Could Texas require a public-housing tenant to serve on the local housing-authority board without creating an automatic conflict of interest?

Texas AG Opinion JM-308: Tenant Housing Commissioner

Plain-English summary

The opinion addressed a proposed amendment that would require at least one commissioner of a local housing authority to be a tenant in an authority project. The request asked whether “residency in a project” would create an interest that made a tenant commissioner's actions a prohibited conflict. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

JM-308 concluded that the Texas Constitution did not prevent the Legislature from requiring a tenant commissioner. Its summary stated: “The Texas Constitution does not prohibit the legislature from enacting a bill which requires one commissioner of a local housing authority to be a tenant of a local housing project.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

The opinion also concluded that project residency was not an interest in a business entity under article 988b. It stated: “A tenant's occupancy of accommodations in a housing project does not constitute an interest in a ‘business entity’ within article 988b, V.T.C.S.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Residency by itself therefore did not trigger the conflicts described in that statute. The summary said: “A tenant board member's residency in the housing project does not implicate him in any conflict of interest described by article 988b, V.T.C.S.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Could the Legislature change the earlier rule that had barred tenant commissioners?

Yes. JM-308 stated: “The legislature has power to change both the common law rule and the statutory language on which Attorney General Opinion M-1096 based its conclusion.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Did the Texas Constitution itself prohibit a tenant from serving?

No. The opinion found “no constitutional provision or common law rule that prevents the legislature from enacting a law that requires one housing commissioner to be a tenant of a housing project.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Was a public-housing tenancy a business-entity interest under article 988b?

No. JM-308 concluded that a tenant's occupancy did not constitute an interest in a statutory business entity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Did the opinion rule out every possible conflict for a tenant commissioner?

No. It addressed residency alone and stated: “You have not inquired about any other specific provision which might be particularly relevant to a tenant of a housing project who serves as a housing commissioner.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

What did the proposed tenant-commissioner language require?

Once the authority's first project was operating, “at least one (1) of the commissioners must be a tenant of a project administered by the authority.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Background and statutory framework

An earlier opinion had read article 1269k and common law to bar a tenant from serving, but that statute then contained no express authorization for a tenant commissioner. JM-308 said the earlier opinion “is in no way dispositive of your question.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Article 1, V.T.C.S., adopted common law only until the Legislature altered or repealed it. JM-308 also relied on the rule that a later enactment supersedes an earlier provision to the extent of inconsistency. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Article 988b applied its voting, surety, disclosure, and abstention rules to interests in a defined “business entity.” JM-308 concluded that ordinary tenant occupancy did not fit that definition. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Citations and references

• Articles 1269k and 988b, V.T.C.S.
• Senate Bill No. 490
• Penal Code chapter 39
• Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App. - Eastland 1925, no writ)
• City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933)
• In Interest of B-M-N, 570 S.W.2d 493 (Tex. Civ. App. - Texarkana 1978, no writ)
• Allied Finance Company v. Falkner, 397 S.W.2d 846 (Tex. 1965)
• Forrest v. Durnell, 26 S.W. 481, 482 (Tex. 1894)
• Redgrave v. Schmitz, 584 S.W.2d 374, 376 (Tex. Civ. App. - San Antonio 1979, no writ)
• Attorney General Opinion M-1096 (1972)
• Letter Advisory No. 13 (1973)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0308
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0308.pdf

Original opinion text

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

The Attorney General of Texas

April 9, 1985

Honorable Oscar H. Mauzy
Chairman
Committee on Jurisprudence
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711

Opinion No. JM-308

Re: Whether a resident of a housing project may be a member of a housing authority board in light of article 988b, V.T.C.S.

Dear Senator Mauzy:

You seek our opinion on a proposed amendment to article 1269k, V.T.C.S., which would require local housing authority boards to include one member who is a tenant of a project operated by the local housing authority. Your specific question is as follows:

Would residency in a project constitute an ‘interest’ in the authority such that any action by a tenant board member would amount to a conflict of interest proscribed by the Texas Constitution or the statutes, particularly article 988b, V.T.C.S.?

Senate Bill No. 490, now pending before the legislature, would add the following language to section 5 of article 1269k, V.T.C.S.:

After the authority establishes its first housing project and the project is in operation, at least one (1) of the commissioners must be a tenant of a project administered by the authority. The governing body shall make the initial appointment of a tenant commissioner on the expiration of commissioners' terms that first occurs after the first housing project is established and in operation.

This office has twice before addressed the question of whether a tenant could serve on the board of a public housing authority. Attorney General Opinion M-1096 (1972) considered whether section 6 of article 1269k, V.T.C.S., absolutely barred a tenant from serving on the board. Section 6 provided in part:

No commissioner or employee of an authority shall acquire any interest direct or indirect in any housing project. . . .

The opinion found this provision to be consistent with common law prohibitions on conflict of interest as expressed in Meyers v. Walker, 276 S.W. 305 (Tex. Civ. App. - Eastland 1925, no writ) and City of Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Comm'n App. 1933). It concluded that section 6 and the common law rule prohibited a tenant of a housing authority from serving as a commissioner thereof. The version of article 1269k discussed in Attorney General Opinion M-1096 did not include any provision expressly authorizing a tenant to serve on the board. Nor did the opinion consider whether the legislature could amend article 1269k, V.T.C.S., to include such a provision. Thus, Attorney General Opinion M-1096 is in no way dispositive of your question.

In Letter Advisory No. 13 (1973) this office considered the constitutionality of a bill which would require two tenants to serve as commissioners of each public housing authority. The opinion found no provision in the Texas Constitution which would render the proposed amendment invalid. Letter Advisory No. 13 stated as follows:

We do not construe Section 6 of Article 1269k, V.T.C.S., to disqualify those interested in housing projects as tenants, but, if that is its proper interpretation, any conflict between that section and the newly proposed Section 5a would be resolved by giving weight to Section 5a as the last expression of the Legislature.

The legislature has power to change both the common law rule and the statutory language on which Attorney General Opinion M-1096 based its conclusion. Article 1, V.T.C.S., adopts the common law, to the extent it is not inconsistent with the laws and Constitution of Texas, and declares it in force “until altered or repealed by the Legislature.” See In Interest of B-M-N, 570 S.W.2d 493 (Tex. Civ. App. - Texarkana 1978, no writ). As Letter Advisory No. 13 indicated, an enactment that is later in time supersedes an earlier enacted provision to the extent of any inconsistency. See Allied Finance Company v. Falkner, 397 S.W.2d 846 (Tex. 1965). Thus, we find no constitutional provision or common law rule that prevents the legislature from enacting a law that requires one housing commissioner to be a tenant of a housing project.

Moreover, the conflict of interest provision in article 1269k, V.T.C.S., provides that

6(a) . . . it is not unlawful for a commissioner:

. . . .

(2) to continue to own or control any interest in a housing project held by the commissioner prior to his term as commissioner.

We next address your concern that any action by a tenant board member would amount to a conflict of interest proscribed by article 988b, V.T.C.S. Sections 3 and 4 provide as follows:

Sec. 3. (a) Except as provided by Section 5 of this Act, a local public official commits an offense if he knowingly:

(1) participates in a vote or decision on a matter involving a business entity in which the local public official has a substantial interest if it is reasonably foreseeable that an action on the matter would confer an economic benefit to the business entity involved;

(2) acts as surety for a business entity that has a contract, work, or business with the governmental entity; or

(3) acts as surety on any official bond required of an officer of the governmental entity.

(b) An offense under this section is a Class A misdemeanor.

Sec. 4. If a local public official or a person related to that official in the first or second degree by either affinity or consanguinity has a substantial interest in a business entity that would be peculiarly affected by any official action taken by the governing body, the local public official, before a vote or decision on the matter, shall file an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter. The affidavit must be filed with the official recordkeeper of the governmental entity.

These provisions prohibit a “local public official” from taking certain actions regarding a “business entity” in which he has a substantial interest. Section 1(1) of article 988b defines “local public official” to include a member of the governing body of any local governmental entity who exercises responsibilities beyond those that are advisory in nature. We assume, without deciding, that the commissioner of a public housing authority is a local public official within this definition. Section 1(2) defines “business entity”:

‘Business entity’ means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized in law.

“A tenant . . . occupies the land or premises of another in subordination to that other's title.” Forrest v. Durnell, 26 S.W. 481, 482 (Tex. 1894); Redgrave v. Schmitz, 584 S.W.2d 374, 376 (Tex. Civ. App. - San Antonio 1979, no writ). See also V.T.C.S. art. 1269k, §10 (conditions of rental and tenant selection for housing project). A tenant's occupancy of accommodations in a housing project does not constitute an interest in a “business entity” within article 988b, V.T.C.S. Thus, article 988b does not reach a tenant board member's interest in his residency in a project. That interest alone does not implicate a tenant board member in any conflict of interest described by article 988b, V.T.C.S.

You have not inquired about any other specific provision which might be particularly relevant to a tenant of a housing project who serves as a housing commissioner and we have been unable to locate any such provision. But see Penal Code ch. 39 (abuse of office).

SUMMARY

The Texas Constitution does not prohibit the legislature from enacting a bill which requires one commissioner of a local housing authority to be a tenant of a local housing project. A tenant board member's residency in the housing project does not implicate him in any conflict of interest described by article 988b, V.T.C.S.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood