Untitled Texas Attorney General Opinion ( 1945 )

835
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVERSELLERS
ATTORNEY GENERAL
Honoradle John B. Winters
Executive Director
State Department of Public Welfare
Austin 3, Texas
Dear Sir: Opinion AO. o-6
‘\duw and i$ so to uhom?
&ayable;.the proaedure to be fol-
,>--.., lowed to make the proceeds avail-
,‘~
‘
\ able,,
,/” ‘7, h. Y
Your recent ie161 S.W.
12d) 273, 276, said:
“That the hungry must be fed and the naked
clothed has long been accepted by th9civilIs8d
social conscience the world over. For some time
Honoraole John H. Winters, page 5
and In many countries it has been reoognlzed as an
obligation attaching to the government itself to be
discharged by publlo taxatlQ,n. It Is a duty that
enlightened aountrles mskd every reasonable effort
to perr0r8i. For 01amp10, vhlle our Constitution ,
says the legislature oan make no private grant of
pub110 moneys, it empovers that branch of the govern-
ment to grant aid to indigent and disabled Confeder-
ate soldiers and sailors. Art. 3, sea. 51, Texas
Const. During the vldespread economic distress of
the last decade a constitutional amendment was
adopted by the people of Texas authorizing the leg-
islature to issue ‘Bread Bonds’ In amount not to
exoeed tventy million dollars, the proceeds of the
sale of whloh vere ‘tobe used In furnishing relief *
and work relief to needy and distressed people and
In relieving the hardships resulting from unemploy-
ment . ( .Art. 3, Sec. 51a, ibid. This actlon~ the .
legislature promptly took and tventy million dol-
lars was spent, and the bonds are being liquidated
from the -state treasury. Ming the same era the
Government of the United States poured out billions
from the federal treasury to sustain mllllons of our
poverty stricken citizens, the program being fl-
nanced party by current taxation and partly by un-
precedented expansion of the national debt. The
people cheerfully support such measures because
the purpose served 1s vital and presents an undenl-
able appeal to every humane Instinct of clvlllsed
man. Inttanaes might be multiplied but PO useful
purpose.
Revised Civil Statutes, 1925, Article 10, sets forth
the rule whlah governs the construction of all olvll statutory
enactments and Section 8 of said Article spealflcally provides
that:
“The rule of the common lav that statutes
In derogatlgn thereof shall be strlotly construed
shall have no application to the Revised Statutes;
but the said statutes shall constitute the law of
this State respecting the subjeots to vhlch they
relate; and the provisions thereof shall be liber-
ally construed with a vlev to effect their objects
and to promote justice.”
Familiar examples of our ooUrt’8 liberal construction
of our home and family protective statutes are the exemption
statutes. Thus Article 3832, sub-sectlons 9 and 10, exempt
Honorable John II. i’iintera, pgr 6
“tYi0 horses and one wa6oP and “OAO carriage or buggy*. our
courtr have held that a truok is a wnaEon*within this :\rtl-
, &58 3. i. 223;
tit an automobile
, 127 3. 111.881; rovehouse
kgain, nourrent waues for personal fdttrvlces~ are
exempt, (Revised Statutes, lQ25, Article 40991 ArtiCle 3&&i,
sub-seotlon 16). The term “ourrent wagesw has been defined
to bei >
*8uoh compensation i: or personal senloes as
are to be pald periodically, or from time t) tlnrs,
as the sarvioea are rerderad, as wtiesre the servioes
are to be paid for by the hour, day, weak, R0Ath,
or year. ;&en wagea are payable monthly, t&s term
means ~a$e~nfor ths month ourrent at a partioular
tiule ) 25 C.J.s. 37 n. 47, 48, oiting numar-
OUS TOILISdeal 810~s.
Cur oourts have held the statutes applloable so
long as the wades are unaolleotedj smith VS. @ak curs Bank
and Trust CO~&WMJ99 5. ii. (2d) 111X3. Past Que wages lefi
wath employer ‘9aokBe thoy cannot be colleoted are held to be
"ourrent :%iges* aAd are eiempt under the statutesj bzt past
due wa,ms voluntsrilv loft with the ecnclomr are held nat to
be “&rent wagea*. -3&idSOA VS. .a. 3;~ Lb&emSB$Xk COmpELA&
4l 3. ii. 824.
Eere both of the reolplsnts, husband and wife,
alive at the time the oheoke were issued, mailed or reoeived
there would be no question of their right to reoeive t,ke past-
due pa$iieAts. Does death abate this right? We think not.
The unotlous action of mOderA legislation and deCisloAs has
praotically done away with the harshness Of the OO=inOAlaw
rule, epitomized in the Latin mez&mUat *Act10 personalis
mOritUr oom perSOna* (a personal r&tit of SOtiOA diea 1~1th
the person). "At COlRmOA l&W, every peAdiAg RotiOn, ;tihether
fourdad OA oontrhot or tort, abated by tb death of a sole
plaIntiff or Sole defendant ilnd oould prooeed 110 further; it
perished.* .\batemeAt and FIeviva&, 1 .km. Jur. 59 1~. 56. IA
Texas %here t,,Ta caUse 31 sczion is one .xLhlch S:.:rvivea, no
suit ah&l abcite beoauoe of the death of any gcrty thereto
before :he verdict or deciSi.OA of the court is rendered, but
YTLC!I sU;uit shall proceed to jUd&IeAt aS hareiA:Qtter provided."
(T. J.. C. :', I:o. 150).
841
IIonorade John & &iter3, page 7
"In detornining ðer a cause of action
abates Or aurvires at oomon law the nature of the
right Of aotion is to be looked to rather than
the rom! in whioh the right 13 asserted." Abate-
slent emd Revival, 1 Tex. Jur. 26, n. 13. -
"Aa a r;eneral rule oauaes or aotlon whloh are
not assignable do not survive, while oause8 or
aotions whica sro assignable do survi~o. But this
Is beoausa Of qualltiee that inhere 1x1 the nature
or the right rather than in the quality of assign-
ability or non-aesignability. Eienor were a 3tatute
enaoted for a rpeoial purpoao, as tar proteotion
or the oiaimant a:;ainst irmprovidence, forbid3 a9-
signment, nonsurvivability doee not neoeaesrily
result. Sspeoially 1s this the Nh where the
same statute also Drovides that the oause of ao-
tion shall survire.~ abatement and Rerlval, 1
Tax. Jur. 26-28, note3 1 acd 2.
In this connection Seoiion 29 of Art1013 6950 spe-
cirically providea ror survival 0r the paynrsnt aesistance ror
1 t provides a lnethod where a oheok oan be oashed when the re-
cipient died b&ore ita reoolpt b7 the reoipient, and it au-
t’.~orizes
. the oomplete payment af tha amount due.
:fhile unquestionably the right to the assistance
pqmenta is personal to the reoigient, Just as are the right
to olaim ths exeurption benof'ita sf our statutes, the statute
(?1950, Aec. 29, 8s mended) dose provide ror aunivorship in
tF&t it authorizes the oashing the marth’s oheok in which the
death ocourred.
It is our O``SI~OAthat the right to a33lstame 13
novammental and that the statutorv &arm *where the reoioient
'iii~i-bGii% the cheek issued for &a~ asristanoe, for the -
n?.oonthin whioh t;?eath ooourred, has been endorsed or cashed
b!? the reOiDieAt. t&i amount or CheOk shall be paid," (Art.
6550, 580, i9) should be liberally oonetrued. ?hat-it should
be oongtrued in line with 3ur oourtfs ooustxuction H "ourrent
wages" ani *horse, carriage and bwgy* provisiOns of our exenp-
tiOA statztc3. The csurts rec0i;ni~e t!le &rest iifficulty in
frruni= an7 statute ahlch shall derinitely 3nd 3pJoificall7
aDply 13 all ;,oouible situations. It thereforo bti~om3 neoes-
sary t0 osnsider the circumstances JP each icdividual cosa and
aDi,ly It Lo t:i3 ~'31~el'al view 0r trs la;i in ,uoctioA. As stated
842
Honorable John ki. .tiAterg, page 8
by Chlcf Justioe 2haw, In Commonw8alth vs. hunt (1242 Mass).
4 Letoalr, 111, p. 129; vThe law 18 Aot to be hoodwinked by
oolorable pretenses. It looks at truth and reality, through
whatever disguise It may aamuae.~
::'beie an a,rglicaAt, ComiAC .&thin tha measurements
or the law, rile8 his applioation & ‘has a 00Astitutf.0nal
right to assi6t=Ce; a right yhhloh should not be deAled him
because of Son8 rleldworker~a error in wrollgfullp removing
the 6ppli;aAt*s nam8 from the roll and when that wrong was
correoted, it xaa aorreoted and righted as of the data When
the error wae iir3t made. To hold sthemi~!, is to ;lunish
one for the wrow of another. Yinoe the deoeased was an ao-
tual reolgient of the rund, theA a3 a matter of jUSti and
e&ty the unpaid assiotanoe Should be paid to the person
who took care Of the deceased pondi&% the appeal, as found
by the department. That paxion is eAtitled to the aid with-
held from th8 deceaoed through no fault of her OWIL It is
manifestly unfair to punish OLS for the nistalaen judgment of
another -- especially 1s thle true Where under the atitted
faotsof this Case reoipient i'us already rsoeivi~ aid ond
asslstaaoe and gaymaat WQS auspSndcd pen&n2 o;,pc~al and fur-
t;ler lnvestlgation. Certainly, one has M vested right to
paymeAtS not yet be.;un. ,mtUre payU'IeAt8 ana not j.Avolved.
.&at is iuvolved, is past-due payments. In our opi~io5 the
statute should be construed llberally'and in line tith our
8X8ih&&iOnStatutes.
.ilso, tho stotuta flrthor prsvi;tea "that all old
age assistance . . . warrants not oashod, as previded by this
Xot, within a rea3oAabla time after isauanoe my be oancelled
by the jtato Congtrollor upon proper outhorlzation of the
State ilepartment of >ublio ‘::8lfare* (:ut. 6950, rjboe 29).
In the imta~.b oaao at nsst all thsra rCmained to do xas the
manual or plnysioal ‘lot of issul~g the warrants for the :;ppeal
noard had reinstuted recipitmt @or to her death; aAd she
had been .plPced back on the rolls as of the dztC sf hCr re-
mov31. Zare the xzrran$s had boon Issued. "hey should Aot
haye beer; recalled, for in our opition 'de WarraAtS, not hav-
iAg been oasA6d s reasor;.atle time after their iE~Sl:MCo, should
kaya bcon alJ.mad to jass bafors their ~aACellatiCn or rsoall.
l!onorable John il. ;iintars, ;a@ 9
‘de, therefore, mwsr your rim lquiry ir the af-
firmative and as to your z.eoond inquiry, the warrants are in
the oatezory ol uncashed warrants and the statutes as to de-
cedantte e&ate control.
Your6 very truly
BY
David ‘Xmtoh
ir.3sistaot