The opinion
THEA NEY GENERAL
TEXAS
August 8, 1951
Hon. Coke R. Stevenson, Jr. Opinion No. V-1231
Administrator
Texas Liquor Control Board Re: Authority of the Liquor
Austin, Texas Control Board to issue a
commission to take the
deposition of a witness on
application of a licensee
for use in a Board hearing
on license suspension or
Dear Sir: cancellation.
Your re.quest for an opinion from this office recites that
a licensee has been cited to show cause why her license should not
be cancelled or suspended. Her attorney has requested that the
Liquor Control Board, or the Administrator, issue a commission
to take depositions of a number of witnesses whose affidavits will
be used before the Board so that licensee may thereby have an op-
portunity to cross-examine them.
You quote from Article bbb-7, V.P.C., as the only known
provision for the Board to take depositions. Your letter concludes:
“‘It is the opinion of the writer that the powers and
authorities granted in the above section [Article] only
apply when the Board, Administrator, or inspector is
acting on behalf of the Board and undertaking to ferret
out violations of the Act. It is my further opinion that
the above quoted section [Article] does not contemplate
nor authorize the Board, Administrator, or inspector
to issue a commission authorizing the taking of deposi-
tions by a licensee nor could the Board enforce the at-
tendance of any witnesses, except to appear before the
Board, Administrator, or any inspector.
“Your valued opinion as to whether or not the Board,
Administrator, or an inspector of the Board would be
authorized to issue a commission in order for the above
. -1
Hon. Coke R. Stevenson, Jr., Page 2 (V-1231)
licensee to examine or cross examine any particular
witness will be greatly appreciated.”
Article 666-7 provides:
“The Board, the Administrator, and any inspec-
tor under the direction of the Board, shall, for the pur-
poses contemplated by this Act, have power to issue
subpoenas, compel the attendance of witnesses, admin-
ister oaths, certify to official acts, take depositions
within or without the State of Texas, as now provided
by law, and compel the production of pertinent books,
accounts, records, documents, and testimony.
“If a witness in attendance before the Board or
one of its authorized representatives refuses with=t
reasonable cause to be examined or to answer a legal
or pertinent question, or to produce a book, record,
or paper when ordered to do so by the Board, the
Board may apply to the Judge of the District Court of
any county where such witness is in attendance, upon
proof by affidavit of the fact, for a rule or order re-
turnable in not less than two (2) nor more than five (5)
days, directing such witness to show cause before the
Judge who made the order, or any other District Judge
of said county, why he should not be punished for con-
tempt; upon the return of such order the Judge before
whom the matter shall come for hearing shall ex-
amine under oath such witness or person, and such
person shall be given an opportunity to be heard;and
if the Judge shall determine that such person has re-
fused, without reasonable cause or legal excuse, to
be examined or answer a legal or pertinent question,
or to produce a book, record or paper which he was
ordered to bring or produce, he may forthwith punish
the offender as for contempt of court.
“Subpoenas shall be served and witness fees and
mileage paid as in civil cases in the District Court
in the county to which such witness shall be called.
Witnesses subpoenaed at the instance of the Board
shall be paid their feesand mileage by the Board out
of fupds herein appropriated.” [Emphasis Supplied.]
.
Hon. Coke R. Stevenson, Jr., Page 3 (V-1231)
The purpose of a hearing to determine the propriety
of a cancellation or suspension of a license or permit is pri-
marily to determine the true facts in order to guide the Board
in taking proper action. Thus, in its capacity as an impartial
tribunal, the Board should attempt within reasonable limits to
procure all available evidence, both favorable and unfavorable
to the licensee whose conduct or status is in question. One
of the most effective methods of eliciting the whole truth from
’ a truthful witness and of impeaching the testimony of an un-
truthful or irresponsible witness is by cross-examination. It
is to the interest of the Board, where feasible, to foster the
exercise of the technique of fair cross-examination of witnesses
in matters before it to the end that the Board will arrive at a
proper decision in each hearing.
The necessity for informality has to some extent modi-
fied the availability of opportunity to cross,-examine witnesses
in administrative proceedings, and relatively summary adminis-
trative action is usually upheld.
This does not establish an absence of intent on the part
of the Legislature to empower’ the Board to provide for a more
thorough and complete ‘examination in conducting its quasi-
judicial proceedings. On the contrary, Article 666-7 is designed
to implement the Board’s investigatory and regulatory responsi-
bilities with power to require the production of evidence before
it in much the same fashion as a court of law. The powersgranted
there are powers incident to the functions of a tribunal. The pow-
er to “take depositions,” in our opinion, authorizes, the Board
to take whatever steps it deems appropriate to authorize the ex-
amination of witnesses who may not be available to appear in
personat a hearing and to have the testimony reduced to written
form for transmittal to the Board for its information.
Article 666-7 empowers the Board to take depositions
within or without the State of Texas ‘&as now provided by law.”
This means, in our opinion, that the Board may provide for the
issuance of commissions for the taking of depositions in the
same general manner as in court proceedings. Accordingly,
the Board is authorized to order the taking of depositions at the
instance of any party to’a proceeding before it, just as a court
may order the taking of depositions upon application of any party
to a suit. The rule-making power of the Board affords ample
authority on the part of the Board to modify deposition procedure
. ‘_
Hon. Coke R. Stevenson, Jr., Page 4 (V-1231)
to meet the peculiar requirements of administrative processes.
You suggest that Article 666-T may only apply when
the Board, Administrator, or inspector is acting on behalf of
the Board and undertaking to ferret out violations of the Act.
That is correct when it is considered that cancellation and sus-
pension hearings are but an extension of the process of investi-
gation by the Board or Administrator. An order to take a depo-
sition is issued both on the authority of the Board and on behalf
of the Board in furthering its duty to exhaust available sources
of information. That the deposition action is initiated by an in-
terested party does not make it any less an action on behalf of
the Board. The efforts of interested parties, pro and con on the
issue before the Board, often provide the Board with its most
pertinent and forceful evidence.
You are therefore advised that the Board, its Admin-
istrator, or an inspector under the direction of the Board is
authorized to issue a commission for the taking of a deposition
in order for a licensee to examine or cross-examine a witness
whose testimony is before the Board in affidavit form, or whose
testimony may shed additional light on the investigation We do
not infer that depositions may be taken in any situation as a mat-
terof right. The propriety of authorizing the taking of a deposi-
tion is a matter addressed to the sound discretion of the Board.
SUMMARY
Article 666-7, V.P.C., empowers the Texas Liquor
Control Board, in its sound discretion, to authorize the
taking of a deposition of a witness to matters before it
in a hearing to determine whether a liquor permit should
be cancelled or suspended.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews Ned McDaniel
First Assistant Assistant
NMcD:mf