Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 9, 1983
JIM MATTOX
Attorney General
Honorable Felipe Reyna opinion No. JM-4
Supreme Court Building Criminal District Attorney
P. 0. Box 12548 McLennan Countv Courthouse Re: Whether water board of
Austin. TX. 78711. 2548
Waco, Texas i6703 city of Robinson is required
5121475.2501
Telex 9101874-1367
to comply with article 6252-17,
Telecopier 5121475.0266 V.T.C.S.
Dear Mr. Reyna:
1607 Main St.. Suite 1400
Dallas. TX. 75201-4709
2141742.8944
You have asked us to determine if the board -.
of trustees
._.for .the
city of Robinson waterworks is (1) a governmental body as defined in
article 6252-17, section l(c), V.T.C.S.; (2) required to conduct
4824 Alberta Ave.. Suite 160 meetings which are open to the public as provided by article 6252-17,
El Paso. TX. 79905.2793
9151533.3484
section 2(a), V.T.C.S.; and (3) required to post a written notice of
each meeting as provided in article 6252-17, section 3A. V.T.C.S.
r
,220 Dallas Ave.. Suite 202 Article 6252-17 prohibits governmental bodies from holding
Houston, TX. 77002.6986
meetings which are closed to the public, unless authorized by an
7131650-0666
exception. Section l(c) defines "governmental body" as:
806 Broadway. Suite 312 any board, commission, department, committee, or
Lubbock. TX. 79401.3479 agency within the executive or legislative
8061747-5238 department of the state, which is under the
direction of one or more elected or appointed
4309 N. Tenth. Suite S
members: and everv Commissioners Court and citv
McAlten. TX. 78501-1685 council in the state, and every deliberative body
5121682-4547 having rule-making or quasi-judicial power and
classified as s department, agency, or political
200 Main Plaza, Suite 400
subdivision of a county or city; and the board of
San Antonio. TX. 782052797 trustees of every school district, and everv
51212254191 county board of skhool trustees and -county boa&
of education; and the governing board of every
special district heretofore or hereafter created
An Equal Opportunity/
Affirmative Action Employer
by law. (Emphasis added).
Articles 1111 through 1118, V.T.C.S., establish the authority for
cities and towns to encumber any city owned utility. Article 1111
empowers cities and towns, inter alia. to mortgage and encumber water
systems. Article 1115 permits control of the encumbered system to be
placed in a board of trustees named in the encumbrance. Article 1115
states:
p. 12
Honorable Felipe Reyna - Page 2 (JM-4)
The management and control of any such system
or systems during the time they are encumbered,
may by the terms of such encumbrance, be placed in
the hands of the city council of such town, or may
be placed in the hands of a board of trustees to
be named in such encumbrance, consisting of not
more than five members, one of whom shall be the
mayor of such city or town. The compensation of
such trustees shall be fixed by such contract, but
shall never exceed five per cent of the gross
receipts of such systems in any one year. The
terms of office of such board of trustees, their
powers and duties, the manner of exercising same,
the election of their successors, and all matters
pertaining to their organization and duties may be
specified in such contract of encumbrance. In all
matters where such contract is silent, the laws
and rules governing the council of such city or
town shall govern said board of trustees so far as
applicable. (Emphasis added).
The Robinson city council created the board of trustees in an
ordinance which tracked the language of article 1115. The powers and
duties of the board created by the ordinance include the power to fix
all rates and to adopt and enforce all rules and regulations the board
deems necessary or proper. This is also consistent with the statutory
placement of "management and control" of the system with a board of
trustees.
Article 1115 allows a municipality to delegate its power to
manage and control a city owned utility to a board of trustees to act
as the city's agent while the utility is encumbered. Texas courts
have concluded that an article 1115 board of trustees is an anent of
the city. Tuttle v. Guadalupe-Blanco River Authority, 174 S.WI2d 589
(Tex. 1943) affirming 171 S.W.2d 520 (Tex. Civ. App. - San Antonio
1943); see also Guadalupe-Blanco River Authority v. City of San
Antonio, 200 S.W.Zd 989 (Tex. 1947) (accepting without comment prior
Texas Supreme Court decision that Board of Trustees had no standine,to
sue); Miieles v. Deer Run Properties, Inc., 616 S.W.2d 342, 343 (Tex.
Civ. App. - San Antonio 1981, no writ); Crownhill Homes, Inc. v. City
of San Antonio, 433 S.W.2d 448 (Tex. Civ. App. - Corpus Christ1 1968,
writ ref'd n.r.e.) (Action of board of trustees of waterworks in
regulating extension of water mains was exercise of legislative or
governmental power, not proprietary).
Based on these Texas cases, it is our opinion that the board of
trustees is an agency of the city authorized by statute and ordinance
to manage and control the waterworks system of the city of Robinson
and that the board has been delegated legislative and governmental
p. 13
. .
Honorable Felipe Reyna - Page 3 (JM-4)
powers for that purpose. Thus, the board of trustees is a
"department, agency, or political subdivision of the city" which has
rule making authority and is a governmental body as defined in article
6252-17, section l(c). Meetings of the board of trustees must comply
with article 6252-17, and written notice of each meeting must be niven
as required in article 6252-17, section 3A. See Lower-Colorado River
Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); Lake
County Estates v. Toman, 624 S.W.2d 677 (Tex. Civ. App. - Fort Worth
1981, writ ref'd n.r.e.); Lumberton Municipal Utility District v.
Cease, 596 S.W.2d 601 (Tex. Civ. App. - Beaumont 1980, no writ).
SUMMARY
The board of trustees for the city of Robinson
waterworks is a governmental body as defined in
article 6252-17, section l(c). Meetings of the
board of trustees must be open to the public as
provided by article 6252-17, section 2(a), and
written notice of each meeting must be given as
required in article 6252-17, section 3A.
LLJ~
Very truly you
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 14