The Attorney General of Texas 

December 8, 1978 

JOHN L. HILL 

Attorney General 

Honorable Joe Wyatt, Jr. 

Chairman 

House Committee on Ways & Means 

State Capitol 

Austin, Texas 78711 

Dear Representative Wyatt: 

Opinion No. H- 1274 

Re: Administration of article 

VIII, section l-d of the Texas 

Constitution. 

You have requested our opinion regarding the administration of 

article 8, section l-d of the Texas Constitution. That provision governs the 

assessment of lands for agricultural use. An applicant for the agricultural use 

designation must submit to the local tax assessor a sworn statement 

“describing the use to which the land is devoted,” and the assessor is then 

directed to “determine whether or not such land qualifies for the designation.” You state that certain local tax assessors require an applicant, as a 

condition of filing the application for agricultural use designation, to furnish 

a copy of his federal income tax return for the preceding year. Copies of the 

returns are ordinarily duplicated by the assessor and retained as part of his 

records. You ask whether, in light of federal law, a tax assessor may impose 

this requirement. 

Subsection (d) of article 8, section l-d empowers a local tax assessor to 

inspect the land and require such evidence of use and 

source of income as may be necessary or useful in 

determining whether or not the ~agrfcultural use 

provision of thisilrlicle~applies. .~_ .~~ ~~. 

In our opinion, this provision furnishes sufficient authorization for a tax 

assessor to require the-submission of relevant portions of an applicant’s 

federal tax return. We are not aware of any provision of state law which 

would preclude the imposition of such a requirement. With regard to federal 

law, 26 U.S.C. S 6103 provides, in pertinent part: 

(a) General rule. - Returns and return information 

shall be confidential, and except as authorized by this 

title - 

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Honorable Joe Wyatt, Jr. - Page 2 (H-1274) 

(1) no officer or employee of the United States, 

(2) no officer or employee of any State or of any 

local child support enforcement agency who has or had 

access to returns or return information under this section 

.a.. 

shall disclose any return or return information obtained 

by him in any manner in connection with this service as 

such an officer or any employee or otherwise under the 

provisions of this section. For purposes of this subsection, the term “officer or employee” includes a 

former officer or employee. 

. . . . 

Cd) Disclosure to State tax officials. - Returns and 

return information with respect to taxes imposed by 

chapters l, 2, 6, ll, 12, 21, 23, 24, 44, 51, and 52 of subchapter 

D of chapter 36, shall be open to inspection by or disclosure 

to any State agency, body, or commission, or its legal 

representative, which is charged under the laws of such 

State with responsibility for the administration of State tax 

laws for the purpose of, and only to the extent necessary in, 

the administration of such laws, including any procedures 

with respect to locating any person who may be entitled to a 

refund. Such inspection shall be permitted, or such 

disclosure made, only upon written request by the head of 

such agency, body, or commission, and only to the representatives of such agency, body, or commission designated in 

such written request as the individuals who are to inspect or 

to receive the return or return information on’behalf of such 

agency, body, or commission. Such representatives shall note 

include any individual who is the chief executive officer of 

such State or who is neither an employee or legal representative of such agency, body, or commission nor a person 

described in subsection (n). However, such return information shall not be disclosed to the extent that the Secretary 

determines that such disclosure aould.identify a.confidential- --- .-- .-- -.- ;- 

informant or seriously impair any civil or crim,inal tax 

investigation. 

Under the 1976 amendment to section 6103. returns and return information may not 

be disclosed “to local tax authorities, either directly by the 1.R.S. or indirectly by 

the State tax authorities.” 

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Honorable Joe Wyatt, Jr. - Page 3 (H-1274) 

Public Law 94-455, 1976 U.S. Code Cong. 61 Adm. News, at 3760. Section 7213 

makes it unlawful for any federal or state officer or employee to disclose returns 

or return information “to any person, except as authorized in this title.” The 

penalty for such disclosure was increased from a misdemeanor to a felony in 1976. 

26 U.S.C. S 7213(a). See 1976 U.S. Code Cong. & Adm. News, at 3776-78. 

- 

In the situation you pose, however, the local tax assessor does not obtain the 

tax returns from any state or federal officer or employee, but rather from the 

taxpayer himself. In United States ex rel. Carthan v. Sheriff, City of New York, 

330 F.2d 100 (2d Cir.), cert. denied, 379 U.S. 929 (1964), a state court in New York 

had jailed an individual for criminal contempt because he refused to produce his 

federal income tax returns that had been requested by a grand jury. On petition for 

habeas corpus, the federal court rejected the applicability of section 6103: 

The disclosure of tax returns which is forbidden by both 

federal and state law to protect the integrity of the tax 

reporting and collecting system is an unauthorized disclosure 

of the filed returns, directed primarily against employees of 

government in the taxing departments. Disclosure by a 

taxpayer himself of his copies of returns is not an 

unauthorized disclosure, even though it is made by reason of 

legal compulsion. 

330 F.2d at 101. Thus, when it is the taxpayer himself who makes his return 

available, even though he is compelled to do so in order to obtain the agricultural 

use designation, federal law does not intervene. We conclude that a local tax 

assessor is not prohibited from imposing a requirement that applicants for 

agricultural use designation furnish him with copies of relevant portions of their 

federal income tax returns. 

You also ask whether tax returns so furnished constitute a public record under 

the Open Records Act, article 6252-17a, V.T.C.S. Section 3(a)(l) of the Act excepts 

from disclosure “information deemed confidential by law, either Constitutional, 

statutory, or by judicial decision.” 

This orovision aoolies to information the disclosure of which would constitute 

. . 

an invasion of an individual’s constitutional or common law right of privacy. 

Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 

668 (Tex. 1976). An individual does not waive his privacy interest in information 

merely because he has disclosed it to a governmental body.. rd, at ,679, 685. 

The United States Supreme Court has not ruled that personal financial 

information is within a constitutionally protected zone of privacy, but it has 

indicated that unrestricted public disclosure of such information would raise serious 

constitutional questions. In Whalen v. Roe, 429 U.S. 589, 605 (1977), the Court said 

it was “not unaware of the threat to privacy implicit in the accumulation of vast 

amounts of personal information ” by. the government in connection with the 

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Honorable Joe Wyatt, Jr. - Page 4 (H-1274 1 

collection of taxes, distribution of welfare and social security benefits and other 

governmental activities. The Court pointed out that the collection of such personal 

and potentially embarrassing information is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted dixlosure, and 

recognized “that in some circumstances that duty arguably has its roots in the 

Constitution. . . .” 

In an earlier case, the Court upheld certain regulations requiring record 

keeping and reporting by banks of personal financial information. Three justices 

dissented, and two concurred in the decision while expressing doubt as follows: 

A significant extention of the regulations’ reporting 

requirements, however, would pose substantial and difficult 

constitutional questions for me. In their full reach, the 

reports apparently authorized by the openended language of 

the Act touch upon intimate areas of an individual’s personal 

affairs. Financial transactions can reveal much about a 

person’s activities, associations, and beliefs. At some point, 

government intrusion upon these areas would implicate 

legitimate expectations of privacy. . . . 

ClalLfo;rn; Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., joined by 

k , J., concurrmg). 

The Supreme Court of Texas has expressed the view that federal tax returns 

are protected by a right of privacy. In Maresca v. Marks, 362 S.W.2d 299 (Tex. 

19621, the court reversed a trial court’s order that two individuals permit opposing 

counsel to inspect and copy their entire income tax returns for certain years. The 

court, holding that the order to produce should have been limited to those portions 

of the returns which were relevant and material to the matter in controversy, 

observed: 

The protectionof privacy is of fundamental - ,indeed, of 

constitutional -- importance. Subjecting federal income tax 

returns of our citizens to discovery is sustainable only 

because the pursuit of ‘justice between~ litigants outweighs 

protection of their privacy. But sacrifice of the latter 

should be kept to the minimum, and this requires scrupulous 

limitation of discovery to ~~information ~-~furthering justices 

between the parties which, in turn, can only be information 

of relevancy and materiality to the matters in controversy. 

362 S.W.2d at 301. The court has referred to this case as dealing with “certain 

highly confidential information.” Allen v. Humphreys, 559 S.W.2d 798, 801 (Tex. 

1977). See atso Crane v. Tunks, 328 S. W.2d 434, 440 (Tex. 1959). 

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Honorable Joe Wyatt, Jr. - Page 5 (H-1274) 

Although, as has been noted, section 6103 is “directed primarily against 

employees of government,” and is not strictly applicable where the taxpayer 

himself makes hts return available, the statute does evince a strong federal policy 

that tax returns are to be accorded a high degree of confidentiality. The severe 

penalties attached to unwarranted disclosure are applicable even to a person “who 

prints or publishes any return information which he knows was disclosed to him in 

violation of the law.. . . ” 26 U.S.C. S 7213(a)(3); 1976 U.S. Code Cong. & Adm. 

News, at 3777. The federal statute additionally prohibits the disclosure of any 

return, after December 31, 1978, to an officer or employee of any state which 

requires its taxpayers to submit copies of their federal tax returns when filing their 

state returns, unless that state has enacted “provisions of law which protect the 

confidentiality of the copy of the Federal return . . . attached.” 26 U.S.C. S 

6103(pX8MA). 

In light of the cautionary language of the United States Supreme Court, the, 

statement by the Texas Supreme Court that federal income tax returns are 

protected by a right of privacy in the context of discovery, and the federal 

statute’s strict protection of this information when held by or obtained through the 

federal government, we believe that the federal income tax return submitted to a 

tax assessor-ollector by an applicant for the agricultural use designation would be 

within the section 3(a)(l) exception of the Open Records Act as information deemed 

confidential by judicial decisions protecting privacy. 

The submission of a federal income tax return by a private citizen in 

connection with the assessment and collection of taxes is distinguishable from the 

situation where similar information is required to be submitted by public officials 

or employees under a financial disclosure statute or ordinance. In Attorney 

General Opinion H-1070 (1977), we said that we did not believe that portions of 

income tax returns filed with a city secretary under a proposed financial disclosure 

ordinance would be deemed confidential by law under section 3(a)(l). The criteria 

for determining whether information is excepted from disclosure as confidential by 

judicial decisions concerning privacy are whether publication of the information 

would be highly objectionable to a reasonable person, and whether the information 

is of legitimate public concern. Industrial Foundation of the South v. Texas 

Industrial Accident Board, m, at 686. Financial disclosure statutes have 

frequently been upheld on the basis that the public’s interest in efficient, ethical 

government predominates over the privacy interest of governmental officials and 

employees. See cases cited in Attorney General Opinion H-1070, p. 2 (1977). 

Ordinarily, nosuch legitimate public interest would exist in regard to the federal 

inrome tax return of a private citizen. 

SUMMARY 

A local tax assessor is not prohibited from imposing a 

requirement that applicants for the agricultural use designation, under article 8, section l-d of the Texas 

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Honorable Joe Wyatt, Jr. - Page 6 (H-1274) ’ 

Constitution, furnish him with copies of relevant Portions of 

their federal income tax returns, but tax returns so 

furnished are excepted from disclosure under the Open 

Records Act, article 6252-l7a, V.T.C.S. 

Very truT=G 

P 

N L. HILL 

Attorney General of Texas 

APPROVED: 

sLJ2-f 

NDALL, First Assistant 

C. ROBERT HEATH,-Chairman 

Opinion Committee 

isn 

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