                                            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


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                                         AL OF TEXAS
