_ _- 

Mrs. Mattie Reynolds, Secretary 

State Board of Bairdrsaaerr and Cormetologtatr 

Littlefield Building 

Au&in, Texar 

Dear Madam: opinion No. o-3755 

Re: What papera, correspondence, 

files and booke of the State 

Board of Hairdreaeera and 

Coemetologiets would be considered public records and 

who would be privileged to 

see or examine them? 

Your requeet-for an opinion of this department dated June 2jj 1941, 

requires UB to interpret Section 8 of Article 734b, Vernon’8 Annotated Penal 

Code, in the light of the above question which la contal.ned in your communication. Thia provision of the Penal Code reade a8 follows: 

T’SEiCe 8. The said Board shall keep a record of :,ts proceedingt1. It shall keep a register of applicarts for certiffc&es showing the name of the applicant, the name oz.d locati.on 

of his place of occupation or .buei.ness, ma wkef;ther the applfcant war: granted or refused a certifi.cate. Tte books and recorb of the iBoard sha1.l be prima facie evidence of matters 

therein contained and a’hall constitute public records.” 

The words “papers? correepondencep files an.3 books,” are broad in 

their meaning, and of cour8ep it would be impossible for this department to 

answer specifi.cally by assun:ing the various and descriptive papers, correspondence, fi:.es and books of many kind and character, whi.ch i.n all probability 

are contained in your office. It will be noted that the statute makes the 

“books and rec.ords” public records and our opin:on herein will only treat and 

be concerned with those “books and recoruds” in which the public have an interest. 

In Words and Phrases, Volume 36, Permanent Edition, p0 533, it is said: 

“A ‘record’ is a written memorial made by a public officer authorized by law to perform that function, the memorial 

being intended to 6erve a6 evidence of something written, said 

or done. Knights and Ladies of America v- Weber, 101 Ill. 

App e 4813. ” 
- - . . 

State Board of Hairdressers and Cosmetologiste, Page 2 (O-3755) 

The secti,on of the statute above quoted, requires the Board to keep 

a record of ita proceedings. By this is meant each act or step in the conduct 

of the official bueiness of the Board, including the rules prescribed for its 

acta, and more particularly, the hearing conducted for the examination of applicants. Generally, where papers or correepondence are not read or considered in connection with the proceedings a8 evidence, material to the conduct 

of an examination and the granting or refining of a licenee, the Board would 

not be required to include or by reference or otherwine record them an CL part 

of the proceedinge, conlrtituting the “public record.” The Board 16 not required 

to dlscloee to the public, communications between it and ite own inspectore ’ 

of a secret or confidential nature, not ueed in connection with or incorporated 

in the record. a8 a part of the proceedinga. 

A specific answer therefore to the first part of the question can 

only be determined by the kind and character of each paper, letter, file and 

book, the u8e to which each 18 made, and whether it is material ae a part of 

the proceedin.ge or minutea of the Board. We do not believe that.every paper, 

communication. or book that find.0 ita way to the files or archives of the Board 

constitute a part of the “public record” or doer this act make them 80. 

The fact that the Act makee books and records prima facie evidence 

of matters contained therein “public records,” denotes that they are to be 

opened to the inspection of the public. Generally, the word “public” is used 

In a restrictive Sense and refers only to member8 of the public who can show 

an interest therein. While the minutes of the Board and rule8 promulgated 

possibly concern the public at large, only thoee members who are parties to 

the proceedings in the conduct ~of the examination and their repreeentatives 

are likely to be concerned with or ehow an interest in an applicant’s examination proceedings. 

Juet a8 the word “public” aI to certain recorde la ueed in a restrictive eense, eo the right of inspection of such records la qualified. Texas 

appears to fallow the rule which prevaila in certain jurlsdlctionr to the effect that a person seeking access to public records must have an intereat in 

the record or paper of which inepection is eought, and that the inepection 

must be for 8, legitimate purpose. In the caee of Palacion, et al v. Corbett, 

et al, (Tex. Ct. Civ. App.) 172 S. W. 777, writ refused, the court said: 

“There being no decisions of our own courte upon thin matter, 80 far a8 we have been able to ascertain, we have had recourse to the decisions of the courte of other common-law states, 

and conclude that the opinion of the Supreme Court of Tennessee, 

in the ca8e of State ex rel. Welford v. Willlams, 110 Term. 549, 

75 S. W. 948, 64 L. R. A. 435, constitutes the beet statement of 

the rules of law which should be applied to this character of 

case. We quote from said opinion a8 follows: 

“‘In theory the right of examination is absolute, but in 

practice it is at la& only a matter of discretion, becauee such 

application is likely at any time to be refused on the part of 
State Board of Hairdressers and. Cosmetologiste, Page 3 (O-3755) 

the custodian of the books end papers sought to be examined, and 

then the right must be forced by mandamus, and this writ is not 

of absolute right, but merely of discretion, to be award&d only 

in a proper case; the fact8 claimed ae authorizing ite issuance 

to be judged of in every caee by the court, and the writ to be 

awarded or withheld upon a consideration of all the circumstances 

presented. So, while the right la, in theory, abeolute, yet it 

is in practice 80 limited by the remedy necessary for ita enforcement SB that it can be denominated only a "qualified right.""' 

It ie therefore the opinion of this department that such paperB, 

written memorunda, letters and boo&e evidencing official acte of the Board 

and recorded ae a part of the proceedinge thereof, other than eecret or confidential mat;ers, constitute the "public record" of the State Board of Halrdreesers end Cosmetologists, open to the inepection of members of the public 

or their duly appointed representative a8 they might show an interest therein. 

This does not mean that a person has the right to examine .a11 or a part of 

the records fndiscriminately but he can be required to prove hie interest and 

right of Inspection of that part of the record in which he can show an interest and to thle end, the Board may formulate reasonable rules and regulation6 

under which timely and proper inepectlon may be had In proper caeea. 

APPROVED JUL 12, 1941 

/e/ Grover Sellers 

FIRST ASSISTANT 

ATpORN!ZYGFXVERAL 

Yours very truly 

ATPOPJQXYGENERALOFTEXAS 

By /E/ Urn. J. R. King 

Wm. J. R. King 

Aaeietant 

WJRK:RS:IM 

APPROVED 

OPINION 

COMMITTEE 

BY /8/ BWB 

CBA=