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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