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                 OFFICE OF THE ATTORNEY GkNEkAL          OF: TEXAS
                                  AUSTIN
     GROVER SELLERS
     L;~XWSNEI GENERAL




      Honorable   S. E. McDonald,    Coridssloncr
      Deptirtment of Agriculture
      Austin,   Texas




             .
                   Your letter   of ret              which you submlt
                                                    rece$ve+t au& given
      our cEresl.ll coaslde




                                               tain findin&s and recom-
                                               ornmlssion, upon proclamn-
                                               es were duly placed in the.
                                                 This proclamation .was
                                          ong”other things,, Article   74;
                                                  “Such proclamation  of the




                             rtment has heretofore prepared a sulk-
      gested forti for complaint a& information      to be used in
      prosecuting   violators,   and Ln the forn so .prcparod appeaiw
      the aJlegation:
                  ”      and since aaid proclamation the Pit&.         .
            Boll W&L 6o&kission of !&xas has not certified
            that the menace of pink boll worms no ?.onfzer
            exlats within said area.   . . .‘I
                    Ronor&ble 3. X. McDonald,,page          2

                            .,
                                  You vish to know whether or not a certificate        of
                     ypitr office   to the effect    the Pit& Boll Worm C~~nls,sl~a’has
                     not, since the Governor’s proclamation        pl&ug    the regulat-
                     ed area into effect,     certified   that the met&e of pink bolls
                    ‘vorms no lamer exists,       would be sufficient    to make proof
                     of the above allegation.

                               The Pink Boll Worn Act has been considered by the ..
                    Court of Crinlnal Appeals in the case of Uilllans     vs. State,
                       . Tex. Cr.. R.      176 5. W. (2d) 177.   The  konstitutioa-
                    mty    of the Act=:    upheld, but the InSoraatiou   in’that    case
                    was held not to charge an offense la that it alleged a viola-
                    tion of a proclamation   of the Commissioner of @iculture,
                    ~the Court saying the Commissioner cannot create au offense.
                    Wo point was made an the particular   inguiry submitted by you.

                               Article   3722,    Revised       Civil     Statutes   of Texas,        1925,
                    reads, as ~Sollowg :

                                 .!!!i!he Secret&    ids State, Attorney Gene&,
                          Zand Commissioner, Comptroller,            Treasurer,  Ad-         ..
                          jutaut General, Commissioner of ‘ngriculJ+ure,
                          CommissFoner bf Iasuronce,          E3atiiD.g Conmissioa~
                          er, and State Ubrarian          shall furnish any person               ‘.
                          applying for the same with a copy OS any paper,
                          documsnt or record in their offices,             and with
                          certificntes        under sesl certifglng;    to any fact
                          contained ‘in the ‘paI)ers. documents or records of
                          thclr~offlces:        and the same shall be received       in
                          ~vidcnce in ell c 8.          i wh h the orid.~
                                 .
                                         ~*UPS(&ha2s
                                           -   l                        o&s)

                                 While the Conititutlon   OS Texas (Article    1, Sec.
                     10) requities in all criminal pcosecutions      that th‘e accused
                     shall be %onSrontcd by the vitnesses       against him,” the
                     Court of Criminal Appeals has, ou at least two occasions,         af-
                     firmed   cases wherein certiFied   copies of documents showing
                     affirmative   Sects have been introduced    in evidence.    Sse
                     koyd vs. State, 114~Tex. Cr. R. 160, 21 3. W. (2d) 7)3 (cer:
                     tified   copy of charter of a bank certified     by banking com!!ls-
                     sioner ; Rx perte Rhoades, 1)12 Tcx. Cl*, R. 632, 155 9. W.
                     (2d) 8-l3 (certified   copy of extradition   papers, certified
                    ,bg Secretary of St’ate).    Whether the State msy prqve the




. . ;,

.&&?y--‘,   .t “h
                                                                            :   663


                                    .:
.Bonor&ble J. E. BkDoaaldk page 3                ’



negtitlve feet th.4 there is ao,record,        as la this case,
3s an entirely    different   natter,   aad one whlch:;we have not
Souad to keve been decided by the State’u hFgh&t Court
h8Viag jwiI3diCtiOa      Of CTitiIiacl cases.~
          &ay precedents have been f&ad wherein our civil
cow$s have.subtalaed  the general rule as stated ia Corpus
curie (22 c. J. 838, 839):

              “30 prove a fact of record without the pro-
    -ductioa of the record Itself,          a duly autheatlcat-
     .ed copy of the record. or so much thereof as re-
      lates to the fact la question is required.               A cer-
      tificate     by a public officer     having the lawful
    :custody of public records as to nay fact appew-                            e ,
      ing oa the records of Ns office           or .as to any con-
      clusion he’my. drew from aa inspection             of the rec-
      ords’ 3.6 aot ‘coinpetsat evidence,      unless made so by
      statute.      A fortlori    the authority    to We      certi-
      fled copies wills not authorize         a ckrtificatioa       ES
      to facts not appeaviag of. rqcord,         or improperly
      inserted therein,        or as to the pwgort       of’ papers
      that are mlssiag from the record-~          So,, in the ab-      :.
      seaco~of 8 statute,        a aegat$vc certificate       by an
      officer    nil1 aot be evidence of the nonappearance
     :Of a fact on the records        ore of the absence of any
      entry, paper, or document from the records of his
      office,    it being said that such negative proof
      requires oral testimony under oath of a oeorch
      mado and of its results.         . . .”

           Texas Jurisprudence       ‘has the foilowing      otstomeat
(17 Tex, ‘Jur.;667,  9.282):

             ‘The fact that there is ao record of an la-
     fstrdaeat may be proved by the testimony of the        .
     officer    having official  custody of the records,
     aad must be so pro&d.       Testimony of private   ln-
     dlvidunls vho have examined the records is inaa-
     tiasible    for that purpone,    The aoaex~~stoace of n
     fact cannot be proved by the certificate       of a pub-
     lit officer     or board unless the statute so pro-
     vldes.”
            .
-Roaorable       J. E. %Boasld,   page 4



            In the case of Hatsoa vs. Texarlcaaa Pipe Works
(Texarkeaa Civ. App.) 257 3. W. 1003, it .was held that a
certificate   of, the secretary   of the Iadustr&l    Accident
Bosrd that the defendant had aot subscribed        for insursnce
under the Workmants Compensation Act, nor provided for com-
peasatioa insuraace,    aor registered    the same with the Boerd,
was not authorized by the statute,      and was not tidmisslble
to prove the ,aoaexistence     of such facts.

           Other Texas cases to the aame general effect:
Edwnrds vs. Berwise, 69 Tex. 84, 6 5. W. 677; Meyers ‘vs.
Joaes, 4 Tex. Civ. App. 330, 23 3. W. 562; Smlthers v .
Lawrence. 100 Tex. 77. 93 S.. W. 1064; Roller Mfg. Co. vs.
Coleman (Tex. Comm. App.) 29 S. W. (2d) 991; Burton vs.
Paw, 53 s. I?.        795; U. s. Fidelity & &.araaty Co. vs.
Inman; 65 S.. W.      339; World Oil Co. vs. Hicks, 75 S. W.
(26) 905 (certified  question on another point)  (Corn. App; )
103 ,JS.
       w. (26)        962.

              Discussing   the rule, W&more on Evidence, 3rd Ed.,
Vol.       p. 749, et seq.,
            Vj                   # 1678, affirms its exlsteuce      and
 says proof of the nonexistence        of a record cannot be made
.by certificate.       At page 754 the author severely     crlticises
 the holdings,     saying:    "It ui3.L so1110day be reckoned as one
 of the most stupid instances. of legs1 pedantry ia our annals.”

            We conclude that in the present state of our law
your certificate    that the Pink Boll Worm Commission has not
etirtified  that- the menace of the pink boll worm no longer
exists in the applicable    counties may be properly made only
by.~direct testimony.    In the case of World Oil Co, vs.
Hicks, iupra, the following    language is approved:

                   %&en a perty’desires  to prove the negative
            fa&t that there is no record,   he must do so in
            the usual vay, -- by the deposition    of the proper
            officer,   or by producing him in court,  so that he
            may be swora and cross-examined   es to the thorough-
            ness of.the   search made.”
       :’
           As’ the case you mention is a criminal prosecution,
of.course  a deposition  would be unnvailable  to the State
(Gsrsa vs. State, 43 Tex. Cr. R. 499, 66 S. W. 1098; Stewart
va. State, 26 S. W. 203; ‘Kerry vs. State, ‘17 Tex. Cr. R.
178, 50~~~1thRep. 122).   The CommU.ssioner of AgrLculture,
                      .

                                                       .
                      Bohorable   3, E. McDoualcI) p&e   5



                      being ex-oPficlo secretary of the Pink Boll Worm Commission
                      (Art. 76, R. C. S.), would be the proper vltgcaa by whom to
- J                   make the @roof meatioaed.

: :.
                                                             Yours very truly

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