IN THE
TENTH COURT OF APPEALS
No. 10-99-309-CR
DAVID JAY HOUSTON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 292nd District Court
Dallas County, Texas
Trial Court # F97-02839
O P I N I O N
Appellant David Houston appeals his conviction for aggravated sexual assault of a child younger than 14 years of age, for which he was sentenced to 75 years in the Institutional Division of the Texas Department of Criminal Justice.
Crystal McGee was born October 26, 1983. Her mother was dating Jerry Houston. Jerry Houston, Darlon Houston, and Appellant are brothers. During the summer of 1995, when Crystal was twelve, she spent the night in Darlon Houston’s house in Dallas. Crystal slept on the couch in the living room. Crystal testified Appellant was there that night and slept on another couch in the same room. Crystal testified that between 1 and 3 o’clock in the morning, Appellant came to her couch, woke her up, and told her to take off her clothing, which she did. She testified Appellant touched her with his hand and his penis touched the inside of her vagina. Crystal waited 15 months, until December 6, 1996, to make outcry and to tell her mother what happened.
Appellant testified he was 25 years old in 1996. He vigorously denied committing the offense.
At trial on August 31, 1999, a jury found appellant guilty and assessed his punishment at 75 years in prison.
Appellant appeals on three issues.
Issue 1: The indictment is lost, therefore the record fails to reflect the trial court’s jurisdiction.
Appellant was indicted in Cause No. F97-75186 for aggravated sexual assault of a child. At trial, the judge stated that the “State has reindicted in Cause No. F97-02839, and that we will proceed in Cause No. F97-02839.
The indictment in Cause No. F97-02839 was read to Appellant in open court and Appellant pled not guilty.
Only the indictment in Cause No. F97-75186 is contained in the Clerk’s Record on appeal. Appellant asserts the reindictment in Cause No. F97-02839 is lost, and therefore the record fails to reflect the trial court’s jurisdiction. Specifically, Appellant asserts that “jurisdiction of the trial court vests only upon the filing of a valid indictment in the trial court,” citing Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).
This Court abated this appeal and ordered the trial court to make a factual determination as to whether the reindictment in Cause No. F97-02839 was or was not filed in the 292nd District Court by the District Clerk.
The trial court conducted an evidentiary hearing and thereafter found:
1. No original indictment or copy of the indictment is contained in the court’s file in this case.
2. State’s Exhibits 1, 2 and 3 which are records of the District Clerk’s office consisting of certified copies of the “Grand Jury Report” for the Grand Jury of the 292nd District Court, the “Manner and Time of Presentment” to the 292nd District Court, and the “Ordering of Receiving” for the 292nd District Court, reflect that a Reindictment in Cause No. F97-02839-V was true billed by the Grand Jury, presented to the 292nd District Court, and received by the 292nd District Court.
3. The defendant was served with a certified copy of the indictment in this case on September 26, 1997, as evidenced by the Sheriff’s return contained in the court’s file in this case.
4. The indictment was read in open court at the time the defendant was arraigned.
5. At the time of trial, the court’s file in Cause No. F97-02839-V contained the indictment in Cause No. F97-02839-V.
6. At the beginning of the trial in this cause, the court, as is the court’s practice in all jury trials, handed the court’s file jacket containing the indictment to the prosecutor to read the indictment to the jury. Pages 11 and 12 of the Reporter’s Record contain the wording of the indictment as it was read by the prosecutor to the jury from the court’s file.
7. The indictment in Cause No. F97-02839-V, a reindictment of Cause No. F97-75186, was properly filed in the 292nd District Court by the District Clerk.
We have reviewed the Reporter’s Record of the hearing conducted by the trial court, as well as the Exhibits admitted into evidence and conclude that the court’s findings are supported by the evidence, and that the reindictment in Cause No. F97-02839-V was filed in the 292nd District Court, and that such court did have jurisdiction of this case.
Issue 1 and the contentions made thereunder are overruled.
Issue 2: The trial court denied appellant his right to a speedy trial.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and applied to the States through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514 (1972). Additionally, Article I, Section 10 of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure guarantee a speedy trial to the accused in criminal cases.
In determining whether an accused was denied his right to a speedy trial, we use the balancing test used in Barker v. Wingo, supra. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The factors are: 1) length of the delay; 2) reason for the delay; 3) defendant’s assertion of the right; and 4) prejudice to the defendant resulting from the delay. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). The balancing that requires weighing case by case “the conduct of both the prosecution and the defendant.” Barker, supra, p. 530. No single Barker factor is a necessary or sufficient condition to the finding of a speedy trial violation. Barker, supra, p. 533. We must independently weigh and balance the four Barker factors. Munoz, supra, p. 821.
Length of the Delay
The length of the delay is a “triggering mechanism” for analysis of the other Barker factors. Munoz, supra, p. 821.
In this case, the delay was 31 months between the indictment and the Appellant’s trial. This delay is sufficient to trigger review of the remaining Barker factors. Munoz, supra, p. 822. This factor weighs against the State.
Reason for the Delay
In determining whether a speedy trial violation occurred, a deliberate attempt to delay the trial should be weighed heavily against the State; a more neutral reason such as negligence or a crowded court docket should be weighed against the State less heavily; and a valid reason should not be weighed against the State at all. Delay which is attributable in whole or in part to the defendant may contribute to a waiver of the right to a speedy trial claim. Munoz, supra, p. 822. And an agreed reset waives the right to a speedy trial claim for the period of time involved. State v. Kori, 846 S.W.2d 459, 464 (Tex. App.—Houston [14th Dist.] 1993, writ ref’d.).
Appellant was indicted January 30, 1997. His trial commenced August 31, 1999. This is a total of 31 months delay, (approximately 930 days). During this time, Appellant agreed to five resets for a total of 506 days of the delay. This period of time was waived. Thus, we have 424 days (approximately 14 months) trial delay not attributable to or waived by Appellant.
The record reflects that the State offered a plea bargain to Appellant for five years deferred adjudication community supervision in exchange for a plea of guilty, but that Appellant rejected same. The record further reflects that Appellant spent approximately 19 months of the 31 months between indictment and trial, in jail.
The 14 months in trial delay not agreed to by Appellant weighs against the State.
Appellant’s Assertion of His Right to a Speedy Trial
The third factor we must consider is whether Appellant asserted his right to a speedy trial. A defendant must assert this right. Barker, supra, p. 528. It was not until May 3, 1999, that appellant filed a pro se motion not asking for a speedy trial, but for a dismissal of his case. A motion for a dismissal should not be considered a request for a speedy trial. Kuri, supra, p. 465. Moreover, Appellant was represented by counsel when he filed his pro se request to dismiss the proceedings. In such case, the trial court was not required to consider his pro se motion. Floyd v. State, 959 S.W.2d 706, 710 (Tex. App.—Ft. Worth, no pet.). Appellant’s attorney asserts his right in a motion filed the day after the case was called for trial. The right to a speedy trial was not properly asserted before the commencement of trial.
Appellant’s failure to timely assert his right to a speedy trial weighs against Appellant.
Prejudice to the Appellant
Appellant must make a prima facie showing of prejudice. Munoz, supra, p. 826. In determining whether Appellant suffered prejudice, we look to whether the interests for which the speedy trial was designed, were affected. Barker, supra, p. 532. These interests are: 1) preventions of oppressive incarceration; 2) minimization of the accused’s anxiety and concern; and 3) limitation of the possibility that the accused’s defense will be impaired. Munoz, supra, p. 826.
Appellant spent 19 months of the 31 months of trial delay in jail. At a trial setting, the State was not ready and the trial judge materially lowered Appellant’s bail and released him from jail. Given that the State offered Appellant deferred adjudication community supervision in exchange for a plea of guilty, Appellant’s anxiety and concern at 19 months incarceration and no trial or resolution in his case, must have caused Appellant great anxiety and concern. Moreover, a number of witnesses at trial could not remember critical facts concerning the case. For example, the offense allegedly occurred in 1995. Crystal’s mother said the offense occurred in the same year she reported it to the police which was December 7, 1996. And Appellant, although denying the offense, could not remember where he was on August 31, 1995. Due to the lapse of time, it was very difficult for witnesses to remember events that occurred four years earlier. This factor weighs against the State. Our balancing of the Barker factors convinces us that the denial of a speedy trial contributed to both Appellant’s conviction and punishment.
Issue 2 is sustained.
Sustaining of Issue 2 requires a reversal of the judgment and a dismissal of the indictment and renders unnecessary consideration of Issue 3.
Reversed and indictment dismissed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Vance,
Justice Gray, and
Chief Justice McDonald (Retired)
(Justice Gray dissenting)
Reversed and indictment dismissed
Opinion delivered and filed January 17, 2001
Do not publish
rdin refers to section 22 of the Act, a section on the corporation’s bond-issuing powers. The section is entitled: “Bonds not debt of state or political subdivision; corporation as constituted authority and instrumentality but not political subdivision or corporation.” (Emphasis added). It says, in part:
The corporation when established and created pursuant to the terms of the Act shall be a constituted authority and an instrumentality (within the meaning of those terms in the regulations of the treasury and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to Section 103 of the Internal Revenue Code of 1954, as amended) and shall be authorized to act on behalf of the unit under whose auspices it is created for the specific public purpose or purposes authorized by such unit . . . .
Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 22 (Vernon Supp. 2004) (emphasis added). Apparently, the regulations of the Treasury Department and the rulings of the Internal Revenue Service use the terms “constituted authority” and “instrumentality” when discussing tax implications for certain governmental entities, and the Legislature, by using the terms in section 22, indicated its intention that development corporations come under those regulations and rulings. Purdin points out that a development corporation is called an “instrumentality” in the title to section 22 and, in the body of the section, is designated an “instrumentality” for IRS purposes. Purdin contends, without authority, that “instrumentality” means the same in the Act as it does in the CHRA.
Purdin also relies on Tarrant County Hosp. Dist. v. Henry, 52 S.W.3d 434 (Tex. App.—Fort Worth 2001, no pet.). Henry sued a hospital district under the CHRA. Id. at 434. The Fort Worth court held that the district was a “state instrumentality” under section 21.002(8)(D). Id. at 446. The court relied on the definition of “instrumentality” in Black’s Dictionary—“[a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body”—and concluded that a hospital district came within the definition. Id. at 445-46; Black’s Law Dictionary 802 (7th ed. 1999). The court noted that it is inconsistent to find that a hospital district is not a branch of the State when (a) it has been created under the authority of the Texas Constitution and the Legislature, and (b) it has sovereign immunity. Id. at 446. Similarly, development corporations have been created under the authority of the Legislature and have sovereign immunity. Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 4A(j); Rayl v. Borger Economic Development Corp., 963 S.W.2d 109, 114 (Tex. App.—Amarillo 1998, no pet.). Thus, arguing from Henry, Purdin contends they are also “state instrumentalities” under the CHRA.
Purdin also cites our holding in Crow v. Rockett Special Utility Dist., in which we found that a special utility district was a “state instrumentality” under the CHRA because it was created under the authority of the Texas Constitution and is an agent of the State exercising the State’s police powers. Crow v. Rockett Special Utility Dist., 17 S.W.3d 320, 325 (Tex. App.—Waco 2000, pet. denied). We found that “agent” is a synonym for “instrumentality.” Id. (citing The New American Roget’s College Thesaurus 260 (rev. ed. 1978)).
Purdin concludes by pointing out that: (a) CCEDC was created by a city, which is a political subdivision of the State, (b) its board of directors was appointed by the city, (c) it administers sales taxes levied by the city, and (d) it is subject to the open records and meetings laws. Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 4A(b), (c), (f), 11(b), 14A (Vernon Supp. 2004). She asks: “How is it that a sales-tax funded entity that has income on its bonds exempt from IRS taxation because it is a state instrumentality, that must comply with open meetings and records laws, and which benefits from the immunities and liability limitations afforded by the Texas Tort Claims Act, can suddenly consider itself non-governmental when it comes to the discrimination law?” (Brief of Appellant p. 8).
CCEDC’S Arguments
CCEDC responds with several arguments.
First Argument:
CCEDC says it is an instrumentality of the city, not of the state. It points out that development corporations are created by cities, which then exercise control over them by appointing their boards of directors. Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 4A(b), (c). Furthermore, development corporations are not political subdivisions, and they do not have some traditional powers of political subdivisions, e.g., to raise tax revenue or to exercise eminent domain or police powers. Id. art. 5190.6, § 4A(d), (g), 22 (Vernon Supp. 2004).
Second Argument:
CCEDC asserts that, because it would not be a “state instrumentality” under Eleventh Amendment law, it is not one under the CHRA. CCEDC argues that it resembles governmental entities that the courts have determined are not “arms of the state” under Eleventh Amendment law, which prohibits a suit against a state in federal court by a citizen of either another state or a foreign state. U.S. Const. amend. XI. The bar also applies to a suit against a state by its own citizen. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355-56, 39 L. Ed. 2d 662 (1974); San Antonio Indep. School District v. McKinney, 936 S.W.2d 279, 281 (Tex. 1996). “States” may include certain “state agents and state instrumentalities” if they are “arms of the state.” Regents of the University of California v. Doe, 519 U.S. 425, 429-30, 117 S. Ct. 900, 903-04, 137 L. Ed. 2d 55 (1997). Of “considerable importance” in determining if Eleventh Amendment immunity applies is whether the state would be obligated to pay a money judgment against the entity. Id., 519 U.S. at 431, 117 S. Ct. at 904. CCEDC cites Williams v. Dallas Area Rapid Transit, 242 F.3d 315 (5th Cir. 2001), and McKinney, 936 S.W.2d at 279.
Third Argument:
CCEDC attacks Purdin’s argument that the word “instrumentality” in article 5190.6, § 22 has the same meaning as “state instrumentality” in the CHRA. CCEDC points out that the word “state” is not contained in section 22. Then it cites to a 1957 administrative ruling of the IRS construing section 103 of the Internal Revenue Code. Rev. Rul. 57-187, 1957-1 C.B. 65, 1957 WL 11962 (RRU). Section 103 excludes from gross income the interest on “any State or local bond,” which is defined as “an obligation of a State or political subdivision thereof.” 26 U.S.C. § 103 (2002). Ruling 57-187 held that an Industrial Development Board, created by Alabama statute and fulfilling purposes similar to development corporations, falls under the “political subdivision” umbrella of section 103, because the bonds “are considered issued in behalf of a municipality, a political subdivision of the State.” CCEDC concludes that the Ruling supports its position that entities like development corporations are instrumentalities of the city, not “state instrumentalities.”
Fourth Argument:
Next, CCEDC argues that, although development corporations have characteristics that are usually associated with governmental entities, such as requirements under the open meetings and open records acts and the administration of sales taxes, that does not necessarily establish that they are “state instrumentalities.”
Fifth Argument:
Finally, CCEDC argues that, as a matter of public policy, it should be excluded from “state instrumentalities.” It says that under section 21.002(8)(A), employers not specifically listed in other subsections are included under the CHRA only if they have fifteen or more employees. So, to allow a small employer like CCEDC to be sued under “D” circumvents the Legislature’s intent in enacting “A” to shield small employers from suit.
Analysis
The meaning of “state instrumentality” and whether development corporations are included is not clearly expressed in the CHRA. Therefore, we may examine, to the extent possible, eight factors:
• any legislative history of the statute, In re BACALA, 982 S.W.2d at 380; Tex. Gov’t Code Ann. § 311.023;
• the nature and object to be obtained by the statute, Id.;
• the consequences that would follow from alternative constructions, Id.;
• the circumstances under which the statute was enacted, Tex. Gov’t Code Ann. § 311.023;
• the common law or former statutory provisions, including laws on the same or similar subjects, Id.;
• any administrative construction of the statute, Id.;
• the title (caption), preamble, and emergency provision, Id.; and
• the entire act, including the meaning and use of a term throughout the act, Fowler, 969 S.W.2d at 432.
Reviewing under these factors, we have not found any helpful legislative history. And the term “state instrumentality” is not used elsewhere in the statutes. Neither the title, preamble, or emergency provisions of the statute provide assistance. Nor is there any common law defining the term.
As for any administrative construction of the statute, Purdin received a “right to sue” letter from the Commission on Human Rights. Tex. Lab. Code Ann. § 21.252 (Vernon 1996). Therefore, the Commission exercised jurisdiction over CCEDC.
The circumstances that would follow from alternative constructions are (a) under Purdin’s construction, more employees of certain government-related entities would be protected under the CHRA and (b) under CCEDC’s construction, fewer employees would be protected.
The nature and object of the CHRA, and to an extent the circumstances under which it was enacted, are expressed in section 21.001 of the act:
The general purposes of this chapter are to:
(1) provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments (42 U.S.C. Section 2000e et seq.);
(2) identify and create an authority that meets the criteria under 42 U.S.C. Section 2000e-5(c) and 29 U.S.C. Section 633;
(3) provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent amendments (42 U.S.C. Section 12101 et seq.);
(4) secure for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity;
(5) make available to the state the full productive capacities of persons in this state;
(6) avoid domestic strife and unrest in this state;
(7) preserve the public safety, health, and general welfare; and
(8) promote the interests, rights, and privileges of persons in this state.
Tex. Lab. Code Ann. § 21.001 (Vernon 1996). The broad interests expressed in this section support the conclusion that the Legislature intended for the prohibitions in chapter 21 to be generally applied. Id. The wording of the limitation on private-sector employees, i.e., “engaged in an industry affecting commerce and who has 15 or more employees,” tends to show that the term “state instrumentality” was intended to include entities regardless of size which exercise functions usually associated with state government. Id. § 21.002(8)(A), (D).
Finally, examining the entire act, former statutory provisions, and laws on the same or similar subjects, we find that when the CHRA was codified in the Labor Code in 1993, subsection 21.002(8)(D), then “6(C),” provided: “a county, municipality, state agency, or state instrumentality, including a public institution of education, regardless of the number of individuals employed.” “State agency” was not defined. In 1997, by amendment, the phrase “including a public institution of education” was deleted from “D,” and subsection “14” was enacted, which reads:
"State agency" means:
(A) a board, commission, committee, council, department, institution, office, or agency in the executive branch of state government having statewide jurisdiction;
(B) the supreme court, the court of criminal appeals, a court of appeals, or the State Bar of Texas or another judicial agency having statewide jurisdiction; or
(C) an institution of higher education as defined by Section 61.003, Education Code.
Id. § 21.002(14) (Vernon Supp. 2004). The Legislature went to great lengths in subsections “8(D)” and “14” to include a wide array of governmental entities under the CHRA. The list includes elected officials, counties, municipalities, agencies in the executive branch if they have statewide jurisdiction, courts, judicial agencies if they have statewide jurisdiction, and institutions of higher learning. Each of these performs public functions defined by the Legislature.
We conclude from our review of the eight factors that the Legislature intended “state instrumentalities” to be a category which includes entities, other than those listed in subsections “8(D)” and “14,” that perform public functions as defined by the Legislature. Thus, we turn to an inquiry of what functions the Legislature has authorized CCEDC to perform, and whether those functions are ones usually or customarily performed by state government, i.e., state functions. In particular, we must determine if economic development—the primary function of development corporations under the Act—is a state function.
Based on express language used by the Legislature, we find that economic development has been determined to be a function of state government. The “Findings and Construction” of section 3 of the Act are:
(a) It is hereby found, determined, and declared:
(1) that the present and prospective right to gainful employment and general welfare of the people of this state require as a public purpose the promotion and development of new and expanded business enterprises and the promotion and development of job training;
(2) that the existence, development, and expansion of business, commerce, industry, and job training are essential to the economic growth of the state and to the full employment, welfare, and prosperity of its citizens;
(3) that the assistance provided by industrial development corporations in promoting higher education opportunities will encourage and foster the development and diversification of the economy of the state and the elimination of unemployment and underemployment in the state;
(4) that the means and measures authorized by this Act and the assistance provided in this Act, especially with respect to financing, are in the public interest and serve a public purpose of the state in promoting the welfare of the citizens of the state economically by the securing and retaining of business enterprises and the resulting maintenance of a higher level of employment, economic activity, and stability;
(5) that community industrial development corporations in Texas have themselves invested substantial funds in successful industrial development projects and have experienced difficulty in undertaking such additional projects by reason of the partial inadequacy of their own funds or funds potentially available from local subscription sources and by reason of limitations of local financial institutions in providing additional and sufficiently sizable first mortgage loans; and
(6) that communities in this state are at a critical disadvantage in competing with communities in other states for the location or expansion of such enterprises by virtue of the availability and prevalent use in all other states of financing and other special incentives; therefore, the issuance of revenue bonds by corporations on behalf of political subdivisions of the state as hereinafter provided for the promotion and development of new and expanded business enterprises to provide and encourage employment and the public welfare is hereby declared to be in the public interest and a public purpose.
(b) This Act shall be liberally construed in conformity with the intention of the legislature herein expressed.
Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 3 (Vernon Supp. 2004) (emphasis added). Thus, the section repeatedly says that it was enacted to benefit the people of Texas and is for the public welfare of the State, and was not enacted merely as a convenience for cities and counties to benefit themselves.
That economic development is a function of state government is also shown by the fact that, in 1989, section 1 of an amending statute found:
FINDINGS AND POLICY. It is the finding, policy, intent, and determination of the legislature that:
(1) Texas has continuing needs for the creation of new job opportunities and enhancement of existing job opportunities;
(2) it is desirable that economic development take place to stimulate the economy of local and state government;
(3) local government should have the necessary powers to enable it to take the lead in economic development, and local self-determination should be maintained to the maximum extent practical;
(4) protecting the environment and other natural resources is essential to the orderly and proper economic development of an area and should be given high priority;
(5) enhancement of tax revenues to other local and state governmental entities will occur as a result of successful economic growth; and
(6) successful economic development depends on a viable working relationship between the public and private sectors and it is the intent of this Act to foster and further that cooperative effort.
Act of June 14, 1989, 71st Leg., R.S., ch. 877, § 1, 1989 Tex. Gen. Laws 3871. Here the Legislature made it clear that economic development is a goal and function of government at all levels.
Additional support for our finding comes from the fact that, when the Act was amended in 1991, section 1 of the amending statute stated:
The legislature finds for all constitutional and statutory purposes that the authority granted by this Act is for the public purposes of development and diversification of the economy of the state and an eligible city, the elimination of unemployment or underemployment in the state and an eligible city, and the expansion of commerce in the state and that this Act accomplished those public purposes.
Act of March 28, 1991, 72nd Leg., R.S., ch. 11, § 1, 1991 Tex. Gen. Laws 37.
Lastly, CCEDC’s own Articles of Incorporation support our finding, because it provides that CCEDC exists for the “public purpose . . . [of] the promotion and development of commercial, industrial and manufacturing enterprises to promote and encourage employment and the public welfare.” Notably, the employment and welfare goals are not limited to residents of the City, but apply to the “public” generally.
From these provisions, we determine that the stated legislative goals of the Act and the public purposes of CCEDC favor a conclusion that development corporations are “state instrumentalities.” But, in addition, we may rely on common sense and public policy. We see no logical reason why the Legislature would have intended to exclude entities like development corporations (and special utility districts, hospital districts, and independent school districts) from the CHRA. By including an extensive list of government-related individuals and entities in subsections “8(D)” and “14,” by specifically not limiting the description of governmental entities to those with fifteen or more employees, and by providing a separate category to include other undefined entities, the logical conclusion is that the Legislature intended for the prohibitions against discrimination contained in the CHRA to apply to most if not all entities performing public functions.
We conclude that economic development corporations under the Act perform public functions and are “state instrumentalities.” Other local entities of government, such as hospital and special utility districts, have been found to be “state instrumentalities.” Henry, 52 S.W.3d at 446; Rockett, 17 S.W.3d at 325. Under the reasoning of the Fort Worth Court of Appeals, with which we agree, the definition of “instrumentality” in Black’s Dictionary—“[a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body”—leads to our conclusion. And because CCEDC was created under authority granted by the Legislature to enhance economic development, which is a state and local function, Henry supports our conclusion.
We arrive at our construction of “state instrumentality” after considering CCEDC’s arguments, which do not persuade us. To begin, there are a number of difficulties with its first argument that CCEDC is an instrumentality of the city, not the state.
• The argument fails to consider the public nature of the duties of CCEDC under section 3 of the Act, as we have outlined.
• CCEDC’s assertion that there is little or no involvement of the State with development corporations is misplaced. For example:
• The Act creates a Texas Small Business Industrial Development Corporation to “carry out the public purposes of the act.” Tex. Rev. Civ. Stat. Ann. art. 5190.6, § 4(b).
• The Department of Labor, “with the assistance of the Texas Commission on Environmental Quality, may encourage the cleanup of contaminated property by corporations created under this section through the use of sales and use tax proceeds,” which requires the approval of the citizens of the city. Id. art. 5190.6, § 4A(t).
• Each development corporation created by a city must submit an annual one-page report to the State Comptroller stating information such as objectives, revenues, expenditures, assets, and “any other information the comptroller requires to determine the use of the sales and use tax” collected. Id. art. 5190.6, § 4C(a), (b).
• The Comptroller may impose a monetary penalty for late filing of the report. Id. art. 5190.6, § 4C(d).
• “The [Labor department] shall approve the contents of any lease, sale, or loan agreement made under this Act. The department shall prescribe rules and regulations setting forth minimum standards for project eligibility and for lease, sale, and loan agreements and guidelines with respect to the business experience, financial resources, and responsibilities of the lessee, purchaser, or borrower under any such agreement, but in no event shall the department approve any agreement unless it affirmatively finds that the project sought to be financed is in furtherance of the public purposes of this Act. Appeal from any adverse ruling or decision of the department under this subsection may be made by the corporation to the District Court of Travis County. . . . The department by rule shall require corporations to file fee schedules and bond procedures. . . .” Id. art. 5190.6, § 24(a), (e).
• At least once in each 24-month period, representatives of both the city and the development corporation must attend a training seminar sponsored by the Labor Department. Id. art. 5190.6, § 39.
These provisions lead to the conclusion there is significant involvement at the State level in the oversight and operation of development corporations.
• The fact that other entities, such as hospital districts and special utility districts, which have been held to be “state instrumentalities” under the CHRA, are also political subdivisions created by the Texas Constitution, does not inherently preclude non-political subdivisions from being “state instrumentalities.” If that were true, the Legislature would have used the term “political subdivision” in section 21.002(8)(D) instead of “state instrumentality.”
CCEDC’s second argument is that it can be inferred from Eleventh Amendment law that it is not a “state instrumentality.” In the cases it cites, however, the question was not whether the entities were “state instrumentalities” under Texas law. Rather, the question was whether they were entitled to Eleventh Amendment immunity under the law applicable thereto, i.e., whether they are “arms of the state.” CCEDC’s argument fails because the questions of whether an entity is a “state instrumentality” and whether it is an “arm of the state” under Eleventh Amendment law are separate; i.e., an entity may be a “state instrumentality” even though it does not have Eleventh Amendment immunity as an “arm of the state.” Thus, this argument does not answer our inquiry.
In Dallas Area Rapid Transit, the Fifth Circuit found that whether DART was a “governmental unit” under Texas statutes is not the relevant inquiry under the Eleventh Amendment, which requires a determination that the entity is an “arm of the state.” Dallas Area Rapid Transit, 242 F.3d at 319. “Arm of the state” is narrower than “governmental unit” and does not include cities, counties, and school boards. Id. at 318 n.1. The court applied a six-part test to determine whether DART was an “arm of the state,” immune from suit under the Eleventh Amendment. Id. at 319–22. The court held that DART is not an “arm of the state.” Id. at 322.
In McKinney, the Supreme Court held that an independent school district is “more like a county or city than it is like an arm of the state,” and therefore it is not entitled to Eleventh Amendment immunity. McKinney, 936 S.W.2d at 280. The Court pointed out that the Eleventh Amendment does not apply to “political subdivisions” such as counties and cities. Id. at 282.
The third argument made by CCEDC is that “instrumentality” does not have the same meaning under the Act and the CHRA. Our holding does not depend on their being the same, and it does not resolve the issue.
Although we agree with CCEDC’s fourth argument that the fact that development corporations have characteristics usually associated with governmental entities does not necessarily establish that they are “state instrumentalities,” our agreement does not undermine our holding.
Finally, in its fifth argument, CCEDC argues that public policy directs that small, local entities like CCEDC should not be subjected to the liability potential of the CHRA. We have found, however, that the Legislature intended that employees performing public services should be covered under the CHRA.
Applying the rules of statutory construction, and rejecting CCEDC’s arguments, we sustain Purdin’s issue.
Conclusion
We hold that, under the Texas Commission on Human Rights Act, Copperas Cove Economic Development Corporation is a “state instrumentality” and thus an “employer.” We sustain Purdin’s issue, reverse the order granting the plea to the jurisdiction, and remand the cause to the trial court for further proceedings consistent with this opinion.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed July 21, 2004
[CV06]