          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
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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.]
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      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
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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


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