### KEN PAXTON ATTORNEY GENERAL OF TEXAS

March 14, 2016

The Honorable Joseph C. Pickett Chair, House Committee on Transportation Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768

DearRepresentative Pickett: OpinionNo. KP-0069 Re: Whether a school district board of trustees may post on the district website the personal financial statements of board members submitted pursuant to section 11.0641 ofthe Education Code (RQ-0053-KP)

You ask whether a school district board oftrustees may post on the district website the personal financial statements ofboard members submitted pursuant to section 11.0641 of the Education Code. 1 Section 11.0641 "applies onlyto the board oftrustees ofan independent school district that is located in a county that is located on the international border and in which a municipality with a population of600,000 or more is located," i.e., El Paso County. TEX. EDUC. CODE§ 11.0641(a); see Fiscal Note, Tex. H.B. 343, 83d Leg., R.S. (2013) at 1 (stating that "[t]he bill is bracketed to apply to nine independent school districts (ISDs) within El Paso County"). Subsection (b) ofthe statute requires "[e]ach member ofthe board oftrustees ofan independent school district [to] file a financial statement with: (1) the board of trustees; and (2) the commissioners court ofthe county in which the school district's central administrative office is located." TEX. EDUC. CODE § l 1.064l(b). Under the statute, the commissioners court is to determine "whether a statementrequired to be filed under this section is late," in which case "the individual responsible for filing the statement is liable to the county for a civil penalty of$500" and, in aggravated circumstances, may.be the basis of a civil penalty of up to $10,000. Id. § 11.0641(e). Moreover, a trustee who fails to file the required statement commits a Class B misdemeanor offense. Id. § 11.0641(d). Section l l.064l(c) provides:· The provisions of Subchapter B, Chapter 572, Government Code, governingthe contents, timeliness offiling, andpublic inspection of a statement apply to a statement filed under this section as ifthe

1 See generally Letter and Brief from Honorable Joseph C. Pickett, Chair, House Transp. Comm., to Honorable Ken Paxton, Tex. Att'yGen. (Sept. 14, 2015), https://www.texasattomeygeneral.gov/opinion/requests-foropinion-rqs ("Request Letter" and "Brief," respectively).The Honorable Joseph C. Pickett

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trustee were a state officer and the comm1ss10ners court of the county were the Texas Ethics Commission. 

### Id. § 11.064l(c) (emphasis added).2 Accordingly, 11.0641(c) gives the commissioners court the powers and responsibilities of the Texas Ethics commission with respect to the contents, timeliness, and public inspection ofa financial statement required by the section. In subchapter B, chapter 572, the provision concerning "PublicAccess to Statements" is section 572.032, which provides: (a) Financial statements filed under this subchapter are public records. The commission shall maintain the statements in separate alphabetical files and in a manner that is accessible to the public during regular office hours. (a-1) The commission shall remove the home address ofajudge or justice from a financial statement filed under this subchapter before: (1) permitting a member ofthe public to view the statement; or (2) providing a copy of the statement to a member of the public. (b) During the one-yearperiod following the filing ofa financial statement, each time a person requests to see the financial statement, excluding the commission or a commission employee acting on official business, the commission shall placeinthe file a statementofthe person'sname and address, whom the personrepresents, and the date ofthe request. The commission shall retain that statement in the file for one year after the date the requested financial statement is filed. (c) Afterthe second anniversary ofthe date the individual ceases to be a state officer, the commission may and on notification from the former state officer shall destroy each financial statement filed by the state officer. TEX. Gov'T CODE § 572.032. Thus, these access provisions apply only to the Texas Ethics Commission and, by virtue ofsection l 1.0641(c), the commissioners court.

2Undera different section ofthe Education Code, aboard oftrustees, orin certain instancesthe commissioner of education, may require a board's members to file a financial statement with their board and the Texas Ethics Commission, not with a county commissioners court. TEX. EDUC. CODE § l 1.064(a}-(a-4).The Honorable Joseph C. Pickett

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While section 11.0641 ofthe Education Code requires a copy ofthe financial statement to be filed withthe boardoftrustees, itdoes not addressthe responsibilities ofthe boardthatreceives the required statement. See TEX. EDUC. CODE·§ 11.0641(a). Thus, we must consider other law governing access to public records held by governmental bodies. We are not aware ofany statute, judicialopinion, orotherlawthatgenerallyprohibits agovernmentalbodyfrom posting apersonal financial statement on its website. But personal financial statements that are required to be filed under chapter 572, subchapter Barepublic records. TEX. Gov'T CODE§ 572.032(a). Under the Public Information Act ("PIA"), a governmental body has a duty to promptly produce public information. Id. § 552.221. The authority to provide access to personal financial statements by postingthem onthe district website may be implied as incidentto the board oftrustees' duties and authority under the PIA. See Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ refd n.r.e.) (determining that a board oftrustees possesses powers expressly conferred on itby law or necessarily implied from its express powers); Tex. Att'y Gen. Op. No. ORD-682 (2005) at 7 (noting that, while making information available on a website does not satisfy section 552.221 of the PIA, "a requestor may agree to accept information on a governmental body's website in fulfillment of the request" for information under the PIA). Accordingly, a courtwould likelyconcludethat it is withinthe board oftrustees' discretionto post on the district website the personal financial statements ofboard members submitted pursuant to section 11.0641 ofthe Education Code. Membersofthe Legislaturemayhaveintendedfortheboardtorequirethe sameprocedures as the commissioners court, but the language ofthe statute does not do so. To conclude that the procedures in subsection 11.0641(c) apply to the board oftrustees requires reading language into the statute, which courts generally do not do. MCISales & Serv. v. Hinton, 329 S.W.3d475, 502 (Tex. 2010) (observing that "courts should not by judicial fiat insert non-existent language into statutes"). Ifthe Legislature intended for the board to follow those procedures, it should amend the statute accordingly. The personal financial statements required by section 11.0641 may contain information made confidential or otherwise protected under other law. See, e.g., TEX. Bus. & COM. CODE § 521.051 ("Unauthorized use or Possession ofPersonal Identifying Information"); TEX. Gov'T CODE § 552.117 ("Exception: Confidentiality ofCertain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information"); Tex. Dep 't ofPub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 119 (Tex. 2011) (noting that information protected underthe common-lawprivacy doctrine is exempt from disclosure underthe PIA). Thus, while aboardhas discretion to post financial statements required by section 11.0641 on its website, it is cautioned that it should withhold information made confidential or otherwise protected by other law. See TEX. Gov'T CODE § 552.352(a) ("A person commits an offense if the person distributes information considered confidential under the terms of[the PIA]."). Members ofthe public who desire to do so may seek an inspection of the complete financial statements in full from theThe Honorable Joseph C. Pickett

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comrmss10ners court under section 11.0641 of the Education Code and chapter 572 of the Government Code.3 Your second question is whether "the board oftrustees by a majority vote [may] require the posting ofthe personal financial statement ofa trustee who objects." Request Letter at 2. A board oftrustees "may act only by majority vote ofthe members present at a meeting:" TEX. EDUC. CODE § 11.051(a-1). Section 11.0641 ofthe Education Code does not create a right in an individual trustee to limit disclosure ofthe copy ofthe public document filed with the board of trustees. Thus, under section 11.0641, a majority ofthe board oftrustees may require the posting ofthe personal financial statement ofan individual trustee over the trustee's objections.4

3See York v. Tex. GuaranteedStudent loan Corp., 408 S.W.3d 677, 685 (Tex. App.-Austin 2013, no pet.) (holding that exceptions from general rule ofrequired disclosure under section 552.021 ofthe Public Information Act "donot
...purportto operate more generally against public-access or disclosure requirements created or imposed by other law").

4Because the answerto your first question is in the affirmative, we do not addres1> your third question.The Honorable Joseph C. Pickett

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SUMMARY A court would likely conclude that it is within the discretion of a school board of trustees subject to section 11.0641 of the Education Code to post on the district's website the personal financial statements of member trustees required by that section. Under section 11.0641, a majority of the board of trustees may require the posting of the personal financial statement of an individual trustee overthe trustee's objections.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee WILLIAM A. HILL Very truly yours,

KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee