C 

December 23, 1986 

Honorable Bob Bullock 

Comptroller of Public Accounts 

L.B.J. State Office Building 

Austin, Texas 78774 

Opinion No. JM-590 

Re: Whether information submitted by a taxpayer in support 

of a request for a refund of 

sales taxes paid is excepted 

from disclosure under the Open 

Records Act 

Dear Mr. Bullock: 

You ask us two questions regarding the applicability of the Open 

Records Act, artikle 6252-17a. V.T.C.S., to certain information in 

your possession and control. Your two questions are as follows: 

1. Is information submitted by a taxpayer in 

support of a request for a refund of sales taxes 

paid excepted from disclosure under the Open 

Records Act? This information includes the 

~identity of the parties to the transaction giving 

rise to the refund and the amount of the 

transaction. 

2. Does a city whose sales tax allocation is 

affected by this refund have any greater right to 

this information than any other person? 

We answer your first question in the affirmative. Such information is 

excepted from required public disclosure under section 3(a)(l) of the 

Open Records Act, article 6252-17a, V.T.C.S. We answer your second 

question in the negative. The act affords the city no greater right 

of access than any other requestor. 

You inform us that a certain home rule city, which imposes a 

sales tax pursuant to article 1066~. V.T.C.S., (Local Sales and Use 

Tax Act). has requested from your office certain information regarding 

a specific sales tax refund. After the city was notified that a large 

tax refund on a single transaction was being offset against that 

city's current sales tax payment, it requested 

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Honorable Bob Bullock - Page 2 (m-590) 

7 

any documentation reflecting the name and address 

of the seller, the total amount of the transaction, as well as any documentation including but 

not limited to working papers of your office, 

whereby [was made] the determination that the 

exemption was valid. 

Section 5(a) of article 1066c, V.T.C.S.. reposes in the 

comptroller the duty to perform all functions incident to the 

administration, collection, enforcement, and operation of the tax. As 

a result, you are in possession of the information which the city 

seeks. 

Section 6(6), article 6252-17a, V.T.C.S., specifically makes 

public "the name , place of business, and the name of the city to which 

local sales and use taxes are credited, if any, for the named person, 

of persons reporting or paying sales and use taxes under the Limited 

Sales, Excise, and Use Tax Act." The information requested, however, 

is much broader in scope. You claim that the requested information is 

excepted from required public disclosure by section 3(a)(l) of the 

Open Records Act which excepts "information deemed confidential by 

law, either Constitutional, statutory, or by judicial decision," 

specifically, section 151.027 of the Tax Code. We agree. 

Section 151.027 of the Tax Code provides the following: 

5151.027. Confidentiality of Tax Information 

(a) Information in or derived from a record, 

report, or other instrument required to be 

furnished under this chapter is confidential and 

not open to public inspection, except for information set forth in a lien filed under this title or 

a permit issued under this chapter to a seller and 

except as provided by Subsection (c) of. this 

section. 

(b) Information secured, derived, or obtained 

during the course of an examination of a 

taxpayer's books, records, papers, officers, or 

employees, including the business affairs, 

operations, profits, losses, and expenditures of 

the taxpayer, is confidential and not open to 

public inspection except as provided by Subsection 

(c) of this section. 

(c) This section does not prohibit: 

p. 2637 
Honorable Bob Bullock - Page 3 ,(JM-590) 

(1) the examination of information, if 

authorized by the comptroller, by another state 

officer or law enforcement officer, by a tax 

official of another state, or by an official of 

the United States if a reciprocal agreement 

exists; 

(2) the delivery to a taxpayer, or a taxpayer's authorized representative, of a copy of 

a report or other paper filed by the taxpayer 

under this chapter; 

(3) the publication of statistics classified to prevent the identifications of a particular report or items in a particular report; 

(4) the use of records, reports, or 

information secured, derived, or obtained by 

the attorney general or the comptroller in an 

action under this chapter against the same 

taxpayer who furnished the information; or 

(5) the delivery to a successor, receiver, 

executor, administrator, assignee, or guarantor 

of a taxpayer of information about items 

included in the measure and amounts of any 

unpaid tax or amounts of tax, penalties. and 

interest required to be collected. (Emphasis 

added). 

This office has already declared in an earlier cpinion, Attorney 

General Opinion H-223 (1974), that the predecessors to section 151.027 

of the Tax Code, articles 1.031 and 20.11(G) of Title 122A, V.T.C.S., 

brought the information specified therein within the section 3(a)(l) 

exception. The opinion concluded that the comptroller is not 

prohibited from disclosing the fact that an individual has requested a 

redetermination or claim for refund hearing, but he is prohibited from 

disclosing facts about that taxpayer's business affairs. The 

comptroller may disclose his resolution of the issues raised in such 

administrative hearings, but he must not do so in a manner that will 

make possible identification of the individual taxpayer ,involved. In 

Attorney General Opinion H-661 (1975). this office further concluded 

that section 151.027's predecessor statute prohibits the comptroller 

from releasing information as to the amounts of the tax paid by a 

particular taxpayer, nor may he release the amount of tax in 

controversy in an administrative hearing prior to making a final 

determination if doing so would indicate the amount of the taxpayer's 

gross sales. Accordingly, we answer your first question in the 

affirmative. With the exception of the information specifically made 

p. 2638 
Honorable Bob Bullock - Page 4 (J-M-590) 

public by section 6(6) of the Open Records Act, the information 

requested of you is excepted from disclosure by section 3(a)(l) of 

article 6252-17a. 

Your second question asks whether a city whose sales tax revenue 

is affected by a decision of your office has any greater right of 

access to information regarding that decision than any other 

requestor. It is suggested that such a city does. It is suggested 

that you stand in a fiduciary relationship with each city for which 

you administer a local tax, that you act as agent and that each city 

stands in the position of a principal. The argument concludes that, 

since a fiduciary is under a duty of disclosure to that party for whom 

he acts as fiduciary, any disclosure by you to such city would not 

constitute a public disclosure of such records. We do not 

characterize the relationship which exists between you and each city 

for which you administer such a local tax to be one of principal and 

agent. We further conclude that neither the Open Records Act nor any 

other statute confers upon a city for which you administer a local tax 

any special right of access not enjoyed by any other requestor. 

Generally, "agency" is defined as the legal relationship, based 

upon an express or implied contract of the parties or created by 

operation of law, by virtue of which one party. _ the agent. is 

authorized to act for the other party, who is the principal. -See -s 

V. Eikenberry. 122 S.W.2d 1045 (Tex. 1939); Thompson V. Schmitt, 274 

S.W. 554 (Tex. 1925). A basic test of agency is the right of the 

principal to control the actions of his agent. Vahlsing Christina 

Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex. Civ. App. - 

Corpus Christ1 1974, writ ref'd n.r.e.). No agency relationship can 

be said to exist unless the actions of the alleged agent are within 

the control of the principal. First National Bank of Mineola V. 

Farmers and Merchants State Bank of Athens, 417 S.W.2d 317 (Tex. Civ. 

APP. - Tyler 1967, writ ref'd n.r.e.). In this instance, the 

comptroller cannot be said to be an agent acting under the direction 

or control of any principal. Indeed, neither the city nor the 

comptroller can be said to be acting at the control or discretion of 

the other. See V.T.C.S. art. 1066~; Tax Code ch. 151. - 

As to any general fiduciary duty owed by the comptroller, such 

duty would appear to be owed to the state generally rather than to any 

individual city in particular. Though public officers are for some 

purposes agents of the public and of the policy that they represent, 

Kopecky V. Yoakum, 52 S.W.2d 240, judgment adopted (Tex. Comm'n App. 

1932); City of Hallettsville V. Long, 32 S.W. 567 (Tex. Civ. App. 

1895, no writ), they are agents whose duty and authority are defined 

and limited by law. Id.; see also Bayha V. Carter, 26 S.W. 137 (Tex. 

Civ. App. 1894, no writ). An officer must look to that act by which 

his office is created and its duties are defined in order to ascertain 

the extent of his powers and the scope and nature of his duties; he 

p. 2639 
Honorable Bob Bullock - Page 5 (JM-590) 

may not transcend the former nor Vary the prescribed mode of 

performance of the latter. Crosthwait v. State, 138 S.W.2d 1060 (Tex. 

1940). We find no provision in any relevant statute which places the 

comptroller in some sort of fiduciary relationship with the cities 

whose local sales tax he must administer. 

Finally, it is suggested that the relationship, by whatever term 

it is called, which exists between the comptroller and each city for 

which he administers the local tax confers upon such a city a special 

right of access under the Open Records Act to the requested information. We disagree. The act itself confers no implied right of access 

upon any requestor. See Attorney General Opinions MW-381 (1981); 

Mu-95 (1979); Open Records Decision Nos. 330 (1982); 288 (1981). 

Accordingly, we answer your second question in the negative; the city 

whose sales tax revenue is directly affected by your decision 

regarding a refund has no greater right to this information than any 

other requestor. 

Although a long line of Attorney General Opinions and Open 

Records Decisions have concluded that information may be transferred 

between governmental agencies which are subject to the Texas Open 

Records Act without destroying its confidential character, Attorney 

General Opinions H-917, H-836 (1976); H-242 (1974); M-713 (1970); Open 

Records Decision Nos. 272 (1981); 183 (1978). this principle has never 

been applied where a statute makes such information confidential. 

Section 151.027 of the Tax Code enumerates those entities to which the 

information may be disclosed; an affected municipality is not 

included. The express mention or enumeration of one person, thing, 

consequence, or class is tantamount to an express exclusion of all 

others. State V. Mauritz-Wells Co.. 175 S.W.2d 238 (Tex. 1943); 

Federal Crude Oil Co. V. Yount-Lee Oil Co., 52 S.W.2d 56 (Tex. 1932). 

We conclude therefore that you may not transfer this information to 

such a city in return for a promise of confidentiality. 

SUMMARY 

Information received by the Comptroller of 

Public Accounts pursuant to article 1066c, 

V.T.C.S., (Local Sales and Use Tax Act) and 

chapter 151 of the Tax Code is excepted from 

required public disclosure under the Open Records 

Act by section 3(a)(l) of the act and by section 

151.027 of the Tax Code. 

A city whose sales tax revenue is affected by a 

decision made by the comptroller of public 

accounts regarding a sales tax refund has no 

greater right of access than does any other 

requestor under the Open Records Act ~to 

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Honorable Bob Bullock - Page 6 (JM-590) 

information in the custody of the comptroller 

concerning that refund. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 2641