                              QBfficeof the 2Wmvp QBeneral
                                      &ate of PCexae
DAN MORALES
 ATTORNEY
       GENERAL                                December 2.1994



     Honorable Walt Sears, Jr.                            Opinion No. DM-307
     Franklin County Attorney
     P.O. Box 374                                         Re: Whet&r House Bii 859, Acts 1992,
     Mount Vernon, Texas 75457                            73d Leg., ch. 473 (now coditied at
                                                          V.T.C.S. art. 1446h), which requkes a
                                                          public utility to keep portion of its customer
                                                          records confidential under certain circum-
                                                          stmws, is applicable to’the Franklin County
                                                          Water District (RQ-619)

     Dear Mr. sears:

             You have requested an opinion from this office regarding the construction of
     House Bill 859, Acts 1993,73d Leg., ch. 473 (now codiied at V.T.C.S. art. 1446h). In
     particular, you ask whether the Franklin County Water District is subject to House Bii
     859. You also ask whether there are any criminal penalties for violating House Bii 859.

             With some exceptions not relevant here, House Bii 859 prohibits a “govemment-
     operated utility” from disclosing a customer’s address, telephone number, or social
     security number if the customer requests that this information be kept confidential. The
     act de&es a “government-operated utility” as an entity that:

                     (A) is a governmental body or is governed by a governmental
                 body, as defined by Section 2(l), Chapter 424, Acts of the 63rd
                 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon’s
                 Texas Civil Statutes’); and

                      (B) provides water, wastewater, sewer, gas, garbage, electricity,
                 or drainage service for compensation.

     V.T.C.S. art. 144615 $ l(1) (footnote added).


               ‘The legislatm rqeakl article 6252-17a. V.T.C.S., in 1993. See Acts 1993,73d Leg., ch. 268,
     5 46(i), at 587,988. The material in that article, the Texas Open Ranrds Act, is now codified as chapter
     552 of the Govcmment Code. See id. 8 1, at 599.




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Honorable Wah Sears, Jr. - Rage 2         (ur.+307)




        You concede that the Franklin County Water District is a govermnental body
subject to the Open Records Act. You also explain that the district is a water
conservation and reclamation district responsible for maintaining Lake Cypress Springs.
For an annual permit fee, the district allows persons who own property adjacent to the
lake to remove lake water for irrigation or other on-site purposes other than human
consumption. The water is not potable. Currently, the fee is 825 regardless of how much
water is taken from the lake, and the district does not provide any equipment, labor,
advice, or instructions for removing the water.

        We conclude that the Franklin County Water District is subject to House Big 859.
Construing House Bill 859 to cover the Franklin County Water District is consistent with
the plain meaning ofthe statute. See McCulloch v. Fox &Jacobs, Inc., 6% S.W.2d 918,
921 (Tex. App.-Dallas 1985;wtit refd n.r.e.) (concluding that words should be given
their plain meaning when statute is clear and unambiguous). To provide water can mean
to make water available. See WEBSTER’SCOLLEIXATE        DICTIONARY 940 (10th ed. 1993)
(detIning “provide”). The Franklin County Water District makes the lake water available
to the owners of land adjoining the lake for compensation of S25 a year. Nothing in the
language or the statutory history of House Bill 859 indicates that making water available,
rather than supplying it using government equipment and labor, is insutXcient to bring a
governmental body within the coverage of House Bill 859.

        In addition, construing House Bill 859 to cover the Fmnklin County Water District
is consistent with the purpose of the act. The bii analysis regarding House Bill 859
indicates that before it was passed the Open Records Act required publicly-owned utilities
to release the home address and telephone number of a customer even if the customer did
not want the information released. As a result, customers who were being hammed or
threatened could not escape the harassment or threats by changing phone numbers or
addresses. The purpose of the act is to correct this unintended result of the Open Records
Act. This purpose is served equally well by requiring the Franklin County Water District
to keep addresses and telephone numbers confidential as by requiring a more conventional
publicly-owned utility to keep the same information confidential.2 Accordingly, if the
Franklin County Water District maintains records that include addresses, telephone
numbers, or social security numbers for the individuals who have permits to remove water
6om Lake Cypress Springs, then the district must keep this information wnfrdential at the
request of the individual.

        In regard to your second question, House Bill 859 does not itself wntain any
criminal penalties. As you point out, the title to the act refers to “providing a criminal

          WC do not mean to suggest, however, that the Franklin County Water District or other similar
entities would be governmentoperated utilities for the purpose of any statute other than House Bii 859.
thr opinion here is limited to interpreting How Bill 859.




                                         p.   1643
Honorable Walt Sears, Jr. - Page 3    (~~-307)




penalty.” However, the legislative history of the act indicates that   this reference is an
error. As introduced, the bill wntained a section making a violation   of the act a class C
misdemeanor. This section was deleted in the wmmittee substitute       for the original bii.
See House Comm. on State Affairs, Bill Analysis, H.B. 859,73d Leg.     (1993). We believe
that the committee merely forgot to amend the title of the bii         to wn8orm to the
amendments in the body of the bill.

        On the other hand, an entity that violates House Bii 859 may be’subject to
miminat penalties under section 552.352 of the Government Code. Section 552.352(a)
provides “[a] person commits an offense if the person distributes in8ormation considered
wntidential under the terms of this chapter.” Information made wntidential by another
statute is also considered wntidential under the Open Records Act. See Gov’t Code
3 552.101; Open Records Decision No. 490 (1988) at 4. Distributing wntidential
information is a misdemeanor and official misconduct. Gov’t Code 8 552.352(b), (c).

                                  SUMMARY

               The Franklin County Water District is subject to the
          requirements of House Bill 859, Acts 1993,73d Leg., ch. 473 (now
          codified at V.T.C.S. art. 1446h). because it permits persons who
          own land adjacent to Lake Cypress Springs to remove water for an
          annual fee of $25. Construing House Bill 856 to encompass the
          Franklin County Water District is consistent with the plain meaning
          of the statutory language and with the purpose of the bill.

               House Bill 856 does not itself impose any criminal penalties for
          violating its provisions. However, an entity that violates House Bii
          859 may be subject to criminal penalties under the Open Records
          Act, section 552.352 of the Government Code.




                                                    DAN MORALES
                                                    Attorney General of Texas




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Honorable Walt Sears, Jr. -Page 4 (DM-307)




JORGE VEGA
Fii Assistant Attorney General

DREW T. DURHAh4
Deputy Attorney General for Criminal Justice

JAVIER AGUILAR
Special Assistant Attorney General

RENEAHIcKs
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Margaret A. Roll
Assistant Attorney General




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