Honorable J. S. Murchison 

Executive Director 

State Department of Fublic 'Nelfare 

Austin, Texas 

Dear Sir: Opinion No. O-5399 

Re: Construction and application Of Senate Bill NO. 

169, Acts 48th Leg,, 

Regular Session. 

We have your letter of June 10, 1943 requesting 

our opinion on a number of questions concerning the above 

captioned subject. 

Senate Bill No. 169, supra, including its title, 

whereas clauses and'emergency clause, reads as follows: 

"AN ACT 

to amend Section 21 of Article 695c, of the 

Revised Civil Statutes of the State of Texas 

of the Year 1925 Codification, Chapter S,,under Title 20, being the Public Welfare Act of 

1941, also being House Bill No. 611 passed by 

the Regular Session of the 47th Legislature of the 

State of Texas, by adding a new section thereto to 

be known as sub-section 21a providing that the Department of Public Welfare shall not consider income derived in payment of labor actually performed 

or service rendered by the needy recipients of old 

age assistance or who may hereafter be placed on 

said rolls, where the total amount for any calendar 

year does not exceed Two Hundred Fifty ($250.00) 

Dollars, and declaring an emergency, 
- 

Bonorable J. S. Murchison, Page 2, 

'WHEF?EAS, The United States is how engaged 

in a tremendous war effort again& the Axis 

Fowers which has resulted in a serious and acute 

loss of man power in certain industries, and 

particularly in agriculture; and 

WJ%FJ?EAS,~,The Secretary of Ag,riculture, as 

well as the National Selective Service Director 

and other prominent leaders in the nation's war 

effort, now predict that there will be a great 

ford shortage facing our country during the current year which would not only tend to stifle our 

war efforts at home and abroad but would greatly 

slow down and curtail supplies to our allies under 

the Lend Lease Frogram; and 

'WHEREAS, The National Selective Service 

Di rector now estimates that at least one million 

(1 .,OOO,OOO) soldiers and sailors will have to be 

released from the armed forces, where they are so 

greatly needed, so as to return to the farms in 

order to avoid an acute shortage ~of food; and 

"WHEREAS, It has been the policy of the 

Department of Public Welfare, under House Bill 

No. 611, to remove old age assistance recipients 

from~ the trolls in the cases where such recipients 

temporarily engage in remunerative employment; 

with the r’esult that such old age assistance recipients have been constantly threatened with 

being removed from the rolls in cases where they 

accepted employment; and 

"WEREAS, It would be in furtherance of the 

war effort to relax the policies, rules and regulations of the Department of Public Welfare during 

this period of great emergency; in order to permit 

such recipients to do seasonal or temporary work 

without being threatened with removal from the 

pension~rolls, and thereby relieve the strain on 

agriculture and labor; now therefore BE IT ENACTED 

BY THE LECISL?TURE OF TBE STATE OF TEXAS: 
- 

Honorable J. S. Murchison, Page 3 

"Section 1. That Section 21 of Article 

695c, of the Revised Civil Statutes of the 

State of Texas of the Year 1925 Codification, 

Chapter 8, under Title 20, being the Public 

Welfare Act of 1941, also being House gill 

MO. 611 passed by the Regular Session of the 

47th Legislature of the State of Texas be 

amended by adding a new and additional section 

at the end thereof to be known as Section 21a, 

which shall hereafter read as follows: 

'Section 21a. Provided, however, that 

until the United States of America has concluded and entered into treaties of peace withall of the nations with whom she is now at war, 

commonly referred to as the Axis Powers, no 

grant of assistance to any recipient of old age 

assistance who is already on the rolls or who 

may hereafter be placed on said rolls, and is 

already receiving old age assistance, shall be 

reduced or revoked by reason of the fact that 

any such needy recipient may derive or receive 

other and additional income to take care of his 

additional needs above his grant, from seasonal 

or occasional employment, until and unless such 

needy recioient shall receive more than Two 

Hundred Fifty ($250.00) Dollars of outside and 

additional income during a calendar year; provided said recipient of old age pension reports 

,his said employment, in writing, to the local 

office of Public Welfare, giving the name and 

address of his employer or employers at the end 

of each month, and giving the amount of his 

earnings during the month just passed. Provided 

further, that neither the State Department of 

Public Xelfare nor any of its district or county 

agencies in the county or district in which the 

needy aged person resides shall give any consideration to any such income received by recipients 

of old age assistance up to the amount of Two 

Hundred Fifty (;;25O.C0) Dollars that is actualiy 

derived and received in payment for labor actually 

performed or services rendered during a calendar 

year.~ 
Yonorable J. S. Xurchison-, Page 4 

"It is the declared purpose of this section 

to encourage recipients of old age assistance to 

aid in overcoming, the greatshortage of manpower 

during this great wa~r emergency by performing 

necessary labor when and wherever possible without 

being faced with the possibility of having pensions reduced, or being removed from the pension 

rolls altogether." 

"Sec. 2. The fact that the United States 

of America is now engaged in a world-wide war, 

the prosecution of which is beins greatly hindered,because of an acute shortage of manpower, 

especially farm labor; and the further fact 

that it has been the policy of the Department 

of Public Welfare to consider income and other 

resources of aged persons who are the recipients 

of old age assistance by either reducing pensions 

or removing such persons from the cension rolls 

altogether, and because of such policy Were is 

a hesitancy and reluctance on the part of such 

old age recipients to engage in necessary labor 

which will either directly or indirectly aid in 

the prosecution of the war, creates an emergency 

and an imperative public necessity that the 

Con-titutional Rule requiring bills to be read 

in each House on three several days be suspended, 

and the Constitutional Rule requiring bills to go 

into effect ninety days fro= and after their 

passage, be and the same are hereby suspended, 

and this Act shall take effect and be in force 

from and after its passage, and it is'so enacted." 

Your first question is: 

'Toes Senate Bill No. 159 apply to recipients 

on the rolls as 

date?" 

of a certain date? If so, what 

Senate Bill No. 169 provides that "no grant of 

assistance to any recipient of old age assistance who is 

already on the rolls or who may hereafter be placed on sa 
Flonorable J. S. Murchison, Fare 5 

rolls, and is already receiving old age assistance, shall be 

reduced or revoked” by reason of earning certain income. 

It is clear from the plain language of the Act that its 

provisions apply,to all those persons who, at the time of 

the effective date of said Act, ase on the rolls and are 

already receiving old age assistance. In addition, we 

must give some effect to the phrase “or who may hereafter 

be placed on said rolls.” If we say that said phrase is 

modified by the phrase ‘Iand is already receiving old age 

assistance”:, it is rendered entirely meaningless because 

it is impossible for there to be a person who my hereafter 

be placed on said rolls~ who is already receiving old a&a 

assistance. 

The phrase “or who may hereafter be placed on 

said rolls” was added to Senate Bill 169 by Senate Amendment. Senate Journal, p. 93S, April 27, 1943. Ye must, 

therefore, give this phrase some meaning because,it cannot 

be presumed that the Legislature added a phrase to the Act 

which would be without meaning. To do this we must say 

that the phrase “or who may h-,reafter be placed on said 

rolls” is not modified by the phrase which immediately 

follows it. 

It follows that the provisions of Senate Pill 

?30. 169 apply to all persons who were receiving old age 

assistance at the time said Act became effective and to 

all persons who are subsequently placed on the rolls and 

given old age assistance. 

Your second guestion is: 

“Does Senate Bill No. 169 apply to the 

income being received bv persons applying for 

assistance after the effective date of the Act? 

If not, what effect should the gepartment give 

to t’:e phrase ‘or who may hereafter be placed 

on said rolls’?” 

In our opinion, the only purpose of Senate Bill 

No. 169 is to prevent the State Dc_nartment of FubliO Welfare 
. 

Bonorable J. S. Kurchisnn, Pa(ge 6 

from reducing or revoking old age assistance grants by reason 

of the fact that the recipients thereof rnceive certain additional income from seasonal or occasional employment. It 

follows that Sexate Bill Wo. 169 does not apply to the income being received by persons applying for assistance after 

the effective date of the Act. T::is for the reason that 

said Act applies only to certain incom? of those individuals 

receiving old age assistance and not to the income of those 

individuals applying for such assistance. It is only after 

such individuals have been placed on the rolls and granted 

old age assistance that they become recipients Who may 

hereafter be placed on said rolls". It follows that after 

such individuals have been given a g:rant of assistance, the 

provisions of Sei?;te Bill ?$o. 169 become immediately operative 

and they would be entitled to earn an additional income of 

$25Q.O0 per calendar year from seasonal or occasional employment without having their grant of assistance reduced or revoked. 

Your third question is: 

"Does the phrase 'outside and additional 

income' !,L used in Semte Bill No. 169 mean 

only income other than income which has already 

been considered by the Dcr;I'tment in determining 

eligibility and amount of grant of a given recipient?" 

1.o .mmt;r to your third question, it is our opinion 

that the phrase l'outside and additional income" mans income 

other than that incme which has already been considered by 

the State Dcpartiznt of Public mlfare in determining elibibility and amount of grant of a given recipient. To illustrate: "x" received old age assistance in the amount of 

$20.00 in Kay, 1943. This. paymentwas based on a finding by 

the State Deparlxlant of .Public %lfare that he needed ji30.00 

per month to provide himself with the basic necessities and 

because he had auincome of 310.00 per month. Still needing 

only $30.00 per month, "x'~ subsequently obtains employment 
Ponorable J. S. Plurchison, Page 7 

from which he receives an additional income of $250.00 per 

calendar year. The phrase in question has reference to the 

$350.00 but has no reference to the $10.00 per month income. 

We might add that in our opinion the term "such income" as 

used~in Senate Bill Ko. 169 has reference to and means the 

same thing as "outside and additional income". 

Your fourth question is: 

Yloes Senate Bill No. 169 apply to a recipient who had no'income on the effective date of 

the AC%? If so, what effect should be given the 

words Tadditional' and 'outside' in reference to 

income?" 

In answer to your fourth question, we are of the 

opinion that the provisions of Senate Bill No, 169 applies 

to every recipient on the old age assistance rolls as of Kay 

1, 1943 irrespective of whether such recipient had any income 

as of that date. We find no language in the Act which, to US, 

evidences a legislative intention to limit the provisions of 

.this Act to that group of old age recipients who actually had 

an income as of the effective date of said Act. To our minds 

the words "additional" and "outside 11 are used in a.descriptive 

sense to identif~y the particular income to which the Act has 

application. 

Since your fifth and sixth questions are somewhat 

related, we will discuss them together. Said questions are 

as follows: 

“5. Does Senate Bill No. 159 apply to a recipient receiving additional income from seasonal 

or occasional employment if the income is for nurposes other than 'to tak? care of his additional 

needs above his grant'?" 

"6. Does the phrase meads above his grant' 

as used in Senate Bill No. 169 mean the difference 

in the recipient's budgeted needs and the total of 

bis previously determined income and assistance 

grant?" 
Honorable J. S. Murchison, Page 8 

In replying to these questions, we deem it appropriate to refer to several sections of House Bill No. 611, 

Acts 47th Leg., R. S. P. 914 (Codified as ArtiCle 695c, 

V. A. C. S.) since the Act in question, Senate Bill No. 169, 

is an amendment thereto. Section 20 (5) provides: 

Vet. 20. Old Age Assistance shall be given 

under the provisions of this Act to any needy 

persons: 

*. . . . 

"(5) :Nho has not sufficient inccme or other 

resources to provide a reasonable subsistence compatible with health and decency. Provided that in 

consideration.of income and resources actually 

available to applicant the State Ag:ency shall not 

evaluate.income and resources which may be available 

only to relatives of applicant. Income and resources 

to be taken into consideration shall be known to exist 

and shall b5! available to the applicant. An applicant 

for old age assistance shall not bo denied assistance 

because of the existence of a child or other relative, 

exc5:nt husband or wifa;who is able- to contribute to 

the applicant's support? and no inquiry shall be made 

into the.financial ability of said child or other 

relative, exceot husband or wife, in dotermining applicant's eligibility. The applicant's child or 

other relative, except husband or wife, is to be 

treated by the State 3epartm?nt in the same way as 

any person not related to the applicant; any aid or 

contributions to the applicant from such child or 

other relative, except husband or wife, must actually, 

exist in fact, or with reasonable certainty, be available in the future to constitute a resource to the 

applicant." 

Section 21 provides: 

"Sec. 21. The amount of assistance which 

shall be given under the provisions of this Act 

to any individual as old age assistance shall be 

determined by the State Department through its 

district or county agencies in the county or district in which the needy aged person resides with 

due consideration to the income and oth,er resources 

Of such aged person and in accordance with the rules 
Fionorable J. S. Kurchison, Page 9 

and regulations of the State Department. A voluntary 

statement by any child or other relative, except husband or wife as to the amount and kind of aid or assistance he is contributing or expects to contribute 

to an applicant for old age assistance shall be accepted by the State Departmont as prima facie'evidence 

of the availability and amount of such contribution; 

provided, howcver, that actual contributions to the 

apolicant must be considered by the State Department. 

The amount of assistance given shall provide such 

aged person with a reasonable subsistence compatible 

with decency and health! within the limitations and 

provisions of the Constrtution of Texas as are nQrl 

provided, or may hereafter be provided." 

The above quoted provisions clearly provide that old 

age assistance shall be given to those who do not 'have sufficient income to provide a reasonable subsistance compatible 

with health and docancy. It is further provided that such assistance shall be given which will provide a qualified person 

with a reasonable. subsistence compatible with health and decency, By authority of thase provisions, the State Department 

of Public Welfare grants assistance to a qualified person by 

determining the amount of money such person n-ads to provide 

himself with'the basic necessities less the amount of his 

income, subject however to the Constitutional limitation. 

That is to say, if a person has income it is applied on 

his needs and the,grant of assistance rcprjsents need above 

income. It follows that when a person receives an amount 

of income in excess of his needs or equal to his needs, he 

iS not entitled to old age assistance as is provided by 

House Bill No. 611, supra (Article 69%). 

From what we have said, it follows that if the 

phrase "to take care of his additional needs above his grant'? 

be literally construed, then Senate Bill No. 169 means little, 

if anything, not already provided for by existing law. Illuse 

tration No. 1: "x7' was placed on the old age assistance rolls 

on January 1, 1943 with a grant of $20.00 per month. At that 

time, the Department of Public Welfare determined that he 

needed $35.00 per month to provide himself with the,basic 

necessities and that be had an income earned from employment 
Honorable J. S. Murchison, Page 10 

in the amount of $15.30 per month. The grant of assistance 

($20.00) represents his amount of needs ($35.00) less his 

amount of income ($15.00). As long as '*x7' needs no more 

than $35.00.per month to provide himself with the basic 

necessities, he would not be entitled to the benefits of 

Senate Bill No. 169 because he has no additional needs. 

Therefore, if the phrase "to take care of his additional 

needs above his grant" be given its literal meaning, Senate 

Bill No. 169 would heve no application to that group of.porsons typified by the above illustration. 

Illustration No. 2: Suppcsa that on July 1, 1943 

the State Department of Public Welfare finds that, due to 

the rise in the cost of living and/or other factors, '*x'* 

needs $55.00 per month to provide himself with the basic 

necessities. Under the existing law and without the need 

of Senate Bill No, 169, "~'9 could increase his earnings by 

an additional $20.00 per month and this additional income 

would in no way $opardize his grant of old age assistance 

in the amount of j2O.OC per month. Th,e amount of his grant 

($20.00) would still represent his amount of needs ($55.00) 

less the amount of his income ($35.00). 

A third illustration is where an individual needs 

$55.00 per month to provide himself with the basic necessities 

and has no income. Due to statutory and constitutional 

limitations, the State Department of Public Welfare can grant 

him no more than $30.00 per month. It is quite true that his 

needs are in excess of his grant but under the existing law 

and without the application of Senate Bill No. 169, this individual would be permitted to accept employment and earn therefrom 

the difference ($25.00) between the amount he needs ($55.00) 

and the $30.00 grant. He could earn this difference and his 

grant of $30.00 would not be affected in any way. 

The above illustrations show that if the phrase 

involved in this question be given its literal or strict 

meaning, Senate Bill No. 169 is entirely meaningless because it would not provide anything not already provided 

for by existing law. Recognizing the fact that the Legislature did not intend to do a useless and vain thing, and 

since such construction is not favored in law, we shall 
Honorable J. S. h!urchison, Page 11 

attempt to construe the phrasa in question to conform with 

the apparent purpose of the Act as expressed in it title, 

whereas clauses and emergency clause. When we do this, we 

arrive at the conclusion that the Lsgislature believed that 

there exists at this time and during the present emergency 

an area of "need" in addition to and above that "need" which 

the State Department of Public Welfare determines that is 

necessary to provide an individual with th,3 basic necessities. 

Therefore, to give some meaning to the phrase *'to take care 

of his additional needs above his grant," we arrive at the 

conclusion that an individual may earn $250.00 per calendar 

yaar from seasonal or occasional employment whidh amount is 

in addition to the amount found by the State Department of 

Public Welfare to be necessary to provide the individual with 

the basic necessities. In illustration No, 1, rlxtv would be 

entitled to earn said $250100 in addition to the $15.00 income he already had. In illustration No. 2, "xl* would be 

entitled to earn said $250.00 in addition to.the $35.00 

($15.00 plus $?0400). In illustration No. 3, the individual 

would be entitled to earn $25.00 per month to make up the 

deficit which the State Dapartmont of Public Welfare has 

determined that he needs plus the said $250.00. In all of 

these situations th,a above income can be earned without reducing the recipient's pension in any way. 

We believe that what we have said above answers 

your fifth and sixth questions. If we be mistaken, we will 

be glad to answer any further inquiries on this subject. 

Your seventh question is: 

"Does Senate Bill No. 169 apply to a recipient 

who failed to report 'his said employment., in writing, 

to the local office of Pubic Welfare, giving the name 

and address of his employer or employers at the end of 

each month, and giving the amount of his earnings during the month just passed'? If not, would it apply 

when such recipient properly reported his employment 

after failure to report a given month?" 

Senate Bill No. 169 provides in effect that an old 

age recipient shall receive the benefits of said Act "provided 

said recipient of old age pension'raports his said employment, 
Honorable J. S. Murchison, Page 12 

in writing, to the local office of Public Welfare, giving 

the name and address of his employer or employers at the 

end of each month, and giving the amount of his earnings 

during the month just passed." 

The word *rprovidedlt as used in statutes usually, 

though not always, implies a limitation or restriction on 

what has preceded in the context. See Words and Phrases 

for citation of numerous authoritios. It can also be used 

in the conjunctive sen~se as in the place of tha word *'and**. 

As used in the phrase in question, it is obvious to us that 

it is not used in the conjunctive sense. The phrase in 

question has no m:ianing as used in this Act unless it serves 

as a restriction or limitation on what precedes it in the 

body of the Act. It follows that Senate Bill No. 169 would 

not be applicable to a recipient who failed to report his 

earnings as provided by the above montioned phrase. By this 

is meant that said Act has no application to earnings of a 

given month which are not reported as orovided by said Act. 

The Act would apply to such earnings of a recipient for any 

given month provided they are properly reported. 

Your eighth question is: 

"Do the phrases 'seasonal and, occasional~ 

employment' and 'Dollars that is actually derived 

and received in payment for labor actually performed or services rendered' mean that Senate 

Bill No. 169 applies to a recipient working for 

himself? A tenant farmsr working on shares? A 

farm owner harvasting seasonal crops and tending 

to other farm duties for other periods?" 

In answer to your eighth question, it is our opinion that Senate Bill No. 169 applies to a .recipient who is 

work~ing for himself as well as one working as an employee of 

another. The phrases "seasonal and occasional employment*' 

and "Dollars that is actually derived and received in payment 

for labor actually performed or services rendered" are sufficiently broad to support our conclusion. Keeping in mind the 

purpose of the Act in question, we find no reason for restricting its application when its very lang,uage parrnits a more 

liberal interpretation. 
Honorable J. S. Kurchison, Page 13 

The word "employmenttl has many nxanings. It has 

been defined as that which engages or occupies and as that 

which consumes time or attention. Webster's New International Dictionary, Second Edition. The above definitions 

clearly show that said word can refer to a person who is 

self-employed as wzll as to on2 who is emplcys?d by another. 

We might point out that the word 'Vemployer*~ is used 

in another part of the Act! discussed in the preceding question, 

and, at first impression, it might be inferred from the use of 

this word that the Ast in question only aoplied to a recipient 

who was an employee of anotb,:r and not one who was self-cmployad. 

However, the only purpose of the phrase containing the word 

"employer** is to require the reporting of the earnings of the 

recipient. It clearly was not intended to describe that general 

class of pers>ns to whom the Act could have application. 

Your ninth question is: 

"In order to avoid a conflict in the Federal 

and State laws, can the Department interpret Senate 

Bill No. 169 to apply only to recipients recaiving 

income from agriculture as provided in Public Law 

45?" 

In answt3r to your ninth question, you are advised 

that there is nothing in thz title or body of Senate Bill No. 

169 which even remotely sugg,-:sts'thct said Act is limited to 

earnings from agriculture labor. We know of no rule of construction which would have the effect of limiting the application of said Act to earnings from agriculture labor. Your 

ninth question is answered in the n-gative. 

Your tenth question is: 

"In order to avoid a conflict in the Federal 

and State law, can Senate Bill No. 169 be interpreted to mean actual payment when reference is 

made to 'grant'?" 

The State Department of Public Welfare has always 

denoted "grantV1 as the amount of assistance a recipient should 
nonorable J. S. Murchison, Pare 14 

receive subject to statutory and constitutional limitations, 

to provide himself with the basic necessities. Where an 

individual needs $40.00 per month to provide himself with the 

basic necessities and has an income of $25.00 per month, his 

"grant" is $15.00. It is easily seen that the word "grant'r, 

as used here, has a direct relation to a recipient's needs. 

It is a mattar of common knowledge in Texas that 

the payments made to old age recipients are not equal to the 

"grant" because the Legislature has not appropriated sufficient 

funds to pay the grants in full. The amount actually received 

by a recipient is determined by the number of individuals on 

the rolls and the amount each should receive. To illustrate: 

'txfl needs $40.00 per month to provide himself with basic necessities, He is therefore 

eligible 

and has an income of $15.00 ~per month. 

to rcceive'$X.OO per month as old age assistance. 

This $25.00 has always been denoted as a "grant" by the State 

Department of Public Welfare. As a matter of fact rt~*v actually 

receives less than %25.00 p:?r month bacaus? sufficient funds 

have not been made available. 

Neither the State Department of Public Welfare nor 

any recipient knows how much assistance he will receive for 

a given month until tim3 arrive? 

be made. 

for each monthly payment to 

Consequently, we think that when the Legislature 

used "grant" in Senate Bill No. 169, it had in mind what a 

recipient should receive to provide himself with the basic 

necessities and not what he actually does receive. Your 

tenth question is answered in the negative. 

Your eleventh question is: 

"In the event it is impossible to interpret 

Senate Bill No. 169 in such a manner which would 

be acceptable under the Federal Social Security, 

Act, must Senate ?ill No. 169 be put into actual 

operation in Texas even though its operation would 

cause the loss of Federal matching funds far old 

age assistance?" 

The answer to your eleventh question must be in the 

affirmative. 

makes the 

Under our system of government, the Legislature 

laws and the executive and judicial branches of the 
Honorable J.- S. Murchison, Page 15 

g.overnment must enforce them if they do not violate the 

Constitution of the State or of the United States. That 

the State may lose benefits by enforcing the law is a matt-r for the Legislature alone, "No power of suspending 

laws in this State shall be exercised except by the Legislature." Texas Constitution, Art. 1, Section 28. 

Federal authorities do not exercise a right of 

superior control ovc:r the matter of old age assistance laws 

of this State. The program has its basis in mutual consent 

of the State and Federal govarnments, If, therefore, the 

State Logislature passes an Act to which the Federal governmsnt is not willing to give its consant, that Act is not invalid because obnoxious to the Federal authorities, in the 

absence of a declaration of legislative intent that such Act 

shall not be effective if the Federal authorities shall fail 

to assent to its provisions. 

The Legislature, by the Act under consideration, 

has manifested an intont to libaralize the old age assistance 

laws of this Stata. It has ths power to do so. It has not 

provided that such liberalization shall be effective only if 

the Federal Government shall give its consent, In such circumstances ,? neithar you nor any other officer or agency of 

the executive or ,iudicial branch of the State: government has 

authority to suspend Senate Bill No. 169 or to decline to put 

it into operation. 

. 

WC trust that we have: satisfactorily answered all 

of your questions. ' 

APPROVED JUL 24, 1943 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

.This opinion considered and 

approved in, limited conference BY 

/s/ Lea Shoptaw 

Assistant 

LS :f:o