Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE ATTORNEY GkNEkAL OF: TEXAS
AUSTIN
GROVER SELLERS
L;~XWSNEI GENERAL
Honorable S. E. McDonald, Coridssloncr
Deptirtment of Agriculture
Austin, Texas
.
Your letter of ret which you submlt
rece$ve+t au& given
our cEresl.ll coaslde
tain findin&s and recom-
ornmlssion, upon proclamn-
es were duly placed in the.
This proclamation .was
ong”other things,, Article 74;
“Such proclamation of the
rtment has heretofore prepared a sulk-
gested forti for complaint a& information to be used in
prosecuting violators, and Ln the forn so .prcparod appeaiw
the aJlegation:
” and since aaid proclamation the Pit&. .
Boll W&L 6o&kission of !&xas has not certified
that the menace of pink boll worms no ?.onfzer
exlats within said area. . . .‘I
Ronor&ble 3. X. McDonald,,page 2
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You vish to know whether or not a certificate of
ypitr office to the effect the Pit& Boll Worm C``nls,sl~a’has
not, since the Governor’s proclamation pl&ug the regulat-
ed area into effect, certified that the met&e of pink bolls
‘vorms no lamer exists, would be sufficient to make proof
of the above allegation.
The Pink Boll Worn Act has been considered by the ..
Court of Crinlnal Appeals in the case of Uilllans vs. State,
. Tex. Cr.. R. 176 5. W. (2d) 177. The konstitutioa-
mty of the Act=: upheld, but the InSoraatiou in’that case
was held not to charge an offense la that it alleged a viola-
tion of a proclamation of the Commissioner of @iculture,
~the Court saying the Commissioner cannot create au offense.
Wo point was made an the particular inguiry submitted by you.
Article 3722, Revised Civil Statutes of Texas, 1925,
reads, as ~Sollowg :
.!!!i!he Secret& ids State, Attorney Gene&,
Zand Commissioner, Comptroller, Treasurer, Ad- ..
jutaut General, Commissioner of ‘ngriculJ+ure,
CommissFoner bf Iasuronce, E3atiiD.g Conmissioa~
er, and State Ubrarian shall furnish any person ‘.
applying for the same with a copy OS any paper,
documsnt or record in their offices, and with
certificntes under sesl certifglng; to any fact
contained ‘in the ‘paI)ers. documents or records of
thclr~offlces: and the same shall be received in
~vidcnce in ell c 8. i wh h the orid.~
.
~*UPS(&ha2s
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While the Conititutlon OS Texas (Article 1, Sec.
10) requities in all criminal pcosecutions that th‘e accused
shall be %onSrontcd by the vitnesses against him,” the
Court of Criminal Appeals has, ou at least two occasions, af-
firmed cases wherein certiFied copies of documents showing
affirmative Sects have been introduced in evidence. Sse
koyd vs. State, 114~Tex. Cr. R. 160, 21 3. W. (2d) 7)3 (cer:
tified copy of charter of a bank certified by banking com!!ls-
sioner ; Rx perte Rhoades, 1)12 Tcx. Cl*, R. 632, 155 9. W.
(2d) 8-l3 (certified copy of extradition papers, certified
,bg Secretary of St’ate). Whether the State msy prqve the
. . ;,
.&&?y--‘, .t “h
: 663
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.Bonor&ble J. E. BkDoaaldk page 3 ’
negtitlve feet th.4 there is ao,record, as la this case,
3s an entirely different natter, aad one whlch:;we have not
Souad to keve been decided by the State’u hFgh&t Court
h8Viag jwiI3diCtiOa Of CTitiIiacl cases.~
&ay precedents have been f&ad wherein our civil
cow$s have.subtalaed the general rule as stated ia Corpus
curie (22 c. J. 838, 839):
“30 prove a fact of record without the pro-
-ductioa of the record Itself, a duly autheatlcat-
.ed copy of the record. or so much thereof as re-
lates to the fact la question is required. A cer-
tificate by a public officer having the lawful
:custody of public records as to nay fact appew- e ,
ing oa the records of Ns office or .as to any con-
clusion he’my. drew from aa inspection of the rec-
ords’ 3.6 aot ‘coinpetsat evidence, unless made so by
statute. A fortlori the authority to We certi-
fled copies wills not authorize a ckrtificatioa ES
to facts not appeaviag of. rqcord, or improperly
inserted therein, or as to the pwgort of’ papers
that are mlssiag from the record-~ So,, in the ab- :.
seaco~of 8 statute, a aegat$vc certificate by an
officer nil1 aot be evidence of the nonappearance
:Of a fact on the records ore of the absence of any
entry, paper, or document from the records of his
office, it being said that such negative proof
requires oral testimony under oath of a oeorch
mado and of its results. . . .”
Texas Jurisprudence ‘has the foilowing otstomeat
(17 Tex, ‘Jur.;667, 9.282):
‘The fact that there is ao record of an la-
fstrdaeat may be proved by the testimony of the .
officer having official custody of the records,
aad must be so pro&d. Testimony of private ln-
dlvidunls vho have examined the records is inaa-
tiasible for that purpone, The aoaex``stoace of n
fact cannot be proved by the certificate of a pub-
lit officer or board unless the statute so pro-
vldes.”
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-Roaorable J. E. %Boasld, page 4
In the case of Hatsoa vs. Texarlcaaa Pipe Works
(Texarkeaa Civ. App.) 257 3. W. 1003, it .was held that a
certificate of, the secretary of the Iadustr&l Accident
Bosrd that the defendant had aot subscribed for insursnce
under the Workmants Compensation Act, nor provided for com-
peasatioa insuraace, aor registered the same with the Boerd,
was not authorized by the statute, and was not tidmisslble
to prove the ,aoaexistence of such facts.
Other Texas cases to the aame general effect:
Edwnrds vs. Berwise, 69 Tex. 84, 6 5. W. 677; Meyers ‘vs.
Joaes, 4 Tex. Civ. App. 330, 23 3. W. 562; Smlthers v .
Lawrence. 100 Tex. 77. 93 S.. W. 1064; Roller Mfg. Co. vs.
Coleman (Tex. Comm. App.) 29 S. W. (2d) 991; Burton vs.
Paw, 53 s. I?. 795; U. s. Fidelity & &.araaty Co. vs.
Inman; 65 S.. W. 339; World Oil Co. vs. Hicks, 75 S. W.
(26) 905 (certified question on another point) (Corn. App; )
103 ,JS.
w. (26) 962.
Discussing the rule, W&more on Evidence, 3rd Ed.,
Vol. p. 749, et seq.,
Vj # 1678, affirms its exlsteuce and
says proof of the nonexistence of a record cannot be made
.by certificate. At page 754 the author severely crlticises
the holdings, saying: "It ui3.L so1110day be reckoned as one
of the most stupid instances. of legs1 pedantry ia our annals.”
We conclude that in the present state of our law
your certificate that the Pink Boll Worm Commission has not
etirtified that- the menace of the pink boll worm no longer
exists in the applicable counties may be properly made only
by.~direct testimony. In the case of World Oil Co, vs.
Hicks, iupra, the following language is approved:
%&en a perty’desires to prove the negative
fa&t that there is no record, he must do so in
the usual vay, -- by the deposition of the proper
officer, or by producing him in court, so that he
may be swora and cross-examined es to the thorough-
ness of.the search made.”
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As’ the case you mention is a criminal prosecution,
of.course a deposition would be unnvailable to the State
(Gsrsa vs. State, 43 Tex. Cr. R. 499, 66 S.W. 1098; Stewart
va. State, 26 S.W. 203; ‘Kerry vs. State, ‘17 Tex. Cr. R.
178, 50``~1thRep. 122). The CommU.ssioner of AgrLculture,
.
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Bohorable 3, E. McDoualcI) p&e 5
being ex-oPficlo secretary of the Pink Boll Worm Commission
(Art. 76, R. C. S.), would be the proper vltgcaa by whom to
- J make the @roof meatioaed.
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Yours very truly
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