                THE     ATTORNEY    GENERAL
                           OF TEXAS


                            December   6, 1989



Honorable   Steven D. Wolens            Opinion   No.   JM-1118
Chairman
Business and Commerce                   Re:   Obligation    of a real
    Committee                           estate licensee with regard
Texas House of Representatives          to disclosure     that a pre-
P. 0. BOX 2910                          vious or    current   occupant
Austin, Texas      78768-2910           of real property had or has
                                        AIDS or HIV infection
                                        (RQ-1797)

Dear   Representative   Wolens:

      you ask four questions   regarding the disclosure   of   the
fact that a previous   or current occupant of real estate      had
or has human immunodeficiency     virus (HIV).1   In your    first
question,  you ask:

          Will a   real   estate licensee      who    discloses
          actual knowledge     that   a previous   or   current
          occupant of real      property had     or has    AIDS,
          HIV-related   illnesses,     or HIV    infection     in
          response to a specific request for disclosure
          be in violation    of    the Federal Fair     Housing
          Act of    1988 (42 U.S.C. Sections         3604-3606)
          and the Texas Fair Housing Act (S.B. 75)?

      We   have   already    answered     your   first   question      in
Attorney   General Opinion JN-1093       (1989).    In that opinion we
addressed   questions   regarding   the application     and    interpre-
tation of House Bill 976,        adopted by the 7lst       Legislature,
which would     require   a real     estate    licensee to    make    the
disclosure   that is central to your questions.

     In Attorney   General   Opinion JM-1093,   we first    deter-
mined that the    federal Fair Housing    Act invalidates    state
law that   "purports   to  require or  permit any    action   that



      1.  For the purposes   of this opinion  we will use   the
term *'HIV infection"  to include all stages of the infection,
including AIDS, because it is the presence of the virus     and
not the stage of the disease that is pertinent.



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would   be   a discriminatory                 housing   practice"    under  the
federal statute.    42 U.S.C.               § 3615; Attorney   General Opinion
JM-1093   (1989), at 2.

      We next examined the legislative       history of the federal
Fair Housing Amendments       Act of 1988    and the rules     enacted
pursuant   to those amendments.      We ascertained    that the    1988
amendments   extended    the   protections   of   the   federal    Fair
Housing Act to     handicapped   persons    and that    the class    of
handicapped   persons   includes individuals     afflicted   with HIV.
H.R. Rep. No. 711, 100th Cong., 2d Sess., reorinted           in, 1988
U.S. Code Cong. & Admin. News 2173, 2179; 54 Fed. Reg.             3288
(to be codified at      24 C.F.R. 5 100.201):      Attorney    General
Opinion JM-1093    (1989), at 3.

      At the    time   our   opinion was       issued   there   were   no
reported   cases    interpreting   the    1988 amendments,      however,
Baxter v. Citv      of Belleville,    1989     U.S. Dist. Lexis     10298
f.9.D. Ill.,    Aua. 25.    1989).    issued a      few days   nrior   to
JM-1093,   largely supports our       COnClUSiOn.      The-Baxter    case
involved a     zoning action     that    would have     prohibited    the
plaintiff   from operating    a residence      for AIDS patients.     The
Baxter    court   examined    the    legislative      history    of   the
amendments    and reached the same conclusion         that we did:

            It is clear from its legislative  history that
            Congress  intended  to  include  among   handi-
            capped persons those who are HIV-positive.

Baxter,     m,             at 25.

      It is the disclosure  of the HIV infection   of the former
occupant that is the *'discriminatory housing practice"    under
the federal law.     Section 3604   of title 42   of the  United
States Code,   as   amended  in   1908,  provides   in part    as
follows:

            As made applicable   by section    3603 of   this
            title and    except as   exempted   by  sections
            3603(b) and 3607 of    this title, it shall    be
            unlawful  --

                   .   .   .   .

                (c) TOmake,      print, or publish,    or   cause
            to be made, printed, or published        u    notice,
            Statement,     or   advertisement,    with    resoect
            fo the sale     or   rental of    a dwellina      that
            indicates     anv   nreference.    limitation.      or
            discrimination     based   QD race,   color,    reli-
            gion,    sex,   &&ndicaa     familial    status,    or
            national   origin, or aA intention      to make    any



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            such preference,              limitation,     or   discrimina-
            tion.   (Emphasis            added.)

42   U.S.C.        5 3604.

      The court in !&&ad      States v. Hw,         459 F.2d 205 (4th
Cir.), cert. c&n&d         409 U.S.    934 (1972),    in upholding     a
declaratory   injunction    prohibiting   continued   publication    of
newspaper   advertisements    containing   the phrase "white home,"
examined the application      of   section   3604(c) and found     that
the advertisements    violated    the   section.    In regard to    the
application   of the section, the court said:

            Unlike other     sections      of the    Fair    Housing
            title,   5 3604(c)       does     not    provide      any
            specific exemptions      or designate     the    persons
            covered,   but     rather,     as   the   court    below
            noted,   applies     on    its    face   to     'anyone'
            printing   or    publishing       illegal    advertise-
            ments.

L     at 210.

      The   court   limited     its   analysis     to   wprinting8V   and
11publishing,Q8 because    that     was  the issue      in that     case;
however,    the   section    is     much   broader    than     indicated
there.    The section also      has been    interpreted    to   prohibit
discriminatory    verbal    statements   made     by an   agent of    the
owner of real property.       United States v. L & H Land         Corn
407 F.Supp. 576 (S.D. Fla. 1976).          Likewise,    the section ha;
been applied against the recorder          of deeds relative to       the
inclusion    of  restrictive     covenants     in   recorded    property
deeds.    Wavers v. Ridlev, 465 F.2d 630 (D.C. Cir. 1972).

      We based our earlier opinion    on the plain language     of
section 3604(c) in combination    with the traditionally    broad
interpretation  given to the Fair   Housing Act by the    courts.
The Baxter court also recognized    that judicial  inclination:

                  It has long been    recognized  that to     give
              full measure    to  the   Congressional     purpose
              behind   the   FHA,  courts    have   given   broad
              interpretation   to the statute.

Baxter,       a,         at 34-35.

       As we noted           in our earlier         opinion:

              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


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            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
            discriminatory    effect.

Attorney     General   Opinion     JM-1093    (1989),     at 6.

     We reaffirm our prior opinion: the federal Fair Housing
Act now prohibits  the disclosure   of the fact that a  current
or former occupant of   a residence   has or  had AIDS or   some
other degree of HIV infection.

      Whether the same activity would violate the Texas              Fair
Housing Act is     immaterial    because,   as   we concluded    in   our
earlier opinion, the federal law prohibits           the disclosure     of
the HIV infection     of an    occupant of a residence.         However,
we note that the      effective   date of    the Texas Fair      Housing
Act is    premised    on   certification     by    the  United    States
Department    of Housing and     Urban Development     that the     Texas
act is wsubstantially      equivalent"    to the federal act.        Acts
1989, 71st Leg., ch. 1081,         5 11.01.    Thus, it appears      that
the   disclosure     indicated     in your     first   question     would
contravene    the state statute as well as the federal act.

      In your     second   question    you    ask:

            Is   AIDS,   an   HIV-related     illness,    or  HIV
            infection  a    'material fact*     under the    dis-
            closure requirements     of Section     17.46(b)(23)
            of Texas* Deceptive     Trade    Practices-Consumer
            Protection   Act, Tex. Bus.      & Comm. Code    Ann.
            Section 17.46(b)(23)      (Vernon 1987)?

      The Deceptive   Trade   Practices   and Consumer    Protection
Act (DTPA) was     enacted in   1973 to    protect consumers     from
false,    misleading,    and  deceptive    trade   practices.     See
aenerallv    Bus. ii Comm. Code    S 17.41 et seq.     It  is to   be
construed   broadly to promote     its underlying   purposes.     Id.
s 17.44.

      Real estate is covered under the definition     of   "goods"
in the act.     &  5 17.45(l);   see also   Woods v.   Littleton,
554 S.W.2d 662, 667 (Tex.    1977); Parks
652 S.W.Zd 479 (Tex. App.    - Houston   [lst Dist.] 1983,    wriC.
dism'd); tierson   v. Havins   595 S.W.2d 147 (Tex. Civ.      APP.
- Amarillo  1980,  writ dism;d).     The DTPA    also applies    to
real estate brokers.    (                                     n .,
618 S.W.2d 535, 541 (Tex. 1981); Manchac v. Pace       608 S.W.2d
314 (Tex. Civ. App. - Beaumont    1980, writ ref'd A.r.e.).




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Honorable     Steven       D. Wolens    - Page     5   (JM-1118)




     The section           about    which   you   specifically     inquire   reads
as follows:

               (b) Except as provided    in Subsection   (d)
            of this section, the term 'false, misleading,
            or deceptive  acts or practices'   includes, but
            is not limited to, the following    acts:

               .   .   .   .

                (23)   the failure to disclose      information
            concerning    goods or services which was      hOWXl
            at   the   time    of  the  transaction     if  such
            failure    to   disclose   such   information    was
            intended to induce the consumer      into a trans-
            action into which the consumer would not have
            entered had the information      been disclosed.

BUS.   & Comm.     Code        5 17.46(b)(23).

      Although  the language of this section is broad, it           has
been interpreted   to mean that the DTPA protects      against      the
nondisclosure   of a material    fact.   First Citv Mortaaae        Co.
v. Gillis    694 S.W.2d 144 (Tex. App. - Houston      [14th    Dist.]
1985, wrii ref'd n.r.e.); m                                          666
S.W.2d 554, 560 (Tex.     APP. -  Houston    [lst Dist.]   :9:4:      no
writ).

      Generally,  the courts applying section 17.46(b)(23)             to
real estate transactions      have    found that physical     or   legal
defects in the property      are the material     facts about which a
purchaser   must  be informed.        See. e.a,    Dieda   de Toca     v.
*,      748 S.W.Zd 449 (Tex.      1988) (duty co disclose        demoli-
tion order): peitzel V. Barnes,          691 S.W.2d 598 (Tex.      1985)
 (failure of air    conditioner    and water     heater to meet      city
code specifications);     ti                                Lesassier,
688 S.W.2d 651     (Tex. App.     - Beaumont    1985,   no writ)     (in-
complete termite extermination);        &bb    v. Dull&@, 656     S.W.Zd
550 (Tex. App.    - Corpus     Christi 1983,      writ ref'd     n.r.e.)
 (defects of water    system in      a mobile    home park):     Anthony
Indus. v. Raasdale      643 S.W.Zd     167 (Tex. App. - Fort       Worth
1982, writ ref'd     A.r.e.)    (construction     of swimming     pool):
Sam Wontaomerv    Oldsmobile     Co.   v. Johnson,     624 S.li'.aii 237
 (Tex. Civ. ADD. - Houston       list Dist.1     1981, no writ)      Ire-
furbished moror home sold ai new).            -

      As previously      noted,    the United    States Congress       has,
relative to      real    estate transactions,      extended      protected
status    to     handicapped      individuals,      including      persons
afflicted    with HIV, and invalidated        state law "that purports
to require      or   permit    any   action that     would    be   a dis-
criminatory      housing     practice."     42   U.S.C.    5 3615.       As



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indicated   in   our     answer   to your   first question,      Attorney
General    Opinion       JW-1093   determined    that   the   disclosure
requirements    found       in House    Bill 976   would    purport    "to
require or permit        [an] action that would be a discriminatory
housing practice"        and   thus are invalidated     by the    federal
act.   ;EBt

      An interpretation    of   the DTPA that     would require        the
seller of real property     to   disclose the HIV infection        of    a
current or former occupant       would create a conflict       between
the state    law   and the    federal   law.   The    state   law,      so
interpreted,   would be    invalid.    &8    42 U.S.C.     55 3604(c),
3615: 24 C.F.R. 8 100.201:       889kbYeZSMavers,~:            Baxter,
sunra: Attorney    General Opinion JU-1093      (1989).

      We do  not answer   your third                question because     it  is
premised  on an  affirmative  answer               to  the second    question,
which we answer in the negative.

       your   fourth     question   is:

            Is an    unauthorized      disclosure     --   that    an
            individual     who    is   a   current    or   previous
            occupant   of    real    property    has   AIDS,    HIV-
            related illnesses,        or   HIV   infection     --   a
            violation     of   that    individual's      right     to
            privacy as     guaranteed     by   the United     States
            and/or Texas' Constitution(s)?

      The guarantee  of privacy derived from the United States
Constitution   is a guarantee  against governmental    intrusion.
The United States Supreme Court has summarized      the guarantee
as follows:

            [The Fourth]     Amendment     protects     individual
            privacy against certain kinds of governmental
            intrusion,   but    its protections      go   further,
            and often have nothing to do with privacy            at
            all.   Other   provisions    of    the   Constitution
            protect personal privacy from other forms            of
            governmental    invasion.    But the protection      of
            a person's ~SDSR.&      right to     privacy --     his
            right to be let alone       by other people --       is
            like the protection       of his    property   and   of
            his very life, left largely to the law of the
            individual     States.        (Footnotes      omitted,
            emphasis   in original.)

Katz   v. United       States,   389 U.S.    347    (1967).

      The Texas Constitution   similarly  protects               individuals'
privacy from governmental    invasion.   The Texas              Supreme Court


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Honorable     Steven   D. Wolens    - Page    7    (JM-1118)




has   interpreted       the   Texas      constitutional        guarantee       as
follows:

            We hold that the Texas Constitution          protects
            personal   privacy from unreasonable      intrusion.
            This right to privacy should yield only           when
            the   government    can     demonstrate     that
            intrusion   is   reasonably    warranted     for   t:i
            achievement     of  a compelling        governmental
            objective   that   can be    achieved by     no   less
            intrusive,   more reasonable     means.

Texas State Rmnlovees         Union v. Texas Den,t of Mental   Health
& Mental Retardation,         746 S.W.2d 203, 205 (Tex. 1987).

      Your question,   however,   appears    to relate to a    state-
ment by a private    individual.    Consequently,    if that is    so,
the cases   regarding   governmental      intrusion  on   a person's
privacy would    be inapposite.      We    do note,   however,    that
the Texas legislature     has provided     both civil and    criminal
penalties  for the unauthorized     disclosure    of test results in
the Communicable   Disease Prevention      and Control Act.    Health
& Safety Code S§ 81.103, 81.104:        Acts 1989, 71st Leg.,      ch.
678, !4 1, at 2323-24.

                               SUMMARY

               A   real   estate     licensee     who     discloses
            knowledge   that a previous     or current occupant
            of real   property     had    or has    AIDS    or    HIV
            infection    would    violate     the    federal    Fair
            Housing Amendments     Act of 1988.        Conseguent-
            ly, HIV    infection     of a current       or    former
            occupant of real property       cannot be disclosed
            to a potential       transferee    under    the    Texas
            Deceptive   Trade Practices       Act.    The    federal
            and state    constitutions      protect      individual
            privacy    from   governmental       intrusion,       not
            intrusion   by private individuals.




                                             JIM      MATTOX
                                             Attorney  General      of Texas

MARYRELIJIR
First Assistant        Attorney    General

LOU MCCRRARY
Executive  Assistant       Attorney      General


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Honorable   Steven   D. Wolens    - Page     8    (JM-1118)




JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney       General

RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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