Can a city put one of its council members on the municipal housing authority board?

Plain-English summary

Jack Roady, the Galveston County Criminal District Attorney, asked the Attorney General about a long-running practice in the City of Galveston: putting a city council member on the board of the Galveston Housing Authority as an "ex officio" member. The City created the housing authority by resolution in 1940 and had been appointing such a member since 1961. The district attorney asked three things, whether the City could legally appoint a council member as an ex officio member of the authority's board, whether that member could attend the authority's closed executive sessions, and whether federal regulations barred a council member from serving.

On the first question, the AG said the appointment is not allowed. A municipal housing authority is a separate unit of government, a public body corporate and politic, governed by commissioners appointed by the municipality's presiding officer. Local Government Code section 392.031 says a commissioner "may not be an officer or employee of the municipality." Because a city council member is a municipal officer, the AG concluded section 392.031 bars a mayor or city council from appointing a council member to the authority board. The City argued it had appointed the member as a nonvoting representative of the City's interests, not as a commissioner. The AG agreed a home-rule city can create a municipal representative or liaison position and assign it to a council member, but said that position must be municipal only. The statute fixes who sits on the authority's board and bars council members from it even in a nonvoting capacity, so the City could not place its council member on the authority board under an "ex officio" label.

On the second question, the AG explained that under the Texas Open Meetings Act only the members of a governmental body have a right to attend its executive sessions. A governmental body has limited discretion to let in a nonmember whose participation is necessary to the matter being discussed, as long as the person's presence is not contrary to the legal basis for the closed session. So a municipal representative could attend the housing authority's executive session only if the board consents, the board finds the participation necessary, and the attendance does not conflict with the reason for going into closed session. The AG did not address the third question about federal regulations, because the state-law answer already meant a council member could not be a commissioner.

Currency note

This opinion was issued in 2015. 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

The City of Galveston and other municipalities (as the opinion described it): The opinion described section 392.031 as barring a city from appointing a council member to a municipal housing authority board, even as a nonvoting ex officio commissioner. It described the city as free to create a municipal liaison or representative position for a council member, kept entirely on the municipal side and off the authority board.

The Galveston Housing Authority board (as the opinion described it): The opinion described the authority's board composition as fixed by statute and described a municipal representative's attendance at the board's executive sessions as permissible only with the board's consent, a finding that the participation is necessary, and consistency with the legal basis for the closed session.

City council members serving in this role (as the opinion described it): The opinion described a council member, as a municipal officer, as ineligible to serve as a commissioner of the housing authority, whether voting or nonvoting.

The district attorney who asked (as the opinion described it): The opinion answered the first two questions and expressly declined to reach the federal-regulation question, since the state-law bar on the appointment made it unnecessary.

Common questions

Can a city council member serve on a municipal housing authority board?
The AG said no. Local Government Code section 392.031 provides that a housing authority commissioner may not be an officer or employee of the municipality, and a council member is a municipal officer.

Does calling the seat "ex officio" or "nonvoting" change the answer?
The AG said it does not. The statute bars council members from the authority board even in a nonvoting capacity, so an "ex officio" label does not get around it.

Can the city create some other way for a council member to be involved?
Yes. The AG explained a home-rule city may create a municipal representative or liaison position and assign it to a council member, but that role must be municipal only and cannot be a seat on the authority board.

Can a city representative attend the housing authority's executive (closed) sessions?
Only conditionally. Under the Open Meetings Act, the AG said a nonmember may attend only if the board consents, the board determines the participation is necessary to the matter, and the attendance is not contrary to the legal basis for the closed session.

Did the opinion address the federal rules on this?
No. Because state law already prohibited appointing a council member as a commissioner, the AG did not reach the federal-regulation question.

Background and statutory framework

A municipal housing authority is created under chapter 392 of the Local Government Code when a municipal governing body adopts a resolution declaring the need for one (Tex. Loc. Gov't Code Ann. § 392.011(a), (c)). Unlike a city department, the authority is a distinct unit of government and a public body corporate and politic (Tex. Loc. Gov't Code Ann. § 392.006; § 392.011(b)), whose powers are vested in its commissioners (Tex. Loc. Gov't Code Ann. § 392.051(b)). The board has five, seven, nine, or 11 commissioners appointed by the presiding officer of the municipality, and a commissioner "may not be an officer or employee of the municipality" (Tex. Loc. Gov't Code Ann. § 392.031(a)-(b)). Because a city council seat is a civil office of emolument, a council member is a municipal officer (Tilley v. Rogers, 405 S.W.2d 220 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)), so the AG concluded the appointment is barred.

A home-rule municipality may create municipal offices (Tex. Loc. Gov't Code Ann. § 26.041(1)) and so may establish a municipal liaison to the authority, but a home-rule city cannot adopt a charter or ordinance inconsistent with the general laws of the state (Tex. Const. art. XI, § 5), and the statute fixing the authority's board composition controls. On executive sessions, the Texas Open Meetings Act allows closed sessions only under narrow exceptions and gives the governmental body limited discretion over who attends (Tex. Gov't Code Ann. §§ 551.002, .071-.090). The AG read prior opinions to allow a nonmember whose participation is necessary to attend if the body consents and the presence is consistent with the legal basis for the closed session (Tex. Att'y Gen. Op. Nos. GA-0277 (2004), JC-0375 (2001), JC-0506 (2002), GA-0511 (2007)). The term "ex officio" itself means by virtue of an office (Grant v. United Gas Pipe Line Co., 457 S.W.2d 315 (Tex. Civ. App.-Corpus Christi 1970, writ ref'd n.r.e.); Nichols v. Galveston Cnty., 235 S.W. 1116 (Tex. Civ. App.-Galveston 1915, writ dism'd w.o.j.)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XI, § 5 (home-rule charter may not conflict with general law)
• Tex. Loc. Gov't Code Ann. § 26.041(1) (home-rule city may create municipal offices)
• Tex. Loc. Gov't Code Ann. § 392.006; § 392.011(a)-(c) (municipal housing authority; creation)
• Tex. Loc. Gov't Code Ann. § 392.031(a)-(b) (board composition; no municipal officer or employee)
• Tex. Loc. Gov't Code Ann. § 392.051(b) (powers vested in commissioners)
• Tex. Gov't Code Ann. §§ 551.002, .071-.090 (Open Meetings Act; executive sessions)

Cases:

• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• Grant v. United Gas Pipe Line Co., 457 S.W.2d 315, 320 (Tex. Civ. App.-Corpus Christi 1970, writ ref'd n.r.e.)
• Nichols v. Galveston Cnty., 235 S.W. 1116, 1117 (Tex. Civ. App.-Galveston 1915, writ dism'd w.o.j.)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. GA-0277 (2004), JC-0375 (2001), JC-0506 (2002), GA-0511 (2007)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0006
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0006.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 4, 2015

The Honorable Jack Roady Opinion No. KP-0006
Galveston County Criminal District Attorney
600 Fifty Ninth Street, Suite 1001 Re: Appointment of an ex officio member to
Galveston, Texas 77551-4137 the Galveston Housing Authority
(RQ-1218-GA)

Dear Mr. Roady:

You ask several questions about a municipality's authority to appoint an ex officio member to the Board of Commissioners of the Galveston Housing Authority ("GHA"). [1] A municipal housing authority ("MHA") is created under chapter 392 of the Local Government Code and initiated by a resolution of the municipal governing body declaring the need for a housing authority. TEX. LOC. GOV'T CODE ANN. § 392.011(a), (c) (West 2005). The City of Galveston (the "City") initiated GHA by resolution in 1940. GHA Brief at 1. The City informs us that it has been appointing an "ex officio" member to the GHA since 1961. [2] You ask first whether the City can legally appoint a city council member as an ex officio member of the GHA board. Request Letter at 1.

Unlike a department created by municipal law, an MHA created under chapter 392 is a distinct "unit of government" for all purposes and "a public body corporate and politic." TEX. LOC. GOV'T CODE ANN. §§ 392.006, .011(b) (West 2005 & Supp. 2014). The powers of an MHA are vested in its commissioners. Id. § 392.051(b) (West 2005). An MHA is "governed by five, seven, nine, or 11 commissioners," who are appointed by the presiding officer of the governing body of the municipality. Id. § 392.031(a).

Section 392.031 states that a commissioner of an MHA "may not be an officer or employee of the municipality." Id. § 392.031(a)-(b). A city council member is an officer of the municipality. See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) (stating that "the office of City Councilman is a civil office of emolument"). Therefore, section 392.031 prohibits a mayor or city council from appointing one of the council members as a commissioner of an MHA board.

The City states that it did not designate a city council member as an MHA commissioner, but, rather, as "a nonvoting, ex-officio to the GHA to represent [its] interests." City Brief at 4. A home-rule municipality is authorized to create municipal offices. TEX. LOC. GOV'T CODE ANN. § 26.041(1) (West 2008). Thus, a municipality has the authority to create the position of municipal representative or liaison to an MHA and may assign the duties of the position to a member of the municipal city council. But the position must be municipal only. The Legislature has established the composition of an MHA board of commissioners and prohibited municipalities from appointing city council members to the MHA board, even in a nonvoting capacity. See id. § 392.031(a)-(b) (West 2005); see TEX. CONST. art. XI, § 5 (prohibiting a home-rule municipality from adopting a charter or ordinance "inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State"). Therefore, section 392.031 of the Local Government Code prohibits a mayor or city council from appointing one of its council members as an ex officio commissioner of an MHA.

Your second question is "[w]hether the ex officio member may legally attend executive sessions of GHA." Request Letter at 1. The Texas Open Meetings Act (the "Act") permits a governmental body to meet in executive session pursuant to narrowly drawn exceptions to the requirement that its meetings "be open to the public." TEX. GOV'T CODE ANN. §§ 551.002, .071-.090 (West 2012 & Supp. 2014). From an examination of the Act, this office has determined that only members of the governmental body are entitled to attend its executive sessions as a matter of right. Tex. Att'y Gen. Op. No. GA-0277 (2004) at 2-3. The Act gives a governmental body limited "discretion with regard to who may attend its executive sessions." Tex. Att'y Gen. Op. No. JC-0375 (2001) at 2. "In general, ... a governmental body may include a person ... 'whose participation is necessary to the matter under consideration'" provided the person's presence is not "contrary to the legal basis for the executive session." Tex. Att'y Gen. Op. No. JC-0506 (2002) at 2, 4; see generally Tex. Att'y Gen. Op. No. GA-0511 (2007) at 4-6 (discussing requirement that a nonmember's presence in an executive session must be authorized under the Open Meetings Act or other law). Consequently, a representative of a municipality may attend an executive session of the board of commissioners of an MHA only if the board consents, the board determines that the representative's participation is necessary to the matter to be discussed, and the representative's attendance is not contrary to the legal basis of the executive session.

Finally, you ask whether federal regulations preclude a city council member from serving on an MHA board under particular circumstances. See Request Letter at 1. Because section 392.031 of the Local Government Code prohibits a mayor or city council from appointing one of its members as a commissioner of an MHA board, we do not address your final question.

SUMMARY

Section 392.031 of the Local Government Code prohibits a mayor or city council from appointing one of its members as an ex officio commissioner of a municipal housing authority.

A representative of a municipality may attend an executive session of the board of commissioners of a municipal housing authority only if the board consents and the board has determined that the representative's participation is necessary to the matter to be discussed and the representative's attendance is not contrary to the legal basis of the executive session.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jack Roady, Galveston Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 5, 2014) and attached Brief of the Galveston Hous. Auth., https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "GHA Brief," respectively).

[2] See Brief from Dorothy Palumbo, Galveston City Att'y at 1 (Sept. 19, 2014) ("City Brief") (on file with Op. Comm.). "Ex officio" means "by virtue or because of an office." Merriam-Webster's Collegiate Dictionary 438 (11th ed. 2005); Grant v. United Gas Pipe Line Co., 457 S.W.2d 315, 320 (Tex. Civ. App.-Corpus Christi 1970, writ ref'd n.r.e.); accord Nichols v. Galveston Cnty., 235 S.W. 1116, 1117 (Tex. Civ. App.-Galveston 1915, writ dism'd w.o.j.).