R-279 

THEATTORNEWGENERAL 

OFTEXAS 

AU&-IN. TEXAS 

April 9, 1947 

Hohi John Ii. Winters 

Executive Dlrec t or 

Department df ?ubllc Welfere~ 

Austin, Texas Opinion Boo V-132 

Re: Conslderatiou of e 

bequeat In FelOtlon 

to 8 recipient’s eligibllity for old age 

Deer ~Sir: assistance. 

We have your request for an opinion upon 

the above captioned subject matter, the pertinent 

parts being as follows: 

“Our recipient, whom we shall refer 

to as Ur. F, made an appllostlon for old 

age assistance in June, ,1942, and has received assiat8nae continuously in varying 

amounts since September, 1942. Hr. F’s 

present ,household consists of hlmself, 8 

son about twenty-three geers of 880, and 

8 minor daughter about sixteen yeers of 

The daughter Is in school. Mr. F 

%‘born on January 9, 1877, and due to a 

chronic dlsebilltg end his age, he is unable to perform eny work Prom whioh he 

maight reCeive remuneration. He hius two or 

three brothers who have assisted him from 

time to time over e period of years. One 

brother at the present time is contributing $7-50 a week toward his and his deughtorts support in addition to paying some 

of the utilities. Hr. F Is at the present 

time receiving $37 a month old age esslstance. He is living in his own home free 

of all encumbrances except perhaps delinquent taxes. 

“in the spring of 1946 one of M.P. F’s 

brothers died. The brother Is will was probated In June, 1946, He left one-third of 
Ron, John H, Winters - Pege 2, V-132 

his estate to his su~vlvfng spouse, 

one-third to his daughter, and the 

other bne-third to sever81 persons, 

among whom is our recipfent of old 

age 8sslstance, Hr. F. The terms 

of the ~3.11 Fn relation to our recfpient 8Fe as follows: 

"gI leave to my brother, S 

F a sum not to exceed Fif'ty 

(-6) Dollars per month, to be 

payable to him by my said executor 

so long as he shall live; it is specfficaily provfded that ssfd sum Shell 

be Ln such amount 8s not to jeopardize 

8ny pension or other payment he may receive from any governmental source. 

Once ffxed, this amount shall not be 

increased whether or not such pension 

or other payment from 8ny governmental 

source shall continue.' 

"The executor of the will is a 

nephew of the deeedent end of our recipient, Mr.- F. He stated that he 

prepared the will, and he knew that 

the decedent intended that the $50 

should not replace the reeipi.entPs 

grant but should supplement it, The 

exeeutop further explafned that ff the 

money pa1d to the re@efpi.ent out of 

the estate affected his old age asslstance grant even 8s much as $1 that he 

would receive nothing whatever f'Pom 

the estate, The recipient is stfll en 

the old age assfstence polls, end notha 

ing has been pafd to him out of the estate 8s the executor fs awaitfng a deflnfte answep from the department as to 

what effect, ff any, the payment of the 

$50 or any portion thereof will have upon his old age assfstance grant." 

We shell answer your questions in the order 

of their presentation, 

1, AS you point outa the Soeial SeauritJ 

Act requires, 8s a oonditfon to CoopePetfOn with the 
Hon. John H. Winters - Page 3, V-132 

Stete as to old ego assistance, the State plan to "provide that the State agency shell, in determining need, 

take into consideration any other income 8nd'resources 

of an individual claiming old ego assistance; * *.*n 

(H.B. 611, 

Section 21 of the Publlo Welfere Act of 191 

47th Leg., R.S., as amended) Is 8s followss 

"Sec. 21. The amount of essistance 

which shall be given under the provisions 

of this Act to any individual,as old ego 

assfstanoe shell be determined by the 

S%8te Depertment through its district or 

county in uhich the needy eged person resides-with due consideration to-the income and other resources of such aged person and in aecordence with ,the rules end 

-ulatFons of the State Department * l * 

The amount of assistance given shall provLde such aged person with a reasonable 

subsistence compatible with decency ati, 

health, withfn the limitstions and provisions of the~constltution of Texas 88 are 

now provided, or mey hereafter be provided." (Underscoring added for emphasis.) 

Section 24 of the Act provides in part 88 

follows : 

‘All assistance granted under the 

provisions of this AC% to any needy aged 

person, needy blind person cr with respect 

to any dependent chi1.d shall be reconsfdered as frequently 89 may be required by the 

rules of the State Department O After such 

reconsideration as the State Department may 

deem necessary or may raqufre, the 8mount 

of assistance may be @hanged, or the assistance may be entirely withdrawn ff the State 

Department finds that the recipFentPs ofrcumstances h8ve eltered sufficiently to W8rrant such action" The State Department may 

at any time oancel end revoke assfstance or 

it may suspend assfstance for such period as 

it mey deem proper, upon the grounds of inelfgibllity of the recipient'under the provisions of this Act. * * * If at eny time 

during the continuance of public assistance 

the recipient thereof becomes possessed of 
Hon. John H. Winters - Page 4, V-132 

income or’resources in excess of the 8- 

moutit previously reported by him, it shall 

be his duty to notify the State Department ‘;.~ 

of such additional lnaome or resources.” 

Again, Section 29 of the Act provides in 

part as follows: 

“Old age asslstanae, aid to the blind, 

or aid to dependent children as provided 

for under the provisions of this Act shall 

not be transferable or assignable, at law 

or in equity, and none of the money paid 

or payable under the provisions of this 

Act shall be subject to execution, levy, 

attachment, garnishment, or other legal 

process, dr to the operation of atiy insolvency law; the provision of this Act providing for old age assistance, aid to the 

blind, and aid to dependent children shall 

not be construed as a vested right In= 

~recipient of such assistance; l l mrscoring added for emphasis. ] 

These Federal and State statutes themselves 

compel an answer to 

i 

ourquestion Ro. 1 to the effect 

that the bequest of 50.00 per month cannot ‘be made to 

your recipient without reducing the amount he may receive through your department, or without making him 

inei$glble for payments. 

2. Your’.very helpful comments appended to 

your request are as follows: 

“Pursuant to the provisions of the 

Federal and State laws the department 

has formulated policies ard procedures 

as set out in the departmental manual 

providing for the consideration to be 

,given resources available to recipients. 

Since the maximum amount which may be 

paid to any individual out of the State 

and Federal money is $45 a month and 

since the total amount of State funds 

available for administering the old age 

aasistanca program and paylug the assistance grants Is Thirty One Million Dollars 

($31,000,000.00) a year, and slnue there 

are at the present time approximately 
Hon. John B. Winter3 - Page 5, v-132 

191,824 recipients receiving old age assistance in the State of Texas the necessity for placing maximums on certain al- "L 

lowable items in the recipient's budget 

is obvious. ~Because of the limitation of 

funds, a standard amount is included in 

the budgets of all person3 under similar 

circumstenc~es for certain needs which are 

common to all recipients such as food, 

clothing, household supplies, and incldentala. 

"Also, under certain policies of the 

department a recipient is allowed in his 

budget the common household expenses for 

himself and his normal dependenta which, in 

this instance would be Mr. F’s sixteen 

year old daughter, who is in school. In 

other words, the taxer, the utilities, and 

other expenses which he would have to pay 

whether the dependent was in the home or 

not would be included in his asslstanae 

grant, and any income available could be 

used toward meeting her needs before the 

department would consider the income or 

resources as being available for meeting 

his needs. In determining the need3 of 

the dependent, however, W8 are governed 

by the same limitations as we are for the 

individual recipient. 

"When the question first arose the 

department advised the executor that any 

available income or resource could not be 

disregarded in determining ellg1b1lity and 

'that the department could not make any 

kind of an agreement or oontract or in auy 

way obligate the department to continue assistance in any given amount since the law 

requires u3 to consider ueeda and resources 

ou an individual basis and that the amount 

will vary from time to time depending upon 

the circumstances of the iadividual. 

'350 are eager to assist thia aged recipient If he meets eligibility require-- 

ments. 'Both the State end Federal laws pPO* 

'vide that before a resource may be considered that it must be available; therefore, in 
Hon. John H. Winters - Page 6, V-132 

determining the amount bf ,the assistance 

grant, we oannot conalder this resourae 

until It has aotually been made avail-. \. 

able to the reoiplent. The recipient 

feels that he is in need of oonsiderably 

more money than la being paid urder the 

sssistanoe payment. With the limited 

amount of 8oney availeble the department 

cannot meet all of the needs whioh a reclpient wy feel that he has. In determining eligibility and the amount of 

grant the department hes found that in 

accordance with the policies Hr. F. is 

tentatively ellgfble for a grant of 

$37 a month. In view of the fact that 

the maximum amount that my be paid to 

any lnd~vidual is $45 a month, it is 

obvious that if UP, F should reoeive the 

bequest of $50 a month, this would render 

him lnellgible for assistance and that 

any amount that he should receive from 

the estate would affect the amount of the 

assistanae grant. Under the policies of 

the department it would be necessary to 

deduct whatever amount he receives from 

the needs as determined by the department.~ 

The executor Is interpreting this provlsion of the will as making the bequest 

conditioned upon the fact that the department would not alter or change the amount 

of the assistance gmnt by meson of the 

payment of the bequest." 

Upon the statements plade by you, it is obvious that your department, in following the statutes 

and formula of your promulgated plan, aside from any 

consideration of the bequest, oould not pay the Pecipient more than a maximum of $37.00 a month, and 

that any amount received under the will may reduce his 

pension. 

Ihis leads to a considerstion of your added 

question whether or not the Department of Pub110 Welfare may make any definite commitment to the exeoutor 

of the will with respect to allowance or consideration 

of such moneys bequee thed. Clearly, under the law, 

you cannot make a binding commitment on thla mattar. 
Hon. John Ii. Winters - Page 7, V-132 

Our conclusion in the whole matter is that 

your department should proceed in the matter of an alhancemto this particuiar recipient as though no 

bequest had ever been made, and if at any time it 

called to your attention that payments thereunder 

been made to the recipient you will take the same 

account as required by law. 

SumPRY 

Payments received under a will by a 

recipient of old age assistanae are required .to be taken into account by the Board of 

Public Welfare in determining whether such 

payments make the recipient ineligible or 

merely operate to reduce the amount he may 

receive from the department. 

Yours very truly 

such 

IS 

have 

into 

ATTORNEY GXWERAL OF TEXAS 

BY 

OS/lb 

AL OF TEXAS