Does a small Texas water district have to keep customers' addresses and phone numbers private?

Plain-English summary

A county attorney asked the Attorney General whether a customer-privacy law for utilities reached a small water district, and whether breaking that law was a crime. House Bill 859, passed in 1993 and codified at V.T.C.S. article 1446h, barred a "government-operated utility" from releasing a customer's home address, telephone number, or social security number if the customer asked that it be kept confidential. The law defined a government-operated utility as an entity that is (or is governed by) a governmental body under the Open Records Act and that "provides water, wastewater, sewer, gas, garbage, electricity, or drainage service for compensation." The question was whether the Franklin County Water District fit.

The district was a water conservation and reclamation district that maintained Lake Cypress Springs. For a flat $25 annual permit fee, it let owners of lakefront property draw lake water for irrigation and other on-site uses (the water was not drinkable), and it supplied no equipment, labor, or instructions for taking the water. The office concluded the district was still a government-operated utility. Reading the statute by its plain meaning, "to provide water" can mean simply to make water available, and the district made lake water available to adjoining landowners for compensation. Nothing in the bill's text or history said a governmental body had to supply water with its own equipment and labor to be covered. That reading also fit the law's purpose: the legislature passed House Bill 859 because the Open Records Act had forced publicly owned utilities to release customers' addresses and phone numbers even over the customer's objection, leaving people who were being harassed or threatened unable to escape by changing their number or address. Protecting a water district's permit holders served that purpose just as well. So if the district kept records with addresses, phone numbers, or social security numbers for its permit holders, it had to keep that information confidential on request.

On the penalty question, the office concluded House Bill 859 imposed no criminal penalty of its own. The bill's title mentioned "providing a criminal penalty," but the legislative history showed that was a leftover: the bill as introduced made a violation a Class C misdemeanor, that section was deleted in the committee substitute, and the committee simply forgot to fix the title. Even so, an entity that released protected information could face criminal liability under the Open Records Act itself. Government Code section 552.352 makes it an offense to distribute information deemed confidential under the Act, information made confidential by another statute counts as confidential under the Act, and such distribution is a misdemeanor and official misconduct.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

House Bill 859's customer-confidentiality provisions and the Open Records Act (Government Code chapter 552) have been amended since 1994, and the Act has since been renamed. The article and section numbers here describe the law as it stood then. Read this page for the office's reasoning on who counts as a covered utility, and verify the current confidentiality and penalty statutes before relying on any specific provision.

What the opinion meant for those who asked

For the Franklin County Water District: The opinion concluded the district was a government-operated utility under House Bill 859 and had to keep permit holders' addresses, phone numbers, and social security numbers confidential when asked, even though it merely let landowners draw lake water for a flat $25 fee and supplied no equipment or labor.

For other water districts and public utilities: The opinion read "provide water . . . for compensation" broadly, to include making water available rather than only delivering it through utility infrastructure. The office cautioned, though, that it was interpreting only House Bill 859, and was not suggesting such entities were government-operated utilities for any other statute.

On penalties: The opinion concluded House Bill 859 set no penalty itself, but that improperly distributing protected information could be prosecuted under the Open Records Act (Government Code section 552.352) as a misdemeanor and official misconduct.

Common questions

Did House Bill 859 cover a water district that just lets people draw lake water?
Yes. The office concluded the Franklin County Water District was a government-operated utility because it made lake water available to lakefront landowners for a $25 annual fee, which fit the statute's "provides water . . . for compensation" definition.

Did the district have to supply the water with its own equipment to be covered?
No. The office found nothing in the statute's language or history requiring delivery by government equipment and labor; making water available for compensation was enough.

What information did the district have to keep confidential?
A customer's address, telephone number, or social security number, when the customer requested confidentiality.

Was violating House Bill 859 a crime?
The bill itself carried no criminal penalty; its title mentioned one only because the penalty section was dropped in committee and the title was not updated. But releasing protected information could be prosecuted under the Open Records Act, Government Code section 552.352, as a misdemeanor and official misconduct.

Background and statutory framework

House Bill 859 (Acts 1993, 73d Leg., ch. 473), codified at V.T.C.S. article 1446h, defined a "government-operated utility" as an entity that (A) is a governmental body, or is governed by one, under the Open Records Act, and (B) "provides water, wastewater, sewer, gas, garbage, electricity, or drainage service for compensation." The county attorney conceded the Franklin County Water District was a governmental body subject to the Open Records Act, so the only question was whether its lake-water permit program met prong (B). (The Open Records Act, formerly article 6252-17a, V.T.C.S., was repealed and recodified as Government Code chapter 552 by Acts 1993, 73d Leg., ch. 268.)

The office answered with a plain-meaning reading. Courts give statutory words their plain meaning when the text is clear and unambiguous (McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 921 (Tex. App.—Dallas 1985, writ ref'd n.r.e.)), and a dictionary definition confirmed that "to provide" water can mean to make it available (Webster's Collegiate Dictionary 940 (10th ed. 1993)). The district made lake water available for a $25 annual fee, which satisfied the definition, and the bill analysis showed a purpose, shielding utility customers' contact information from forced disclosure, that applied to the district's permit holders as much as to any conventional utility's customers. On penalties, the office relied on the bill's legislative history (the deleted Class C misdemeanor section and the unamended title) to conclude House Bill 859 itself imposed none, while pointing to the Open Records Act's own offense for distributing confidential information (Gov't Code § 552.352(a), (b), (c)), reinforced by the rule that information made confidential by another statute is confidential under the Act (Gov't Code § 552.101; Open Records Decision No. 490 (1988)).

Citations

Statutory provisions discussed:

• V.T.C.S. art. 1446h (House Bill 859; confidentiality of government-operated utility customer records), § 1(1) (definition of "government-operated utility")
• Gov't Code § 552.352 (offense of distributing confidential information; misdemeanor and official misconduct)
• Gov't Code § 552.101 (information confidential by other law is confidential under the Act)
• Article 6252-17a, V.T.C.S. (former Open Records Act), recodified by Acts 1993, 73d Leg., ch. 268
• Acts 1993, 73d Leg., ch. 473 (House Bill 859)

Case discussed:

• McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 921 (Tex. App.—Dallas 1985, writ ref'd n.r.e.)

Other authority discussed:

• Open Records Decision No. 490 (1988); Webster's Collegiate Dictionary 940 (10th ed. 1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0307
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0307.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 2, 1994

Honorable Walt Sears, Jr.
Franklin County Attorney
P.O. Box 374
Mount Vernon, Texas 75457

Opinion No. DM-307

Re: Whether House Bill 859, Acts 1993, 73d Leg., ch. 473 (now codified at V.T.C.S. art. 1446h), which requires a public utility to keep portions of its customer records confidential under certain circumstances, 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 codified at V.T.C.S. art. 1446h). In particular, you ask whether the Franklin County Water District is subject to House Bill 859. You also ask whether there are any criminal penalties for violating House Bill 859.

With some exceptions not relevant here, House Bill 859 prohibits a "government-operated 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 defines 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(1), Chapter 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes[1]); and

(B) provides water, wastewater, sewer, gas, garbage, electricity, or drainage service for compensation.

V.T.C.S. art. 1446h, § 1(1) (footnote added).

You concede that the Franklin County Water District is a governmental 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 $25 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 Bill 859. Construing House Bill 859 to cover the Franklin County Water District is consistent with the plain meaning of the statute. See McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 921 (Tex. App.—Dallas 1985, writ ref'd 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 Collegiate Dictionary 940 (10th ed. 1993) (defining "provide"). The Franklin County Water District makes the lake water available to the owners of land adjoining the lake for compensation of $25 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 insufficient to bring a governmental body within the coverage of House Bill 859.

In addition, construing House Bill 859 to cover the Franklin County Water District is consistent with the purpose of the act. The bill 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 harassed 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 from Lake Cypress Springs, then the district must keep this information confidential at the request of the individual.

In regard to your second question, House Bill 859 does not itself contain any criminal penalties. As you point out, the title to the act refers to "providing a criminal penalty." However, the legislative history of the act indicates that this reference is an error. As introduced, the bill contained a section making a violation of the act a class C misdemeanor. This section was deleted in the committee substitute for the original bill. 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 bill to conform to the amendments in the body of the bill.

On the other hand, an entity that violates House Bill 859 may be subject to criminal penalties under section 552.352 of the Government Code. Section 552.352(a) provides "[a] person commits an offense if the person distributes information considered confidential under the terms of this chapter." Information made confidential by another statute is also considered confidential under the Open Records Act. See Gov't Code § 552.101; Open Records Decision No. 490 (1988) at 4. Distributing confidential information is a misdemeanor and official misconduct. Gov't Code § 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 859 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 859 does not itself impose any criminal penalties for violating its provisions. However, an entity that violates House Bill 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

JORGE VEGA
First Assistant Attorney General

DREW T. DURHAM
Deputy Attorney General for Criminal Justice

JAVIER AGUILAR
Special Assistant Attorney General

RENEA HICKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Margaret A. Roll
Assistant Attorney General

[1] The legislature repealed article 6252-17a, V.T.C.S., in 1993. See Acts 1993, 73d Leg., ch. 268, § 46(1), at 587, 988. The material in that article, the Texas Open Records Act, is now codified as chapter 552 of the Government Code. See id. § 1, at 599.

[2] We do not mean to suggest, however, that the Franklin County Water District or other similar entities would be government-operated utilities for the purpose of any statute other than House Bill 859. The opinion here is limited to interpreting House Bill 859.