Does a Texas real estate agent or seller have to tell buyers that a previous occupant of the house had AIDS or HIV?

Texas AG Opinion JM-1118: Must a Real Estate Agent Disclose That an Occupant Had AIDS or HIV?

Plain-English summary

A state representative asked the Attorney General a question that sat at the intersection of housing law, consumer protection, and the AIDS epidemic: does a real estate agent or seller have to tell a buyer that a current or former occupant of a house had AIDS or HIV? And if a seller stays silent, could that silence itself be illegal under Texas consumer-protection law?

The Attorney General's answer, building on an opinion it had issued a few months earlier (JM-1093), was that agents and sellers not only do not have to disclose this, they are prohibited from doing so. The federal Fair Housing Amendments Act of 1988 extended fair housing protections to people with handicaps, and Congress meant that category to include people who are HIV-positive. One provision of the federal law, 42 U.S.C. section 3604(c), makes it unlawful to make any statement about the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on handicap. Disclosing that an occupant had HIV, the Attorney General reasoned, is exactly that kind of statement, and it would have a discriminatory effect, even when the buyer asks point-blank. Federal law also invalidates state law that would require or permit a discriminatory housing practice, so any state rule pushing the other way gives way.

That preemption drove the answer to the consumer-protection question. The Texas Deceptive Trade Practices Act makes it a violation to fail to disclose known information intended to induce a buyer into a deal the buyer would otherwise avoid, but only for "material facts," which the courts have generally treated as physical or legal defects in the property. Because federal law forbids disclosing an occupant's HIV status, that status cannot be a material fact a seller is required to reveal; reading the DTPA to require it would create a conflict with federal law, and the state law would lose. So HIV infection of a current or former occupant cannot be disclosed to a buyer under the DTPA.

Finally, the representative asked whether an unauthorized disclosure would violate the occupant's constitutional right to privacy. The Attorney General explained that the privacy guarantees in the U.S. and Texas Constitutions protect against government intrusion, not disclosures by private individuals, so a private person's disclosure would not be a constitutional violation. It noted, though, that Texas separately imposes civil and criminal penalties for the unauthorized disclosure of HIV test results under the Communicable Disease Prevention and Control Act.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion came early in the life of the 1988 Fair Housing Amendments and the Texas Fair Housing Act, and both the federal regulations (24 C.F.R. part 100) and the Texas statutes cited here have been amended and recodified since. Texas later enacted a specific statute providing that the fact a property was the site of a death by natural causes, suicide, or accident, or that a previous occupant had HIV or AIDS, is not a material fact that must be disclosed in a real estate transaction. Anyone handling a present-day disclosure question should check the current Property Code, the DTPA, and federal fair housing law rather than relying on the 1989 framing here.

Who this opinion affected (as of 1989)

Real estate agents, brokers, and sellers: The opinion told them not to disclose an occupant's HIV or AIDS status, even when a buyer asked directly. Far from being a required disclosure, it was a prohibited one under federal fair housing law, and silence about it could not be an actionable DTPA nondisclosure.

Home buyers: The opinion set the expectation that agents would not, and legally could not, answer questions about whether an occupant had HIV. A buyer's "specific request" did not create a duty to answer.

People living with HIV or AIDS, and their families: The opinion protected them from having their health status turned into a marketing fact about a home. It aligned Texas practice with the federal judgment that HIV-related discrimination in housing is unlawful.

The legislature and HUD: The opinion noted that the Texas Fair Housing Act's effective date depended on HUD certifying the state act as "substantially equivalent" to the federal act, tying state enforcement to federal standards.

Common questions

Does a seller or agent have to tell me a previous owner had AIDS?
No. The Attorney General concluded that federal fair housing law prohibits disclosing that a current or former occupant had or has AIDS or HIV, so there is no duty to disclose it, and doing so would itself be unlawful.

What if I ask the agent directly?
The opinion concluded that even an answer to a buyer's specific request would have a discriminatory effect under the federal law. Whether a particular statement crosses the line is a fact question, but an affirmative answer would run into the prohibition.

Is HIV status a "material fact" under the Texas Deceptive Trade Practices Act?
No. Because federal law forbids disclosing it, it cannot be a material fact a seller must reveal. DTPA material-fact cases generally involve physical or legal defects in the property, not an occupant's health.

Could disclosing it violate the occupant's privacy rights?
Not as a constitutional matter when a private individual does it, because constitutional privacy protects against government intrusion. But Texas law separately penalizes the unauthorized disclosure of HIV test results.

Background and statutory framework

The opinion rested heavily on the federal Fair Housing Amendments Act of 1988 and on the Attorney General's earlier Opinion JM-1093 (1989), which had analyzed House Bill 976 (a bill that would have required real estate licensees to make exactly this kind of disclosure). Federal law invalidates state law that "purports to require or permit any action that would be a discriminatory housing practice." 42 U.S.C. § 3615. The legislative history of the 1988 amendments and the implementing rules established that the amendments extended fair housing protection to handicapped persons and that the class includes individuals afflicted with HIV. H.R. Rep. No. 711, 100th Cong., 2d Sess., reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2179; 54 Fed. Reg. 3288 (to be codified at 24 C.F.R. § 100.201). An early federal decision agreed that Congress intended to include HIV-positive persons among handicapped persons. Baxter v. City of Belleville, 1989 U.S. Dist. Lexis 10298 (S.D. Ill. Aug. 25, 1989).

The prohibition itself comes from 42 U.S.C. § 3604(c), which makes it unlawful to make, print, or publish any statement about the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on handicap. Courts have read section 3604(c) broadly, applying it not only to printed advertisements (United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied 409 U.S. 934 (1972)) but also to discriminatory verbal statements by an owner's agent (United States v. L & H Land Corp., 407 F. Supp. 576 (S.D. Fla. 1976)) and to a recorder of deeds including restrictive covenants in recorded deeds (Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972)). On that reasoning the opinion reaffirmed JM-1093: the federal Fair Housing Act prohibits disclosing that a current or former occupant has or had AIDS or some other degree of HIV infection. Whether the Texas Fair Housing Act would independently reach the same conduct was immaterial, though the opinion observed that the Texas act's effective date depended on HUD certifying it "substantially equivalent" to the federal act. Acts 1989, 71st Leg., ch. 1081, § 11.01.

On the second question, the Deceptive Trade Practices and Consumer Protection Act (DTPA) was enacted in 1973 to protect consumers from false, misleading, and deceptive trade practices and is construed broadly. Bus. & Comm. Code §§ 17.41, 17.44. Real estate is covered as "goods" under the act (§ 17.45(1); Woods v. Littleton, 554 S.W.2d 662, 667 (Tex. 1977); Parks v. U.S. Home Corp., 652 S.W.2d 479 (Tex. App. - Houston [1st Dist.] 1983, writ dism'd); Anderson v. Havins, 595 S.W.2d 147 (Tex. Civ. App. - Amarillo 1980, writ dism'd)), and the DTPA reaches real estate brokers (Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex. 1981); Manchac v. Pace, 608 S.W.2d 314 (Tex. Civ. App. - Beaumont 1980, writ ref'd n.r.e.)). Section 17.46(b)(23) makes it a violation to fail to disclose known information intended to induce a consumer into a transaction the consumer would not otherwise have entered. Courts have read that provision to protect against nondisclosure of a material fact (First City Mortgage Co. v. Gillis, 694 S.W.2d 144 (Tex. App. - Houston [14th Dist.] 1985, writ ref'd n.r.e.); Gibbs v. Main Bank of Houston, 666 S.W.2d 554, 560 (Tex. App. - Houston [1st Dist.] 1984, no writ)), and in real estate transactions the material facts have generally been physical or legal defects, such as a demolition order (Ojeda De Toca v. Wise, 748 S.W.2d 449 (Tex. 1988)), appliances failing to meet code (Weitzel v. Barnes, 691 S.W.2d 598 (Tex. 1985)), incomplete termite extermination (Orkin Exterminating Co. v. LeSassier, 688 S.W.2d 651 (Tex. App. - Beaumont 1985, no writ)), a defective water system (Cobb v. Dunlap, 656 S.W.2d 550 (Tex. App. - Corpus Christi 1983, writ ref'd n.r.e.)), pool construction (Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167 (Tex. App. - Fort Worth 1982, writ ref'd n.r.e.)), and a refurbished motor home sold as new (Sam Montgomery Oldsmobile Co. v. Johnson, 624 S.W.2d 237 (Tex. Civ. App. - Houston [1st Dist.] 1981, no writ)). Reading the DTPA to require disclosure of an occupant's HIV status would create a conflict with the federal prohibition, and the state law would be invalid. So the opinion answered the second question in the negative, and did not reach the third question, which depended on a "yes."

On the fourth question, the constitutional right to privacy under the U.S. Constitution guards against governmental intrusion (Katz v. United States, 389 U.S. 347 (1967)), and the Texas Constitution likewise protects privacy from governmental invasion, yielding only to a compelling governmental objective achievable by no less intrusive means (Texas State Employees Union v. Texas Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987)). Because the representative's question concerned a statement by a private individual, those governmental-intrusion cases were inapposite. The opinion noted, however, that the legislature had provided civil and criminal penalties for the unauthorized disclosure of test results in the Communicable Disease Prevention and Control Act. Health & Safety Code §§ 81.103, 81.104; Acts 1989, 71st Leg., ch. 678, § 1, at 2323-24.

Citations

Statutory and regulatory authorities:

• 42 U.S.C. § 3604(c) (unlawful statements indicating discrimination in the sale or rental of a dwelling); § 3615 (invalidation of state law requiring or permitting a discriminatory housing practice)
• 24 C.F.R. § 100.201 (handicap under the Fair Housing Act)
• Texas Business & Commerce Code § 17.46(b)(23) (nondisclosure of known information); § 17.45(1) (real estate as "goods"); §§ 17.41, 17.44 (DTPA purpose and construction)
• Health & Safety Code §§ 81.103, 81.104 (penalties for unauthorized disclosure of test results); Acts 1989, 71st Leg., ch. 678, § 1, at 2323-24
• Texas Fair Housing Act, Acts 1989, 71st Leg., ch. 1081, § 11.01 (HUD "substantially equivalent" certification)

Cases (federal fair housing):

• Baxter v. City of Belleville, 1989 U.S. Dist. Lexis 10298 (S.D. Ill. Aug. 25, 1989); United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied 409 U.S. 934 (1972); United States v. L & H Land Corp., 407 F. Supp. 576 (S.D. Fla. 1976); Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972)

Cases (DTPA and privacy):

• Woods v. Littleton, 554 S.W.2d 662 (Tex. 1977); Parks v. U.S. Home Corp., 652 S.W.2d 479 (Tex. App. - Houston [1st Dist.] 1983, writ dism'd); Anderson v. Havins, 595 S.W.2d 147 (Tex. Civ. App. - Amarillo 1980, writ dism'd); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex. 1981); Manchac v. Pace, 608 S.W.2d 314 (Tex. Civ. App. - Beaumont 1980, writ ref'd n.r.e.); First City Mortgage Co. v. Gillis, 694 S.W.2d 144 (Tex. App. - Houston [14th Dist.] 1985, writ ref'd n.r.e.); Gibbs v. Main Bank of Houston, 666 S.W.2d 554 (Tex. App. - Houston [1st Dist.] 1984, no writ); Ojeda De Toca v. Wise, 748 S.W.2d 449 (Tex. 1988); Weitzel v. Barnes, 691 S.W.2d 598 (Tex. 1985); Orkin Exterminating Co. v. LeSassier, 688 S.W.2d 651 (Tex. App. - Beaumont 1985, no writ); Cobb v. Dunlap, 656 S.W.2d 550 (Tex. App. - Corpus Christi 1983, writ ref'd n.r.e.); Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167 (Tex. App. - Fort Worth 1982, writ ref'd n.r.e.); Sam Montgomery Oldsmobile Co. v. Johnson, 624 S.W.2d 237 (Tex. Civ. App. - Houston [1st Dist.] 1981, no writ); Katz v. United States, 389 U.S. 347 (1967); Texas State Employees Union v. Texas Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987)

Attorney General opinions referenced:

• JM-1093 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1118
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1118.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 6, 1989

Honorable Steven D. Wolens
Chairman
Business and Commerce Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1118

Re: Obligation of a real estate licensee with regard to disclosure that a previous or current occupant 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).[Footnote 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 JM-1093 (1989). In that opinion we addressed questions regarding the application and interpretation of House Bill 976, adopted by the 71st 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 determined that the federal Fair Housing Act invalidates state law that "purports to require or permit any action that 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., reprinted in, 1988 U.S. Code Cong. & Admin. News 2173, 2179; 54 Fed. Reg. 3288 (to be codified at 24 C.F.R. § 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. City of Belleville, 1989 U.S. Dist. Lexis 10298 (S.D. Ill., Aug. 25, 1989), issued a few days prior 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 handicapped persons those who are HIV-positive.

Baxter, supra, 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 1988, 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) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. (Emphasis added.)

42 U.S.C. § 3604.

The court in United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied 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, § 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 advertisements.

Id. at 210.

The court limited its analysis to "printing" and "publishing," 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 Corp., 407 F. Supp. 576 (S.D. Fla. 1976). Likewise, the section has been applied against the recorder of deeds relative to the inclusion of restrictive covenants in recorded property deeds. Mayers v. Ridley, 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, supra, 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 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 "substantially equivalent" to the federal act. Acts 1989, 71st Leg., ch. 1081, § 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 disclosure 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 generally Bus. & Comm. Code § 17.41 et seq. It is to be construed broadly to promote its underlying purposes. Id. § 17.44.

Real estate is covered under the definition of "goods" in the act. Id. § 17.45(1); see also Woods v. Littleton, 554 S.W.2d 662, 667 (Tex. 1977); Parks v. U.S. Home Corp., 652 S.W.2d 479 (Tex. App. - Houston [1st Dist.] 1983, writ dism'd); Anderson v. Havins, 595 S.W.2d 147 (Tex. Civ. App. - Amarillo 1980, writ dism'd). The DTPA also applies to real estate brokers. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex. 1981); Manchac v. Pace, 608 S.W.2d 314 (Tex. Civ. App. - Beaumont 1980, writ ref'd n.r.e.).

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 known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.

Bus. & Comm. Code § 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 City Mortgage Co. v. Gillis, 694 S.W.2d 144 (Tex. App. - Houston [14th Dist.] 1985, writ ref'd n.r.e.); Gibbs v. Main Bank of Houston, 666 S.W.2d 554, 560 (Tex. App. - Houston [1st Dist.] 1984, 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.g., Ojeda De Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) (duty to disclose demolition order); Weitzel v. Barnes, 691 S.W.2d 598 (Tex. 1985) (failure of air conditioner and water heater to meet city code specifications); Orkin Exterminating Co. v. LeSassier, 688 S.W.2d 651 (Tex. App. - Beaumont 1985, no writ) (incomplete termite extermination); Cobb v. Dunlap, 656 S.W.2d 550 (Tex. App. - Corpus Christi 1983, writ ref'd n.r.e.) (defects of water system in a mobile home park); Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167 (Tex. App. - Fort Worth 1982, writ ref'd n.r.e.) (construction of swimming pool); Sam Montgomery Oldsmobile Co. v. Johnson, 624 S.W.2d 237 (Tex. Civ. App. - Houston [1st Dist.] 1981, no writ) (refurbished motor home sold as 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 discriminatory housing practice." 42 U.S.C. § 3615. As indicated in our answer to your first question, Attorney General Opinion JM-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.

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. See 42 U.S.C. §§ 3604(c), 3615; 24 C.F.R. § 100.201; Hunter, supra; Mayers, supra; Baxter, supra; Attorney General Opinion JM-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 general 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 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 an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.

Texas State Employees Union v. Texas Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987).

Your question, however, appears to relate to a statement 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 §§ 81.103, 81.104; Acts 1989, 71st Leg., ch. 678, § 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. Consequently, 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU 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

Footnote 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.