                                                                                  835



            OFFICE   OF THE   ATTORNEY      GENERAL    OF TEXAS
                                 AUSTIN
GROVERSELLERS
ATTORNEY   GENERAL




Honoradle John B. Winters
Executive Director
State Department of Public        Welfare
Austin 3, Texas
Dear Sir:                       Opinion AO. o-6




                                        ‘\duw and i$ so to uhom?
                                          &ayable;.the proaedure to be fol-
                              ,>--..,     lowed to make the proceeds avail-
                            ,‘~
                                      ‘
                                      \   able,,
                        ,/”     ‘7,               h. Y
             Your recent ie<ter’mesent8.-            t& hereinafter    stated
facts and asks this department lb opinion as to the 1aV applic-
able to the Sacta’of         the stated fact situation.           We quote from
your 1etterLor       the .preaente&.fa#s           and questlonE:
                                             .’
         /”    & u&n and his ‘&e ~&e recelvFng old age
        saietaags’untll        thex y,&e rcLnvest:gated        on July
     2f 2,(q944 vh,oti!~they u&% denied, effective             August
     !J, 1944.      They,gave notice of appeal on October 5,
      1944;.,,a&    the appeal was held on October 19, 1944.
      Thb~A&..al Board reversed the decision                OS the local
      office    6cl Oi?tober 31, 1944.          Following the rev9rs-
      al of’ the deolsion,          the case was reinvestigated,
      and the sf?oI ienta were granted assistance               In the
      amount of $1 t for the husband and $23 for tk9 wife.
      On9 of the recipients           died on November 18, 1944.
      The Department         unaware of her death, mailed on
      December 1, 1944, checks for each of them reprs-
       senting payment for the months of August, 29Pt9m-
      ber, October and November, 1944. Upon notice OS
      her death, the November warrant was reissued                 In
      accordance with the provisions               of House ~11 135
      and therules and regulations               of th9 department.
                                                                             83


    Honorable   John H. Winters,   page 2


                “* l 4 the Department has womulgated rules
         and regulations    In aocordance with House Bill 135,
         Acts of the 48th Legislature,     vhlch penslts US to
         make available    to the person responsible   for the
         care of the recipient     the warrant for the month
:        ia vhloh the realpient     died.  Under these regula-
         tions,   the proceeds of the November varrant vere
         made available    to the spouse.

                 “Under the &partmental    polloles,   IS the Ap-
          peal Board reversed the deolslon       OS the looal ot-
           Slce, the reaiplent  Is entitled    to reimbursement
        ., for the amount of money In vhlch through error he
           Sailed to receIv9,  provided he appeals v1thl.n three
          months from the date of the decision.        It vas in
          accordance vlth this policy     that the retroactive    .
          payments uer9 Issued to the deceased recipient.
                %y the Department make these varranti as ‘,
         described above, available to the spouse OS the
         deceased recipient or to her estate?
                “IS you ansver the first  quest Ion In the as-
         Slrmatlve,   then, vhat procedure should be Sol-.
         lowed by the Department in making the proceeds
         available?”
           Our present society,      highly IndustrlalIs9d,    with a
majority of the people vage-earners,        and vhere the vagos,
after deductions    for proper, healthful     llvlng,. taxes, etc.,
are too low to permit savings for old age Illustrate          the need
that brought about the aoncept,ion OS the modern View of the
public duty, I.e.,     society,   the State, - to step in and provide
for that protection     - assistance    to the helpless   and unfortunate.
This fact has changed the aspect of our thought on the subject.
Assistance  now is a function      of government.
               At theAugust election   OS 1935, the people of Texas,
    mindful OS this obligation,    amended our baslo lav instructing
    their legislature  to, among other things, provide assistance
    to the aged and needy.    At this election   the people voted Into
    the Constitution  of the State of Texas, SectIon 51-b of Article
    3, vhlch empovered thaLeglslatur9    to provide for old age as-
    sistance  to bona Side citizens   of Texas over the age of 65
Honorable     John H. Waters,   page 3


years, vlth certain aonatltutlonal         lImItatIona   and restrlo-
t Ions.   Pursuant to this constitutional        mandate the Leglsla-
ture wased the Public Welfare Aot vhloh Is oarrled Into Ver-
non’s Civil Statutes OS the State OS Texas Annotated as Arti-
ale 6g5c.     Section 20 OS 8r.l.d designated Article      6950 sets out
the elIglbllIty     OS persons to odl age assistance.        And Sections
22 and’ 23 OS the Artlole     provide for applications      Sor asslst-
ante and the Ineveatlgatlon       by the State Department OS Pub110
Welfare.     Section 2f provides     for frequent reconslderatlon       and
reinvestigation     OS all asalstanae      granted under the provl-
alons of this aot to needy, aged persons.’            And said Section
24 also authorizes      upon suoh re-examination      a change In the
amount of payment or the removal of the r9cIpIent,1s name from
recelvlng    such asslstanoo    “IS the Stat9 Department finds that
the recipient’s     circumstances    shall have altered sufflc~ently
to varrant such action.       The Stat9 Department may at any time
cancel and revoke assistance       or It may suspend asalatance        for
such period of the recipient       under the provisions     OS this Act.
   enever assistance     Is thus withdrawn, revoked, suspended, or
  n any vay changed, the State Department shall at once notISy
3th
the recipient     of such decision.”      Section 25 authorizes     an
appeal by the aggrieved applicant         or reolplent.
              Section 29 of the Act,     (695c)as   amended by the 48th’
Legislature     Is as Sollovs:

             “Old age assistance,    9 l l shall not be
      transferable    or assignable,    at law or in iqulty,
      and none of the money paid or payable-under         the
      provisions    of this Act shall be subjeot to ex-
      ecution,   levy, attachment,     garnishment, or other
      legal proc989, o? to the operation        OS any lnsol-
      vency lav; the provisions      of this Act provIdLng
      for old age assistance      + l l shall not be conatru-
      ed as a vested rIr?ht In the recIPl9nt        of such as-
      sistance; g~v$bfi       hzcw;vz;, ol; ~~~f~&P~;;d””      vho
      Is an app              PI               R
         l l living   on the first   day of any month. or llv-
      Ing at the date of the Issuance of the check, or
      1ivInz at the date of the mailing of the check,
      and entitled    to assistance    for that month. dies
      before the check issued for such assistance,         for
      the month in which the death occurs. has been en-
      dorsed Qr cashed by recipient,        the amount  Of said
                                                                               838


Honorable   John Ii. Winters,    page 4


      check may be paid to any person determined by the
      department of Publla Welfare to have been respon-
      sible for the oaring oS ther9oIDIent      at the t,Ime
      of his death and reSDonSibl9 for the payment of
      obligations   Incurred:    th9 Counts JUdR9 of the coun-
      kv vherein therecini-,-‘&it died vii1 en;iorse the check
      &able     only to the person whom the Department of
      Public Welfare has determined responsible       for the
      care OS ,the reolplent     at the time OS the latter’s
      death and who Is responsible      for the payment of
      obligations   Incurred by the recipient;     s l s”
      (Underscoring   ours)
           It Is of significance   that the statute does not pro-
vlde for partial  payment OS the assistance    - that la prorating
the amount of the payment a8 of the date of the death - but
the statute authorlees   the full and oomplete amount oS the as-
sistance  due, as though the recipient   was still  living.
            Section 35 states the purpose of the Act and enjoins
a liberal   construction.   It Is as Sollova :
             “The purpose OS this Act la to Inaugurate a
      program of social    security   and to provide neces-
      sary and prompt assistance      to the citizens   of this
      Stat9 vho are entitled      to avail themselves OS Its
      provisions.    This Act shall be liberally      oonstrued
      In order that lls purposes msy be accomplished as
      equitably,   economically,    and expeditiously   as pos-
      sibl8. ”
             The above constitutional   and statutory      provision     Is
a break with the barbarity      of the common law.      It presents      the
modern VI9V of the government’s duty to the helpless            and un-
fortunate;    and like all of our recent socisl      legislation,      It
1s based on the Bible conception      of social   justice.      “And if
thy brother be waxen poor, and fallen       In d8Oay vlth thee,
then thou shalt relieve     him; yea, thou&she be a stranger,            or
a sojourner;    that he may live with thee.       (hevitlous      25:35).

          Judge Brevs ter,      speaking for the Supreme Court In
Powers vs. First National       Bank of Corslcana (1942), 161 S. W.
12d) 273, 276, said:
             “That the hungry must be fed and the naked
      clothed has long been accepted by th9civilIs8d
      social   conscience the world over.  For some time
Honoraole   John H. Winters,    page 5


     and In many countries       it has been reoognlzed     as an
     obligation    attaching to the government itself         to be
     discharged    by publlo taxatlQ,n.     It Is a duty that
     enlightened    aountrles mskd every reasonable        effort
     to perr0r8i. For 01amp10, vhlle our Constitution                 ,
     says the legislature      oan make no private grant of
     pub110 moneys, it empovers that branch of the govern-
     ment to grant aid to indigent and disabled Confeder-
     ate soldiers     and sailors.    Art.  3, sea. 51, Texas
     Const.     During the vldespread economic distress          of
     the last decade a constitutional        amendment was
     adopted by the people of Texas authorizing          the leg-
     islature    to issue ‘Bread Bonds’ In amount not to
     exoeed tventy million dollars,        the proceeds of the
     sale of whloh vere ‘tobe used In furnishing          relief     *
     and work relief     to needy and distressed     people and
     In relieving     the hardships resulting     from unemploy-
     ment . ( .Art. 3, Sec. 51a, ibid.       This actlon~ the .
     legislature    promptly took and tventy million        dol-
     lars was spent, and the bonds are being liquidated
     from the -state treasury.       Ming    the same era the
     Government of the United States poured out billions
     from the federal treasury to sustain mllllons            of our
     poverty stricken citizens,       the program being fl-
     nanced party by current taxation and partly          by un-
     precedented    expansion of the national      debt.    The
     people cheerfully     support such measures because
     the purpose served 1s vital and presents an undenl-
     able appeal to every humane Instinct        of clvlllsed
     man. Inttanaes might be multiplied         but PO useful
     purpose.
           Revised Civil Statutes,  1925, Article   10,        sets forth
the rule whlah governs the construction   of all olvll          statutory
enactments and Section 8 of said Article   spealflcally          provides
that:
             “The rule of the common lav that statutes
     In derogatlgn     thereof shall be strlotly     construed
     shall have no application      to the Revised Statutes;
     but the said statutes shall constitute        the law of
     this State respecting      the subjeots  to vhlch they
     relate;    and the provisions   thereof shall be liber-
     ally construed with a vlev to effect        their objects
     and to promote justice.”
          Familiar examples of our ooUrt’8          liberal construction
of our home and family protective  statutes         are the exemption
statutes.  Thus Article 3832, sub-sectlons          9 and 10, exempt
Honorable     John II. i’iintera,   pgr   6



“tYi0    horses and one wa6oP and “OAO carriage or buggy*.     our
courtr     have held that a truok is a wnaEon*within this :\rtl-
                                                , &58 3. i. 223;
                                             tit an automobile
                                      , 127 3. 111.881; rovehouse


            kgain, nourrent waues for personal fdttrvlces~ are
exempt, (Revised Statutes,  lQ25, Article 40991 ArtiCle   3&&i,
sub-seotlon 16).  The term “ourrent wagesw has been defined
to bei                            >
                  *8uoh compensation i: or personal senloes     as
         are to be pald periodically,     or from time t) tlnrs,
         as the sarvioea are rerderad,     as wtiesre the servioes
         are to be paid for by the hour, day, weak, R0Ath,
         or year.    ;&en wagea are payable monthly, t&s term
         means ~a$e~nfor ths month ourrent at a partioular
         tiule )         25 C.J.s.  37 n. 47, 48, oiting numar-
         OUS TOILISdeal 810~s.
             Cur oourts have held the statutes applloable    so
long as the wades are unaolleotedj   smith VS. @ak curs    Bank
and Trust CO~&WMJ99 5. ii. (2d) 111X3. Past Que wages lefi
wath employer ‘9aokBe thoy cannot   be colleoted  are held to be
"ourrent :%iges* aAd are eiempt under the statutesj   bzt past
due wa,ms voluntsrilv   loft with the ecnclomr are held nat to
be “&rent    wagea*. -3&idSOA VS. .a. 3;~ Lb&emSB$Xk      COmpELA&
4l 3. ii. 824.

                Eere both of the reolplsnts,      husband and wife,
alive at the time the oheoke were issued, mailed or reoeived
there would be no question of their right to reoeive t,ke past-
due pa$iieAts.      Does death abate this right?      We think not.
The unotlous action of mOderA legislation          and deCisloAs has
praotically     done away with the harshness Of the OO=inOAlaw
rule, epitomized in the Latin mez&mUat *Act10 personalis
mOritUr oom perSOna* (a personal         r&tit  of SOtiOA diea 1~1th
the person).       "At COlRmOA l&W,  every   peAdiAg RotiOn, ;tihether
fourdad OA oontrhot or tort,        abated by tb death of a sole
plaIntiff    or Sole defendant ilnd oould prooeed 110 further;        it
perished.*      .\batemeAt and FIeviva&, 1 .km. Jur. 59 1~.     56.     IA
Texas %here t,,Ta caUse 31 sczion is one .xLhlch S:.:rvivea, no
suit ah&l abcite beoauoe of the death of any gcrty thereto
before :he verdict      or deciSi.OA of the court is rendered,      but
YTLC!I sU;uit shall proceed to jUd&IeAt aS hareiA:Qtter provided."
 (T. J.. C. :', I:o. 150).
                                                                      841

IIonorade   John &   &iter3,    page 7


           "In detornining   &ether a cause of action
     abates Or aurvires at oomon law the nature of the
     right Of aotion is to be looked to rather than
     the rom! in whioh the right 13 asserted."     Abate-
     slent emd Revival,   1 Tex. Jur. 26, n. 13.   -

             "Aa a r;eneral rule oauaes or aotlon whloh are
     not assignable do not survive, while oause8 or
     aotions    whica sro assignable     do survi~o.      But this
     Is beoausa Of qualltiee        that inhere    1x1 the nature
     or the right rather than in the quality of assign-
     ability    or non-aesignability.        Eienor were a 3tatute
     enaoted for a rpeoial purpoao, as tar proteotion
     or the oiaimant a:;ainst irmprovidence, forbid3 a9-
     signment, nonsurvivability        doee not neoeaesrily
     result.     Sspeoially   1s this the Nh where the
     same statute also Drovides that the oause of ao-
     tion shall survire.~       abatement and Rerlval,       1
     Tax. Jur. 26-28, note3 1 acd 2.
             In this connection  Seoiion 29 of Art1013 6950 spe-
cirically    providea ror survival  0r the paynrsnt aesistance  ror
1 t provides a lnethod where a oheok oan be oashed when the re-
cipient    died b&ore ita reoolpt    b7 the reoipient,  and it au-
t’.~orizes
   .        the oomplete payment af tha amount due.
            :fhile unquestionably the right to the assistance
pqmenta is personal to the reoigient,      Just as are the right
to olaim ths exeurption benof'ita sf our statutes,   the statute
(?1950, Aec. 29, 8s mended) dose provide ror aunivorship       in
tF&t it authorizes    the oashing the marth’s oheok in which the
death ocourred.
             It is our O~~SI~OAthat the right to a33lstame          13
novammental and that the statutorv          &arm *where the reoioient
'iii~i-bGii%   the cheek issued for &a~ asristanoe, for the -
n?.oonthin whioh t;?eath       ooourred, has been endorsed or cashed
b!? the reOiDieAt. t&i amount or CheOk shall be paid,"            (Art.
6550, 580, i9) should be liberally        oonetrued.   ?hat-it    should
be oongtrued in line with 3ur oourtfs ooustxuction           H "ourrent
wages" ani *horse, carriage        and bwgy* provisiOns     of our exenp-
tiOA statztc3.     The csurts rec0i;ni~e t!le &rest iifficulty        in
frruni= an7 statute ahlch shall derinitely         3nd 3pJoificall7
aDply 13 all ;,oouible     situations.    It thereforo   bti~om3 neoes-
 sary t0 osnsider   the  circumstances    JP each icdividual    cosa and
aDi,ly It Lo t:i3 ~'31~el'al view 0r trs la;i in ,uoctioA.      As stated
                                                                        842

Honorable   John ki. .tiAterg,   page 8


by Chlcf Justioe 2haw, In Commonw8alth vs. hunt (1242 Mass).
4 Letoalr,  111, p. 129;     vThe law 18 Aot to be hoodwinked by
oolorable  pretenses.     It looks at truth and reality,  through
whatever disguise     It may aamuae.~
             ::'beie  an a,rglicaAt,    ComiAC .&thin tha measurements
or the law, rile8 his applioation            & ‘has a 00Astitutf.0nal
right to assi6t=Ce;         a right yhhloh should not be deAled him
because of Son8 rleldworker~a           error in wrollgfullp removing
the 6ppli;aAt*s       nam8 from the roll and when that wrong was
correoted,      it xaa aorreoted and righted as of the data When
the error wae iir3t       made. To hold sthemi~!,        is to ;lunish
one for the wrow of another.             Yinoe the deoeased was an ao-
tual reolgient       of the rund, theA a3 a matter of jUSti           and
e&ty     the unpaid assiotanoe         Should be paid to the person
who took care Of the deceased pondi&% the appeal, as found
by the department.        That paxion is eAtitled      to the aid with-
held from th8 deceaoed through no fault of her OWIL It is
manifestly      unfair to punish OLS for the nistalaen judgment of
another -- especially        1s thle true Where under the atitted
faotsof    this Case reoipient        i'us already rsoeivi~     aid ond
asslstaaoe      and gaymaat WQS auspSndcd pen&n2 o;,pc~al and fur-
t;ler lnvestlgation.        Certainly,     one has M vested right to
paymeAtS not yet be.;un.         ,mtUre payU'IeAt8 ana not j.Avolved.
.&at is iuvolved,       is past-due payments.       In our opi~io5 the
statute should be construed llberally'and            in line tith our
8X8ih&&iOnStatutes.

           .ilso,  tho stotuta flrthor    prsvi;tea "that all old
age assistance    . . . warrants not oashod, as previded by this
Xot, within a rea3oAabla time after isauanoe my be oancelled
by the jtato Congtrollor     upon proper outhorlzation     of the
State ilepartment of >ublio ‘::8lfare*     (:ut. 6950, rjboe 29).
In the imta~.b oaao at nsst all thsra rCmained to do xas the
manual or plnysioal ‘lot of issul~g     the warrants for the :;ppeal
noard had reinstuted    recipitmt   @or     to her death; aAd she
had been .plPced back on the rolls as of the dztC sf hCr re-
mov31. Zare the xzrran$s had boon Issued.           "hey should Aot
haye beer; recalled,   for in our opition      'de WarraAtS, not hav-
iAg been oasA6d s reasor;.atle time after their iE~Sl:MCo, should
kaya bcon alJ.mad to jass bafors their ~aACellatiCn or rsoall.
l!onorable   John il. ;iintars,   ;a@   9


           ‘de, therefore, mwsr your rim lquiry ir the af-
firmative  and as to your z.eoond inquiry, the warrants are in
the oatezory ol uncashed warrants and the statutes as to de-
cedantte e&ate control.
                                                 Your6 very   truly




                                            BY
                                                         David ‘Xmtoh
                                                              ir.3sistaot
