R-279
THEATTORNEWGENERAL
OFTEXAS
AU&-IN. TEXAS
April 9, 1947
Hohi John Ii.Winters
Executive Dlrect or
Department df ?ubllc Welfere~
Austin, Texas Opinion Boo V-132
Re: Conslderatiou of e
bequeat In FelOtlon
to 8 recipient’s el-
igibllity for old age
Deer ~Sir: assistance.
We have your request for an opinion upon
the above captioned subject matter, the pertinent
parts being as follows:
“Our recipient, whom we shall refer
to as Ur. F, made an appllostlon for old
age assistance in June, ,1942, and has re-
ceived assiat8nae continuously in varying
amounts since September, 1942. Hr. F’s
present ,householdconsists of hlmself, 8
son about twenty-three geers of 880, and
8 minor daughter about sixteen yeers of
The daughter Is in school. Mr. F
%‘born on January 9, 1877, and due to a
chronic dlsebilltg end his age, he is un-
able to perform eny work Prom whioh he
maightreCeive remuneration. He hiustwo or
three brothers who have assisted him from
time to time over e period of years. One
brother at the present time is contribut-
ing $7-50 a week toward his and his deugh-
torts support in addition to paying some
of the utilities. Hr. F Is at the present
time receiving $37 a month old age essls-
tance. He is living in his own home free
of all encumbrances except perhaps de-
linquent taxes.
“in the spring of 1946 one of M.P.F’s
brothers died. The brother Is will was pro-
bated In June, 1946, He left one-third of
Ron, John H, Winters - Pege 2, V-132
his estate to his su~vlvfng spouse,
one-third to his daughter, and the
other bne-third to sever81 persons,
among whom is our recipfent of old
age 8sslstance, Hr. F. The terms
of the ~3.11 Fn relation to our re-
cfpient 8Fe as follows:
"gI leave to my brother, S
F a sum not to exceed Fif'ty
(-6) Dollars per month, to be
payable to him by my said executor
so long as he shall live; it is spe-
cfficaily provfded that ssfd sum Shell
be Ln such amount 8s not to jeopardize
8ny pension or other payment he may re-
ceive from any governmental source.
Once ffxed, this amount shall not be
increased whether or not such pension
or other payment from 8ny governmental
source shall continue.'
"The executor of the will is a
nephew of the deeedent end of our re-
cipient, Mr.-F. He stated that he
prepared the will, and he knew that
the decedent intended that the $50
should not replace the reeipi.entPs
grant but should supplement it, The
exeeutop further explafned that ff the
money pa1d to the re@efpi.entout of
the estate affected his old age assls-
tance grant even 8s much as $1 that he
would receive nothing whatever f'Pom
the estate, The recipient is stfll en
the old age assfstence polls, end notha
ing has been pafd to him out of the es-
tate 8s the executor fs awaitfng a def-
lnfte answep from the department as to
what effect, ff any, the payment of the
$50 or any portion thereof will have up-
on his old age assfstance grant."
We shell answer your questions in the order
of their presentation,
1, AS you point outa the Soeial SeauritJ
Act requires, 8s a oonditfon to CoopePetfOn with the
Hon. John H. Winters - Page 3, V-132
Stete as to old ego assistance, the State plan to "pro-
vide that the State agency shell, in determining need,
take into consideration any other income 8nd'resources
of an individual claiming old ego assistance; * *.*n
Section 21 of the Publlo Welfere Act of 191
(H.B. 611, 47th Leg., R.S., as amended) Is 8s followss
"Sec. 21. The amount of essistance
which shall be given under the provisions
of this Act to any individual,as old ego
assfstanoe shell be determined by the
S%8te Depertment through its district or
county in uhich the needy eged person re-
sides-with due consideration to-the in-
come and other resources of such aged per-
son and in aecordence with ,therules end
-ulatFons of the State Department * l *
The amount of assistance given shall pro-
vLde such aged person with a reasonable
subsistence compatible with decency ati,
health, withfn the limitstions and provi-
sions of the~constltution of Texas 88 are
now provided, or mey hereafter be provid-
ed." (Underscoring added for emphasis.)
Section 24 of the Act provides in part 88
follows :
‘All assistance granted under the
provisions of this AC% to any needy aged
person, needy blind person cr with respect
to any dependent chi1.dshall be reconsfder-
ed as frequently 89 may be required by the
rules of the State Department O After such
reconsideration as the State Department may
deem necessary or may raqufre, the 8mount
of assistance may be @hanged, or the assist-
ance may be entirely withdrawn ff the State
Department finds that the recipFentPs ofr-
cumstances h8ve eltered sufficiently to W8r-
rant such action" The State Department may
at any time oancel end revoke assfstance or
it may suspend assfstance for such period as
it mey deem proper, upon the grounds of in-
elfgibllity of the recipient'under the pro-
visions of this Act. * * * If at eny time
during the continuance of public assistance
the recipient thereof becomes possessed of
Hon. John H. Winters - Page 4, V-132
income or’resources in excess of the 8-
moutitpreviously reported by him, it shall
be his duty to notify the State Department ‘;.~
of such additional lnaome or resources.”
Again, Section 29 of the Act provides in
part as follows:
“Old age asslstanae, aid to the blind,
or aid to dependent children as provided
for under the provisions of this Act shall
not be transferable or assignable, at law
or in equity, and none of the money paid
or payable under the provisions of this
Act shall be subject to execution, levy,
attachment, garnishment, or other legal
process, dr to the operation of atiyinsol-
vency law; the provision of this Act pro-
viding for old age assistance, aid to the
blind, and aid to dependent children shall
not be construed as a vested right In=
~recipient of such assistance; l l mr-
scoring added for emphasis.]
These Federal and State statutes themselves
compel an answer to ourquestion Ro. 1 to the effect
that the bequest of i 50.00 per month cannot ‘be made to
your recipient without reducing the amount he may re-
ceive through your department, or without making him
inei$glblefor payments.
2. Your’.veryhelpful comments appended to
your request are as follows:
“Pursuant to the provisions of the
Federal and State laws the department
has formulated policies ard procedures
as set out in the departmental manual
providing for the consideration to be
,givenresources available to recipients.
Since the maximum amount which may be
paid to any individual out of the State
and Federal money is $45 a month and
since the total amount of State funds
available for administering the old age
aasistanca program and paylug the assist-
ance grants Is Thirty One Million Dollars
($31,000,000.00) a year, and slnue there
are at the present time approximately
Hon. John B. Winter3 - Page 5, v-132
191,824 recipients receiving old age as-
sistance in the State of Texas the neces-
sity for placing maximums on certain al- "L
lowable items in the recipient's budget
is obvious. ~Because of the limitation of
funds, a standard amount is included in
the budgets of all person3 under similar
circumstenc~esfor certain needs which are
common to all recipients such as food,
clothing, household supplies, and incl-
dentala.
"Also, under certain policies of the
department a recipient is allowed in his
budget the common household expenses for
himself and his normal dependenta which,in
this instance would be Mr. F’s sixteen
year old daughter, who is in school. In
other words, the taxer, the utilities, and
other expenses which he would have to pay
whether the dependent was in the home or
not would be included in his asslstanae
grant, and any income available could be
used toward meeting her needs before the
department would consider the income or
resources as being available for meeting
his needs. In determining the need3 of
the dependent, however, W8 are governed
by the same limitations as we are for the
individual recipient.
"When the question first arose the
department advised the executor that any
available income or resource could not be
disregarded in determining ellg1b1lity and
'that the department could not make any
kind of an agreement or oontract or in auy
way obligate the department to continue as-
sistance in any given amount since the law
requires u3 to consider ueeda and resources
ou an individual basis and that the amount
will vary from time to time depending upon
the circumstances of the iadividual.
'350are eager to assist thia aged re-
cipient If he meets eligibility require--
ments. 'Both the State end Federal laws pPO*
'vide that before a resource may be consider-
ed that it must be available; therefore, in
Hon. John H. Winters - Page 6, V-132
determining the amount bf ,the assistance
grant, we oannot conalder this resourae
until It has aotually been made avail-. \.
able to the reoiplent. The recipient
feels that he is in need of oonsiderably
more money than la being paid urder the
sssistanoe payment. With the limited
amount of 8oney availeble the department
cannot meet all of the needs whioh a re-
clpient wy feel that he has. In deter-
mining eligibility and the amount of
grant the department hes found that in
accordance with the policies Hr. F. is
tentatively ellgfble for a grant of
$37 a month. In view of the fact that
the maximum amount that my be paid to
any lnd~vidual is $45 a month, it is
obvious that if UP, F should reoeive the
bequest of $50 a month, this would render
him lnellgible for assistance and that
any amount that he should receive from
the estate would affect the amount of the
assistanae grant. Under the policies of
the department it would be necessary to
deduct whatever amount he receives from
the needs as determined by the department.~
The executor Is interpreting this provl-
sion of the will as making the bequest
conditioned upon the fact that the depart-
ment would not alter or change the amount
of the assistance gmnt by meson of the
payment of the bequest."
Upon the statements plade by you, it is ob-
vious that your department, in following the statutes
and formula of your promulgated plan, aside from any
consideration of the bequest, oould not pay the Pe-
cipient more than a maximum of $37.00 a month, and
that any amount received under the will may reduce his
pension.
Ihis leads to a considerstion of your added
question whether or not the Department of Pub110 Wel-
fare may make any definite commitment to the exeoutor
of the will with respect to allowance or consideration
of such moneys bequeethed. Clearly, under the law,
you cannot make a binding commitment on thla mattar.
Hon. John Ii.Winters - Page 7, V-132
Our conclusion in the whole matter is that
your department should proceed in the matter of an al-
hancemto this particuiar recipient as though no such
bequest had ever been made, and if at any time it IS
called to your attention that payments thereunder have
been made to the recipient you will take the same into
account as required by law.
SumPRY
Payments received under a will by a
recipient of old age assistanae are requir-
ed .tobe taken into account by the Board of
Public Welfare in determining whether such
payments make the recipient ineligible or
merely operate to reduce the amount he may
receive from the department.
Yours very truly
ATTORNEY GXWERAL OF TEXAS
BY
OS/lb
AL OF TEXAS