Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAlTOX &ril 9. 1985
Attorney General
Supreme Court SulldlnQ Honorable Oscar 8. Nauzy opinion No. JM-308
P. 0. Box 12S4S chairmen
Austin. TX. 7871% 2548 Committee on Jurisltmdence BE: Whether a resident of a
512l4752501 Texas State Senate housing project may be a member
Talex 9101874-1397
Tel8~0oiM 512147!b02S9
P. 0. Box 12068, CZlpitOlStatioll of a housing authority board in
Austin, Texas 78;'ll light of article 988b. V.T.C.S.
714 Jackson. SuItO 7QQ Dear Senator Mauzy:
0P9as. TX. 7S2a-
2141742-8844
You seek our opinion on a proposed amendment to article 1269k.
V.T.C.S.. which would require local housing authority boards to
4824 AIMS Ave.. Suite 180 include one member who is a teuant of a project operated by the local
El Paso. TX. 739052793 housing authority. Your specific question is as follows:
915153534S4
Would residency in a project constitute an
1091 Texas, Suite 700 'interest' in the authority such that any action
Houston, TX. 77OQ2-3111 by a tenant board member would amount to a
71312235888 conflict of interest proscribed by the Texas
Constitution or tbe statutes, particularly article
988b, V.T.C.S.
905 Broadway. SuIta 312
LuDbcck. TX. 78101-2479
8084747.5238 Senate Bill NIL 490. now pending before the legislature, would
add the following language to section 5 of article 1269k. V.T.C.S.:
4309 N. Tenth. Suite S
After the authority establishes its first housing
McAllsn. TX. 7SWl-lSS5
51218824647
project and the project is in operation, at least
one (1) of the commissioners must be a tenant of a
project administered by the authority. The
2fx7 Msln Plsaa, Suite 400 governing body shall make the initial appointment
San Antonlo, TX. 7S2OE-2797
of a tenant commissioner on the expiration of
512%!54191
commissiomrs terms that first occurs after the
first housing project is established and in
An Equal OppoCtuWf operation.
Alflrmatfve Action Employer
This office has tice before addressed the question of whether a
tenant could serve! on the board of a public housing authority.
Attorney General Opinion M-1096 (1972) considered whether section 6 of
article 1269k. V.T.C.S., absolutely barred a tenant from serving on
the board. Section 6 provided in part:
p. 1402
Honorable Oscar 8. ~ausy - P;%IZe
2 (JM-308),
No commissioner or employee of an authority
shall acquire any interest direct or indirect la
any housing project. . . .
The opinion found this prorisiou to be consistent with common law
prohibitions on conflict of Luterest as expressed in Meyers v. Walker,
276 S.W. 305 (Tex. Civ. Apy. - Eastland 1925, no writ) and City of
Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Coma. App. 1933). It concluded
that section 6 and the coumou law rule prohibited a tenant of a
housing authority from servi:%Sas a commissioner thereof; The version
of particle 1269k discussed in Attorney General Opinion M-1096 did not
include any provision expremly authorizing a tenant to serve on the
board. Nor did the opinion consider whether the legislature could
amand article 1269k. V.T.C.S., to include such a provision. Thus,
Attorney General Opinion M-.1.096is in no way dispositive of your
question.
In Letter Advisory No. 13 (1973) this office considered the
constitutiouality of a bill which would require two tenants to serve
as commissioners of each public housing authority. The opinion found
no provision in the Texas Com3titutiou which would render the proposed
amendment invalid. Letter Advisory No. 13 stated as follows:
We do not construe Section 6 of Article 1269k,
V.T.C.S., to diw[ualify those interested in
housing projects a,s tenants, but, if that is its
proper interpretation, any conflict between that
section and the newly proposed Section 5a would be
resolved by givin:3 weight to Section 5a as the
last expression of the Legislature.
The legislature has powac to change both the coamou law rule and
the statutory language on which Attoruey General Opinion M-1096 based
its conclusion. Article 1, V.T.C.S., adopts the common law, to the
extent it is not inconsisteti:with the laws and Constitution of Texas,
and declares it in form "until altered or repealed by the
Legislature." See In re B--+--N---, 570 S.W.Zd 493 (Tex. Civ. App.
- Texarkana 197rno writ). As Letter Advisory No. 13 indicated, an
enactment that is later :tu time supercedes an earlier enacted
provision to the extent of any inconsistency. See Allied Finance
Company v. Falkner, 397 S.II.2d 846 (Tex. 1965). Thus, we find uo
coustitutioual provision oc comaon law rule that prevents the
legislature from enacting a :Lew that requires one housing comaissioner
to be a tenant of a housing project.
Moreover, the conflict of interest provision in article 1269k.
V.T.C.S., provides that
p. 1403
Honorable Oscar 8. ~ausy - Page 3 KM-308)
6(a) . . . it is not unlawful for a
mumissioner:
. . . .
(2) to continue to owu or control any interest
in a housing project held by the commissioner
prior to his term as commissioner.
We naxt address your c,onLcern
that any action by a tenant board
member would amount to a conflict of interest proscribed by article
988b. V.T.C.S. Sections 3 and 4 provide as follows:
Sec. 3. (a) Except as provided by Section 5
of this Act, a local public official commits an
offeuse if he GFtugly:
(1) participates in a vote or decision on a
matter involving a business entity in which the
local public offjs:ial has a substantial interest
if it is reasoaahiy foreseeable that an action on
the matter would ':onferan economic benefit to the
business entity iwrolved;
(2) acts as surety for a business entity that
has a contract, work, or business with the
governmental enti:y; or
(3) acts es surety on =nY official bond
required of an of:iicerof the governmental entity.
(b) An offenm under this section is a Class A
misdemeanor.
Sec. 4. If a :Localpublic official or a persou
related to thati;jificial la the first or second
degree by either >lffinity or consanguinity has a
substantial intsr,est in a business entity that
vould be pecul&lv affected bv anv official
action taken by the governing body.- the local
public official, 'beforea vote or decision on the
matter, shall fill!an affidavit stating the nature
and extent of the interest and shall abstain from
further particiI~a~tion in the matter. The
affidavit must be filed with the official
recordkeeper of the governmental entity.
These provisions prohibit a "local public official" from taking
certain actions regarding a "business entity" in which he has a
p. 1404
Honorable Oscar R. Mauay - P,aSe4 (JM-308)
substantial interest. SectLou l(1) of article 988b defines "local
public official" to include a member of the governing body of any
local gowermaeutal entity wt,o exercises responsibilities beyond those
that are advisory in nature. We assume, without deciding, that the
commissioner of a public housing authority is a local public official
within this definition. Sect:Lonl(2) defines "business entity":
'Business entity' wsaus a sole proprietorship,
partnership. firm, corporation, holding company,
joint-stock company. receivership, Ltrust, or any
other entity recogxlaed in law.
“A tenant . . . occupies the :Landor premises of another in subordioa-
tion to that other's title." Forrest V. Duroell, 26 S.W. 481, 482
(Tax. 1894); Redgrave V. Scbmita. 584 S.W.Zd 374, 376 (Tex. Civ. App.
- San Antonio 1979, no wrl?r See also V.T.C.S. art. 1269k, 010
(conditions of rental and tsnant selection for housing project). A
tenant's occupancy of accomdations in a housing project does not
constitute au interest in a "business entity" within article 988b.
V.T;C.S. Thus, article 9881, does not reach a tenant board member's
interest in his residency in a project. That interest alone does not
implicate a teuant board mewbet in any conflict of interest described
by article 988b, V.T.C.S.
You have not inquired about any other specific provision which
might be particularly relevmt to a tenant of a housing project who
semes as a housing comaissinrer and we have been unable to locate any
such prowisioo. But see Penal Code ch. 39 (abuse of office).
I'UMMARY
The Texas Conmritution does not prohibit the
legislature from matting a bill which requires
oae commissioner of a local housing authority to
be a tenant of a local housing project. A teuant
board member's rersidency in the housing project
does not implicate him in soy conflict of interest
described by artic:ia988b. V.T.C.S.
J hVery truly your
JIM
r3*,
HATTOX
Attorney General of Texas
TOM GRFXN
First Assistant Attorney General
p. 1405
* _ r
Honorable Oscar R. Mauay - Page 5 (JM-308)
DAVID R. RICEARDS
Executive Assistant Attorney General
RICR GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
APPRow:
OPINION COM4ITTEE
Rick Gilpin. Chairman
Jon Bible
Coliu Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
p. 1406