Untitled Texas Attorney General Opinion ( 1941 )

_ _-
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 con-
sidered 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 communica-
tion. Thia provision of the Penal Code reade a8 follows:
T’SEiCe8. The said Board shall keep a record of :,ts pro-
ceedingt1. It shall keep a register of applicarts for certiff-
c&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 applf-
cant war: granted or refused a certifi.cate. Tte books and rec-
orb 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, corres-
pondence, 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 offi-
cer 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.”
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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 ap-
plicants. Generally, where papers or correepondence are not read or consid-
ered 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 CLpart
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 examina-
tion proceedings.
Juet a8 the word “public” aI to certain recorde la ueed in a restric-
tive eense, eo the right of inspection of such records la qualified. Texas
appears to fallow the rule which prevaila in certain jurlsdlctionr to the ef-
fect 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 mat-
ter, 80 far a8 we have been able to ascertain, we have had re-
course 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 enforce-
ment 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 con-
fidential mat;ers, constitute the "public record" of the State Board of Halr-
dreesers 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 inter-
est and to thle end, the Board may formulate reasonable rules and regulation6
under which timely and proper inepectlon may be had In proper caeea.
Yours very truly
APPROVED
JUL 12, 1941 ATPOPJQXYGENERALOFTEXAS
/e/ Grover Sellers
FIRST ASSISTANT By /E/ Urn. J. R. King
ATpORN!ZYGFXVERAL Wm. J. R. King
Aaeietant
WJRK:RS:IM
APPROVED
OPINION
COMMITTEE
BY /8/ BWB
CBA=