Does the Texas Open Meetings Act apply to a city economic development corporation's board?

Plain-English summary

The Brazos County District Attorney asked whether the board of the Bryan-College Station Economic Development Corporation had to follow the Texas Open Meetings Act. The EDC was a nonprofit corporation organized under the Texas Non-Profit Corporation Act to coordinate economic development for the cities of Bryan and College Station and for Brazos County. Its twelve board members were appointed by the two city councils, the county commissioners court, the Brazos County Industrial Foundation, and the local Chamber of Commerce, and the two cities and the county paid the EDC for marketing and promotion services under two contracts.

The opinion held the EDC board was not a "governmental body" and so was not covered by the Act. The Open Meetings Act applies only to bodies that fit one of the categories listed in section 551.001(3). The EDC was not a city council or commissioners court (only one member of each sat on the board, and including one elected official does not convert a private body into a governmental one). It was not a deliberative body with rule-making or quasi-judicial power classified as a department or political subdivision, because none of those governments had delegated such power to it; it simply did contract work. And it was not a special district "created by law," because its incorporators formed it under the Non-Profit Corporation Act.

The opinion noted two ways such a corporation could be covered, neither of which applied here. A nonprofit's own articles or bylaws can require it to follow the Act, but the EDC's documents did not. And an economic development corporation formed under the Development Corporation Act of 1979 is subject to the Act by virtue of that statute, but the EDC was not incorporated under that Act. The opinion was careful to say it decided only the Open Meetings question, not whether the cities and county were authorized to participate in or contract with the EDC.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Economic development corporations and their boards (what the opinion held for them): The opinion held that a nonprofit EDC organized under the Non-Profit Corporation Act, doing contract work for local governments without delegated rule-making or quasi-judicial power, was not a "governmental body" and so was not bound by the Open Meetings Act, unless its own articles or bylaws required compliance.

Cities and counties that fund such corporations (what the opinion held for them): The opinion held that seating one council or commissioners-court member on the board did not transform the corporation into a governmental body, and it expressly did not decide whether the governments were authorized to participate in or contract with the EDC.

The requesting district attorney and the public (what the opinion held for them): The opinion held that the EDC's meetings were not required to be open under the Act on these facts, while pointing out that an EDC formed under the Development Corporation Act of 1979 would be covered.

Common questions

Does the Open Meetings Act cover a nonprofit economic development corporation?
Not automatically. Under the opinion, a nonprofit EDC organized under the Non-Profit Corporation Act and doing contract work, without delegated governmental power, is not a "governmental body."

Does having a city council member on the board change that?
No. The opinion held that including one elected official does not transform a private body into a governmental one.

When would such a corporation have to follow the Act?
If its own articles or bylaws require it, or if it was created under the Development Corporation Act of 1979, which subjects such corporations to the Act by statute.

Did the opinion decide whether the cities could fund the EDC at all?
No. The opinion addressed only the Open Meetings Act question and expressly left the funding and participation questions undecided.

Background and statutory framework

The Open Meetings Act, codified at chapter 551 of the Government Code, applies only to a "governmental body" as defined in section 551.001(3), a list that includes state executive or legislative boards, county commissioners courts, municipal governing bodies, certain deliberative bodies with rule-making or quasi-judicial power, school boards, special districts created by law, and certain Water Code nonprofit water-supply corporations. The EDC was organized under the Texas Non-Profit Corporation Act (articles 1396-2.09 and 1396-2.10 of the Revised Civil Statutes), which lets bylaws regulate a corporation's affairs but does not itself require Open Meetings compliance. The Development Corporation Act of 1979, article 5190.6 of the Revised Civil Statutes, separately subjects corporations formed under it to the Act, but the EDC was not formed under that statute.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. ch. 551, § 551.001(3) (Vernon 1994 & Supp. 2000)
• Tex. Rev. Civ. Stat. Ann. art. 5190.6 (Vernon Supp. 2000)
• Tex. Rev. Civ. Stat. Ann. arts. 1396-2.09, 1396-2.10 (Vernon 1997)

Prior Attorney General opinions discussed: Tex. Att'y Gen. LO-96-113; LO-93-55; LO-94-090; LO-96-104.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0327
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0327.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

January 5, 2001

The Honorable Bill R. Turner
Brazos County District Attorney
300 East 26th Street, Suite 310
Bryan, Texas 77803

Opinion No. JC-0327

Re: Whether the board of the Bryan-College Station Economic Development Corporation is subject to the Open Meetings Act (RQ-0274-JC)

Dear Mr. Turner:

You ask whether the board of the Bryan-College Station Economic Development Corporation ("EDC") is subject to the Open Meetings Act. We conclude that it is not.

You have submitted the EDC's Articles of Incorporation and Bylaws with your request.[1] It appears from these documents that the EDC is a nonprofit corporation organized under the Texas Non-Profit Corporation Act to coordinate the economic development of the cities of Bryan and College Station as well as Brazos County. The EDC is not incorporated under the Development Corporation Act of 1979, TEX. REV. CIV. STAT. ANN. art. 5190.6 (Vernon Supp. 2000). The twelve members of the EDC board are appointed by the Bryan and College Station city councils, the commissioners court of Brazos County, the Brazos County Industrial Foundation, and the Bryan/College Station Chamber of Commerce. The board must include a member of each city council and the commissioners court. The two cities and the county provide funding for the EDC in exchange for the EDC's services in marketing and promoting the cities and county according to two contractual agreements entitled "Agreement Between the City of Bryan, City of College Station, and the Bryan/College Station Economic Development Corporation" and "Agreement Between Brazos County and the Bryan/College Station Economic Development Corporation."[2] We address only whether the EDC board is subject to the Open Meetings Act; we do not address whether the cities and county are authorized to participate in and contract with the EDC.

The Open Meetings Act, TEX. GOV'T CODE ANN. ch. 551 (Vernon 1994 & Supp. 2000), applies only to a "governmental body." For purposes of the Act, the term "governmental body" means:

(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;

(B) a county commissioners court in the state;

(C) a municipal governing body in the state;

(D) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(E) a school district board of trustees;

(F) a county board of school trustees;

(G) a county board of education;

(H) the governing board of a special district created by law; and

(I) a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code.

Id. § 551.001(3) (Vernon Supp. 2000) (emphasis added). We have highlighted the most relevant items but, for the following reasons, conclude that none apply and that the EDC board is not a governmental body subject to the Act.

Because the EDC board's membership includes only one member of each of the two city councils and the county commissioners court, it is not a governmental body within the meaning of either subsection (B) or (C). See Tex. Att'y Gen. LO-96-113, at 1 ("The inclusion of one city council member on the [Chamber of Commerce] committee does not transform the body into a governmental body."). Furthermore, the EDC performs services for the cities and the county pursuant to a contract. Its board is not a deliberative body that has rule-making or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality. It does not appear that the county or either city has delegated rule-making or quasi-judicial power to the EDC. Thus, the EDC board is not a governmental body within the meaning of subsection (D). See id.; see also Tex. Att'y Gen. LO-93-55 (concluding that entities that contracted with city to provide economic development services and had not been delegated rule-making or quasi-judicial power were not governmental bodies within meaning of statutory predecessor to subsection (D)). Finally, because it was organized by its incorporators under the Texas Non-Profit Corporation Act and not "created by law," the EDC is not a special district within the meaning of subsection (H). See Tex. Att'y Gen. LO-94-090 (concluding that Moore County Development, Inc., a nonprofit corporation organized under Texas Non-Profit Corporation Act, was not a special district within meaning of Open Meetings Act); see also Tex. Att'y Gen. LO-93-55, at 3 (noting that although specific statutes authorized city to contract with private entity to administer economic development program, entity was not created "by law").

Although a nonprofit corporation's articles of incorporation or bylaws may require adherence to the Open Meetings Act, none of the documents submitted with your request requires the EDC board to comply with the Open Meetings Act. Nor does the Texas Non-Profit Corporation Act contain such a requirement. See TEX. REV. CIV. STAT. ANN. arts. 1396-2.09 (Vernon 1997) ("The by-laws may contain any provisions for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation."); 1396-2.10 ("Meetings of members shall be held at such place, either within or without this State, as may be provided in the by-laws."). Furthermore, the EDC does not appear to be an economic development corporation created under the Development Corporation Act of 1979 and subject to the Open Meetings Act by virtue of that statute. Compare Tex. Att'y Gen. LO-96-104 (concluding that the board of directors of Beeville-Bee County Redevelopment Authority Corporation was subject to the Open Meetings Act by virtue of section 11(b) of the Development Corporation Act of 1979, article 5190.6 of the Revised Civil Statutes).

Accordingly, we conclude that the EDC board is not subject to the Open Meetings Act.

[1] Letter from Honorable Bill R. Turner, Brazos County District Attorney, to Honorable John Cornyn, Texas Attorney General (Aug. 23, 2000) (on file with Opinion Committee) (attachments).

[2] See id.

SUMMARY

The board of the Bryan-College Station Economic Development Corporation is not subject to the Open Meetings Act.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee