DAN MORALES

ATTORNEY GENERAL 

## QBffice

ofthe 2Wmvp QBeneral &ate ofPCexae 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 publicutility to keep portion ofits customer records confidential under certain circumstmws, isapplicable 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 askwhether there are any criminalpenalties 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 ifthe customer requests that this information be kept confidential. The act de&es a“government-operated utility” asan 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, 546(i), at587,988. The materialin thatarticle,theTexas OpenRanrds Act, is now codified aschapter 552 ofthe Govcmment Code. See id. 8 1,at599.

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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 feeis 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 859to cover the Franklin County Water District isconsistent with the plain meaning ofthe statute. SeeMcCulloch 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

DICTIONARY940 (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 ofHouse 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 ofHouse Bill 859. In addition, construing House Bill 859to cover the Fmnklin County Water District is consistent with the purpose of the act. The bii analysis regarding House Bill 859 indicates that before itwaspassed the Open Records Act required publicly-owned utilities to release the home address and telephone number ofa customer even ifthe 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 ofthe act isto correct this unintended result ofthe Open Records Act. This purpose is served equally well by requiring the Franklin County Water District to keep addresses and telephone numbers confidential asbyrequiring 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 ofthe 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, thatthe Franklin County WaterDistrict or other similar entities would be governmentoperated utilities forthe purposeof any statuteotherthan House Bii 859. thr opinion hereis limitedto interpretingHow Bill 859.

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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. SeeHouse Comm. on State Affairs, Bill Analysis, H.B. 859,73d Leg. (1993). Webelieve that the committee merely forgot to amend the title of the bii to wn8orm to the amendments inthe body ofthe 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 ifthe 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 3552.101; Open Records Decision No. 490 (1988) at 4. Distributing wntidential information isamisdemeanor and official misconduct. Gov’t Code 8552.352(b), (c). SUMMARY The Franklin County Water District is subject to the requirements ofHouse 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 ofthe statutory language andwith thepurpose ofthe 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 ofthe Government Code.

DAN MORALES Attorney General ofTexas

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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 byMargaret A.Roll Assistant Attorney General

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