Untitled Texas Attorney General Opinion ( 1972 )

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March 13, 1972
Honorable Grant Jones Opinion NO. M- 1096
Chairman, Urban Affairs Committee
Texas House of Representatives Re: Whether a tenant of a
P. 0. Box 2777 Housing Authority is
Abilene, Texas eligible to serve as a
Commissioner of that
Dear Representative Jones: Housing Authority.
Your recent letter requested the opinion of this
department as to whether a tenant o'f a Housing Authority is
eligible to serve as a Commissioner of that Housing Authoriky.
A Housing Authority for each city of the State is
authorized by Article 1269k, Vernon's Civil Statutes, as amended.
That statute was originally enacted as Chapter 462, Acts of the
45th Legislature, Regular Session, 1937.
Section 6, unchanged since the original act, is captioned
"Interested commissioners or employees."
Section 6 reads as follows:
"Sec. 6. Interested commissioners or em-
ployees. No commissioner or employee of an au-
thority shall acquire any interest-direct or in-
direct in any housing projector in any property
included or ulanned to be included in anv uroiect.
nor shall he-have any interest direct or-*&direct.
in any contract or proposed contract for materials
or services to be furnished or used in connection
with any housing project. If any commissioner or
employee of an authoritv owns or controls an in-
terest direct or indirect in any property included
or planned to be included in any housing project,
he immediately shall disclose the same in writing
to the authority and such disclosure shall be
entered upon the minutes of the authority. Fail-
ure to so disclose such interest shall constitute
misconduct in office." (Emphasis added.)
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Hon. Grant Jones, page 2 (M-1096)
The housing authority is a public corporation created
by the municipality to exercise certain expressly delegated sovereign
powers pursuant to the general statutes. Its commissioners must be
regarded as public officers, with the power to exercise some portion
of the sovereign functions of the government. See Mechen on Public
Officers, Sec. 1; Kimbrough v. Barrett, 93 Tex. 301, 55 S.W. 120
(1900); Attorney General Opinion No, C-527 (1965).
As such public officers, the commissioners are bound by
the public policy of this state which forbids them from placing
themselves in a position in which their private interest conflicts
with their public duty. The good faith of the official is of no
legal significance, since the policy of the law is to insure the
exercise of unselfish public interest by the official who is to be
wholly removed from the temptation of serving his individual personal
interest. Meyers v. Walker 276 S.W. 305 (Tex.Civ.App. 1925, no writ),
and numerous cases cited; C& of Edinburq v. Ellis, 59 S.W.2d 99 (Tex.
Comm.App. 1933), and authorities also there cited; Attorney General
Opinion No. O-2980 (1951).
It is within the context of the above common law standard
of conduct for public officers that the Texas Legislature has provided
by Article 1269k, Section 6, that no commissioner may have any in-
terest, direct or indirect, in any housing project. In State v.
Murtes, 232 La. 486, 94 So. 2d 446, 447 (1957) Webster's New Inter-
national Dictionary, Second Edition, is cited for the following
definition of "interested": "Having a share or concern in some
project or affair: involved: liable to be affected or prejudiced."
Webster's Third New International Dictionary defines "interest" as
"the state of being concerned or affected esp. with respect to ad-
vantage or well-being."
Certainly the Texas statute may not be construed as au-
thorizing a tenant to serve as a Housing Authority Commissioner.
This is consistent with the common law prohibiting conflicts of in-
terest and should be interpreted in harmony therewith. By Article
1, Vernon's Civil Statutes, Texas adopted the common law insofar as
it was not inconsistent with the Constitution and laws of this State,
and provided that it would be the rule of decision until altered or
repealed by the Legislature.
The question you have asked has been answered in the negative
by the Attorney General of Connecticut in an Opinion dated April 12,
1971, and by the Attorney General of Missouri in an Opinion No. 212
(Aug. 11, 1969). In the only case of which we are aware, deciding
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Hon. Grant Jones, page 3 (M-1096)
the question, that is Housing Authority of the City of New Haven,
et al. v. Donald T. Dorsey, et al., No. 127,1354, the Court like-
wise concluded that under an almost identical statute of Connecticut
tenants of a Housing Authority could not serve as Commissioners.
This decision in effect upheld the Attorney General's position and
analysis of the conflicting interest of the tenant. We quote from
the Connecticut Attorney General's Opinion:
"The interest of a tenant who is a housing
authority commissioner obviously centers on the
points at which the management functions and
policies of the authority come into contact with
individual tenants in both low and moderate in-
come projects. This includes the selection and
retention of tenants in the project; the deter-
mination of the rents to be charged for units in
the project: the upkeep and maintenance of the
project; the services and other benefits furnished
by the authority to the tenants of the project;
and the enforcement of project rules governing
the conduct and rights of tenants within the
project.
"In fixing rents the commissioners must con-
sider the amounts of payments on the principal
and interest of the bonds of the authority as such
payments become due; the cost of maintaining and
operating the projects, including the cost of
insurance and the administrative expenses of the
authority; and the amounts to be set aside in
reserves for repairs, maintenance and replace-
ments, and for vacancy and collection losses.
(Sec. 8-45 and S-72, Gen. Stat.)
"The ramifications of fixing rent charges
are such that the tenant as housing authority
commissioner must vote to increase his own rent
to a level sufficient to amortize and service
the authority's debt obligations. If the tenant
commissioner lives in a moderate rental project,
he is expected to decide whether or not to in-
crease his rent to a level great enough to set
up reserves for repairs and maintenance. If
either determination depends on the vote of a
tenant as housing authority commissioner who is
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Hon. Grant Jones, page 4 (M-1096)
reluctant to pay a higher rent for his unit, the
authority can fail to pay its bonded indebtedness
and it can fail to set aside money for the upkeep
of the project. This can affect the authority
through a possible bond default on the one hand
and unchecked physical depreciation of the housing
authority's properties on the other.
"Other examples of the authority's votes in-
clude setting and enforcing its policy in deciding
whether or not to pursue delinquent rents and to
evict tenants. The housing authority commissioners
must also decide whether or not to renovate the
project unit or building occupied by the tenant
commissioner, himself, as well as the replacement
of wornout appliances in his unit. Finally, each
tenant as commissioner participates in voting on
decisions that involve the hiring and firing of
housing authority personnel who deal with him and
his family from day to day.
"In view of this, it might be concluded that
there is no area of the commissioner's management
of the housing authority that does not bear direct-
ly on the amount of rent that the tenant housing
authority commissioner will be expected to fix as
an obligation for himself, or on the rules the
tenant and his family will have to obey in their
relations with the authority as landlord.
"Thus, whether the tenant as housing authority
commissioner is, in fact, receiving the benefit
of controlling the financial burden governed by
his vote, his personal interests are always directly
or indirectly involved in his vote in the commission.
His personal interests are not inevitably and on all
occasion antagonistic to the interests of the hous-
ing authority as such. But the existence of a con-
tract for the commissioner's tenancy in the housing
authority project makes it possible for his personal
interests to become antagonistic to his faithful
discharge of his public duty as a housing authority
commissioner. (10 McQuillan, Municipal Corporations
Sec. 29.197 pp. 469-470-J It is the existence of
such an interest that is decisive, not the actual
effect or influence, if any, of the interest. It
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.
Hon. Grant Jones, page 5 (M-1096)
is the potential conflict that concerns the
courts, regardless of the good intentions of
the public officer. (Id., pp. 470-471.)"
In Housing Authority of the City of New Haven,. the Court
said, in part:
"It appears in Connecticut that a tenant
cannot legally serve as a housing authority
commissioner. Whether or not the tenant acts
in total good faith is unimportant. Whether
he runs afoul of Section 8-42, Connecticut
General Statutes, or the well-imbedded common
law concepts of conflict of interest, or both,
is important. He simply cannot serve two
masters--himself as landlord and himself as
tenant. The relationship is such a close one
that disqualification is conclusively and ir-
rebuttably presumed where a juror stands to
either litigant in relation of landlord and
tenant."
In view of all of the foregoing considerations, we must
conclude that a tenant of a Housing Authority under Article 1269k
is prohibited from serving as a Commissioner thereof.
SUMMARY
A tenant may not serve as a Commissioner
of a Housing Authority under Article 1269k,
Vernon's Civil Statutes.
?
You& very tru.ly,
Attorgy General of Texas
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
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Hon. Grant Jones, page 6 (M-1096)
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
W. 0. Shultz
Harold Kennedy
James Quick
Harriet Burke
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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