Can a city waterworks system employee serve on the municipal housing authority board?

Plain-English summary

A district attorney asked the AG a personnel-eligibility question for the City of Eagle Pass. The city had created both a waterworks system and a municipal housing authority. Local Government Code section 392.031 says an appointed commissioner of a municipal housing authority may not be an officer or employee of the municipality. The city was considering appointing an employee of the Eagle Pass Water Works System as a housing authority commissioner, and the DA asked whether that waterworks employee is an "employee of the municipality" caught by the bar.

The AG began with how the waterworks system is set up. Under the city charter, bond indentures, and ordinances, the system is managed by its own board of trustees, an arrangement a Texas court has described as designed to remove the system's operations from the influence and control of the city governing body. The system's general manager supervises its employees under a municipal ordinance. The housing authority, by contrast, was created under chapter 392 as a public body corporate and politic, with its powers vested in commissioners appointed by the mayor or other presiding officer, and section 392.031 keeps city officers and employees off that board so the authority stays largely independent of the municipal government.

The key word, "employee," is not defined in chapter 392. The AG explained that courts give an undefined statutory term its common, ordinary meaning, and that the common-law test for who is an "employee" turns on whether the employer has the right to control the progress, details, and methods of the work, usually under an express or implied contract of hire. No prior decision had interpreted "employee" in section 392.031, but the AG reasoned a court would likely decide a person's status as a municipal employee by looking to any express or implied contract establishing the municipality's right to control the person's work.

That made the answer fact-dependent. The DA's letter described the worker as an employee of the waterworks system, said the system supervises the worker and issues the paycheck, and noted the city includes waterworks employees in its retirement system, but it did not describe other facts bearing on whether the city has the right to control the worker's work. On those facts, the AG concluded a court would likely determine that a person employed by the Eagle Pass Water Works System is not an employee of the City of Eagle Pass for purposes of section 392.031, and therefore would not be barred from serving as a housing authority commissioner.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The City of Eagle Pass and its housing authority: The AG concluded that, absent facts showing the city has an express or implied contractual right to control the work of a Water Works System employee, a court would likely find that person is not a city employee under section 392.031 and so could serve as a housing authority commissioner.

Other municipalities filling housing authority boards: The opinion explained that the bar in section 392.031 reaches only officers and employees of the municipality, and that whether someone is a municipal employee turns on the common-law right-to-control test applied to the particular facts.

Common questions

Can a city waterworks employee sit on the municipal housing authority board?
On the facts in this opinion, likely yes. The AG concluded a court would probably find a Water Works System employee is not a City of Eagle Pass employee under section 392.031, absent facts showing the city controls the work.

Who does section 392.031 actually bar from the housing authority board?
The AG explained the statute bars only an officer or employee of the municipality that established the authority, keeping the board independent of city government.

How do you decide whether someone is a "municipal employee"?
The AG explained courts use the common-law right-to-control test: whether the employer has the right to control the progress, details, and methods of the work under an express or implied contract of hire.

Does being in the city's retirement system make the worker a city employee?
Not by itself, in the AG's analysis. The opinion noted the retirement-system inclusion but concluded that, without facts showing the city's right to control the work, a court would likely find the person is not a city employee.

Background and statutory framework

The waterworks system is run by a board of trustees designed to operate independently of the city governing body (Bd. of Trs. of Eagle Pass Water Works Sys. v. Deer Run Props., Inc., 616 S.W.2d 337, 339 (Tex. Civ. App.-San Antonio 1981, no writ)). The municipal housing authority was created under chapter 392 as a unit of government, with powers vested in commissioners appointed by the presiding officer and a bar on city officers and employees serving (Tex. Loc. Gov't Code § 392.006; § 392.011(a), (b); § 392.031(a), (b); § 392.051(b)).

Because chapter 392 does not define "employee" (Tex. Loc. Gov't Code § 392.002; §§ 392.001-.104), the AG construed the statute to give effect to legislative intent through the statute's language (Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)) and applied the term's common, common-law meaning, which turns on the employer's right to control the progress, details, and methods of the work under an express or implied contract of hire (Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 121 (Tex. 2017)). The result depends on the facts; on those presented, the AG concluded a Water Works System employee would likely not be a City of Eagle Pass employee under section 392.031.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code § 392.031(a); § 392.031(b); § 392.006; § 392.011(a); § 392.011(b); § 392.051(b); § 392.002; §§ 392.001-.104

Cases:

• Bd. of Trs. of Eagle Pass Water Works Sys. v. Deer Run Props., Inc., 616 S.W.2d 337, 339 (Tex. Civ. App.-San Antonio 1981, no writ)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)
• Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 121 (Tex. 2017)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0223
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0223.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 21, 2018

The Honorable Roberto Serna Opinion No. KP-0223
293rd Judicial District Attorney
458 Madison Street Re: Whether an employee of the Eagle Pass
Eagle Pass, Texas 78852 Water Works System is a municipal employee
for purposes of section 392.031 of the Local
Government Code, which prohibits a
municipal officer or employee from being
appointed a commissioner to a municipal
housing authority (RQ-0224-KP)

Dear Mr. Serna:

    You ask whether an employee of the Eagle Pass Water Works System is also a municipal

employee who, under section 392.031 of the Local Government Code, may not serve as a
commissioner of a municipal housing authority. [1] You tell us that the City of Eagle Pass (the
"City") created both a waterworks system and a municipal housing authority. Request Letter at 1.
You state that the city charter, bond indentures, and ordinances vest the management of the
waterworks system in a board of trustees. Id. at 1-2; see also Bd. of Trs. of Eagle Pass Water
Works Sys. v. Deer Run Props., Inc., 616 S.W.2d 337, 339 (Tex. Civ. App.-San Antonio 1981,
no writ) (stating that the waterworks system governance is designed to remove its operations "from
the influence and control of the city governing body"). You further state that the general manager
of the waterworks system supervises its employees as authorized by a municipal ordinance.
Request Letter at 2.

   You tell us that the City established the municipal housing authority under chapter 392 of

the Local Government Code, which creates a municipal housing authority as a unit of government
for all purposes. Id. at 1; TEX. LOC. GOV'T CODE §§ 392.006, .011(a). The powers of a municipal
housing authority are vested in its commissioners, who are appointed by the mayor or another
presiding officer of the municipal governing body. TEX. LOC. GOV'T CODE §§ 392.031(a), .051(b).
Section 392.031 prohibits a municipal employee from serving as a commissioner. Id. § 392.031(a)
("An appointed commissioner of the authority may not be an officer or employee of the
municipality."), (b) (reiterating that "[a] commissioner may not be an officer or employee of the
municipality"). You tell us that the City is considering appointing an employee of the waterworks
system as a commissioner of the housing authority. Request Letter at 1. You ask whether the
employee of the waterworks system is also an "employee of the municipality" for purposes of the
prohibition in section 392.031. Id.

    Courts construing a statute attempt "to ascertain and give effect to the Legislature's intent"

as expressed in the statute's language. See Cadena Comercial USA Corp. v. Tex. Alcoholic
Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017) (quotation marks omitted). The only
exclusion in section 392.031 is for "an officer or employee of the municipality." TEX. LOC. GOV'T
CODE § 392.031(a), (b) (emphasis added). Thus, the only employees prohibited by the statute are
employees of the municipality that established the district. Chapter 392 does not define the word
employee and gives few contextual clues. See id. § 392.002 (definitions); see generally id.
§§ 392.001-.104 (chapter 392). However, section 392.031's exclusion of officers and employees
of a municipality comports with chapter 392's overall statutory scheme to provide a housing
authority with its own governing body, separate and largely independent of the municipal
governing body. Compare id. § 392.031(a) (precluding officers and employees of municipality
from serving as commissioners of the housing authority), with id. §§ 392.011(b) (creating housing
authority as a public body corporate and politic), .051(b) (vesting housing authority's powers in
its commissioners).

    For an undefined term such as "employee" in section 392.031(a), courts apply the term's

common, ordinary meaning unless a contrary meaning is apparent from the statute's language.
Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 121 (Tex. 2017).
"Employee" is commonly defined broadly as "one employed by another," usually for wages or
salary. WEBSTER'S THIRD NEW INT'L DICTIONARY 743 (2002). [2] In Harris County Appraisal
District, the Texas Supreme Court stated that "[u]nder the common law, the determination of
whether a person is an employee is according to whether the employer has the right to control the
progress, details, and methods of operations of the work." Harris Cty. Appraisal Dist., 519 S.W.3d
at 121 (quotation marks omitted); BLACK'S LAW DICTIONARY 639 (10th ed. 2014). The court
further stated that the common-law meaning of "an employee is one who works in the service of
another person (the employer) under an express or implied contract of hire, under which the
employer has the right to control the details of work performance." Harris Cty. Appraisal Dist.,
519 S.W.3d at 121 (quotation marks omitted). Although no judicial or administrative opinion
interprets the meaning of "employee" in the context of section 392.031(a), a court would likely
determine a person's status as an employee of a municipality in accordance with any express or
implied contract establishing the municipality's right to control the person's work.

    Thus, whether a person is an employee of a municipality will depend on the particular facts

and circumstances of the person's employment. In the request letter, you characterize the specified
person as an employee of the waterworks system. Request Letter at 1-3. You tell us that the
waterworks system supervises and provides a paycheck to its employee, although the City includes
waterworks employees in its retirement system. Id. at 2. However, you do not address any other
facts or circumstances bearing on the City's right to control the work of the employee of the
waterworks system. Id. at 1-4. Absent facts and circumstances establishing such a work
relationship, a court would likely determine that a person employed by the Eagle Pass Water Works
System is not an employee of the City of Eagle Pass for purposes of section 392.031 of the Local
Government Code.

                                 SUMMARY

                  Absent facts and circumstances establishing that the City of
          Eagle Pass possesses an express or implied contractual right of
          control over the work of a person employed by the Eagle Pass Water
          Works System, a court would likely determine such a person is not
          an employee of the City of Eagle Pass for purposes of section
          392.031 of the Local Government Code.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Roberto Serna, 293rd Jud. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 20, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See also WEBSTER'S THIRD NEW INT'L DICTIONARY 743 (2002) (defining "employ" as "to provide with a job that pays wages or salary or with a means of earning a living"); AM. HERITAGE COLL. DICTIONARY 460 (4th ed. 2002) (defining "employee" as a "person who works for another in return for compensation"); NEW OXFORD AM. DICTIONARY 569 (3d ed. 2010) (defining "employee" as "a person employed for wages or salary, esp. at nonexecutive level" and "employ" as "give work to (someone) and pay them for it").