                                ATTORNEYGENERAL                     OFTEXAS
                                             GREG       ABBOTT



                                              February 18,2004



Mr. J. Kevin Ward                                   Opinion No. GA-O 149
Executive Administrator
Texas Water Development Board                       Re: Whether an amendment to section 16.012(m) of
P.O. Box 13231                                      the Water Code, which repealed a provision that
1700 North Congress Avenue                          excepted certain water-use surveys from disclosure
Austin, Texas 787 1 l-323 1                         under the Public Information Act, applies to surveys
                                                    obtained by the Texas Water Development Board prior
                                                    to the amendment’s effective date (RQ-0096-GA)

Dear Mr. Ward:

         Recently enacted House Bill 1378 amended section 16.012(m) of the Water Code to repeal
a provision that excepted certain water-use surveys obtained by the Texas Water Development Board
(the “Board”) from disclosure under the Public Information Act. You ask, in essence, whether this
amendment applies to all surveys obtained by the Board under section 16.012(m) or only to surveys
obtained by the Board after the amendment’s June 20,2003 effective date.’

I.      Backeround

         Section 16.012 of the Water Code requires the Board’s executive administrator to “make
studies, investigations, and surveys of the occurrence, quantity, quality, and availability of the
surface water and groundwater of this state and . . . , in cooperation with other entities of the state,
guide the development of a statewide water resource data collection and dissemination network.”
TEX. WATER CODE ANN. 8 16.012(a) (Vernon Supp. 2004).                  In 2001, the Seventy-seventh
Legislature added subsection (m) to section 16.012 to authorize the executive administrator to
“conduct surveys of entities using groundwater and surface water . . . to gather data to be used for
long-term water supply planning.” Act of May 27, 2001, 77th Leg., R.S., ch. 966, 8 2.15, sec.
16.0 12(m), 200 1 Tex. Gen. Laws 199 1,1999 (effective Sept. 1,200 1). Subsection (m) provided in
pertinent part

                 Recipients of the survey shall complete and return the survey to the
                 executive administrator. A person who fails to timely complete and
                 return the survey is not eligible for funding from the board for board



         ‘Letter from Suzanne Schwartz, General Counsel, Texas Water Development   Board, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Aug. 25,2003) (on file with the Opinion Committee)   [hereinafter Request Letter].
Mr. J. Kevin Ward - Page 2                    (GA-0149)




               programs and is ineligible to obtain permits, permit amendments, or
               permit renewals from the commission under Chapter 11. A person
               who fails to complete and return the survey commits an offense that
               is punishable as a Class C misdemeanor.      Surveys obtained by the
               board from nongovernmental         entities are excepted from the
               requirements ofSection 552.021, Government Code, unless otherwise
               directed in writing by the person completing the survey.

Id. (emphasis added).

        In 2003, the Seventy-eighth Legislature adopted House Bill 1378, which amended section
 16.012(m) to authorize the executive administrator to conduct surveys of entities using groundwater
and surface water “for municipal, industrial, power generation, or mining purposes,” thus narrowing
the water uses the Board may survey under this provision. See Act of May 30,2003,78th Leg., R.S.,
ch. 1057,§ 3,2003 Tex. Gen. Laws 3044,3047 (codified as an amendment to TEX. WATER CODE
ANN. 9 16.012(m) (V emon Supp. 2004)). Significantly, House Bill 1378 also deleted the sentence
governing surveys’ disclosure. See id. at 3047. House Bill 1378 became effective on June 20,2003.
See id. 8 11, at 3050.

II.    Analvsis

        In light of this amendment to section 16.012(m) of the Water Code, you ask the following
question:
                 Whether the legislative modification of Section 16.012(m), Texas
                 Water Code, opens to public release only those future surveys
                 obtained from non-governmental entities after June, 2003, or does the
                 legislation have the effect of opening to public release all past surveys
                 obtained from non-governmental        entities, including those surveys
                 obtained during the years in which the subsection (m) exception was
                 in effect?

Request Letter, supra note 1, at 2.

       A.      Statutory Construction

               1.       The statute IYplain meaning

                       The answer to your question first depends upon the amendment’s plain
meaning. Prior to June 20,2003, subsection (m) provided that “[slurveys obtained by the board from
nongovernmental entities are excepted from the requirements of Section 552.02 1, Government Code,
unless otherwise directed in writing by the person completing the survey.” Act of May 27,200 1,
8 2.15,2001 Tex. Gen. Laws at 1999 (amended 2003) (current version at TEX. WATER CODE ANN.
8 16.012(m) (V emon Supp. 2004)). Section 552.021 of the Government Code, a provision of the
Public Information Act, requires governmental bodies to make public information available to the
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public. See TEX. GOV’T CODE ANN. $ 552.021 (Vernon Supp. 2004) (“Public information is
available to the public at a minimum during the normal business hours of the governmental body.“).
Thus, prior to the 2003 amendment, surveys obtained by the Board from nongovernmental      entities
under section 16.012(m) were not subject to disclosure under the Public Information Act, unless
otherwise directed in writing by the person completing the survey.

         House Bill 1378 deleted from section 16.012(m) the sentence excepting nongovernmental
entities’ surveys from disclosure under the Public Information Act. See Act of May 30,2003, 0 3,
2003 Tex. Gen. Laws at 3047 (codified as an amendment to TEX. WATER CODE ANN. 9 16.012(m)
(Vernon Supp. 2004)). As a result, like other public information, these surveys are now subject to
disclosure under the Public Information Act, unless some other exception to disclosure applies. See
TEX. GOV’T CODE ANN. 95 552.021,552.101-.1425          (Vernon 1994 & Supp. 2004) (exceptions to
disclosure).

         The legislature has mandated that the Public Information Act “shall be liberally construed
in favor of granting a request for information.” Id. 0 552.001(b) (Vernon 1994). Consistent with
that directive, this office requires that, to provide a basis for withholding information under the Act,
a confidentiality provision outside the Act must be express and cannot be implied. See Tex. Att’y
Gen. ORD-658 (1998) at 4,ORD-478 (1987) at 2. We presume that the legislature enacted House
Bill 1378 “with complete knowledge of the existing law and with reference to it.” Acker v. Texas
Water Comm ‘n, 790 S.W.2d 299, 301 (Tex. 1990). Had the legislature intended to limit the
amendment’s effect, it would have expressly provided that the amendment does not apply to surveys
obtained by the Board before a certain date or that it applies only to surveys obtained by the Board
after a certain date. It did neither. By contrast, House Bill 1378 added a new confidentiality
provision in section 16.012(n) for field investigations that specifically provides that it applies only
to information collected by the executive administrator after September 1, 2003.2

         By analogy, the Public Information Act applies to all information in the possession of a
governmental body; the date on which a governmental body obtained or created information is
generally irrelevant. As the Supreme Court of Texas noted shortly after the Act’s passage, “it is clear



           2see Act of May 30, 2003, 0 4,2003 Tex. Gen. Laws at 3047-48 (codified as TEX. WATERCODEANN. $
16.012(n) (Vernon Supp. 2004)) (“Ifn ormation collected through field investigations on a landowner’s property by the
executive administrator after September I, 2003, solely for use in the development of groundwater availability models
under Subsection (Z) of this section that reveals site-specific information about such landowner is not subject to Chapter
552, Government Code, and may not be disclosed to any person outside the board if. . . .“) (emphasis added). We
disagree with the suggestion that the confidentiality provision in section 16.0 12(n) coupled with the legislature’s change
to section 16.012(m) to narrow the water uses that the Board may survey indicates that the legislature intended to
preserve the confidentiality of water-use surveys submitted to the Board by nongovernmental        entities prior to House Bill
1378’s effective date. See Brief from C. Robert Heath, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P.
on behalf of the Texas Farm Bureau, to Honorable Greg Abbott, Texas Attorney General, at 4-5 (Oct. 9,2003) (on file
with the Opinion Committee).          Given the general presumption         of openness and section 16.012(n)‘s express
confidentiality provision, the legislature would have plainly and explicitly continued to provide for prior water-use
surveys’ confidentiality in section 16.012(m) had it so intended. Moreover, the legislature decided to treat water-use
surveys and field investigations differently. The fact that field investigations are confidential, and surveys are not, does
not frustrate legislative intent. See id. at 5.
Mr. J. Kevin Ward - Page 4                      (GA-0149)




that the Act is intended to apply to all records kept by governmental bodies, whether acquired before
or after the Act’s effective date. No exception is made for records which were considered
confidential prior to June 14, 1973.” Indus. Found. of the South v. Tex. Indus. Accident Bd., 540
S.W.2d 668, 677 (Tex. 1976); see also Tex. Att’y Gen. ORD-468 (1987) (concluding that Public
Information Act applies to records collected by governmental bodies prior to its effective date, but
that constitutional prohibition against contract impairment precluded its application to information
obtained pursuant to a confidentiality contract).

         Similarly, House Bill 1378 makes no exception for surveys made confidential prior to its
effective date. Thus, by its plain terms, the House Bill 1378 amendment to section 16.012(m)
applies to all water-use surveys obtained by the Board under that provision, not just to those obtained
by the Board after the amendment’s         effective date. Surveys obtained by the Board fi-om
nongovernmental      entities under section 16.012(m) during the period in which that provision
excepted such surveys from disclosure under the Public Information Act are now no longer excepted
from disclosure by operation of that provision. Those surveys are now subject to disclosure under
the Public Information Act, unless some other exception to disclosure applies. See TEX. GOV’T
CODE ANN. $8 552.021, 552.101-.1425 (Vernon 1994 & Supp. 2004) (exceptions to disclosure).


                2.      The Code Construction Act presumption

                          This construction is not inconsistent with the Code Construction Act’s rule
that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.”
TEX. GOV’T CODE ANN. 9 311.022 (Vernon 1998); see also Houston Indep. Sch. Dist. v. Houston
Chronicle Pub1 ‘g Co., 798 S.W.2d 580, 585 (Tex. App.-Houston            [ 1st Dist.] 1990, writ denied)
(applying presumption to statute creating new exception to disclosure under Public Information Act).
The House Bill 1378 amendment governs the Board’s duty to make water-use surveys available in
response to requests for that information under the Public Information Act. The amendment operates
prospectively by changing the Board’s duty with respect to requests for water-use surveys after the
amendment’s effective date. After June 20, 2003, the Board is no longer required to withhold
surveys obtained from nongovernmental entities under section 16.0 12(m). The amendment does not
operate retroactively to change the Board’s duty with respect to requests for water-use surveys made
prior to the amendment’s effective date. Although no Texas case applies the Code Construction Act
presumption to a confidentiality provision’s repeal, state supreme courts in other jurisdictions have
held that a statute that requires the release of records created before the statute’s adoption acts
prospectively.    See State of Hawai ‘i Org. of Police Oficers v. Sot j, of Profl Journalists-Univ. of
Hawai ‘i Chapter, 927 P.2d 386,398 (Haw. 1996); State ex rel. Beacon Journal Pub1 ‘g Co. v. Univ.
of Akron, 4 15 N.E.2d 3 10’3 13 (Ohio 1980) (“The date the records were made is not relevant under
the statute. Since the statute merely deals with record disclosure, not record keeping, only a
prospective duty is imposed upon those maintaining public records.“).

        B.      Constitutional Issues

                It may be argued that this amendment has some retroactive effect because it governs
the disclosure of surveys submitted to the Board prior to its effective date. When nongovernmental
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entities submitted surveys to the Board under the prior version of the statute, they did so believing
that the Board would be prohibited from releasing them to the public. With House Bill 1378’s
enactment, these surveys must now be disclosed under the Public Information Act unless some other
exception applies.

                1.      The statute does not impair vested rights

                          The Texas Constitution states that “[n]o bill of attainder, ex post facto law,
retroactive law, or any law impairing the obligation of contracts, shall be made.” TEX. CONST. art.
I, 8 16. Not all statutes that apply retroactively are constitutionally prohibited. A retroactive statute
violates this prohibition only if, when applied, it takes away or impairs vested rights acquired under
existing law. See Subaru of America v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex.
2002); Exparte Abell, 613 S.W.2d 255, 260 (Tex. 1981); McCain v. Yost, 284 S.W.2d 898, 900
(Tex. 1955).

         A vested right is a property right, which the Constitution protects like any other property.
Middleton v. Tex. Power &Light Co., 185 SW. 556,560 (Tex. 1916). However, “[tlhat no one has
a vested right in the continuance of present laws in relation to a particular subject, is a fundamental
proposition; it is not open to challenge. The laws may be changed by the Legislature so long as they
do not destroy or prevent an adequate enforcement of vested rights. There cannot be a vested right,
or a property right, in a mere rule of law.” Id.

         As one court has noted in the context of the Public Information Act, “[a] ‘vested right’
implies an immediate right or entitlement-it     is not an expectation or a contingency.     ‘When the
authority granting the right has the power and discretion to take that right away, it cannot be said to
be a vested right.’ Engrained in the concept of vested rights is the idea of certainty. When a
lawmaking power can declare that a right does not exist, the right is not ‘fixed or vested.“’ Houston
Indep. Sch. Dist., 798 S.W.2d at 589 (citations omitted) (addressing statute enacting new exception
to disclosure).

         Although we have not located a Texas case addressing the constitutionality of legislation
repealing a confidentiality statute, the Supreme Court of Texas addressed an analogous concern
when it considered the release under the Public Information Act ofworkers compensation claims that
had been submitted to an agency prior to the Act’s effective date pursuant to an agency rule
providing for their confidentiality. See Indus. Found. of the South, 540 S.W.2d at 677. The court
expressly held that information should not be excepted from disclosure “merely because the
individual furnishing such information did so with the expectation that access to the information
would be restricted.” Id. The court determined that “the Legislature has not, by determining that
government information formerly kept confidential should be disclosed, impaired any vested right
of a claimant to the confidentiality of the information.” Id.; see also Doe v. Sundquist, 2 S.W.3d
919, 925 (Term. 1999) (holding that birth parents did not have vested right in confidentiality of
adoption records in part because there “has never been an absolute guarantee or even a reasonable
expectation by the birth parent or any other party that adoption records were permanently sealed”).
Mr. J. Kevin Ward - Page 6                          (GA-0149)




         Based on this court holding, this office concluded that the Public Information Act applies to
all information collected by governmental bodies prior to its effective date, except for information
collected pursuant to an “express contract of confidentiality,” to avoid the constitutional prohibition
against impairment of contracts. See Tex. Att’y Gen. ORD-468 (1987) at 4. Information obtained
“with only an expectation of confidentiality [is] not excepted from public disclosure.” Id.; see also
id. ORD-358 (1983) (concluding that Public Information Act does not create vested rights).
Similarly, this office has also suggested that a person lacks a vested right in the confidentiality of
information he or she did not choose to submit to the governmental entity. See Tex. Att’y Gen. Op.
No. JM-906 (1988) at 8 (concluding that physicians who were the subject of complaints to Board
of Medical Examiners lacked vested right in complaints’ confidentiality because physician “had no
authority to determine whether [complaint] would be submitted to the board”).

         House Bill 1378 does not impair a vested right of a nongovernmental            entity to the
confidentiality of a water-use survey. Nongovernmental     entities that submitted water-use surveys
to the Board as required by the prior version of section 16.012(m) had no vested right in the
provision prohibiting the surveys’ disclosure under the Public Information Act, which, as a mere rule
of law, created only an expectation of confidentiality. See Indus. Found. of the South, 540 S.W.2d
at 677; Middleton, 185 S.W. at 560. Furthermore, under section 16.012(m) as enacted in 2001,
failure to complete and return a survey was punishable as a Class C misdemeanor. See TEX. WATER
CODE 5 16.012(m), as added by Act of May 27,2001, 9 2.15,2001 Tex. Gen. Laws at 1999. In
addition, a person who failed to timely return a survey was not eligible for funding from the Board
or to obtain permits, permit amendments, or permit renewals from the Texas Cornmission on
Environmental Qualitf under chapter 11 of the Water Code. See id. Nongovernmental             entities,
which had no choice but to submit the surveys and did not submit surveys on the condition that the
Board would withhold them from disclosure, had no vested right in the surveys’ confidentiality. See
Tex. Att’y Gen. Op. No. JM-906 (1988).

                 2.       The statute is valid even fit has some retroactive effect

                         Finally, “‘[mlere retroactivity is not sufficient to invalidate a statute.’ A valid
exercise of the police power by the Legislature to safeguard the public safety and welfare can prevail
over a finding that a law is unconstitutionally retroactive.” Barshop v. Medina County Underground
Water Conservation Dist., 925 S.W.2d 618’633-34 (Tex. 1996) (citation omitted). A bill analysis
for House Bill 1378 explains the purpose for repealing the section 16.012(m) confidentiality
provision:

                 The original intent of Texas Water Code 16.012(m) was to provide
                 more complete and accurate water use data for the state and regional
                 water planning process. However, the provisions exempting release
                 of the water use surveys submitted by non-governmental entities have



         ‘Effective September 1,2002, the name of the Texas Natural Resource Conservation Commission changed to
the Texas Commission on Environmental Quality. See Act of May 28,2001, 77th Leg., R.S., ch. 965, $ 18.0l(a)( 1),
2001 Tex. Gen. Laws 1933, 1985; “TNRCC is Now the TCEQ,” at http://www.tceq.state.tx.us/name~change.html.
Mr. J. Kevin Ward - Page 7                               (GA-0149)




                   caused significant obstructions to the process it was meant to
                   improve. This is especially the case since specific data provided in
                   these water use surveys cannot be released to the Regional Water
                   Planning Groups, their consultants, or other interested parties. The
                   withholding of detailed information that was once freely available
                   makes the process of verifying and evaluating water use and water
                   demands on a regional and local level extremely difficult.

HOUSE COMM. ON NATURAL RESOURCES, BILL ANALYSIS,               Tex. H.B. 1378,78th Leg., R.S. (2003).
To the extent House Bill 1378 has some retroactive effect, it is a constitutional exercise of the
legislature’s police power to safeguard public safety and welfare. See Barshop, 925 S.W.2d at 634
(holding that a statute’s retroactive effect did not render it unconstitutional based on legislative
findings that statute was “‘required for the effective control of the [aquifer] to protect terrestrial and
aquatic life, domestic and municipal water supplies, the operation of existing industries, and the
economic development of the state”‘) (citation omitted).4




          4See also Tex. Att’y Gen. Op. No. JC-05 15 (2002) at 10 (concluding that it was “unnecessary to decide whether
a regulated entity has a vested right . . . to have its compliance history determined according to the law in effect when
the relevant events took place” because, even if such a right exists, “the compliance history rule applies to programs
designed to protect the public health, safety, and welfare”).
Mr. J. Kevin Ward - Page 8                    (GA-0149)




                                       SUMMARY

                        Recently enacted House Bill 1378 amended section 16.012(m)
               of the Water Code to repeal a provision that excepted certain water-
               use surveys obtained by the Texas Water Development Board from
               disclosure under the Public Information Act. This amendment
               applies to all surveys obtained by the Board under section 16.0 12(m),
               including surveys obtained by the Board prior to the amendment’s
               effective date. These surveys must now be disclosed under the Public
               Information Act unless some other exception to disclosure applies.
               To the extent this amendment has some retroactive effect, it does not
               violate article I, section 16 of the Texas Constitution.

                                              Very truly yours,




                                              Attomeseneral       of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
