen. LO-94-041, at 3 n. 1 (“This offtce defers to
the [federal agency’s] interpretation.“).
The intent of 42 U.S.C. 5 666(a)(l3) is to collect social security numbers to aid in child
support enforcement efforts, see Mich. Dep ‘tofState v. United States, 166 F. Supp. 2d 1228,123 l-
32 (W.D. Mich. 2001), not to add prerequisites to states’ licensing requirements. Similarly, it is
apparent that, instead of intending to add additional prerequisites to all license applications in the
StateofTexas, section23l.302(c)(l)isthemechanismemployedbyTexas tocomplywith42U.S.C.
5 666(a)(l3). See TEX. FAM. CODE ANN. $ 231.302(c)(l) (Vernon 2002) (“To assist in the
administration of laws relating to child support enforcement under Parts A and D of Title IV of the
federal Social Security Act[.]“). Attorney General Opinion JC-0409 is consistent with the opinions
of attorneys general horn other states, who have likewise concluded that a social security number
is not required as a condition of receiving licenses. See N.D. Op. Att’y Gen. No. F-10 (2002) at 2
(followingthe suggestioninPIQ-99-05 andopiningthat asocial securitynumberisnot aprerequisite
for application for marriage license); Ala. Op. Att’y Gen. No. 2002-271 (2002) at 3 (“we continue
to interpret [42 U.S.C. 5 666(a)(l3)(A)] as meaning states are to have in place a process to obtain
and record a social security number when one has been assigned by the Social Security
Administration and that this provision does not authorize or require social security numbers to be
assigned.“‘4); Va. Op. Att’y Gen. 124 (1999) at 2 (Virginia statute does not “contemplate that
applicants must obtain a [social security] number before applying for a marriage license”). We
consequently conclude that because a social security number is not a prerequisite to obtaining a
license under 42 U.S.C. 5 666(a)(l3), it is not a prerequisite to obtaining a license under section
23 1.302(c)( 1) of the Texas Family Code. Accordingly, the Department may not rely on either statute
to require an applicant for an occupational license to obtain a social security number.”
“Memorandum from David Gray Ross, Commissioner, Office of Child Support Enforcement, to State N-D
Directorsand RegionalProgramManagers (July 14,1999), available (ithttp://www.acf.hhs.gov/programs/cse/poVP
piq-9905.hhn [hereinafterPIQ-99-051.
‘*Quotingletter from Jo Anne B. Barnhart, Commissioner,Social SecurityAdministration,to Don Siegelman,
Governor, State of Alabama (Feb. 4,2002).
‘?Ve bring to your attention an observation from a Florida Attorney General opinion that 42 U.S.C. 5
666(a)(13) also requires that a social securitynumberbe recorded on death certificates. See Fla. AG 97-74 (1997). The
opinion notes that “‘therewill be instances where people have died who have no social security number, and it would
be absurd to read the federal act as preventing a state from issuing a death certificate in those instances.” Id. at 3. It
would be similarly absurd to require the estate of a deceased person who has no social security number to apply for one
in order to procure a death certificate. Id.
The Honorable Susan Combs - Page 10 (GA-0289)
B. Sworn Affidavit in Lieu of Social Security Number
You also ask whether the Department may allow or require an applicant to submit a
sworn affidavit stating that the applicant has never been issued a social security number. See
Request Letter, supra note 1, at 1. You recite that the Department currently allows an applicant to
submit such an affidavit in lieu of providing a social security number. Id. at 5. Again, we defer to
the interpretation of 42 U.S.C. 5 666(a)(13) by the HHS. In PIQ-99-05, HHS expressly suggested
such an affidavit for those individuals who have no social security number. See PIQ-99-05, supra
note 13. Moreover, the Texas Department of Agriculture has authority to promulgate forms by
which applicants apply for a license. See TEX. AGRIC. CODE ANN. 5 76.108(b) (Vernon 2004).
Accordingly, we conclude that the Department may require, or allow, an affidavit stating that the
applicant has no social security number in lieu of the applicant providing a social security number.
C. Verification of Claim of No Social Security Number
We address your next two questions together. You inquire whether the Department
can require information that would allow the Department to verify the applicant’s claim of having
no social security number and whether the Department may require a separate affidavit or release
authorizing the Department to verify an applicant’s claim directly with the Social Security
Administration. See Request Letter, supra note 1, at 1-2.
We assume that the Department would seek to impose one or both of these requirements by
rule. Thus, we must examine whether the Department’s rulemaking authority would encompass
these two requirements.
As an administrative agency, the Department has only those powers expressly conferred on
it by statute and those implied powers necessary to accomplish its duties. Pub. Util. Comm ‘n v. City
Pub. Serv. Bd. ofSun Antonio, 53 S.W.3d 310,315 (Tex. 2001). The Department may adopt only
rules that are “authorized by and consistent with its statutory authority.” R.R. Comm ‘n 0fTe.x. v.
LoneStar Gas Co., 844 S.W.2d 679,685 (Tex. 1992). In deciding whether an agency has exceeded
its rulemakingpowers, the determinative factor is whether the rule’s provisions are “in harmonywith
the general objectives of the act involved.” Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717,
750 (Tex. 1995); see also Tex. Att’y Gen. Op. No. GA-0212 (2004) at 5.
The Department, working under the supervision of the agriculture commissioner, is
“responsible for exercising the powers and performing the duties assigned to the department by this
[agriculture] code or other law.” TEX. AGRIC. CODE ANN. 5 11.001 (Vernon 2004) (emphasis
added). The Department “may adopt rules as necessary for the administration of its powers and
duties under this code.” Id. 5 12.016. Section 23 1.302(c)(l) of the Family Code is “other law” that
imposes a duty on the Department. It imposes a mandatory duty on the Department, as a licensing
authority, to “request an applicant’s social sccuritynumber”in connection with license applications.
TEX. FAM. CODE ANN. 5 231.302(c)(l) (V emon 2002). Pursuant to its rulemaking authority in
section 12.016 of the Agriculture Code, the Department may adopt rules to carry out this duty, TEX.
AGRIC. CODE ANN. 5 12.016 (Vernon 2004), so long as the rules are in harmony with the general
The Honorable Susan Combs - Page 11 (GA-0289)
objectives ofsection231.302(~)(1). SeeMeno, 917 S.W.2d at 750; seealso Tex. Att’yGen. Op. No.
GA-0212 (2004) at 5.
As we stated earlier, section 231.302(c)(l) was adopted in response to federal legislation
(42 U.S.C. 5 666) designed to improve child support collection efforts. See supru, note 3. The
requirement of the social security number is critical to the effort to collect child support obligations
across state lines because it is a unique identifier. Id. The requirement of 42 U.S.C. $ 666(a)(13)
and section 231.302(c)(l) that social security numbers be provided in connection with license
applications is designed to provide leverage to child support enforcement agencies. See I&&din,
94 S.W.3d at 875. Such agencies (the Office ofthe Attorney General is the Title TV-D child support
enforcement agency in Texas) can use the threat of license suspension to induce child support
obligors to fultilltheirchild support obligations. Id.; see also TEX.FAM. CODE ANN. 5 232.001-,016
(Vernon 2002 & Supp. 2004-05); 42 U.S.C. 5 666(a)(3)(C), (16) (2000); Mich. Dep ‘tofStute, 166
F. Supp. 2d at 1232 (citing Pub. L. No. 104-193, 5 369, 110 Stat. 2105, 2251 (1996)). The
enforcement agency needs a unique identifier such as a social security number, required by section
231.302(c)(l), to connect child support obligors to license applicants. A rule adopted by the
Department seeking to ensure the veracity of an applicant’s claim of having no social security
number would be in harmony with the purpose of section 231.302(c)(l) and can, we think, be
implied from the Department’s express statutory responsibility. Accordingly, we conclude that the
Department has the authority to require information from a license applicant that would allow the
Department to verify a claim that the applicant has no social security number. For the same reason,
we also conclude that the Department has authority to require an applicant to execute a release
authorizing the Department to verify with the Social Security Administration a claim that the
applicant does not have, and has not applied for, a social security number.
D. Form of Affidavit/Penalty of Perjury
You next inquire about the Department’s authority to require an applicant to submit
an affidavit in or on a form prescribed by the Department. An affidavit is a written statement of a
fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths,
and certified to by the officer under his seal of office. See Perkins v. Crittenden, 462 S.W.2d 565,
567 (Tex. Crim. App. 1970); TEX. GOV’T CODE ANN. 5 312.01 l(1) (Vernon 1998). The sample
affidavit you submitted appears on its face to incorporate statutes cited and legal conclusions reached
herein, and to this extent is not inconsistent with the principles stated in this opinion. The specific
wording of the aftidavit within these legal guidelines is a matter for the Department. See TEX.
AGRIC. CODE ANN. 5 76.108(b) (Vernon 2004).
E. License Renewal Application
You also seek our opinion as to whether the Department may continue to require an
affidavit from individuals claiming to have no social security number when they submit subsequent
license renewal applications. See Request Letter, supru note 1, at 2. “Our objective when we
construe a statute is to determine and give effect to the legislature’s intent.” Richardson v. Monts,
81 S.W.3d 889,892 (Tex. App.-Austin 2002, pet. denied) (citing LibertyMut. Ins. Co. v. Garrison
The Honorable Susan Combs - Page 12 (GA-0289)
Contractors, Inc., 966 S.W.2d 482,484 (Tex. 1998)). “A fundamental rule of statutory construction
is [to] first ascertain the legislature’s intent in enacting the statute as expressed in its plain
language.” Id. Section 231.302(c)(l) re q uires that the Department request a license applicant’s
social security number. TEX. FAM. CODE ANN. 5 231.302(c)( 1) (Vernon 2002). The plain language
of section 231.302(c)(l) does not differentiate between an application for an initial license and an
application for the renewal of a license. Accordingly, we conclude that the Department is required
to request a social security number fin conjunction with each license application, whether the
application is one for an initial license or one for the renewal of a license. Similarly, where an
applicant claims to have no social security number, the Department may require the applicant to
provide an affidavit attesting to that fact in connection with any license application.
This conclusion comports with the purpose of section 231.302(c)(l), which is to provide
accurate identification information to the child support enforcement agency of the state. As
circumstances change, a license holder may become a child support obligor after receiving an initial
license. Additionally, a person obtaining an initial license based on an affidavit may subsequently
be assigned a social security number. A requirement that a social security number, or affidavit in
lieu thereof, be required for license renewal applications promotes the purpose of section
23 1.302(c)( 1) by providing current information to the child support enforcement agency.
F. Refusal to Provide Social Security Number or Affidavit
You also inquire whether an applicant may refuse to provide a social security number,
or an affidavit of no~~social security number in lieu thereof if such an affidavit is permissible or
required, on the basis of religious objections. Provision of a social security number by an applicant
in a license application is a prerequisite of section 231.302(~)(1).‘~ See TEX. FAM. CODE ANN.
3 23 1.302(c)( 1) (Vernon 2002). Recognizing that an individual cannot supply what that person does
not have, we have concluded that an affidavit attesting to the fact than an individual does not have
a social security number could be submitted in lieu of a social security number. Because we have
concluded that 42 U.S.C. 5 666(a)(13) and section 231.302(c)(l) are constitutional, we finther
conclude that a licensing authority may withhold a license from an applicant who has a social
security number and refuses to provide it because of religious beliefs, or for the same reason refuses
to provide an unqualified affidavit averring that the individual has no social security number. See
TEX.FAM.CODEANN. §231.302(c)(l)(V emon 2002); see&o Tex. Att’y Gen. LO-96-093 (opining
that tax assessor-collector may refuse to issue a certificate of title receipt to an applicant who refuses
to disclose his or her social security number).
Although the First Amendment does not preclude the Department Tom withholding a license
due to an applicant’s refusal to submit a social security number due to religious beliefs, the federal
Privacy Act of 1974 (the “Privacy Act”) is relevant to a licensing agency’s authority in this regard.
Pursuant to section 7(A)(l) of the Privacy Act, it is “unlawful for any federal, state or local
government agency to deny to any individual any right, benefit or privilege provided by law because
‘?bis does not conflict with our conclusion that an individual does not have to obtain a social securitynumber
in order to apply for a license. See supra p. 9. Where an applicanthas a social security number, section 23 1.302(c)(1)
requires the applicant provide it.
The Honorable Susan Combs - Page 13 (GA-0289)
of such individual’s refusal to disclose his social security account number.” Privacy Act of 1974,
Pub. L. No. 93-579, 3 7(A)(l), 88 Stat. 1896 (1974), reprinted in 5 U.S.C.A. § 552a note (West
1996). However, the prohibition does not apply “with respect to . any disclosure which is required
by federal statute.” Id. 5 7(A)(2)(A). 42 U.S.C. 5 666(a)(l3) is a federal statute that clearly falls
within the exemption in the Privacy Act. SeeZn reRausch, 197 B.R. 109,120 (Bar&r. D. Nev. 1996)
(provision of Bankruptcy Code is federal statute exempted from Privacy Act); Mullamy v. Woods,
158 Cal. Rprtr. 902 ,906 (Cal. Ct. App. 1979) (holding federal regulations requiring social security
numbers for eligibility for Aid to Families with Dependent Children Act benefits did not violate
Privacy Act); Chambers v. Klein, 419 F. Supp. 569, 580 (D. NJ. 1976) (Aid to Families with
Dependent Children Act regulations issued pursuant to federal statute and thus come within federal
statute exception of Privacy Act). Because Texas adopted section 23 1.302(c)( 1) on the mandate of
the federal statute, we conclude that, to u limited extent, the exemption in the Privacy Act applies
in this instance. The limitation stems from the scope of the two statutes. The federal statute,
42 U.S.C. 5 666(a)(l3), has a narrow scope and requires social security numbers only from
applicants for professional, driver’s, occupational, recreational, or marriage licenses. 42 U.S.C.
5 666(a)(l3) (2000). Section 231.302(c)(l) has a broader scope and requires a social security
number from all license applicants. TEX. FAM. CODEANN. § 23 1.302(c)(l) (Vernon 2002). Because
the federal statute is narrower in scope than section 231.302(c)(l), we must conclude that the
“federal statute” exemption in the Privacy Act can include section 23 1.302(c)(l) only to the extent
it is coextensive with 42 U.S.C. 5 666(a)(l3).
Therefore, where an applicant for a professional, driver’s, occupational, or recreational
license” refuses to provide a social security number, or affidavit in lieu thereof, the respective
licensing authority (in this case the Department) may deny a license to that applicant. Because of
the Privacy Act, licensing authorities in Texas that issue licenses other than ones enumerated in
42 U.S. C. j 666(a)(l3) must request a social security number as directed by section 23 1.302(c)(l),
but may not deny a license to an individual who refuses to provide a social security number or
affidavit.
G. Type of Applications
Regarding the general scope of section 23 1.302(c)( 1), you inquire whether it applies
to all licenses (aside from professional, recreational, driver’s, or marriage licenses) issued by Texas
agencies or only to “occupational” licenses. As we discussed above, section 231.302(c)(l), in
contrast to 42 U.S.C. 9 666(a)(l3), does not enumerate the different types of licenses for which an
applicant must provide a social security number. Instead, section 23 1.302(c)( 1) requires “each
licensing authority” to request a social security number from “each [license] applicant.” TEX. FAM.
CODE ANN. 5 23 1.302(c)(l) (Vernon 2002). By its plain language, section 231.302(c)( 1) applies to
all licensing authorities in Texas irrespective of the type of license issued. Richardson, 81 S.W.3d
at 892 (“A fundamental rule of statutory construction is that a court should first ascertain the
legislature’s intent in enacting the statute as expressed in its plain language.“). Accordingly, Texas
licensing authorities must request social security numbers from all license applicants.
“We do not include marriage licenses in this list because the right to many is a fundamental right and garners
a heightened level of scrutiny. Zablockiv. Redboil,434 U.S. 374,383-87 (1978).
The Honorable Susan Combs - Page 14 (GA-0289)
We point out here that the difference in scope between 42 U.S.C. 5 666(a)(l3) and section
23 1.302(c)( 1) does not alter the requirement that a state licensing authority must request, and an
applicant provide, a social security number. It only limits a licensing authority’s ability, as a result
of the Privacy Act, to deny a license application Tom individuals who refuse to provide a social
security number.
H. Occupational License
Perhaps in anticipation of our conclusions above regarding the scope of section
231.302(c)(l), you ask “if section 231.302 applies only to ‘occupational’ licenses . , what
constitutes an ‘occupational’ license.” Request Letter, supru note 1, at 2. We do not conclude that
section 231.302(c)(l) applies only to occupational licenses. Instead, we conclude, because of the
Privacy Act and the difference in scope between section 231.203(c)(l) and 42 U.S.C. 5 666(a)(l3),
that a licensing authority may only withhold or deny professional, driver’s, occupational, or
recreational licenses t?om applicants who refuse to provide a social security number or affidavit.
From your question, we assume that the Department is not concerned about the issuance of
professional, driver’s and recreational licenses, but only about occupational licenses. We think the
heart ofthe Department’s question is, ofthe different types of licenses the Department issues, which
constitute occupational licenses that may be denied an applicant when the applicant refuses to
provide a social security number or affidavit.
Your initial question inquired about whether a commercial pesticide applicator license was
an occupational license. See supru pt. II, at 3-4. Because federal statues do not define the term
“occupational license,” we examined definitions offered by Texas statutes and concluded the Texas
Government Code definition provides a plain-language definition of the term. Id. We believe that
definition answers this more general question about what constitutes an “occupational license.” For
purposesof42U.S.C. 3 666(a)(l3) andsection231,302(c)(l), an “occupational license” is a license,
certificate, registration, permit or other form of written authorization, including a renewal of the
authorization, that a person must obtain to practice or engage in a particular business, occupation or
profession. We leave it to the Department to determine which of the licenses issued by the
Department fall within that definition.
I. Applications from Artificial Persons”
Finally, you inquire whether the Department must obtain social security numbers
from applicants that are artificial persons, other than sole proprietorships, such as partnerships,
corporations or other artificial persons. Section 666(a)( 13) and section 231.302(c)( 1) do not provide
the answer to your question. Therefore, in order to answer this inquiry we look to the purpose of
42 U.S.C. $ 666(a)(l3) and section 231.302(c)(l), both ofwhich aim to improve the collection of
child support. Because artificial persons do not have children and are not responsible for their
support, there is no reason under these provisions to collect a unique identifier from artificial persons
to share with the child support collection agency. We conclude that the Department is not required
“We construe your question about artificial persons to refer to entities, such as corporations, “createdby law
and given certain legal rights and duties of a human being.” BLACK’LAWS DICTTONARY 1162 (7th ed. 1999).
The Honorable Susan Combs - Page 15 (GA-0289)
to obtain social security numbers from such artificial persons. We note that the Social Security
Administration does not assign a social security account number to an artificial person. See
20 C.F.R. 9 422.104(a) (2004) (persons eligible for assignment of social security number).
Consequently, we do not address your final question.”
‘%‘yourfoal question is “[i]f the answer to the preceding question is affitive, from whom must the
Department obtain SSNs when the applicant is [an artificial person].” Request Letter, supra note 1, at 2. Because we
answer the preceding question in the negative, we do not arrive at this question.
The Honorable Susan Combs - Page 16 (GA-0289)
SUMMARY
A commercial pesticide applicator license is an occupational license under 42
U.S.C. 5 666(a)(13).
The requirement in 42 U.S.C. $666(a)(13)(A) and section 231.302(c)(l) of
the Texas Family Code that a license applicant provide a social security number in
conjunction with a license application is neutral and uniform in its application
and is a reasonable means of promoting a legitimate public interest. It does not,
therefore, violate free exercise of religion guarantees in the United States and Texas
Constitutions.
42 U.S.C. 5 666(a)(13)(A) and section 231.302(c)(l) do not give the Texas
Department of Agriculture (the “Department”) authority to require an applicant who
does not have a social security number to obtain one before making application for
a license.
The Department may require an applicant to provide an unqualified affidavit
swearing to the lack of a social security number. An affidavit in lieu of a social
security number may also be required in connection with renewal licenses. The
Department has authority to promulgate an affidavit that is not inconsistent with the
statutes, cites, and legal conclusions reached in this opinion.
The Department has authority to take certain steps, such as requiring
additional information from an applicant or requiring an applicant to authorize
independent verification with the Social Security Administration, in order to verify
the applicant’s claim of having no social security number.
An applicant for a professional, driver’s, occupational, or recreational license
who refuses to provide a social security number or affidavit in lieu of a social
security number may be denied the license. For purposes of determining what
licenses a licensing authority may deny an applicant, an “occupational license” is a
license, certificate, registration, permit or other form of written authorization,
including a renewal of the authorization, that a person must obtain to practice or
engage in a particular business, occupation or profession.
Section 231.302(c)(l) of the Texas Family Code requires licensing
authorities, with respect to all licenses, to request a social security number from
applicants.
Social security numbers are not required from license applicants that are
artificial persons.
Very truly yours,
The Honorable Susan Combs - Page 17 (GA-0289)
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee
Untitled Texas Attorney General Opinion
Combined Opinion