JIM MATTOX Attorney General ”

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An Equal OpportunityI Alflrmatlve Action Employer 

# The Attorney General of

# Texas

December 30. 1983

Mr; Robert J. Provan GeneralCounsel OpinionNo. JM-116 StephenF. Austin StateUniversity Nacogdoches,Texas 75962 Re: Whether the Gulf Star Conference is subject to the OpenMeetings and Open Records Acts Dear Mr. Provan:
You have informedus that Stephen F. Austin State University and five other universities are "engaged in the organization and establishment'of a new intercollegiate athletic conference to be called the Gulf Star Conference." The proposed constitution of this conference states that one of tbe two'general purposes of the conferenceis:

Fou:,'have[~t]oform and maintain among universities of

approximately the same size and comparable ,educatidnalprograms an athletic conference, the members of which shall incorporateintercollegiate athletics within their respective educational programs and shall place and maintain such athletics under the same administrative and academic'control as that which obtains in their other educationalprograms. asked whether this conferencewill be subject to the Open Meetings Act, article 6252-17.V.T.C.S., and to the Open Records Act, article 6252-17a.V.T.C.S. Both acts apply to "governmentalbodies." Section l(c) of the openMeetingsAct definesa "governmentalbody" as:

any board. commission, department, committee, or age~ncy within the executive or legi@.ative department of the state, which is under' the direction of one or more elected or appointed members; and every Commissioners Court and city council in the state, and every deliberativebody having rule-making or quasi-judicial power and classified as a department, agency, or political subdivisionof a county or city; and the board of trustees of every school district, and every

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county board of school trustees and county board of education; and the governing board of every special district heretofore or hereafter created by law. Section 2(l) of the Open RecordsAct defines a "governmentalbody" as:

(A) any board, comtaission, department, committee. institution, agency, or office within the executive or legislativebranch of the state government, or which is created by either the executive or legislative branch of the state government, and which is under the direction of one ormore elected or appointedmembers; (B) the commissionerscourt of each countyand the city couucilor governingbody of each city in the state; (C) every deliberativebody having rulemaking or quasi-judicial power and classified as a department,agency, ox political subdivisionof a countyor city; (D) the board of trustees of every school district, and every county board of school trusteesand countyboard of education; (E) the governing board of every special district; (P) the part, section. or portion of every organization, corporation, comisslon. committee, institution,or agencywhich is supported inwhole or in part by public funds, or which expends public funds. Public funds as used herein shall mean funds of the State of Texas or any governmentalsubdivisionthereof; (G) the Judiciary is not includedwithin this definition.

**The** conference will be a voluntary association of **SiX** iustitutions, three of which are in Louisiana. It is therefore not "within the executive or legislativedepartment of the state." Thus, the only provision in the definition of "governmentalbody" contained in the Open Meetings Act that could conceivably apply to the conference is inapplicable. We therefore conclude that the proposed conferencewill not be subject to this act. ?

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Mr. Robert J. Provan - Page 3 (.D+116)

On the other hand, we conclude that the conference will be subject to the Open Records Act. You have informed us that each member university will pay an initial membership fee of $20,000 and then will pay $10,000 to the conference each year thereafter. Under section 2(l) of the Open Records Act, "governmental body" includes "the part, section, or portion of every organization
. . . which is supported inwhole or in partby public funds, orwhich expendspublic funds." Two prior Open Records Decisions have construed this provision. Open Records Decision No. 228 (1979) concluded that the North Texas Commission, "a private, nonprofit corporation chartered for the purpose of promoting the interests of the Dallas-Fort Worth metropolitan area," is a "governmental body" under this provision. The decision stated as follows:

Under a sample contract submitted by the Commission, the City of Fort Worth was obligated to pay the Commission $80,000 a year for three years. The Cormnissionalso receives funds from several other units of government . . . [W]ehave examined the contract in question here, and we do not believe it imposes a specific and definite obligation on the Commission to provide a measurable amount of service in exchange for s certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser. Specifically, one provisionof the contractpurports to obligate the Commissionto: (e) Continue its current successful programs and implement such new and innovative programs as will further its corporate objectives and common City's interests and activities.
Even if all otherparts of the contractwere found to represent a strictly arms-length transaction, we believe that this provisionplaces the various governmental bodies which have entered into the contract in the position of 'supporting' the operation of the Commission with public funds within the meaning of section Z(l)(F)
. . . . We are holding
. . . that these records of the North Texas Commissionare publicunder the Open Records Act since it receives funds from serveralpublic entitiesand has entered into contractswith these entitieswhich result in at leasta portion of the public fundspaid to theCommissionbeing used for the general support of the Connnission rather than being attributable to specific payment for specificmeasurable services.

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Relying upon Open Records DecisionNo. 228, Open Records DecisionNo. 302 (1982)held that the Brasos County IndustrialFoundation is also a "governmental body." This decision held that the Foundation was "similar inmany respectsto theNorth Texas Connnission."In 1980, it receivedan unrestrictedgrant of $48,000 from the city of Bryan. The decision stated that:

Open RecordsDecisionNo. 228 (1979)held that the phrase 'supported in whole or in part by public funds'refers to any agreementbetween a political subdivision and any 'organisation, corporation, cowwission, cosimittee,institution, or agency' which transfers public funds from the political subdivisionto such entity,but fails to '[impose] a specificand definite obligationon the [entity] to provide a measurable amount of service in exchange for a certainamount of money aswould be expected in a typical arms-length contract for services between a vendor and purchaser.' This agreement failed toprovide adequate consideration flowing to the political subdivision, and the public funds passing to such entity. although in the possession of private,hands, retained their characteras public funds.
We believe that the present situation is virtually identical to the situationswith which these two decisionsdealt. In our view, the member universities must be deemed to be in the position of "supporting" the athletic conference with public funds, because the funds that they will pay to the conference will be used for its "general support . . . rather than being attributable to specific payment for specificmeasurable services." Open Records Decision No. 228 (1979). Because the conferencewill be "supported
. . . in part by public funds," itwill be a "governmentalbody" subject to the Open RecordsAct. SUMMARY

The proposed Gulf Star Conference will not be subject to the OpenMeetingsAct, article 6252-17, V.T.C.S..but will be subject to the Open Records Act, article 6252-17a.V.T.C.S. I

AttorneyGeneral of Texas '

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Mr. Robert J. Provan - Page 5 (~~-116)

TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible Colin Carl SusanGarrison Jim Moellinger Nancy Sutton

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