Case Information

*1 The Attorney General of Texas December 30. 1983 JIM MATTOX

Attorney General opinion no. JM-120

Suprw Cow! Bulldlng Mr. Alvin J. Barnes P. 0. Box 1254a Red River Authority of Texas *us1in. TX. 78711. 254a RO: Status the Red River 302 llamilton Building 5121475.2wl Wichita Palls. Texas 76301 Industrial Development Authority Tolox glW574.1357 under the Open Records Act T&copier 5121475.0255 Dear Mr. Barnes: 714 J4ckson. Su118

Dellss. TX. 75202.4505 The Development Corporation Act 1979. 214/742-W44 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 4S24 AlWrla Ave.. Suita~lSLl Open Meetings Act, article 6252-17, V.T.C.S., and the Open Records El Paso. TX. 79905-2793 Act, article 6252-17a. V.T.C.S., non-profit development SlY53W484 corporations formed pursuant to the act. Acts 1983, 68th Leg., ch. r Sectfon 11(b) of the act now reads: 464. 114. 5, at 2685-2686. .dQl Texas. Suite 700

Hourton. TX. 77002.3111 The board of directors is subject the open 71Y22waS5 meetings 271, Acts the 60th act, Chapter

Legislature. Regular Session, 1967. as amended (article 6252-17. Vernon’s Texas Civil Statutes). 806 Broadway. We 312 LuObock. TX. 79401-3479 So5l747.5235 Section 14A now reads as follows: The board of is subject the open

4309 N. Tanth. Suite B records act, Chapter 424, Acts 63rd McAllen. TX. 78601-1885 Legislature, Regular Session 1973. as amended 5W552-4547

(article 6252-178, Vernop’s Texas Civil Statutes).

200 Msln PIU& suiu 4w

You ask four questions regarding the effect the recent amendments. San Antonlo. TX. 752052797 We address each of your questions in turn.. 512/2254191 -. . _ _ _ _ _ You first ask whether development must

An Equal Opport~nltyl comply with the Open Meetings 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 fall without ambit act because are not “governmental bodies.” We disagree. We need not address whether a “governmental body” for purposes the Open Meetings Act in order P answer your question. In an instance in which a general statute and a

specific statute conflict, specific controls over the general. *2 .

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 develonmsnt cornorotion is o “sovernmentol bodv” it is clear irrelevant; ;he legislotura i&ads that, at -leoat for purposes of the Open Meetinga 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. 06 written and We can only enforce the statute 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 pursuent Development

Corporation Act be considered “governmental bodies” for purposes the Open Meetings Act.

You next ask in which location or locations should such post notice of meetings under the Open kleetinga Act. The recent omendmeats offer us no guidance. The Open Meetings Act at 6252-17. 3A. V.T.C.S.. sets requirements df act and lists various types of politlcsl subdivisions and locatlone where they must post notices. No mention is made of Industrial corporations.

We ore required interpret a statute so OS to ascertain and give effect 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 the subject matter involved. the end to be attained, the mischief to be remedied, 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 purposes of the Open Meetings Act;

are considered to be “governmental bodies.” Such corporations are created with approval and act on behalf of political *3 I4r. Alvvin J. Bones - Page 1 (JW120) subdivlmions. Section 4(o) of l rtlcle 5190.6. V.T.C.8.. provides es

~fdlawo:

Any number of neturol persons, not less them three, each of wha le l t 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 advisable that the corporation be outhorlzed created and approves the articles incorporation propored to be used in orgenising the corporation, then orticler incorporation the 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 corporation must file of meetings under the Open

Meetings Act in same manner and in same location as political subdivision whose approval is required and on whose behalf the corporation is created.

You next ask whether the boards 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 by section 14(c) of the *ct. We conclude they ore.

Section 14(c) V.T.C.S.. provides 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 may be tsken without o meeting if o consent in writing, setting 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 *4 Mr. Alvin J. garner - Page (JBHZO)

An act which is later in point of time coetrola ox eupereedes on earlier act, inaofor sa the tvo ore 1nconaiatant and 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 of the conflict end othervise vi11 be construed OS extent in effect. Bank of Texas v. Childr, 615 S.W.2d 810, 814 remaining (Tex. Civ. A& - Dallas 1981. vrit ref'd n.r.e.1. 5190.6, V.T.C.S., vhich permit8 boards

Section 14(c) of article of directors of industrial development corporation8 to teke official action without l meeting if a consent in writing. setting forth is signed by all of the directors, io in direct action to be taken irreconcilable conflict with 2(o) article 6252-17, V.T.C.S., the Open Meetings Act, which require8 that every regular, or called meeting of every unit falling within the aubit of special, the act shall, unless othervise provided in the Open Records Act or permitted by the constitution, be open to the public. Because recent amendment bringing industrial development within the purview of the Cpen Records Act is the provision adopted later in tims, this the provision to which we are obligated to give effect. Accordingly, we conclude that boards of directors industrial from taking officio1 development are precluded action without a meeting as permitted by section 14(c) the act.

You finally oak whether industrial corporations must comply with the Open Records requirements 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 corporation la not a "governmental body" under the reasons definition set in the Cpen Records Act. For discussed and by virtue the authorities cited above in ansuer to your first question, we disagree. We conclude legislature intended created pursuant the Industrial Development Act of 1979, article 5190.6. V.T.C.S.. be for purposes of the Cpen Records Act. considered "governmental bodies" SUXMARY Corporations Development

pursuant srticle V.T.C.S., are considered be. "governmental bodies" purposes the Open Meetings 6252-17. V.T.C.S. An davelopuent must file meetings as required by the Open Meetings Act in the aoue manner and in the same location as the political *5 (J?l-120) Hr. Alvin J. Barn.. - Page

aubdiviaioa whore approval la required and on whom behalf the ia created. Boarde iaduatrial directors corporationa are precluded from taking officiel action without a meeting held in comPliancr with the Open Meetinga Act; 14(c) of 5190.6. V.T.C.S.. impliedly repealed. Boarda pursuant to article 5190.6. are considered to be “governmental V.T.C.S.. bodies” for purposes the Open Records 6252-170. V.T.C.S. .Jxn WATTOX Attorney General of Texas TOM GREEN

First Assistant Attorney General

DAVID R. RICHARDS

Executive Assistant Attorney General

Prepared by Jim Moellinger

Assistant Attorney General

APPROVED:

OPINION COMl4ITTEE

Rick Gilpin, Chairman

Jon Bible

Colin Carl

Susan Garrison

Jim Hoellinger

Nancy Sutton

p. 509