Untitled Texas Attorney General Opinion ( 1989 )

Mr. Wallace Collins Opinion No. JM-1093
Administrator
Texas Real Estate Commission Re: Whether House Bill 976,
P. 0. Box 12188 which requires a real estate
Capitol Station licensee to disclose AIDS
Austin, Texas 78711 information to a potential
purchaser or lessee con-
flicts with article 4419b-1,
V.T.C.S., and related ques-
tions (RQ-1770)
Dear Mr. Collins:
You ask five questions regarding the interpretation and
application of House Bill 976, enacted by the 71st Legis-
lature. We decline, however, to answer your specific
questions, because we believe that the bill violates the
federal Fair Housing Amendments Act and is partially
invalid.
House Bill 976 amends the Real Estate License Act,
article 6573a, V.T.C.S., by adding a subsection (c) to the
provisions of' section 15 regarding activities that may
result in the suspension or revocation of a license. Acts
1989, 71st Leg., ch. 1171, § 1, at 4802. The bill also adds
a new section 15C, which has language that is virtually
identical to that added to section 15. Id. § 2, at 4804.
The first sentence of subsection 15(c) releases a
person from civil and criminal liability for failure to
inquire about or disclose information regarding a previous
or current occupant's AIDS infection or other HIV-related
illness. Your questions revolve around the second sentence
of subsection 15(c) and the identical provisions included in
section 15C. The latter provisions would require a person
to inform a potential buyer or lessee of real property that
a previous or current occupant of the property had or has
AIDS, HIV-related illnesses, or HIV infection, but only "on
receiving a specific request for the information" and only
if he has "actual knowledge" of the condition.
We believe that the disclosure provisions of the bill
are invalidated by federal law. A provision of the federal
Fair Housing Act, 42 U.S.C. § 3615, reads as follows:
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Mr. Wallace Collins - Page 2 (JM-1093)
Nothing in this subchapter shall be construed
to invalidate or limit any law of a State or
political subdivision of a State, or of any
other jurisdiction in which this subchapter
shall be effective, that grants, guarantees,
or protects the same rights as are granted
by this subchapter; but anv law of a State. a
political subdivision, or other such iuris-
diction that ouroorts to reauire or oermit
anv action that would be a discriminatorv
housina oractice under this subchanter shall
to that extent be invalid. (Emphasis added.)
42 U.S.C. § 3615.
Thus, to the extent that it violates the Federal Fair
Housing Act,1 a state law is invalid, pursuant to section
3615.
House Bill 976 qVpurports to require" a person to inform
a potential buyer that a previous or current occupant had or
has AIDS, and it "purports to permit" the buyer to make a
"specific request" for that information. We believe that
this exchange, which is implicitly contemplated in the bill,
is a discriminatory housing practice under subchapter I of
chapter 45, title 42, U.S.C., specifically, section 3604(c),
and thus invalidated by section 3615 of title 42 U.S.C.
The 100th Congress adopted the Fair Housing Amendments
Act of 1988, effective March 12, 1989, to extend the protec-
tions offered by the Fair Housing Act to handicapped
individuals and others. Fair Housing Amendments Act of
1988, Pub. L. No. 100-430, 102 Stat. 1619. While the
language of those amendments does not expressly indicate
that AIDS sufferers are included within its provisions as
handicapped individuals, both the legislative history of the
amendments and rules promulgated by the Secretary of Housing
and Urban Development indicate that purpose.
The report of the House Judiciary Committee explains
the effect of the amendments, the necessity of including
handicapped individuals within the provisions of the Fair
1. We note that the 71st Legislature has also adopted
Senate Bill 75, the Texas Fair Housing Act, which mirrors
the federal fair housing statute. Acts 1989, 71st Leg., ch.
1081, at 4358. You do not ask and we do not address the
interaction between Senate Bill 75 and House Bill 976.
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Mr. Wallace Collins - Page 3 (JM-1093)
Housing Act, and the intent to include AIDS victims within
that class as follows:
[The Fair Housing Amendments Act] repudiates
the use of stereotypes and ignorance, and
mandates that persons with handicaps be
considered as individuals. Generalized
perceptions about disabilities and unfounded
speculations about threats to safety are
specifically rejected as grounds to justify
exclusion.
For example, people who use wheelchairs
have been denied the right to build simple
ramps to provide access, or have been per-
ceived as posing some threat to property
maintenance. People with visual and hearing
impairments have been perceived as dangers
because of erroneous beliefs about their
abilities. People with mental retardation
have been excluded because of stereotypes
about their capacity to live safely and
independently. People with Acquired Immune
Deficiency Syndrome (AIDS) and people who
test positive for the AIDS virus have been
evicted because of an erroneous belief
that they pose a health risk to others.
(Footnotes omitted.)
H.R. Rep. No. 711, 100th Cong., 2d Sess., reDrinted in, 1988
U.S. Code Cong. & Admin. News 2173, 2179.
In accordance with that expressed legislative intent,
the Secretary of Housing and Urban Development adopted rules
effective March 12, 1989, and expressly defined the term
"handicap" to include Human Immunodeficiency Virus in-
fection. 54 Fed. Reg. 3288 (to be codified at 24 C.F.R.
§ 100.201).
While we have not identified any reported court
decisions interpreting the new provisions, we can
extrapolate from decisions made prior to the inclusion of
handicapped individuals as a protected class.
The Fair Housing Act has been interpreted in the
broadest terms to effectuate the legislative intent to
eliminate all forms of housing discrimination:
Like Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et sea., the Fair
Housing Act was enacted to ensure the removal
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Mr. Wallace Collins - Page 4 (JM-1093)
of artificial, arbitrary, and unneces-
sary barriers when the barriers operate
invidiously to discriminate on the basis of
impermissible characteristics. Congress
designed it to prohibit 'all forms of
discrimination, sophisticated as well
simpleminded.' The Act, therefore, is to ::
construed generously to ensure the prompt and
effective elimination of all traces of
discrimination within the housing field.
(Citations omitted.)
United States v. Citv of Par-ma. Ohio 494 F. Supp. 1049, 1053
(N.D. Ohio 1980), aff'd, 661 F.2d 56; (6th Cir. 1981), cert.
denied, 456 U.S. 926 (1982).
Section 3604 of title 42 U.S.C., as amended, provides
in part as follows:
As made applicable by [section 36032 of this
title] and exce t as exempted by [sections
3603(b) and 3607 5 of this title], it shall be
unlawful --
. . . .
(c) To make, print, or publish, or cause
to be made, printed, or published 21ny notice,
statement or advertisement, with r sect to
the sale & rental of a dwellina t&z indi-
cates anv orefaence. limitation. or discrim-
ination based on race, color, religion, sex,
handicap familial status, national
origin, & an intention to ma:: any such
preference, limitation, or discrimination.
(Emphasis added.)
With our knowledge that the term "handicap," under the
rules promulgated by the Secretary of Housing and Urban
Development, includes Human Immunodeficiency Virus infec-
tion, it is clear that the discussion between a potential
2. Exemptions found in subsection 3603(a) expired on
December 31, 1968. The exemptions found in subsection
3603(b) do not apply to discriminatory practices prohibited
by section 3604(c).
3. Section 3607 exempts certain religious organiza-
tions.
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Mr. Wallace Collins - Page 5 (JM-1093)
buyer and a salesman, for example, anticipated by House Bill
976 would violate section 3604(c). That conclusion is
supported by cases issued prior to the inclusion of handi-
capped individuals within the protections of the Fair
Housing Act.
In United States v. L & H Land Core., 407 F. Supp. 576
(S.D. Fla. 1976), the court found that verbal statements
made to white tenants to the effect that they were not
permitted to have black guests violated section 3604(c).
The court said that the statute prohibits "any statement
with respect to the rental of a dwelling which indicates any
discrimination, limitation or preference based on race or
color." ;Ih, at 580.
In United States v. Hunter 459 F.2d 205 (4th Cir.),
cert. denied, 409 U.S. 934 (19;2), the court examined a
newspaper publication of an allegedly discriminatory
advertisement. The court found that section 3604(c) did not
contravene constitutional protections of free press, speech
and due process. Interpreting subsection (c), the court
upheld a declaratory judgment that found that the classified
advertisement for a basement apartment in a "white home"
contravened the Fair Housing Act. The court first commanded
that the act be interpreted according to the plain meaning
of its words and concluded that the words "in white home"
could only signify a discriminatory intent:
Any other interpretation of the advertise-
ments would severely undercut the objectives
of the legislation. If an advertiser could
use the phrase 'white home' in substitution
for the clearly proscribed 'white only,* the
statute would be nullified for all practical
purposes. We cannot condone an interpreta-
tion which would circumnavigate congressional
intent in this remedial statute designed to
eliminate the humiliation and social cost of,
racial discrimination.
Id. at 215.
Finally, in Mavers v. Ridley, 465 F.2d 630 (D.C. Cir.
1972), the United .States Court of Appeals found that a
recorder of deeds was prohibited by section 3604(c) from
accepting for filing instruments that contain ra~cially
restrictive covenants. The court relied on section 3615 to
declare that "if a part of the District of Columbia Code
really forces the Recorder to violate appellants' Section
3604 rights, then that portion of' the Code is pro tanto
unlawful." Id. at 636.
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Mr. Wallace Collins - Page 6 (JM-1093)
The pavers case is particularly instructive for our
inquiry into the application of section 3604(c): it
involved a situation, like the one under consideration here,
not expressly anticipated in the federal statute: it
involved the Recorder of Deeds whose primary job, like that
of a real estate salesman licensed under the Real Estate
Licensing Act, is "with respect to the sale of dwellings:"
and it involved a statute rendered invalid by virtue of
section 3615.
We believe that the effectuation of the state statute
under consideration here would violate the federal statute
because handicapped individuals, including those having AIDS
and HIV infection, have been included as a protected class.
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 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 discrimina-
tory effect. Like the court in Hunter, we can see no effect
other than a discriminatory one. Like the courts in both
Hunter and Mavers, we must apply the federal statute
according to its plain meaning.
We conclude that the disclosure provisions made in the
second sentence of section 15(c) and in section 15C, article
6573a, V.T.C.S., as added by House Bill 976, are invalid
pursuant to sections 3604(c) and 3615 of title 42 U.S.C.
Since your questions relate to the application of those
provisions, we need not answer your questions directly.
SUMMARY
Those provisions of House Bill 976, Acts
1989, 71st Leg., ch. 1171, at 4802, that
purport to allow or require statements re-
garding the fact that a current or previous
occupant of real property has or had AIDS or
a related illness contravene the federal Fair
Housing Amendments Act of 1988 and are there-
fore invalid.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
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Mr. Wallace Collins - Page 7 (JM-1093)
LQU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
'Assistant Attorney General
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