                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS




                                               March 14, 2016



The Honorable Joseph C. Pickett                             Opinion No. KP-0069
Chair, House Committee on Transportation
Texas House of Representatives                              Re: Whether a school district board of
Post Office Box 2910                                        trustees may post on the district website the
Austin, Texas 78768                                         personal financial statements of board
                                                            members submitted pursuant to section
                                                            11.0641 of the Education Code
                                                            (RQ-0053-KP)

Dear Representative Pickett:

         You ask whether a school district board of trustees may post on the district website the
personal financial statements of board members submitted pursuant to section 11.0641 of the
Education Code. 1 Section 11.0641 "applies only to the board of trustees of an independent school
district that is located in a county that is located on the international border and in which a
municipality with a population of 600,000 or more is located," i.e., El Paso County. TEX. EDUC.
CODE§ 11.0641(a); see Fiscal Note, Tex. H.B. 343, 83d Leg., R.S. (2013) at 1 (stating that "[t]he
bill is bracketed to apply to nine independent school districts (ISDs) within El Paso County").
Subsection (b) of the statute requires "[ e]ach member of the board of trustees of an independent
school district [to] file a financial statement with: (1) the board of trustees; and (2) the
commissioners court of the county in which the school district's central administrative office is
located." TEX. EDUC. CODE § l 1.064l(b). Under the statute, the commissioners court is to
determine "whether a statement required to be filed under this section is late," in which case "the
individual responsible for filing the statement is liable to the county for a civil penalty of $500"
and, in aggravated circumstances, may. be the basis of a civil penalty of up to $10,000. Id.
§ 11.0641(e). Moreover, a trustee who fails to file the required statement commits a Class B
misdemeanor offense. Id. § 11.0641 (d).

        Section l l.064l(c) provides:·

                 The provisions of Subchapter B, Chapter 572, Government Code,
                 governing the contents, timeliness of filing, and public inspection of
                 a statement apply to a statement filed under this section as if the

        1
         See generally Letter and Brief from Honorable Joseph C. Pickett, Chair, House Transp. Comm., to
Honorable Ken Paxton, Tex. Att'y Gen. (Sept. 14, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter" and "Brief," respectively).
The Honorable Joseph C. Pickett - Page 2                    (KP-0069)



                  trustee were a state officer and the comm1ss10ners court of the
                  county were the Texas Ethics Commission.

Id. § 11.064l(c) (emphasis added). 2 Accordingly, 11.0641(c) gives the commissioners court the
powers and responsibilities of the Texas Ethics commission with respect to the contents,
timeliness, and public inspection of a financial statement required by the section. In subchapter
B, chapter 572, the provision concerning "Public Access to Statements" is section 572.032, which
provides:

                  (a)     Financial statements filed under this subchapter are public
                          records. The commission shall maintain the statements in
                          separate alphabetical files and in a manner that is accessible
                          to the public during regular office hours.

                  (a-1) The commission shall remove the home address of a judge or
                        justice from a financial statement filed under this subchapter
                        before:

                          (1) permitting a member of the public to view the statement;
                              or

                          (2) providing a copy of the statement to a member of the
                              public.

                  (b)     During the one-year period following the filing of a financial
                          statement, each time a person requests to see the financial
                          statement, excluding the commission or a commission
                          employee acting on official business, the commission shall
                          place in the file a statement of the person's name and address,
                          whom the person represents, and the date of the request. The
                          commission shall retain that statement in the file for one year
                          after the date the requested financial statement is filed.

                  (c)     After the second anniversary of the date the individual ceases
                          to be a state officer, the commission may and on notification
                          from the former state officer shall destroy each financial
                          statement filed by the state officer.

TEX. Gov'T CODE § 572.032. Thus, these access provisions apply only to the Texas Ethics
Commission and, by virtue of section l 1.0641(c), the commissioners court.




         2Under a different section of the Education Code, a board of trustees, or in certain instances the commissioner
of education, may require a board's members to file a financial statement with their board and the Texas Ethics
Commission, not with a county commissioners court. TEX. EDUC. CODE § l 1.064(a}-(a-4).
The Honorable Joseph C. Pickett - Page 3            (KP-0069)



        While section 11. 0641 of the Education Code requires a copy of the financial statement to
be filed with the board of trustees, it does not address the responsibilities of the board that receives
the required statement. See TEX. EDUC. CODE·§ 11.0641(a). Thus, we must consider other law
governing access to public records held by governmental bodies. We are not aware of any statute,
judicial opinion, or other law that generally prohibits a governmental body from posting a personal
financial statement on its website. But personal financial statements that are required to be filed
under chapter 572, subchapter Bare public records. TEX. Gov'T CODE§ 572.032(a). Under the
Public Information Act ("PIA"), a governmental body has a duty to promptly produce public
information. Id. § 552.221. The authority to provide access to personal financial statements by
posting them on the district website may be implied as incident to the board of trustees' duties and
authority under the PIA. See Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ.
App.-Amarillo 1964, writ ref d n.r.e.) (determining that a board of trustees possesses powers
expressly conferred on it by law or necessarily implied from its express powers); Tex. Att'y Gen.
Op. No. ORD-682 (2005) at 7 (noting that, while making information available on a website does
not satisfy section 552.221 of the PIA, "a requestor may agree to accept information on a
governmental body's website in fulfillment of the request" for information under the PIA).
Accordingly, a court would likely conclude that it is within the board of trustees' discretion to post
on the district website the personal financial statements of board members submitted pursuant to
section 11.0641 of the Education Code.

        Members of the Legislature may have intended for the board to require the same procedures
as the commissioners court, but the language of the statute does not do so. To conclude that the
procedures in subsection 11.0641 (c) apply to the board of trustees requires reading language into
the statute, which courts generally do not do. MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 502
(Tex. 2010) (observing that "courts should not by judicial fiat insert non-existent language into
statutes"). If the Legislature intended for the board to follow those procedures, it should amend
the statute accordingly.

         The personal financial statements required by section 11.0641 may contain information
made confidential or otherwise protected under other law. See, e.g., TEX. Bus. & COM. CODE
§ 521.051 ("Unauthorized use or Possession of Personal Identifying Information"); TEX. Gov'T
CODE § 552.117 ("Exception: Confidentiality of Certain Addresses, Telephone Numbers, Social
Security Numbers, and Personal Family Information"); Tex. Dep 't of Pub. Safety v. Cox Tex.
Newspapers, L.P., 343 S.W.3d 112, 119 (Tex. 2011) (noting that information protected under the
common-law privacy doctrine is exempt from disclosure under the PIA). Thus, while a board has
discretion to post financial statements required by section 11.0641 on its website, it is cautioned
that it should withhold information made confidential or otherwise protected by other law. See
TEX. Gov'T CODE § 552.352(a) ("A person commits an offense if the person distributes
information considered confidential under the terms of [the PIA]."). Members of the public who
desire to do so may seek an inspection of the complete financial statements in full from the
The Honorable Joseph C. Pickett - Page 4                       (KP-0069)



comrmss10ners court under section 11.0641 of the Education Code and chapter 572 of the
Government Code. 3

        Your second question is whether "the board of trustees by a majority vote [may] require
the posting of the personal financial statement of a trustee who objects." Request Letter at 2. A
board of trustees "may act only by majority vote of the members present at a meeting:" TEX.
EDUC. CODE § 11.051 (a-1 ). Section 11.0641 of the Education Code does not create a right in an
individual trustee to limit disclosure of the copy of the public document filed with the board of
trustees. Thus, under section 11.0641, a majority of the board of trustees may require the posting
of the personal financial statement of an individual trustee over the trustee's objections. 4




         3
           See York v. Tex. Guaranteed Student loan Corp., 408 S.W.3d 677, 685 (Tex. App.-Austin 2013, no pet.)
(holding that exceptions from general rule ofrequired disclosure under section 552.021 of the Public Information Act
"do not ... purport to operate more generally against public-access or disclosure requirements created or imposed by
other law").

         4
             Because the answer to your first question is in the affirmative, we do not addres1> your third question.
The Honorable Joseph C. Pickett - Page 5        (KP-0069)



                                      SUMMARY

                      A court would likely conclude that it is within the discretion
              of a school board of trustees subject to section 11.0641 of the
              Education Code to post on the district's website the personal
              financial statements of member trustees required by that section.
              Under section 11.0641, a majority of the board of trustees may
              require the posting of the personal financial statement of an
              individual trustee over the trustee's objections.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
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
