Untitled Texas Attorney General Opinion

MEH GENEECAI.

Hon. Burton G. Hackney Opinion No. M-l 57
Commissioner, State Department.
of Public Welfare Re: Whether Section 16 of House Bill 354, Acts
John H. Reagan Bldg. 60th Legislature, 1967, Regular Session, ch.
Austin, Texas 328, p. 778, amending Article 6687b, Ver-
non’s Civil Statutes, conflicts with federal and
state laws, or rules or regulations of the De-
partment of Health, ,Education, ,and. ‘Welfare 1
for safeguarding the~confidentfality of records’
Dear Mr. Hackney: and related questions.

You have requested the opinion of this office on several questions concerning the
legality of the Department of Public Welfare furnishing to the Texas Department of Public Safety
a monthly list of those individuals applying for or receiving assistance as a needy blind person, as
required by the provisions of House Bill 354, Acts 60th Legislature, 1967, ch. 328, p. 778, which
amends Article 6687b, Vernon’s Civil Statutes.

Section 16 of House Bill 354 provides for a new section in Article 6687b to be
known as Section 30A and such new provision provides as follows:

“[a] Once each month the Department’ of Public Welfare shall furnish
the Department of Public Safety a list of those persons who apply for or re-
ceive assistance to the needy blind. The list is’privileged information and may
be used only by the Department of Public Safety.

“Lb] The Department of Pubhc Safety shall revoke the license of every
person whose name appears on the list referred to in Subsection [a] .”

Section 1 of House Bill 354 amends Section 4 of Article 6687b to provide in part
as follows: r,,.

“Sec. 4. The Department shall not issue any license hereunder:

“

l‘lO; To a person who applies for or receives public assistance as a
needy blind person.”

Section 33 of Article 695c, Vernon’s Civil Statutes, the Public Welfare Act of

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Hon. Burton G. Hackney, page 2 (M-157)

194 1, provides as follows:

“(1) It shall be unlawful, except for purposes directly connected with
the administration of general assistance, Old Age Assistance, Aid to the
Blind, or Aid to Dependent Children, and in accordance with the rules and
regulations of the State Department, for any person or persons to solicit,
disclose, receive, make use of, or to authorize, knowingly permit, participate
in, or acquiesce in the use of, any list of, or names of, or any information
concerning, persons applying for or receiving such assistance, directly or in-
directly derived from the records, papers, files, or communications of the
State Department or subdi@i&ta :~~a~ncies:.~eereof,~,or :acquiied did the
course of the performance of official duties.

“(2) The rule-making power of the State Department shall include the
power to establish and enforce reasonable rules and regulations governing the
custody, use, and preservation of the records, papers, files, and communica-
tions of the State Department and its local offices. Wherever, under pro-
visions of law, names and addresses of recipients of public assistance are fur-
nished to or held by any other agency or department of government, such
agency or department of government shall be required to adopt regulations
necessary to prevent the publication of lists thereof or their use for pur-
poses not directly connected with the administration of public assistance.”

Your initial question upon which you seek our opinion is set forth as follows:

“1. Is Section 16 of House Bill No. 354 in conflict with the federal and
state laws and the rules and regulations promulgated by the Department of
Health, Education and Welfare for the safeguarding of the confidentiality of
records?”

Title X of the Federal Social Security Act provides for grants to states for Aid to
the Blind, and 42 U.S.C.A. 8 1202 provides in part that:

“(a) A state plan for aid to the blind must.

“(9) provide safeguards which restrict the use or disclosure of infor-
mation concerning applicants and recipients to purposes directly connected
with the administration of aid to the blind;. .”

Section 618 of the Revenue Act of 1951, 65 STAT. 569, Public Law 183,82nd
Congress, provides that:

“No state or any agency or political subdivision thereof shall be de-
prived of any grant-in-aid or other payment to which it otherwise is or has
become entitled pursuant to Title I (other than Section 3(a)(3) thereof)),
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Hon. Burton G. Hackney, page 3 (M-157)

IV, X, XIV or XVI (other than Section 1603(a)(3) thereof) of the Social
Security Act, as amended, by reason of the enactment or enforcement by.
such state of any legislation proscribing any conditions under which public
access may be had to records of the disbursement of any such funds or pay-
ments within such state, if such legislation prohibits the use of any list or
names obtained through such access to such records for commercial or poli-
tical purposes.”

wfiile Xkiisof&e iis df Xke ,o+iinion Sl#t XIsepsm%ions of Seotiion 16 of House BiIl
354 and Article 695c are not in conflict with the federal statutes and the rules and regulations
promulgated by the Department of Health, Education and Welfare, such opinion is not binding
upon the Department of Health, Education and Welfare. This would be particularly true in view
of the holding in State of Indiana ex rel. Indiana State Board of Public Welfare Y. Ewing, 99
Fed.Supp. 734 (195 l), wherein the court stated in its opinion that:

“Whether a state plan complies with the requirements of federal stat-
utes must, in the fiit instance, be determined by the administrator of the
federal act.”

As the remaining questions upon which you seek our opinion are related, all of
such questions will be set forth as follows:

“2. If it is in conflict, then should the Department be governed by
those portions of the Federal and State Laws which prohibit the Depart-
ment from releasing lists of names of applicants or recipients from its
records, or should the Department be governed by the provisions of House
Bill No,. 354?
i., ,,.~
,/
“3,‘In&far as we could determine there is no provision in House Bill
No. 354 which specifically repeals any laws in conflict with it; ,therefore, if
this is in conflict with Section 33 of Article 695c, Vernon’s Texas Civil
Statutes, does it have the effect of repealing it insofar as it is in conflict?

“4. Under the law is the State Department of Public Welfare required
to furnish the list of applicants and recipients:on amonthly basis to the De-
partment of Public Safety to be used in accordance with the provisions of
House Bill No. 354?

“5. Since the Department of Health, Education and Welfare has advised
us that a serious question of conformity with Section 1002(a)(9) of the
Social Security Act would arise should the Department of Public Welfare
respond to the request of the Department of Public Safety, then what is
the Department’s position if it is ruled that the Department is required to
furnish this list?”

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Hon. Burton G. Hackney, page 4 (M-1 57)

Section 33 of Article 695c prohibits the State Department of Public Welfare from
disclosing the names of applicants for or recipients of the Aid to the Blind program administered
by the State Department of Public Welfare except for purposes directly connected with the ad-
ministration of the Aid to the Blind program.

The recently enacted provisions of Section 16 of House Bill 354 require the State
Department of Public Welfare to make available to the Texas Department of Public Safety a
monthly list of those individuals making application for or receiving benefits under the Aid to
the Blind program administered by the State Department of Public Welfare. In addition, Section
4 of Article 6687b, as amended by Section 1 of House Bill 354, specifies that the Texas Depart-
ment of Public Safety shall not issue any driver’s license to a person who applies for or receives
public assistance as a needy blind person.

The basic issues raised by your remaining questions deal with whether there is a
conflict between Section 16 of House Bill 354 and the existing provisions of Section 33 of Arti-
cle 695c, and if there is a conflict between these two statutory provisions, the effect of such con-
flict.

While it may be contended that the provisions of Section 33 of Article 695c,
which prohibit disclosure of the names of applicants for and recipients of the Aid to the Blind
program administered by the State Department of Public Welfare, seem to conflict with the re-
quirements of Section 16 of House Bill 354, that the State Department of Public Welfare must
make available to the State Department of Public Safety a list of names of those people applying
for assistance or receiving assistance under the Aid to the Blind program administered by the
State Department of Public Welfare, it could also be effectively argued that the disclosure of this
information by the State Department of Public Welfare to the State Department of Public Safety
would be for a purpose directly connected with the administration of the Aid to the Blind pro-
gram. Certainly, it would be in the best interest of the individual applicant or recipient, as well as
the public as a whole, to take steps to insure that these needy blind people are not endangering
themselves, as well as the public, by attempting to operate a motor vehicle.

However, regardless of the foregoing, we are of the opinion that there is no neces-
sity to resolve the issue of whether the provisions of Section 16 of House Bill 354 conflict with
the existing provisions of Section 33 of Article 695~. The case of Townsend v, Terrell, 118 Tex,.
463, 16 S.W.2d 1063 ~(1929), sets forth certain rules ofstatutory construction which would be
applicable to the issue here presented, and in this case the court stated in its opinion that:

“ It is well settled that repeals by implication are not favored, and
that all acts and parts of acts in pari materia are to be construed as a whole
and interpreted in such manner as that all may stand where such may reason-
ably be done. It is only where acts are so inconsistent as to be irreconcilable
that a repeal by implication will be indulged. If there exists such conflict,
then there is a presumption of the intention to repeal all laws and parts of
laws in conflict with the clear intention of the last act. This is necessarily
true where both acts cannot stand as valid enactments.
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 I

Hon. Burton G. Hackney, page 5 (M-1 57)

“This rule of construction has found frequent and apt illustration
where one of the supposedly conflicting statutes was general in its terms and
the other specific. In such a case it is universally held that the specific stat-
ute more clearly evidences the intention of the legislature than the general
one, and therefore that it will control. In such a case both statutes are per-
mitted to stand - the general one applicable to all cases except the particular
one embraced in the specific statute . , .”

In the instant case we have a general statute prohibiting the disclosure of certain
information enacted prior to a specific statute allowing the disclosure of the same information
under certain circumstances. Applying the rule of statutory construction set forth in Townsend
v. TuY!& .~&@nr@, the :sp&itic provisions of Section 16 of House BIB 354 more clearly evidences
the intention of the legislature than the general terms of Section 33 of Article 695c, and there-
fore the provisions of Section 16 of House Bill 3.54 will control. Both statutes are permitted to
stand - the general provisions of Section 33 of Article 695c are applicable to all cases except the
particular circumstances embraced in Section 16 of House Bill 354.

Consequently, we are of the opinion that pursuant to the provisions of Section 16
of House Bill 354 the State Department of EiibIiid WeNelfaremust:make availMe tot&eState.De+
partment of Public Safety a monthly list of those individuals applying for or receiving public as-
sistance as a needy blind person. We are also of the further opinion that the existing provisions of
Section 33 of Article 695c wit1 remain in full force and effect in all other situations.

While your opinion request has informed us that the Regional Representative of
the Bureau of Family Services, Department of Health, Education and Welfare has informed the
State Department of Public Welfare that there is a serious question of whether the state plan of
Texas now conforms with the provisions of 42 U.S.C.A. 8 1202, since the enactment of Section
16 of House Bill 354, we are of the opinion that the State Department of Public Welfare must
comply with the statutory enactments of the Legislature of the State of Texas regardless of
whether such enactment and their application result in the Texas plan for assistance to needy
blind persons being declared by the Department of Health, Education and Welfare to be no
longer in conformity with the federal statutes and rules and regulations of the Department of
l-k&la, 3JaWaion and ‘Wetfare, Should itt some Wws #a$~ fiw .be ,f% defennin$+ b the De-
partment of Health, Education and Welfare that the Texas plan for assistance to needy blind per-
sons is no longer in conformity with federal statutes and regulations, then it will be the responsi-
bility of the Legislature to decide what steps, if any, will be taken to bring the Texas plan into
conformity.

SUMMARY

The State Department of Public Welfare must furnish to the’fexas:De~-
partment of Public Safety, pursuant to the provisions of Section 16 of
House Bill 354, Acts 60th Legislature, Regular Session, Chapter 328, page
778, codified as Section 30A of Article 6687b, Vernon’s Civil Statutes, a

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 . .

Hon. Burton G. Hackney, page 6 (M-l 57)

list of each person who applies for or receives public assistance as a needy
blind person, regardless of the existing provisions of Section 33 of Article
695c, Vernon’s Civil Statutes.

ey General of Texas

Prepared by Pat Bailey
Assistant Attorney General

APPROVED~:
OPINION COMMI’I-IEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Bill Allen
John Reeves
Houghton Brownlee

A. J. CARUBBI, JR.
Staff Legal Assistant

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