Untitled Texas Attorney General Opinion ( 2001 )

January 22,200l
The Honorable Bill Ratliff Opinion No. JC-0335
Lieutenant Governor
State of Texas Re: Applicability ofvarious state statutes to local
P.O. Box 12068 government corporations created under chapter
Austin, Texas 7871 l-2068 43 1 of the Transportation Code (RQ-0269-JC)
Dear Governor Ratliff
You ask whether local government corporations created under Transportation Code chapter
431, subchapter D (Vernon 1999 & Supp. 2001), are subject to the following statutes: the Texas
Open Meetings Act, TEX. GOV'TCODEANN. ch. 55 1 (Vernon 1994 & Supp. 2001); the Texas Public
Information Act, id. ch. 552; the Professional Services Procurement Act, id. $5 2254.001-.006
(Vernon 2000); and the provisions of Government Code chapter 225 1 requiring prompt payment by
governmental entities, id. ch. 225 1. You also ask whether local governmental entities are authorized
to fund the operations of a local government corporation for any and all purposes.
We conclude in answer to your questions that local government corporations created under
Transportation Code chapter 43 1, subchapter D, are subject to the Open Meetings Act and the Public
Information Act. They are not subject to the Professional Services Procurement Act or the
provisions of chapter 2251 of the Government Code. The authority of local governmental entities
to transfer funds to a local government corporation is subject to constitutional and other limitations.
Any transfer of funds by local governmental entities to local government corporations must comply
with the provisions of the Texas Constitution that require public funds to be used for public purposes
and that prevent a city or county from making a gil? of public funds to a public or private entity.
Moreover, a local government corporation may use funds only to carry out the purposes stated in its
articles of incorporation. A city or county may not, in connection with determining the purpose of
a local government corporation, transfer control of its governmental functions to the corporation.
You ask us to determine whether four statutes that apply to state agencies and political
subdivisions also apply to a “local government corporation.” In the case of three of these statutes,
the express language of Transportation Code, chapter 43 1, provides the answer to your question.
The fourth statute, chapter 225 1 ofthe Government Code, is muchmore difficult to address, because
chapter 431, subchapter D, is silent as to it. We must determine whether a local government
corporation is the kind of entity that is subject to chapter 2251 of the Government Code, and thus
we must consider the combined public and private nature of local government corporations. Because
such corporations have the powers and duties of both public and private entities, they are difficult
The Honorable Bill Ratliff - Page 2 (JC-0335)
to categorize for purposes of deciding whether limitations applicable to governmental entities also
apply to them. The courts have dealt with legal issues involving specific “quasi-governmental”
corporations but their decisions do not provide a test for deciding when such corporations should be
treated as public entities and when as private entities. See Central Appraisal Dist. ofErath County
Y. Pecan Valley Facilities, Inc., 704 S.W.2d 86, 89 (Tex. App.-Eastland 1985, writ refd n.r.e.)
(nonprofit corporation created solely to purchase land and lease it to a local mental health and mental
retardation region was not a governmental entity or agency entitled to an exemption f?om ad valorem
tax under article XI, section 9 of the Texas Constitution); Tramamerica Ins. Co. v. Housing Auth.
of City of Victoria, 669 S.W.2d 818 (Tex. App.-Corpus Christi 1984, writ refd n.r.e.) (housing
authority as a quasi-governmental entity was expressly required by statute to have performance
bond). A review of the provisions governing local government corporations demonstrates their
complex and ambiguous nature.
Local government corporations are nonprofit corporations created by a city or a county, “to
aid and act on behalf ofone or more local governments to accomplish any governmental purpose of
those local governments.” TEX. TRANSP. CODE ANN. 5 43 1.101 (a) (Vernon Supp. 2001); see id.
9 43 1.003(3) (Vernon 1999) (“local government” means a municipality or a county); see also id.
$5 431.001, ,006, .021 (authorizing creation of transportation corporations to expand and improve
transportation facilities and systems). A local government corporation has broad statutory authority
including the powers of a transportation corporation under chapter 43 1 of the Transportation Code
and the powers of a nonprofit corporation incorporated under the Texas Non-Profit Corporation Act,
to the extent that its provisions are not inconsistent with chapter 431 of the Transportation Code.
See id. 5 43 1.101 (b), (c) (Vernon Supp. 2001); see also id. 5 43 1.006 (Vernon 1999). Thus, a local
government corporation may exercise powers in addition to the powers expressly stated in the
Transportation Code provisions under which it was created.
Such corporations are also subject to control and supervision by the governmental entity that
created them and they have duties and powers typical of a governmental entity. A local government
corporation is created and dissolved in the same manner as a corporation under the Texas Housing
Finance Corporations Act, TEX. Lot. GOV’TCODE ANN. ch. 394 (Vernon 1999 & Supp. 2001); see
TEX.TRANSP. CODE-. 4 431.102(a) (VemonSupp. ~~O~);~~~~Z~~TEX.LOC.GOV’TCODEANN.
§ 394.001 (Vernon 1999). Three residents of the local government must file a written application
for incorporation with the governmental body. TEX. Lot. GOV’TCODE ANN. 5 394.01 l(a) (Vernon
1999). The governmental body approves the corporation’s articles of incorporation and appoints the
corporation’s directors. S~~TEX. TRANSP. CODE. ANN. 5 431.101(a) (Vernon Supp. 2001); see also
TEX. LOC. GOV’T CODE ANN. 5 394.021 (b) (Vernon 1999). It is a “governmental unit” as that term
is used in Civil Practices and Remedies Code, chapter 101, and its operations are governmental, not
proprietary, functions for purposes of chapter 101. See TEx. TRANSP.CODEANN. 5 43 1.108 (Vernon
1999). Thus, the Texas Tort Claims Act, TEX. CIV. PRAC. &REM. CODEANN. ch. 101 (Vernon 1997
& Supp. 2001), applies to such corporations. See id. 5 101.021, .0215 (Vernon Supp. 2001).
Its property and transactions to acquire property are exempt from property tax in the same
manner as a corporation created under the Texas Housing Finance Corporations Act, TEX. LOC.
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GOV’T CODE ANN. ch. 394 (Vernon 1999 & Supp. 2001). See TEX. TRANSP. CODE ANN.
5 43 1.102(b) (Vernon Supp. 2001). Thus, all property owned by a local government corporation is
exempt from property taxes “as public property used for public purposes.” TEX. Lot. GOV’T CODE
ANN. 5 394.905 (Vernon 1999); see Harris County Appraisal Dist. v. Southeast Tex. Hour;. Fin.
Corp., 991 S.W.2d 18 (Tex. App.-Amarillo 1998, no writ) (subsidiary corporations created by
housing finance corporation to hold and operate low income and elderly housing were entitled to tax
exemption for that property). The local government that created a local government cotporation “is
entitled at any time to receive any income earned by the local government corporation that is not
needed to pay the corporation’s expenses or obligations.” TEX. TRANSP. CODE ANN. 5 431.107(a)
(Vernon 1999). The governing body of a local government may assume the powers and duties of
the local government corporation it created, but if it does so, it must also assume its assets and
liabilities. Id. 5 431.104.
Because of the difficulties of characterizing local government corporations and other
nonprofit corporations established to assist governmental bodies as either public or private, opinions
of this office usually address questions about them narrowly, focusing on the specific provision at
issue. See Tex. Att’y Gen. Gp. No. JC-206 (2000) (Transportation Code section 43 1.101 (e) excepts
a local government corporation fiomthecompetitive bidding provisions applicable to the county that
created it). This is the approach we will apply to your questions.
We first consider whether local government corporations are subject to the Texas Gpen
Meetings Act and the Texas Public Information Act. These statutes apply to local government
corporations created under Transportation Code chapter 431, subchapter D (Vernon 1999 & Supp.
2001). Transportation Code section 43 1.003(2) provides that “‘[clorporation means a corporation
organized under this chapter and includes a local government corporatron.” TEX. TRANSP. CODE
ANN. 5 43 1.003(2) (Vernon 1999). Chapter 43 1 expressly provides that “[a] corporation is subject
to Chapter 551, Government Code,” the Texas Open Meetings Act. Id. 5 43 1.004(a). In addition,
“[tlhe board is subject to Chapter 552, Government Code,” the Texas Public Information Act. Id.
5 431.005. “Board” means the board of directors of a corporation organized under chapter 43 1, thus
including the board of a local government corporation. See id. 5 43 1.003( 1) (Vernon 1999); see also
id. 5 431.102(a)(2), (3) (Vernon Supp. 2001) (board of a local government corporation). The
governing body of a local government corporation must comply with both the Open Meetings Act
and the Public Information Act.
You ask whether Local Government Code section 394.904 exempts local government
corporations from the Professional Services Procurement Act and Government Code chapter 2251.
Section 431.101(e) of the Transportation Code states as follows: “Section 394.904(a), Local
Government Code, applies to property and improvements owned by a local government corporation.
Section 394.904(b) of the code applies to each contract awarded by the local government
corporation.” Id. 5 43 1.101(e) (Vernon Supp. 2001).
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Local Government Code section 394.904, a provision of the Texas Housing Finance
Corporation Act, provides as follows:
(a) The acquisition, construction, orrehabilitationofaprivate
residential development or a home is not subject to requirements
relating to public buildings, structures, grounds, works, or
improvements imposed by the laws of this state, or to any other
similar requirements.
(b) Any competitive bidding requirement or restriction
imposed on the procedure regarding the award of contracts for that
acquisition, construction, orrehabilitation or regarding the lease, sale,
or other disposition of property of the local government is not
applicable to any action taken under this chapter.
TEX. Lot. GOV’T CODE ANN. 5 394.904 (Vernon 1999),
Attorney General Opinion JC-0206 considered whether subsection 394.904(b), Local
Government Code, excepted a local government corporation from the County Purchasing Act, id.
ch. 262 (Vernon 1999 & Supp. 2001) which requires the county to comply with competitivebidding
or competitive sealed proposal procedures for purchases under contracts requiring an expenditure
in excess of $25,000. We held that the language of section 394.904(b), as incorporated into chapter
43 1, Transportation Code, excepted a local government corporation from the County Purchasing Act.
See Tex. Att’y Gen. Op. No. JC-0206 (2000) at 4. Attorney General Opinion JC-206 noted that “the
reference to section 394.904(b) in section 431.101(e) of the Transportation Code is perplexing,”
given the differences between housing finance corporations and local government corporations, in
particular “the great difference in their breadth of purpose.” Id. However, the opinion noted that
under section 431.101(e), section 394.904(b) applied “to each contract awarded by the local
government corporation,” and it concluded that all contracts of a local government corporation were
exempted from the competitive bidding provisions applicable to the local governmental body that
created the corporation. Id.
In our opinion, section 394.904(b) of the Local Government Code also excepts contracts of
a local government corporation from the Professional Services Procurement Act, TEX.GOV’T CODE
ANN. $8 2254.001-,006 (Vernon 2000). This Act states that “[a] governmental entitymaynot select
a provider ofprofessional services . on the basis of competitive bids” and sets out the procedures
for choosing a provider. Id. 5 2254.003. The Professional Services Procurement Act imposes a
“restriction. . on the procedure regarding the award of contracts for that acquisition, construction,
or rehabilitation or regarding the lease, sale, or other disposition of property” by the local
government corporation and therefore does not apply to the corporation. TEX. LOC. GOV’T CODE
ANN. 9 394.904 (Vernon 1999).
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The next question is whether local government corporations must comply with Government
Code chapter 2251, which establishes time limitations within which state agencies and political
subdivisions must pay vendors for goods and services, and vendors who receive payment from such
government entities must pay their subcontractors. See TEX. GOV’T CODEANN. 55 2251.021-.023
(Vernon 2000); Tex. Att’y ~Gen. Op. No. DM-88 (1992) at 1. For example, a payment by a
governmental entity under contract is overdue on the 31st day after the later of the date the
governmental entity receives the goods, the date the performance of the service under the contract
is completed, or the date the governmental entity receives an invoice for the goods or services. TEX.
GOV’T CODEANN 5 225 1.021 (Vernon 2000); see id. 5 225 1.002(a) (exceptions). Its requirements
apply to payments under construction contracts. See Tex. Att’y Gen. Op. No. DM-88 (1992) at 3.
We will first consider whether Local Government Code section 394.904 as incorporated by
section 43 1.101 (e) of the Transportation Code excepts local government corporations from chapter
2251 of the Government Code. Section 431.101(e) states that section 394.904(b) of the Local
Government Code applies to each contract awarded by the local government corporation. As we
have already seen in discussing the Professional Services Procurement Act, section 394.904(b)
provides an exception for “[a]ny competitive bidding requirement or restriction imposed on the
procedure regarding the award of contracts.” TEX. LOC. GOV’T CODE ANN. 5 394.904(b)~(Vemon
1999). Chapter 2251 of the Government Code does not impose a restriction on the procedure for
awarding contracts. It requires prompt payment under a contract for goods and services after the
contract is awarded by a governmental entity. Accordingly, Local Government Code section
394.904 as incorporated by section 43 1.101 (e) of the Transportation Code does not except local
government corporations from chapter 2251 of the Government Code.
We must therefore determine whether a local development corporation is a “governmental
entity” within chapter 225 1, which defines a “[glovernmental entity” as “a state agency or political
subdivision.” TEX. GOV’T CODE ANN. § 2251.001(2) (Vernon 2000). A “political subdivision” is
a county, a municipality, a public school district, or a special-purpose district or authority. Id.
5 225 l.OOl(4). In answering this question, we rely on a provision of the Code Construction Act:
“Words and phrases are to be read in context and construed according to the rules of grammar and
common usage,” unless they have acquired a technical meaning by legislation or otherwise. Id.
§ 311 ,011 (Vernon 1998). The legislature hasnot given “governmental entity” in Government Code
chapter 225 1 a technical meaning that would encompass a local government corporation established
according to Transportation Code chapter 43 1, subchapter D. Compare TEX. GOV’T CODE ANN.
5 2251.001(2), (4) (Vernon 2000) with id. 5s 791.025(a) (Vernon Supp. 2001) (for purposes of
interlocal purchasing contract, local government includes anonprotit corporation created to provide
governmental services); 2253.001(l) (Vernon 2000) (for purposes ofpublic work performance and
payment bond statute, “governmental entity” means a governmental or quasi-governmental entity
authorized to make a public work contract); 2256.002(7) (for purposes ofPublic Funds Investment
Act, “local government” includes any nonprofit corporation acting on behalf of a municipality,
county, school district, political subdivision, and similar public entities).
The Honorable Bill Ratliff - Page 6 (JC-0335)
A lo& government corporation is not “a county” or “a municipality” within the common
meaning of those terms. It is created differently from those political subdivisions and, more
important, it does not possess governmental authority, but may only “aid and act on behalf of’ a city
or county to accomplish the city’s or county’s governmental purposes. A local government
corporation could not legally possess the full powers of a city or county, according to the well-
established rule that a local government may not transfer control of its governmental functions to
another entity. Seegenerally, Nairn v. Bean, 48 S.W.2d 584,586 (Tex. Comm’n App. 1932, opinion
adopted); City OfArlington Y. City ofFort Worth, 844 S.W.2d 875,878 (Tex. App.-Ft. Worth 1992,
writ denied).
A local government corporation is not “a public school district,” nor is it a “special district
or authority” within the common meaning of those terms. In the Public Facility Corporation Act,
the legislature defined “a special district” as
(A) a district created under Section 52, ArticlelII, or Section
59, Article XVI, Texas Constitution;
(B) a hospital district or authority; or
(C) a junior college district authorized by Chapter 130,
Education Code.
TEX. Lot. GOV’T CODE ANN. 5 303.003(10) (Vernon 2000). A local government corporation is
unlike any of the entities specifically listed in the above provision. We conclude that a local
government corporation is not a special district or authority subject to chapter 2251 of the
Government Code. Because a local government corporation is not a governmental entity within the
meaning of chapter 2251 of the Government Code, it is not subject to the prompt payment
requirements of that statute.
You finally ask whether local governmental entities have authority to fund the operations of
a local government corporation for any and all purposes. We assume that you are referring to funds
transferred under a contract between a political subdivision and the economic development
corporation that it founded. See TEX. TRANSP. CODE ANN. 5 431.103 (Vernon 1999) (local
government corporationmay contractwithpolitical subdivision ofthe state). Because your question
is phrased in general terms, we cannot answer it definitively. We will address some of the legal
issues raised by your question, but we will not discuss specific activities that a particular local
development corporation might undertake on behalf of the entity that created it.
The Texas Constitution places limits on the power of a local government to transfer funds
to any other entity. Article III, section 52 of the Texas Constitution provides that the legislature may
not authorize any county, city, or other political corporation of the state “to lend its credit or to grant
public money or thing of value in aid of, or to any individual, association or corporation
whatsoever.” TEX. CONST. art. Ill, 9 52; see also id. art. Xl, § 3 (similar provision). These
The Honorable Bill Ratliff - Page 7 (JC-0335)
provisions bar donations of funds from one govenmrental entity to another, as well as donations t?om
governmental entities to private entities. See Ham> County Flood Control Dist. Y. Mann, 140
S.W.2d 1098 (Tex. 1940); San Antonio Indep. Sch. Dist. v. Board of Trustees of San Antonio Elec.
& Gas Sys., 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947, writ ret d n.r.e.). A city’s or county’s
transfer of funds to a local development corporation must serve a public purpose, and must be
subject to adequate controls, contractual or otherwise, to ensure that the public purpose is
accomplished. SeeKey v. Commissioners Court, 727 S.W.2d 667,669 (Tex. App.-Texarkana 1987,
no writ). Although a political subdivision may not make an unrestricted grant of funds to a private,
nonprofit corporation, it may contract with it to provide services or accomplish a public purpose that
the county is authorized to provide. For example, while a county may not donate funds to a private
hospital, it may contract with it to provide medical care for its indigents and to assist in providing
ambulance services in the county. See Tex. Att’y Gen. Op. No. Jh4-65 (1983) at 2; see also Tex.
Att’y Gen. Op. No. H-127 (1973) at 4 (county may contract with private corporation to provide
recreational facility for aged persons); LO-93-079 at 3 (county with authority to establish a “wildlife
hotline” may contract with a private entity to operate hotline).
Transactions between a city or county and the local government corporation it created must
be consistent with the purpose defined in the local government corporation’s articles of
incorporation. See TEX. REV. CIV. STAT. ANN. art. 1396-2.01A. (Vernon 1997) (purposes of
nonprofit corporation shall be stated in articles of incorporation); TEX. Lot. GOV’T CODE ANN.
$ 394,014(a)(4) (Vernon 1999) (articles of incorporation state purpose of corporation). While
section 431.101(a) of the Transportation Code authorizes a city or county to create a local
government corporation to aid it in accomplishing “any governmental purpose,” the purpose of a
particular local government corporation must be stated in the articles of incorporation. Thus, a city
or county may engage in transactions with a local development corporation only in connection with
the purpose or purposes stated in the articles of incorporation.
Finally, in approving the purpose of the corporation, the local government may not surrender
a governmental function to the corporation. Absent specific constitutional authorization, a city or
county may not transfer control of its governmental functions to another entity. See Arlington, 844
S.W.2d at 878. “No governmental agency can, by contract or otherwise, suspend or surrender its
functions, nor can it legally enter into any contract which will embarrass or control its legislative
power and duties or will amount to an abdication thereof.” City of Corpus Christi v. Bayfront
Assocs., Ltd., 814 S.W.2d 98, 107 (Tex. App.Xorpus Christi 1991, writ denied); Guerra v.
Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.San Antonio 1951, no writ); seeNaim, 48 S.W.2d at
584, 586. Accordingly, the rules concerning delegation of legislative authority also limit the
purposes for which a city or county may transact business with a local development corporation.
The Honorable Bit1 Ratliff - Page 8 (JC-0335)
SUMMARY
Local government corporations created under Transportation
Code chapter 43 1, subchapter D, are subject to the Open Meetings
Act and the Public Information Act. They are not subject to the
Professional Services Procurement Act or chapter 2251 of the
Government Code, which requires prompt payment of vendors by
governmental entities.
The authority of local governmental entities to transfer funds
to a local government corporation is subject to constitutional
limitations. In creating a local government corporation to assist it or
act on behalf of it, a city or county may not transfer control of its
governmental functions to the corporation. Any transfer of funds by
local governmental entities to local government corporations must
comply with the provisions of the Texas Constitution that require
public funds to be used for public purposes and that prevent a city or
county from making a gift of public funds to a public or private
entity.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General - Opinion Committee