Untitled Texas Attorney General Opinion ( 1987 )

September 24, 1987
Honorable Bill Baumann Opinion No. JM-794
Potter County Attorney
303 Courthouse
Amarillo, Texas 79101 Re: Whether meetings of a Health
Facilities Development Corporation
Mr. John A. Fairman created pursuant to article 1528j,
Director V.T.C.S., are subject to the
Harris ,CountyHealth Facilities Open Meetings Act, article 6252-17,
Development Corporation V.T.C.S.
8203 Fawn Terrace
Houston. Texas 77071
Gentlemen:
You ask whether meetings of the board of directors of a Health
Facilities Development Corporation created pursuant to article 1528j,
V.T.C.S., must be held in compliance with the Texas Open Meetings Act,
article 6252-17, V.T.C.S. The Open Meetings Act applies to every
"meeting" of a "governmental body." See art. 6252-17. 52(a). Whether
the corporation is subject to the Opeaeetings Act depends on whether
the corporation falls within the act's definition of a "governmental
body."
Section l(c) of the Open Meetings Act defines a "governmental
body" as
any board, commission, department, committee, or
agency within the executive or legislative
department of the state, which is under the
direction of one or more elected or appointed
members; and every Commissioners Court and city
council in the state, and every deliberative body
having rulemaking or quasi-judicial power and
classified as a department, agency, or political
subdivision of a county or city; and the board of
trustees of every school district, and every
county board of school trustees and county board
of education; and the governing board of every
special district heretofore or hereafter created
by law.
p. 3753
Honorable Bili Baumann
Mr. Jchn A. Fairman
Page 2 (5X-794)
.
In Attorney General Opinion JM-340 (1985), this office indicated
that this definition comprises four parts. The first part describes
the stace-level governmental entities that are subject to the Open
Meetings Act. The remaining three parts describe the specific local
governmental entities that are subject to the act. For a local level
entity to be a "governmental body" within the meaning of section l(c)
of the act it must be included expressly in one of the three specific
descriptions of local governmental bodies. Attorney General Opinion
JM-340; -
see Attorney General Opinion JM-183 (1984).
The Bealth Facilities Development Corporations at issue here are
nonprofit public corporations created pursuant to article 1528j,
V.T.C.S. The purpose of article 15283 is to enable cities, counties,
and hospital districts to create corporations with the power to
provide, expand, and improve health facilities to improve the
adequacy, cost, and accessibility of health care, research, and
education in Texas. Art. 1528j. 51.02. Such corporations have
extensive authority, including the authority to issue revenue bonds
and notes, to accomplish these purposes. See id; sec. 4.01. An
article 1528j corporation can be created onlybyaTsponsoring entity"
-- a city, county, or district as defined in the act. Each
corporation must remain under the supervision of its sponsoring
entity. Art. 1528j; §4.01(14). Sponsoring entities cannot delegate
to article 1528j corporations any sovereign powers of the state or of
the sponsoring entity. See & The corporations have only the powers
authorized under articleT28j.
In Attorney General Opinion m-596 (1986), this office addressed
a similar question: whether nonprofit water supply corporations are
subject to the Open Meetings Act. Like the corporations at issue in
Attorney General Opinion m-596, the corporations authorized by
article 15283 are not entities within the executtve or legislative
branch of state government. Nor do they fit within the specific local
governing entities listed in section l(c) of the Open Meetings Act.
Because an article 1528j corporation cannot exercise delegated
governmental functions, it cannot reasonably be characterized as a
"department, agency, or political subdivision" of its sponsoring
entity, as those terms are used in the Open Meetings Act. See
Attorney General Opinion a-596; see also Attorney General Opine
JM-183 (1984). Nor is a nonprofit public corporation reasonably
characterized as a "special district." A special district is a
governmental entity, usually with taxing authority, created to provide
special rather than general governmental services in a specific
locality. See Black's Law Dictionary, 5th ed. Although both special
districts and nonprofit public corporations often serve to bypass
normal governmental borrowing limits, a nonprofit public corporation
cannot ordinarily be characterized as a special district.
p. 3754
Honorable Bill Baumann
Mr. John A. Fairman
Page 3 (m-794)
Of course, a public corporation's enabling statute may provide
expressly that such corporations must comply with the Open Meetings
Act. See Attorney General Opinion JM-120 (1983). Article 15283 does
not, however, provide that Health Facilities Development Corporations
must comply with the Open Meetings Act.
SUMMARY
A Health Facilities Development Corporation
created pursuant to article 1528j, V.T.C.S.. does
not fall within the definition of a "governmental
body" under section l(c) of the Texas Open
Meetings Act, article 6252-17, V.T.C.S., and
therefore need not comply with the Open Meetings
Act.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 3755