Untitled Texas Attorney General Opinion ( 1968 )

Arrxlrrs. TEXAS 78711
October 22, 1968
Honorable Robert S. Calvert
Comptroller.of Public Accounts
Austin, Texas
Attention Mr. Kenneth I. Kimbro
Opinion No. M- 293
Re: Whether the Comptrolleris au-
thorized to furnish copies'of
certain franchise tax reports
r to the State SecuritiesComplis-
sioner upon hi& request and'for
his necessary informationand
use in enforcing the securities
laws of the s,tatewith which he
:Dear&k. Calvert: is charged.
Your recent letter requests an opinion as to whether
the Comptroller1s~authorized to furnish cop,lesof,certain
franchise tax reports to the State Securities Commissioner
upon his request and for his necessary informationand use
in enforcing the securities laws of the State, the enforce-
ment of which Is hissduty.
You sa he 'quotesas his authority for his request
Article 581-2 5 , Vernon's Civil Statutes, which reads, in
part, as follows:
II
In the course of an Investiga-,
tion looIk& to the enforcementof this act,
or in connectionwith,the application of a
person or company for registrationor to
qualify ,seeurities,the Commissioneror
Deputy Commissionershall have free access
to all records of the Board of Insurance
Commissioners,including company examina-
tion reports to the Board and reports of spe-
cial Investigationsmade by personnel of
the Board, as well as records and reports
of and to any other departmentor agency of
the state government 0 0 0" (Emphasisadded.)
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Hon. Robert S. Calvert, page 2 (M-295)
In your request you quote, in part, from Article
12.10, Title 122A, Taxation-General,'Vernon's Civil Statutes,
as ,follows:
"Art. 12.10 Reports Confidential
"Reportsmade under Articles 12.08 (or 12.08
and 12.09) shall be privilegedand ,notfor the
inspectionof the general public, but a.,bona
fide stockholderowning one (1) or more shares
of the outstandingstock of any corporationmay t
examine'such reports upon presentationof evi-
dence of such ownership to the Secretary of
'G., State. No other examination,disclosureor use
shall be permittsd of the reports except in the
course of some judicial proceedings,inwhich
the State or any'bona fide stockholderis,a
party or in a suit by the State to cancel the
permit or forfeit the charter of,such corpora-
tion or to collect penalties for a violation
of the laws of this State, or for information
of any officer of this State charged,withthe
enforcementof its laws, including the,Comptrol-
ler of Public Accounts, the State Auditor and
: ,theState,Tax Commissioner;provided that the
Secretary of State may in hisdiscretion for
good cause shown disclose ,toany interested.per-
son the names of the officers and directors and
agents for service and the principal office and
place of business of any corporationfilinga
franchise tax report." (Emphasisadded,)
You also quote, :inpart, from Article 1.031, Title
i22A, Taxation-General,Vernon's Ci,vil,Statutes, as follows:
"Art. 1,031 Examination of Records
"(1) For the purpose of carrying out the terms.
of this Title the Comptroller or any authorized
agent shall have the authority to examine at the
principal or any other office in the United
States of any person, firm, agent, or corpora-
tion permitted to do business fn this State,
all books, records and papers and also any of-
ficers or employees thereof, under oath; and
failure or refusal of any person, firm, agent,
or corporation to permit such examinationshall,
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Hon. Fobert S. Calvert, page 3 (M- 295)
upon,certificationof ,suchrefusal by the
Comptroller to the Secretary of State, imme-
diately forfeit the charter or permit to do
business in this State until such examination
as Is required to be made is comnleted. The
Comptroliershall not make publkor us.esgid
'informationderived in the course of said exami-
p. &322, ch. .--*- -2 -.-, _ (Emphasis
added.)
You request,an interpretationof Article 12.10 of Title
122A, Taxation-General(formerlyArticle 7089, V.C.S.;oftTexas)
as such law relates to Article 1.031 of Title 122A, supra. The
immediatequestion, supra, is whether the Comptrolleris authoriz-
ed ,tofurnish copies of certain franchiae,taxreports to the
State SecuritiesCommjssioner.
Decision of this question involves two considerations:
(1) H.asArticle 1.031 repealed Articles 12.10 and 581-
281 andi (2) ,Ifnot, does Article 12.10 authorkze the Comptrol-
ler of public Accounts to furnish copies of otherwiseconfiden-
tial records to the Securities Commissioneras an officer of
this state charged with the enforcementof its laws pursuant
to Article 581-28?
It is the opinion of this office that Article 1.031
does not relate to or conflict with Article 12.10 nor is there
any repeal by implicationof the latter sta'tute. The 196V.;re-
codificationstatute on this matter (Article 1.031) grants
powers to the Comptrollerwhich are in the nature of,visitorial
powers for audit$ng,purposesand is deemed a general statute,
referring to all taxes under Title 122A, Taxation-General..The
1961 s'tatute(Article 12.10) is a specific statute and relates
to the'confidentialnature of and use of records or ,reorts
,filedas franchise tax returns by,a corporationwithl%XEate
C.omproller. It concernsonly franchise taxes and is permis-
slve in that it merely allows the Comptrollerto furnish con-
fidential information to other officers charged with the en-
forcement of the state's laws. The caption of Article 1.031
-1426-
Hon. Robert S. Calvert, page 4 (&295)
.
(Acts of the 60th Le Reg. Session, 1967, Chapter 449,
,Pg. 102~2)reefersto (5*,
an Act concerning examinationof
records by the Comptroller,fortax purposes,",.while Arti-
cle 12.10 refers to reports made by the~corporatlon'itself.
Since :a specific staxute will control over the generals
'provisions'ofanother statute, Article 12.10 will con~trol
over Article 1.031 in this matter. 53 Tex.Jur.2d 232; Stat-~
utes, Sec. 161.
As to the question of whether Article 12.10,permits
the Se,curltiesCommissionerto obtain copies of'such re-
ports, we must hold'that he Is an "Officer of this State '
charged with the enforcementof its laws," and as such, he.
is entitled to request and receive any records,:including
'franchisetax reports, pursuant to Articles 381-28 and 12.10,
which are specific statutes, and Article 1.031 must yield
thereto.
SUMMARY
The'SecuritiesCommissioneris an "Officer
of the State charged with the enforcement
.,.
of its laws,"'pursuantto Article:581-28,
~Vernon'sCivil Sta'tutes,,and with%n,the. ,",,,
-,:
,.,
,,,,,
,,,,.
meaning of Article 12.,10,Title 122A, Tax-
ationiGenera1,Vernon's Civil Statutes, and
Is entitled to request of and receive fron
the State Comptrollerof Public Accounts,of
the State of 'Texascopies of franchise tax
reports made by.corporationsto the said :
Comptroller,
‘?
,y, 7.
Ve truly yours> *
P
C. MARTIR
ey General of Texas
Prepared by Fisher A. Tyler
Assistant Attorney General
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. .
Hon. Robert S. Calvert, page 5 (M- 295)
APPROVED:
OPINION COUMITTEE
Hawthorne Phillips, Chairman
Kerns B. Taylor, Co-Clialrman
James Broadhurst
Roger Tyler
Jim Swearingen
John Banks
A. J. Carubbi, Jr.
ExecutiveAssistant
i!
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