. 

Novaber 17, 1987 

Honorable Mike Toomev Opinion No. JM-821 

Chairman 

Judiciary Committee Re: Whether a volunteer 

Texas House of Representatives fire department is subject 

P. 0. Box 2910 to the Open Records Act, 

Austin, Texas 78769 article 6252-17a, V.T.C.S. 

(RQ-1225) 

Dear Representative Toomey: 

You ask whether a volunteer fire department that 

receives public funds through a contract with a rural fire 

prevention district constitutes a "governmental body" 

under the Texas Open Records Act, article 6252-17a, 

V.T.C.S. your concern focuses on the Cy-Fair Volunteer 

Fire Department, which you state is organized as a 

nonprofit corporation under Texas law. you indicate that 

the department receives public funds through a contract 

with the Harris County Rural Fire Prevention District No. 

9 to perform fire fighting services in the district. At 

various times, members of the public have requested 

records from the district. 

The Open Records Act applies to governmental bodies 

as defined in section 2 of the act. Section 2(l)(A) 

describes the state agencies covered by the act. Sections 

Z(~)(B)-(E) list specific types of local governing bodies 

or their subdivisions that are covered by the act. A 

volunteer fire department does not fall within any of 

these specific descriptions. Section 2(l)(F) provides 

that a "governmental body" also includes 

the part, section, or portion of every 

organization, corporation, commission, 

committee, institution, or agency which is 

suvvorted in whole or in nart bv nublic 

funds, or which exnends DUbliC funds. 

Public funds as used herein shall mean funds 

of the State of Texas or any governmental 

subdivision thereof. (Emphasis added.) 

p. 3903 
Honorable Mike Toomey - Page 2 (JM-821) 

. 

Private nonprofit corporations can fall within this 

provision. See, e.s., Open Records Decision Nos. 302 

(1982); 228 (1979). 

The primary issue in determining whether certain 

private entities are "governmental bodies" under the act 

is whether they are supported in whole or in part by 

public funds 

A.H. Belo 

or whether they expend public funds. See 

Cornoration v. Southern Methodist University, 

734 S.W.2d 720. 723 (Tex. App. - Dallas 1987, writ 

pending); Attorney General Opinions JM-154 (1984): JM-116 

(1983): Open Records Decision Nos. 343, 302 (1982); 228 

(1979); see also Kneeland v. National Colleoiate Athletic 

Association, 650 F. Supp. 1047, 1056 (W.D. Tex. 1986); cf. 

Attorney General Opinions JM-596 (1986); JM-120 (1983). 

.---

In A. - H. Belo -Corvoration v. Southern Methodist 

Universitv, sunra, the court held that certain private 

schools' athletic deoartments are not llsovernmental 

bodies" under the Open Records Act because they did not 

receive public funds. The member schools, state and 

private, retained a predetermined amount of funds from 

gate receipts and from broadcasting fees. The remaining 

funds were forwarded to the Southwest Athletic Conference 

(SWC) and other schools. The SWC retained a predetermined ? 

amount and distributed the rest to member schools. The 

court reasoned that the departments did not receive 

"public funds" within the meaning of section 2(l)(F) 

because the money distributed by the SWC did not constitute the "funds of the State of Texas or any governmental 

subdivision thereof." The court concluded that, because 

the funds never "vested" in any school, including a public 

school, the funds did not constitute "public funds." See 

734 S.W.2d at 723. 

The contract between the Cy-Fair Volunteer Fire 

Department and the Harris County Fire Prevention District 

No. 9, however, expressly involves a transfer to the 

department of the bulk of funds received by the district 

from its tax collections, less the district's administrative costs. In the A.H. Belo case, the court distinguished Open Records Decision No. 228 on the basis that 

it clearly involved public funds; funds transferred 

directly from a governmental body to the private entity in 

question. The case at hand is similar. Thus, this case 

is not one in which the governmental body acts only as a 

conduit for funds. 

The receipt of public funds for the general support 

of the activities .of a private organization brings that 

p. 3904 
Honorable Mike Toomey - Page 3 (JM-821) 

organization within the definition of a "governmental 

body." Open Records Decision No. 228. For example, in 

Open Records Decision No. 228, this office determined that 

a private, nonprofit corporation chartered to promote the 

interests of the Dallas-Fort Worth metropolitan area was a 

governmental body under the Open Records Act because of 

its contract with the city of Fort Worth. The contract 

did not impose 'Ia specific and definite obligation on the 

commission to provide a measurable amount of service in 

exchange for a certain amount of money as would be 

expected in a typical arms-length contract for services 

between a vendor and purchaser." Open Records Decision 

No. 228. The corporation was not simply a vendor or 

independent contractor who provided goods or services to a 

governmental body in an arms-length transaction. For 

these reasons, the decision determined that the contract 

funds were for the general support of the corporation 

rather than for specific measurable services. Consequently, the corporation was supported in part by public 

funds within the meaning of section 2(l)(F) of the Open 

Records Act. Id.; see also Attorney General Opinion 

JM-116 (1983): Open Records Decision No. 302 (1982). 

In contrast, Open Records Decision No. 343 (1982) 

determined that a private, nonprofit corporation under 

contract with a hospital district to provide emergency 

medical service is not a "governmental body" because the 

applicable contract provided that the corporation should 

receive "each month a sum equal to the differences between 

cash receipts and approved operating expenditures of the 

ambulance service ." The decision stated that this 

language imposed a definite obligation to make a "specific 

payment for specific measurable services" rather than to 

provide for general support. The decision did not 

indicate how the payment of monthly operating expenses 

through this formula constitutes payment for "specific 

measurable services" or how that payment can be distinguished from general monthly support. The Vest*' applied 

in Decision 343 is part of the test adopted and applied in 

Open Records Decision No. 228. The VUtestVV was formulated 

in Decision No. 228, however, to help distinguish the 

"private" nonprofit corporation from a private vendor who 

sells goods or services to a governmental body. The 

"test" cannot be applied mechanically. The precise manner 

of funding is not the sole dispositive issue in 

determining whether an entity falls under the Open Records 

Act. 

p. 3905 
Honorable Mike Toomey - Page 4 (JM-821) 

Other aspects of a contract or relationship involving 

the transfer of public funds between a private and public 

entity must be considered in determining whether a private 

entity is a l@governmental body" under the Open Records 

Act. For example, a contract or relationship that 

involves public funds and that indicates a common purpose 

or objective or that creates an agency-type relationship1 

between a private entity and a public entity will bring 

the private entity within the section 2(l)(F) definition 

of a "governmental body." See Open Records Decision Nos. 

302, 228; see also Kneeland v. National Colleaiate 

Athletic Association, m (following Open Records 

Decision No. 228). For example, Open Records Decision No. 

228 cited a provision of the contract which directed the 

private entity to continue to carry out the common 

objectives it held with the city. Structuring a contract 

that involves public funds to provide a formula to compute 

a fixed amount of money.for a fixed period of time will 

not automatically prevent a private entity from 

constituting a VVgovernmental body" under section 2(l)(F) 

of the Open Records Act. The overall nature of the 

relationship created by the contract is relevant in 

determining whether the private entity is so closely 

associated with the governmental body that the private 

entity falls within the Open Records Act. As indicated, 

the precise manner of funding is not the sole dispositive 

issue in determining whether an entity falls under the 

Open Records Act. For this reason, the determination in 

Open Records Decision No. ,343 with regard to a 

"governmental body" under the act should not be relied 

upon.2 

1. It should .be noted that the common purpose or 

agency-type relationship that will subject a "private" 

. entity to the Open Records Act is not the equivalent of an 

agency relationship for purposes of tort liability. gg 

cenerallv Attorney General Opinion JM-748 (1987). 

2. Review of the contract at issue in Open Records 

Decision No. 343 reveals that the contract did not involve 

'Ia specific and definite obligation on the [entity] to 

provide a measurable amount of service in exchange for a 

certain amount of money as would be expected in a typical 

arms-length contract for services between a vendor and 

purchaser." &g Open Records Decision No. 228 (1979). 

(Footnote Continued) 

p. 3906 
, 

Honorable Mike Toomey - Page 5 (JM-821) 

c 

h 

Additionally, when volunteer fire departments 

contract with a political subdivision, considerations 

apply to them that ordinarily set them apart from private 

vendors of goods and services who typically deal with 

governmental bodies in arms-length transactions. Fire 

protection is one of the services traditionally provided 

by governmental bodies. Snn. Citv of Coleman v. Rhone, 222 

S.W.2d 646 (Tex. Civ. App. - Eastland 1949, writ ref'd). 

Although no statute expressly makes nonprofit volunteer 

fire departments subject to the Open Records Act or labels 

them governmental bodies for other purposes, several 

statutes recognize that they may have strong affiliations 

with public agencies. See. e.a., V.T.C.S. art. 8309h, 

§1(2) (political subdivisions may bring volunteer 

firefighters within workers compensation coverage): art. 

6243e.3 (political subdivision may opt to provide relief 

and retirement benefits to volunteer firefighters): see 

~&g Tex. Const. art. III, 551-d (legislature may provide 

benefits for survivors of members of volunteer fire 

departments killed in the performance of "official 

duties"). These considerations make it more likely that a 

nonprofit volunteer fire department that enters into a 

contract with a public entity will fall within the Open 

Records Act. Whether or not a particular nonprofit 

volunteer fire department falls within the Open Records 

Act depends on the circumstances in each case, including 

the terms of the contract between the department and the 

public entity. See Schwartzman v. Merritt Island Volunteer Fire Denartment, 352 So. 2d 1230 (Fla. APP. - 4th 

Dist. 1977), c r denied 358 So.2d 132 (Fla. 1978) 

(cited in Open Ee&rds DeciLion No. 228 (1979)). 

The contract between the Cy-Fair Volunteer Fire 

Department and the Harris County Rural Fire Prevention 

District No. 9 involves the general support of the 

activities of the department with public funds. The 

contract provides: 

The Department will provide the emergency 

ambulance services, the fire prevention 

(Footnote Continued) 

For example, the hospital district provided ambulances for 

the ambulance service and provided for the general monthly 

operating expenses of the service. The service could not 

make expenditures, including hiring personnel, without 

district approval. 

p. 3907 
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Honorable Mike Toomey - Page 6 UM-821) 

services, the fire fighting services in the 

geographic District and will not look to the 

District to arovide anv services whatsoever 

excevt for the wrovidina of funds to enable 

the Denartment to carrv on its duties and 

resnonsibilities. (Emphasis added.) 

Thus, the department receives public funds to provide all 

of the district's needed services. Additionally, the 

contract involves the submission by the department to the 

district of one-year operating budgets and'a three-year 

capital expenditure budget for planning purposes. The 

contract also provides for a form of continuing annual 

renewals. Consequently, the contract provides for the 

general support of the department for purposes of section 

2(l)(F) of the Open Records Act. 

As indicated, section 2(l)(F) covers only "the part, 

section, or portion" of corporations supported by public 

funds. See Open Records Decision No. 228. Accordingly, 

the department must comply with the Open Records Act 

to the extent that it receives public funds from the 

district. Because the contract requires the department to 

maintain a separate accounting of the expenditure of funds 

received from the district, this **partial" coverage should 

not require undue delay in responding to requests for 

information under the Open Records Act. 

SUMMARY 

The Cy-Fair Volunteer Fire Department, a 

nonprofit corporation, is a "governmental 

body" within the meaning of section 2 (1) (F) 

of the Texas Open Records Act, article 

6252-17a, V.T.C.S., to the extent that it is 

supported by public funds received pursuant 

to its contract with the Harris County Rural 

Fire Prevention District No. 9. 

Very truly yo s 

J k;, lldJ% 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

p. 3908 
Honorable Mike Toomey - Page 7 (JM-821) 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 3909