Did Texas Medicaid and adult protective services records become public after the person named in them died?

Texas AG Opinion JM-851: Records of Deceased Medicaid Recipient

Plain-English summary

The Texas Department of Human Services received a request for Medicaid and adult protective services records concerning a person who had died. The commissioner asked whether the Human Resources Code confidentiality provisions still applied after death.

The Attorney General concluded that they did. Open Records Act section 3(a)(1) covered information made confidential by constitutional law, statutes, or judicial decisions, and section 10 prohibited disclosure of information deemed confidential under the Act.

The opinion distinguished statutory confidentiality from common-law privacy. Texas courts had recognized that a person's common-law privacy right ended at death. But that recently recognized common-law rule did not establish that older confidentiality statutes automatically expired when the subject died.

Sections 12.003, 21.012, and 48.083 contained no language limiting confidentiality to the person's lifetime. The question was therefore one of statutory construction, and the Department had to continue withholding the records.

Currency note

This opinion was issued in 1988. 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.

Common questions

Did common-law privacy survive the person's death?

No. The opinion recognized Moore's holding that the common-law privacy right ended when the person died.

Why were the records still confidential?

Their confidentiality came from statutes, not merely from the deceased person's common-law privacy right.

Did the statutes say confidentiality ended at death?

No. The opinion found no language in the three Human Resources Code provisions limiting them to the subject's lifetime.

Which records did the opinion cover?

It addressed Medicaid records and adult protective services records held by the Department of Human Resources.

Was the Department allowed to release the records voluntarily?

No. The opinion treated section 3(a)(1) as a mandatory exception when applicable and noted that section 10 prohibited release of confidential information.

Background and statutory framework

Former article 6252-17a, section 3(a)(1), protected information deemed confidential by law. Unlike discretionary open-records exceptions, the opinion said this provision had to be invoked when a confidentiality law applied.

Billings v. Atkinson first recognized a Texas common-law privacy right. Moore later followed the majority rule that the personal common-law privacy right terminated at death.

The confidentiality provisions in Human Resources Code sections 12.003 and 21.012 traced back to the Public Welfare Act of 1941. The opinion declined to read a later-developed common-law rule into those statutes or section 48.083 without statutory text supporting that result.

Citations

Statutory materials:

• Former V.T.C.S. article 6252-17a, sections 3(a)(1) and 10
• Human Resources Code sections 12.003, 21.012, and 48.083
• Public Welfare Act of 1941, Acts 1941, 47th Legislature, chapter 562, section 1

Cases:

• Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973)
• Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489 (Tex. Civ. App. - Texarkana 1979)
• Pavesich v. New England Life Insurance Co., 50 S.E. 68 (Ga. 1905)

Prior Attorney General material referenced: JM-229 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-851
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0851.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

February 4, 1988

Mr. Marlin W. Johnston Opinion No. JM-851
Commissioner
Texas Department of Human Re: Whether section 3(a)
Services (1) of the Open Records Act,
P.O. Box 2960 article 6252-17a, V.T.C.S.,
Austin, Texas 78769 authorizes the Department of
Human Services to withhold
records about a deceased
person (RQ-1150)

Dear Commissioner Johnston:

You ask whether section 3(a)(1) of the Open Records Act, article 6252-17a, V.T.C.S., requires the Department of Human Services to withhold certain records about a person who is now deceased. Section 3(a)(1) provides that a governmental body may withhold from public disclosure "information deemed confidential by law, either Constitutional, statutory, or by judicial decision." Section 10 of the Open Records Act prohibits the release of "[i]nformation deemed confidential under the terms of this Act." Thus, section 3(a)(1) is an exception that must be invoked if it is applicable.

You state that you have received a request for the adult protective services records and Medicaid records of a person who is now dead. You ask whether the confidentiality provisions of sections 12.003, 21.012, and 48.083 of the Human Resources Code apply even though the person to whom the records pertain is no longer alive.

It has been suggested that there is a general rule, growing out of the common-law right of privacy, that statutory confidentiality provisions lapse on the death of the person to whom the confidential records pertain. We disagree with that suggestion. The common-law right of privacy was first recognized by the Texas Supreme Court in 1973. Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973). Only in 1979 did a Texas court determine that Texas would follow the Restatement and majority view that the common-law right of privacy terminates upon the death of a person whose privacy is invaded.¹ Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489 (Tex. Civ. App. - Texarkana 1979). See generally Harper, James & Gray, The Law of Torts, vol. 2, § 9.6 (2d ed. 1986). Therefore, it can hardly be maintained that the recently discovered rule that common-law privacy rights lapse upon death is so imbedded in Texas law that we should presume that statutes that make certain types of information confidential lapse upon the death of the subject of the information, particularly statutes such as sections 12.003 and 21.012 of the Human Resources Code, the original versions of which were enacted as part of the Public Welfare Act of 1941. Acts 1941, 47th Leg., ch. 562, § 1, at 914. See Harper, James, Gray, supra, at 647 (noting that privacy statutes in most states provide for the survival of causes of action). The question before us, then, is one of statutory construction. See Attorney General Opinion JM-229 (1984). Nothing in the three statutes you ask about indicates that the legislature intended those confidentiality provisions to apply only during the lifetime of the subject of the information. Therefore, you must withhold the requested information.

SUMMARY

The Department of Human Resources must withhold Medicaid records and adult protective services records of a person who is now deceased. Hum. Res. Code §§ 12.003, 21.012, and 48.083; V.T.C.S. art. 6252-17a, § 3(a)(1).

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 Sarah Woelk
Assistant Attorney General