Untitled Texas Attorney General Opinion ( 1996 )

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DAN MORALES November 25, 1996
ATTORNEYGENERAL
The Honorable Fred Hill Opinion No. DM-426
Chair
Committee on Urban Affairs Re: Whether a housing authority created under
P.O. Box 2910 chapter 392 of the Local Government Code is subject
Austin, Texas 78768-2910 to the Open Meetings Act (RQ-897)
Dear Representative Hill:
You ask whether a housing authority created under chapter 392 of the Local Government
Code is subject to the Open Meetings Act, Gov’t Code ch. 55 1. The Open Meetings Act applies to
the meetings of governmental bodies. Id. 5 551.002. It defines the term “governmental body” to
include the following:
(B) a county commissioners court in the state;
(C) a municipal governing body in the state;
(D) a deliie body that has rulemaking or quasi-judicial power and
that is class&d as a department, agency, or political subdivision of a county
or municipality;
.
(H) the governing board of a special district created by law.
Id. § 551.001(3). The latter two definitions are the most relevant for purposes of your query.
Chapter 392 of the Local Government Code provides for the creation of municipal, county
and regional housing authorities. Sections 392.011 and 392.012 provide for the creation of municipal
and county housing authorities, which may not transact business until the governing body of the
municipality or county declares by resolution that there is a need for the authority. Pursuant to
section 392.013, a regional housing authority is created if the commissioners courts of two or more
contiguous counties declare by resolution that there is a need for such an authority. Each type of
housing authority is a “public body corporate and politic.“’ The five commissioners of a municipal
or cotmty housing authority are appointed by the municipal governing body’s presiding officer or the
‘Local Gov’t code $6 392.01 I(b), .012(b), .013(b).
The Honorable Fred Hill - Page 2 (DM-426)
commissioners court, respectively.* Each participating county appoints at least one commissioner
to a regional housing authority.’ A housing authority “exercises public and essential governmental
timctions and has the powers necessary and convenient to accomplish the purposes and provisions”
of chapter 392.’ The powers of a housing authority are vested in the commissioners of the authority,
who may delegate a power or duty to an agent or employee.’
Texas case law and opinions ofthis office have concluded that a municipal housing authority
is a division of the city that created it.6 Similarily, this office has concluded that a county housing
authority is a division of the creating county.’ On the basis of this authority, we conclude that a
municipal housing authority is “a department, agency, or political subdivision of a. municipality
and that a county housing authority is a “a department, agency, or political subdivision of a county”
for purposes of section 55 1.001(3)@) of the Open Meetings Act.
We also conclude that a municipal or county housing authority is a “deliberative body that has
rule-making or quasi-judicial power” for purposes of section 551.001(3)(D). A housing authority
takes action based on a vote of the commissioners,* is authorized to make rules to implement its
powers and purposes: and has extensive governmental powers” that include the authority to acquire
‘Id. $5 392.031. .032.
‘Id. $392.033
‘Id. 5 392.051(a)
*Id. 5 392.051(b), (c).
6See Micrs Y. Housing Auth. o/Dollar, 266 S.W.2d 487.490 flex. Civ. App.--Dallas 1954, writ r&d are.)
(holding housing authority was division of city that created it and tberefcre subject to band requirements governing cities
in ’ +ion case); Aetna Can&y & Sun&~ Co. v. Gliddcn Co.. 283 S.W.Zd 440 (Tex. Civ. App.--Ens&and 1955).
mv ‘d on other grounds, 29 1 S.W.2d 3 15 (Tex. 1956) (holding housing authority was division of city that created it and
therefore abject to ethte goveming public. casttuction perforancc tads); Attorney General Opinions DM-71(1991)
(municipal housing authaity cnxted under Local Government C&e chapter 392 is division of municipality for purpose
of Local Government Code, section 215.001 preempting municipal regulation of fkums). JM-573 (1986) (municipal
housing wtbaity, as division of city, is subject to competitive bidding requirements applicable to cities). MW- 132 (1980)
(me).
‘Attorney General Opinion C-760 (1966) (county housing authority, as division of county, subject to laws
governing sale ofexcess county property) (relying upon Mien, 266 S.W.Zd 487. and Aetna, 283 S.W.2d 440).
‘Local Gov’t Code 8 392.036.
91d. 5 392.065(5).
‘?% id. $5 392.051, ,052.
p. 2376
The Honorable Fred Hill - Page 3 (DM-426)
real property by eminent domain” and to issue bonds, ‘* Furthermore, a municipal or county housing
authority’s ability to act, which is separate from and does not require the approval of the creating
municipality or county, distinguishes it from departments of cities and counties that do not fall within
the detinition of “‘governmentalbody” because they are merely advisory bodies, See, e.g., Attorney
General Opiion H-467 (1974) (city’s library board, which acted solely in advisory capacity and had
no rule-making authority, not subject to Open Meetings Act).
We also note tbat this office has stated that “[ilust as the Housing Authorities may receive the
beneSt of stat&s applying to cities and counties, so they must comply with the statutes applying to
cities and counties where such statutes do not contlict with the powers granted to them” by law.13
Chapter 392 requires a housing authority to hold a public meeting about a proposed housing project
before the site for the project is approved. ” Some of the statutory requirements speci6cally
applicable to such a meeting exceed the requirements of the Open Meetings Act. I5 We do not believe
that these requhemems contlict with the Open Meetings Act, because a housing authority can comply
with these specitic meeting requirements in chapter 392 and comply with the more general
requirements in the act. A housing authority’s compliance with the Open Meetings Act would not
conflict with sny provision of Local Government Code chapter 392. Therefore, we conclude that a
municipal or county housing authority is a “governmental body” under section 55 1.001(3)(D) of the
Open Meetings ActI
“Id. 5 392.061.
‘*See id. ch. 392, sub&. E.
‘3Attome-yGeneral Opinion C-760 (1966) at 5.
“Sk.2 Lmxl ciov’tcode $5 392.053. .054(a) (“In Pxlditiorlto my other notice required by law. .?).
%e. e.g., td 55 392.053(d) (~tig housing authority to akw’ certain persons to Comment at meeting), ,054
(requiring notice to be posted at county courthow and city hall, published in newspaper. mailed to certain persoos. and
posted on sign et tbc proposed lacntion 30 days prior to meeting).
‘%e bwc nceivcd e letter brief from the Dallas Housing Authority CDHA”) contending that it is not subject to
tkOpmh4eet+Act. Thelmerbricflrferstoanexmpt~a~ptofahcaringbdorrefedaaldistrictco~in
which the court rul& 6an the bench that the “Open Meetings Act is not applicable to the DHA board ofdkctors. It is not
within the plain language of the Act The DHA board is not a delikativc body. It does not have de-making 01
quasi-judicial power. It is without question not B department, agency or political &division of the City of Dallas.”
Transcript of Hearing Before the Honorable Jerry Buchmeyer at 201, Public Housing Steering Comm., Inc. v. Homing
Auth., No. 3:95-CV-1374-R (N.D. Tex. Sept. 19,199S).
Lowafederalcornt~~intaprdingTexaslawllremtbindingonTexascollrts. SecLongviewBank& Trwt
v. Fint Nat’1 Bank, 750 S.W.2d 297, 300 (Tex. App.--Ft. Worth 1988, no writ); Wwdard v. Texas Dep’t of HUIIIU~
Resources, 573 S.W.Zd 596,598 (Tex App.-Amarillo 1978. wit r&d n.r.e.) (citing Texas Oil & Gas Co. Y. Vela 405
S.W2d68,73-74 (Tex Civ. App.-San Antcnio 1966), judgm’fsetmide on othergrounds, 429 S.W.Zd 866 (TCX 1968)).
Ciiventbcmq ehtc caxs supporting the conclusion that a municipal housing authority is a division of the city that created
it, see authorities cited supra note 6, and the fact that chapter 392 of the Local Govemment Code vests the powa of B
hc&ngautbc5ityinthc oamnisdonas of the autbaity, see Local Gov’t Code p 392.05 1(b). provides that the cGmmissiouers
(mtinucd...)
p. 2377
TheHonorableFredHlll - Page 4 (DM-426)
A regional housing authority is created by two or more counties and extends into two or more
counties. We are not aware of any cases holding that a regional housing authority is a division of a
county or counties. Given the lack of precedent that would support the conclusion that a regional
housing authority is a governmental body under section 551.001(3)(D), we consider whether a
regional housing authority is a “special district” under section 55 1.OO1(3)(H) of the Open Meetings
Act. In Sierra Club v. Austin Tramportation Study Policy Advisory Committee, 746 S.W.2d 298
(Tex. App.-Austin 1988, writ denied), the court of appeals considered whether the Austin
Transportation Study Policy Advisory Committee (“ATSPAC”) - a seventeen-member committee
consisting of state, county, regional, and municipal government officials, created pursuant to federal
law to enable state and local participation in planning federal highway projects - was a “special
district” under the detlnition of “governmental body” now set out in section 55 1.001(3)(H). Noting
that the term “special district” had not yet been defined in case law, the court relied upon the
following broad definition of “special district” in Bluck’s Law Dictionary:
A limited governmental structure created to bypass normal borrowing
limitations, to insulate certain activities from traditional political influence,
to allocate Iunctions to entities reflecting particular expertise, to provide
services in otherwise unincorporated meas, or to accomplish a primarily local
benefit or improvement, e.g., parks and planning, mosquito control, sewage
removal.”
Emphasiig the importance of ATSPAC in planning and obtaining federal timds for highway
construction in the Austin urban area (which extended into five counties) and finding that ATSPAC
was an official body designated by the governor in order to “accomplish a primarily local benefit or
improvement,” the court concluded that ATSPAC was a “special district” within the Open Meetings
Act’s definition of “governmental body.”
A regional housing authority falls within the Sierra Club court’s broad construction of the
term “special district.” Because a regional housing authority has extensive governmental powers” --
including the authority to acquire real property by eminent domain’9 and to issue bondsr” -- and a
circmnscriid mission -- to provide low-income housing -- it is a “1imited governmental structure.”
In addition, the legislature appears to have authorized contiguous counties to join together to create
take action based on B majority vote. see id. g 392.036, and authcrizes the cornmissioners to m&e rules, see id.
5 392.065(S), WCbelieve a state court addresiig this question would reach a di&rent cuncltim
“Sierra Club, 746 S.W.2d at 301 (quoting BLACK’SLAWDICTIONARY
1253 (5th ed. 1986)).
%cd Gov’t Code $9 392.05 1 (general powers). ,052 (operation of housing projects), .056 (ownership ofreal
property), ,057 (investment of iimds), ,065 (miscellaneous powers).
191d.5 392.061.
?% id. ch. 392, mbch. E,
p. 2378
The Honorable Fred Hill - Page 5 (~~-426)
a regional housing authority in order to allocate the task of providing low-income housing to an entity
with particular expertise and to accomplish a primsrily local benefit or improvement. Even a regional
housing authority extending into several counties would be no less local in scope than the committee
at issue in Sierra Club, whose activities affected a five-county area. Finally, a regional housing
authority, with its extensive authority to act to achieve its purpose,2’ is in no respect merely an
advisory body. ** Accordingly, we conclude that a regional housing authority under chapter 392 is
a “governmental body” subject to the Open Meetings Act.
SUMMARY
A municipal, county or regional housing authority created under chapter
392 of the Local Government Code is a “governmental body” subject to the
Open Meetings Act, Gov’t Code ch. 55 1.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
%e supro notes 18-20.
*In Attcmey General Opinion Jh4-I 18.5,this o&x concluded that a criminal justice council is not a special district
under Sierra Club because it acts in an advisory capacity only. Attorney General Opiion JM-I 185 (1990) at 5.
p. 2379