TN 5 (06-22)

PR 04910.048 Texas

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).


Footnotes:

[1]

Your legal opinion request states that the NH died in March 1999 while domiciled in Texas, but also states that he died on September XX, 1999. It appears that the March 1999 date was a clerical error given that the NH was murdered on September XX, 1999, per the court documents.

 

[2]

You indicated that the Claimant originally filed as the NH’s surviving divorced spouse (divorced widow). Although the agency received a copy of an original petition for divorce filed by the NH in December 1995, the agency received no evidence that the divorce was finalized. Instead, the agency received a letter from a legal representative of the NH’s daughter stating that there was no final decree of divorce between the NH and the Claimant, because the NH was killed before the Court could enter such a decree. You also indicated that the agency was continuing to develop evidence as to the marriage and divorce between the Claimant and the NH that impacts her status as his widow. The marital status between the Claimant and the NH is not the subject of our legal opinion. Instead, our opinion focuses on your question of whether her criminal murder conviction causing the NH’s death renders her ineligible for widow’s insurance benefits on the NH’s record.

 

[3]

The Kentucky manslaughter statute, Ky. Rev. Stat. Ann. § 507.040, provided that a person was guilty of second-degree manslaughter if he “wantonly” caused the death of another person. The Kentucky statute, Ky. Rev. Stat. Ann. § 501.020(3), defined “wantonly” as an actor is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists and the risk is of such nature and degree that disregarding the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. The Court looked to the agency’s operating instructions in POMS for the definition of intent (POMS GN 00304.060(B)(1)) and found that Kentucky’s definition of “wanton” conduct comported with the agency’s definition of intent for purposes of 20 C.F.R. § 404.305(b).

[4]

If State law does not distinguish between voluntary and involuntary manslaughter, the agency is to follow the steps for voluntary manslaughter. POMS GN 00304.065(B). Thus, determining whether a manslaughter conviction is an intentional homicide depends on the laws of the State in which the claimant was convicted.

 

[5]

The POMS instructs that if a record or information (e.g., a precedent case, or opinion) is available that shows one of the stated presumptions in POMS GN 00304.065(B) is erroneous in a particular jurisdiction, the agency disregards the presumption. POMS GN 00304.065(B). POMS GN DAL00304.065 (effective October 7, 2011) provides specific instruction as to the States’ laws in Region VI and sets out rules for intent for the offenses, some of which vary from the general rules of POMS GN 00304.065(B). In May 2018, we provided a legal opinion with recommendations to update POMS GN DAL00304.065, but it appears that there have been no updates to this provision at this time. In April 2022, we recommended that your office move forward with updates to this Dallas Regional POMS.

[6]

SSR 87-23 notes that the Ohio probate code’s provision “evidences a judgment on the part of the Ohio legislature to equate voluntary manslaughter with intentional killings for purposes of implementing the well-established principle that one who intentionally causes another’s death should not be allowed to benefit from that death,” and “[s]ince implementation of this principle is also the purpose of 20 C.F.R. § 404.305(b), SSA would be justified, even without inquiry into the facts in finding the claimant intended to kill his father” and thus was precluded from entitlement to benefits on his father’s record.

[7]

We note that agency policy excludes the following three homicides from the definition of an intentional homicide: homicides resulting from an accident; homicides resulting from self-defense; and homicides when the claimant was insane, or under the influence of drugs or alcohol to the extent that he was unaware of the nature and consequences of the act when he killed the number holder. POMS GN 00304.065(A). Based on the information we have received, this case does not fall under any of these exclusions.

 


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1504910048
PR 04910.048 - Texas - 06/03/2022
Batch run: 06/03/2022
Rev:06/03/2022