,




                                 27, 1988




    Honorable Kent A. Caperton     Opinion No.   JM-924
    Chairman
    Jurisprudence Committee        Re: Whether section 81(a)(9)
    Texas State Senate             of the Probate Code, which
    P. 0. Box 12068                requires  an applicant    for
    Austin, Texas   78711          probate of a will to disclose
                                   his social security   number,
                                   conflicts with  section 7 of
                                   the Federal Privacy Act
                                   (RQ-1326)

    Dear Senator Caperton:

         you request an opinion concerning the constitutionality
    of section 81 (a)(9) of the Probate Code, which was adopted
    by House Bill No. 364 of the 70th legislature.        Section
    81(a) of the Probate Code now reads in part:

                (a) For Probate of a Written Will.       A
            written will shall, if within the control   of
            the applicant, be filed with the application
            for its probate,   and shall remain   in the
            custody of the county clerk unless removed
            therefrom by order of
            application for probatea %"?rwr~~%*       wit?
            shall state:

               .   .   .   .

               (9) The social securitv number      of     the
            annlicant and of the decedent.

               The foregoing matters shall be stated and
            averred in the application to the extent that
            they are known to the applicant, or can with
            reasonable diligence be ascertained by him,
            and if any of such matters is not stated or
            averred in the application, the application
            shall set forth the reason why such matter is
            not so stated and averred.   (Emphasis added.)




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Honorable Kent A. Caperton - Page 2    (JM-924)




Acts 1987, 70th Leg., ch. 463, $1, at 4082. The underlined
provision was adopted by the 70th legislature.    YOU ask
whether this provision is in conflict with section   7 of
Public Law 93-579, the Federal Privacy Act.

     Section 7 of the Federal Privacy Act states as follows:

           (a)(l) It shall be     unlawful   for  any
       Federal, State or local government agency to
       deny to any individual any right, benefit,  or
       privilege provided  by law because     of such
       individual's refusal to disclose    his social
       security account number.

           (2) the provisions of paragraph        (1) of
       this subsection shall not apply with       respect
       to --

             (A) any disclosure which is required by
          Federal statute, or

             (B) the disclosure of a social security
          number to any Federal,    State, or local
          agency maintaining a system of records   in
          existence and operating before January   1,
          1975, if such disclosure was required under
          statute or regulation adopted prior to such
          date to verify the identity of an indivi-
          dual.

           (b) Any Federal, State, or local govern-
       ment agency which requests   an individual   to
       disclose his social security account number
       shall inform that individual whether       that
       disclosure is mandatory or voluntary, by what
       statutory or other authority   such number   is
       solicited, and what uses will be made of it.

Act of Dec. 31, 1974, P.L. 93-579, § 7, 88 Stat. 1905, as
amended by Act of June 1, 1977, P.L. 95-38, 91 Stat.   179
(reprinted at 5 U.S.C.A. 5 552 historical note).

     The adoption of section 7 was prompted by congressional
apprehension about the possible development   of a national
data bank or other information system that would allow
speedy retrieval of all personal information about an indi-
vidual.  S. Rep. No. 93-1183, 93d Cong. 2d Sess. reDrinted
b 1974 U.S. Code Cong. 8 Admin.. News 6916, 6943-44.        A
common numerical  identifier,  such as a social security
account number, would be an essential    feature of such a




                             p. 4635
,
    Honorable Kent A. Caperton - Page 3     (JM-924)




    system. The social security number had been the common
    number most used by governmental   agencies and private
    entities in recent years. Id.

         Section 7 prohibits states from denying to an individ-
    ual "any right, benefit,     or privilege   provided   by lawl'
    because of his refusal to disclose his social security
    number. Section 7 sets out two exceptions to the prohibi-
    tion. Subsection (2)(A) of section 7 permits disclosures
    required by federal statute. Section       405(c)(2)(C)(i)   of
    title 42 permits   states and political   subdivisions to use
    social security numbers for identification "in the adminis-
    tration of any tax, general public assistance,         driver's
    license, or motor vehicle      registration   law within    its
    jurisdiction" and to require individuals     affected by such
    laws to furnish their social security numbers to the state.
    See also Green v. Philbrook     576 F.2d 440    (2d Cir. 1978)
    (federal law requires applicints   for and recipients of Aid
    to Families with Dependent      Children to furnish social
    security numbers).   Section 81(a)(9) was adopted to assist
    courts to determine the relationships between applicants and
    decedents and the identity of applicants       and decedents.
    Bill Analysis, Tex. H.B. 364, 70th Leg. (1987). The federal
    statute does not authorize     the use of social security
    numbers for this purpose. Thus, section 81(a)(9). of the
    Probate Code is not authorized by section 405(c)(2)(C)(i) of
    title 42.

         Nor is the amended section 81(a)(9) of the Probate Code
    a statute adopted prior to January 1, 1975. Therefore,     it
    is not within the exemption found in subsection      2(B) of
    section 7, which allows the state to require disclosure    of
    social security numbers to an agency    in operation   before
    January 1, 1975, if the disclosure was required by a statute
    adopted before that date.

         To the extent section 81(a)(9) of the Probate Code is
    inconsistent with section 7 of the Federal Privacy Act,   it
    will be invalid under the supremacy clause of the United
    States Constitution.  U.S. Const. art. VI, cl. 2. Section 7
    of the Privacy Act prohibits a state from denying an indivi-
    dual a right, benefit, or privilege provided by law because
    of his refusal to disclose his social security       account
    number. Therefore, an application for probate of a will may
    not be denied based on the applicant's refusal to supply his
    own social security number. The state may request that he
    disclose his social security number, informing him that the
    disclosure is voluntary, and providing the other information
    required by section 7(b) of the Privacy Act. See u enerally
    Yeaaer v. Hackensack Water Co., 615 F.Supp. 1087     (D.N.J.




                                  p. 4636
Honorable Kent A. Caperton - Page 4   (JM-924)




1985) (water company acting under state water    restriction
order could not obtain social security numbers of customers
until it complied with disclosure provision of Privacy Act).

     We believe that the state may require the applicant    to
provide the decedent's social security number when applying
for probate   of the decedent's will.     Section  7 of the
Privacy Act relates to an individual's    right to refuse to
disclose his social security number. An "individualql is
defined by the Privacy Act as *a citizen of the United
States or an alien lawfully admitted     for permanent   resi-
dence."   5 U.S.C.A. §552a(a). These terms describe a living
person.    The Privacy Act gives an individual         certain
rights over the disclosure of information concerning      him.
5 U.S.C.A. 5552a(b).     The parent of a minor or a legal
guardian of an individual who has been judicially    declared
incompetent may act on behalf of the individual.   5 U.S.C.A.
§552a(h). There     is no provision for representation of a
deceased person. The absence of such a provision,     combined
with the definition of "individual"     suggests to us that
section 7 of the Federal Privacy Act does not apply to the
social security   numbers of deceased persons.    We believe
this reading of section 7 is consistent with the congres-
sional purpose    of limiting harm to individual       privacy
through misuse of information   systems. As a general    rule,
an individual's right of privacy lapses upon his death.    See
Attorney General Opinion H-917 (1976). Based on our read%
of the Federal Privacy Act, and in the absence of a contrary
federal interpretation of this statute, we conclude that the
requirement of Probate Code section 81(a)(9) that applica-
tions for probate include the decedent's     social security
number is not superseded     by the federal law and may be
followed as written.

                       SUMMARy

            Section 81(a)(9) of the Probate Code is
       invalid as inconsistent with section 7 of the
       Federal Privacy Act to the extent that       it
       requires an applicant for probate of a written
       will to state. his social security account
       number on the application.  The applicant  may
       be requested   to give his social security
       number voluntarily    if he is provided    the
       following information:  whether the disclosure
       is mandatory or voluntary, by what statutory
       or other authority the number is sought, and
       what uses will be made of it, The federal
       Privacy Act does not prohibit a requirement




                              p. 4637'
Honorable Kent A. Caperton - Page 5       (JM-924)




       that the decedent's social security number    be
       included on the application.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCRHARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General.

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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