Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 28,2003
The Honorable Robert Duncan Opinion No. GA-0065
Chair, Senate Jurisprudence Committee
Texas State Senate Re: Whether the Texas Water Advisory Council
P.O. Box 12068 is subject to the requirements of the Public
Austin, Texas 787 1 l-2068 Information Act, chapter 552 of the Government
Code (RQ-0632-JC)
Dear Senator Duncan:
As the former chair of the Senate Natural Resources Committee, you asked whether the
Texas Water Advisory Council is subject to the requirements of the Public Information Act, chapter
552 of the Government Code (the “Act”).
The Texas Water Advisory Council (the “Council”) was created by the Seventy-seventh
Legislature. See Act of May 27,2001,77th Leg., R.S., ch. 966,200l Tex. Gen. Laws 1991, 199 l-
95. The Council is composed of thirteen members, including five elected and appointed officials,
three members of the House of Representatives, two members of the Senate, and three members of
the public. TEX. WATER CODEANN. 8 9.002(a) (Vernon Supp. 2003). Members of the Council
serve without compensation, but “may be reimbursed by legislative appropriation for actual and
necessary expenses related to the performance of council duties . . . subject to the approval of the
chair.” Id. 5 9.007(a)-(b). The Council’s funding is provided by an “interagency water advisory
account,” which is “a special account in the general revenue fund.” Id. 4 9.014(a). This special
account “consists of legislative appropriations, gifts and grants received under Section 9.013, and
other money required by law to be deposited in the account.” Id. 8 9.014(b).
The statutes creating the Council make clear that it is an advisory body only. Its purpose is
to “heighten the level of dialogue on significant water policy issues and, in an advisory role only,
strive to provide focus and recommendations on state water policy initiatives.” Id. tj 9.008(a)(l).
The Council is further required to (1) “encourage the enhancement and coordination of state,
interstate, and international efforts to improve environmental quality and living conditions along the
Texas-Mexico border,” (2) “coordinate a unified state position on federal and international water
issues,” and (3) “advise the Texas Water Development Board on developing criteria for prioritizing
the funding of projects in the state water plan.” Id. 5 9.008(a)(2)-(4). The Council is specifically
prohibited from adopting rules; regulating any aspect of water resource management; planning or
constructing water resource projects; granting or lending money for the construction of water
resource projects; usurping the authority or infringing upon the duties or responsibilities of local,
The Honorable Robert Duncan - Page 2 (GA-0065)
regional, or state water management entities; or, considering or discussing a specific permit or
project before the water permit has been issued by the state. Id. 8 9.008(b).
Section 9.006(b) of the Water Code provides that “[tlhe council is subject to Chapters 551
and 2001, Government Code,” which enact, respectively, the Open Meetings Act and the
Administrative Procedure Act. Id. 8 9.006(b). Because the legislation creating the Council omitted
reference to the Public Information Act, you ask whether the Council is also subject to that statute.
The Act defines “public information” as “information that is collected, assembled, or
maintained under a law or ordinance or in connection with the transaction of official business” by,
inter alia, “a governmental body.” TEX. GOV’T CODE ANN. 5 552.002 (Vernon Supp. 2003).
“Governmental body” in turn is defined to include the following entities:
(i) a board, commission, department, committee, institution,
agency, or office that is within or is created by the executive or
legislative branch of state government and that is directed by one or
more elected or appointed members;
(xi) the part, section, or portion of an organization,
corporation, commission, committee, institution, or agency that
spends or that is supported in whole or in part by public funds.
Id. 8 552.003(1)(A)(i), (x1‘), amended by Act of May 24,2001, 77th Leg., R.S., ch. 1004, 8 2,‘200 1
Tex. Gen. Laws 2186,2187.’
The Council is unmistakably a governmental body for purposes of the Act. It is “within” the
executive branch of state government. It was “created” by the legislative branch of government.
Furthermore, as an entity consisting of thirteen members, it is “directed by one or more elected or
appointed members.” See id. In addition, the Council expends and is supported by public funds.
See TEX. WATER CODE ANN. 5 9.014 (Vernon Supp. 2003). Because the Act’s literal terms so
clearly encompass the Council, the mere omission from the Council’s enabling legislation of a
statement that the Act applies is immaterial. We conclude that the Council is subject to the Public
Information Act.
‘House Bills 37 1 and 936 amended section 552.003 during the Seventy-seventh Legislative Session, but neither
bill changed the substance of the quoted subsections. See TEX. GOV’T CODE ANN. 9 552.003 historical note (Vernon
Supp. 2003) [Act ofMay 17,2001,77th Leg., R.S., ch. 633,s 1,200l Tex. Gen. Laws 11941 [Act of May 24,2OOi, 77th
Leg., R.S., ch. 1004, 5 2, 2001 Tex. Gen. Laws 2186,2187].
The Honorable Robert Duncan - Page 3 (GA-0065)
SUMMARY
The Texas Water Advisory Council is subject to the Public
Information Act, chapter 552 of the Government Code.
Very truly yours,
eneral of Texas
. BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee