,
27, 1988
Honorable Kent A. Caperton Opinion No. JM-924
Chairman
Jurisprudence Committee Re: Whether section 81(a)(9)
Texas State Senate of the Probate Code, which
P. 0. Box 12068 requires an applicant for
Austin, Texas 78711 probate of a will to disclose
his social security number,
conflicts with section 7 of
the Federal Privacy Act
(RQ-1326)
Dear Senator Caperton:
you request an opinion concerning the constitutionality
of section 81 (a)(9) of the Probate Code, which was adopted
by House Bill No. 364 of the 70th legislature. Section
81(a) of the Probate Code now reads in part:
(a) For Probate of a Written Will. A
written will shall, if within the control of
the applicant, be filed with the application
for its probate, and shall remain in the
custody of the county clerk unless removed
therefrom by order of
application for probatea %"?rwr~~%* wit?
shall state:
. . . .
(9) The social securitv number of the
annlicant and of the decedent.
The foregoing matters shall be stated and
averred in the application to the extent that
they are known to the applicant, or can with
reasonable diligence be ascertained by him,
and if any of such matters is not stated or
averred in the application, the application
shall set forth the reason why such matter is
not so stated and averred. (Emphasis added.)
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Honorable Kent A. Caperton - Page 2 (JM-924)
Acts 1987, 70th Leg., ch. 463, $1, at 4082. The underlined
provision was adopted by the 70th legislature. YOU ask
whether this provision is in conflict with section 7 of
Public Law 93-579, the Federal Privacy Act.
Section 7 of the Federal Privacy Act states as follows:
(a)(l) It shall be unlawful for any
Federal, State or local government agency to
deny to any individual any right, benefit, or
privilege provided by law because of such
individual's refusal to disclose his social
security account number.
(2) the provisions of paragraph (1) of
this subsection shall not apply with respect
to --
(A) any disclosure which is required by
Federal statute, or
(B) the disclosure of a social security
number to any Federal, State, or local
agency maintaining a system of records in
existence and operating before January 1,
1975, if such disclosure was required under
statute or regulation adopted prior to such
date to verify the identity of an indivi-
dual.
(b) Any Federal, State, or local govern-
ment agency which requests an individual to
disclose his social security account number
shall inform that individual whether that
disclosure is mandatory or voluntary, by what
statutory or other authority such number is
solicited, and what uses will be made of it.
Act of Dec. 31, 1974, P.L. 93-579, § 7, 88 Stat. 1905, as
amended by Act of June 1, 1977, P.L. 95-38, 91 Stat. 179
(reprinted at 5 U.S.C.A. 5 552 historical note).
The adoption of section 7 was prompted by congressional
apprehension about the possible development of a national
data bank or other information system that would allow
speedy retrieval of all personal information about an indi-
vidual. S. Rep. No. 93-1183, 93d Cong. 2d Sess. reDrinted
b 1974 U.S. Code Cong. 8 Admin.. News 6916, 6943-44. A
common numerical identifier, such as a social security
account number, would be an essential feature of such a
p. 4635
,
Honorable Kent A. Caperton - Page 3 (JM-924)
system. The social security number had been the common
number most used by governmental agencies and private
entities in recent years. Id.
Section 7 prohibits states from denying to an individ-
ual "any right, benefit, or privilege provided by lawl'
because of his refusal to disclose his social security
number. Section 7 sets out two exceptions to the prohibi-
tion. Subsection (2)(A) of section 7 permits disclosures
required by federal statute. Section 405(c)(2)(C)(i) of
title 42 permits states and political subdivisions to use
social security numbers for identification "in the adminis-
tration of any tax, general public assistance, driver's
license, or motor vehicle registration law within its
jurisdiction" and to require individuals affected by such
laws to furnish their social security numbers to the state.
See also Green v. Philbrook 576 F.2d 440 (2d Cir. 1978)
(federal law requires applicints for and recipients of Aid
to Families with Dependent Children to furnish social
security numbers). Section 81(a)(9) was adopted to assist
courts to determine the relationships between applicants and
decedents and the identity of applicants and decedents.
Bill Analysis, Tex. H.B. 364, 70th Leg. (1987). The federal
statute does not authorize the use of social security
numbers for this purpose. Thus, section 81(a)(9). of the
Probate Code is not authorized by section 405(c)(2)(C)(i) of
title 42.
Nor is the amended section 81(a)(9) of the Probate Code
a statute adopted prior to January 1, 1975. Therefore, it
is not within the exemption found in subsection 2(B) of
section 7, which allows the state to require disclosure of
social security numbers to an agency in operation before
January 1, 1975, if the disclosure was required by a statute
adopted before that date.
To the extent section 81(a)(9) of the Probate Code is
inconsistent with section 7 of the Federal Privacy Act, it
will be invalid under the supremacy clause of the United
States Constitution. U.S. Const. art. VI, cl. 2. Section 7
of the Privacy Act prohibits a state from denying an indivi-
dual a right, benefit, or privilege provided by law because
of his refusal to disclose his social security account
number. Therefore, an application for probate of a will may
not be denied based on the applicant's refusal to supply his
own social security number. The state may request that he
disclose his social security number, informing him that the
disclosure is voluntary, and providing the other information
required by section 7(b) of the Privacy Act. See u enerally
Yeaaer v. Hackensack Water Co., 615 F.Supp. 1087 (D.N.J.
p. 4636
Honorable Kent A. Caperton - Page 4 (JM-924)
1985) (water company acting under state water restriction
order could not obtain social security numbers of customers
until it complied with disclosure provision of Privacy Act).
We believe that the state may require the applicant to
provide the decedent's social security number when applying
for probate of the decedent's will. Section 7 of the
Privacy Act relates to an individual's right to refuse to
disclose his social security number. An "individualql is
defined by the Privacy Act as *a citizen of the United
States or an alien lawfully admitted for permanent resi-
dence." 5 U.S.C.A. §552a(a). These terms describe a living
person. The Privacy Act gives an individual certain
rights over the disclosure of information concerning him.
5 U.S.C.A. 5552a(b). The parent of a minor or a legal
guardian of an individual who has been judicially declared
incompetent may act on behalf of the individual. 5 U.S.C.A.
§552a(h). There is no provision for representation of a
deceased person. The absence of such a provision, combined
with the definition of "individual" suggests to us that
section 7 of the Federal Privacy Act does not apply to the
social security numbers of deceased persons. We believe
this reading of section 7 is consistent with the congres-
sional purpose of limiting harm to individual privacy
through misuse of information systems. As a general rule,
an individual's right of privacy lapses upon his death. See
Attorney General Opinion H-917 (1976). Based on our read%
of the Federal Privacy Act, and in the absence of a contrary
federal interpretation of this statute, we conclude that the
requirement of Probate Code section 81(a)(9) that applica-
tions for probate include the decedent's social security
number is not superseded by the federal law and may be
followed as written.
SUMMARy
Section 81(a)(9) of the Probate Code is
invalid as inconsistent with section 7 of the
Federal Privacy Act to the extent that it
requires an applicant for probate of a written
will to state. his social security account
number on the application. The applicant may
be requested to give his social security
number voluntarily if he is provided the
following information: whether the disclosure
is mandatory or voluntary, by what statutory
or other authority the number is sought, and
what uses will be made of it, The federal
Privacy Act does not prohibit a requirement
p. 4637'
Honorable Kent A. Caperton - Page 5 (JM-924)
that the decedent's social security number be
included on the application.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRHARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General.
RICK GILPIN
Chairman, Opinion Committee
JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4638