            THEAITORNEYGENERAL

                        OF   TEXAS




Honorable John H. Winters
Executive"Dlrector
State Department of Public Welfare
Austin 3, Texas
Dear Sir:                Opinion No. O-6894
                         Re: The Department of Public Welfare
                              should not permit an official of
                              the Treasury Department to in- '_
                              spect and make photostatlccoples
                              of certain records relating to
                              old age assistance recipient,
                              whose son is beinglnvestigated
                              for income tax liability.
     .-."Yourrecent letter addressed to this office states'that
the Treasury Department, Internal Revenue Service,'has requested
the-Department of Public Welfare to permit an officlal~of'the
Treasury Department to inspect and makephotostatic copXes of
bertxnent bapers contained in your records relating to an old
ageassistance recipient whose son hisbeing 1nvestlgated~'fo'r
income tax liabilfty. You desire this departments opinron as
to'whether~or not the information requested by t'heInternally
Revenue Se'.rvice
                of the Treasury Department should be~disclosed
to the Treasury Department, based either upon an informal re-
quest oi?in'the court, should the Treasury Department Issue a
subpoena duces tecum.                                 .
        The Social Security Act, (Title 42, U.S.C.A. par 302)
provides:
        "(a) A State plan for old-age assistance must
    . . . (8) effective July 1, 1941, provide safeguards
    which restrict the use"'ordisclosure of Informantion
    concerning applicants and recipients to purpose dl-
    Pectly'connected with the administration of old-age
    assistance."
        Pursuant to this ~mandatory provision of the Federal
statute our statutes (Vernon's Annotated Civil Statutes, Art.
695c, Sec. 23) provides as follows:
        "Sec. 33. (1) It shall be unlawful, except for
    purposes directly connected with the administration
Honorable John H. Winters, page 2         0 -6894


   of general assistance, old age assistance; aid to
   the blind, or aid to dependent children, and in
   accoraance with
              .    .the^ rules and regulations of,the
                                                 .
   State Deparcmenc, I-orany person or persons co
   solicit, disclose, receive, tiake'usbof, or to"au-
   thorize, knowingly pertilt,pai?ticipateiii,' or ac-'
   puiesce'in"the use of, any-list'of, br names bf, or
   any information"c'oncei+ning, persons applying for or
   receiving such assfstance, directly or'lndir&ctly
   d&ived from the tiecords';  paupers,'
                                       files,'or bc%munl-
   bations of the State Department or subdivisions or
   agencies thereof, or &quired in the course of the
   performance of official duties.                   _.
         "(2) The tile-making power of the State Depart-
    ment shall include the power to establish and enforce
     reasonable rules'and regualtions governing 'the custody,
    use, and preservation of the records, p&per&, files,
     Andycommunications of the State Department and '%ts
     lbcal offices. WhereveP,~under provisions'of law,'
     names and addresses of recipients of piiblicassistance
     are furnished to or held by any other agency or de-
     partment of government, such agency or d&%ii+tmentof
     governtientshall'be required tomadopt regulations ~'
    necessary to prevent the publication of'llsttithereof
     or their use for purposes n&directly   connected with
     the administration of public assistance.
   .
         The Internal Revenue Code (Title 26 U.S.C.A.) par. 3614,
is as follows:
        "(a) To determine liability of the taxpayer.
    The Commissioner, for the purpose of ascertaining
    the correctness of any return or for the.purpbse of
    making a return where none has been made, is authoi+ized,
    by any officer or employee of the Bureau'of Internal
    Revenue, ihcludlng the field serv'ice,designated by
    H.fozi; that purpose',to"examine any books, uauers,
             or memoranda bearinn uvon the matters re-
   -quir&d io be included In the return, and may require
    the"attendance of the person rendering the return or
    of any~officer or employee of such person, or the
    attendance of any other person havlnu knOWledR=n
    the Dremlses; and may take his t&stimong with refer-
    ence to the matter reauired bs law to be Lncluded
    1n such return, with power to-administer oaths to
    such person or persons.
       "(b) To determine liability'of a transferee.
   The Commissioners, for the m.xrDose of determining
.   -




        Honorable John H. Wimters, page 3          o-6894



            the liabllllty at law or in eaultr of a transferee
            of the property of any person with respect to any
            Federal taxes imposed upon such person, is hereby~-.
            authorized, by any officer or employee of the Bureau
             f Internal Revenue including the.field service,
            doesignatedby,hIm"f& that purpose to' 'examineany
            bjooks,bauers;rdc'ords, ormemora&a~'bearMgupon
            such ITabllity, aid may require'the attendance ~of
            ttietransferor transferee,'or of any officer or
            employee'of'suCh person, or'the'attendanc~e'
                                                       of'any
            other"'persoii
                         having knowledge ln'the premises,“and ~*
            may take his testimony with reference to the matter,
            with power to administer oaths to such-"personor
            persons." (Underscoring ours for emphasis)    .,
                The~Interhal Revenue (Title 26 U.S.C.A.) par. 3633,
        further provides as follows:
                "(a) To enforce summbns. If any'person"'fs.' ,
            summoned under the internal'revenue laws to appear,
            'tbtestify, or to produce books, papers, ‘or other
            data, the district court of the United State'sfor
            the district in which such person residesshall
            have jurisdlctlbnby appropriate process'to com-
            pel such~attendance, testimony;,or production of
            books,
                 _ papers,
                      .    or other data.
                Paragraph 3197 of the 1l;tternal
                                               Revenue Code, (Title 26
        U.S.C.A.) entitled 'Definitions provides that:
                "(a) when used in this title, where not 'other-
            wise distinctly expressed or manifestly incompatible
            with the intent thereof -
                "(1) per'son".The term 'fperson'shall be con-
            strhed.to"'meanand include an individual, a trust
            estate, partnership, company, or corporation. ,,
                "(2) Partnership and'partner. The term 'part-
            nership' Includes 8 syndicate; group; pobl, joint
            venture, or other unincorporated organiiation,"'
            through or by means of which any business, financial
            operation, or ventiire Is carried on, ana which is
            not,'within the meaning'o'fthis title, a'.~trustor
            estate or a corporation; end the term 'partner'
            includes a member in sucha syndicate, group, pool,
            joint venture, or 0rganizatFon."                             _
                It should be noted that the-Public Welfare-Act 'o'f1939;’
        repealed by the present Public Welfare Act of 1941, contafned a
                                                                     -   .



     .,

Honorable John H. Winters, Pam   4       O-6894


corresponding provFslon to V.A.C.S., Art. 695c, Sec. 33, supra.
Referring to the records of the Public Welfare Department, the'
Act of 1939 provides that 'suchrecords "shall be open to lnspec-
tion only~to persons duly authorized by the State, or the
United States, to make such Inspection In connectionwith their
official duties." It'is~"alsoto be noted that- in 1939 the'
Social Security Act was amended by Congress by adding subdivl-
sion8 tosection 302,~'supra,and Inobedience to the"Congres-
slonal mandate the Texas Public Welfare Act of 1941 made no
such exception.
        The United States Supreme Court, in the case of Boske
vs.~Comi~~~ore,(1899)'177 U.S. 459,.44 Li ed. 846;..20'53.m'
701. upheld the regulationof the Secretarr of Treasurr'ln bro-
hrbiting the use o? Internal Revenue Collector for any"other ~
than purposesof collecting revenues and further thata colIec-
tor'of Internal Revenue cannot be held under State process on'.'.'
refusal to produce such records. .'Thlscase involved facts 'where
a collector of Internal Revenue had been adjudged In contempt
of a Kentucky State Court for refusing, while giving his depo-
sition, to file copies of reports in his custody. In affirming
the order of the United States District Court dlscharging.Xhe
Collector from thencustody of the Sheriff, the court declared
at pages 469-70 that:
        I,
         . . . This being the case, we do not perceive
    iipon.what'groundthe regulationin question can be
    regarded as inconsistent with law, unless Lt be"that
    the records and papers in the office of a collector
    of Internal revenue are at all times open,of right
    to inspection and examination by the public, despite
    the wishes of the Department. That cannot be admitted.
    The papers in question, copies of which were sought
    from the appellee, were the property of the United
    States, and were in his official custody under a
    regulation forbidding him to permit their use except
    for purposes relating to the collection of the revenue
    of the United States. Reasons of public policy may
    well have suggested the necessity, in the interest
    of!the Government, of not allowing access to the re-
    cords Ln the offices of collectors of internal revenue,
    except as might be directed by the Secretary of the
    Treasury. The Interests of persons compelled, under
    the revenue laws, to furnish information as to their
    private business affairs would often be seriously
    affected if the disclosure so made were not properly
    guarded. Besides, great confusion might arise in
    the business of the Department if the Secretary
    allowed the use of records and papers in the custody
    of collectors to depend upon the discretion or judg-
.   .A   .




             Honorable John H. Winters, page 5            o-6894


                 ment of subordinates. At any rate, the Secretary
                 deemed the regulation in question a wise and proper
                 one, and we cannot perceive that his action was be-
                 yond the authtrlty conferred upon him by Congress.
                 . . . . . . .
                        In Carter vs. Irvine (Waco Court of Civil Appeals 1934)
             77 S.W. 2d 247, the court    at page 249 said:
                        11
                       . . . It Is provided in the~federal code that
                 no revenue agent, except as provided by law, shall
                 divulge or make known the amount or source of ln-
                 come, profits, losses, expenditures, or any partlcu-
                 lar thereof set forth or disclosed in any income tax
                 return. A violation of said provision is declared
                 a misdemeanor and punishable by fine or imprisonment,
                 or both. 18 USCA, title 18, Sec. 216; Id., 26 USCA
                 Sections 62 and 1025. Restrictions imposed on revenue
                 agents and others by regulations issued by the Trea-
                 sury Department with reference to disclosures con-
                 cerning such returns have been held to have the force
                 and effect of law, and to constitute Immunity to such
                 agents from enforced disclosures with reference there-
                 to as witnesses In a state court. Boske vi Comingore.
                 177 U.S.~ 459, 20 S. Ct. 701, 44 L. Ed. 846; Stegail v;
                 Thurman (D.C.) 175 F. 813."
                     It is therefore the opinion of this department that the
             State Department of Public Welfare should not permit an official
             of the Treasury Department to Inspect and make photostatic copies
             of the records relating to an old age assistance recipient,
             whose son is being investigated for income tax liability.
                     However, In the event you are subpoenaed to appear and
             produce the records, before doing so we suggest that you con-
             sult this office.
                                                 Yours very truly
                                               ATTORNEY GENERAL OF TEXAS
             DW:zd:wc                            'By s/bavld Wuntch
                                                       David Wuntc'h
             APPROVED NOV 23, 1945                     Assistant
             s/Carlos C. Ashley
             FIRST ASSISTANT
             ATTORNEY GENERAL
             Approved Opinion Committee By s/BWB Chairman
