TN 5 (06-22)
PR 22-033
Second-Degree Murder Conviction with Sudden Passion and Suspended Sentence, Number
Holder (NH)
-Texas
DATE: May 26, 2022
1. SYLLABUS
The issue involved in this decision is entitlement to widow's insurance benefits after
the claimant’s conviction for second-degree murder of the NH with a suspended sentence
of supervised probation. This conviction would qualify as a felonious and intentional
homicide of the NH.
2. OPINION
QUESTION PRESENTED
You asked whether S~ (the Claimant), the widow of the deceased number holder D~ (NH),
is ineligible to receive widow’s insurance benefits under Title II of the Social Security
Act (Act) on the NH’s record on the basis of a conviction under Texas criminal law
for second-degree murder in the death of the NH where at the punishment phase of her
trial, she was found to have committed the murder under the immediate influence of
“sudden passion” arising from an adequate cause and given a suspended sentence of
supervised probation.
SHORT ANSWER
We believe that the Social Security Administration (SSA or agency) may reasonably
conclude that the Claimant’s conviction for second-degree murder of the NH under section
19.02 of the Texas Penal Code with a suspended sentence of supervised probation qualifies
as a conviction for a felonious and intentional homicide of the NH such that she is
ineligible for widow’s insurance benefits on the deceased NH’s record. See 20 C.F.R.
§ 404.305(b) (no entitlement to survivor’s benefits due to a person for intentionally
causing that person’s death), § 404.301(d) (describing a worker’s survivor benefits
to include benefits for a worker’s widow).
BACKGROUND
The NH died in September[1] 1999 while domiciled in Texas. On November XX, 2020, the Claimant filed an application
for widow’s insurance benefits on the NH’s record[2] . On the application, she stated that she and the NH were married February XX, 1975,
in Texas, and the marriage ended when the NH died September XX, 1999, in Texas.
In relation to this application, the agency is in receipt of a “Judgement on Jury
Verdict of Guilty, Punishment Fixed by Jury – Probation Granted”, dated March, 2001,
in the criminal case of State of Texas v. S~, District Court, Texas (Criminal State
Court Order). The Court described the offense convicted of as a second-degree murder
and noted that the offense was committed on September XX, 1999. The Court explained
that the Claimant pleaded “not guilty” to the charge, but that after a trial, a 12-person
jury returned a verdict against the Claimant of “guilty of the offense of Murder,
as charged in the indictment.” See Criminal State Court Order at pp. 1-2.
The Court noted that the jury also considered evidence related to the question of
punishment, and after deliberating, returned the following verdict:
We, the jury, having found the defendant, [the Claimant], guilty of the offense of
Murder, do find by a preponderance of the evidence that on the occasion in question,
at the time of the commission of the offense for which defendant is on trial the defendant
caused the death of [the NH] while she, the defendant, was under the immediate influence
of sudden passion arising from an adequate cause, and we therefore assess defendant’s
punishment at confinement in Texas for a term of Two (2) years and in addition to
such confinement assess a fine of $ None.
We further find that defendant has never before been convicted of a felony in this
or any other state and we recommend to the Court that the portion of the punishment
herein assessed related to the confinement be suspended and the defendant placed on
community supervision.
Id. at p. 2.
Based on the jury’s verdict, the Court adjudged that the Claimant was guilty of the
offense of second-degree murder, that “said defendant committed the offense on the
date shown above[,] and that [her] punishment has been set by confinement in Texas
for the term set forth above.” Id. The Court further ordered that “the imposition
of sentence of judgment of conviction be suspended during good behavior of the defendant
and that the defendant be placed on probation for a period of time fixed by the Court
under the conditions to be determined as provided by law.” Id. The Court then ordered
that “the defendant be and is hereby placed on probation for the above named term
beginning on the date of the judgment herein under supervision of the Court through
the Community Services and Corrections Department of this county, and to abide by
all of the following terms and conditions . . .” Id. The Court then listed the terms
and conditions of the supervised probation. Id. at pp. 2-4.
ANALYSIS
A. Social Security Law and Policy Regarding Forfeiture of
Entitlement to Title II Survivor’s Benefits due to Homicide of the Worker
Social Security regulations set forth certain circumstances when an individual may
not be entitled to benefits, including when a person’s death is caused by an intentional
act. See 20 C.F.R. § 404.305(b). “You may not become entitled to or continue to receive
any survivor’s benefits or payments on the earnings record of any person, or receive
any underpayment due a person, if you were convicted of a felony or an act in the
nature of a felony of intentionally causing that person’s death.” 20 C.F.R. § 404.305(b);
see also POMS GN 00304.060(A)(1) (“Consider the convicted person as nonexistent in determining the entitlement
of other survivors, or the amount of their benefits.”), GN 00304.065 (classification of homicide). SSA has explained that the purpose behind this regulation
is to “prohibit[] benefit payments to any survivor who is found to have intentionally
caused the death of the worker on whose earnings record the benefit payments are based.
It . . . is consistent with the well-established principle that an individual should
not profit directly from intentionally causing another person’s death.” 47 Fed. Reg.
42097-02, 1982 WL 132073, at *42097 (Sept. 24, 1982); see also 52 Fed. Reg. 19135-01,
1987 WL 134252, at *19135 (May 21, 1987) (expanding § 404.305(b) to prohibit an individual
from receiving an underpayment due to a person whom the individual killed so the regulation
was “consistent with the well-established principle that an individual should not
profit directly from intentionally causing another person’s death.”); POMS PR 02905.045 South Carolina, A. PR 08-151 Impact of Civil Finding of Conspiracy to Kill Wage Earner
on Claimant’s Eligibility for Widow’s Benefits (July 14, 2008) (“the published explanatory
language for the regulation makes clear the policy of the Social Security Administration
(SSA) is that a survivor who intentionally causes the death of the wage earner may
not collect payments on that wage earner’s record,” and “[t]herefore, we believe the
civil finding [adjudicating the claimant guilty of conspiracy to kill the number holder]
should have the force of a conviction” for purposes of 20 C.F.R. § 404.305(b)).
In determining whether a homicide is intentional for purposes of 20 C.F.R. § 404.305(b),
agency policy defines “intent” as:
A wish or expectancy that an act will have a certain result (regardless of the actual
likelihood of such a result). The presence of will in the commission of a criminal
act where the individual is fully aware of the nature and probable consequences of
the act that he or she plans to commit. This applies whether the individual desires
that such consequences occur or is indifferent as to their occurrence. Seldom intent
is established by direct proof, but must be inferred from facts.
POMS GN 00304.060(B)(1). Thus, a homicide may constitute an intentional homicide for purposes of 20
C.F.R. § 404.305(b) even if there is no specific intent to kill. See id.; see also
Social Security Ruling (SSR) 89-6c.
In SSR 89-6c, the agency adopted Davis v. HHS, 867 F.2d 336 (6th Cir. 1989), which
concerned whether a felony conviction of second-degree manslaughter under Kentucky
law precluded entitlement to benefits under 20 C.F.R. § 404.305(b) as an intentional
homicide. The Sixth Circuit Court of Appeals held that a claimant convicted of second-degree
manslaughter under the Kentucky statute, who did not possess the specific intent to
kill, but only acted recklessly or wantonly in discharging the gun at the number holder,
was ineligible for benefits under 20 C.F.R. § 404.305(b) as such a conviction satisfied
the agency’s definition of intentional as set forth in the agency’s operating instructions
in the POMS[3] . Thus, the agency’s definition of “intent” as expressed in POMS GN 00304.060(B)(1) and SSR 89-6c is similar to a reckless standard of intent where the individual
knows of the risks and continues with the act, disregarding such risks.
Agency policy sets forth the following general rules for intent for certain homicide
offense convictions: (1) first-degree murder – intent conclusively presumed; (2) second-degree
murder – intent presumed, but may be rebutted; (3) third-degree murder – lack of intent
presumed, but may be rebutted; (4) involuntary manslaughter – lack of intent presumed,
but may be rebutted; generally regarded as unintentional slaying and thus does not
bar entitlement to benefits, the lump sum death payment, or payment of an underpayment;
and (5) voluntary manslaughter – no presumption, facts relative to the slaying must
be developed; decision depends on the laws of the State[4] . POMS GN 00304.065(B)[5] .
In addition to a State’s criminal laws, it may be relevant to SSA’s determination
of whether a crime is an intentional homicide if the State’s probate code bars a person
from inheriting from the deceased person based on the homicide conviction. See SSR
87-23 (20 C.F.R. § 404.305(b) “does not specify that SSA rely only on a State’s criminal
code in making the intent determination”). In SSR 87-23, the agency relied on the
Ohio probate code’s provision that a person convicted of voluntary manslaughter is
barred from inheriting from the deceased or otherwise receiving benefits payable on
the deceased’s death to deny that person Social Security benefits on the deceased’s
record. The agency stated in SSR 87-23 that “[t]he conclusion that [the claimant]
intentionally killed his father is justified because Ohio treats voluntary manslaughter
as an intentional and felonious homicide for purposes of determining whether persons
who kill are entitled to benefit from the deaths of their victims.”[6] Thus, per SSR 87-23, a State law prohibiting inheritance based on murder offenses
is relevant to the determination of whether a certain felony homicide offense is an
intentional homicide for purposes of 20 C.F.R. § 404.305(b).
In light of the above Federal law and policy, we further consider Texas’s homicide
and probate laws and the specifics of the Criminal State Court Order to determine
whether the Claimant committed a felonious and intentional homicide in causing the
NH’s death rendering her ineligible for Title II widow’s insurance benefits on the
NH’s record.
B.
Texas Law on Homicide Offenses and Inheritance Forfeiture
Texas Penal Code Title 5, Chapter 19, contains the Texas homicide offenses. See Tex.
Penal Code Ann. §§ 19.01 – 19.07. Texas law provides that “[a] person commits criminal
homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes
the death of an individual,” and provides for the following types of criminal homicide:
murder, capital murder, manslaughter, and criminally negligent homicide. Id. at §
19.01. In addition, the Texas Penal Code provides for the felony offenses of intoxication
manslaughter, aiding suicide, and criminal solicitation for murder, which we believe
are relevant to 20 C.F.R. § 404.305(b) regarding felony offenses intentionally causing
a person’s death. See Id. at §§ 15.03(a), 22.08, 49.08.
Here, the Court found that the Claimant committed murder in the second degree under
section 19.02 of the Texas Penal Code. See Criminal State Court Order at pp. 1, 4.
We therefore discuss whether murder, particularly second-degree murder, under Texas
law, qualifies as a felonious and intentional homicide for purposes of 20 C.F.R. §
404.305(b).
1. First and Second-degree murders are Felony Offenses and Intentional
Homicides
Under section 19.02(b) of the Texas Penal Code, a person commits murder if she:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to
human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course
or in furtherance of the commission or attempt, or in immediate flight from the commission
or attempt, he commits or attempts to commit an act clearly dangerous to human life
that causes the death of an individual.
Tex. Penal Code Ann. §§ 19.02(b)(1)-(3). As noted above, for murder under sections
19.02(b)(1) and (2), a person must intend to cause death, knowingly cause death, or
intend to cause serious bodily injury while committing an act clearly dangerous to
human life. Texas law provides that: “[a] person acts intentionally, or with intent,
with respect to the nature of his conduct or to a result of his conduct when it is
his conscious objective or desire to engage in the conduct or cause the result.” Id.
at § 6.03(a). “A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist,” and “[a] person acts knowingly,
or with knowledge, with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.” Id. at § 6.03(b).
For murder under the felony murder rule, section 19.02(b)(3) “holds that a person
whose conduct causes an unintended death during the commission or attempted commission
of a felony is guilty of murder.” Lawson v. State, 64 S.W.3d 396, 397 (Tex. Crim.
App. 2001) (describing the history of the felony murder rule); see also Fraser v.
State, 523 S.W.3d 320, 329 (Tex. App. – Amarillo 2017) (“[T]he sine qua non of a felony-murder
is that moral blameworthiness sufficient to justify a murder conviction is supplied
by the criminal conduct surrounding the act that causes death, when that conduct is
clearly dangerous to human life and it is something other than the offense of manslaughter.
Because the Legislature specifically excluded conduct that would otherwise be classified
as manslaughter, the act which is ‘clearly dangerous to human life that causes the
death of an individual’ cannot be an act that causes the death of an individual by
reckless or criminally negligent conduct.”). The law requires that the person do some
act that was clearly dangerous to human life and that specific act causes the victim’s
death. Lawson, 64 S.W.3d at 399-400. “The death must be the natural and probable consequence
of the defendant’s dangerous conduct.” Id. at 400.
Similar to the definitions of intent and knowledge for purposes of sections 19.02(b)(1)
and (2) of the Texas Penal Code, the agency’s definition of intent includes, “[a]
wish or expectancy that an act will have a certain result (regardless of the actual
likelihood of such a result). POMS GN 00304.060.B.1. Further, of relevance to Tex. Penal Code §§ 19.02(b)(2) and (3) where there
is no specific intent to kill, the agency further defines “intent” as “[t]he presence
of will in the commission of a criminal act where the individual is fully aware of
the nature and probable consequences of the act that he or she plans to commit. This
applies whether the individual desires that such consequences occur or is indifferent
as to their occurrence.” POMS GN 00304.060.B.1. Thus, we believe the agency may reasonably conclude that murder under Texas
Penal Code §§ 19.02(b)(1)-(3) satisfies the agency’s definition of intent for purposes
of 20 C.F.R. § 404.305(b).
The statute provides that an offense under section 19.02(b) is a felony of the first
degree. Tex. Penal Code Ann. § 19.02(c). Of particular relevance here, we note that
under Texas law, at the punishment stage of a trial for murder, if the defendant proves
that she caused the death under the immediate influence of sudden passion arising
from an adequate cause, then the offense is reduced to a “felony of the second degree”
(in other words, to a second-degree murder). Tex. Penal Code Ann. § 19.02(d). Once
the defendant has been found guilty of murder under §§ 19.02(b)(1)-(3), the defendant
may raise as a “mitigating circumstance” that she caused the person’s death while
under the immediate influence of sudden passion arising from an adequate cause. Rivas
v. State, 473 S.W.3d 877, 883 (Tex. App. – San Antonio 2015, pet. ref’d); see also
Wooten v. State, 400 S.W.3d 601, 604-605 (Tex. Crim. App. 2013) (explaining the legislative
history of section 19.02 of the penal code and that following amendments in 1993,
the current statutory scheme provides that “whether a defendant killed while under
the immediate influence of sudden passion is a punishment issue”). Courts have explained
that “with sudden passion as a punishment issue, the defendant’s intent to kill has
already been affirmatively resolved by the jury and is no longer relevant,” and “[s]ince
the defendant killed intentionally, the issue at punishment is whether he did so in
a sudden passion.” Trevino v. State, 100 S.W.3d 232, 240 (Tex. Crim. App. 2003). Thus,
in determining intent for murder under Tex. Penal Code § 19.02, either first or second
degree, we focus on subsections (b)(1)-(3), as detailed above.
We believe the agency may reasonably conclude that a murder conviction under Tex.
Penal Code § 19.02 satisfies the agency’s definition of intent for purposes of 20
C.F.R. § 404.305(b), regardless of whether the conviction is subsequently mitigated
to second-degree murder at the punishment stage due to a finding of “sudden passion”
from an adequate cause. As such, intent is conclusively presumed for both a first-degree
and second-degree murder conviction under section 19.02 of the Texas Penal Code.
2. A Person Who Feloniously and Intentionally Kills the Decedent May Not
Benefit From the Decedent’s Property as an Heir or Legatee
Although we believe it is clear that both first-degree and second-degree murder convictions
under section 19.02 of the Texas Penal Code preclude benefits under 20 C.F.R. § 404.305(b)
as felonious and intentional homicides, we also note that Texas case law considering
the issue of inheritance of those convicted of murder further supports this determination.
As noted above, per SSR 87-23, a State law prohibiting inheritance based on murder
offenses is also relevant to the determination of whether a certain felony homicide
offense is an intentional homicide for purposes of 20 C.F.R. § 404.305(b). Texas law
provides that a parent may not inherit from or through his or her child if the court
finds that the parent has been convicted of or placed on community supervision for
being criminally responsible for the death of a child under sections 19.02, 19.03,
and 19.04 of the Texas Penal Code, i.e., for the murder, capital murder, and manslaughter
of a child. See Tex. Estates Code Ann. § 201.062(a)(3) (treatment of certain parent-child
relationships for inheritance). Texas does not otherwise have a “slayer statute” prohibiting
inheritance of an individual based on certain homicide offenses committed by such
individual. Despite the absence of a general “slayer statute” in Texas, to prevent
the murderer from benefiting from his or her wrongdoing in causing the death of another,
some Texas courts have approved the placement of a “constructive trust” on property
a murderer inherits from the deceased victim in favor of the deceased’s other legal
heirs or legatees based on principles of equity. See Ovalle v. Ovalle, 604 S.W.2d
526, 528 (Tex. Civ. App. 1980, no writ) (considering inheritance of a widow convicted
of voluntary manslaughter of her deceased spouse); Parks v. Dumas, 321 S.W.2d 653,
655-56 (Tex. Civ. App. 1959, no writ) (considering the inheritance of a son convicted
of murdering his parents); Pritchett v Henry, 287 SW2d 546, 547-51 (Tex. Civ. App.
1955, writ dismissed) (considering inheritance of a husband who murdered his wife).
As such, Texas law generally appears consistent with the policy underlying 20 C.F.R.
§ 404.305(b) “that an individual should not profit directly from intentionally causing
another person’s death.” See 47 Fed. Reg. 42097-02, 1982 WL 132073, at *42097 (Sept.
24, 1982).
3. State Court Order Finding that the Claimant Committed the Crime of
Second-degree murder of the NH, and Placing Her on Supervised Probation for the Crime,
Reasonably Qualifies as a Conviction for a Felonious and Intentional Homicide that
Would
Render Her Ineligible For Survivor’s Benefits on the NH’s Record
As detailed above, the Claimant was convicted under section 19.02 of the Texas Penal
Code of the murder of the NH, and this offense was reduced at the punishment phase
to a second-degree murder conviction. Specifically, the Court, relying on a jury verdict,
adjudged that the Claimant was guilty of the offense of second-degree murder, suspended
the punishment of confinement for two years, and ordered that the Claimant be placed
on supervised probation for two years. See Criminal State Court Order at pp. 1-2.
The Criminal State Court Order reflects that in finding the Claimant guilty of second-degree
murder, mitigating circumstances involving “sudden passion” were considered at the
punishment stage of her trial. Id. at p. 2.
As stated above, under Texas law, murder under section 19.02 of the Texas Penal Code
is a felonious and intentional homicide – regardless of whether mitigating circumstances
involving “sudden passion” were considered at the punishment stage reducing the offense
from first-degree murder to second-degree murder. See Trevino, 100 S.W.3d at 240.
Similarly, under the general rules for intent, the agency instructs that for second-degree
murder, intent is presumed, but may be rebutted. POMS GN 00304.065(B). Considering the intent requirements under Texas law for second-degree murder
and the agency’s definition of intent, we believe the agency may reasonably conclude
for purposes of 20 C.F.R. § 404.305(b) that the Criminal State Court Order convicting
the Claimant of second-degree murder of the NH establishes that the Claimant committed
a felonious and intentional homicide causing the death of the NH.[7] As explained, 20 C.F.R. § 404.305(b) states that a person “may not become entitled
to or continue to receive any survivor’s benefits or payments on the earnings record
of any person, or receive any underpayment due a person, if [her or she was] convicted
of a felony or an act in the nature of a felony of intentionally causing that person’s
death.” Therefore, the agency may reasonably conclude that the Claimant is ineligible
to receive widow’s insurance benefits on the NH’s record. See 20 C.F.R. § 404.305(b).
CONCLUSION
We believe that the agency may reasonably conclude that the Texas Criminal State Court
Order finding that the Claimant committed felony murder in the second degree of the
NH and ordering supervised probation for two years, qualifies as a conviction for
a felonious and intentional homicide of the NH such that she is ineligible for widow’s
insurance benefits on the deceased NH’s record. See 20 C.F.R. § 404.305(b).