Is the Texas Association of Appraisal Districts subject to the open records law?

TX AG Opinion GA-0666: Is the Texas Association of Appraisal Districts a "governmental body"?

Plain-English summary

A state representative asked whether the Texas Association of Appraisal Districts (TAAD) is a "governmental body" under the Public Information Act. TAAD describes itself as a statewide voluntary nonprofit that promotes the effective administration of appraisal districts, and its members (appraisal districts and tax officials from school districts, cities, counties, and state agencies) pay membership dues.

The Public Information Act reaches information collected, assembled, or maintained by or for a governmental body, and one of the statute's definitions of "governmental body" covers the part of an organization that spends or is supported in whole or in part by public funds. So a private entity can be a governmental body to the extent it expends or is supported by public funds. Because TAAD's dues may derive from public funds collected by its member governmental bodies, the question was whether TAAD spends or is supported by public funds.

The opinion explained the controlling test, drawn from a Fifth Circuit decision and prior AG opinions: an entity receiving public funds is covered unless its relationship with the government is an arms-length contract imposing a specific, definite obligation to provide a measurable service for a set price. The primary question is whether the entity receives public funds for the general support of its activities rather than to perform a specific obligation. Whether an entity is "supported" by public funds requires analyzing the facts of each entity, and the opinion process is not suited to deciding fact questions. So the opinion did not classify TAAD. It said the proper route is for an entity that believes it is not a governmental body, on receiving a records request, to seek a ruling from the AG's Open Records Division; asking for such a ruling is not an admission that the entity is a governmental body.

Currency note

This opinion was issued in 2008. 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.

The Public Information Act's definitions and the case law on public-funds support have developed since 2008. Confirm the current text of chapter 552 before relying on this analysis.

Who this opinion affected (as of 2008)

The Texas Association of Appraisal Districts: The opinion did not declare it a governmental body, instead treating its status as a fact question turning on public-funds support.

Private entities funded partly by public money: The opinion restated the test for when such an entity becomes a governmental body under the Public Information Act and pointed them to the Open Records Division ruling process.

Records requestors: The opinion explained that whether a given entity must respond as a governmental body is decided through the AG's open records process, on the specific facts.

Common questions

Did the AG decide TAAD is subject to the open records law?
No. The opinion concluded the answer depends on whether TAAD is supported by public funds, a fact question it would not resolve in the opinion process.

When is a private group a "governmental body"?
When it spends or is supported in whole or in part by public funds. The opinion explained the key is whether public funds support the entity's general activities, as opposed to paying for a specific service under an arms-length contract.

Why couldn't the opinion just answer?
Because whether an entity is "supported" by public funds requires analyzing the facts of each entity, and the opinion process is not conducive to deciding questions of fact.

What should an entity in TAAD's position do?
When it receives a records request, it should seek a ruling from the AG's Open Records Division. The opinion noted that asking for a ruling is not an admission that the entity is a governmental body.

Background and statutory framework

The Public Information Act applies to information collected, assembled, or maintained by or for a governmental body (Tex. Gov't Code Ann. § 552.002(a) (Vernon 2004)), and defines "governmental body" to include the part of an organization that spends or is supported in whole or in part by public funds (id. § 552.003(1)(A)(xii)); "public funds" means funds of the state or a governmental subdivision (id. § 552.003(5)). Whether a private entity is covered was analyzed in Kneeland v. National Collegiate Athletic Association, 850 F.2d 224, 228 (5th Cir. 1988), which drew from AG opinions: an entity receiving public funds is covered unless its relationship imposes a specific, definite obligation to provide a measurable service for a set price, as in an arms-length vendor contract; a common purpose or agency-type relationship, or providing services traditionally provided by government, can also matter, but the primary test is whether the funds support the entity's general activities (Tex. Att'y Gen. Op. No. JM-821 (1987) at 2). Whether an entity is "supported" by public funds is a fact-specific inquiry not suited to the opinion process (Tex. Att'y Gen. Op. Nos. GA-0603 (2008) at 2, 4; GA-0446 (2006) at 18; Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.-Waco 1998, pet. denied)). The proper route is a ruling from the Open Records Division, and requesting one is not an admission of governmental-body status.

Citations

Statutes and opinions:

• Tex. Gov't Code Ann. § 552.002(a); § 552.003(1)(A)(xii); § 552.003(5) (Vernon 2004)
• Tex. Att'y Gen. Op. Nos. GA-0603 (2008), GA-0446 (2006), JM-821 (1987)

Cases:

• Kneeland v. National Collegiate Athletic Association, 850 F.2d 224, 228 (5th Cir. 1988)
• Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.-Waco 1998, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0666
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0666.pdf

Original opinion text

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 22, 2008

The Honorable Beverly Woolley
Chair, Committee on Calendars
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0666

Re: Whether the Texas Association of Appraisal Districts is a "governmental body" for purposes of chapter 552 of the Government Code, the Public Information Act (RQ-0691-GA)

Dear Representative Woolley:

You ask whether the Texas Association of Appraisal Districts (the "TAAD") is a "governmental body" for purposes of chapter 552 of the Government Code, the Public Information Act (the "PIA").

The PIA is applicable to information "collected, assembled, or maintained" by or for a governmental body. TEX. GOV'T CODE ANN. § 552.002(a) (Vernon 2004). Among the many definitions of the term "governmental body," the statute includes "the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds." Id. § 552.003(1)(A)(xii). This definition of "governmental body" applies to a private entity when that entity either expends or is supported by public funds. See, e.g., Tex. Att'y Gen. ORD-602 (1992) at 5 (determining that the portion of the Dallas Museum of Art supported by public funds was a governmental body).

You indicate that the TAAD describes itself as a "statewide, voluntary non-profit organization incorporated and organized to promote the effective and efficient functioning and administration of appraisal districts in Texas." Request Letter, supra note 1, at 2; see also TEXAS ASSOCIATION OF APPRAISAL DISTRICTS, at http://www.taad.org (last visited on Sept. 16, 2008). You note that TAAD members include, inter alia, appraisal districts, as well as tax officials from school districts, cities, counties, state agencies, and other entities. Request Letter, supra note 1, at 2. Moreover, TAAD members pay a fee for membership. Because that fee may derive from public funds collected by member governmental bodies, the question before us is whether the TAAD spends or is supported in whole or in part by public funds. If so, then it is, to that extent, a "governmental body" subject to the PIA.

The question of whether an entity is a governmental body under section 552.003(1)(A)(xii) was addressed by the court in Kneeland v. National Collegiate Athletic Association, 850 F.2d 224 (5th Cir. 1988). Finding "no dispositive Texas jurisprudence on [the] issue," the court examined attorney general opinions and "perceiv[ed] three distinct patterns of analysis":

The opinions advise that an entity receiving public funds becomes a governmental body under the Act, unless its relationship with the government imposes "a specific and definite obligation ... 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." [An] opinion informs that "a contract or relationship that involves public funds and that indicates a common purpose or objective or that creates an agency-type relationship between a private entity and a public entity will bring the private entity within the ... definition of a 'governmental body.'" Finally, [another] opinion, citing others, advises that some entities, such as volunteer fire departments, will be considered governmental bodies if they provide "services traditionally provided by governmental bodies."

Kneeland, 850 F.2d at 228 (citations omitted). Thus, under the framework adopted by the Kneeland court, an entity receiving public funds is subject to the PIA unless its relationship with the governmental body imposes "a specific and definite obligation ... 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." Id. In certain instances, it has been significant that the entity had a "common purpose or objective or [one] that creates an agency-type relationship" between the public and private entity; in others, it has been significant that the entity in question provided services that are "traditionally provided by governmental bodies." Id. The primary test, however, is whether the entity receives public funds for the general support of its activities, rather than using those funds to perform a specific and definite obligation. See, e.g., Tex. Att'y Gen. Op. No. JM-821 (1987) at 2. If the public funds are used for general support, the entity falls within the definition of "governmental body" under section 552.003(1)(A)(xii) of the Government Code. Id.; Tex. Att'y Gen. ORD-228 (1979) at 2.

As noted in Attorney General Opinion GA-0603, these are factual inquiries. Tex. Att'y Gen. Op. No. GA-0603 (2008) at 4. In particular, the extent to which "an entity is 'supported'" by public funds, "requires an analysis of the facts surrounding each entity." Id. at 2 (quoting Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.-Waco 1998, pet. denied)). The Attorney General's opinion process is not conducive to the determination of questions of fact. See Tex. Att'y Gen. Op. Nos. GA-0603 (2008) at 2, GA-0446 (2006) at 18. Moreover, such questions are properly addressed by the Attorney General under the PIA. When an entity that believes it is not a governmental body under the terms of the PIA receives a request for information, the entity should seek a ruling from the Attorney General's Open Records Division as to whether and to what extent, if any, the entity is actually a "governmental body." An entity that requests such a ruling does not thereby admit that it is in fact a governmental body. See Blankenship, 975 S.W.2d at 362.

SUMMARY

Whether an entity is a "governmental body" under the Public Information Act, chapter 552 of the Government Code, depends largely upon whether that entity is supported in whole or in part by public funds. The extent to which an entity is supported by public funds requires an analysis of the facts surrounding each entity. Inquiries as to whether a particular entity is a governmental body are particularly appropriate to the Attorney General's open records process under the Public Information Act.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes:

1 Letter from Honorable Beverly Woolley, Chair, Committee on Calendars, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 26, 2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

2 The term "public funds" is defined for purposes of chapter 552 of the Government Code as "funds of the state or of a governmental subdivision of the state." TEX. GOV'T CODE ANN. § 552.003(5) (Vernon 2004).