Did circulating a Texas mixed beverage permit application among county and city officials make it a public record?

Texas AG Opinion JM-1235: Mixed Beverage Permit Records

Plain-English summary

A mixed beverage permit application had to collect several signatures before it was complete: a waiver of notice from the county judge, certificates from the city and county clerks on local ordinances and wet/dry status, and a certificate from the state comptroller on sales tax status. The applicant filed the form with the Texas Alcoholic Beverage Commission, which then circulated it among the officials who had to sign. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

The chairman of the Senate Economic Development Committee asked whether that routing turned the form into a public record, and whether it violated section 5.48(b) of the Alcoholic Beverage Code, which makes certain permit application information privileged. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

The Attorney General said no on both counts. Under settled Open Records Act practice, information can be transferred to certain persons and entities without waiving an exception. A transfer from one governmental agency to another does not destroy the protected character of the information so long as each agency is authorized to possess it, and information may also move between individuals within a governmental body without losing confidential status. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

So the forms could be distributed among particular public officials without becoming public and without violating section 5.48. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What parts of a permit application were confidential?

Section 5.48 defined "private records" as 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 on importation, distribution, or sale of alcoholic beverages required to be regularly filed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Does "privileged" in the Alcoholic Beverage Code mean the same as "confidential"?

In this context, yes. The opinion said "privileged" has been held to mean "confidential" for Open Records Act purposes, citing Open Records Decision No. 186 (1978). A footnote added that whether "privileged" means "confidential" must be determined from the context, comparing Open Records Decision No. 384 (1983) with No. 290 (1981). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Why didn't sharing the form with other officials waive confidentiality?

Because a transfer between governmental agencies does not destroy the protected character of information so long as each agency is authorized to possess it. The opinion cited Attorney General Opinions H-917 (1976) and H-242 (1974), and Open Records Decision No. 272 (1981), plus No. 468 (1987) for transfers between individuals within a governmental body. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Which officials could receive the form?

The summary named a county judge, city and county clerks, and the state comptroller as examples of the particular public officials among whom the forms could be distributed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Background and statutory framework

Section 3(a)(1) of the Open Records Act excepted from disclosure information deemed confidential by law, whether constitutional, statutory, or by judicial decision. That exception was the hook for treating the application material as protected. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Subsection (b) of section 5.48 provided that the private records of a permittee, licensee, or other person 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 Texas or the United States. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

The opinion also pointed generally to Open Records Decision No. 544 (1990). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Citations and references

• V.T.C.S. art. 6252-17a, § 3(a)(1) (Open Records Act)
• Alcoholic Beverage Code § 5.48
• Attorney General Opinions H-917 (1976); H-242 (1974)
• Open Records Decisions Nos. 186 (1978); 272 (1981); 290 (1981); 384 (1983); 468 (1987); 544 (1990)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1235
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1235.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

October 17, 1990

Honorable O. H. "Ike" Harris
Chairman
Economic Development Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1235

Re: Whether application forms for mixed beverage permits may be distributed among certain public officials (RQ-2128)

Dear Senator Harris:

You have requested our opinion as to whether application forms for mixed beverage permits may be distributed among certain public officials without thereby making such forms public under the Open Records Act, article 6252-17a, V.T.C.S.

Section 3(a)(1) of the Open Records Act excepts from disclosure "information deemed confidential by law, either Constitutional, statutory, or by judicial decision." Section 5.48 of the Alcoholic Beverage Code provides:

(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 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.

See generally Open Records Decision No. 544 (1990).

You explain that each application furnishes "space for waiver of notice by the county judge, certificates of the city and county clerks as to compliance with ordinances and the wet/dry status, and [a] certificate of the state comptroller as to sales tax status." You explain that the applicant files the form with the Texas Alcoholic Beverage Commission (TABC) and that the TABC then circulates the application among the officials who must sign it. You inquire as to whether this practice violates section 5.48(b) of the Alcoholic Beverage Code, which denominates as "privileged" certain information contained in a permit application. "Privileged" in the context of this statute has been held to mean "confidential" for purposes of the Open Records Act. Open Records Decision No. 186 (1978).1

1. Whether "privileged" means "confidential" must be determined from the context. Compare Open Records Decision No. 384 (1983) with Open Records Decision No. 290 (1981).

It is well established that pursuant to the Open Records Act, there are persons and entities to which information may be transferred without waiving any exception under the act. A transfer of information from one governmental agency to another does not destroy the protected character of the information so long as each agency is authorized to possess that information. Attorney General Opinions H-917 (1976); H-242 (1974); Open Records Decision No. 272 (1981). Information may also be transferred from one individual to another within a governmental body without losing its confidential status. Open Records Decision No. 468 (1987).

Accordingly, we hold that application forms for mixed beverage permits may be distributed among particular public officials without thereby making such forms public under the Open Records Act and without violating section 5.48 of the Alcoholic Beverage Code.

SUMMARY

Application forms for mixed beverage permits may be distributed among particular public officials, e.g., a county judge, city and county clerks, and the state comptroller, without thereby making such forms public under the Open Records Act, article 6252-17a, V.T.C.S., and without violating section 5.48 of the Alcoholic Beverage Code.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General