Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
JIM MATTOX December 30. 1983
Attorney General
Suprw Cow! Bulldlng Mr. Alvin J. Barnes opinion no. JM-120
P. 0. Box 1254a Red River Authority of Texas
*us1in. TX. 78711. 254a
302 llamilton Building RO: Status of the Red River
5121475.2wl
Tolox glW574.1357 Wichita Palls. Texas 76301 Industrial Development Authority
T&copier 5121475.0255 under the Open Records Act
Dear Mr. Barnes:
714 J4ckson. Su118 700
Dellss. TX. 75202.4505
214/742-W44 The Development Corporation Act of 1979. article 5190.6,
V.T.C.S., was amended in 1983 by the inclusion of sections 11(b) and
14A which purport to specifically bring within the ambit of both the
4S24 AlWrla Ave.. Suita~lSLl Open Meetings Act, article 6252-17, V.T.C.S., and the Open Records
El Paso. TX. 79905-2793
SlY53W484
Act, article 6252-17a. V.T.C.S., non-profit industrial development
corporations formed pursuant to the act. Acts 1983, 68th Leg., ch.
r
464. 114. 5, at 2685-2686. Sectfon 11(b) of the act now reads:
.dQl Texas. Suite 700
Hourton. TX. 77002.3111 The board of directors is subject to the open
71Y22waS5
meetings act, Chapter 271, Acts of the 60th
Legislature. Regular Session, 1967. as amended
806 Broadway. We 312 (article 6252-17. Vernon’s Texas Civil Statutes).
LuObock. TX. 79401-3479
So5l747.5235 Section 14A now reads as follows:
4309 N. Tanth. Suite B The board of directors is subject to the open
McAllen. TX. 78601-1885 records act, Chapter 424, Acts of the 63rd
5W552-4547 Legislature, Regular Session 1973. as amended
(article 6252-178, Vernop’s Texas Civil Statutes).
200 Msln PIU& suiu 4w
San Antonlo. TX. 752052797 You ask four questions regarding the effect of the recent amendments.
512/2254191 We address each of your questions in turn..
-. . _ _ _ _ _ -
You first ask whether industrial development corporations must
An Equal Opport~nltyl
comply with the Open Meetings Act, article 6252-17. V.T.C.S. You
Afflrma~iv~ Actlon Employer
assert that, since the Open Meetings Act requires compliance only by
“governmental bodies,” Industrial development corporations fall
without the ambit of the act because Industrial development
corporations are not “governmental bodies.” We disagree. We need not
address whether an industrial development corporation is a
“governmental body” for purposes of the Open Meetings Act in order to
P answer your question. In an instance in which a general statute and a
specific statute conflict, the specific controls over the general.
.
Mr. Alvin J. Domes - Page 2, (JM-120)
Sam Bassett Lumber Compooy v. City of Rouston, 198 S.U.?d 879. 881
(Tex. 1947); State v. Bolli, 190 g.W.2d 71 (Tax. 1944). cert. denied,
328 U.S. 852 (1946). rehearing denied, 328 U.S. 880 (1946). Whether
an industrial develonmsnt cornorotion is o “sovernmentol bodv” is
irrelevant; it is clear that ;he legislotura i&ads that, at -leoat
for purposes of the Open Meetinga Act, it ahall be so considered. A6
the Texas Supreme Court declared:
The language [of the statute] appears to be plain
and unambiguous and itr meaning clsor and obvious.
We can only enforce the statute 06 written and
have no right to create or to find on ambiguity
vhere non exists . . . .
Col-Tex Refining Company v. Railroad Cormiseion of Texas, 240 S.W.Zd
747, 750 (Tex. 1951). We are obliged to interpret the statute in a
way which expresses only the will of the makers of the statute. not
forced or strained, but simply such aa the words of the low in their
plain sense fairly sanction and will clearly sustain. Railroad
Ccnrmission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968); Texas
Righwoy Cosanission v. El Peso Building and Construction TG
Council, 234 S.W.2d 857. 863 (Tex. 1950). Accordingly. we conclude
that, by the amendments to article 5190, V.T.C.S., set forth In Acts
1983, Sixty-eighth Legislature. chapter 464. sections 4 and 5 at
2685-2686. the legislature intended that industrial development
corporations created pursuent to the Industrial Development
Corporation Act be considered “governmental bodies” for purposes of
the Open Meetings Act.
You next ask in which location or locations should such
corporations post notice of meetings under the Open kleetinga Act. The
recent omendmeats offer us no guidance. The Open Meetings Act at
article 6252-17. section 3A. V.T.C.S.. sets forth the notice
requirements df the act and lists various types of politlcsl
subdivisions and the locatlone where they must post notices. No
mention is made of Industrial development corporations.
We ore required to interpret a statute so OS to ascertain and
give effect to the legislative. intent therein expressed, Knight v.
International Rarvester Credit Corporetion, 627 S.W.Zd 382. 384 (Tex.
1982) ; State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). We must
consider the history of the subject matter involved. the end to be
attained, the mischief to be remedied, and the nurnose to be
accompllshed. Cslvert V. Fort Worth Notional Bank, 356-S.W.2d 918,
921 (Tex. 1962); Magnolia Petroleum Company v. Walker, 83 S.W.2d 929,
934 (Tex. 1935). Clearly, the legislature intended that. at least for
purposes of the Open Meetings Act; industrial development corporations
are considered to be “governmental bodies.” Such corporations are -
created with the approval of and act on behalf of political
p. 506
I4r. Alvvin J. Bones - Page 1 (JW120)
subdivlmions. Section 4(o) of lrtlcle 5190.6. V.T.C.8.. provides es
~fdlawo:
Any number of neturol persons, not less them
three, each of wha le lt leoet 18 years of ege
and o qualified elector of the unit may file with
the governing body of o unit a written aDDlicotion
requ&ing that -the unit outhorlse and approve
creotion.of~ o corporation to act on behalf of the
unit . . . . If the governing body by appropriate
resolution finds and determines that it is
advisable that the corporation be outhorlzed and
created and approves the articles of incorporation
propored to be used in orgenising the corporation,
then the orticler of incorporation for the
corporation may be filed as hereinafter
provided . . . . No corporation may be formed
unless the unit has properly adopted o resolution
as herein described. (Emphasis added).
The act defines “unit” to meon “o city, county, or district which may
-
create and utilize o corporation.” V.T.C.S. art. 5190, f2(12). In
order to properly effectuate the apparent intention of the legislature
in adopting the recent amendments, we conclude that an industrial
development corporation must file notice of meetings under the Open
Meetings Act in the same manner and in the same location as the
political subdivision whose approval is required and on whose behalf
the corporation is created.
You next ask whether the boards of dfrectors of such corporations
ore now precluded from taking officio1 action by means of unanimous
consent without holding a meeting on the subject, o power specifically
granted to industrial development corporations by section 14(c) of the
*ct. We conclude that they ore.
Section 14(c) of article 5190.6, V.T.C.S.. provides the
following:
Any action required’ by this Act to be taken at
a meeting of the directors of a corporation or any
action which may be taken ot a meeting of the
directors may be tsken without o meeting if o
consent in writing, setting forth the action to be
token, shall be signed by all of the directors.
Such consent shall have the some force and effect
as o unanimous vote and may be stated as such in
any articles or document filed with the secretary
r of state under this Act.
p. 507
Mr. Alvin J. garner - Page 4 (JBHZO)
An act which is later in point of time coetrolaox eupereedeson
earlier act, inaofor sa the tvo ore 1nconaiatantand irreconcilable
and cannot both stand at the same time. Texar State goard of Pharmscy
v. Kittmen, 550 S.W.Zd 104, 106 (Tex. Civ. *pp. - mler 1977. no
writ); Eelsell 'I.Texas Water C41iaaion, u)O S.W.2d 1 (Tex. Civ. App.
- Dellea 1964, writ ref'd n.r.8.). If stotutea have conflicting
proviaiona,the earlier otatuta mill be held to be repealed only to
the extent of the conflict end othervise vi11 be construed OS
remaining in effect. Bank of Texas v. Childr, 615 S.W.2d 810, 814
(Tex. Civ. A& - Dallas 1981. vrit ref'd n.r.e.1.
Section 14(c) of article 5190.6, V.T.C.S.,vhich permit8 boards
of directors of industrial development corporation8 to teke official
action without l meeting if a consent in writing. setting forth the
action to be taken is signed by all of the directors,io in direct and
irreconcilable conflict with section 2(o) of article 6252-17,
V.T.C.S., the Open Meetings Act, which require8 that every regular,
special, or called meeting of every unit falling within the aubit of
the act shall, unless othervise provided in the Open Records Act or
permitted by the constitution, be open to the public. Because the
recent amendment bringing industrial development corporations within
the purview of the Cpen Records Act is the provision adopted later in
tims, this is the provision to which we are obligated to give effect.
Accordingly, we conclude that boards of directors of industrial
development corporations are precluded from taking officio1 action
without a meeting as permitted by section 14(c) of the act.
You finally oak whether industrial development corporations must
comply with the requirements of the Open Records Act, article
6252-17a. V.T.C.S. We conclude that they do. You assert here, OS you
did with respect to your first question, that on industrial
development corporation la not a "governmental body" under the
definition set forth in the Cpen Records Act. For the reasons
discussed and by virtue of the authorities cited above in ansuer to
your first question, we disagree. We conclude that the legislature
intended that industrial development corporations created pursuant to
the Industrial Development Act of 1979, article 5190.6. V.T.C.S.. be
considered "governmental bodies" for purposes of the Cpen Records Act.
SUXMARY
Industrial Development Corporations created
pursuant to srticle 5190.6, V.T.C.S., are
considered to be. "governmental bodies" for
purposes of the Open Meetings Act. article
6252-17. V.T.C.S. An industrial davelopuent
corporation must file notice of meetings as
required by the Open Meetings Act in the aoue
manner and in the same location as the political
p. 508
Hr. Alvin J. Barn.. - Page 5 (J?l-120)
aubdiviaioa whore approval la required and on
whom behalf the corporation ia created. Boarde
of directors of iaduatrial development
corporationa are precluded from taking officiel
action without a meeting held in comPliancr with
the Open Meetinga Act; section 14(c) of article
5190.6. V.T.C.S.. is impliedly repealed. Boarda
of directors of industrial development
corporations created pursuant to article 5190.6.
V.T.C.S.. are considered to be “governmental
bodies” for purposes of the Open Records Act.
article 6252-170. V.T.C.S.
.Jxn WATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINIONCOMl4ITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton
p. 509