THE ATTORNEY GENERAL 

OF TEXAS’ 

February 04, 1988 

Mr. Marlin W. Johnston 

Commissioner 

Texas Department of Human 

Services 

P. 0. Box 2960 

Austin, Texas 78769 

opinion NO. ~~-851 

Re: Whether section 3(a) 

(1) of the Open Records Act, 

article 6252-17a, V.T.C.S, 

authorizes the Department of 

Human Services to withhold 

records about a deceased 

person (RQ-1150) 

Dear Commissioner Johnston: 

You ask whether section 3(a)(l) of the Opens Records FR 

Act, article 6252-17a, V.T.C.S., requires the Department 

of Human Services to withhold certain records about a 

.person who,is now deceased. Section 3(a)(l) provides that 

.a governmental body may withhold from public disclosure 

"information deemed confidential by law, either Constitutional, statutory, or by judicial decision." Section 10 

of the Open Records Act prohibits the release of "[ilnformation deemed confidential under the terms of this Act." 

Thus, section 3(a)(l) is an exception that must be invoked 

if it is applicable. 

you state that you have received a request for the 

adult protective services records and Medicaid records of 

a person who is now dead. You ask whether the 

confidentiality provisions of sections 12.003, 21.012, and 

48.083 of the Human Resources Code apply even though the 

person to whom the records pertain is no longer alive. 

It has been suggested that there is a general rule, 

growing out of the common-law right of privacy, that 

statutory confidentiality provisions lapse on the death of 

the person to whom the confidential records pertain. We 

disagree with that suggestion. The common-law right of 

privacy was first recognized by the Texas Supreme Court in 

1973. my. 489 S.W.2d 858 (Tex. 1973). 

Only in 1979 did a Texas court determine that Texas would 

follow the Restatement and majority view that the 

common-law right of privacy terminates upon the death of a 

P. 4118 
Mr. Marlin W. Johnston - Page 2 UM-851) 

person whose privacy is invaded.1 Moore v. Charles B. 

r Pie c 

- Texarkana 1979). S" 

589 S.W.2d 489 (Tex. Civ. 

APP. ee aenerallv Harper, James & 

Gray, The, vol. 2, 59.6 (2d ed. 1986). 

Therefore, it can hardly be maintained that the recently 

discovered rule that common-law privacy rights lapse upon 

death is so imbedded in Texas law that we should presume 

that statutes that make certain types of information 

confidential lapse upon the death of the subject of the 

information -- particularly statutes such as sections 

12.003 and 21.012 of the Human Resources Code, the 

original versions of which were enacted as part of the 

Public Welfare Act of 1941. Acts 1941, 47th Leg., ch. 

562, 51, at 914. $&s Harper, James, Gray, sunra, at 647 

(noting that privacy statutes in most states provide for 

the survival of causes of,action). The question before 

us, then, is one of statutory construction. &R Attorney 

General Opinion JM-229 (1984). Nothing in the three 

statutes you ask about indicates that the legislature 

intended those confidentiality provisions to apply only 

during the lifetime of the subject of the information. 

Therefore, you must withhold the requested information. 

SUMMARY 

The Department .of Human Resources must 

withhold Medicaid records and adult.. 

protective services records of a person who 

is now deceased. Hum. Res. Code §§12.003,~ 

21.012, and 48.083; V.T.C.S. art. 6252-17a, 

53(a) (1). 

JIM MATTOX 

Attorney General of Texas 

1. The first court of last resort to recognize the 

right of privacy was the Georgia Supreme Court, which did 

so in Pavesich v. New Enaland Life Ins. Co., 50 S.E. 68 

(Ga. 1905). Harper, James, and Gray, m Law of Torts, 

vol. 2, 09.6, at 641, n. 28 (2d ed. 1986): See aenerallv 

Prosser 61 Keeton, The, 5117 (5th ed. 1984). 

p. 4119 
. ’ Mr. Marlin W. Johnston - Page 3 (JM-851) 

MARYKELLER 

First Assistant Attorney General 

MU MCCRFARY 

Executive Assistant, Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

D.4120