Honorable 0. N. Humphrey8 

Acting Administrator 

Opinion No. M-213 

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 privlleged . . .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 publications authorized or required by the terms of this 

Act shall be prlvile ed 

that in all su di 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, 

bonds, 

and all rules, regulations, orders, audits, 

contracts, or other instruments relating to 

or connected with any transaction had between the 

Board and any person, when certified by the Administrator or Chairman of the Board to be true copies 

of the originals on file with the Board and authentlcated 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 degree 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 lnstrument, 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 published 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 regulation and the publication thereof, without further proof of such promulgation, adoption, or 

publication and without further proof of Its contents 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 qualifled privilege was Intended by the Legislature In the above 

quoted provision, and, if only a qualified privilege was lntended, 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 intended 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 prlvlleged category D 

It is equally apparent that the legislature did not intend 

(through making reports, etc ., privileged) to prevent the contents 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 officeand 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 

7 

islature 

through Article 666-12a 5). 

In making records, etc., prlvlle~~-d 

The public interest In efficient regu 

latlon of the liquor Industry may be effectively served by encouraging, to the extent possible consistent with the Act’s purposes 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 considerations 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 necessary 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 possessing the Information need the encouragement of prlvacy in order to be Induced freely to make full dlsclosure, the protection of a privilege should be accorded. 

“It Is some such principle that justifies the 

modern creation of a number of privileges, all statutory 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 llmltatlons: 

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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 exception 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. Pursuant to the above reasonin 

E 

and authority, the limited privilege 

described In Article 666-15 A(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 provided shall make public or use documents or information 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 enforcement 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 “prlvlleged” 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 lnformed 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 “privileged” documents under Article 666-12a(5), Vernon’s 

Penal Code. 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 vlolatlon of the laws of this state), and may 

be presented to the legislature for study In enacting informed legislation regulating the liquor 

industry. The business Information furnished by 

licensees or obtained by the Board through inspection of licensed premises Is 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 

hearings before the Administrator on violations of 

Texas liquor laws. 

V y truly yours, 

e 

d-*G 

AW ORD C. MARTIN 

Att ney General of Texas 

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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