The Attorney General of Texas
my 1, 1980
MARK WHITE
Attorney General
Honorable WilhelminaDelco Opinion No. Mw-17 7
Committee on Higher Education
P. 0. Box 2910 Re: Whether various state
Austin, Texas 78769 statutes apply to Higher Education
Authorities created under chapter
53 of the Texas Education Code.
Dear Representative Delco:
You ask whether various state statutes apply to Higher Education
Authorities created under chapter 53 of the Texas Education Code. A
Higher Education Authority is created by the governing body of a city or
cities by ordinance pursuant to section 53.R of the Education Code. An
authority is a “body politic and corporate? Educ. Code S 53.13. It is also
referred to as ‘a vmunicipal corporation.” Educ. Code S 53.47(d). It
comprises cnly the territory included within the boundaries of the city or
cities creating it. Educ. Code’ S 53.12.’ Nonetheless, it may acquire
educational facilities outside the city limits. Educ. Code S 53.33. It may
also purchase student loan notes executed by students attending school
anywhere in Texas. Educ. Code S 53.47(b).
You first ask whether Higher Education Authorities are subject to
article 6252-9b, V.T.C.B., which establishes standardsof conduct for persons
employed by a state agency, the courts, or the legislature. Sec. 2(7).
Section 3 of this statute requires officers and executive heads of state
agencies to file financial disclosure statements. A state agency is defined
as follows:
(A) any department, commission, board, office, or
other agency that:
(i) is in the executive branch of state government;
(ii) has authority that is not limited to a
geographical portion of the state; and
(iii) was created by the constitution or a statute of
this state; or
(B) a university system or an institution of higher
education as defined in Section 61.003, Texas
Education Code, as amended, other than a public
junior college.
p. 561
Honorable WilhelminaDelco - Page Two (W-177)
V.T.C.S. art. 6252-9b, S 2(E).
In our opinion, a Higher Education Authority is not a state sgency within this
definition. A body politic and corporate is not an instrumentallty of the state, but a local
public corporation like a municipal corporation. Hatcher v. State, 81 S.W.2d 499 (Tex.
1935). A Higher Education Authority, created by a city, is an instrumentality of local
government and is not in the executive branch of state government. See Attorney General
Opinion M-538 (1969). It is not an institution of higher education~defined in section
6LOO3,of the Texas Education Code. Therefore, a Higher Education Authority ls not
stiject to article 6252-94 V.T.C.S., relating to fhtancial disclosure.
You next ask whether Higher Education Authorities are subject to article 6252-llb,
V.T.C.S., which requires state agencies to post listings of job opportunities. This statute
defines “state agency” in the same way as does article 6252-94 V.T.C.S. Thus, we
conclude that a Higher Education Authority is not a state agency within its definition and
not subject to its requirements.
You next ask whether a Higher Education Authority ls subject to article 6252-l3a,
V.T.C.S., which requires the publication of state agency ruIes. nAgencywis defined as
any state board, eommlssion, department, or officer having
statewicls jurisdiction, other than an agency wholly financed by
federal funds, the legislature, the courts, the Industrial Accident
Board, and institutions of higher education, ‘that makes rules or
determines contested cases..
V.T.C.S. art., 6252-134 S 3(l). We cb not believe the Higher ,Educatlon Authority is a
“state board, commission, [or] department”for the same reasons relied upon in answer to
your first two questions.
You next inquire whether the Open Meetings Act, V.T.C.S. art. 6252-17, applies to
Higher Education Authorities. The Open Meetings Act applies to meetings of a quorum of
members of a governmental body. Sec. L “Governmental body” ls defined ln pertinent
part 85 follows:
every deliberative body having rule-making or quasi-judicial power
and classified as a department, agency, or political subdivision of a
county or city. . . .
V.T.C.S. art. 6252-17, S I(c). A Higher Education Authority has authority to make, amend,
and repeal its bylaws. Educ. Code S 53.13. We believe this constitutes rule-making power
within the above definition. It is therefore a governmental body, and meetings of its
directors are subject to the Open Meetings Act.
You ask whether a Higher Education Authority is subject to the Open Records Act,
V.T.C.S. art. 6252-17a. This statute applies to records held by a “governmental body”
defined in pertinent part as follows:
Honorable WllhelmlnaDelco - Page Three (~~-177)
(P) the part, section, or portion of every crganixation,
corporation, commission, 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 funda of the
State of Texas or any governmental subdivisionthereof;
V.T.C.S. art. 6252-Da, S 2. A Higher Education Authority is supported by public funds
acquired through the issuance of revenue bonds. Educ. Code SS 53.34, 53.47. Therefore,
it ls a governmental body subject to the Open Records Act.
You next inquire about article 6252-llc, V.T.C.S., relating to the use of private
consultants by state agencies. “State agency” is defined as
any state department, commission, board, office, institution,
facility, or other agency, including a university system or an
institution of higher education as deflned in Section 6LOO3,Texas
Education Code, as amended, other than a public junior college.
V.T.C.S. art. 6252-llc, S l(3). This definition tracks in pertinent part the definition of
“state agency” in article 6252-13a, V.T.C.S., which we said did not include Higher
Education Authorities.
You next inquire whether article 6Olb, V.T.C.S., the State Purchasing and General
Services Act, applies to Higher Education Authorities. This statute applies to state
agencies &fined to include
(A) any department, commission, board, office, or other agency
in the executive branch of state government created by the
constitution or a statute of this state;
(B) the Supreme Court of Texas, the Court of Criminal Appeals
of Texas, a court of civil appeals, or the Texas Civil Judicial
Council; or
(Cl a university system or an institution of higher education as
defined in Section 61.003,Texas Education Code, as amended, other
than a public junior college.
V.T.C.S. art. 601b, S LO2(2). A Higher Education Authority is not an agency in the
executive branch of state government; consequently it is not subject to the State
Purchasing and General Services Act.
You next ask whether board members are required to take statutory or
constitutional oaths of office. No statute requires an oath of directors of a Higher
Education Authority. Article XVI, section 1 of the Texas Constitution requires appointed
officers to take an oath. Section 53&(b) of the Education Code refers to the position of
the directors as an office. Moreover, we believe the position of a director fills the legal
criteria of an office. The key factor which distinguishes a public officer from an
p. 563
Honorable WilhelmlnaDelco - Page FOUC (NW-1771
employee ls that some sovereign function of government is confwwd upon him to be
exercised for the benefit of the public largely independent of the control of others.
Aldlna Independent School Dist. v. Standle& 280 S.W.2d 578 (Tex. 1955). The directors
exercise governmental authority in authorming the issuance of revenue bonds and the
expenditure of bond proceeds. Educ. Code SS 53.34, 53.35, 53.47. In our opinion, they are
officers required to take the constitutional oath for appointed officers.
SUMMARY
Higher Education Authorities organized pursuant to chapter 53 of
the Education Coda are subject to articles 6252-17, V.T.C.S., and
6252-174 V.T.C.S. They are not sajact to articles 601b, V.T.C.S.,
6252-9b, V.T.C.S., 6252-l.@, V.T.C.S., 6252-llc, V.T.C.S., or
6252-134 V.T.C.S. The directors of a Higher Education Authority
are officers required to take the constitutional oath of office.
Attorney General of Texas
JOHN W. FAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by SusanGarrison
Assistant Attorney General
APPROVED:
OPINIONCOMMlTl’EE
C. Robert Heath, Chairman
SusanGarrison
Rick Gilpin
Eva Loutxanhiier
Bruce Youngblood
p. 564