Untitled Texas Attorney General Opinion ( 1997 )

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DAN MORALES
ATTORNEY
GENERAL November 7, 1997
The Honorable Rodney Ellis Opinion No. DM-454
Chair, Jurisprudence Committee
Texas State Senate Re: Authority of the Houston City Council with
P.O. Box 12068 regard to the Houston-Harris County Sports
Austin, Texas 78711 Authority (RQ-986)
Dear Senator Ellis:
You have requested our opinion regarding the newly-created Houston-Harris County Sports
Authority (the “authority”), which was established concurrently by the City of Houston and Harris
County effective September 1,1997. The authority was created under the provisions of chapter 335,
Local Government Code. See H.B. 92, Act of May 22, 1997,75th Leg., R.S., ch. 551, 1997 Tex.
Sass. Law Serv. 1929,1945-50. Chapter 335 provides, in pertinent part:
Sec. 335.021. CREATION. A county and a municipality . . . may create a
venue district under this chapter to plan, acquire, establish, develop,
construct, or renovate one or more venue projects in the district subject to
voter approval under Subchapter D.
Sec. 335.022. ORDER CREATING DISTRICT. A county and a
municipality . . . may create a district under this chapter by adopting
concurrent orders. A concurrent order must:
(1) contain identical provisions;
(2) define the boundaries of the district to be coextensive with the
combined boundaries of each creating political subdivision; and
(3) designate the number of directors, the manner of appointment, and the
manner in which the chair will be appointed in accordance with Section
335.031.
Sec. 335.031. COMPOSITION AND APPOINTMENT OF BOARD.
(a) A district is governed by a board of at least four directors.
TheHonorableRodney Ellis - Page 2 @M-454)
(b) The board is appointed by the mayors or county judges, or both
as appropriate, of the political subdivisions that create the district in
accordance with the concurrent order.
(c) Directors serve staggered two-year terms. A director may be
removed by the appointing mayor or county judge at any time without cause.
Successor directors are appointed in the same manner as the original
appointees.
Sec. 335.034. OFFICERS. The presiding officer is designated as provided
by the concurrent order. The board shall designate from the members ofthe
board a secretary and other officers the board considers necessary.
. . . .
Sec. 335.071. GENERAL POWERS OF DISTRICT. (a) A district may:
(1) perform any act necessary to the full exercise of the district’s powers;
. . . .
(3) acquire, sell, lease, convey, or otherwise dispose of property or an
interest in property, including a right-of-way or easement or an approved
venue project, under terms and conditions determined by the district;
. . .
(5) adopt rules to govern the operation of the district and its employees
and property.
i,b) A district may contract with a public or private person, including
one or more political subdivisions that created the district or a sports team,
club, organization, or other entity, to:
(1) plan, acquire, develop, construct, or renovate an approved venue
project; or
(2) perform any other act the district is authorized to perform under this
chapter, other than conducting an election under this chapter.
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Sec. 335.073. BONDS AND OTHER OBLIGATIONS.
(a) A district in which an approved venue project is located may issue
bonds, including revenue bonds and refunding bonds, or other obligations to
pay the costs of the approved venue project. For a district created by a
county with a population of more than 2.2 million and a municipality with a
population of more than 1.2 million, the power of the district to issue bonds
or other obligations is subject to the prior approval by the governing bodies
of the county and municipality.
You ask a series of questions about the responsibility of the Houston City Council with regard to the
authority:
1. Whether the city council has the formal power of appointment or
right of contirmation of the directors.
2. Whether the city council has authority to approve change orders for
Authority contracts.
3. Whether the city council may place restrictions on lease agreements
negotiated by the Authority.
4. Whether the city council has general oversight responsibilities in
addition to power to approve issuance of bonds and other obligations
by the Authority.
We will first address your second, third, and fourth questions.
The answer to each of these questions is “no.” The city council has very limited powers with
regard to the authority. The council, together with the county commissioners court, is specifically
authorized to “create” the authority by concurrent order. After the authority is created, the power
to contract, Local Gov’t Code section 335.071(b), and the power to enter into lease agreements, id.
5 335.071(a), is vested in the authority itself. The council is, however, given the right of “prior
approval” of bonds or other obligations. Id. 5 335.073(a). Since the legislature reserved this
authority to the council, it seems apparent that it meant to exclude others not specifically granted.
See Harris Gmnty v. Croaker, 248 S.W. 652 (Tex. 1923). Thus, alter the authority has been created,
the city council has no “general oversight responsibilities” beyond its power to approve bonds or
other obligations.
The answer to your fmt question depends on the terms of the concurrent order creating the
authority. Although the mayor clearly holds the “formal power of appointment” of the city’s
designated members, Local Gov’t Code section 335.031(b), he must exercise that power “in
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accordance with the concurrent order.” The concurrent order may “designate . . . the manner of
appointment.” Id. 9 335.022. In our opinion, the council’s power to determine the “manner of
appomtment” means that It might have reserved to itself a right of confirmation of those directors
appointed by the mayor. You advise, however, that “On the advice of the city attorney,” the
concurrent order did not contain a right of confirmation for the council. In the absence of such
language, chapter 335 clearly places the sole power of appointment in the mayor and county judge.
SUMMARY
The Houston City Council does not have either the formal power of
appointment or the right of confirmation of directors of the Houston-Harris
County Sports Authority (the “authority”). The city council is not
empowered to approve change orders for authority contracts or to place
restrictions on lease agreements negotiated by the authority, nor does it have
general oversight responsibilities over the authority beyond the right to
approve the issuance of bonds and other obligations.
D,AN MORALES
Attorney General of Texas
JORGE VEGA
Fit Assistant Attorney General
SARAH J:SHJRLEY
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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