   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                            September    14,200l



The Honorable Jim Solis                                    Opinion No. JC-0409
Chair, Economic Development Committee
Texas House of Representatives                             Re: Furnishing of a social security number as
P.O. Box 2910                                              a requirement for a Texas driver’s license
Austin, Texas 78768-2910                                   (RQ-0343-JC)


Dear Representative     Solis:

         You have inquired concerning the authority of the Department of Public Safety (“DPS”) to
require that applicants for a Texas driver’s license provide a social security number.’ Family Code
section 23 1.302 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. 8 23 1.302(c)(l)
(Vernon Supp. 2001); 37 TEX. ADMIN. CODE 8 15.44 (2001) (Tex. Dept. Public Safety, Social
Security Number). The purpose of the Family Code provision is “[t]o assist in the administration
of laws relating to child support enforcement,” TEX. FAM. CODE ANN. 8 231.302(c) (Vernon
Supp. 2001), including 42 U.S.C. 9 666(a)( 13)(A) (1994 & Supp. IV 1998), which requires of
every state “[plrocedures requiring that the social security number of. . . any applicant for a . . .
driver’s license . . . be recorded on the application.”     Therefore, the practice of requiring the
provision of a social security number, if the applicant possesses one, is required under federal law.
An individual is not required to have a social security number as a condition of receiving a driver’s
license.

        42 U.S.C. 0 666, in relevant part, provides:

                      (a) Types of procedures required:

                         In order to satisfy section 654(20)(A) of this title, each State
                 must have in effect laws requiring the use of the following
                 procedures, consistent with this section and with regulations of the
                 Secretary, to increase the effectiveness of the program which the
                 State administers under this part:




         ‘Letter from Honorable Jim Solis, Chair, Economic Development    Committee, to Honorable John Comyn,
Texas Attorney General (received Jan. 3 1,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable        Jim Solis - Page 2                  (JC-0409)




                            (13) RECORDINGOF SOCIALSECURITYNUMBERSI-NCERTAI-N
                     FAMILYMATTERS.-Procedures requiring that the social security
                     number of-

                                 (A) 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. 8 666(a)(13)(A)           (1994 & Supp. IV 1998).

        Such procedures as 42 U.S.C. 4 666(a)(13)(A) re q uires are mandated under Texas law by
section 23 1.302(c) of the Family Code, which provides:

                             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 (42 U.S.C. Sections 601-617 and 651-669):

                               (1) each licensing authority shall request and each
                     applicant for a license shall provide the applicant’s social security
                     number[ .]

TEX. FAM.       CODE ANN. 5 23 1.302(c)(l)        (Vernon Supp. 2001).

         Neither the federal statute at issue here nor the Texas Family Code provision has been
interpreted by the agencies involved, the United States Department of Health and Human Services
and DPS, to require the possession of a social security number as a prerequisite for a driver’s license.
As you note, a memorandum from the Office of Child Support Enforcement of the U.S. Department
of Health and Human Services dated July 14, 1999, interprets the federal provision “to require that
States have procedures which require an individual to furnish any social security number that he or
she may have.“* It goes on to state that:

                     Section 466(a)( 13) of the Act does not require that an individual have
                     a social security number as a condition of receiving a license, etc.
                     We would advise States to require persons who wish to apply for a
                     license who do not have social security numbers to submit a sworn
                     affidavit, under penalty ofperjury, along with their application stating
                     that they do not have a social security number.

Id.




            ‘Memorandum      from David Gray Ross, Commissioner,   Office of Child Support Enforcement,   to State IV-D
Directors    and Regional   Program Managers (July 14, 1999).
The Honorable    Jim Solis - Page 3               (JC-0409)




        Volume 37, section 15.42 of the Texas Administrative Code, which requires that a social
security number “shall be obtained from all applicants,” provides another method by which those
who cannot obtain a social security number may nevertheless obtain a license:

                        (e) Individuals who do not possess a social security number
                will be referred to the Social Security Administration to obtain such
                number.

                                 (1) An individual, ineligible to obtain a social security
                number due to immigration status will be required to obtain a letter
                from the Social Security Administration (SSA L-676) indicating their
                non-eligibility.

37 TEX. ADMIN. CODE, supra, 6 15.42.

         Section 52 1.044 of the Transportation Code generally provides that social security numbers
obtained by DPS under authority of this regulation and Family Code section 23 1.302(c) may be
disclosed by DPS only to state agencies, including the Child Support Division of this Office, which
are responsible for enforcing child support payments, and limits the use of such information to that
purpose.

         The particular question ofhow to interpret subsection (f) of section 52 1.044 is less than clear,
although it does not affect the result of this opinion. The Seventy-sixth Legislature passed two
different bills, each of which amends subsection (f), and which amendments                 are mutually
contradictory.    Senate Bill 368 contained language providing that section 521.044(f) “does not
prohibit the department from requiring an applicant . . . to provide [a] . . . social security number.”
Tex. S.B. 368, 76th Leg., R.S., 1999 Tex. Gen. Laws 3058,3086. It contained as well a provision
that:

                If Senate Bill No. 370, Acts of the 76th Legislature, Regular Session,
                 1999, is enacted and becomes law, and that bill contains a provision
                that amends Section 521.044, Transportation Code, to prohibit that
                section from authorizing the Department of Public Safety of the State
                of Texas to require an applicant for a driver’s license to provide the
                applicant’s social security number, that provision shall have no effect.

Id. Senate Bill 370, on the other hand, amended section 521.044(f) to provide that, “This section
does not authorize the department to require an applicant for a driver’s license to provide the
applicant’s social security number unless the provision of the social security number is required
under federal law .” Tex. S.B. 370, 76th Leg., R.S., 1999 Tex. Gen. Laws 4153,416l.

         The DPS policy at issue here would be permissible under either the less restrictive statutory
guidelines of Senate Bill 368 or the requirement of Senate Bill 370 that “the provision of the social
The Honorable   Jim Solis - Page 4               (JC-0409)




security number [be] required under federal law.” Id. For, as noted above, the provision         of such
numbers is indeed required by federal law.

         Although we do not here resolve the issue of which version of Transportation Code section
521.044(f) constitutes the applicable law, we regard as problematic the assumption by the publisher
of the printed version of Vernon’s Texas Codes Annotated that Senate Bill 368’s anticipatory
rejection of Senate Bill 370 is effective. The rule enunciated by the court of criminal appeals in Ex
Parte de Jesus de la 0,227 S.W.2d 212,213 (Tex. Crim. App. 1950), and later codified at section
3 11.025 of the Government Code is that “Where two acts passed at the same session of the
legislature cannot be reconciled by any known rule of construction, the first in time or position must
give way to the last, and the latter act will stand as the final expression of the legislative will.” Id.
Government Code section 3 11.025(d) provides that “the date of enactment is the date on which the
last legislative vote is taken on the bill enacting the statute.” TEX. GOV’T CODE ANN. 8 3 11.025(d)
(Vernon 1998). In this case, the last legislative action taken on Senate Bill 368 occurred on May 27,
1999, when the senate concurred in the house amendments.            The last legislative action taken on
Senate Bill 370, on the other hand, occurred on May 30, 1999, when the senate adopted the
conference report by a nonrecord vote. Accordingly, Senate Bill 370 is later in time than Senate Bill
368, and under the later in time rule as ordinarily understood, its amendment of section 521.044(f)
would clearly constitute the law of Texas. Of course, as noted above, the DPS policy at issue in this
case would be permissible under either Senate Bill 368 or Senate Bill 370.
The Honorable Jim Solis - Page 5              (JC-0409)




                                      SUMMARY

                        Pursuant to 42 U.S.C. § 666 (1994 & Supp. IV 1998) and
               Texas Family Code section 23 1.302, in order to aid in the collection
               of child support, the Texas Department of Public Safety must require
               any and all applicants for a Texas driver’s license who possess a
               social security number to provide that number. TEX. FAM. CODE ANN.
               5 231.302 (Vernon Supp. 2001). An individual is not required to
               have a social security number as a condition of receiving a license.




                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
