Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORNEY GENERAL
OF TEXAS
December 6, 1989
Honorable Steven D. Wolens Opinion No. JM-1118
Chairman
Business and Commerce Re: Obligation of a real
Committee estate licensee with regard
Texas House of Representatives to disclosure that a pre-
P. 0. BOX 2910 vious or current occupant
Austin, Texas 78768-2910 of real property had or has
AIDS or HIV infection
(RQ-1797)
Dear Representative Wolens:
you ask four questions regarding the disclosure of the
fact that a previous or current occupant of real estate had
or has human immunodeficiency virus (HIV).1 In your first
question, you ask:
Will a real estate licensee who discloses
actual knowledge that a previous or current
occupant of real property had or has AIDS,
HIV-related illnesses, or HIV infection in
response to a specific request for disclosure
be in violation of the Federal Fair Housing
Act of 1988 (42 U.S.C. Sections 3604-3606)
and the Texas Fair Housing Act (S.B. 75)?
We have already answered your first question in
Attorney General Opinion JN-1093 (1989). In that opinion we
addressed questions regarding the application and interpre-
tation of House Bill 976, adopted by the 7lst Legislature,
which would require a real estate licensee to make the
disclosure that is central to your questions.
In Attorney General Opinion JM-1093, we first deter-
mined that the federal Fair Housing Act invalidates state
law that "purports to require or permit any action that
1. For the purposes of this opinion we will use the
term *'HIV infection" to include all stages of the infection,
including AIDS, because it is the presence of the virus and
not the stage of the disease that is pertinent.
p. 5877
Honorable Steven D. Wolens - Page 2 (JM-1118)
would be a discriminatory housing practice" under the
federal statute. 42 U.S.C. § 3615; Attorney General Opinion
JM-1093 (1989), at 2.
We next examined the legislative history of the federal
Fair Housing Amendments Act of 1988 and the rules enacted
pursuant to those amendments. We ascertained that the 1988
amendments extended the protections of the federal Fair
Housing Act to handicapped persons and that the class of
handicapped persons includes individuals afflicted with HIV.
H.R. Rep. No. 711, 100th Cong., 2d Sess., reorinted in, 1988
U.S. Code Cong. & Admin. News 2173, 2179; 54 Fed. Reg. 3288
(to be codified at 24 C.F.R. 5 100.201): Attorney General
Opinion JM-1093 (1989), at 3.
At the time our opinion was issued there were no
reported cases interpreting the 1988 amendments, however,
Baxter v. Citv of Belleville, 1989 U.S. Dist. Lexis 10298
f.9.D. Ill., Aua. 25. 1989). issued a few days nrior to
JM-1093, largely supports our COnClUSiOn. The-Baxter case
involved a zoning action that would have prohibited the
plaintiff from operating a residence for AIDS patients. The
Baxter court examined the legislative history of the
amendments and reached the same conclusion that we did:
It is clear from its legislative history that
Congress intended to include among handi-
capped persons those who are HIV-positive.
Baxter, m, at 25.
It is the disclosure of the HIV infection of the former
occupant that is the *'discriminatory housing practice" under
the federal law. Section 3604 of title 42 of the United
States Code, as amended in 1908, provides in part as
follows:
As made applicable by section 3603 of this
title and except as exempted by sections
3603(b) and 3607 of this title, it shall be
unlawful --
. . . .
(c) TOmake, print, or publish, or cause
to be made, printed, or published u notice,
Statement, or advertisement, with resoect
fo the sale or rental of a dwellina that
indicates anv nreference. limitation. or
discrimination based QD race, color, reli-
gion, sex, &&ndicaa familial status, or
national origin, or aA intention to make any
13. 5078
Honorable Steven D. Wolens - Page 3 (JR-1118)
such preference, limitation, or discrimina-
tion. (Emphasis added.)
42 U.S.C. 5 3604.
The court in !&&ad States v. Hw, 459 F.2d 205 (4th
Cir.), cert. c&n&d 409 U.S. 934 (1972), in upholding a
declaratory injunction prohibiting continued publication of
newspaper advertisements containing the phrase "white home,"
examined the application of section 3604(c) and found that
the advertisements violated the section. In regard to the
application of the section, the court said:
Unlike other sections of the Fair Housing
title, 5 3604(c) does not provide any
specific exemptions or designate the persons
covered, but rather, as the court below
noted, applies on its face to 'anyone'
printing or publishing illegal advertise-
ments.
L at 210.
The court limited its analysis to wprinting8V and
11publishing,Q8 because that was the issue in that case;
however, the section is much broader than indicated
there. The section also has been interpreted to prohibit
discriminatory verbal statements made by an agent of the
owner of real property. United States v. L & H Land Corn
407 F. Supp. 576 (S.D. Fla. 1976). Likewise, the section ha;
been applied against the recorder of deeds relative to the
inclusion of restrictive covenants in recorded property
deeds. Wavers v. Ridlev, 465 F.2d 630 (D.C. Cir. 1972).
We based our earlier opinion on the plain language of
section 3604(c) in combination with the traditionally broad
interpretation given to the Fair Housing Act by the courts.
The Baxter court also recognized that judicial inclination:
It has long been recognized that to give
full measure to the Congressional purpose
behind the FHA, courts have given broad
interpretation to the statute.
Baxter, a, at 34-35.
As we noted in our earlier opinion:
The determination of whether a potential
buyer's 'specific request' ('Does the current
occupant have AIDS?' or 'Tell me whether a
former occupant had AIDS.') is a statement
P- 5879
Honorable Steven D. Wolens - Page 4 (JM-1118)
within the federal prohibition is a question
of fact and not answerable in the opinion
process. However, any affirmative response
to that question would certainly have a
discriminatory effect.
Attorney General Opinion JM-1093 (1989), at 6.
We reaffirm our prior opinion: the federal Fair Housing
Act now prohibits the disclosure of the fact that a current
or former occupant of a residence has or had AIDS or some
other degree of HIV infection.
Whether the same activity would violate the Texas Fair
Housing Act is immaterial because, as we concluded in our
earlier opinion, the federal law prohibits the disclosure of
the HIV infection of an occupant of a residence. However,
we note that the effective date of the Texas Fair Housing
Act is premised on certification by the United States
Department of Housing and Urban Development that the Texas
act is wsubstantially equivalent" to the federal act. Acts
1989, 71st Leg., ch. 1081, 5 11.01. Thus, it appears that
the disclosure indicated in your first question would
contravene the state statute as well as the federal act.
In your second question you ask:
Is AIDS, an HIV-related illness, or HIV
infection a 'material fact* under the dis-
closure requirements of Section 17.46(b)(23)
of Texas* Deceptive Trade Practices-Consumer
Protection Act, Tex. Bus. & Comm. Code Ann.
Section 17.46(b)(23) (Vernon 1987)?
The Deceptive Trade Practices and Consumer Protection
Act (DTPA) was enacted in 1973 to protect consumers from
false, misleading, and deceptive trade practices. See
aenerallv Bus. ii Comm. Code S 17.41 et seq. It is to be
construed broadly to promote its underlying purposes. Id.
s 17.44.
Real estate is covered under the definition of "goods"
in the act. & 5 17.45(l); see also Woods v. Littleton,
554 S.W.2d 662, 667 (Tex. 1977); Parks
652 S.W.Zd 479 (Tex. App. - Houston [lst Dist.] 1983, wriC.
dism'd); tierson v. Havins 595 S.W.2d 147 (Tex. Civ. APP.
- Amarillo 1980, writ dism;d). The DTPA also applies to
real estate brokers. ( n .,
618 S.W.2d 535, 541 (Tex. 1981); Manchac v. Pace 608 S.W.2d
314 (Tex. Civ. App. - Beaumont 1980, writ ref'd A.r.e.).
P. 5880
Honorable Steven D. Wolens - Page 5 (JM-1118)
The section about which you specifically inquire reads
as follows:
(b) Except as provided in Subsection (d)
of this section, the term 'false, misleading,
or deceptive acts or practices' includes, but
is not limited to, the following acts:
. . . .
(23) the failure to disclose information
concerning goods or services which was hOWXl
at the time of the transaction if such
failure to disclose such information was
intended to induce the consumer into a trans-
action into which the consumer would not have
entered had the information been disclosed.
BUS. & Comm. Code 5 17.46(b)(23).
Although the language of this section is broad, it has
been interpreted to mean that the DTPA protects against the
nondisclosure of a material fact. First Citv Mortaaae Co.
v. Gillis 694 S.W.2d 144 (Tex. App. - Houston [14th Dist.]
1985, wrii ref'd n.r.e.); m 666
S.W.2d 554, 560 (Tex. APP. - Houston [lst Dist.] :9:4: no
writ).
Generally, the courts applying section 17.46(b)(23) to
real estate transactions have found that physical or legal
defects in the property are the material facts about which a
purchaser must be informed. See. e.a, Dieda de Toca v.
*, 748 S.W.Zd 449 (Tex. 1988) (duty co disclose demoli-
tion order): peitzel V. Barnes, 691 S.W.2d 598 (Tex. 1985)
(failure of air conditioner and water heater to meet city
code specifications); ti Lesassier,
688 S.W.2d 651 (Tex. App. - Beaumont 1985, no writ) (in-
complete termite extermination); &bb v. Dull&@, 656 S.W.Zd
550 (Tex. App. - Corpus Christi 1983, writ ref'd n.r.e.)
(defects of water system in a mobile home park): Anthony
Indus. v. Raasdale 643 S.W.Zd 167 (Tex. App. - Fort Worth
1982, writ ref'd A.r.e.) (construction of swimming pool):
Sam Wontaomerv Oldsmobile Co. v. Johnson, 624 S.li'.aii 237
(Tex. Civ. ADD. - Houston list Dist.1 1981, no writ) Ire-
furbished moror home sold ai new). -
As previously noted, the United States Congress has,
relative to real estate transactions, extended protected
status to handicapped individuals, including persons
afflicted with HIV, and invalidated state law "that purports
to require or permit any action that would be a dis-
criminatory housing practice." 42 U.S.C. 5 3615. As
P. 5881
Honorable Steven D. Wolens - Page 6 (JM-1118)
indicated in our answer to your first question, Attorney
General Opinion JW-1093 determined that the disclosure
requirements found in House Bill 976 would purport "to
require or permit [an] action that would be a discriminatory
housing practice" and thus are invalidated by the federal
act. ;EBt
An interpretation of the DTPA that would require the
seller of real property to disclose the HIV infection of a
current or former occupant would create a conflict between
the state law and the federal law. The state law, so
interpreted, would be invalid. &8 42 U.S.C. 55 3604(c),
3615: 24 C.F.R. 8 100.201: 889kbYeZSMavers,~: Baxter,
sunra: Attorney General Opinion JU-1093 (1989).
We do not answer your third question because it is
premised on an affirmative answer to the second question,
which we answer in the negative.
your fourth question is:
Is an unauthorized disclosure -- that an
individual who is a current or previous
occupant of real property has AIDS, HIV-
related illnesses, or HIV infection -- a
violation of that individual's right to
privacy as guaranteed by the United States
and/or Texas' Constitution(s)?
The guarantee of privacy derived from the United States
Constitution is a guarantee against governmental intrusion.
The United States Supreme Court has summarized the guarantee
as follows:
[The Fourth] Amendment protects individual
privacy against certain kinds of governmental
intrusion, but its protections go further,
and often have nothing to do with privacy at
all. Other provisions of the Constitution
protect personal privacy from other forms of
governmental invasion. But the protection of
a person's ~SDSR.& right to privacy -- his
right to be let alone by other people -- is
like the protection of his property and of
his very life, left largely to the law of the
individual States. (Footnotes omitted,
emphasis in original.)
Katz v. United States, 389 U.S. 347 (1967).
The Texas Constitution similarly protects individuals'
privacy from governmental invasion. The Texas Supreme Court
P. 5882
Honorable Steven D. Wolens - Page 7 (JM-1118)
has interpreted the Texas constitutional guarantee as
follows:
We hold that the Texas Constitution protects
personal privacy from unreasonable intrusion.
This right to privacy should yield only when
the government can demonstrate that
intrusion is reasonably warranted for t:i
achievement of a compelling governmental
objective that can be achieved by no less
intrusive, more reasonable means.
Texas State Rmnlovees Union v. Texas Den,t of Mental Health
& Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987).
Your question, however, appears to relate to a state-
ment by a private individual. Consequently, if that is so,
the cases regarding governmental intrusion on a person's
privacy would be inapposite. We do note, however, that
the Texas legislature has provided both civil and criminal
penalties for the unauthorized disclosure of test results in
the Communicable Disease Prevention and Control Act. Health
& Safety Code S§ 81.103, 81.104: Acts 1989, 71st Leg., ch.
678, !4 1, at 2323-24.
SUMMARY
A real estate licensee who discloses
knowledge that a previous or current occupant
of real property had or has AIDS or HIV
infection would violate the federal Fair
Housing Amendments Act of 1988. Conseguent-
ly, HIV infection of a current or former
occupant of real property cannot be disclosed
to a potential transferee under the Texas
Deceptive Trade Practices Act. The federal
and state constitutions protect individual
privacy from governmental intrusion, not
intrusion by private individuals.
JIM MATTOX
Attorney General of Texas
MARYRELIJIR
First Assistant Attorney General
LOU MCCRRARY
Executive Assistant Attorney General
P. 5883
Honorable Steven D. Wolens - Page 8 (JM-1118)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
P- 5884