Untitled Texas Attorney General Opinion ( 1974 )

AUIBTIN. TIEXA% 78711
The Honorable H. Q. Sibley, D. V. hf. Opinion No. H- 305
Executive Director, Texae Animel
Health Commirrion Re: Murt the Commierion
1020 Sam Houston State Office Bldg. furnish copier of official
Auetin, Texas 78701 document8 to lttorneyr in
law ruit e not involving the
Commirrion?
Dear Dr. Sibley:
The facte involved in thie file indicate that one Jamee Hazelwood
purchased a herd of cattle rometime prior to March 31, 1971, with
the eale conditioned, in part, upon Mr. Hawelwood having the cattle
inrrpected for bruoellorir.
Mr. Haselwood requested your Commirrion to perform the tnrpection
and in fact such an inrppction wae performed on March 31, 1971. Many of
the cattle were found to be infected and there factr were made known to
Mr. Hazelwood.
Mr. Hazelwood ie now in litigation with the perron who rold the cattle
to ‘him and has. requeeted that you furnirh him with copier of documente
in your office, and, more epecifically:
(1) a copy of the brucelloair quarantine
(2) the date of the teetn
(3) the report of the laboratory or chemical analyrir run on the herd
and the number of reactore found
(4) a copy of the quarantine release
p. 1414
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The Honorable H. Q. Sibley page 2 (H-305)
(5) any prior tests. communications or other documentr you may
have received prior to the quarantine in question regarding
the brucellorris condition in the subject herd.
He hae particularly asked that the documents be chfied am,to their
authenticity so that he might present them into evidence in the lawsuit
without the necessity of taking depositions, etc. He specifically cited
to ,you Article 373la of the Texan Revised Civil Statutem which provides
in applicable part:
“Section 1. Any written instrument. certificate,
record, part of record, return, report, or part
of report, made by an officer of this State or of ”
any governmental subdivision thereof, or by him
deputy, or person or employee’under hia wper-
vision, in the performance of the function8 of Wir
office and employment, shall be, 10 far as relevant,
admitted in the court8 of this State am evidence of .
the matter stated therein, rubjsct to the provirionr
in Section 3. I’
Section 3 requirer advance notice to the adverre party.
Section 4 provides in part:
‘Yguch writings may be evidenced by an official
publication thereof or by a copy attested by the
officer having.& legal curtody of the record, or by
hiB deputy. Except in the case of a copy of an
official writing from a public office of thin State
or a rubdivision thereof, the attestation &all
be accompanied with a certificate that the atterting
officer har the legal custody of ouch writing. . , .
All such attested and certified inrtrumentr and
the contents of the certificate and the title of the
person making same, #hall be evidence of the
p. 1415
The Honorable H. Q. Sibley page 3 (H-305)
mattern, atatements, reprerentatione and
title contained therein. ‘I
The quertion you have eubmitted to u6 ir:
“Does the Commission have to ftirnish copies
of official documentr (eg., teet rhartr, quarantines)
to attorneye when there ir i lawruit involved.which
doee not involve the Commieeion? ‘I
We have not treated thir a@ a requert, for 6 decieion under Section 7,
Article 6252-17a, V. T. C. S., the Open Recordr,Act. It ir our opinion
that, whether or not the information which .Mr. Hatrelwwaod reeks would be
available ae public information under that Act, clearly he in entitled to
it. There are circumetancrr under which a record, though public in the
renee that it ie maintained by a public agency, ie not public in the renre
that. it ir to b,e made available to any perron wki wilhee to eee it.
Nevertheless, such recordm may be reviewed mnd bra accermtble to a
particular perron tnvol*ed, Morrim v. Hoerrter, 377 S.W.2d 841 (Tex.
Civ. App., Aurtin, 1964, &writ); Gpen Record@ Decirio,n No. 24 (1974).
The prerence of brucellorir in a herd of cattle IB a reriour mrtter and
our rtatuter, particularly Article 7014f-1, V. T. C. S. , give your Commimrion
broad powerr to determine the diepoeition to be made of ruch animal& See
Attorney General Opinion H-148 (1973).
It is our opinion that Mr. Hazelwood lhould have accemm to your filea
by +ich it wae dete,rmined that his cattle were infected. Gpen Record0
Decision No. 24 (1974). Attorney General Opinion No. 249 (1974).
While you ma;y do no, we know of no rtatute, however, that would
require you to furnish him an authenticated copy of your recordm l e pro-
vided in Article 37310, V. T. C. S., or certified copy under Article 3731,
V. T. C. S. Nor do the provisions of Section 24 of Article 7014f-1, V. T. C. S.,
that any written instrument issued by the Commission shall be admirrible
as evidence when certified, require that either you or the Commtmmion
certify. Of course, Mr. Haeelwood’r attorney can proceed under the
p. 1416
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The Honorable H. Q. Sibley page 4 W3Q5)
various discovery ruler of the Texae Ruler of CivU Procrdure to develop
thin evidence for trial purporee under rubpoena,
SUMMARY
Records of the Texam Animbl Health Gommiarioq
concerning an examination made of a herd of cattle
for brucellorie are subject to inrpection by tho moper
of the herd. It is not mandatory, however, that the
Commission authenticate or certify the recordr.eo
that they maT.bs ldmieeible upcn & trial of a
lawruit growin out of the purchred..of the herd.
Very truly yourr,
Attorney Geaeral of Texam
AEPRPVED: .
Opinion Committee
p. 1417