                                      The Attorney        General of Texas
                                                    December 30. 1983
    JIM MATTOX
    Attorney General            ”



    Supreme Court Building           Mr; Robert J. Provan                   Opinion No. JM-116
    P. 0. BOX 12546                  General Counsel
    Austin, TX. 76711. 2546          Stephen F. Austin State University     Re:   Whether the Gulf Star
    512/475-2501
                                     Nacogdoches, Texas   75962             Conference is subject to the
    Telex 9101674-1367
    Telecopier   5121475-0266                                               Open Meetings and Open Records
                                                                            Acts
    714 Jackson, Suite 700
                                     Dear Mr. Provan:
    Dallas, TX. 75202.4508
    2141742.6944
                                          You have informed us that Stephen F. Austin State University and
                                     five other universities are "engaged in the organization and
    4024 Alberta   Ave., Suite 160   establishment' of a new intercollegiate athletic conference to be
    El Paso, TX. 76005-2793          called the Gulf Star Conference." The proposed constitution of this
    9151533.3464
                                     conference states that one of tbe two' general purposes of the
-                                    conference is:
      Jl Texas, Suite 700
    Hwsto”,   TX. 77002-3111                  [~t]o form and maintain among universities of
    713223.5686                               approximately the same size and         comparable
                                              ,educatidnal programs an athletic conference, the
    806 Broadway, Suite 312
                                              members of which shall incorporate intercollegiate
    Lubbock, TX. 79401-3479                   athletics within their respective educational
    6061747-5236                              programs and shall place and maintain such
                                              athletics under the same administrative and
                                              academic'control as that which obtains in their
    4309 N. Tenth, Suite B
    McAllen, TX. 76501-1685                   other educational programs.
    512/662-4547
                                     Fou:,'haveasked whether this conference will be subject to the Open
                                     Meetings Act, article 6252-17. V.T.C.S., and to the Open Records Act,
    200 Main Plaza, Suite 400
    San A”t,,“lq TX. 762052797
                                     article 6252-17a. V.T.C.S.
    51212254191
                                          Both acts apply to "governmental bodies." Section l(c) of the
                                     open Meetings Act defines a "governmental body" as:
     An Equal OpportunityI
     Alflrmatlve Action Employer
                                               any board. commission, department, committee, or
                                               age~ncy within the executive or       legi@.ative
                                               department of the state, which is under' the
                                               direction of one or more elected or appointed
                                               members; and every Commissioners Court and city
                                               council in the state, and every deliberative body
                                               having rule-making or quasi-judicial power and
                                               classified as a department, agency, or political
                                               subdivision of a county or city; and the board of
                                               trustees of every school district, and every



                                                           p. 489
Mr. Robert J. Provan - Page 2 (JM-116)




         county board of school trustees and county board
         of education; and the governing board of every
         special district heretofore or hereafter created
         by law.

Section 2(l) of the Open Records Act defines a "governmental body" as:

            (A) any     board,   comtaission, department,
         committee. institution,  agency, or office within
         the executive or legislative branch of the state
         government, or which is created by either the
         executive or legislative branch of the state
         government, and which is under the direction of
         one or more elected or appointed members;

             (B) the commissioners court of each county and
          the city couucil or governing body of each city in
          the state;

             (C) every deliberative body having rulemaking
          or quasi-judicial power and classified as a
          department, agency, ox political subdivision of a
          county or city;

             (D) the board of trustees of every school
          district, and every county board of school
          trustees and county board of education;

             (E) the   governing   board   of   every   special
          district;

             (P) the part, section. or portion of every
          organization, corporation, comisslon. committee,
          institution, or agency which is supported in whole
          or in part by public funds, or which expends
          public funds. Public funds as used herein shall
          mean funds of the State of Texas or any
          governmental subdivision thereof;

             (G) the Judiciary is not included within this
          definition.

     The  conference will be a voluntary association of SiX
iustitutions, three of which are in Louisiana. It is therefore not
"within the executive or legislative department of the state." Thus,
the only provision in the definition of "governmental body" contained
in the Open Meetings Act that could conceivably apply to the
conference is inapplicable. We therefore conclude that the proposed
conference will not be subject to this act.                              ?



                              p. 490
i



    Mr. Robert J. Provan - Page 3 (.D+116)




         On the other hand, we conclude that the conference will be
    subject to the Open Records Act. You have informed us that each
    member university will pay an initial membership fee of $20,000 and
    then will pay $10,000 to the conference each year thereafter. Under
    section 2(l) of the Open Records Act, "governmental body" includes
    "the part, section, or portion of every organization . . . which is
    supported in whole or in part by public funds, or which expends public
    funds."   Two prior Open Records Decisions have construed this
    provision. Open Records Decision No. 228 (1979) concluded that the
    North Texas Commission, "a private, nonprofit corporation chartered
    for the purpose of promoting the interests of the Dallas-Fort Worth
    metropolitan area," is a "governmental body" under this provision.
    The decision stated as follows:

             Under   a  sample contract submitted by        the
             Commission, the City of Fort Worth was obligated
             to pay the Commission $80,000 a year for three
             years. The Cormnission also receives funds from
             several other units of government . . . [W]e have
             examined the contract in question here, and we do
             not believe it imposes a specific and definite
             obligation on the     Commission to provide a
             measurable amount of service in exchange for s
             certain amount of money as would be expected in a
             typical arms-length contract for services between
             a vendor and purchaser.        Specifically, one
             provision of the contract purports to obligate the
             Commission to:

                    (e) Continue    its    current   successful
                 programs and implement such new and innovative
                 programs as will      further its    corporate
                 objectives and common City's interests and
                 activities.

             Even if all other parts of the contract were found
             to represent a strictly arms-length transaction,
             we believe that this provision places the various
             governmental bodies which have entered into the
             contract in the position of 'supporting' the
             operation of the Commission with public funds
             within the meaning of section Z(l)(F) . . . . We
             are holding . . . that these records of the North
             Texas Commission are public under the Open Records
             Act since it receives funds from serveral public
             entities and has entered into contracts with these
             entities which result in at least a portion of the
             public funds paid to the Commission being used for
             the general support of the Connnissionrather than
             being attributable to specific payment for
             specific measurable services.



                                  p. 491
Mr. Robert J. Provan - Page 4       (JR-116)




Relying upon Open Records Decision No. 228, Open Records Decision No.
302 (1982) held that the Brasos County Industrial Foundation is also a
"governmental body." This decision held that the Foundation was
"similar in many respects to the North Texas Connnission." In 1980, it
received an unrestricted grant of $48,000 from the city of Bryan. The
decision stated that:

          Open Records Decision No. 228 (1979) held that the
          phrase 'supported in whole or in part by public
          funds' refers to any agreement between a political
          subdivision and any 'organisation, corporation,
          cowwission, cosimittee, institution, or agency'
          which transfers public funds from the political
          subdivision to such entity, but fails to '[impose]
          a specific and definite obligation on the [entity]
          to provide a measurable amount of service in
          exchange for a certain amount of money as would be
          expected in a typical arms-length contract for
          services between a vendor and purchaser.' This
          agreement failed to provide adequate consideration
          flowing to the political subdivision, and the
          public funds passing to such entity. although in
          the possession of private, hands, retained their
          character as public funds.

     We believe that the present situation is virtually identical to
the situations with which these two decisions dealt. In our view, the
member universities must be deemed to be in the position of
"supporting" the athletic conference with public funds, because the
funds that they will pay to the conference will be used for its
"general support . . . rather than being attributable to specific
payment for specific measurable services." Open Records Decision No.
228 (1979). Because the conference will be "supported . . . in part
by public funds," it will be a "governmental body" subject to the Open
Records Act.

                                SUMMARY

             The proposed Gulf Star Conference will not be
          subject to the Open Meetings Act, article 6252-17,
          V.T.C.S.. but will be subject to the Open Records
          Act, article 6252-17a. V.T.C.S. I




                                          Attorney General of Texas '




                                    p. 492
“.




     Mr. Robert J. Provan - Page 5   (~~-116)




     TOM GREEN
     First Assistant Attorney General

     DAVID R. RICHARDS
     Executive Assistant Attorney General

     Prepared by Jon Bible
     Assistant Attorney General

     APPROVED:
     OPINION COMMITTEE

     Rick Gilpin, Chairman
     Jon Bible
     Colin Carl
     Susan Garrison
     Jim Moellinger
     Nancy Sutton




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