JIMMATTOX Attorney General

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AnEqualOpport~nltyl Afflrma~iv~Actlon Employer

P 

# TheAttorneyGeneralofTexas

December 30. 1983

Mr. Alvin J. Barnes River Authority of Texas Red 302 llamilton Building Wichita Palls. Texas opinion no. JM-120

76301 RO: Status of the Red River

Industrial Development Authority under the OpenRecords Act
Dear Mr. Barnes:
The Development Corporation Act of 1979. article 5190.6, V.T.C.S., was amended in 1983 by the inclusion of sections 11(b) and 14Awhich purport to specifically bring within the ambit of both the OpenMeetings Act, article 6252-17, V.T.C.S., and the Open Records Act, article 6252-17a. V.T.C.S., non-profit industrial development corporations formed pursuant to the act. Acts 1983, 68th Leg., ch. 464. 114. 5, at 2685-2686. Sectfon 11(b) of the act nowreads:

The board of directors is subject to the open meetings act, Chapter 271, Acts of the 60th Legislature. Regular Session, 1967. as amended (article 6252-17. Vernon ’s Texas Civil Statutes).
Section 14Anowreads as follows:

The board of directors is subject to the open records act, Chapter 424, Acts of the 63rd Legislature, Regular Session 1973. as amended (article 6252-178, Vernop’s Texas Civil Statutes).
Youask four questions regarding the effect of the recent amendments. Weaddress each of your questions in turn..

-. . _ _ _ _ _ - You first ask whether industrial development corporations must comply with the Open Meetings Act, article 6252-17. V.T.C.S. You assert that, since the OpenMeetings Act requires compliance only by

“governmental bodies,” Industrial development corporations fall without the ambit of the act because Industrial development corporations are not “governmental bodies.” Wedisagree. Weneed not address whether an industrial development corporation is a

“governmental body ” for purposes of the OpenMeetings Act in order to answer your question. In an instance in which a general statute and a specific statute conflict, the specific controls over the general.Mr.Alvin J. Domes - Page 2, (JM-120) .

SamBassett Lumber Compooy v. City of Rouston, 198 S.U.?d 879. 881 (Tex. 1947); State v. Bolli, 190 g.W.2d 71 (Tax. 1944). cert. denied, 328 U.S. 852 (1946). rehearing denied, 328 U.S. 880 (1946). Whether an industrial develonmsnt cornorotion is o “sovernmentol bodv ” is irrelevant; it is clear that ;he legislotura i&ads that, at -leoat for purposes of the OpenMeetinga Act, it ahall be so considered. A6 the Texas Supreme Court declared:

The language [of the statute] appears to be plain and unambiguous and

### itr meaning clsor and obvious. We can only enforce the statute 06 written and have no right to create or to find on ambiguity vhere non exists

. . . . Col-Tex Refining Companyv. Railroad Cormiseion of Texas, 240 S.W.Zd 747, 750 (Tex. 1951). Weare obliged to interpret the statute in a way which expresses only the will of the makers of the statute. not forced or strained, but simply such aa the words of the low in their plain sense fairly sanction and will clearly sustain. Railroad Ccnrmission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex. 1968); Texas Righwoy Cosanission v. El Peso Building and Construction TG Council, 234 S.W.2d 857. 863 (Tex. 1950). Accordingly. we conclude that, by the amendments to article 5190, V.T.C.S., set forth In Acts 1983, Sixty-eighth Legislature. chapter 464. sections 4 and 5 at 2685-2686. the legislature intended that industrial development corporations created pursuent to the Industrial Development Corporation Act be considered “governmental bodies ” for purposes of the OpenMeetings Act.
You next ask in which location or locations should such corporations post notice of meetings under the Openkleetinga Act. The recent omendmeats offer us no guidance. The Open Meetings Act at article 6252-17. section 3A. V.T.C.S.. sets forth the notice requirements df the act and lists various types of politlcsl subdivisions and the locatlone where they must post notices. No mention is made of Industrial development corporations.
Weore required to interpret a statute so OSto ascertain and give effect to the legislative. intent therein expressed, Knight v. International Rarvester Credit Corporetion, 627 S.W.Zd382. 384 (Tex. 1982); State v. Terrell, 588 S.W.2d 784, 786 (Tex. 1979). Wemust consider the history of the subject matter involved. the end to be attained, the mischief to be remedied, and the nurnose to be accompllshed. Cslvert V. Fort Worth Notional Bank, 356-S.W.2d 918, 921 (Tex. 1962); Magnolia Petroleum Companyv. Walker, 83 S.W.2d 929, 934 (Tex. 1935). Clearly, the legislature intended that. at least for purposes of the OpenMeetings Act; industrial development corporations are considered to be “governmental bodies.” Such corporations are created with the approval of and act on behalf of political -

p. 506I4r. Alvvin J. Bones - Page 1 (JW120)

-



### r subdivlmions. Section 4(o) of l rtlcle 5190.6. V.T.C.8.. provides es 

### ~fdlawo: Any number of neturol persons, not less them

three, each of wha le lt leoet 18years of ege and o qualified elector of the unit may file with the governing body of ounit awritten aDDlicotion requ&ing that -the unit outhorlse and approve creotion.of~ o corporation to act onbehalf of the unit

. . . . If the governing body by appropriate resolution finds and determines that it is advisable that the corporation be outhorlzed and created and approves the articles of incorporation propored tobe used in orgenising the corporation, then the orticler of incorporation for the corporation may be filed as hereinafter provided

. . . . No corporation may be formed unless the unit has properly adopted o resolution as herein described. (Emphasis added).
The act defines “unit” to meon “o city, county, or district which may create and utilize o corporation.” V.T.C.S. art. 5190, f2(12). In order to properly effectuate the apparent intention of the legislature in adopting the recent amendments, we conclude that an industrial development corporation must file notice of meetings under the Open Meetings Act in the same manner and in the same location as the political subdivision whose approval is required and on whose behalf the corporation is created.
Younext ask whether the boards of dfrectors of such corporations ore nowprecluded from taking officio1 action by means of unanimous consentwithout holding ameeting on the subject, opower specifically granted to industrial development corporations by section 14(c) of the 

### *ct. Weconclude that they ore. Section 14(c) of article 5190.6, V.T.C.S.. provides the following: Any action required’ by this Act to be taken at

ameeting of the directors of a corporation or any action which may be taken ot a meeting of the directors may be tsken without o meeting if o consent in writing, setting forth the action to be token, shall be signed by all of the directors. Such consent shall have the some force and effect as o unanimous vote and maybe stated as such in any articles or document filed with the secretary of state under this Act.

p. 507Mr. Alvin J. garner - Page 4 

### (JBHZO)

Anactwhichislaterinpointof time 

### coetrola oxeupereedeson earlieract,inaofor 

### sa thetvoore1nconaiatant andirreconcilable and 

### cannotbothstandatthe sametime. Texar State goard of Pharmscy


### v. Kittmen,550S.W.Zd104, 106 (Tex.Civ.*pp.- mler 1977.no writ);Eelsell'I.

TexasWater 

### C41iaaion,u)OS.W.2d 

### 1 (Tex.Civ.App.

- Dellea 1964,writ ref'dn.r.8.). If 

### stotuteahave conflicting proviaiona,theearlier otatuta mill be held to be repealed only to the extent 

### of the conflictend othervisevi11 be construedOS remaining in effect. Bank of Texas v. Childr, 615 S.W.2d 810, 814 (Tex. Civ. A& - Dallas 1981. vrit ref'd n.r.e.1.
Section 14(c) of article 5190.6, 

### V.T.C.S., vhichpermit8 boards of directors of industrial development corporation8 to teke official action without l meeting if a consent in writing. setting forth the action to be taken is signed by all of the 

### directors, io in direct and irreconcilable conflict with section 2(o) of article 6252-17, V.T.C.S., the OpenMeetings Act, which require8 that every regular, special, or called meeting of 

### everyunitfalling 

### withinthe aubit of the act shall, unless othervise provided in the OpenRecords Act or permitted by the constitution, be open to the public. Because the recent amendment bringing industrial development corporations within the purview of the Cpen Records Act is the provision adopted later in tims, this is the provision to which we are obligated to give effect. Accordingly, we conclude that boards of directors of industrial development corporations are precluded from 

### takingofficio1 action without ameeting as permitted by section 14(c) of the act.
You finally oak whether industrial development corporations must comply with the requirements of the Open Records Act, article 6252-17a. V.T.C.S. Weconclude that they do. Youassert here, OSyou did with respect to your first question, that on industrial development corporation la not a "governmental body" under the definition set forth in the Cpen Records Act. For the 

### reasons discussed and by virtue of the authorities cited above in ansuer to your first question, we disagree. Weconclude that the legislature intended that industrial development corporations created pursuant to the Industrial Development Act of 1979, article 5190.6. V.T.C.S.. be considered "governmental bodies" for purposes of the Cpen Records 

### Act.
SUXMARY Industrial Development Corporations created pursuant to srticle 5190.6, V.T.C.S., are considered to be. "governmental bodies" for purposes of the Open Meetings Act. article 6252-17. V.T.C.S. An industrial davelopuent corporation must file notice of meetings as required by the Open Meetings Act in the aoue manner and in the same location as the political

p. 508Hr. Alvin J. Barn.. - Page 5 (J?l-120)

aubdiviaioa whore approval la required and on 

### whom behalfthecorporation ia created. Boarde of directors of iaduatrial 

### development corporationaareprecludedfrom 

### takingofficiel actionwithouta meeting held in comPliancr with 

### theOpenMeetinga Act; section 14(c) 

### of article 5190.6. V.T.C.S.. is impliedly repealed. Boarda of directors of industrial development corporations created pursuant to article 5190.6. V.T.C.S.. are 

### consideredto be “governmental bodies ” for purposes of the Open Records Act. article 6252-170. V.T.C.S.



# .Jxn WATTOX Attorney General of Texas
TOM GREEN First Assistant Attorney General
DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byJimMoellinger Assistant Attorney General
APPROVED: OPINION

COMl4ITTEE
Rick Gilpin, Chairman Jon Bible Colin Carl Susan Garrison JimHoellinger Nancy Sutton



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