(Updated Oct. 14, 2000)


    Art. 1, §3 of the Texas Constitution provides for the equal protection of the laws, which constitutional provision is much like the equal protection clause of the 14th Amendment of the United States Constitution. But decisions of the Texas courts have construed Art. 1, §3 in such a fashion so as to make particular challenges like the one discussed below attractive. If you wish to study cases regarding equal protection, please review this file.

    The Plaintiff in this case, Ben Mauldin, is a plumber licensed to practice his profession in Texas. Within the last few years, the Texas licensing authority for plumbers, the Texas State Board of Plumbing Examiners, started requiring the provision of social security numbers ("SSNs") just to secure a license.  However, Ben opposed this requirement for religious reasons (his affidavit may soon be posted given time) and he desired to challenge it. Earlier this year, suit was commenced through the efforts of The Wallace Institute and TAIG.

    The nature of the claim made in Ben's case is simple. The requirement that Ben supply his SSN to the Board is based upon the Texas "dead beat dads" enforcement law, Texas Family Code §231.302.  However, because this law abridges equal protection, we filed this suit and charged that Texas Family Code §231.302 was violative of the equal protection provisions set forth in Art. 1, §3 of the Texas Constitution.

    This brief is posted solely for educational purposes; it is NOT recommended that anyone simply copy this brief and file their own similar case. For a case like this one, equal protection jurisprudence is very dependent upon state decisions in this field and Texas case law simply would not be applicable in another state. Therefor, it is requested that readers do not attempt to engage in pro se litigation of this issue.

    It is also essential to note the developments in this case since Ben's motion for summary judgment was filed. Back in late June, a summary judgment motion was filed by Ben with a hearing set for July 31. Since then, several continuances of this motion have been made at the request of the Board. Only on September 12 did the State Board (through the Attorney General) finally reply to the motion. Currently, hearing on the motion for summary judgment is set for October 30 in Austin, Texas. Details of further activity in this case will be posted here.

    Please note that footnotes contained in the brief cannot be inserted into HTML format, thus they appear as endnotes, indicated in the brief via brackets ("[  ]").

CAUSE NO. GN000862



                  v.                                            )         TRAVIS COUNTY, TEXAS


  Defendants.                                         )           201ST JUDICIAL DISTRICT


 The Plaintiff Ben Mauldin, having moved for summary judgment in his favor, offers the following brief in support thereof.


     A. Sources of Evidence.

 Part of the proof submitted herein consists of certain documents containing relevant statements which appear on the Attorney General's Internet web site. These documents appearing on that web site are required to be published pursuant to Family Code §231.116, and such contain descriptions of the activities of the Attorney General's office. These documents are plainly admissible via Rule 803(8)(A), Texas Rules of Evidence. Also, the matters published by the Attorney General at his web site may be considered admissions. See United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989)(government manuals admissible as party admissions under Fed.R.Evid. 801(d)(2)(D)); and United States v. GAF Corp., 928 F.2d 1253 (2nd Cir. 1991).

     B. The Undisputed Material Facts.

 The Board and Conrad have required and are requiring Mauldin, as a condition of pursuing his trade and occupation, to provide his Social Security Number ("SSN") as a prerequisite to obtaining a license. Mauldin objects to this on religious grounds.

 Specifically, Mauldin is married and has five (5) children ranging in age from 12 to 27. This marriage is very stable and of the kind which is unlikely to result in divorce. To support his family, Mauldin exercises his constitutional right to work for a living [1] as a plumber in Bell County, Texas. Mauldin was first licensed by the Texas State Board of Plumbing Examiners ("Board") in 1974, and became a master plumber in 1976. Each year, Mauldin has obtained from the Board a license to pursue his occupation.

 In 1996, pursuant to Texas Family Code § 231.302(c), the Board started demanding that Mauldin provide his SSN to obtain his annual license. Section 7(b) of the federal Privacy Act of 1974, 88 Stat. 1896, requires that "[a]ny * * * State, or local government agency which requires an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it". However, the Board failed to comply with this provision. As a result, Mauldin was unaware of the use which the Board would make of his SSN, and consequently he provided the same. But with time, it became apparent to Mauldin that the Board was using his SSN as a personal identifier.

 Mauldin holds certain religious beliefs [2] regarding the use of SSNs which are very similar to those of other litigants. See Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y. 1977); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981); Callahan v. Woods, 736 F.2d 1269 (9th Cir. 1984); and Leahy v. District of Columbia, 833 F.2d 1046 (D.C.Cir. 1987). For these reasons, he objects to any use of SSNs as personal identifiers.

  Hence, Mauldin instituted this suit, asserting that Family Code § 231.302(c) violates the equal protection provisions of the Texas Constitution.


     A. The Source of the Board's Alleged Authority to Require Mauldin to Provide a SSN.

 1. Defendants do not challenge the fact that federal SSNs are issued by the federal government for social security purposes and that use of SSNs by state agencies may thus be regulated and controlled exclusively by the federal government. In particular, under 42 U.S.C. §408(a)(8), it is a felony to compel "the disclosure of the social security number of any person in violation of the laws of the United States." It cannot be denied that the Board is subject to this federal law. See Yeager v. Hackensack Water Co., 615 F.Supp. 1087 (D.N.J. 1985); Doyle v. Wilson, 529 F.Supp. 1343, 1348-50 (D.Del. 1982); and Doe v. Sharp, 491 F.Supp. 346 (D.Mass. 1980).

 Congress has also regulated the use of SSNs under the uncodified §7 of the Privacy Act of 1974, 88 Stat. 1896, which provides as follows:

 "Sec. 7. (a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.

 "(2) the provisions of paragraph (1) of this subsection shall not apply with respect to--
 (A) any disclosure which is required by Federal statute, or
 (B) the disclosure of a social security number to any Federal, State or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

 "(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it."

So, the initial question in this case is what federal statutory authorization allegedly allows the Board to require Mauldin to supply a SSN as a condition for obtaining his occupational license.

 2. Pursuant to 42 U.S.C. §405, Congress has authorized some State agencies to use SSNs as follows:

 "(c)(i) It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the social security account numbers issued by the Commissioner of Social Security for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (or political subdivision thereof) or any agency thereof having administrative responsibility for the law involved, the social security account number (or numbers, if he has more than one such number) issued to him by the Commissioner of Social Security." [3]
Although §405 allows State agencies involved "in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law" to use SSNs, the Board cannot avail itself of this authorization.

 The Texas laws regarding the occupation of plumbing, a mechanical trade, are found in Title 109 A, Art. 6243-101, Vernon's Texas Civil Statutes.[4] Section 4 of this Article creates the Board; and via §5B, the Board is authorized to adopt plumbing codes. Section 8 authorizes the Board to issue licenses, and to suspend the licenses it issues via §9, with the reasons for the suspension of licenses apparently found in the penalty section, §14. Thus, clearly, the Board's statutory authority extends only to the regulation, licensing and control of plumbers – but does not involve the Board in any "general public assistance, driver's license, or motor vehicle registration law." So the Board cannot claim to use SSNs under the federal authorization in those three particulars.

 The Board is also not engaged "in the administration of any tax * * * law" that would allow it to use SSNs. The only relevant sections of Article 6243-101 which could possibly support a contention that the Board administers some tax law are §§7 and 13. Section 7, entitled " Expenses of Board", provides as follows:

 "All sums of money paid to the Board under this Act shall be deposited in the State Treasury to the credit of a special fund to be known as the plumbing examiners fund and may be used only for the administration of this Act. The Board shall report to the Governor of the State of Texas the receipts and disbursements under this Act for each fiscal year. The financial transactions of the Board are subject to audit by the state auditor in accordance with Chapter 321, Government Code."
Section 13, entitled " Fees", provides in part as follows:
 "(a) The Board shall establish reasonable and necessary fees for the administration of this Act in amounts not to exceed:

 (1) Master Plumber: Examination $75; License $75; Renewal $75 [5]


 "(a) The Board shall establish fees that are reasonable and necessary to defray the cost of administering this Act.

 "(b) The Board may not maintain unnecessary fund balances, and fee amounts shall be set in accordance with this requirement."

This is the Board's sole authority in reference to the matter of collecting fees.

 According to this statutory scheme, the Board's only powers are to administer the plumbing laws and adopt fees to be paid by regulated plumbers, these fees providing the funds "for the administration of this Act." Under this arrangement, plumbers pay licensing fees and not taxes. Indeed, this construction is required by Article VIII, §1(c) of the Texas Constitution, which provides that "[p]ersons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax". So, if the fees paid by Texas plumbers were deemed to be taxes, they would be unconstitutional.

 Other Texas cases have addressed the distinction between taxes and regulatory fees. In City of Houston v. Harris County Outdoor Adver. Ass'n, 879 S.W.2d 322, 326 (Tex. App.-Houston 1994), the court held:

 "To determine whether an exaction authorized by statute or ordinance constitutes an occupation tax or license fee, the test is whether the primary purpose of the exaction, when the statute or ordinance is considered as a whole, is for regulation or for raising revenue. Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 899 (1937); City of Fort Worth v. Gulf Refining Co., 125 Tex. 512, 83 S.W.2d 610, 617 (1935). If the primary purpose of the exaction is for regulation, then it is a license fee; however, if the primary purpose of the exaction is to raise revenue, then it is an occupation tax, regardless of the name by which it is designated. Hurt, 110 S.W.2d at 899; City of Fort Worth, 83 S.W.2d at 617."
See also H. Rowe Co. v. Texas Citrus Comm'n., 151 Tex. 182, 247 S.W.2d 231, 234 (1952)("On the other hand, if its primary purpose appears to be that of regulation, then the fees levied are license fees and not taxes"); and Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 460-63 (Tex. 1997).[6]

 Thus, because the primary purpose of the exactions paid by plumbers is to pay the costs associated with regulating that trade, these exactions are license fees and not taxes. And therefore, the Board is not engaged "in the administration of any tax * * * law" that would allow it to use SSNs in conformity with the federal law noted above. See Board of Insurance Commissioners of Texas v. Guardian Life Ins. Co. of Texas, 142 Tex. 630, 180 S.W.2d 906, 908 (1944); Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158, 160 (1961); Nueces County Water C. & I. District v. Texas Water Rights Comm., 481 S.W.2d 924, 929 (Tex.App.-Austin 1972); Martinez v. Texas Employment Comm., 570 S.W.2d 28, 31 (Tex.App.-Corpus Christi 1978); Railroad Comm. of Texas v. Atchison, T. & S.F. Railroad Co., 609 S.W.2d 641, 643 (TexApp.-Austin 1980); City of Sherman v. Public Utility Comm. of Texas, 643 S.W.2d 681, 686 (Tex. 1983); Sexton v. Mount Olivet Cemetary Ass'n., 720 S.W.2d 129, 137 (Tex.App.-Austin 1986); General Land Office v. Rutherford Oil Corp., 802 S.W.2d 65, 69 (Tex.App.-Austin 1990); and Kawasaki Motors Corp. v. Texas Motor Vehicle Comm., 855 S.W.2d 792, 797 (Tex.App.-Austin 1993).

     3. The only statutory authority in Texas that supposedly allows the Board to collect SSNs is Family Code §231.302(c), which provides in pertinent part as follows:

 "To assist in the administration of laws relating to child support enforcement under Parts A and D of Title IV of the federal Social Security Act (42 U.S.C. Sections 601-617 and 651-669): (1) each licensing authority shall request and each applicant for a license shall provide the applicant's social security number."
This law was adopted on April 20, 1995, and became effective on September 1, 1995. Shortly thereafter and in response to this law, the Board started demanding that applicants like Plaintiff Mauldin provide SSNs to obtain plumber licenses.

 The Board identifies 42 U.S.C. §666(a)(13) as the ultimate source of the supposed requirement that Mauldin supply his SSN as a prerequisite for obtaining a plumber's license. This does not particularly aid the Board on the constitutional issue, inasmuch as Mauldin's religious beliefs based upon Revelation 13: 11-18 attach particular significance to the number "666". And, in any event, the Board's contention that federal law requires Mauldin to supply his SSN is incorrect.

 The relevant federal welfare laws are codified in Title 42, U.S. Code. Subtitle IV of Title 42 concerns "Grants to States" for needy families with children and this subtitle spans some 70 to 75 sections, including §666. Pursuant to this federal law, the federal government makes block grants to states (42 U.S.C. §601) and provides other appropriations (42 U.S.C. §651) for this welfare project. In order to obtain this federal welfare funding, States must develop "state plans" which meet the guideline requirements of these federal welfare laws; see 42 U.S.C. §654. Section 666 is just one of the several statutes related to the specifications for these state plans.[7]

 Section 666 has been periodically revised over the last several years. On August 22, 1996, Congress adopted the Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193, 110 Stat. 2105, which amended many of the sections noted above, including §666 via §317 of this act (110 Stat. at 2220). After this amendment, §666 read in pertinent part as follows:

 "Requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement

 "(a) Types of procedures required

 "In order to satisfy section 654(20)(A) of this title, each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:
 "(13) Recording of Social Security Numbers in certain family matters. Procedures requiring that the social security number of –

 "(A) any applicant for a professional license, commercial driver's license, recreational license, occupational license, or marriage license be recorded on the application;

 "(B) any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment be placed in the records relating to the matter; and

 "(C) any individual who has died be placed in the records relating to the death and be recorded on the death certificate.

 "For purposes of subparagraph (A), if a State allows the use of a number other than the social security number ‘to be used on the face of the document while the social security number is kept on file at the agency', the State shall so advise any applicants."[8]

To obtain welfare grants, States are requested pursuant to these federal laws to adopt procedures for securing SSNs from applicants for professional and occupational licenses. The purpose for these procedures is to assist in the location of "dead beat dads" and the revocation of their licenses if they fail to pay child support.

 Typically, when the federal government provides funding to the States to subsidize their various welfare programs, it attaches a variety of conditions to that funding. Section 666 exemplifies one such condition. These federal conditions are, however, not independent mandates that directly compel any State to conform to federal policy, irrespective of the State's own policy. See Blessing v. Freestone, 520 U.S. 329, 344, 117 S.Ct. 1353 (1997)(the federal government "cannot, by force of [its] own authority, command the State to take any particular action or to provide any services to certain individuals").[9] For any federal condition to come into play against an individual, the State must affirmatively place itself within the ambit of the federal welfare scheme, by enacting some State statute that embodies the State's own policy. So, the effective source of any federal condition as it applies to an individual at the State level will actually be the relevant State law, because without the State law the federal condition would have no force or effect. For this reason, Mauldin contends that 42 U.S.C. § 666(a)(13) is only tangentially relevant to this case, and that Family Code § 231.302(c) must be seen as the true statutory permission for the Board to collect SSNs.

 If, however, §666(a)(13) should be construed as itself a compulsory federal requirement for Texas, operating independently of State law,[10] Mauldin would ask leave of Court to amend his complaint to challenge this Section's constitutionality. The Due Process Clause of the Fifth Amendment to the Constitution of the United States contains an "equal protection" component similar in effect to the Equal Protection Clause of §1 of the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693 (1954); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612 (1976); and San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522, 542 n. 21, 107 S.Ct. 2971 (1987). If §666(a)(13) is compulsory, it is no less unconstitutional than Family Code § 231.302(c), and in fact could be seen as the cause of the latter Section's unconstitutionality.

     B. The Constitutional Issue of Equal Protection.

 Whether the constitutional problem in this case is traceable to Family Code §231.302(c) or to 42 U.S.C. § 666(a)(13)(A), the same principles of equal protection of the laws are controlling.

 1. The Background of the Classification at Issue in This Case.

 Mauldin does not question that "deadbeat dads" who refuse or fail to pay their child-support obligations burden various social services programs. Many fathers never marry the mothers of their children; and such mothers often seek welfare benefits. In Texas in 1999, there were approximately 110,000 children born "out of wedlock". In addition, many husbands who divorce their wives are ordered to pay child support; and some of this group fail to pay, thus forcing their former wives onto the welfare rolls.

 The Texas Attorney General's Office has been designated under Family Code §231.001 as the "Title IV-D" agency with responsibility for pursuing "deadbeat dads". Attorneys in the child support division of the Attorney General's Office institute suits against recalcitrant unwed fathers, establishing paternity and securing court-ordered support for their children. This division also pursues those "deadbeat dads" who have not paid existing court-ordered child support obligations as required by divorce decrees. Typically, if a father refuses to pay child support, a garnishment is issued to his employer. In most cases, such garnishments secure payment of support obligations.

 However, some "deadbeat dads" cannot be forced to pay child support even via garnishments. To provide an additional tool for use against these deadbeats, in 1995 the Texas Legislature enacted a law requiring all who have licenses of any kind to provide their SSNs to licensing agencies. See Family Code § 231.302(c). In theory, the collection of SSNs might enable the State to identify license applicants or holders so that the licenses of deadbeats may be refused or revoked. However, in actual practice this theory has proven to have little validity: For example, in 1999, out of a total of 18,791 licensees, the Board revoked the plumber's licenses of only two "deadbeat dads" because of their failure to pay court-ordered child support. Given this abysmal record, the question naturally arises: Why collect SSNs from countless innocent and unoffending Texans when the present system apparently does not work, and when there is a more economical and fairer way to secure such numbers?

 The self-evidently surest, most accurate, and most carefully tailored method of collecting SSNs so that "deadbeat dads" can be located and their licenses revoked is to collect such numbers when the deadbeats enter the Texas domestic-relations system. For example, in a divorce case involving children the father can be required, at a minimum through court-ordered discovery, to identify any licenses he holds, and to supply his SSN. At any stage of that process, his SSN may be referred to the licensing authorities, whereupon such information can be incorporated in the records maintained on that individual. If and when the "deadbeat dad" becomes delinquent in paying court-ordered child support, that information can be relayed to the Board, which can then revoke the delinquent's licenses. By such a procedure, any potential "deadbeat dads" would be immediately identified, their licenses disclosed to the courts, their SSNs provided to the Board, and a direct link established between the courts and Board for revocation of those licenses should the need ever arise. And all this could be accomplished without requiring any other individuals to supply the licensing agency with their SSNs. For another example, in cases involving unwed fathers, the child support division of the Attorney General's Office sues the "deadbeat dad" to establish paternity, and eventually secures a court order for child support. Just as in divorce cases, information as to occupational licenses and SSNs could easily be collected from these fathers when they enter the system, without requiring any other innocent individual routinely to supply SSNs to the licensing agency.

 Unfortunately, this simple, efficient, and fair method, which imposes no burden on individuals who are not already identified as potential or actual "deadbeat dads", is not being used in Texas. Instead of collecting SSNs only from those fathers who are involved in divorce proceedings, paternity suits, or other domestic-relations litigation, all occupational licensees are required to provide their SSNs as a condition of licensure, regardless of the licensees' lack of connection to the "deadbeat dads" problem. This is the case, even though the vast majority of Texans who hold or will apply for occupational licenses are not and will not become "deadbeat dads". For example, many married men have no children; or their children are already adults. Many married men have never divorced, and never will divorce, their wives. Many divorced men promptly pay and remain current in their child-support obligations, or may be under no obligation to pay support at all. And, of course, many men are single, and therefore have no conceivable connection with domestic-relations problems.

 Thus, the present system does not take into account that the "deadbeat dad" and "nondeadbeat dad" groups are distinct classes of individuals wholly unrelated to each other. Rather, the present system arbitrarily lumps these classes together, by imposing the burden of disclosing SSNs on 100% of licensees, when only a far smaller percentage may be involved in domestic-relations situations that could lead to a "deadbeat dad" problem, and when the requirement of disclosing SSNs as part of the licensing process is self-evidently not the most effective manner for dealing with the "deadbeat dad" problem if and when it arises in any particular case.

 Clearly, then, what is going on here is that the vast majority of innocent licensees are being subjected to a blatant invasion of their privacy and limitation of their liberties on the Board's plea that such invasion will enable the State to deal with a very small minority of licensees who may be "deadbeat dads"—when, in fact, the requirement that all licensees supply SSNs is not necessary to achieve the State's goal, and the State has a more efficient, better targeted, and far less intrusive means to deal with the problem of "deadbeat dads" who hold occupational licenses. In the parlance of equal-protection jurisprudence, a faulty classification of this type is called "overinclusive". As the court said in Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 933 (5th Cir. 1988), "[a]n equal protection challenge * * * focuses on three separate elements. First, the classification. Second, the purpose which the classification is designed to serve. And third, the ‘fit' between the classification and the purpose; that is, whether the state could rationally determine that by distinguishing among persons as it has, the state could accomplish its legitimate purpose". Here, the State's "classification" arbitrarily lumps all licensees together willy-nilly, the innocent with the guilty. Using such a dragnet "classification" does not perceptibly serve the State's purpose of catching only "deadbeat dads"—indeed, it is plainly not the rational, let alone the efficient, way to go about achieving that purpose. And the State could easily accomplish its goal without requiring any licensees to provide SSNs as part of the licensing process itself.

 Another way of approaching this problem is to observe that, in effect, the State has actually failed to make a classification where it should have done so. The requirement to provide SSNs in connection with occupational licenses should have been tailored so as to apply only to those individuals determined to be or likely to become "deadbeat dads", not to all licensees. So, imposing that requirement on people such as Mauldin is nonrational and arbitrary. Such a nonrational requirement, infringing on Mauldin's freedom of religion and right to work, denies him Due Process of Law under the Fourteenth Amendment (as to the State) and the Fifth Amendment (as to the federal government). Because in this case the legal analysis is largely equivalent under both equal-protection and due-process theories, Mauldin will focus on the issue of equal protection, with the understanding that his arguments incorporate a due-process component as well.

 2. Application of the Principles of Equal Protection.

 Basically, equal-protection analysis falls into two categories: Where "fundamental" constitutional rights, such as freedom of religion, are involved, the "strict-scrutiny" test applies: namely, the law must be shown to serve a compelling state interest, by the means least-restrictive of individual liberty. Where no fundamental rights are involved, the law must nevertheless have a rational basis, serve some legitimate governmental interest, and be neither "overinclusive" nor "underinclusive". Whichever category applies to this case, Mauldin must prevail.

 a. In general, the "police power" allows the State to adopt laws to protect the health, safety, and welfare of the people. See Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412 (1924); Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320 (1926); Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426 (1927); New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371 (1932); Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921); Bruhl v. State, 111 Tex.Cr.R. 233, 13 S.W.2d 93 (1929) ("one engaged in a legitimate business has the inherent right to do any and all things necessary or incident to the carrying on of such business – which does not trespass on the rights of some other person, or are not injurious to the morals, good order, comfort, convenience or health of the people. Beyond these latter, the so-called police power of the state may not go in its prohibitive or regulative effort"); Travlers' Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (1934); Ex parte Martin, 127 Tex.Cr.R. 25, 74 S.W.2d 1017 (1934); and Comeau v. City of Brookside Village, 616 S.W.2d 333 (Tex.App.-Houston 1981). The police power is more than sufficient to provide an adequate remedy for the problem of "deadbeat dads".

 When exercising the police power, the State Legislature may create reasonable classes, distinctions between which must be rationally related to the purpose of the law. See Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254 (1971) ("[a] classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation'"); Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760 (1966) ("[e]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made"); and Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886 (1969)("classifications must be tailored so that the exclusion of * * * members of [a] class is necessary to achieve the articulated state goal"). See also Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968); and United States v. State of South Dakota, 636 F.2d 241 (8th Cir. 1980). If classifications are not reasonably related to the purpose of the law, then equal protection is violated. See Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977). This is, of course, also true where a classification, rather than improperly excluding someone from a statutory scheme (thereby, for example, denying a benefit available to others) improperly includes an individual in a statutory scheme (thereby, as here, imposing a burden that he should not bear, in comparison to others).

 Two standards exist to determine whether a statute violates equal-protection principles: (i) the "strict-scrutiny" test, and (ii) the "rational-basis" test. Either test concerns itself with the question of whether, in light of the purpose and objective of the law, the classifications so made serve to further that purpose or objective.
 When constitutional or other "fundamental" rights are being abridged by a law with arbitrary, unreasonable, or otherwise improper classifications, the strict-scrutiny test is applied. See Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775 (1965)(Texas constitutional provision which did not allow servicemen stationed in Texas to vote held overbroad and thus void); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817 (1967)(law preventing marriage between races held void); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686 (1971)(ordinance which  prohibited 3 or more people from assembling on a sidewalk and annoying passers-by held violative of equal protection); Police Department of City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286 (1972)(ordinance prohibiting picketing at schools was void); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268 (1975)(nudity ordinance applicable to drive-in theater held void); Cary v. Brown, 447 U.S. 455, 100 S.Ct. 2286 (1980)(statute prohibiting picketing held void); Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th Cir. 1980); Dills v. City of Marietta, 674 F.2d 1377 (11th Cir. 1982)(sign ordinance held void); Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990)(nude dancing ordinance held void); and Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997)(curfew ordinance was void).

 In all other types of equal-protection cases, the rational- basis test is used. See U.S. Dep't. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821 (1973)(food stamp act making distinction between related and unrelated household members held violative of equal protection); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760 (1979)(state law which distinguished between unwed mother and father was void); Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309 (1982)(state law making distinction between those living in state before 1959 and those who did not was held void); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382 (1982)(Texas law which denied schooling to illegal Mexican children held violative of equal protection); City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249 (1985)(zoning ordinance restricting home for the mentally challenged held void); H.L. Farm Corp. v. Self, 877 S.W.2d 288 (Tex. 1994)(law preventing "open lands" designation for corporation with non-resident alien stockholder violated equal protection); and Texas Educ. Agency v. Leeper, 843 S.W.2d 41 (Tex.Civ.App. - Fort Worth 1991)(because of exceptions, compulsory school attendance law held void).

 Legislative classifications in equal-protection cases are categorized as either "overinclusive" or "underinclusive." One commentator described the difference between these two classes as follows: "An overinclusive classification burdens a wider than necessary range of individuals, extending beyond those persons possessing the trait contributing to the mischief or evil the legislature seeks to eradicate. * * * An underinclusive classification exists when all persons in the class are indeed perpetrators of the mischief or evil the state wishes to eliminate, but others who possess the same undesirable trait remain outside the class."[11] As the Supreme Court declared in Kramer v. Union Free School District, supra, a State may make classifications so as "to achieve the articulated state goal," but in its effort to remedy any particular problem, it may not create irrational and arbitrary classes which are at least overinclusive.

 This distinction between overinclusive and underinclusive classes has often been used by the United States Supreme Court to determine whether certain laws did in fact comport with equal protection. For example, in Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496 (1974), at issue was whether the classification of illegitimate children in a welfare law was either overinclusive or underinclusive. In finding that this law denied equal protection, the Court declared:

 "Indeed, as we have noted, those illegitimates statutorily deemed dependent are entitled to benefits regardless of whether they were living in, or had ever lived in, a dependent family setting with their disabled parent. Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act's definition of these two subclasses of illegitimates is ‘overinclusive' in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is ‘underinclusive' in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment."
See also Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497 (1966), and Simon & Schuster v. New York Crime Victims Board, 502 U.S. 105, 121, 112 S.Ct. 501 (1991).

 Texas courts are particularly sensitive to the problem of overinclusive and underinclusive classes. For example, in Sullivan v. Univ. Interscholastic League, 616 S.W.2d 170, 172-73 (Tex. 1981), the validity of an "anti-recruiting" rule for high school athletes was being challenged as violative of Art. 1, §3 of the Texas Constitution. There, the "anti-recruiting" rule prevented all student athletes transferring to different schools from playing sports for a year after the transfer. Because this rule was "overinclusive," our Supreme Court declared it unconstitutional:

 "The transfer rule creates two classes of students: those who do not transfer from one school to another, as compared to those who transfer. The rule treats these two classes of students differently by permitting members of the first group to compete in interscholastic activities without any delay while imposing a one-year period of ineligibility on the second group. The purpose of the transfer rule was to discourage recruitment of high school athletes. This is a legitimate state purpose. However, equal protection analysis still requires us to ‘reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose.' McLaughlin v. Florida, 379 U.S. 184, 191, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964).

 "In practical effect, the challenged classification simply does not operate rationally to deter recruitment. The U.I.L. rule is overbroad and over-inclusive. The rule burdens many high school athletes who were not recruited and were forced to move when their family moved for employment or other reasons. The fact that there is no means of rebutting the presumption that all transferring athletes have been recruited illustrates the capriciousness of the rule. The inclusion of athletes who have legitimately transferred with recruited athletes does not further the purpose of the transfer rule. Under strict equal protection analysis the classification must include all those similarly situated with respect to purpose. Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). See Developments in the Law -- Equal Protection, 82 Harv. L. Rev. 1065, 1084 (1969). It is clear that the transfer rule broadly affects athletes who are not similarly situated."[12]

See also Bell v. Lone Oak Independent School District, 507 S.W.2d 636 (Tex.App.-Texarkana 1974).

 In Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985), the Texas guest statute was challenged as violative of equal protection. Finding the law unconstitutional, our Supreme Court held:

 "Even when the purpose of a statute is legitimate, equal protection analysis still requires a determination that the classifications drawn by the statute are rationally related to the statute's purpose [cite omitted]. Under the rational basis test of Sullivan, similarly situated individuals must be treated equally under the statutory classification unless there is a rational basis for not doing so. Although Bynum has argued that an overinclusive statute cannot be struck down under a rational relationship test, overinclusiveness was a determinative factor in Sullivan."
See also Prudential Health Care Plan, Inc. v. Comm. of Insurance, 626 S.W.2d 822, 830 (Tex.App.- Austin 1982).

 In Mauldin's case, which challenges the State's undifferentiated, across-the-board requirement to provide SSNs in order to obtain a plumber's license, the requirement falls on two separate and distinct classes: first, the "deadbeat dad" class; and second, the "nondeadbeat dad" class. This "deadbeat dad" class constitutes only a small segment of occupational licensees, the vast majority of whom is not and never will be composed of "deadbeats", actual or potential. The social problem the requirement supposedly addresses is strictly a domestic-relations issue, not an issue of occupational licensing; and (as shown above) the straightforward solution to this problem is to collect SSNs from individual fathers who are or may become "deadbeat dads" when they enter the Texas domestic-relations system. Collecting SSNs from occupational licensees who have no connection with this domestic-relations issue simply does not and can not solve the problem, because it imposes a requirement on people who, because they are not the cause of the problem, are in no position to remedy it, whether they disclose their SSNs or not. (Moreover, as a purely practical matter, collecting SSNs from the large "nondeadbeat" class needlessly increases the State's administrative costs.)

 As noted above, "[a]n overinclusive classification burdens a wider than necessary range of individuals, extending beyond those persons possessing the trait contributing to the mischief or evil the legislature seeks to eradicate". Here, eradication of the "deadbeat dads" problem is the objective, and the evil to be remedied is to relieve the welfare rolls of families forced onto public assistance by the "deadbeats'" refusal to perform their financial obligations. But under the current regulatory scheme, members of the "nondeadbeat" class, who cannot in any way assist with solving the "deadbeat" problem, are themselves arbitrarily denied the opportunity to obtain licenses—and, therefore, to work in their chosen occupations—if they do not provide their SSNs, even if (as in Mauldin's case) their religious beliefs preclude them from doing so. In theory, the State has created a class of persons from whom it wishes to deny occupational licenses because of their failure to pay child support (the "deadbeat dads"). However, in practice the State statute includes within the class of persons actually denied licenses all those who (for whatever reason, including religious scruples) will not supply their SSNs, even though those persons are not among the "deadbeat dads" the State is trying to reach. Thus, the State's statutory scheme is wildly and undeniably "overinclusive"—and therefore unconstitutional.

 b. More specifically, Mauldin asserts—and apparently the Board does not contest (and would not be successful if it did)—that his fundamental constitutional right of free exercise of religion under the First Amendment (as applied to the States through §1 of the Fourteenth Amendment) is infringed by the requirement that he provide a SSN in order to obtain an occupational license. An infringement on such a fundamental right triggers "strict scrutiny" under both equal protection and due process principles.

 Family Code § 231.302(c)(1) provides that "each licensing authority shall request and each applicant for a license shall provide the applicant's [SSN]" in order "[t]o assist in the administration of laws relating to child support enforcement". And 42 U.S.C. §666(a)(13)(A) mandates "[p]rocedures requiring that the social security number of * * * any applicant for a * * * occupational license" in order "to increase the effectiveness of the program which the State administers". Because Mauldin's fundamental First-Amendment rights are involved here,[13] the burden of proof rests on the Board to establish with facts in the record that these statutes, as applied to Mauldin, subserve a compelling governmental interest by the means least-restrictive of his rights. See, e.g., Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558 (1986); United States v. Robel, 389 U.S. 258, 267-68, 88 S.Ct. 419 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 514, 84 S.Ct. 1659 (1964); DeGregory v. Attorney General, 383 U.S. 825, 829-30, 86 S.Ct. 1148 (1966); NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328 (1963); and United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673 (1968). Importantly, the Board must supply facts, not simply assumptions. See, e.g., New Jersey Citizen Action v. Edison Township, 797 F.2d 1250, 1259 (3rd Cir. 1986). See also, e.g., City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496, 106 S.Ct. 2034 (1986); Crowell v. Benson, 285 U.S. 22, 56-64, 52 S.Ct. 285 (1932); St. Joseph Stockyards Co. v. United States, 298 U.S. 38, 50-54, 56 S.Ct. 720 (1936); and Pickering v. Board of Education, 391 U.S. 563, 578-79 & n.2, 88 S.Ct. 1731 (1968).

 The facts of the administration of the Texas "deadbeat dad" program (outlined above) show that there is no conceivable compelling (or even any legitimate) governmental interest in requiring all applicants for occupational licenses to provide SSNs, let alone the subset of individuals, such as Mauldin, with genuine religious objections to such use of SSNs.

 If there were any cases in which a practical use of SSNs in "deadbeat dad" situations might arise, it would be for the Board: to describe those cases; to establish that they were not so rare as to be essentially fictional; and to show in particular how Mauldin's situation does or would conceivably fit one or more of such cases.

 Also, to require every applicant for an occupational license to provide a SSN in order to obtain for the State the supposed advantage of using SSNs in such rare cases (if any arguably exist) is plainly not the means least-restrictive of the rights of individuals with genuine religious objections, such as Mauldin. Actually, it is the most-restrictive means ("overinclusive"), because it abridges the rights of religious objectors in every case, without any indication, let alone proof, that a single "deadbeat dad" has been or could be identified or required to perform his statutory duties if Mauldin and individuals similarly situated were compelled to provide the Board with their own SSNs.

 If the Board contests this, it is the Board's burden to show that no less-restrictive means is available for "assist[ing] in the administration of laws relating to child support enforcement", and "increas[ing] the effectiveness of the program which the State administers". This the Board cannot do, as Mauldin has already suggested several quite workable, more rational, and far less-restrictive means to accomplish the statutes' goals.

 The Board must also contend with the problem that requiring Mauldin to disclose his SSN as a condition precedent to his receipt of an occupational license in effect conditions his right to work in the occupation of his choice on his surrender of both his First-Amendment freedoms of speech and religion, and his federal statutory right to privacy as to his SSN. And the law is crystal clear that no agency of government may condition any public benefit or privilege (such as an occupational license), let alone the exercise of a constitutional or statutory right, on an individual's surrender of any other constitutional or statutory right. See, e.g., Branti v. Finkel, 445 U.S. 507, 513-16, 100 S.Ct. 1287 (1980); Abood v. Detroit Board of Education, 431 U.S. 209, 233-34, 97 S.Ct. 1782 (1977); Graham v. Richardson, 403 U.S. 365, 374-75, 91 S.Ct. 1848 (1971); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731 (1968); and United States v. Robel, 389 U.S. 258, 263-66, 88 S.Ct. 419 (1967). See generally, Sullivan, "Unconstitutional Conditions", 102 Harvard L. Rev. 1413 (1989).

 c. Prescinding from Mauldin's fundamental constitutional rights, the Court must look to the statutes involved to see whether their purposes, and the means by which they attempt to achieve these purposes, subserve legitimate governmental interests in a rational manner. Family Code § 231.302(c)(1) provides that "each licensing authority shall request and each applicant for a license shall provide the applicant's [SSN]" in order "[t]o assist in the administration of laws relating to child support enforcement". And 42 U.S.C. §666(a)(13)(A) mandates "[p]rocedures requiring that the social security number of * * * any applicant for a * * * occupational license" in order "to increase the effectiveness of the program which the State administers".

 The facts of the "deadbeat dad" program in operation show, however, that requiring Mauldin and individuals similarly situated to provide their own SSNs as a condition of receiving an occupational license is plainly overinclusive for the purposes of "assist[ing] in the administration of laws relating to child support enforcement", and "increas[ing] the effectiveness of the program which the State administers". Indeed, those facts indicate the absence of even a rational basis for requiring Mauldin and individuals similarly situated to provide their own SSNs as a condition of receiving an occupational license. In the absence of a rational basis, though, the statutory requirement must fall, no matter what rights Mauldin asserts.


 Family Code §231.302(c) is unconstitutional as violative of Art. 1, §3 of the Texas Constitution in that it is overinclusive. For this reason, judgment must be granted in favor of Mauldin.

 Respectfully submitted this the ___ day of July, 2000.

____________________________                 _______________________________
Jimmy D. Hulett, Jr.                              Lowell H. Becraft, Jr.
Attorney for Mauldin                             Attorney for Mauldin
Bar No. 10252400                                      209 Lincoln Street
Texas Justice Foundation                    Huntsville, Alabama 35801
8122 Datapoint, Suite 812                      256-533-2535
San Antonio, Texas 78229


I hereby certify that I have on this the ___ day of July, 2000, sent via certified mail, return receipt requested, a true and correct copy of the foregoing motion and brief to the below listed attorney for the Defendants in this action:

 Bryan Gantt
 Assistant Attorney General
 General Litigation Division
 P.O. Box 12548, Capitol Station
 Austin, Texas 78711-2548

                                                                       Jimmy D. Hulett, Jr.


 1   Mauldin has a right to work for a living; see Coppage v. Kansas, 236 U.S. 1, 14, 35 S.Ct. 240 (1915); Hotel & Rest. Employees' International Alliance and Bartenders International League of America v. Longley, 160 S.W.2d 124, 127 (Tex.App. 1942); and Font v. Carr, 867 S.W.2d 873 (Tex.App.-Houston 1993).

2    The defense cannot challenge these beliefs. Via United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882 (1944), individuals such as Mauldin "may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs."

3   Even here, however, Defendants remain subject to § 7(b) of the Privacy Act of 1974 and must "inform [an] individual whether that disclosure [of his SSN] is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it".

4   Last year, the Texas legislature created the new Occupations Code; for whatever reason, the legislature has not included the plumbing laws in that Code.

5   Board Rule 361.6 provides for higher amounts, and to renew a master license requires the payment of $150. See Railroad Comm. of Texas v. Arco Oil & Gas Co., 876 S.W.2d 473, 481 (Tex.App.-Austin 1994)("‘[A]n agency can adopt only such rules as are authorized by and consistent with its statutory authority... In this connection, it is well settled that an agency rule may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions").

6   See also Tex. Att'y Gen. Op. No. JM-963 (1988) at 8 ("Texas courts consistently have characterized as license fees, rather than as taxes, those charges that were imposed concomitantly with the actual conferral of regulatory authority. . . . Texas courts consistently have characterized as taxes, rather than as license fees, those charges that were imposed without the concomitant conferral of actual regulatory authority"), and Tex. Att'y Gen. Op. No. JC-0001.

7   These particular federal welfare laws are very complex and a study thereof is not essential for decision of the issues raised in this case. Perhaps the best summary of these parts of the federal welfare laws is found in Wehunt v. Ledbetter, 875 F.2d 1558, 1559-61 (11th Cir. 1989). That court described the program established under this statutory scheme as follows: "The AFDC program is a contractual arrangement by which the federal government and the states work together," Id. at 1560.

8   Under the Balanced Budget Act of 1997, P.L. 105-33, 111 Stat. 251, adopted on August 5, 1997, Congress further amended 42 U.S.C. §666(a)(13). Section 5536 of this subsequent act, 111 Stat. at 629, changed the scope of §666(a)(13) by deleting the word "commercial" appearing before the words "driver's license."

9   Federal welfare laws generally provide wide discretion and latitude to the States. See, e.g., 42 U.S.C. §617: "No officer or employee of the Federal Government may regulate the conduct of States under this part or enforce any provision of this part, except to the extent expressly provided in this part."

10   Such a construction of §666(a)(13) would certainly be ill-advised, as it would invite hordes of welfare recipients to sue the state as was done in Blessing v. Freestone, supra.

11   Tussman and ten-Broek, "The Equal Protection of the Laws," 37 California L. Rev. 341, 348-50 (1949).

12   A similar decision was made by the Indiana Supreme Court in Sturrup v. Mahan, 261 Ind. 463, 305 N.E.2d 877, 881 (1974).

13   A corollary of free speech constitutional rights is the right not to speak contrary to one's firmly held religious beliefs. See West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178 (1943).

* * * * * * * * * * * * * * * * * * * * * * * * * *

Since the above brief was filed, the State Board has finally replied.
In reference to the motion for summary judgment, it provided a very
general, non-specific argument against Mauldin's equal protection
contentions. Most noteably, the Board completely failed to address
the most important issue: that the challenged law violated equal
protection because the classification in it was overinclusive.
Perhaps it plans to remedy this major defect at arguments.

But the Board did challenge the proof Mauldin submitted in
support of his motion, and this required a reply from Ben. To
address the Board's motion to strike and its argument against
summary judgment, the below brief has been submitted.

* * * * * * * * * * * * * * * * * * * * * * * * * *

CAUSE NO. GN000862


        Plaintiff,                                       )

       v.                                                      )             TRAVIS COUNTY, TEXAS

TEXAS STATE BOARD OF              )
DORETTA CONRAD,                        )

        Defendants.                                 )           201ST JUDICIAL DISTRICT


 Comes now the Plaintiff, Benjamin Robert Mauldin, by and through his attorneys, Jimmy D. Hulett, Jr., and Lowell H. Becraft, Jr., and offers the following in response to that certain motion of the Defendants dated September 12, 2000, to strike Mauldin's summary judgment evidence. Based upon the arguments appearing below, Mauldin respectfully requests this Court to deny that motion. Further, this brief addresses some of the matters raised in the Defendants' brief to oppose Plaintiff's summary judgment motion.

 I. Elements of Mauldin's Cause of Action.

 Mauldin's pending motion for partial summary judgment alleges that Family Code §231.302(c) is unconstitutional as violative of the equal protection provisions of Art. 1, §3 of the Texas Constitution, a claim asserted in Mauldin's amended complaint. The Defendants attack Mauldin's summary judgment evidence on various grounds, primarily hearsay, and argue that the same should not be considered by this court.

 To determine the admissibility of Mauldin's evidence requires a review of the elements of his "equal protection" claim. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5 (1968), the U.S. Supreme Court described three factors utilized in the analysis of equal protection claims: "In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification."[1] Thus, analysis of any equal protection claim focuses upon (1) the objective and purpose of the law in question, (2) the classifications contained in that law, and (3) the relationship of those classifications to achieving the law's objective.[2] It must be remembered that "the classifications must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal." See Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886 (1969). [emphasis added]

 In Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 933 (5th Cir. 1988), that court identified three elements which must be shown to establish an equal protection violation:

 "An equal protection challenge, therefore, focuses on three separate elements. First, the classification. Second, the purpose which the classification is designed to serve. And third, the ‘fit' between the classification and the purpose; that is, whether the state could rationally determine that by distinguishing among persons as it has, the state could accomplish its legitimate purpose."
See also State v. Morales, 826 S.W.2d 201, 204-05 (Tex.App.-Austin 1992). Applying these Mahone elements here, Mauldin must prove the following to enable him to prevail via his pending summary judgment motion:
 1. That Family Code §231.302(c) contains a classification of individuals;

 2. That such classification is made for the purpose of achieving some particular and lawful objective of the State, here that objective being the remedying of the "dead beat dads" problem which confronts Texas; and

 3. That such classification contained in Family Code §231.302(c) is neither reasonable nor rational,[3] and is instead arbitrary, irrational and unreasonable in that "the exclusion [i.e., denial of licenses] of [Mauldin] and members of his class is [not] necessary to achieve the articulated state goal" of elimination of the dead beat dads problem.

 As discussed below, Mauldin submits that the evidence contained in his affidavit to support his pending motion for partial summary judgment proves these three elements without dispute.

 A. The Classification Within Family Code §231.302(c).

 The first element needed to establish Mauldin's claim is really not a fact as elements typically are, but is instead a law containing some classification of individuals. Here, Mauldin is challenging the following statute:

 "(c) To assist in the administration of laws relating to child support enforcement under Parts A and D of Title IV of the federal Social Security Act (42 U.S.C. Sections 601-617 and 651-669): (1) each licensing authority shall request and each applicant for a license shall provide the applicant's social security number."
As plainly evident, Family Code §231.302(c) does contain a classification of individuals, which is "each applicant for a license." In equal protection jurisprudence, Mauldin's objection to this classification is that it's "overinclusive" and therefore violative of equal protection principles.  See Alvarez v. Chavez, 118 N.M. 732, 886 P.2d 461 (1994)(license restriction for bondsmen was overinclusive); Beach Communications, Inc. v. Federal Communications Comm., 965 F.2d 1103, 1105 (D.C.Cir. 1992)(distinction in Cable Act between "external, quasi-private" and "wholly private" cable systems was "overinclusive ... in that this burden does not serve the Act's purpose"); French v. Amalgamated Local Union 376, 203 Conn. 624, 526 A.2d 861 (1987)(ban on residential picketing except for unions was overinclusive); District of Columbia v. E.M., 467 A.2d 457, 466 (D.C. App. 1983)(welfare statute of limitations was void because classes were both "underinclusive and overinclusive"); Isakson v. Rickey, 550 P.2d 359 (Alaska 1976)(using the rational basis test, the Court determined that a commercial fisherman limitation was unconstitutional because the act's classifications were both overbroad and underinclusive); Laakonen v. Eighth Judicial District Court for County of Clark, 91 Nev. 506, 538 P.2d  574 (1975)(guest statute violated equal protection); and Brown v. Merlo, 8 Cal.3d 855, 506 P.2d 212, 227  (1973)(California guest statute was overinclusive, had many exceptions and it "‘imposes a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims'").

 In any event, the first essential element needed for Mauldin to prevail herein has not only been shown and proven, but it is impossible to contest.

 B. The Purpose of Family Code §231.302(c).

 The second element which Mauldin must prove relates to the purpose of the law he challenges as violative of equal protection. It is unquestioned that this law has a very specific objective, which is determined by mere review of the statute itself. That objective is to achieve the collection of unpaid child support obligations owed by dead beat dads[4] via certain license revocation procedures. Section 231.302(c) plainly states that its purpose is "[t]o assist in the administration of laws relating to child support enforcement." Further, subsection (f) of this section provides that "[i]nformation collected by the Title IV-D agency under this section may be used only for child support purposes." Moreover, because obligations to collect SSNs are imposed upon licensing agencies, the child support enforcement activities to which this section must refer are the license revocation procedures set forth in Family Code §232.003, et seq.

 The mere identification of the purpose of this law only highlights its inherent flaw. This statutory language regarding this law's purpose leads to a single conclusion: social security numbers ("SSNs") of ALL license applicants must be submitted to licensing agencies so that the agency charged with administering those laws may use SOME of those numbers to assist revocation of the licenses of a subset of all license applicants: dead beat dads. The flaw of this law is that a burden is imposed upon 100% of the licensed public when only a far smaller part of licensees are causing the dead beat dad problem, yet "this burden does not serve the Act's purposes."

 Mauldin has also submitted proof regarding the purpose of this law. The Title IV-D agency for Texas charged with the duty of enforcing these child support laws is the Attorney General's office; see Family Code §231.001. But, the Family Code is essentially silent regarding how the Attorney General's office actually uses SSNs to force payment of unpaid child support from dead beat dads. Under these circumstances, Attorney General John Cornyn becomes an important witness for this case,[5] his testimony being needed to provide facts concerning how his office uses SSNs "as an enforcement tool" in child support matters and cases. However, it is not essential that Mr. Cornyn actually be called as a witness or even deposed. The Attorney General is required via Family Code §231.116 to post on the Internet information about the operation of his office's child support activities. Mauldin has obtained certain pages from the Attorney General's web site[6] which summarize the operation of the Attorney General's child support division.

 Facts from several different sources reveal how SSNs are used by the Attorney General "for child support purposes." In discovery, Mauldin posed the following Interrogatory No. 6 to Defendant Conrad: "Can you describe for me please how federal social security numbers supplied by plumber license applicants are used by the Texas State Board of Plumbing Examiners?" In reply, Conrad simply answered that "[t]he Board matches social security numbers with delinquent non-custodial child support parent payers and delinquent student loan borrowers." Taking into consideration the fact that plumbers provide their SSNs to the Board, it appears clear from the above answer that the Board records the SSNs of plumbers in its computer, and when notified by the Attorney General to revoke a plumber's license, the SSN is just simply used for further identification of the specific plumber who is subject to the license revocation. In short, use of SSNs by the Board itself is an administrative convenience.

 But the pages from the Attorney General's web site reveal much more about his use of SSNs for child support purposes. One statement made at this site is the following:

 "Most adults have a driver's licenses. Computer matches can determine which obligors have other licenses and permits ranging from medical, dental and law licenses to hunting and fishing licenses."
This statement indicates that the Attorney General's computer system searches for licenses of delinquent child support obligors to identify whose licenses to revoke. This conclusion appears evident via the following also found at the same web site:
 "How does the process work?
 "The Attorney General's Child Support Division matches its caseload with computer tapes from different licensing agencies. When the match shows an obligor who meets the statutory criteria for license suspension and holding one or more of the identified licenses, the Office of the Attorney General will provide the license holder with a warning and an opportunity to resolve the outstanding delinquency.

 "If the obligor fails to respond, the Child Support Division will confirm the location of the obligor and other information necessary to suspend the license and then refer the case for administrative or judicial prosecution."

The Attorney General's office thus uses SSNs only for "matching purposes" to catch a particular license holder who is delinquent in paying child support so that the license revocation procedure may commence. This evidence shows that SSNs are used for the specific purpose of license revocation, and this is the purpose of §231.302(c).

 Thus, not only has Mauldin proven statutorily and factually this law's purpose, but its purpose is uncontested by the Defendants.

 C. The Classification Contained in Family Code §231.302(c) Is Unreasonable and Irrational to Achieving the Law's Objective.

 The final and most important element which Mauldin must prove concerns the relationship of the challenged statutory classification to the law's objective. If the classification bears no rational relationship to accomplishment of the law's purpose, then it is violative of equal protection. See Linen Service Corp. of Texas v. City of Abilene, 169 S.W.2d 497 (Tex.Civ.App. 1943); and Rucker v. State, 170 Tex.Cr.R. 487, 342 S.W.2d 325 (1961).

 As noted in Mauldin's initial brief submitted in support of his pending motion, there are at least two tests used to resolve equal protection claims: the strict scrutiny test and the rational basis test (see Mauldin's opening brief at pp. 19-21). Often, courts can decide equal protection claims with little or no facts, such courts simply rationalizing hypothetical facts which might justify the law's validity. However, facts can be used to show the law's operation and its discrimination against a particular class or subset thereof. In this case, Mauldin has supplied certain critical facts which show that the classification inherent in Family Code §231.302(c) is indeed overinclusive and therefor arbitrary and irrational.

 Through discovery, former Board Administrator Doretta Conrad[7] admitted that while the Defendant Board licensed 18,791 plumbers in 1999, the licenses of only 2 "dead beat" plumbers were revoked as a result of the operation of Family Code §231.302(c). These facts demonstrate the inherent irrational classification in §231.302(c). To achieve the objective of revoking the licenses of dead beats, all that is needed to remedy this problem (as discussed in Mauldin's opening brief at pp. 12-17) is to collect SSNs only from those dead beats rather than everyone else. But further, as Mauldin states in his affidavit, his act of providing his SSN to the Board cannot assist resolution of this problem in any way. By having access to Mauldin's SSN, the Attorney General is in no better position to revoke the license of a dead beat than if he did not have Mauldin's SSN. These facts establish the inevitable conclusion: §231.302(c) contains an arbitrary and irrational classification which is overinclusive.

 "Equal protection analysis requires that classifications be neither too narrow nor too broad to achieve the desired end. Such underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test..." See Shriners Hospital for Crippled Children v. Zrillic, 563 So.2d 64, 69 (Fla. 1990).  Here, the desired end or objective of this law is to revoke the licenses of dead beats by using their SSNs to help identify them. But having the SSNs of non-dead beats is completely irrelevant to achieving the State's objective. The classification in §231.302(c) is not "tailored so that the" denial of a plumber's license to Mauldin "and members of his class is necessary to achieve the articulated state goal." Consequently, this classification is plainly and obviously overinclusive.

 Moreover, the justification offered by the defense for this classification is invalid and judicially unacceptable. According to the Board,  SSNs are "captured" by licensing agencies only as an administrative convenience to the Attorney General. In Alicia Key's affidavit submitted by the defense to oppose Mauldin's summary judgment motion, she testified:

 "[T]he access to social security numbers aids in the execution of one of the most valuable child support enforcement tools. Based on information received from various licensing agencies, the OAG uses license suspension to enforce payment of child support. After full automation of this process, the OAG computer system will periodically identify individuals who meet the state's license suspension criteria and automatically produce initial notices to individuals selected. This is only possible because the OAG computer system can match licensed individuals with those owing arrearages. Since the child support obligors are identified by their social security numbers on the OAG system, the match is possible only because the licensing agency captures the applicants' social security numbers."
The refined essence of the above is that, since the OAG computer catalogs dead beat dads via their SSNs, it can match such numbers and those dead beats if other agencies likewise do the same with their computer systems. The reason for getting SSNs of all license applicants is thus nothing more than an administrative convenience not for agency employees, but for the OAG computer.

 But the courts have never upheld statutory classifications designed for the "administrative convenience" of some government agency, people working for such agencies, or agency computers. Such a plea was rejected in Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497 (1966), where the U.S. Supreme Court declared that "the classification established by the statute cannot be justified on the ground of administrative convenience." See also Williams v. Illinois, 399 U.S. 235, 245, 90 S.Ct. 2018 (1970); Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322 (1969); and Frazier v. Manson, 703 F.2d 30, 35 (2nd Cir. 1983).

 In his motion for summary judgment, Mauldin presented both evidence and argument that this law was overinclusive, and the Board was required to offer contrary facts to obtain a denial of Mauldin's motion. That evidence was not submitted and no factual controversy exists; therefore Mauldin is entitled to prevail on his claim that §231.302(c) is overinclusive and thus violative of equal protection.

 II. Mauldin's Affidavit and Supporting Exhibits Are Plainly Admissible.

 In their motion to strike Mauldin's affidavit, the Defendants generally assert a broad hearsay objection to virtually everything contained in it. But as shown below, every part of Mauldin's affidavit (including the supporting exhibits) contains relevant evidence and is thus  admissible.

 To resolve his equal protection challenge to Family Code §231.302(c), Mauldin may, for the purpose of invoking the strict scrutiny test, choose to attack this statute by showing that it abridges some of his fundamental rights. Mauldin has a right to work, a right to hold religious beliefs and practice them, a right to privacy,  a right not to speak, a right of self defense, a right to be free from the discrimination condemned by Texas Civil Practice and Remedies Code §106.001, and finally a federal right to privacy regarding his SSN which is protected by §7(b) of the federal Privacy Act of 1974, 88 Stat. 1896. These rights are discussed below.

 A. Right to Work.

 As mentioned in his opening brief (p. 2, n. 1), Mauldin possesses the right to work, a right which the Defendants do not deny. See Ex parte Martin, 127 Tex.Cr.R. 25, 74 S.W.2d 1017, 1018 (Tex.Cr.App. 1934)("The liberty thus guaranteed means, among other things, the right to pursue any lawful business"); and Ex parte George, 152 Tex.Cr.R. 465, 215 S.W.2d 170 (1948). Mauldin is exercising this right and supports his family by his trade. It is unchallenged that Mauldin possesses the necessary skills to be a plumber and will continue to have these skills into the future; consequently he will remain a plumber provided he maintains his annual license issued by the Board. The requirement to supply the Board a SSN has nothing to do with the skills needed to be a plumber, yet refusal to supply such a number will result in the denial of a license, thus preventing a plumber like Mauldin from working. Clearly, the requirements of Family Code §231.302(c) directly abridge the right to work.

 B. Right To Hold and Practice Religious Beliefs.

 Another of the fundamental rights possessed by Mauldin relates to his religious beliefs and freedoms, protected by Art. 1, §6 of the Texas Constitution and the First Amendment of the United States Constitution. Mauldin has the right to worship God and obey His commandments. He believes that the Bible predicts in Revelation the rise of the "Anti-Christ," who will use a "666"[8] numbering system to mark all of humanity. Mauldin further believes that those who take the "Mark of the Beast" will be damned unless they repent. Based upon these beliefs, Mauldin fears any system which conditions the right to work upon providing some "mark" like a number. Mauldin also believes that the current effort by the Defendants to condition his right to work upon the provision of his federal SSN has amazing parallels to these events predicted in Revelation. To follow his religious beliefs which he is entitled to hold, Mauldin is required to refuse providing the Board with his SSN. But by doing so, Mauldin would be denied a license, and therefore Family Code §231.302(c) abridges these constitutional rights.

 To demonstrate his entitlement to these constitutional protections, Mauldin must relate what his religious beliefs are through his affidavit. He has done so, and other courts have sanctioned the admission of similar evidence. See Stevens v. Berger, 428 F.Supp. 896 (E.D.N.Y. 1977); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981); Callahan v. Woods, 736 F.2d 1269 (9th Cir. 1984); and Leahy v. District of Columbia, 833 F.2d 1046 (D.C.Cir. 1987).

 C. Right to Privacy.

 In Texas State Employees Union v. Texas Dep't. of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987), the Texas Supreme Court determined that there was a right to privacy based upon a penumbra of constitutional protections. Included within this right to privacy is the right "of conscience in matters of religion." Similarly as in the above, §231.302(c) abridges this right. But furthermore, the presence of this right to privacy in any litigation of this nature requires use of the strict scrutiny test.

 D. Right To Not Speak.

 A fourth right which Mauldin possesses arises from the First Amendment's "free speech" clause. A corollary of free speech constitutional rights is the right not to speak contrary to one's firmly held religious beliefs. Perhaps one of the seminal cases on this point is West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178 (1943). Here, some Jehovah's Witnesses were being prosecuted and having their children expelled from school because they refused to participate in a mandatory salute to the national flag. The reason for such refusal was predicated upon the religious beliefs of this particular faith that saluting the flag was worshiping a "graven image." In according First Amendment protection to these Witnesses, the Supreme Court declared that compelling the salute "requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks." The Court concluded that to "sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind," Id., at 634, which the Court declared was a position clearly at odds with the First Amendment.

 The Court again followed the rationale of Barnette in Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428 (1977), which involved the compulsory display of New Hampshire's state motto, "Live Free or Die," on automobile license plates. In protecting those who objected for religious reasons to the display of this motto, the Court concluded that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." See also Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 16, 106 S.Ct. 903 (1986)("the choice to speak includes within it the choice of what not to say"); Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1215 (5th Cir. 1991)("Our Constitution protects not just the right to speak, but the right to ‘refrain from speaking' ... the right of individuals to hold a point of view different from the majority and to refuse to foster ... an idea they find morally objectionable"); Hays County Guardian v. Supple, 969 F.2d 111, 123 (5th Cir. 1992)("the freedom of speech and association protected by the First Amendment includes the freedom to chose both what to say and what not to say"); and Johnson v. State, 755 S.W.2d 92, 97 (TexCr.App. 1988)("the right to differ is the centerpiece of our First Amendment freedoms"). See also Matter of Marriage of Knighton, 723 S.W.2d 274, 283 (Tex.App. - Amarillo 1987); and Reynolds v. Rayborn, 116 S.W.2d 836, 838-39 (Tex.Civ.App. - Amarillo 1938).

 Here, Mauldin has religious beliefs which mandate that he "not speak" allegiance to any forerunner of the Beast's "666" numbering system and those beliefs and resulting action are constitutionally protected. Yet the Board, like the Beast, prevents all plumbers from working unless they provide the "mark." Obviously, Mauldin may provide evidence of these beliefs and the consequences arising therefrom via his affidavit to show how §231.302(c) abridges his rights in this respect.

 E. Right of Self Defense.

 Mauldin also holds certain secular beliefs relating to the Board's demand that he supply his SSN. By engaging in a study of certain publications found on the Internet, Mauldin has learned about a new crime known as identity theft.[9] Wishing to protect himself and his family from this crime, Mauldin desires to curtail use and distribution of his SSN by exercising his right of self-defense. See Erwin v. State, 367 S.W.2d 680, 683 (Tex.Crim.App. 1963)("right of self-defense"); Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. 990, 991 (1923)("right of self-defense"); Kelly v. State, 68 Tex.Cr.R. 317, 151 S.W. 304 (1912)("the defendant's perfect right of self-defense"); and Cox v. State, 57 Tex.Cr.R. 427, 123 S.W. 696, 697 (1909)("perfect right of self-defense").[10] Yet, the Defendants not only demand SSNs from all plumbers including Mauldin, but they improvidently expose these numbers to identity thieves in a variety of ways. This exposure to this new crime is the direct result of the implementation of §231.302(c).

 To prove the existence of this new crime, Mauldin has offered several exhibits attached to his affidavit. Exhibit 4 is a copy of an article published on the Internet by a newspaper, U.S. News. This exhibit is admissible under Rule 902(6), T.R.Evid. Exhibit 5 is likewise a document published on the Internet by the Federal Trade Commission as is Exhibit 6, which are pages from the Congressional Record that are found on the Internet. These documents are admissible via Rule 902(5).

 F. Right To Be Free From Official Discrimination.

 The recently adopted Texas Civil Practice and Remedies Code §106.001 provides as follows:

 "Sec. 106.001. Prohibited Acts.

 "(a) An officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a person's race, religion, color, sex, or national origin:

 "(1) refuse to issue to the person a license, permit, or certificate."

This law condemns state officials who deny a license to anyone because of religious beliefs. Here, the Defendants are requiring pursuant to §231.302(c) that Mauldin supply his SSN to secure a plumber's license, yet Mauldin holds religious beliefs which counsel against providing his number. Section §231.302(c) thus abridges this statutory right to be free from such discrimination emanating from government "because of a person's ... religion ..."

 G. Federal Right To Privacy.

 As shown in his opening brief, §7 of the Privacy Act of 1974, 88 Stat.1896, accords a degree of protection to those who wish to refuse providing their SSNs to state agencies. But this statutory right is abridged by Family Code §231.302(c).

 H. The Significance of These Rights To This Case.

 Because Mauldin possesses the above enumerated fundamental and statutory rights, his equal protection challenge to §231.302(c) invokes the strict scrutiny test.  But even if this test should not apply and Mauldin's claim is only entitled to be decided via use of the rational basis test, he must still prevail. Under the Texas rational basis test, legislative classifications must still rationally relate to the challenged law's objective. See Sullivan v. Univ. Interscholastic League, 616 S.W.2d 170 (Tex. 1981). Here, Family Code §231.302(c) seeks to remedy the dead beat dads problem by using SSNs to assist in the revocation of licenses. But, there is no rational reason to include non-dead beats within the scope of this law. The non-dead beats are a separate and distinct class, and they cannot assist in any way resolution of  this social problem. Mauldin is therefor entitled to testify about why he is different from this "dead beat dad" class and to state that he cannot help solve this problem in any way by providing his SSN.


 For the reasons expressed above, Mauldin's evidence submitted to support his motion for partial summary judgment should be considered and his motion granted.

 Respectfully submitted this the ___ day of October, 2000.

___________________________                    _______________________________
Jimmy D. Hulett, Jr.                               Lowell H. Becraft, Jr.
Attorney for Mauldin                             Attorney for Mauldin
Texas Bar #10252400                              209 Lincoln Street
Texas Justice Foundation                    Huntsville, AL 35801
8122 Datapoint, St. 812                          256-533-2535
San Antonio, Texas 78229

FN 1:  Equal protection principles under the Texas Constitution are similar to the federal. See Texas Optometry Bd. v. Lee Vision Center, Inc., 515 S.W.2d 380, 386 (Tex. Civ. App.-Eastland 1974)("Texas courts when confronted with questions involving the Due Course of Law and Equal Rights Clause of the Texas Constitution consistently apply the reasoning and rationale announced by the United States Supreme Court on questions of due process and equal protection").

FN 2:  See State v. Lee, 356 So.2d 276, 279 (Fla. 1978)("The classic criterion for assessing the validity of a statutory classification is whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike").

FN 3: Of course, these various elements have been extensively discussed by American courts, which have defined them in intimate detail. See, for example, Barbour County Comm. v. Employees of Barbour Co. Sheriff's Dept., 566 So.2d 493, 497 (Ala. 1990)(Legislative classes "(1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive").

FN 4: The popular media refer to laws of this type as the "dead beat dads" laws, a colloquial term Mauldin has repeatedly used in his briefs. In more formal terms, it means delinquent child support obligors.

FN 5:  Attorney General John Cornyn is also defense counsel representing at least the Texas State Board of Plumbing Examiners. While ethically an attorney should not be a witness in a case where he is counsel for a party, Mauldin is not presently making any objection in this respect.

FN 6: The Attorney General's Internet web site is located at "http://www.oag.state.tx.us/". These exhibits are attached to Mauldin's affidavit as Ex. 7, and they describe some of the activities of the Attorney General's office. Consequently, these exhibits  are admissible under Rule 803(8)(A), T.R.Evid.

FN 7: Via the defense reply to Mauldin's summary judgment motion, it was learned that Conrad has resigned her position with the Board and has been replaced by Robert Maxwell. A motion for joinder of a new defendant is consequently in order.

FN 8: SSNs were created to keep a record of the contributions any particular individual makes to the federal Social Security Trust Fund. The act which created this fund is published at 53 Stat. 1360, ch. 666.

FN 9: The actions of one identity thief are discussed in the recent case of Andrews v. T.R.W., Inc., ___ F.3d ___ (9th Cir., July 17, 2000).

FN 10: See generally Penal Code §9.22 (necessity defense).