DAN MORALES 

ATTORNEY GENERAL 

QBffice of the 2Wmvp QBeneral 

&ate of PCexae 

December 2.1994 

Honorable Walt Sears, Jr. 

Franklin County Attorney 

P.O. Box 374 

Mount Vernon, Texas 75457 

Opinion No. DM-307 

Re: Whet&r House Bii 859, Acts 1992, 

73d Leg., ch. 473 (now coditied at 

V.T.C.S. art. 1446h), which requkes a 

public utility to keep portion of its customer 

records confidential under certain circumstmws, is applicable to’the Franklin County 

Water District (RQ-619) 

Dear Mr. sears: 

You have requested an opinion from this office regarding the construction of 

House Bill 859, Acts 1993,73d Leg., ch. 473 (now codiied at V.T.C.S. art. 1446h). In 

particular, you ask whether the Franklin County Water District is subject to House Bii 

859. You also ask whether there are any criminal penalties for violating House Bii 859. 

With some exceptions not relevant here, House Bii 859 prohibits a “govemmentoperated utility” from disclosing a customer’s address, telephone number, or social 

security number if the customer requests that this information be kept confidential. The 

act de&es a “government-operated utility” as an entity that: 

(A) is a governmental body or is governed by a governmental 

body, as defined by Section 2(l), Chapter 424, Acts of the 63rd 

Legislature, Regular Session, 1973 (Article 6252-17a, Vernon’s 

Texas Civil Statutes’); and 

(B) provides water, wastewater, sewer, gas, garbage, electricity, 

or drainage service for compensation. 

V.T.C.S. art. 144615 $ l(1) (footnote added). 

‘The legislatm rqeakl article 6252-17a. V.T.C.S., in 1993. See Acts 1993,73d Leg., ch. 268, 

5 46(i), at 587,988. The material in that article, the Texas Open Ranrds Act, is now codified as chapter 

552 of the Govcmment Code. See id. 8 1, at 599. 

p. 1642 
Honorable Wah Sears, Jr. - Rage 2 (ur.+307) 

You concede that the Franklin County Water District is a govermnental body 

subject to the Open Records Act. You also explain that the district is a water 

conservation and reclamation district responsible for maintaining Lake Cypress Springs. 

For an annual permit fee, the district allows persons who own property adjacent to the 

lake to remove lake water for irrigation or other on-site purposes other than human 

consumption. The water is not potable. Currently, the fee is 825 regardless of how much 

water is taken from the lake, and the district does not provide any equipment, labor, 

advice, or instructions for removing the water. 

We conclude that the Franklin County Water District is subject to House Big 859. 

Construing House Bill 859 to cover the Franklin County Water District is consistent with 

the plain meaning ofthe statute. See McCulloch v. Fox &Jacobs, Inc., 6% S.W.2d 918, 

921 (Tex. App.-Dallas 1985;wtit refd n.r.e.) (concluding that words should be given 

their plain meaning when statute is clear and unambiguous). To provide water can mean 

to make water available. See WEBSTER’S COLLEIXATE DICTIONARY 940 (10th ed. 1993) 

(detIning “provide”). The Franklin County Water District makes the lake water available 

to the owners of land adjoining the lake for compensation of S25 a year. Nothing in the 

language or the statutory history of House Bill 859 indicates that making water available, 

rather than supplying it using government equipment and labor, is insutXcient to bring a 

governmental body within the coverage of House Bill 859. 

In addition, construing House Bill 859 to cover the Fmnklin County Water District 

is consistent with the purpose of the act. The bii analysis regarding House Bill 859 

indicates that before it was passed the Open Records Act required publicly-owned utilities 

to release the home address and telephone number of a customer even if the customer did 

not want the information released. As a result, customers who were being hammed or 

threatened could not escape the harassment or threats by changing phone numbers or 

addresses. The purpose of the act is to correct this unintended result of the Open Records 

Act. This purpose is served equally well by requiring the Franklin County Water District 

to keep addresses and telephone numbers confidential as by requiring a more conventional 

publicly-owned utility to keep the same information confidential.2 Accordingly, if the 

Franklin County Water District maintains records that include addresses, telephone 

numbers, or social security numbers for the individuals who have permits to remove water 

6om Lake Cypress Springs, then the district must keep this information wnfrdential at the 

request of the individual. 

In regard to your second question, House Bill 859 does not itself wntain any 

criminal penalties. As you point out, the title to the act refers to “providing a criminal 

WC do not mean to suggest, however, that the Franklin County Water District or other similar 

entities would be governme ntoperated utilities for the purpose of any statute other than House Bii 859. 

thr opinion here is limited to interpreting How Bill 859. 

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Honorable Walt Sears, Jr. - Page 3 (~~-307) 

penalty.” However, the legislative history of the act indicates that this reference is an 

error. As introduced, the bill wntained a section making a violation of the act a class C 

misdemeanor. This section was deleted in the wmmittee substitute for the original bii. 

See House Comm. on State Affairs, Bill Analysis, H.B. 859,73d Leg. (1993). We believe 

that the committee merely forgot to amend the title of the bii to wn8orm to the 

amendments in the body of the bill. 

On the other hand, an entity that violates House Bii 859 may be’ subject to 

miminat penalties under section 552.352 of the Government Code. Section 552.352(a) 

provides “[a] person commits an offense if the person distributes in8ormation considered 

wntidential under the terms of this chapter.” Information made wntidential by another 

statute is also considered wntidential under the Open Records Act. See Gov’t Code 

3 552.101; Open Records Decision No. 490 (1988) at 4. Distributing wntidential 

information is a misdemeanor and official misconduct. Gov’t Code 8 552.352(b), (c). 

SUMMARY 

The Franklin County Water District is subject to the 

requirements of House Bill 859, Acts 1993,73d Leg., ch. 473 (now 

codified at V.T.C.S. art. 1446h). because it permits persons who 

own land adjacent to Lake Cypress Springs to remove water for an 

annual fee of $25. Construing House Bill 856 to encompass the 

Franklin County Water District is consistent with the plain meaning 

of the statutory language and with the purpose of the bill. 

House Bill 856 does not itself impose any criminal penalties for 

violating its provisions. However, an entity that violates House Bii 

859 may be subject to criminal penalties under the Open Records 

Act, section 552.352 of the Government Code. 

DAN MORALES 

Attorney General of Texas 

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Honorable Walt Sears, Jr. -Page 4 (DM-307) 

JORGE VEGA 

Fii Assistant Attorney General 

DREW T. DURHAh4 

Deputy Attorney General for Criminal Justice 

JAVIER AGUILAR 

Special Assistant Attorney General 

RENEAHIcKs 

State Solicitor 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Margaret A. Roll 

Assistant Attorney General 

p. 1645