Mr. Wallace Collins                     Opinion   No.   JM-1093
Administrator
Texas Real Estate Commission           Re:   Whether House Bill 976,
P. 0. Box 12188                        which requires     a real estate
Capitol Station                        licensee    to    disclose  AIDS
Austin, Texas    78711                 information    to   a potential
                                       purchaser    or    lessee   con-
                                       flicts with article 4419b-1,
                                       V.T.C.S.,   and related    ques-
                                       tions    (RQ-1770)

Dear   Mr.   Collins:

      You ask five questions     regarding   the interpretation     and
application    of House   Bill 976, enacted     by the 71st     Legis-
lature.     We   decline,   however,    to   answer   your   specific
questions,   because    we believe    that the    bill violates    the
federal    Fair   Housing   Amendments     Act   and  is    partially
invalid.

      House Bill    976 amends    the   Real Estate     License   Act,
article 6573a, V.T.C.S.,      by adding    a subsection    (c) to  the
provisions    of' section    15  regarding    activities     that  may
result in the suspension      or  revocation   of a license.      Acts
1989, 71st Leg., ch. 1171, § 1, at 4802.          The bill also adds
a new    section 15C,    which has    language that     is virtually
identical   to that added to section 15.       Id. § 2, at 4804.

      The first    sentence     of   subsection     15(c)    releases     a
person from    civil and     criminal     liability   for    failure    to
inquire about or disclose        information    regarding   a previous
or current occupant's       AIDS infection      or other    HIV-related
illness.   Your questions     revolve around the second          sentence
of subsection   15(c) and the identical provisions           included   in
section 15C.    The latter      provisions   would require a person
to inform a potential     buyer or lessee of real property            that
a previous  or current      occupant of the      property had or       has
AIDS, HIV-related    illnesses,     or HIV infection,     but only     "on
receiving  a specific request        for the information"      and    only
if he has "actual knowledge"        of the condition.

     We believe that the   disclosure  provisions  of the   bill
are invalidated  by federal law.   A provision  of the   federal
Fair Housing Act, 42 U.S.C. § 3615, reads as follows:




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          Nothing   in this subchapter    shall be construed
          to invalidate    or limit any law of a State        or
          political   subdivision    of a State, or of      any
          other jurisdiction     in which this      subchapter
          shall be effective,     that grants, guarantees,
          or protects   the    same rights    as are granted
          by this subchapter;     but anv law of a State. a
          political   subdivision,    or  other such     iuris-
          diction that     ouroorts to    reauire or     oermit
          anv action    that    would be   a discriminatorv
          housina oractice     under this subchanter      shall
          to that extent be invalid.        (Emphasis added.)

42 U.S.C.       § 3615.

      Thus, to the extent that           it violates  the Federal    Fair
Housing Act,1 a   state law is           invalid, pursuant  to    section
3615.

      House Bill 976 qVpurports to require" a person to inform
a potential   buyer that a previous or current occupant had or
has AIDS, and it      "purports  to permit" the    buyer to make     a
"specific   request"   for   that information.     We believe    that
this exchange,    which is implicitly    contemplated    in the bill,
is a discriminatory     housing   practice under subchapter     I of
chapter 45, title 42, U.S.C., specifically,         section 3604(c),
and thus invalidated     by section 3615 of title 42 U.S.C.

      The 100th Congress     adopted the Fair Housing        Amendments
Act of 1988, effective      March 12, 1989, to extend the protec-
tions   offered    by   the    Fair  Housing    Act   to   handicapped
individuals   and    others.     Fair Housing    Amendments      Act   of
1988, Pub.    L.    No.   100-430, 102    Stat.    1619.     While    the
language of     those amendments     does not    expressly      indicate
that AIDS sufferers       are included within      its provisions      as
handicapped   individuals,     both the legislative     history of the
amendments   and rules promulgated     by the Secretary      of Housing
and Urban Development      indicate that purpose.

      The report of    the House         Judiciary   Committee   explains
the effect    of the   amendments,        the   necessity   of  including
handicapped   individuals   within        the provisions     of the   Fair




      1. We note that the 71st Legislature   has also   adopted
Senate Bill 75,   the Texas Fair  Housing Act, which    mirrors
the federal fair housing statute.   Acts 1989, 71st Leg., ch.
1081, at 4358.    You do not  ask and we   do not address    the
interaction between Senate Bill 75 and House Bill 976.




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Mr.    Wallace    Collins   - Page   3    (JM-1093)




Housing Act, and the intent              to include   AIDS   victims     within
that class as follows:

           [The Fair Housing Amendments       Act]    repudiates
           the use    of   stereotypes   and   ignorance,      and
           mandates    that   persons    with   handicaps       be
           considered      as    individuals.        Generalized
           perceptions   about disabilities      and   unfounded
           speculations     about   threats    to    safety    are
           specifically    rejected as    grounds to      justify
           exclusion.

               For example,      people who      use   wheelchairs
           have been denied       the right      to build    simple
           ramps to provide       access, or      have been     per-
           ceived as     posing    some     threat    to   property
           maintenance.      People with visual and         hearing
           impairments    have    been perceived       as   dangers
           because    of   erroneous      beliefs     about    their
           abilities.     People     with    mental    retardation
           have been     excluded     because     of   stereotypes
           about    their    capacity     to    live   safely    and
           independently.      People     with Acquired       Immune
           Deficiency    Syndrome      (AIDS)    and   people    who
           test positive     for   the AIDS      virus have     been
           evicted    because     of     an   erroneous      belief
           that they pose a health risk to others.
            (Footnotes omitted.)

H.R.    Rep.     No. 711, 100th   Cong., 2d Sess.,      reDrinted      in,   1988
U.S.    Code     Cong. & Admin.   News 2173, 2179.

      In accordance   with   that expressed    legislative     intent,
the Secretary    of Housing and Urban Development       adopted rules
effective   March   12, 1989,    and expressly     defined the    term
"handicap"    to   include   Human    Immunodeficiency     Virus    in-
fection.    54 Fed.   Reg. 3288     (to be codified     at 24   C.F.R.
§ 100.201).

      While        we   have   not  identified   any   reported     court
decisions         interpreting     the    new   provisions,     we    can
extrapolate        from decisions    made prior to    the inclusion     of
handicapped        individuals   as a protected  class.

      The Fair  Housing    Act   has   been    interpreted     in             the
broadest  terms  to   effectuate     the   legislative     intent              to
eliminate  all forms of housing discrimination:

                Like Title VII of the Civil Rights Act   of
            1964, 42   U.S.C.  § 2000e et sea.,   the  Fair
            Housing Act was enacted to ensure the removal




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Mr.   Wallace       Collins      - Page   4      (JM-1093)




           of   artificial,      arbitrary,       and     unneces-
           sary   barriers     when    the   barriers       operate
           invidiously    to discriminate      on the basis       of
           impermissible       characteristics.           Congress
           designed    it   to     prohibit     'all    forms     of
           discrimination,      sophisticated       as   well
           simpleminded.'      The Act, therefore,       is to    ::
           construed   generously    to ensure the prompt and
           effective    elimination      of     all    traces     of
           discrimination      within    the   housing       field.
           (Citations   omitted.)

United States v. Citv of Par-ma. Ohio 494 F.Supp. 1049, 1053
(N.D. Ohio 1980), aff'd, 661 F.2d 56; (6th Cir. 1981), cert.
denied, 456 U.S. 926 (1982).

     Section 3604 of title                    42 U.S.C.,     as amended,   provides
in part as follows:

           As made applicable  by [section 36032 of    this
           title] and   exce t as  exempted by   [sections
           3603(b) and 3607 5 of this title], it shall be
           unlawful --

                .    .   .   .

               (c) To make, print, or publish,       or  cause
           to be made, printed,    or published   21ny notice,
           statement   or advertisement,    with r sect      to
           the sale & rental      of a dwellina t&z       indi-
           cates anv orefaence.     limitation.   or discrim-
           ination based on race, color, religion,         sex,
           handicap    familial     status,           national
           origin, &    an   intention to    ma::    any   such
           preference,   limitation,     or  discrimination.
           (Emphasis added.)

      With our knowledge  that the term "handicap,"      under   the
rules promulgated    by the   Secretary    of Housing    and   Urban
Development,  includes   Human Immunodeficiency      Virus    infec-
tion, it is   clear that the    discussion   between a potential



      2.  Exemptions  found in   subsection   3603(a) expired   on
December  31,   1968.   The  exemptions     found   in subsection
3603(b) do not apply to discriminatory      practices  prohibited
by section 3604(c).

      3.    Section          3607   exempts      certain      religious    organiza-
tions.




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Mr.   Wallace   Collins   - Page   5   (JM-1093)




buyer and a salesman,   for example, anticipated    by House Bill
976 would    violate  section   3604(c).     That  conclusion     is
supported   by cases issued prior    to the inclusion   of   handi-
capped    individuals  within   the   protections   of   the   Fair
Housing Act.

      In United States v. L & H Land Core., 407 F.Supp.              576
(S.D. Fla.     1976), the    court found     that verbal     statements
made to   white tenants      to   the effect     that they    were   not
permitted   to   have black     guests violated      section   3604(c).
The court    said that     the statute     prohibits   "any   statement
with respect to the rental of a dwelling which indicates             any
discrimination,     limitation   or   preference   based    on race   or
color."   ;Ih, at 580.

      In United States      v.  Hunter     459   F.2d 205 (4th     Cir.),
cert. denied, 409      U.S. 934      (19;2),    the court    examined     a
newspaper    publication       of   an    allegedly      discriminatory
advertisement.      The court found that section 3604(c) did not
contravene   constitutional     protections     of free press,     speech
and due    process.    Interpreting      subsection    (c),   the   court
upheld a declaratory      judgment that found that the classified
advertisement     for  a basement      apartment    in  a "white    home"
contravened    the Fair Housing Act.        The court first commanded
that the act be interpreted         according    to the plain     meaning
of its words and      concluded   that the      words "in white     home"
could only signify a discriminatory           intent:

              Any other interpretation    of the advertise-
          ments would severely undercut the       objectives
          of the legislation.      If an advertiser      could
          use the phrase     'white home' in    substitution
          for the clearly proscribed     'white only,*     the
          statute would be nullified     for all    practical
          purposes.    We cannot   condone an    interpreta-
          tion which would circumnavigate      congressional
          intent in this    remedial statute designed        to
          eliminate   the humiliation   and social cost      of,
          racial discrimination.

Id.   at 215.

      Finally,    in Mavers v. Ridley,       465 F.2d 630 (D.C.       Cir.
1972), the     United   .States Court     of    Appeals found     that     a
recorder of     deeds was    prohibited    by    section 3604(c)      from
accepting    for    filing    instruments     that    contain    ra~cially
restrictive    covenants.    The court relied on section 3615            to
declare that "if      a part    of the District       of Columbia     Code
really forces the      Recorder to     violate appellants'        Section
3604 rights,     then that     portion of' the Code        is pro   tanto
unlawful."     Id. at 636.




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Mr.   Wallace   Collins   - Page   6      (JM-1093)




      The pavers    case is    particularly   instructive     for our
inquiry    into   the   application    of   section   3604(c):       it
involved a situation,     like the one under consideration       here,
not   expressly    anticipated     in  the   federal   statute:      it
involved the Recorder     of Deeds whose primary job, like        that
of a real    estate salesman     licensed under     the Real    Estate
Licensing   Act, is "with respect      to the sale of     dwellings:"
and it    involved a    statute rendered     invalid by    virtue    of
section 3615.

      We believe that the     effectuation     of the state    statute
under consideration    here would     violate the federal      statute
because handicapped    individuals,    including    those having AIDS
and HIV infection,    have been included as a protected         class.
The determination    of whether    a potential    buyer's    "specific
request"   ("Does the current occupant have AIDS?" or "Tell me
whether a former occupant had AIDS.") is a statement            within
the federal    prohibition    is   a question     of    fact  and   not
answerable   in the opinion process.       However,   any affirmative
response to that question would certainly         have a discrimina-
tory effect.     Like the court in Hunter, we can see no effect
other than a discriminatory      one.    Like the courts in both
 Hunter and    Mavers,    we  must    apply   the    federal   statute
according   to its plain meaning.

      We conclude that the disclosure     provisions   made in     the
second sentence    of section 15(c) and in section 15C, article
6573a, V.T.C.S.,    as  added by   House Bill    976, are     invalid
pursuant   to sections    3604(c) and   3615 of   title 42     U.S.C.
Since your    questions   relate  to   the application     of   those
provisions,   we need not answer your questions      directly.

                               SUMMARY

                Those provisions   of House Bill 976, Acts
          1989, 71st    Leg.,  ch. 1171,    at  4802,    that
          purport to    allow or   require statements     re-
          garding the fact that     a current or    previous
          occupant   of real property has or had AIDS      or
          a related illness contravene     the federal Fair
          Housing Amendments   Act of 1988 and are there-
          fore invalid.




                                            JIM      MATTOX
                                            Attorney  General   of Texas

MARY KELLER
First Assistant     Attorney     General



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    Mr.   Wallace   Collins     - Page     7    (JM-1093)




    LQU MCCREARY
    Executive  Assistant        Attorney       General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant  Attorney            General

    RICK GILPIN
    Chairman,  Opinion        Committee

     Prepared by Karen C. Gladney
    'Assistant Attorney General




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