                                The Attorney General of Texas

JIM MAlTOX                                      &ril   9. 1985
Attorney General


Supreme Court SulldlnQ         Honorable Oscar 8. Nauzy                opinion No. JM-308
P. 0. Box 12S4S                chairmen
Austin. TX. 7871% 2548         Committee on Jurisltmdence              BE: Whether a resident of a
512l4752501                    Texas State Senate                      housing project may be a member
Talex 9101874-1397
Tel8~0oiM 512147!b02S9
                               P. 0. Box 12068, CZlpitOlStatioll       of a housing authority board in
                               Austin, Texas   78;'ll                  light of article 988b. V.T.C.S.

714 Jackson. SuItO 7QQ         Dear Senator Mauzy:
0P9as. TX. 7S2a-
2141742-8844
                                    You seek our opinion on a proposed amendment to article 1269k.
                               V.T.C.S.. which would require local housing authority boards to
4824 AIMS Ave.. Suite 180      include one member who is a teuant of a project operated by the local
El Paso. TX. 739052793         housing authority. Your specific question is as follows:
915153534S4
                                            Would residency in a project constitute an
1091 Texas, Suite 700                    'interest' in the authority such that any action
Houston, TX. 77OQ2-3111                  by a tenant board member would amount to a
71312235888                              conflict of interest proscribed by the Texas
                                         Constitution or tbe statutes, particularly article
                                         988b, V.T.C.S.
905 Broadway. SuIta 312
LuDbcck. TX. 78101-2479
8084747.5238                        Senate Bill NIL 490. now pending before the legislature, would
                               add the following language to section 5 of article 1269k. V.T.C.S.:
4309 N. Tenth. Suite S
                                         After the authority establishes its first housing
McAllsn. TX. 7SWl-lSS5
51218824647
                                         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
 2fx7 Msln Plsaa, Suite 400              governing body shall make the initial appointment
 San Antonlo, TX. 7S2OE-2797
                                         of a tenant commissioner on the expiration of
 512%!54191
                                         commissiomrs   terms that first occurs after the
                                         first housing project is established and in
 An Equal OppoCtuWf                      operation.
 Alflrmatfve Action Employer
                                    This office has tice 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:




                                                             p. 1402
Honorable Oscar 8. ~ausy - P;%IZe
                                2 (JM-308),




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

The opinion found this prorisiou to be consistent with common law
prohibitions on conflict of Luterest as expressed in Meyers v. Walker,
276 S.W. 305 (Tex. Civ. Apy. - Eastland 1925, no writ) and City of
Edinburg v. Ellis, 59 S.W.2d 99 (Tex. Coma. App. 1933). It concluded
that  section 6 and the coumou law rule prohibited a tenant of a
housing authority from servi:%Sas a commissioner thereof; The version
of particle 1269k discussed in Attorney General Opinion M-1096 did not
include any provision expremly authorizing a tenant to serve on the
board. Nor did the opinion consider whether the legislature could
amand article 1269k. V.T.C.S., to include such a provision. Thus,
Attorney General Opinion M-.1.096is in no way dispositive of your
question.

     In Letter Advisory No. 13 (1973) this office considered the
constitutiouality 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 Com3titutiou 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 diw[ualify those interested in
          housing projects a,s tenants, but, if that is its
          proper interpretation, any conflict between that
          section and the newly proposed Section 5a would be
          resolved by givin:3 weight to Section 5a as the
          last expression of the Legislature.

       The legislature has powac to change both the coamou law rule and
the statutory language on which Attoruey General Opinion M-1096 based
its conclusion. Article 1, V.T.C.S., adopts the common law, to the
extent   it is not inconsisteti:with the laws and Constitution of Texas,
and declares it in form          "until altered or repealed by the
Legislature." See In re B--+--N---,      570 S.W.Zd 493 (Tex. Civ. App.
- Texarkana 197rno      writ). As Letter Advisory No. 13 indicated, an
enactment that is later :tu time supercedes an earlier enacted
provision to the extent of any inconsistency. See Allied Finance
Company v. Falkner, 397 S.II.2d 846 (Tex. 1965). Thus,       we find uo
coustitutioual provision oc comaon law rule that prevents the
legislature from enacting a :Lew that requires one housing comaissioner
to be a tenant of a housing project.

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




                                 p. 1403
Honorable Oscar 8. ~ausy - Page 3        KM-308)




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

             .   .   .   .

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

     We naxt address your c,onLcern
                                  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
          offeuse if he GFtugly:

            (1) participates in a vote or decision on a
         matter involving a business entity in which the
         local public offjs:ial has a substantial interest
         if it is reasoaahiy foreseeable that an action on
         the matter would ':onferan economic benefit to the
         business entity iwrolved;

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

             (3) acts   es surety on =nY official bond
          required of an of:iicerof the governmental entity.

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

            Sec. 4. If a :Localpublic official or a persou
         related to thati;jificial la the first or second
         degree by either >lffinity or consanguinity has a
         substantial intsr,est in a business entity that
         vould be pecul&lv      affected bv anv official
         action taken by the governing body.- the local
         public official, 'beforea vote or decision on the
         matter, shall fill!an affidavit stating the nature
         and extent of the interest and shall abstain from
         further particiI~a~tion 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


                                     p. 1404
Honorable Oscar R. Mauay - P,aSe4    (JM-308)




substantial interest. SectLou l(1) of article 988b defines "local
public official" to include a member of the governing body of any
local gowermaeutal entity wt,o 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. Sect:Lonl(2) defines "business entity":

             'Business entity' wsaus a sole proprietorship,
          partnership. firm, corporation, holding company,
          joint-stock company. receivership, Ltrust, or any
          other entity recogxlaed in law.

“A tenant . . . occupies the :Landor premises of another in subordioa-
tion to that other's title." Forrest V. Duroell, 26 S.W. 481, 482
(Tax. 1894); Redgrave V. Scbmita. 584 S.W.Zd 374, 376 (Tex. Civ. App.
- San Antonio 1979, no wrl?r      See also V.T.C.S. art. 1269k, 010
(conditions of rental and tsnant selection for housing project). A
tenant's occupancy of accomdations in a housing project does not
constitute au interest in a "business entity" within article 988b.
V.T;C.S. Thus, article 9881, does not reach a tenant board member's
interest in his residency in a project. That interest alone does not
implicate a teuant board mewbet 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 relevmt to a tenant of a housing project who
semes as a housing comaissinrer and we have been unable to locate any
such prowisioo. But see Penal Code ch. 39 (abuse of office).

                             I'UMMARY

             The Texas Conmritution does not prohibit the
          legislature from matting a bill which requires
          oae commissioner of a local housing authority to
          be a tenant of a local housing project. A teuant
          board member's rersidency in the housing project
          does not implicate him in soy conflict of interest
          described by artic:ia988b. V.T.C.S.




                                      J hVery truly your



                                         JIM
                                              r3*,
                                                 HATTOX
                                         Attorney General of Texas

TOM GRFXN
First Assistant Attorney General


                                   p. 1405
* _   r


          Honorable Oscar R. Mauay - Page 5   (JM-308)




          DAVID R. RICEARDS
          Executive Assistant Attorney General

          RICR GILPIN
          Chairman, Opinion Committee

          Prepared by Susan L. Garrison
          Assistant Attorney General

          APPRow:
          OPINION COM4ITTEE

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




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