Untitled Texas Attorney General Opinion

OF TEXAS .AUSTXN. ‘l%XAS 78711 Honorable Carol S. Vance Opinion No. H-1058 District Attorney Harris County. Courthouse Re: Whether a list of "known Houston, Texas 77002 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 asso- ciation. Prior to 1974, the Texas Penal Code prohibited the cir- culation 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 charac- ter." 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 appearto prohibit a retail merchants association from circulating a list of per- sons 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 em- ployees 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. Be10 v. Fuller, 19 S.W. 616, 617 (Tex. 1892); Hornby v. Hunter, 385 S.W.Zd 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. P. 4347 . Honorable Carol, S. Vance - Page 2 (H-1058) SUMMARY. Although,the circulation of a list of "known shoplifters" by a retail merchants associations would appear to violate no provision of Texas penal law, it might gives rise to.a civil action for damages on the basis.of either libel or invasion of,privacy if it can be shown that the characterization was false. N L. HILL torney General of Texas APPROVED: c. ROBERT HEATH, Chairman Opinion Committee jst p. 4348