The opinion
Honorable 0. N. Humphrey8 Opinion No. M-213
Acting Administrator
Texas Liquor Control Board
Sam Houston State Office Building
Austin, Texas 78711 Re: Who, If anyone, may be
shown the notices, orders,
records and publications
in custody of the Texas
Liquor Control Board,
which are made “privileged”
documents under Article
666-12a(5), Vernon’s
Dear Mr. Humphreys: Texas Penal Code?
YOUr request for an official opinion reads, in part:
“In Section 12(a), (5) of Article I of
the Texas Liquor Control Act (Article 666-12a(5),
of Vernon’s Texas Penal Code) it is provided as
follows:
‘All notices, orders, records and
publications authorized or required by
the terms of this Act shall be privl-
leged . . .I”
The question presented Is stated as follows:
“As a consequence of the provisions of Article
666-12a(5) of Vernon’s Texas Penal Code who may be
shown the notices, orders, records and publications
in custody of the Texas Liquor Control Board?”
Your request is in effect a request that we construe the word
“privileged” as It is used In Article 666-12a(5), Vernon’s Penal
Code. Said provision reads as follows:
“(5) All notices, orders, records, and publi-
cations authorized or required by the terms of this
Act shall be prlvile ed
that in all sudi S~kt~“of”~~~~~ ~~“~~~~~ the
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Honorable 0. N. Humphreys, page 2 M-213
State or Board Is a party or parties, a transcript
from the papers, books, records, and proceedings
of the Board purporting to contain a true statement
of accounts between the Board or the State and any
person, and all rules, regulations, orders, audits,
bonds, contracts, or other instruments relating to
or connected with any transaction had between the
Board and any person, when certified by the Adminis-
trator or Chairman of the Board to be true copies
of the originals on file with the Board and authentl-
cated under the seal of the Board shall be admitted
as prima facie evidence of their verity, existence,
and validity and shall be entitled to the same de-
gree of credit that would be due to the original
papers if produced and proved In Court; but when
any suit is brought upon a bond or other written
Instrument, executed by any person and he shall by
plea under oath deny the execution of such lnstru-
ment, the Court shall require the production and
proof of the same.
“In the event the Attorney General shall file
suit or claim for taxes and attach or file as an
exhibit any report or audit of said permittee or
licensee, and an affidavit made by the Administrator
or his representative that the taxes shown to be due
by said report or audit are past due and unpaid,
that all payments and credits have been allowed,
then, unless the party resisting the same shall file
an answer in the same form and manner as required by
Article 3736, Revised Civil Statutes of Texas, of
1925, as amended by Chapter 239, Acts of the Regular
Session of the Forty-second Legislature, said audit
or report shall be taken as prima facie evidence
thereof, and the proceedings of said Article are
hereby made applicable to suits to collect taxes
hereunder ~
“A certificate under the seal of the Board
executed by any member or the Administrator setting
forth the terms of any order, rule, regulation, bond,
or other Instrument referred to in this Section and
that the same had been adopted, promulgated, and pub-
lished or executed and filed with the Board and was
In force and effect at any date or during any period
specified In such certificate, shall be prima facie
evidence of all such facts, and such certificate shall
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Honorable 0. N. Humphreys, page 3 ~-213
be admitted in evidence in any action, civil or
criminal, Involving such order, rule, and regu-
lation and the publication thereof, without fur-
ther proof of such promulgation, adoption, or
publication and without further proof of Its con-
tents and the same provision shall apply to any
bond or other Instrument referred to in this
Section.” (Emphasis added .)
To define the problem with which we are presented with
precision, we are concerned with whether an absolute or quali-
fled privilege was Intended by the Legislature In the above
quoted provision, and, if only a qualified privilege was ln-
tended, then we are concerned with Its Intended scope - 1.e .,
who Is It designed to protect and under what circumstances?
Why was the privilege placed In the act and how far was It in-
tended to extend?
Under Article 666-6(d), Vernon’s Penal Code, substantive
rules and regulations of the Board are required to be published
and they are clearly not Intended to be within the privileged
category . Likewise, under Article 6252-13, Vernon’s Civil Statutes,
rules of procedure and practice in hearings before the Administrator
are required to be publicly filed with the Secretary of State’s
office and are also clearly not Intended to be within the prlvl-
leged category D
It is equally apparent that the legislature did not intend
(through making reports, etc ., privileged) to prevent the con-
tents of such required reports, etc., from forming the basis for
Informed admlnlstratlve or legislative action, since such books
and reports, etc., as are required to be kept under the Act are
clearly Intended for the sole purpose of allowing the intelligent
regulation of the liquor Industry.
The word “privilege” has a variety of meanings according to
the connection or context In which It Is used. 72 C.J.S. 951,
Privilege. From the plain language employed by the legislature
in Article 666-12a(5), It Is clear that the materials listed are
not absolutely privileged but that only a qualified privilege Is
intended -1 .e *, the privileged nature of notices, orders, records,
and publications authorized or required by the terms of the Texas
Liquor Control Act does not prevent the use of such materials in
suits to which the State or Texas Liquor Control Board is a party.
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Honorable 0. N. Humphreys, page 4 M-213
Regulatory provisions of this nature are frequently “aimed
simply at imposing upon the staff fif an administrative agency 7
a proper silence in everyday intex?Fourse outside of the office-
and at defending the records /?if a private business nature 7 from
the intrusive scrutiny of the-public havin no interest thFrein.”
VIII Wlgmore On Evidence 792 (3rd Ed. 1940 7 . Such was the apparent
purpose of the Texas Le islature In making records, etc., prlvlle~~-d
through Article 666-12a 7 5). The public interest In efficient regu
latlon of the liquor Industry may be effectively served by en-
couraging, to the extent possible consistent with the Act’s pur-
poses and objectives, full disclosure by the licensee to the
licensing authority. Conversely, no public Interest would be
served by making personal business information pertaining to the
operation of licensed premises generally available for the use of
actual or potential competitors of the licensee. However, when
a probable violation of the terms on which the license Is granted
Is disclosed by records filed with or inspected by the Board, or
is disclosed by inspection of the premises themselves, the con-
siderations supporting the privacy of such business information
are outweighed by the gubllc interest In effective enforcement of
the liquor laws. Article 666-12a(5) expressly provides that records
are subject to disclosure in such instance (as is obviously neces-
sary to serve the Act’s intended regulatory purposes.)
The law Is pertinently stated In VIII Wlgmore On Evidence
761 (3rd Ed. 1940):
,I . . . fl %ere the Government needs information
for the condiicr of its functions and the persons pos-
sessing the Information need the encouragement of prl-
vacy in order to be Induced freely to make full dls-
closure, the protection of a privilege should be ac-
corded.
“It Is some such principle that justifies the
modern creation of a number of privileges, all statu-
tory in origin, covering sundry matters required by
law to be reported to some administrative official.”
Wlgmore concludes the above quoted dlscussion of statutory
privilege, in part as follows, supra, at page 801:
“Conclusion. The privilege, when recognized
should . . . be subjected to the following llmlta-
tlons:
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Honorable 0. N. Humphreys, page 5 M-213
“(2) Any statute declaring in general terms
that official records are confidential . . . should
be liberally construed to contain an Implied ex-
ception for disclosure when needed in --
fi7 court of
justice .I’
Article 666-12a(5), and Article 666-15+A(7), Vernon’s
Penal Code, relate generally to the same subject matter, are In
par1 materla, and may therefore be read together where the terms
of one of the sections standing alone might be ambiguous. Pur-
suant to the above reasonin and authority, the limited privilege
described In Article 666-15 EA(7), although not directly applicable
by Its terms to dealings with all types of licensees, may be
deemed to be the type of privilege which was intended In Article
666-12a(5) - i.e.:
11
. . . No such state officer as herein pro-
vided shall make public or use documents or in-
formation derived In the course of examination of
records or documents except In the course of some
proceeding In which the Board or the state is a
party, either judicial in nature or In an action
Instituted to suspend or cancel the permit or to
collect taxes due or penalties for violation of
the laws of this state, or for the Information of
any officer of this state charged with the en-
forcement of its laws.”
In response to your question, you are advised that any
officer of this state charged with the enforcement of its laws
may be shown the notices, orders, records and publications in
custody of the Texas Liquor Control Board, which are made “prlvl-
leged” documents under Article 666-12a(5). Such records, etc.,
may also be produced in the course of some proceeding In which the
Board or the state is a party (either judicial In nature or in an
action instituted to suspend or cancel the permit or to collect
taxes due or penalties for violation of the laws of this state),
and may be presented to the legislature for study in enacting ln-
formed legislation regulating the liquor Industry. The business
information furnished by licensees or obtained by the Board through
inspection of licensed premises i s not to be publicly disclosed
except for such purposes and to such authorized officials except
where such Information has become a matter of public record as a
result of legal proceedings of the nature specified, Including
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- . . .
Honorable 0. N. Humphreys, page 6 M-213
hearings before the Administrator regarding violations of Texae
liquor laws.
SUMMARY
-------
Any officer of this state charged with the
enforcement of its laws may be shown the notices,
orders, records and publications in custody of the
Texas Liquor Control Board, which are made “privi-
leged” documents under Article 666-12a(5), Vernon’s
Penal Code. Such records, etc., may also be pro-
duced in the course of some proceeding In which the
Board or the state Is a party (either judicial In
nature or In an action Instituted to suspend or can-
cel the permit or to collect taxes due or penalties
for vlolatlon of the laws of this state), and may
be presented to the legislature for study In en-
acting informed legislation regulating the liquor
industry. The business Information furnished by
licensees or obtained by the Board through in-
spection of licensed premises Is not to be publicly
disclosed except for such purposes and to such auth-
orized officials except where such information has
become a matter of public record as a result of
legal proceedings of the nature specified, Including
hearings before the Administrator on violations of
Texas liquor laws.
V y truly yours,
d-*G
AW ORD C. MARTIN
Att ney General of Texas
e
Prepared by Larry Craddock
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phllllps, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Dyer Moore
Harold G. Kennedy
Dunklln Sullivan
A. J. Carubbi, Jr.
Executive Assistant
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