THEATTORNEYGENERAL 

OFTEXAS 

AUSTIN ~~.'~TExAs 

Honorable Adam R. Johnson 

Executive Director 

State Department of Public Welfare 

Austin, Texas 

Dear Sir: Opinion No. o-2432 

Re: Privilege from disclosure under 

Section 31 of S.B. No. 36, 46th 

Legislature. 

We are pleased to reply to your recent letter in which 

you request the opinion of this department as to whether, 

under Section 31 of Senate Bill No. 36, 46th Legislature, an 

employee of the Department of Public Welfare can be compelled 

to disclose in court, in cases involving private parties, 

either orally or by the production of the records themselves, 

any of the facts and Informationcontained In case records of 

applicants for, or recipients of, old age assistance, without 

the consent or authorization of such persons. 

Section 31 of Senate Bill No. 36, 46th Legislature, provides as follows: 

"All records concerning any applicant or 

recipient contemplated in this Act shall be confldential, and shall be open to inspection only 

to persons duly authorized by the State, or the 

United States, to make such lnspectlon In connection with their official duties; provided, however, 

that factual information in such records shall be 

available to applicants and recipients or thei.r 

duly authorized agents; provided, further, that 

no lists of names of recipients shall be published 

ordistributed for purposes of being made parts of 

any stat?, county or city records, or for any other 

purpose. 

In our opinion No. O-2122, to Honorable George Ii. Sheppard, Comptroller of Public Accounts, it was held by this 

department, In part, that Section 31 applies to records kept 

by the Department of Public Welfare and the Comptroller's Department; that the Comptroller's Department is not authorized 

to allow the general public to examine certain of the records 

within the purview of Section 31; and that the Comptroller's 
Bonorable Adam R. Johnson, page 2 O-2432 

Department is not authorized to make certified copies of certain of such records upon application of an individual theref~ox 

You pose the further question as to whether the employees 

of the Department of Public Welfare, including local county 

welfare workers, may, nevertheless, be compelled in court to 

divulge facts and information found in case records involving 

applicants for, or recipients of, old age assistance. 

There can be no doubt but that such case records are 

within the purview of Section 31 and are protected from disclosure by this statute. It remains only to ascertain If such 

extends to processes of the courts, and, if so, If such is a 

valid statutory enactment. 

The United States Supreme Court in the case of BOSKE vs. 

COMINGORE, I77 U.S. 459, 20 Sup. Ct. 701, 44 L, Ed. 846, upheld 

a regulation of the Secretary of Treasury, authorized by appropriate Federal statutes, forbidding his subordinates to allow 

the use of official papers in their custody except for the ourpose of aiding the collection of the revenues of the United 

States. The case involved facts where a collector of internal 

revenue had been adjudged in contempt of a Kentucky state court 

for,refusing, while giving his deposition , to file copies of 

reports in his custody. In affirming the order of the United 

States District Court discharging the collector from the custody 

of the sheriff, the court declared at p. 469: 

'* l * This being the case, we do not perceive upon what ground the regulation In question 

can be regarded as inconsistent with law, unless 

It 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 queation 

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 revenues 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 records in the offices of 

collectors of internal revenue, except as might be 

directed by the Secretary of the Treasurer. 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 disclosures so made were not properly 

guarded * l *' 
Honorable Adam R. Johnson, page 3 O-2432 

The holding of this case was recognized as correct in 

the Texas case of CARTER vs. IRVINE, 77 S.W. (2d) 247, in this 

language: 

"* * * Restrictions imposed on revenue agents 

and others by regulations issued by the Treasury 

Department with reference to disclosures concerning 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 

thereto as witnesses in a state court * l *It 

The principles in the matter at hand are recognized by 

Prof. Wigmore in his exhaustive treatise on Evidence, wherein 

it is declared: 

"There are, then, seven or eight distinct 

principles which In superficial features tend 

often to be confounded . . . (f) There is a genuine 

communications--privilege, permitting secrecy 

for comnications by informers to official prosecutors, by parties or witnesses to a judge, and by 

citizens making compulsory reports to the state. * * + 

"The policy underlying the principle of paragraph 2374, ante, is that where the government needs 

information for the conduct of its functions, and 

the persons possessing the information need the encouragement of privacy in order to be induced freely 

to make full disclosure, the protection of a privilege should be accorded * * * 

"It is some such principle that justifies the 

modern creation of a number of privileges, all statutory in origin, covering sundry matters required 

by law to be reported to some administrative official. * * * 

,,,,~~5~,,;~;~;; facts, required to be disclosed to 

fall within the principle, as well 

as facts of per&al history in general, disclosed 

in the administration of various social welfare 

acts. (citin certain of the social welfare acts 

of Texas). " $"ifi"ir;,;; E,viv;re, Vol. 8, p. 733, 734, 

761, 773, 774, , 

This principle of privilege from disclosure is embodied 

in Section 31 of Senate Bill No. 36. It expressly provides that: 

"All records concerning any applicant or 
Honorable Adam R. Johnson, page 4 O-2432 

recipient contemplated in this act shall be confidential, and shall be open to inspection only 

to persons duly authorized by the state, or the 

United States, to make such inspection in connection with their official duties." 

The only exception is that the factual information shall be 

available:to the applicants and recipients, or their agents. 

The leglslatlve intent is entirely free from doubt that the 

disclosure of the facts and information in the case records to 

the public, or to an individual, or in court orally, or by the 

bringing of the records into court under any process, is forbidden. No constitutional or statutory provision is offended 

by this prohibition. The principle of privilege which protects 

from disclosure, through the testimony of government officials, 

of facts communicated to administrative officials, is, in our 

opinion, as embodied in Section 31, a valid exercise of legislative authority. 

Accordingly, you are respectfully advised that it Fs 

the opinion of this department that employees of the Department 

of Public Welfare, including local county welfare workers, cannot be compelled to appear in court, in cases involving private 

parties, and testify as to certain facts or information contained In case records concerning individuals who apply for or 

receive old age assistance and, further, may not be compelled, 

under a subpoena duces tecum, to bring such records into court 

and disclose the facts and information therein contained. 

Trusting that we have adequately answered your inquiry, 

we remain 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

ZCS:EP:wc 

APPROVED JUN 7, 1940 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

By s/Zollle C. Steakley 

Zollie C. Steakley 

Assistant 

Approved Opinion Committee By &3WB Chairman