Honorable Carol S. Vance District Attorney Harris County Courthouse Houston, Texas 77002
Re: Whether a list of `known shoplifters' can be circulated.
Dear Mr. Vance:
You have requested our opinion regarding the circulation of a list of `known shoplifters' by a retail merchants association.
Prior to 1974, the Texas Penal Code prohibited the circulation of `any malicious statement affecting the reputation of another' which conveyed the idea that the accused was guilty of a penal offense or was `notoriously of bad or infamous character.' Former Penal Code arts. 1269; 1275(4). The criminal libel laws were omitted, however, from the present Penal Code. Thus, no portion of the Penal Code would appear to prohibit a retail merchants association from circulating a list of persons suspected of shoplifting. Neither are the blacklisting or anti-discrimination statutes, articles 5196-5207b, V.T.C.S., applicable to such a situation, since they apply only to employees or former employees.
On the other hand, to accuse falsely any person of criminal conduct might be viewed by a court as libelous per se under the Texas libel statute, article 5430, V.T.C.S., so as to give rise to a civil action for damages. Belo v. Fuller, 19 S.W. 616, 617 (Tex. 1892); Hornby v. Hunter, 385 S.W.2d 473, 475-76 (Tex.Civ.App.-Corpus Christi 1964, no writ). See Annot., 29 A.L.R. 3d 961 (1970); Paul v. Davis, 424 U.S. 693, 697 (1976) (injury to one's reputation by state officials does not violate the Fourteenth Amendment but would appear to give rise to a state claim for defamation). Accordingly, it is our opinion that, although circulation of a list of `known shoplifters' by a retail merchant association would violate no provision of state penal law, it might give rise to a civil action for defamation if it can be shown that the characterization was false.
Very truly yours,
John L. Hill Attorney General of Texas
Approved:
David M. Kendall First Assistant
C. Robert Heath Chairman Opinion Committee