Honorable J. S. Murchison

Executive Director State Department of Fublic 'Nelfare Austin, Texas

Dear Sir: OpinionNo. 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 PublicWelfare 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 exceedTwo Hundred Fifty ($250.00) Dollars, and declaring an emergency,-

Bonorable J. S. Murchison, Page 2,

'WHEF?EAS,

TheUnited States is how engaged in a tremendouswar 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'swar effort, now predict that therewill be a great ford shortagefacing our country during the current yearwhichwould not only tend to stifle our war efforts at home andabroad but would greatly slow down and curtail suppliesto our allies under the Lend Lease Frogram; and

'WHEREAS,The National Selective Service Di rector now estimates that at least onemillion (1 .,OOO,OOO)soldiersand sailorswill 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~offood; 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~thetrollsin the caseswhere such recipients temporarily engage in remunerativeemployment; with the r’esult that such old age assistance recipientshave been constantly threatenedwith being removed from the rolls in caseswhere 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 temporarywork without being threatenedwith removal from the pension~rolls, and thereby relieve the strain on agriculture and labor; now thereforeBE IT ENACTED BY THE LECISL?TURE OFTBE 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 hereafterread as follows:

'Section21a. Provided, however, that until the United States ofAmerica has concluded and entered into treaties of peace withall of the nationswith whom she is now at war, commonly referred to as the Axis Powers, no grant of assistanceto any recipient of old age assistance who is already on the rolls or who may hereafterbe placed on said rolls, and is already receiving old age assistance, shallbe reduced or revokedby reason of the fact that any suchneedy recipientmay derive or receive other and additional income to take care of his additional needs above his grant, from seasonal
or occasionalemployment, until and unless such needy recioient shall receive more than Two Hundred Fifty ($250.00)Dollars of outside and additional income during a calendaryear; 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 employersat the end of eachmonth, and giving the amount of his earnings during the month justpassed. 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 recipientsof old age assistance to aid in overcoming, the greatshortage ofmanpower during this greatwa~remergencyby performing necessary laborwhen and wherever possiblewithout being facedwith the possibility of having pensions reduced, or being removed from the pension rolls altogether."

"Sec. 2. The fact that theUnited States ofAmerica is now engaged in a world-widewar, the prosecution ofwhich is beins greatly hindered,because of an acute shortage ofmanpower, 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 personswho 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 indirectlyaid in the prosecutionof thewar, creates an emergency and an imperativepublic necessitythat the Con-titutionalRule requiringbills to be read in each House on three severaldays be suspended, and the ConstitutionalRule requiring bills to go into effect ninety days fro= and after their passage, be and the same are hereby suspended, and thisAct shall take effect and be inforce 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 certaindate? 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 orwho may hereafterbe placed on saFlonorableJ. S. Murchison, Fare 5

rolls, and is already receivingold age assistance, shall be reduced or revoked”by reason of earning certain income. It is clear from the plain languageof the Act that its provisions apply,to all those personswho, at the time of the effective date of saidAct, ase on the rolls and are already receiving old age assistance. In addition,we must give some effect to the phrase “orwho 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 entirelymeaningless because it is impossible for there to be a personwho my hereafter be placed on said rolls~ who is already receiving old a&a assistance.

The phrase “orwho may hereafterbe 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 somemeaning because,it cannot be presumed that the Legislature added a phrase to the Act which would be withoutmeaning. To do thiswe must say that the phrase “orwho may h-,reafter be placed on said rolls” is notmodified by the phrasewhich immediately follows it.

It follows that the provisions of Senate Pill ?30.169 apply to all personswho were receiving oldage assistance at the time saidAct became effective and to all persons who are subsequentlyplaced 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 ‘orwho 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(ge6

from reducing or revoking old age assistance grantsby reason of the fact that the recipients thereofrnceive certainadditional income from seasonal or occasionalemployment. 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::isfor the reason that saidAct 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 individualshave been placed on the rolls and granted oldage assistance that they become recipients Who may hereafterbe placed on said rolls". It follows that after such individualshave been given a g:rantof assistance, the provisionsof Sei?;te Bill ?$o.169become immediately operative and they would be entitled to earn an additional income of $25Q.O0per calendaryear from seasonalor occasionalemployment without having their grant of assistancereduced or revoked.

Your third question is:

"Does the phrase 'outsideand additional income' !,L

used in Semte Bill No. 169mean only income other than incomewhich has already been consideredby 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 consideredby the State Dcpartiznt of Publicmlfare indetermining 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 permonth to provide himselfwith the basic necessities and because he had auincome of 310.00permonth. Still needing only $30.00 per month, "x'~subsequentlyobtains employmentPonorable J. S. Plurchison, Page 7

fromwhich he receives an additional income of $250.00 per calendaryear. The phrase in questionhas reference to the $350.00 but has no reference to the $10.00per 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 fourthquestion is:

Yloes Senate Bill No. 169 apply to a recipient who had no'income on the effectivedate of the AC%? If so,what effect shouldbe 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 ofKay 1, 1943 irrespective ofwhether suchrecipient 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 recipientswho actually had
an income as of the effectivedate of saidAct. To ourminds thewords "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 receivingadditional 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'sbudgeted needs and the total of bis previouslydetermined 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 (Codifiedas 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 shallbe given under the provisions of thisAct to any needy persons:

*.

. . . "(5) :Nhohas not sufficientinccme or other
resources to provide a reasonable subsistence compatiblewith healthand decency. Provided that in consideration.of income and resources actually available to applicant the StateAg:encyshallnot evaluate.incomeand resourceswhichmay be available only to relatives of applicant. Income and resources tobe taken into consideration shallbe 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 orwifa;who is able-to contributeto the applicant's support? and no inquiry shallbe made into the.financial ability of said child or other relative, exceot husband orwife, in doterminingapplicant's eligibility. The applicant's child or otherrelative, except husband or wife, is to be treated by the State 3epartm?nt in the same way as any personnot related to the applicant; any aid or contributionsto the applicant fromsuch child or other relative, except husband orwife, 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 assistancewhich shallbe given under the provisionsof this Act to any individual as old age assistance shall be determinedby the State Department through its district or county agencies in the county or district in which the needy aged personresides with due consideration to the income and oth,er resources Of such aged person and in accordancewith the rulesFionorableJ. S. Kurchison, Page 9

and regulations of the State Department. A voluntary statement by any child or other relative, excepthusband or wife as to the amount and kind of aid or assistance he is contributingor 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 apolicantmust be consideredby the State Department. The amount of assistancegiven shall provide such aged personwith a reasonable subsistence compatible with decency and health!within the limitationsand provisions of the Constrtutionof Texas as are nQrl provided, or may hereafterbe provided."

The above quoted provisionsclearlyprovide that old age assistance shall be given to thosewho do not 'havesufficient income to provide a reasonable subsistance compatible with health and docancy. It is furtherprovided that such assistance shall be givenwhich will providea qualified person with a reasonable.subsistencecompatiblewith 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 suchperson n-ads to provide himselfwith'the basic necessities less the amount of his income, subject however to the Constitutionallimitation. That is to say, if a person has income it is applied on his needs and the,grant of assistance rcprjsentsneed 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 providedby House Bill No. 611, supra (Article69%).

From what we have said, it follows that if the phrase "totake care of his additional needs above his grant'? be literally construed, then Senate Bill No. 169means little, if anything, not already provided for by existing law. Illuse trationNo. 1: "x7' was placed on the old age assistance rolls
on January 1, 1943 with a grant of $20.00permonth. At that time, the Department of Public Welfare determined that he needed $35.00per month to providehimselfwith the,basic necessities and that be had an income earned from employmentHonorable J. S. Murchison, Page 10

in theamount of $15.30 permonth. The grant of assistance ($20.00)representshis amount of needs ($35.00)less his amount of income ($15.00). As long as '*x7' needs no more than $35.00.permonth to provide himselfwith 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 literalmeaning, Senate Bill No. 169 would heve no application to that group of.porsons typifiedby theabove illustration.

IllustrationNo. 2: Suppcsa that on July 1, 1943 the State Departmentof Public Welfare finds that, due to the rise in the cost of living and/or other factors, '*x'* needs $55.00per month to providehimselfwith the basic necessities. Under the existing law and without the need of Senate Bill No, 169, "~'9could increasehis earnings by
an additional $20.00per month and thisadditional income would in no way $opardize his grant of old age assistance in the amount of j2O.OC permonth. 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 permonth to provide himselfwith the basic necessities and has no income. Due to statutoryand constitutional limitations,the State Department of PublicWelfare can grant him no more than $30.00 permonth. 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 individualwould be permitted to accept employmentand 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 $30.00would not be affected in anyway.

Theabove illustrations show that if the phrase involved in this questionbe given its literal or strict meaning, Senate Bill No. 169 is entirelymeaninglessbecause it would not provideanything not already provided for by existing law. Recognizing the fact that the Legislature did not intend to do a uselessand vain thing,and since such constructionis not favored in law, we shallHonorable J. S. h!urchison, Page 11

attempt to construe the phrasa in question to conformwith the apparent purpose of the Act as expressed in it title, whereas clausesand 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 PublicWelfare determines that is necessary toprovide an individualwith th,3 basic necessities. Therefore, togive somemeaning to the phrase *'to take care of his additional needs above his grant,"we arrive at the conclusion that an individualmay earn $250.00 per calendar yaar from seasonal or occasional employmentwhidh amount is in addition to the amount found by the State Department of Public Welfare to be necessary to provide the individualwith the basic necessities. In illustrationNo, 1, rlxtv would be entitled to earn said $250100 in addition to the $15.00 income he already had. In illustrationNo. 2, "xl* would be entitled to earn said $250.00 in addition to.the $35.00 ($15.00plus $?0400). In illustrationNo. 3, the individual would be entitled to earn $25.00 permonth tomake up the deficitwhich 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 anyway.

We believe thatwhat we have saidabove answers your fifthand sixth questions. If we bemistaken, 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 eachmonth, and giving the amount of his earnings during themonth justpassed'? If not, would it apply when such recipient properly reported his employment after failure to report a givenmonth?"

Senate Bill No. 169 provides in effect that an old age recipient shall receive the benefits of saidAct "provided said recipient of old age pension'raportshis said employment,Honorable J. S. Murchison, Page 12

inwriting, to the local office of Public Welfare, giving the name and address of his employer or employersat the end of eachmonth, and giving the amount of his earnings during themonth justpassed."

The word *rprovidedlt as used in statutes usually, though not always, impliesa limitation or restriction on what has preceded in the context. See Words and Phrases for citationof numerous authoritios. It can also be used in the conjunctivesen~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 conjunctivesense. The phrase in questionhas nom:ianing as used in thisAct unless it serves as a restrictionor limitation on what precedes it in the body of theAct. It follows that Senate Bill No. 169would not be applicable to a recipientwho failed to reporthis earningsas providedby the above montioned phrase. By this ismeant that saidAct has no application to earnings of a givenmonth which are not reported as orovidedby saidAct. The Act would apply to such earnings of a recipient for any givenmonth providedthey are properly reported.

Your eighth question is:

"Do thephrases 'seasonaland,occasional~ employment'and 'Dollarsthat is actually derived and received in payment for labor actuallyperformed or services rendered'mean that Senate Bill No. 169 applies to a recipientworking for himself? A tenant farmsrworking on shares? A farm ownerharvasting seasonal crops and tending to other farm dutiesfor 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 himselfas well as oneworking as an employee of another. The phrases "seasonal and occasional employment*' and "Dollars that is actually derived and received in payment for labor actuallyperformed or servicesrendered"are sufficiently broad to supportour conclusion. Keeping inmind the purpose of the Act in question,we findno reason for restricting its applicationwhen its very lang,uage parrnits

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

The word "employmenttl has many nxanings. It has been definedas that which engages or occupiesand as that which consumestime or attention. Webster'sNew International Dictionary, Second Edition. The above definitions clearly show that saidword can refer to a person who is self-employedas wzll as to on2who 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 thisword that the Ast in question onlyaoplied 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 recipientsrecaiving income from agriculture as provided in Public Law 45?"

In answt3rto your ninth question,you are advised that there is nothing in thz title or body of Senate Bill No. 169which even remotely sugg,-:sts'thct saidAct is limited to earnings from agriculture labor. We know of no rule of constructionwhich would have the effect of limiting the application of saidAct 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 paymentwhen reference is made to 'grant'?"

The State Department of Public Welfare has always denoted "grantV1

as the amount of assistancea recipient shouldnonorable J. S. Murchison, Pare 14

receive subject to statutoryand constitutional limitations, to providehimselfwith the basic necessities. Wherean individualneeds $40.00 per month to providehimselfwith the basicnecessities and has an income of $25.00per 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'sneeds.

It is a mattar of commonknowledge in Texas that the paymentsmade to old age recipientsare 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 determinedby thenumber of individualson the rolls and the amount each should receive. To illustrate: 'txfl needs $40.00per month to provide himselfwith basic necessities, He is therefore eligible

and has an income of $15.00~permonth. to rcceive'$X.OO permonth as old age assistance. This $25.00has 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 beenmade available.

Neither the State Department of Public Welfare nor any recipientknows how much assistance he will receive for
a givenmonth until tim3 arrive? be made. for eachmonthly payment to

Consequently,we think that when the Legislature used "grant" in Senate Bill No. 169, it had inmind what a recipient should receive to provide himselfwith the basic necessitiesand not what he actuallydoes 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 mannerwhich would be acceptableunder the Federal Social Security, Act, must Senate ?ill No. 169 be put into actual operation in Texas even though its operationwould
cause the loss of Federalmatching funds far old age assistance?"

The answer to your eleventhquestionmust be in the affirmative. makes the Under our system of government, the Legislature

laws and the executive and judicialbranches of theHonorable 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 shallbe exercised except by the Legislature." Texas Constitution,Art. 1, Section 28.

Federal authoritiesdo not exercisea 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 Logislaturepasses an Act to which the Federal governmsnt is not willing to give its consant, that Act is not invalid because obnoxious to the Federalauthorities, in the absence of a declaration of legislative intent that such Act shall not be effective if the Federalauthorities shall fail to assent to its provisions.

The Legislature, by the Act under consideration, hasmanifested 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:satisfactorilyanswered all of your questions. '

APPROVED JUL 24, 1943 /s/ Gerald C. Mann ATTORNEY GENERAL OF TEXAS Yours very truly

ATTORNEY GENERAL OF TEXAS .Thisopinion considered and approved in,limited conference BY /s/ Lea Shoptaw Assistant

LS:f:o