Untitled Texas Attorney General Opinion

Honorable R. L. Coffman Opinion Ro. C-501 Administrator Texas mployment Commission Re: Requisites for issuance, Austin, Texas service, and enforcement of Commission subpoenasunder Dear Mr. Coffman: Article 5221b-g(g),V.C.S. You have requested our opinion relative to five questions, and we will discuss and answer them in a different order from which you stated them, in order to more clearly develop the subject. One of the questions propoundedby you in your opinion re- quest was whether Article 5221b-g(g),V.C.S., authorized the filing of criminal proceedings or merely prescribes the penalty to be assessed in contempt proceedings in connectionwith a court order commanding obedience to the Commission's subpoena. The cardinal rule of statutory interpretationis to ascertain the intent of the Legislatureafter reading the statute as a whole and in light of past laws. Article 5221b-g(g)provides as follows: macy "') Subpoenas: In case of contu- or refusal to obey a subpoena issued iy a member of the Commission or any duly authorized representative thereof to any person, any County or District Court of this State within the jurisdictionof which the inquiry ‘iscarried on or within the jurisdic- tion of which said uerson guilty of contumacv or refusal to ob& is-found or residks or transacts business, application by the Commission or iF=- s duly authorized representative,shall have jurisdictionto issue to such erson an order requiring such person representative,there to produce evi- denceif so ordered or there to give touching the matter under i5%%Y- gation or in question; and any -2368- Hon. R. L. Coffman, page 2 (C-501) failure to obey such order of the court may be punished by said court as a contempt thereof. Any person who shall without just cause fail or refuse to attend and testify or to answer any law- ful inquiry or to produce books, papers, correspondence,memoranda, and other records, if it is in his power so to do, in obedience to a subpoena of the Com- mission, shall be punished by a fine of not less than Two Hundred Dollars ($200), or by imprisonmentfor not longer than, sixty (60) days, or by both such fine and imprisonment,and each day such vio- lation continues shall be deemed to be a separate offense." (Rmphasisadded) After reading Section (g) of Article 5221b-9 as a whole, it is clear that the Legislaturemerely intended to prescribe a penalty to be assessed in contempt proceedings in connectionwith a court order commanding obedience to the Commission'ssubpoena rather than authorizingthe filing of criminal proceedings. The third question in your opinion request was whether mis- demeanor charges may be filed under Article 5221b-g(g) in cases where the subpoena is not signed by three (3) Commissioners who comprise the Texas Employment Commissionbut rather by duly authorized representatives. In light of our holding above, we feel this question is not germane since misdemeanor charges are not authorizedby the Act. You also asked whether a witness fee must be tendered with service of the Administrativesubpoena and in answer thereto we would again direct your attention to Article 5221b-9, and state that this Act does not provide for tender of any witness fee. Therefore, it is the opinion of this office that no witness fee need be tendered with service of the Administrative subpoena. The first question asked by your opinion request was whether a subpoena issued under Article 5221b-9 may be lawfully served by someone other than a peace officer. Article 5221b-9 does not directly provide who may serve such a subpoena. It is elementarythat in determininglegislativeintent one should look to the entire act and all of its terms. Barber v. Giles, 146 Tex. 401, 208 s.w.2a 553 (1948); Mason v. Q est Texas fnmties Co., 150 Tex. 18, 237 s.w.2a 273 (1951 R d Waco, . . 247 (Tex.Civ.App.1949, error ref.). 'it zi aI;o -2369- Hon. R. L. Coffman, page 3 (C-501) elementarythat in determininglegislativeintent one should look to the history of the legislationfinquestion. 53 Tex.Jur.2d 252. In light of these two rules of interpretationit should be noted that subsection (f) of Article 5221b-g,,V.C.S.,was amended by the 59th Legislature of the State of Texas. Subsection (f) of Article 5221b-9, V.C.S., prior to amendment provided as follows: "(f) Oaths and Witnesses: In the discharge of the duties imposed by this Act, the chairman of an appeal tribunal and any duly authorized representativeor member of the Commission shall have power to administer oaths and affirmations,take depositions,certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence,memoranda, and other records deemed necessary as evidence in connectionwith a disputed claim or the administrationof this Act." Subsection (f) as amended by Chapter 150 of the 59th Legis- lature provides as follows: "(f) Oaths and Witnesses: . Notwithstandingthe provisions of'Article 3912e, Vernon's Texas Civil Statutes, or anv other nrovision of the laws of this It is therefore the opinion of this office that a sheriff or constable would be the proper person to lawfully serve the administrativesubpoena in question. Your fifth uestion was whether the punishment provided in Article 5221b-97g), V.C.S., is unconstitutionaland in answer thereto we state that we are unable to find any ground on which this provision could be held unconstitutional. SUMMARY 1. Article 5221b-g(g),V.C.S., prescribes the -2370- Hon. R. L. Coffman, page 4 (C-501) penalty to be assess.edin contempt pro- ceedings in connectionwith a court order commanding obedience to the Com- mission's subpoena. 2. A witness fee need not be tendered with service of the administrativesubpoena. 3. The administrativesubpoena authorized under Article 5221b-g(g),V.C.S., should be served by a sheriff or constable. 4. The punishment provided by Article 5221b- 9(g), V.G.S., is constitutional. Yours very truly, WAGGONRRCARR Attorney General of Texss torney General JPB:sss APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Brandon Bickett Robert Norris Howard M. Fender APPROVED FOR TRE ATTORNEY GENRRAL BY: T. B. wright -2371-