Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
June 18,2004
The Honorable Bill R. Turner Opinion No. GA-0206
Brazos County District Attorney
300 East 26th Street, Suite 3 10 Re: Whether the Bryan Business Council, Inc. is
Bryan, Texas 77803 subject to the Open Meetings Act, chapter 55 1 of
the Government Code (RQ-01%GA)
Dear Mr. Turner:
You ask whether the Bryan Business Council, Inc. is subject to the Open Meetings Act,
chapter 55 1 of the Government Code.’
You indicate that the Bryan Business Council, Inc. (the “BBC”) was incorporated in 1982
as the Bryan Development Foundation, Inc. in accordance with the provisions of the Texas Non-
Profit Corporation Act, articles 1396-1 .Ol-50.01 of the Revised Civil Statutes. See Request Letter,
supra note 1, at 1. The BBC was established “for the purpose of attracting and promoting multi-
family residential, manufacturing, commercial and industrial enterprises within the City of Bryan.”
Id. The BBC’s articles of incorporation were amended in 1995 to read, in relevant part:
The purpose for which this corporation is formed is to buy,
erect or repair any building or improvement for the use of any multi-
family residential project (50 living units or more), manufacturing,
commercial, or industrial enterprise located within, or in the vicinity
of, the City of Bryan, Texas, and to accumulate and lend money for
said purposes, and to purchase, sell, and subdivide real property in the
City of Bryan, Texas or its suburbs, not extending beyond the City of
Bryan’s extraterritorial jurisdiction (ETJ) as such ETJmay exist from
time to time, for the use of multi-family housing projects,
commercial, manufacturing, and industrial enterprises and to
accumulate and lend money for said purpose and for advertising for
general promotional and tourist advertising of the City of Bryan and
its vicinity and conducting a solicitation and operating program to
attract conventions and visitors either by the City of Bryan or through
contracts with persons or organizations selected by the City of Bryan
and for promoting, aiding, improving and enhancing the business
‘See Letter from Honorable Bill R. Turner, Brazos County District Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1 (Dec. 3, 2003) (on file with Opinion Committee, also available at www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Bill R. Turner - Page 2 (GA-0206)
community of the City of Bryan and its vicinity so as to make the area
a more attractive location for business and commercial enterprises, by
entering into joint ventures with governmental agencies, quasi-
governmental agencies and profit and non-profit corporations in
projects designed to advance and foster business and commerce in the
City of Bryan, and Brazos County, Texas and in the six counties
contiguous to Brazos County (the Brazos Valley Region).
Bryan Business Council, Amendment to Articles of Incorporation, Article II (July 20, 1995).
The Open Meetings Act provides that “[elvery regular, special, or called meeting of a
governmental body shall be open to the public, except as provided by this chapter.” TEX. GOV’T
CODE ANN. 5 55 1.002 (Vernon 1994). A “governmental body” is defined as:
(A) a board, commission, department, committee, or agency within
the executive or legislative branch of state government that is directed
by one or more elected or appointed members;
(B) a county commissioners court in the state;
(C) a municipal governing body in the state;
(D) a deliberative body that has rulemaking or quasi-judicial power
and that is classified as a department, agency, or political subdivision
of a county or municipality;
(E) a school district board of trustees;
(F) a county board of school trustees;
(G) a county board of education;
@I) the governing board of a special district created by law;
(I) a local workforce development board created under Section
2308.253;
(J) a nonprofit corporation that is eligible to receive funds under the
federal community services block grant program and that is
authorized by this state to serve a geographic area of the state; and
(K) anonprofit corporation organized under Chapter 67, Water Code,
that provides a water supply or wastewater service, or both, and is
exempt from ad valorem taxation under Section 11.30, Tax Code.
TEX. GOV’T CODE ANN. $551.001(3) (Vernon Supp. 2004).
The Honorable Bill R. Turner - Page 3 (GA-0206)
You state that although “Et]he Board ofDirectors [of the BBC] is appointed by the Bryan City
Council[,]” the BBC “has no rule-making or quasi[-ljudicial authority, nor does it have any
governmental powers.” Request Letter, supra note 1, at 1. In Attorney General Letter Opinion
94-090, this office considered whether Moore County Development, Inc. (the “MCD”) was subject
to the Open Meetings Act. The MCD, like the BBC, was also incorporated under the provisions of
the Texas Non-Profit Corporation Act. See Tex. Att’y Gen. LO-94-090, at 1. It did not exercise
governmental powers. See id. at 3. The opinion concluded that, as a result,
[i]t is not an entity “within the executive or legislative branch of state
government.” It is not a governing body identified by subsection[s]
(B), (C), (E) through (G), or (I) of section 551.001(3) of the
Government Code, nor is it “a deliberative body that has rulemaking
or quasi-judicial power and that is classified as a department, agency,
or political subdivision of a county or municipality” within subsection
(D) of section 551.001(3). Finally, it is not “a special district created
by law” within subsection (H) of section 55 1.001(3). The MCD was
organized by incorporators pursuant to the Texas Non-Profit
Corporation Act, not “created by law.” Thus, the MCD is not a
governmental body within the Open Meetings Act.
Id. (citations omitted).
Likewise, the BBC is not an entity within state government. Nor is it embraced within
subsections (B), (0 03, (G), (I), or (IS) of section 551.001(3). See TEX. GOV’T CODE ANN.
§ 55 1.001(3) (B),(C), (J% (G), (I), 0-Q W emon Supp. 2004). As you have stated, it does not possess
“rulemaking or quasi-judicial power ” as required by subsection (D). It is not “a special district
created by law” under subsection (H) because it was chartered under the Texas Non-Profit
Corporation Act. Neither does any provision of the original or amended articles of incorporation
indicate that the BBC “is eligible to receive funds under the federal community services block grant
program and . . . is authorized by this state to serve a geographic area of the state.” See id.
5 55 1.001(3)(J). As you note, its primary source of fimding is from sales of donated property and
from oil and gas revenues. See Request Letter, supra note 1, at 1. The most recent budget for the
BBC shows that over 90 percent of its income for fiscal year 2003-04 derives from oil and gas
royalties, with lesser amounts from interest and “miscellaneous income.” See Bryan Business
Council, Approved Budget, Fiscal Year2003-2004. We conclude, therefore, that the Bryan Business
Council, Inc. is not a “governmental body” within the terms of the Open Meetings Act.*
‘Economic development corporations created under the Development Corporation Act of 1979 are subject to
the Open Meetings Act. See TEX. REV.CIV.STAT.ANN.art. 5 190.6,s 1I(b) (Vernon Supp. 2004). Although the BBC
shares some of the attributes of an economic development corporation, it was not created under the terms of article
5 190.6.
The Honorable Bill R. Turner - Page 4 (GA-0206)
SUMMARY
The Bryan Business Council, Inc. is not a “governmental
body” within the terms of the Open Meetings Act, chapter 55 1 of the
Government Code.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee