             THEATTORNEYGENERAL
                         OFTEXAS
                        AUSTIN   ~~.'~TExAs




Honorable Adam R. Johnson
Executive Director
State Department of Public Welfare
Austin, Texas
Dear Sir:                  Opinion No. o-2432
                           Re: Privilege from disclosure under
                                Section 31 of S.B. No. 36, 46th
                                Legislature.
        We are pleased to reply to your recent letter in which
you request the opinion of this department as to whether,
under Section 31 of Senate Bill No. 36, 46th Legislature, an
employee of the Department of Public Welfare can be compelled
to disclose in court, in cases involving private parties,
either orally or by the production of the records themselves,
any of the facts and Informationcontained In case records of
applicants for, or recipients of, old age assistance, without
the consent or authorization of such persons.
        Section 31 of Senate Bill No. 36, 46th Legislature, pro-
vides as follows:
        "All records concerning any applicant or
    recipient contemplated in this Act shall be con-
    fldential, and shall be open to inspection only
    to persons duly authorized by the State, or the
    United States, to make such lnspectlon In connec-
    tion with their official duties; provided, however,
    that factual information in such records shall be
    available to applicants and recipients or thei.r
    duly authorized agents; provided, further, that
    no lists of names of recipients shall be published
    ordistributed for purposes of being made parts of
    any stat?, county or city records, or for any other
    purpose.
        In our opinion No. O-2122, to Honorable George Ii. Shep-
pard, Comptroller of Public Accounts, it was held by this
department, In part, that Section 31 applies to records kept
by the Department of Public Welfare and the Comptroller's De-
partment; that the Comptroller's Department is not authorized
to allow the general public to examine certain of the records
within the purview of Section 31; and that the Comptroller's
Bonorable Adam R. Johnson, page 2        O-2432


Department is not authorized to make certified copies of cer-
tain of such records upon application of an individual theref~ox
        You pose the further question as to whether the employees
of the Department of Public Welfare, including local county
welfare workers, may, nevertheless, be compelled in court to
divulge facts and information found in case records involving
applicants for, or recipients of, old age assistance.
        There can be no doubt but that such case records are
within the purview of Section 31 and are protected from dis-
closure by this statute. It remains only to ascertain If such
extends to processes of the courts, and, if so, If such is a
valid statutory enactment.
        The United States Supreme Court in the case of BOSKE vs.
COMINGORE, I77 U.S. 459, 20 Sup. Ct. 701, 44 L, Ed. 846,upheld
a regulation of the Secretary of Treasury, authorized by appro-
priate Federal statutes, forbidding his subordinates to allow
the use of official papers in their custody except for the our-
pose of aiding the collection of the revenues of the United
States. The case involved facts where a collector of internal
revenue had been adjudged in contempt of a Kentucky state court
for,refusing, while giving his deposition , to file copies of
reports in his custody. In affirming the order of the United
States District Court discharging the collector from the custody
of the sheriff, the court declared at p. 469:
       '* l * This being the case, we do not per-
   ceive upon what ground the regulation In question
   can be regarded as inconsistent with law, unless
   It be that the records and papers in the office
   of a collector of internal revenue are at all times
   open of right to inspection and examination by
   the public, despite the wishes of the department.
   That cannot be admitted. The papers in queation
   copies of which were sought from the appellee were
   the property of the United States, and were In his
   official custody under a regulation forbidding him
   to permit their use except for purposes relating to
   the collection of the revenues of the United States.
   Reasons of public policy may well have suggested the
   necessity, in the Interest of the government, of
   not allowing access to the records in the offices of
   collectors of internal revenue, except as might be
   directed by the Secretary of the Treasurer. The
   Interests of persons compelled, under the revenue
   laws, to furnish information as to their private
   business affairs would often be seriously affected
   if the disclosures so made were not properly
   guarded * l *'
Honorable Adam R. Johnson, page 3          O-2432


        The holding of this case was recognized as correct in
the Texas case of CARTER vs. IRVINE, 77 S.W. (2d) 247, in this
language:
       "* * * Restrictions imposed on revenue agents
   and others by regulations issued by the Treasury
   Department with reference to disclosures concern-
   ing such returns have been held to have the force
   and effect of law, and to constitute immunity to
   such agents from enforced disclosures with reference
   thereto as witnesses in a state court * l *It
        The principles in the matter at hand are recognized by
Prof. Wigmore in his exhaustive treatise on Evidence, wherein
it is declared:
       "There are, then, seven or eight distinct
   principles which In superficial features tend
   often to be confounded . . . (f) There is a genuine
   communications--privilege, permitting secrecy
   for comnications   by informers to official prose-
   cutors, by parties or witnesses to a judge, and by
   citizens making compulsory reports to the state. * * +
       "The policy underlying the principle of para-
   graph 2374, ante, is that where the government needs
   information for the conduct of its functions, and
   the persons possessing the information need the en-
   couragement of privacy in order to be induced freely
   to make full disclosure, the protection of a privi-
   lege should be accorded * * *
       "It is some such principle that justifies the
   modern creation of a number of privileges, all sta-
   tutory in origin, covering sundry matters required
   by law to be reported to some administrative of-
   ficial. * * *

   ,,,,~~5~,,;~;~;; facts, required to be disclosed to
                      fall within the principle, as well
   as facts of per&al    history in general, disclosed
   in the administration of various social welfare
   acts. (citin certain of the social welfare acts
   of Texas). " $"ifi"ir;,;;E,viv;re, Vol. 8, p. 733, 734,
   761, 773, 774,          ,
        This principle of privilege from disclosure is embodied
in Section 31 of Senate Bill No. 36. It expressly provides that:
       "All records concerning any applicant or
Honorable Adam R. Johnson, page 4         O-2432


    recipient contemplated in this act shall be con-
    fidential, and shall be open to inspection only
    to persons duly authorized by the state, or the
    United States, to make such inspection in connec-
    tion with their official duties."
The only exception is that the factual information shall be
available:to the applicants and recipients, or their agents.
The leglslatlve intent is entirely free from doubt that the
disclosure of the facts and information in the case records to
the public, or to an individual, or in court orally, or by the
bringing of the records into court under any process, is for-
bidden. No constitutional or statutory provision is offended
by this prohibition. The principle of privilege which protects
from disclosure, through the testimony of government officials,
of facts communicated to administrative officials, is, in our
opinion, as embodied in Section 31, a valid exercise of legis-
lative authority.
        Accordingly, you are respectfully advised that it Fs
the opinion of this department that employees of the Department
of Public Welfare, including local county welfare workers, can-
not be compelled to appear in court, in cases involving private
parties, and testify as to certain facts or information contain-
ed In case records concerning individuals who apply for or
receive old age assistance and, further, may not be compelled,
under a subpoena duces tecum, to bring such records into court
and disclose the facts and information therein contained.
        Trusting that we have adequately answered your inquiry,
we remain
                               Very truly yours
                            ATTORNEY GENERAL OF TEXAS
                               By s/Zollle C. Steakley
                                    Zollie C. Steakley
                                    Assistant
ZCS:EP:wc
APPROVED JUN 7, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By &3WB   Chairman
