The Attorney General of Texas
December 30. 1983
JIM MATTOX
Attorney General ”
Supreme Court Building Mr; Robert J. Provan Opinion No. JM-116
P. 0. BOX 12546 General Counsel
Austin, TX. 76711. 2546 Stephen F. Austin State University Re: Whether the Gulf Star
512/475-2501
Nacogdoches, Texas 75962 Conference is subject to the
Telex 9101674-1367
Telecopier 5121475-0266 Open Meetings and Open Records
Acts
714 Jackson, Suite 700
Dear Mr. Provan:
Dallas, TX. 75202.4508
2141742.6944
You have informed us that Stephen F. Austin State University and
five other universities are "engaged in the organization and
4024 Alberta Ave., Suite 160 establishment' of a new intercollegiate athletic conference to be
El Paso, TX. 76005-2793 called the Gulf Star Conference." The proposed constitution of this
9151533.3464
conference states that one of tbe two' general purposes of the
- conference is:
Jl Texas, Suite 700
Hwsto”, TX. 77002-3111 [~t]o form and maintain among universities of
713223.5686 approximately the same size and comparable
,educatidnal programs an athletic conference, the
806 Broadway, Suite 312
members of which shall incorporate intercollegiate
Lubbock, TX. 79401-3479 athletics within their respective educational
6061747-5236 programs and shall place and maintain such
athletics under the same administrative and
academic'control as that which obtains in their
4309 N. Tenth, Suite B
McAllen, TX. 76501-1685 other educational programs.
512/662-4547
Fou:,'haveasked whether this conference will be subject to the Open
Meetings Act, article 6252-17. V.T.C.S., and to the Open Records Act,
200 Main Plaza, Suite 400
San A”t,,“lq TX. 762052797
article 6252-17a. V.T.C.S.
51212254191
Both acts apply to "governmental bodies." Section l(c) of the
open Meetings Act defines a "governmental body" as:
An Equal OpportunityI
Alflrmatlve Action Employer
any board. commission, department, committee, or
age~ncy within the executive or legi@.ative
department of the state, which is under' the
direction of one or more elected or appointed
members; and every Commissioners Court and city
council in the state, and every deliberative body
having rule-making or quasi-judicial power and
classified as a department, agency, or political
subdivision of a county or city; and the board of
trustees of every school district, and every
p. 489
Mr. Robert J. Provan - Page 2 (JM-116)
county board of school trustees and county board
of education; and the governing board of every
special district heretofore or hereafter created
by law.
Section 2(l) of the Open Records Act defines a "governmental body" as:
(A) any board, comtaission, department,
committee. institution, agency, or office within
the executive or legislative branch of the state
government, or which is created by either the
executive or legislative branch of the state
government, and which is under the direction of
one or more elected or appointed members;
(B) the commissioners court of each county and
the city couucil or governing body of each city in
the state;
(C) every deliberative body having rulemaking
or quasi-judicial power and classified as a
department, agency, ox political subdivision of a
county or city;
(D) the board of trustees of every school
district, and every county board of school
trustees and county board of education;
(E) the governing board of every special
district;
(P) the part, section. or portion of every
organization, corporation, comisslon. committee,
institution, or agency which is supported in whole
or in part by public funds, or which expends
public funds. Public funds as used herein shall
mean funds of the State of Texas or any
governmental subdivision thereof;
(G) the Judiciary is not included within this
definition.
The conference will be a voluntary association of SiX
iustitutions, three of which are in Louisiana. It is therefore not
"within the executive or legislative department of the state." Thus,
the only provision in the definition of "governmental body" contained
in the Open Meetings Act that could conceivably apply to the
conference is inapplicable. We therefore conclude that the proposed
conference will not be subject to this act. ?
p. 490
i
Mr. Robert J. Provan - Page 3 (.D+116)
On the other hand, we conclude that the conference will be
subject to the Open Records Act. You have informed us that each
member university will pay an initial membership fee of $20,000 and
then will pay $10,000 to the conference each year thereafter. Under
section 2(l) of the Open Records Act, "governmental body" includes
"the part, section, or portion of every organization . . . which is
supported in whole or in part by public funds, or which expends public
funds." Two prior Open Records Decisions have construed this
provision. Open Records Decision No. 228 (1979) concluded that the
North Texas Commission, "a private, nonprofit corporation chartered
for the purpose of promoting the interests of the Dallas-Fort Worth
metropolitan area," is a "governmental body" under this provision.
The decision stated as follows:
Under a sample contract submitted by the
Commission, the City of Fort Worth was obligated
to pay the Commission $80,000 a year for three
years. The Cormnission also receives funds from
several other units of government . . . [W]e have
examined the contract in question here, and we do
not believe it imposes a specific and definite
obligation on the Commission to provide a
measurable amount of service in exchange for s
certain amount of money as would be expected in a
typical arms-length contract for services between
a vendor and purchaser. Specifically, one
provision of the contract purports to obligate the
Commission to:
(e) Continue its current successful
programs and implement such new and innovative
programs as will further its corporate
objectives and common City's interests and
activities.
Even if all other parts of the contract were found
to represent a strictly arms-length transaction,
we believe that this provision places the various
governmental bodies which have entered into the
contract in the position of 'supporting' the
operation of the Commission with public funds
within the meaning of section Z(l)(F) . . . . We
are holding . . . that these records of the North
Texas Commission are public under the Open Records
Act since it receives funds from serveral public
entities and has entered into contracts with these
entities which result in at least a portion of the
public funds paid to the Commission being used for
the general support of the Connnissionrather than
being attributable to specific payment for
specific measurable services.
p. 491
Mr. Robert J. Provan - Page 4 (JR-116)
Relying upon Open Records Decision No. 228, Open Records Decision No.
302 (1982) held that the Brasos County Industrial Foundation is also a
"governmental body." This decision held that the Foundation was
"similar in many respects to the North Texas Connnission." In 1980, it
received an unrestricted grant of $48,000 from the city of Bryan. The
decision stated that:
Open Records Decision No. 228 (1979) held that the
phrase 'supported in whole or in part by public
funds' refers to any agreement between a political
subdivision and any 'organisation, corporation,
cowwission, cosimittee, institution, or agency'
which transfers public funds from the political
subdivision to such entity, but fails to '[impose]
a specific and definite obligation on the [entity]
to provide a measurable amount of service in
exchange for a certain amount of money as would be
expected in a typical arms-length contract for
services between a vendor and purchaser.' This
agreement failed to provide adequate consideration
flowing to the political subdivision, and the
public funds passing to such entity. although in
the possession of private, hands, retained their
character as public funds.
We believe that the present situation is virtually identical to
the situations with which these two decisions dealt. In our view, the
member universities must be deemed to be in the position of
"supporting" the athletic conference with public funds, because the
funds that they will pay to the conference will be used for its
"general support . . . rather than being attributable to specific
payment for specific measurable services." Open Records Decision No.
228 (1979). Because the conference will be "supported . . . in part
by public funds," it will be a "governmental body" subject to the Open
Records Act.
SUMMARY
The proposed Gulf Star Conference will not be
subject to the Open Meetings Act, article 6252-17,
V.T.C.S.. but will be subject to the Open Records
Act, article 6252-17a. V.T.C.S. I
Attorney General of Texas '
p. 492
“.
Mr. Robert J. Provan - Page 5 (~~-116)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 493