Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 1968
Status
Published
On the bench
Crawford Martin
Cited by
0 cases

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

- 1021-

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

- 1022 -

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.

- 1023 -

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:

- 1024 -

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

- 1025 -

- . . .

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

- 1026 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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