Open Records Decision No. 544
March 19, 1990

	Re:  Whether orders of summary suspension issued by the Texas Alcoholic 
Beverage Commission are excepted from disclosure under the Open Records Act, article 
6252-17a, V.T.C.S.  (RQ-1918)

Mr. Joe Darnall
General Counsel
Texas Alcoholic Beverage Commission
P.O. Box 13127
Capitol Station
Austin, Texas  78711-3127

Dear Mr. Darnall:

	The Texas Alcoholic Beverage Commission received an open records request for 
copies of the commission's orders of summary suspension, which are administrative 
determinations of tax liability issued by the commission that summarily suspend without 
a hearing permits to sell alcoholic beverages.  Suspension orders are issued for failure to 
pay gross receipts liquor taxes or failure to file a gross receipts liquor tax return.  Alco. 
Bev. Code § 202.14(a); see Big D Bamboo, Inc. v. State, 567 S.W.2d 915 (Tex. Civ. 
App.--Beaumont 1978, no writ).  A licensee who disagrees with the order must make 
payment under protest of any taxes due or file all required returns as a prerequisite to 
filing suit.  See Tax Code § 112.051.  Trial of the issues in such a suit is de novo.  Id. 
§ 112.054.  Upon payment of taxes or filing of returns, the suspension is terminated.  
Alco. Bev. Code § 202.14(c).  The commission seeks to withhold these summary 
suspension orders from required public disclosure under section 3(a)(1) of the Open 
Records Act as information deemed confidential by law, specifically section 5.48 of the 
Alcoholic Beverage Code, and the common law right of privacy as incorporated into 
section 3(a)(1) of the Open Records Act.

	Section 5.47 of the Alcoholic Beverage Code provides as follows:

Records of all violations of this code by permittees and licensees, 
records introduced and made public at hearings, and decisions 
resulting from the hearings relating to the violations shall be kept on 
file at the office of the commission in the city of Austin.  The 
records are open to the public.  (Emphasis added.)

	Section 5.48 of the Alcoholic Beverage Code provides as follows:

(a)  "Private records," as used in this section, means all records of a 
permittee, licensee, or other person other than the name, proposed 
location, and type of permit or license sought in an application for 
an original or renewal permit or license, or in a periodic report 
relating to the importation, distribution, or sale of alcoholic 
beverages required by the commission to be regularly filed by a 
permittee or licensee.

(b)  The private records of a permittee, licensee, or other person that 
are required or obtained by the commission or its agents, in 
connection with an investigation or otherwise, are privileged unless 
introduced in evidence in a hearing before the commission or before 
a court in this state or the United States.

	There are previous decisions of this office discussing sections 5.47 and 5.48 and 
the predecessor statute to them, article 666-12a(5) of the Penal Code.  See generally 
Attorney General Opinion M-213 (1968); Open Records Decision Nos. 186 (1978); 94, 
66 (1975); 62 (1974).

	Open Records Decision No. 186 held that the predecessor statute to section 5.47 
of the Alcoholic Beverage Code was intended to make public those records of all 
violations by permittees and licensees that had previously been privileged.  The decision 
held that the phrase "records of all violations of this code by permittees and licensees" 
describes a category of information distinct from "records introduced and made public at 
hearings."  This holding indicates that records of all violations of the Alcoholic Beverage 
Code by permittees are public even if they are not introduced in a hearing.  The 
information at issue in Open Records Decision No. 186 included an order for permit 
suspension, a plea of guilty of administrative offenses, and a waiver of notice and 
hearing.  Records of the violation were determined to be open even though no hearing 
was held.

	Although the suspension addressed in Open Records Decision No. 186 was not a 
summary suspension, the reasoning in Open Records Decision No. 186 is nevertheless 
applicable to the summary suspension orders here.  A summary suspension order under 
section 202.14 is the agency's final determination of tax liability.  Tax evasion and tax 
delinquency clearly constitute a violation of the code, since every permittee has a duty to 
file a tax return under section 202.03, while section 202.05 imposes a civil penalty for 
failure to file a return or pay a tax.  The provision for "records of all violations" in 
section 5.47 is broad enough in scope to include the agency's determination that a 
violation has occurred that is embodied in the summary suspensions for failure to file a 
tax return or pay a tax.  As the summary suspensions are thus records of violations 
specifically made public, they are necessarily not private records of a permittee for 
purposes of section 5.48.

	Summary suspension orders are within the scope of information specifically made 
public by section 5.47.  In making records of violations open, section 5.47 abrogates any 
common-law privacy interest.  Therefore, we conclude that the summary suspension 
orders must be released.

SUMMARY

	Orders of summary suspension issued by the Alcoholic 
Beverage Commission are specifically made public by section 5.47 
of the Alcoholic Beverage Code.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Renea Hicks
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by

David A. Newton
Assistant Attorney General