Untitled Texas Attorney General Opinion ( 1965 )

Honorable R. L. Coffman Opinion Ro. C-501
Administrator
Texas mployment Commission Re: Requisites for issuance,
Austin, Texas service, and enforcement of
Commission subpoenasunder
Dear Mr. Coffman: Article 5221b-g(g),V.C.S.
You have requested our opinion relative to five questions,
and we will discuss and answer them in a different order from
which you stated them, in order to more clearly develop the
subject.
One of the questions propoundedby you in your opinion re-
quest was whether Article 5221b-g(g),V.C.S., authorized the
filing of criminal proceedings or merely prescribes the penalty
to be assessed in contempt proceedings in connectionwith a
court order commanding obedience to the Commission's subpoena.
The cardinal rule of statutory interpretationis to ascertain
the intent of the Legislatureafter reading the statute as a
whole and in light of past laws. Article 5221b-g(g)provides
as follows:
macy "') Subpoenas: In case of contu-
or refusal to obey a subpoena
issued iy a member of the Commission
or any duly authorized representative
thereof to any person, any County or
District Court of this State within
the jurisdictionof which the inquiry
‘iscarried on or within the jurisdic-
tion of which said uerson guilty of
contumacv or refusal to ob& is-found
or residks or transacts business,
application by the Commission or iF=-
s
duly authorized representative,shall
have jurisdictionto issue to such
erson an order requiring such person
representative,there to produce evi-
denceif so ordered or there to give
touching the matter under
i5%%Y- gation or in question; and any
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Hon. R. L. Coffman, page 2 (C-501)
failure to obey such order of the court
may be punished by said court as a
contempt thereof. Any person who shall
without just cause fail or refuse to
attend and testify or to answer any law-
ful inquiry or to produce books, papers,
correspondence,memoranda, and other
records, if it is in his power so to do,
in obedience to a subpoena of the Com-
mission, shall be punished by a fine of
not less than Two Hundred Dollars ($200),
or by imprisonmentfor not longer than,
sixty (60) days, or by both such fine
and imprisonment,and each day such vio-
lation continues shall be deemed to be a
separate offense." (Rmphasisadded)
After reading Section (g) of Article 5221b-9 as a whole, it is
clear that the Legislaturemerely intended to prescribe a penalty
to be assessed in contempt proceedings in connectionwith a court
order commanding obedience to the Commission'ssubpoena rather
than authorizingthe filing of criminal proceedings.
The third question in your opinion request was whether mis-
demeanor charges may be filed under Article 5221b-g(g) in cases
where the subpoena is not signed by three (3) Commissioners
who comprise the Texas Employment Commissionbut rather by duly
authorized representatives. In light of our holding above, we
feel this question is not germane since misdemeanor charges
are not authorizedby the Act.
You also asked whether a witness fee must be tendered with
service of the Administrativesubpoena and in answer thereto
we would again direct your attention to Article 5221b-9, and
state that this Act does not provide for tender of any witness
fee. Therefore, it is the opinion of this office that no
witness fee need be tendered with service of the Administrative
subpoena.
The first question asked by your opinion request was whether
a subpoena issued under Article 5221b-9 may be lawfully served
by someone other than a peace officer. Article 5221b-9 does
not directly provide who may serve such a subpoena.
It is elementarythat in determininglegislativeintent one
should look to the entire act and all of its terms. Barber v.
Giles, 146 Tex. 401, 208 s.w.2a 553 (1948); Mason v. Q est Texas
fnmties Co., 150 Tex. 18, 237 s.w.2a 273 (1951 R d Waco,
. . 247 (Tex.Civ.App.1949, error ref.). 'it zi aI;o
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Hon. R. L. Coffman, page 3 (C-501)
elementarythat in determininglegislativeintent one should look
to the history of the legislationfinquestion. 53 Tex.Jur.2d
252. In light of these two rules of interpretationit should be
noted that subsection (f) of Article 5221b-g,,V.C.S.,was amended
by the 59th Legislature of the State of Texas. Subsection (f)
of Article 5221b-9, V.C.S., prior to amendment provided as follows:
"(f) Oaths and Witnesses: In the
discharge of the duties imposed by this
Act, the chairman of an appeal tribunal
and any duly authorized representativeor
member of the Commission shall have power
to administer oaths and affirmations,take
depositions,certify to official acts, and
issue subpoenas to compel the attendance
of witnesses and the production of books,
papers, correspondence,memoranda, and
other records deemed necessary as evidence
in connectionwith a disputed claim or
the administrationof this Act."
Subsection (f) as amended by Chapter 150 of the 59th Legis-
lature provides as follows:
"(f) Oaths and Witnesses: .
Notwithstandingthe provisions of'Article
3912e, Vernon's Texas Civil Statutes, or
anv other nrovision of the laws of this
It is therefore the opinion of this office that a sheriff
or constable would be the proper person to lawfully serve the
administrativesubpoena in question.
Your fifth uestion was whether the punishment provided in
Article 5221b-97g), V.C.S., is unconstitutionaland in answer
thereto we state that we are unable to find any ground on which
this provision could be held unconstitutional.
SUMMARY
1. Article 5221b-g(g),V.C.S., prescribes the
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Hon. R. L. Coffman, page 4 (C-501)
penalty to be assess.edin contempt pro-
ceedings in connectionwith a court
order commanding obedience to the Com-
mission's subpoena.
2. A witness fee need not be tendered with
service of the administrativesubpoena.
3. The administrativesubpoena authorized
under Article 5221b-g(g),V.C.S., should
be served by a sheriff or constable.
4. The punishment provided by Article 5221b-
9(g), V.G.S., is constitutional.
Yours very truly,
WAGGONRRCARR
Attorney General of Texss
torney General
JPB:sss
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Brandon Bickett
Robert Norris
Howard M. Fender
APPROVED FOR TRE ATTORNEY GENRRAL
BY: T. B. wright
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