Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
May 7,2004
Mr. Randall H. Riley, Executive Director Opinion No. GA-01 84
Texas Building and Procurement Commission
Post Office Box 13047 Re: Whether “vessel and outboard motor
Austin, Texas 78711 ownership records” are “customer information”
under section 11.030 ofthe Parks and Wildlife
Code (RQ-0 132-GA)
Dear Mr. Riley:
You ask whether “vessel and outboard motor ownership records” are “customer information”
under section 11.030 of the Parks and Wildlife Code.’
Your questions arise from a request for public information submitted to the Texas Parks and
Wildlife Department (“TPWD”) in July 2003. TPWD did not object to providing the information,
but disagreed with the requestor over whether the charges for providing it should be governed by
Parks and Wildlife Code section 11.030 or Government Code section 552.262(a), a Public
Information Act provision that generally authorizes your agency to adopt rules for governmental
bodies to use in determining charges for providing public information. See TEX. GOV’T CODEANN.
4 552.262(a) (Vernon Supp. 2004) (“The rules . shall be used by each governmental body in
determining charges for providing copies of public information except to the extent that other
law provides for charges for specific kinds ofpublic information.“). TPWD proposed to charge the
requestor under section 11.030. The requestor submitted a complaint to your agency alleging that
TPWD “is attempting to overcharge for copies ofpublic information because the charges proposed
by TPWD were not determined in accordance with” Government Code section 552.262(a). Request
Letter, supra note 1, at 1.
First, you ask whether TPWD “vessel and outboard motor ownership records” are “customer
information” under Parks and Wildlife Code section 11.030. Id. at 2 (question 1).
‘Letter from Mr. Randall H. Riley, Executive Director, Texas Building and Procurement Commission, to
Honorable Greg Abbott, Texas Attorney General (Nov. 18,2003) (on tile with Opinion Committee, also availabk at
http://www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Randall H. Riley - Page 2 (GA-0184)
Both the requestor and TPWD appear to agree that the requested records are “ownership
records” under chapter 3 1 of the Parks and Wildlife Code.’ Section 3 1.039 of the Parks and Wildlife
Code provides that “[a]11 ownership records of the department made or kept under this chapter are
public records.” TEX. PARKS & WILD. CODE ANN. 5 3 1.039(a) (Vernon Supp. 2004): Chapter 3 1
does not define the term “ownership records,” but the term clearly refers to records made or kept by
TPWD in connection with its chapter 3 1 duties. See id. For example, subchapter B-l requires vessel
owners and outboard motor owners4 to obtain certificates of title, which TPWD issues. See id.
$5 31.045(a) (Vernon 2002) (“The ownership of a vessel or of an outboard motor is evidenced by
a certificate of title issued by the department, unless the vessel or the outboard motor is new.“),
31.045(b) (“The ownership of a new vessel or a new outboard motor is evidenced by a
manufacturer’s or an importer’s certificate executed on a form prescribed by the department.“),
31.046 (requiring purchaser, dealer, or manufacturer of a vessel or an outboard motor to apply to
TPWD or to a county tax assessor-collector for a certificate of title). In addition, TPWD issues
“certificates ofnumber.” Id. 4 3 1.034. Subchapter B requires that “each vessel on the water of this
state shall be numbered . unless specifically exempted.” Id. 5 3 1.021 (Vernon Supp. 2004). A
certificate of title is required as proof of ownership of a vessel for which a certificate of number is
sought under subchapter B. Id. 5 31.036 (Vernon 2002).
TPWD suggests that ownership records also constitute “customer information” under section
11.030 of the Parks and Wildlife Code. 5 “Customer information” is “[tlhe name and address and
a telephone, social security, driver’s license, bank account, credit card, or charge card number
of a person who purchases customer products, licenses, or services from the department.” Id.
5 11.030(a). Section 11.030 provides that this information is not public information under the Public
Information Act, see id. 3 11.030(b) (“Chapter 552, Government Code, does not apply to customer
*,% Brief from Ann Bright, General Counsel, Texas Parks and Wildlife Department, to Honorable Greg Abbott,
Texas Attorney Generalat 3 (Jan. 8,2004) (ontile withOpinionCommittee) [hereinaf?erTPWD Brief]; LetterfromArm
Bright, General Counsel, Texas Parks and Wildlife Department, to Honorable Greg Abbott, Texas Attorney General at
2-3 (Aug. 14,2003) (on file with Opinion Committee); Brief t?om Mark J. Cannan, Clemens & Spencer, Attorneys at
Law, to Nancy S. Fuller, Chair, Opinion Committee, Off& of the Attorney General (Jan. 9,2004) (on tile with Opinion
Com”littee).
‘TPWD or a county may not release the name or address of a person recorded in TPWD vessel and outboard
motor ownership records unless TPWD 01 the county receives a written request that: (i) contains the requestor’s name
and address; and (ii) states that the use of the information is for a lawfi~lpurpose. See TEX. PARKS&WILD. CODEANN.
5 31.0391(a) (Vemo” 2002).
‘See id. $3 1.003(2) (Vernon Supp. 2004) (“‘Vessel’ means any watercraft, other than a seaplane cmwater, used
or capable of being used for transportation on water.“), 5 3 1.003( 13) (“‘Outboard motor’ means any self-contained
internal combustion propulsion system, excluding fuel supply, which is used to propel a vessel and which is detachable
as a unit from the vessel.“).
‘See TPWD Brief, supra note 2, at 3 (“section 11.030 includes TPWD’s boat registration customer
information”).
Mr. Randall H. Riley - Page 3 (GA-01 84)
information described by Subsection (a).“),6 and requires TPWD “byrule [to] adopt policies relating
to,” among other things, “the sale of a mailing list consisting of the names and addresses ofpersons
who purchase customer products, licenses, or services,” id. 5 11.030(c)(3). Thus, charges for
providing customer information are governed by TPWD’s rules rather than your agency’s,
Your first question asks, in essence, whether TPWD’s position that ownership records also
constitute customer information is correct. See Request Letter, supra note 1, at 2. We conclude that
it is not.
First, as defined by section 11.030, “customer information” is certain information pertaining
to “a person who purchases customer products, licenses, or services from the department.” TEX.
PARKS & WILD. CODE ANN. 5 11.030(a) (Vernon 2002). The Parks and Wildlife Code authorizes
TPWD to sell avarietyofcustomerproducts. See, e.g., id. $9 12.006 (“The department may provide
or sell information, including books, magazines, photographs, prints, and bulletins, to the public
about wildlife values and management.“), 13.017(a) (“The department may provide or sell
information, including books, magazines, photographs, prints, and bulletins, to the public on state
parks.“). It also generally requires a person to obtain a hunting or fishing license in order to hunt or
fish, see id. $9 42.002 (Vernon Supp. 2004) (“Except as provided by Subsections (b) and (c) of this
section, no resident may hunt any bird or animal in this state without having acquired a hunting
license.“), 46.001 (Vernon 2002) (“No person may fish in the public water ofthis state unless he has
acquired a fishing license issued under this subchapter.“), and requires specific licenses to engage
in other related activities, see id. chs. 43-49, 71-78 (Vernon 2002 & Supp. 2004). In addition,
TPWD may charge and collect park user fees for park services. See id. 5 13.015 (Vernon 2002).7
A certificate of title or identification number required by chapter 31 is not a product or a
service. In addition, given that the term “license” in the Parks and Wildlife Code is used in
connection with licenses to hunt, fish, and engage in other specific activities, and is not used in
connection with certificates of title or identification numbers, we do not believe that a vessel or
outboard motor certificate of title or identification number is a license. Therefore, a person who
obtains a certificate of title or identification number does not “purchase[] customer products,
licenses, or services from the department.” Id. 5 11.030. Accordingly, “vessel and outboard motor
ownership records” are not “customer information” under Parks and Wildlife Code section 11.030.
6Customer service information may not be disclosed except as authorized under section 11.030 or section
12.0251. See TEX. PARK?& WILD.CODEANN.5 11.030(a)(Vernon 2002). Section 12.0251 applies to “information
[] collected by [TPWD] in response to a Iandower request relating to the specific location, species identification, or
quantity of any animal or plant life that is: (1) protected by this code; and (2) located on private land that: (A) is subject
to a wildlife management plan developed cooperatively with [TPWD] for private land; or (B) is the subject of a
recommendation report prepared by [TPWD] for the landowner.” Id. 5 12,0251(a). TPWD may disclose such
information only to the landowner unless(i) the landowner consents to full or specified partial disclosure of information,
and (ii) the consent is in writing and is attached to the plan or recommendation report. See id. $ 12.025 l(b).
‘Parks and Wildlife Code, chapter 11, subchapter I also generally authorizes TPWD to offer services and
products on a statewide basis pursuant to a business plan. See TEX.PARKS& WILD.CODEANN.5 11.152 (Vernon 2002)
(“Each business plan developed under this subchapter must include. a description of the product or service provided;
“).
Mr. Randall H. Riley - Page 4 (GA-01 84)
Second, even if a certificate of title or identification number is a product, license or service
within the meaning of section 11.030, section 3 1.039 removes any “ownership record” that might
otherwise constitute “customer information” from section 11.030’s scope. The legislature has
distinguished between ownership records and customer information by providing in section 3 1.039
that ownership records are public records and providing in section 11.030 that customer information
is not public information. Given that the legislature has clearly provided that ownership records are
public records, it is not reasonable to conclude that the legislature intended them to be a subset of
customer information, which is not subject to the Public Information Act. Such aconstruction would
render ineffective the express provision in section 31.039 that ownership records are public records.
See TEX. GOV’T CODE ANN. 5 311.021(2)-(3) (V emon 1998) (in enacting a statute, it is presumed
that the entire statute is intended to be effective and a reasonable result is intended).
Third, section 11.030 has required TPWD to adopt rules relating to the sale of customer
information since 1995. See Act of May 22, 1995,74th Leg., R.S., ch. 519, 5 1, 1995 Tex. Gen.
Laws 3274,3275 (enacting section 11.030 ofthe Parks and Wildlife Code). The legislature recently
amended section 3 1.039 of the Parks and Wildlife Code to provide that TPWD “may by rule charge
a fee for access to ownership records and other records made or kept under” chapter 3 1. TEX. PARKS
&WILD. CODE ANN. 5 31.039(b), as enacted by Act ofJune 1,2003,78th Leg., RX, ch. 200, § 8(e),
2003 Tex. Gen. Laws 784,787, and Act of May22,2003,78th Leg., R.S., ch. 1133,s 5,2003 Tex.
Gen. Laws 3223,3224. If ownership records were subject to section 11.030 and TPWD customer-
information rules, this provision would have been unnecessary. See TEX. GOV’T CODE ANN.
5 3 11.02 l(Z) (Vernon 1998) (in enacting a statute, it is presumed that the entire statute is intended
to be effective).
Your second question is premised on an affirmative answer to your first question about
whether ownership records constitute customer information: “If the answer to (1) is ‘Yes’, does
[Parks and Wildlife Code section] 11.030 qualify as ‘other law’ for purposes of’ Government Code
section 552.262(a). Request Letter, supra note 1, at 3. Because we conclude that “vessel and
outboard motor ownership records” are not “customer information” under Parks and Wildlife Code
section 11.030, we need not reach your second question.’
*Section 3 1.039(b) of the Parks and Wildlife Code providing that TPWD “may by rule charge a fee for access
to ownership records and other records made or kept under” chapter 3 1, TEX.PARKS&WILD. CODEANN. 5 3 1.039(b),
as enacted by Act of June 1,2003,7&h Leg., R.S., ch. 200, 5 8(e), 2003 Tex. Gen. Laws 784,787, and Act ofMay 22,
2003,78th Leg., R.S., ch. 1133,s 5,2003 Tex. Gen. Laws 3223,3224, became effective on September 1,2003, after
the requestor submitted the request at issue to TPWD. See Act of June 1, 2003, 5 Z(n) (requiring TPWD to adopt
implementing rules not later than January 1,2004), 5 8(p) (effective date), 2003 Tex. Gen. Laws 784, 790; Act ofMay
22,2003, $5 14 (requiring TPWD to adopt implementing rules not later than January 1, 2004), 15 (effective date), 2003
Tex. Gen. Laws 3223, 3227. You do not ask us to address that provision’s relationship to Government Code section
552.262.
Mr. Randall H. Riley - Page 5 (GA-01 84)
SUMMARY
“Vessel and outboard motor ownership records” made or
kept by the Texas Parks and Wildlife Department under chapter 3 1 of
the Parks and Wildlife Code are not “customer information” under
section 11.030 of that code.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee