                           ATTORNEY          GENERALOF          TEXAS
                                      GREG       ABBOTT




                                         February 15,2007



The Honorable Frank J. Carte Jr.                  Opinion No. GA-0517
Chair, Committee on Defense Affairs
  and State-Federal Relations                     Re: Application of the Public Information Act to
Texas House of Representatives                    private entities exercising eminent domain powers
Post Office Box 2910                              under Senate Bill 7; application of Senate Bill 7 to
Austin, Texas 787682910                           common carriers (RQ-0455-GA)

Dear Representative   Corte:

        In K&J v. City ofNew London, the United States Supreme Court held that the Takings Clause
of the Fifth Amendment to the U.S. Constitutiorrdoes not prohibit the government from exercising
its eminent domain powers to transfer property ownership from one private party to another private
party for economic development purposes. See Kelo v. City ofNew London, 545 U.S. 469,482,485
(2005). In response to Kelo, the Texas Legislature established limitations on the exercise of this
power by enacting Senate Bill 7 during the Second Called Session of the Seventy-ninth Legislature.
See Act of Aug. 16,2005,79th Leg., 2d C.S., ch. I,2005 Tex. Gen. Laws 1, l-2. You~ask about
Senate Bill 7’s addition of two new Government Code provisions, section 552.0037 and section
2206,001(c)(7).’ We will discuss these provisions in turn.

I.      Government Code Section 552.0037

         Section 552.0037 is an addition to the Public Information Act, chapter 552 of the
Government Code (the “PM”). Section 552.0037 addresses the PIA’s applicability when an entity
that is not a governmental body possesses eminent domain powers:

               Notwithstanding any other law, information collected, assembled, or
               maintained by an entity that is not a governmental body but is
               authorized by law to take private property through the use of eminent
               domain is subject to this chapter in the same manner as information
               collected, assembled, or maintained by a governmental body, but only
               if the information is related to the taking of private property by the
               entity through the use of eminent domain.


          ‘SeeLetter from HonorableFrank I. Carte Jr., Chair, Committeeon DefenseAffairsand State-Federal
Relations,TexasHouseof Representatives, to HonorableGregAbbott,AttorneyGeneralofTexas,at 1(Feb.22,2006)
(on file withthe OpinionCommittee,also mailable af hap://~.oag.state.tx.us) [hereinafterRequestLetter].
The Honorable Frank .I. Carte Jr. - Page 2             (GA-0517)




TEX.GOV’TCODEANN. 5 552.0037 (Vernon Supp. 2006). You ask several questions about the
enforceability    of section 552.0037:

                   1. Do the provisions of [the PIA] that provide for criminal penalties
                  or for the assessment of costs of litigation and attorney’s fees apply
                  to a private entity that holds information subject to Section 552.0037
                       ?

                  2. Because Section 552.0037 makes certain information subject to
                  [the PIA] but does not provide that the private entities holding the
                  information are subject to the [PIA,] is Section 552.0037 too vague
                  to be enforceable?




                  4. Given that Section 552.004 [of the PIA] provides that
                  governmental bodies may determine the time for which information
                  that is not currently in use will be preserved, subject to applicable
                  law, can entities subject to Section 552.0037    establish and follow
                  record retention policies?

                  5. Is it correct that Section 552.0037 only applies to information
                  concerning condemnation proceedings filed in Texas, and not to
                  condemnation proceedings filed outside of Texas?

                  6. Is it correct that Section 552.0037    only applies to entities that
                     are authorized by law to take private property through the use of
                  eminent domain in Texas, and not to entities exercising the right of
                  eminent domain outside of Texas?

Request Letter, supra’note     1, at 2.

        A.       General applicability of the Public Information Act to an entity that possesses
                 eminent domain powers but is not a governmental body

        We start with your second question, which involves your observation that section 552.0037
makes certain eminent domain “information” subject to the PIA but does not expressly make the
private entity that collected, assembled, or maintained the information a “governmental body”
subject to the PIA. See id.

         As your question suggests, the.concept of a “governmental body” is integral to the PIA, as
the obligation to disclose public information and related administrative procedures and enforcement
provisions are generally made applicable only to governmental bodies. See generally TEX. GOV’T
CODEANN. 5s 552.001-,353 (Vernon 2004 & Supp. 2006). The PIA’s definition of the term
“governmental body” includes not only entities commonly understood to be governmental units, but
The Honorable Frank J. Corte Jr. - Page 3             (CA-05 17)




also entities that, for the most part, are not considered to be governmental in nature. For instance,
certain nonprofit corporations are considered to be PIA “governmental bodies.” Id. 5 552.003(l)
(A)(ix), (xi) (Vernon 2004). And outside of the general definition of a “governmental body,” the
PIA expressly makes certain property owners associations “subject to [the PIA] in the same manner
as a governmental body.” Id. 5 552.0036.

         Section 552.0037, however, does not expressly purport to classify a private entity that has
eminent domain powers as a PIA “governmental body.” Compare id. § 552.0037 (Vernon Supp.
2006), with id. 5 552,003(1)(A)(ix), (xi) (v ernon 2004). Nor does section 552.0037 state that an
entity that is not a governmental body and that has eminent domain powers is nevertheless subject
to the PIA. Compare id. § 552.0037 (Vernon Supp. 2006), with id. 8 552.0036 (Vernon 2004).
Rather, section 552.0037 is silent about whether such an entity is itself subject to the PIA. See id.
5 552.0037 (Vernon Supp. 2006).

         But taking that ,silence to mean that such an entity is not subject to the PIA would render
meaningless section 552.0037’s provision that the entity’s eminent domain information is subject
to the PIA “in the same manner as information collected, assembled, or maintained by a
governmental body.” Id. Unless the entity that collects, assembles, or maintains eminent domain
information is subject to the PIA, such information cannot be subject to the PIA “in the same manner
as” a governmental body’s information. Id. Without an entity in the role of a PIA governmental
body, major portions of the PIA would be rendered inapplicable to eminent domain information.
The PIA’s express procedures for obtaining access to public information, for requesting an attorney
general decision, and for enforcing the PIA if information is not made public are all predicated on
the entity owning or holding the information being subject to the PIA. See, e.g., id. 5s 552.221
(Vernon 2004), 552.301 (Vernon Supp. 2006), 552.321 (Vernon 2004) 552.3215 (Vernon 2004).
If the PIA’s express enforcement provisions do not apply, eminent domain information’s status
as public information could be enforced, if at all, only through an ordinary lawsuit. See id.
 5 552,3215(k) (Vernon 2004) (providing that section 552.3215’s provision for a suit for injunction
or declaratory judgment “is in addition to any other civil, administrative, or criminal action provided
by this chapter or another law”).

         In construing section 552.0037, we must presume that the Legislature intended all of the
words in section 552.0037 to be effective and that the Legislature intended a result feasible of
execution. See id. § 3 11.021(2), (4) (V emon 2005). We must “give effect to all the words of a
statute and not treat any statutory language as surplusage if possible.” See Chevron Corp. v.
Redmon, 745 S.W.2d 314, 316 (Tex. 1987). Section 552.0037’s provision that certain eminent
domain information is subject to the PIA “in the same manner as information collected, assembled,
or maintained by a governmental body” has meaning only if the entity described in the section is
itself subject to the PIA with respect to that information. Section 552.0037 necessarily implies that,
even though an entity may not meet the PIA’s general definition of a governmental body, with
respect to its “information      related to the taking of private property by the entity through the use
of eminent domain,” the entity is subject to the PIA in the same manner as a governmental body.

        Having concluded that the entities described in section 552.0037 are subject to the PIA with
respect to certain information, we may address your specific questions about that section.
The Honorable Frank J. Carte Jr. - Page 4             (GA-0517)




       B.    Record retention policies under the Public Information         Act

         Your fourth question concerns the ability ofan entity subject to section 552.0037 to establish
and follow record retention policies under the authority of section 552.004 of the PIA. See Request
Letter, supra note 1, at 2. Section 552.004 provides that “[a] governmental body.       may determine
a time for which information that is not currently in use will be preserved, subject to any applicable
rule or law.” TEX. GOV’T CODE ANN. 5 552.004 (Vernon 2004). Because the entities described in
section 552.0037 are subject to the PIA with respect to certain information in the same manner as
a governmental body, such entities would be authorized to establish the time period for which
eminent domain information is to be preserved, subject to applicable law. See id. $5 552.0037
(Vernon Supp. 2006), 552.004 (Vernon 2004).

        C.    Civil enforcement under the Public Information         Act

        In your first question, you ask whether the PIA’s provisions for the assessment of litigation
costs and attorneys fees would apply to a private entity holding the information described in section
552.0037. Request Letter, supra note 1, at 2. Because such an entity is subject to the PIA in the
same manner as a governmental body, the PIA’s procedures for seeking and enforcing access to
eminent domain information, including the administrative procedures for obtaining an attorney
general determination, would apply to obtaining disclosure of eminent domain information. See,
e.g., TEX. GOV’TCODEANN. $5 552.021, ,221 (Vernon2004), 552.301.(Vemon Supp. 2006). And,
in answer to your first question, the provision for imposing attorney fees and litigation costs would
apply in an injunction ordeclaratory judgment action concerning the entity under section 552.3215
of the PIA. Id. 5 552.3215 (Vernon 2004).

        D.    Criminal enforcement under the Public Information Act

          You also ask in your first question about the applicability of the PIA’s criminal penalties in
the context of section 552.0037. See Request Letter, suyra note 1, at 2. This question requires
additional analysis because a penal statute must be clearly defined so as to afford due process or else
it is void for vagueness. State v. Holcombe, 187 S.W.3d 496,499 (Tex. Crim. App. 2006). Statutes
do not offend the void-for-vagueness doctrine if they “define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a manner that
does not permit arbitrary and discriminatory enforcement.” Id.

         Section 552.353 of the PIA criminalizes the failure or refusal of an officer for public
information or the officer’s agent “to give access to, or to permit or provide copying of, public
information.” TEX. GOV’T CODE ANN. 5 552.353(a) (Vernon 2004). Taken together, sections
552.0037 and 552.353 define with certainty the prohibited conduct, which is the failure or refusal
to provide access to or copies of certain eminent domain information. See id $3 552.0037 (Vernon
Supp. 2006), 552.353 (Vernon 2004). But the statutes do not expressly identify who is an “officer
for public information” in the context of an “entity that is not a governmental body but is authorized
by law to take private property” under section 552.0037. See id. Because in this context the identity
of the person who is subject to the prohibition in section 552.353 is left to speculation, it is likely
The Honorable Frank J. Corte Jr. - Page 5             (GA-0517)




that a court would conclude that the statutes do not provide notice that is sufficient to support a
prosecution with reference to eminent domaininfonnationunder     section 552.0037. See Bouie v. City
of Columbia, 378 U.S. 347, 350-51 (1964) (penal ‘statute with precise language may be
unconstitutional as applied to specific circumstances; court’s construction of the statute to include
such circumstances may be given effect only prospectively).

          Section 552.351 of the PIA concerns the conduct of a “person.” TEX. GOV’TCODEANN.
5 552.351 (Vernon 2004). A person that “wilfully destroys, mutilates, removes without permission
    , or alters public information” commits an offense under section 552.351. Id. ?j552.351(a). The
PIA does not define “person,” nor have the courts construed the term in the context of the PIA’s
criminal statutes. We are to construe words and phrases according to their common meaning unless
they have acquired a particular meaning by legislative definition or otherwise. See id. 5 3 11.011
(Vernon 2005). The common meaning of the word “person” is, of course, sufficiently broad to
include an individual such as an officer or employee of an entity under section 552.0037. See
Comm ‘rs Court of Houston County v. Rodgers, 691 S.W.2d 753,757 (Tex. App.-Tyler             1985, no
wit) (commonly understood meaning of “person” is “an individual human being”). Additionally,
under the Code Construction Act, the word “person” is to be construed as including a “corporation,
organization, government or governmental subdivision or agency, business trust, estate, trust,
partnership, association, and any other legal entity,” unless context indicates otherwise. TEX.GOV’T
CODEANN. § 311.005(Z) (Vernon 2005). The term “person” in section 552.351 is therefore
sufficiently broad to encompass private entities made subject to the PIA by section 552.0037, and
we believe a court presented with the appropriate facts and circumstances would conclude that
section 552.35 1 may be constitutionally applied in the context of section 552.0037 information.

         Section 552.352(a)* also concerns the conduct of a “person,” prohibiting the distribution of
confidential information. Id. § 552.352(a) (Vernon 2004). As with section 552.351, we conclude
that the term “person” in section 552;352(a) is sufficiently broad to encompass private entities made
subject to the PIA by section 552.0037. However, section 552.352(c) states that“[a] violation under
this section constitutes official misconduct.” Id. 5 552.352(c). And as acourt has observed, ‘,‘offcial
misconduct        cannot be committed by an ordinary citizen.” Hall v. State, 736 S.W.2d 818, 822
(Tex. App.-Houston       [14th Dist.] 1987, writ ref d). Nevertheless, when section 552.352 is read as
a whole, it appears that subsection(c) does not restrict the meaning of “person” as used throughout
the section to only an individual capable of committing official misconduct. See TEX.GOV’TCODE
ANN. 3 552.352 (Vernon 2004). A court would likely conclude that a “person” subject to the PIA
who violates section 552.352(a) commits amisdemeanor offense (according to section 552.352(b)),
and the same act will constitute official misconduct (under section 552.352(c)) if the person is a
governmental officer or employee. See id. Therefore, we believe a court presented with the
appropriate facts and circumstances would conclude that section 552.352 may be constitutionally
applied in the context of section 552.0037 information.


        “Wedo not discusssubsections(a-l) and(a-2)of section552.352becausetheyapplyonlyto a person“who
obtainsaccessto confidentialinformationunderSection552.008."See TEX.GOV’TCODEANN.    5 552.352(a-lt(a-2)
(Vernon2004).Becausesection552.008authorizesreceiptofconfidentialinformationonlyby% individualmember,
agency,or committeeof the legislature,”
                                      wearenot awareof anycircumstance
                                                                     in whicha privateentitythat possesses
eminentdomainpowerswill obtainaccessto any informationundersection552.008. See id 5 552.00X(b).
The Honorable Frank J. Carte Jr. - Page 6            (GA-0517)




       E.    Condemnation      proceedings filed outside of Texas

         Your last two questions regarding section 552.0037 are whether the section applies to
information relating to condemnation proceedings filed outside of Texas and whether the section
applies to entities exercising eminent domain outside of Texas. See Request Letter, supru note 1,
at 2. Section 552.0037 does not expressly state that it is limited to Texas eminent domain
information. See TEX. GOV’TCODEANN. 5 552.0037 (Vernon Supp. 2006). But to construe the
section to apply to eminent domain proceedings outside of Texas would lead to absurd results that
the Legislature could not have intended. See Sharp v. House oflloyd, Inc., 815 S.W.2d 245,249
(Tex. 1991) (holding that “[ilnterpretations bf statutes which would produce absurd results are to be
avoided”). The PIA embodies state policy that the people are entitled to complete information about
the affairs of their government “so that they may retain control over the instruments they have
created.” TEX. GOV’TCODEANN. 5 552.001 (Vernon 2004). Eminent domain is a governmental
function, an inherent sovereign power of the state. See Tex. Highway Dep’t v. Weber, 219 S.W.2d
70,72 (Tex. 1949). While the state may delegate this power to an individual or corporation, Vilera
Eastex Pipeline Co. v. Jarvis, 926 S.W.2d 789,792 (Tex. App.-Tyler        1996, writ denied), an entity
exercising this delegated power does so “as an arm of the State.” See Bates v. City of Houston, 189
 S.W.2d 17, 21 (Tex. Civ. App.-Galveston        1945, writ ref d w.o.m.). A private entity exercising
eminent domain powers in another state would not be exercising governmental powers that derive
from the State ofTexas. Consequently, we believe that a court would construe section 552.0037 as
 making information subject to the PIA only if the information is related to the taking of private
 property by the entity through the use of eminent domain powers that derive from the State of Texas.

II.     Government Code Section 2206.001

          Senate Bill 7 also added section 2206.001 to ihe Government Code, which generally restricts
the use of eminent domain for private benefit or for economic development purposes. See TEX.
 GOV’TCODEANN. § 2206.001 (Vernon Supp. 2006). The restrictions in section 2206.001 do “not
 affect the authority of an entity authorized by law to take private property through the use of eminent
 domain” for a number of specified purposes. Id. 5 2206.00 t(c). One such exception for the use of
.eminent domain to take property is for:

                (7) the operations of:

                    (A) a common carrier subject to Chapter 111, Natural
                Resources Code, and Section B(3)(b), Article 2.01, Texas Business
                Corporation Act; or

                    (B) an energy transporter, as that term is defined by Section
                186.051, Utilities Code[.]

Id. § 2206.001(~)(7)(A)-(B).    Y ou ask if the form of business or&mization of a common carrier is
determinative for this exception:
The Honorable Frank J. Corte Jr. - Page 7            (GA-0517)




               3. Does a common carrier that transports natural gas liquids or oil or
               gas products qualify under the exemption prescribed by Section
               2206.001(c)(7) regardless ofthe form of the business organization of
               the common carrier?

Request Letter, supra note 1, at 2.

         We note first that subsections (c)(7)(A) and (c)(7)(B) are stated in the disjunctive and are
separate exceptions. See TEX. GOV’T CODE ANN. § 2206.001(~)(7)(A)-(B) (Vernon Supp. 2006).
Subsection 2206,001(c)(7)(A) excepts the operations of a common carrier that is subject to both
chapter 111 of the Natural Resources Code and to section B(3)@), article 2.01 of the Business
Corporation Act. See id. § 2206.001(c)(7)(A); see&oTEX.NAT.RES.CODEANN.              5s lll.OOl-,406
(Vernon2001 & Supp. 2006); TEX.BUS.CORP.ACTANN.art. 2.01,s B(3)(b) (Vernon Supp. 2006).
Under chapter 111 of the Natural Resources Code, a common carrier is a personwho owns, operates,
or manages a pipeline that transports crude petroleum and other substances under various
circumstances.     See TEX. NAT. RES. CODE ANN. § 111.002 (Vernon 2001). Article 2.01 of the
Business Corporation Act prohibits a corporation from engaging in both the oil~petroleum producing
business andthe oil petroleum pipeline business. See TEX. BUS. CORP. ACT ANN. art. 2.01,s B(3)(b)
(Vernon Supp. 2006).’ By its terms, article 2.01 only applies to corporations.           Id. Because
subsection 2206.001(c)(7)(A) of the Government Code excepts only the operations of a common
carrier that is subject to article 2.01 of the Business Corporation Act, only a common carrier that is
a corporation qualifies for the exception in subsection 2206.001(c)(7)(A). See TEX. GOV’TCODE
ANN. 5 2206,001(c)(7)(A) (Vernon Supp. 2006).

        Subsection 2206,001(c)(7)(B) of the Government Code provides an exception for the
operations of an “energy transporter” as that term is defined in the Utilities Code. See id. 5 2206.001
(c)(7)(B). Section 186.051 of the Utilities Code defines an “energy transporter” as “a person who
gathers or transports oil, gas, or oil and gas products by pipeline.” TEX. UTIL. CODE ANN.
§ 186.051(3) (Vernon Supp. 2006). Under the Code Construction Act, the word “person” is
generally to be construed as including a “corporation, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership, association, and any other legal
entity.” TEX. GOV’TCODEANN. 5 3 11.005(2) (Vernon 2005). Consequently, an entity’s form of
business organization does not determine whether it is an “energy transporter” as defined in
section 186.05 1 of the Utilities Code, and a common carrier that meets that definition has the
limited eminent domain authority specified under section 186.054. See TEX. UT&. CODE ANN.
5s 186.051(3), ,054 (Vernon Supp. 2006). And because an entity’s form of business organization
does not determine whether it is an “energy transporter” under the Utilities Code, it also does not
determine whether the entity’s operations qualify for the exception in subsection2206,001(c)(7)(B).
See TEX. GOV’TCODEANN. 5 2206.001(c)(7)(B) (V emon Supp. 2006). Whether a pipeline entity



        ‘Thesamerequirementwasbroughtforwardin the newBusinessOrganizations     Code. SeeTEX.BUS.ORG.
CODE ANN.52.007(VernonSupp.2006).Thenewcodehasa largelyprospectiveapplicationanda mandatoryeffective
datefor existingentitiesof JanuaryI, 2010. See id. $5401.001-,006.SeeActof May 13,2003,78thLeg.,R.S.,ch.
1X2,2003Tex.Gen.Laws267,3 14.
The Honorable Frank J. Corte Jr. - Page 8           (GA-0517)




qualifies for an exception under either subsection (c)(7)(A) or (c)(7)(B) will depend on the entity’s
specific circumstances, likely involving mixed questions of law and fact. Cf Vardeman Y.Mustang
Pipeline Co., 5 1 S.W.3d 308,3 11 (Tex. App.-Tyler    2001, pet. denied) (determining that a pipeline
company that transported petroleum products for hire and had subjected itself to the authority of the
Railroad Commission was a common carrier with eminent domain authority under chapter 111 of
the Natural Resources Code).
The Honorable Frank J. Carte Jr. - Page 9          (GA-0517)




                                      SUMMARY

                      Under section 552.0037 of the Public Information Act (the
              “PIA”), an entity that has eminent domain powers but is not a
              governmental body is generally subject to the PIA in the same manner
              as a governmental body with respect to certain information. An entity
              described in section 552.0037 is authorized to establish and follow
              record retention policies that are consistent with applicable law. The
              PIA’s provisions for the assessment of litigation costs and attorney
              fees generally apply with respect to the eminent domain information
              of an entity describedin section 552.0037. It is likely, however, that
              the PIA’s criminal provision prohibiting the denial of access to public
              information cannot be applied constitutionally in the context of
              section 552.0037 information. Section 552.0037 makes information
              subject to the PIA only if the information is related to the taking of
              private property within the State of Texas.

                       A common carrier must be a corporation for its operations to
               qualify for the exception in subsection 2206.001(~)(7)(A) of the
               Government Code. The form of business organization does not
               determine whether the operations of a common carrier qualifies for
               the exception in subsection 2206.001(c)(7)(B) of the Government
               Code.

                                             Very truly yours,




                                                       General of Texas



RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
