                       The Attorney             General of Texas
                                           my    1,    1980
MARK WHITE
Attorney General


                   Honorable WilhelminaDelco                  Opinion No. Mw-17 7
                   Committee on Higher Education
                   P. 0. Box 2910                             Re: Whether       various    state
                   Austin, Texas 78769                        statutes apply to Higher Education
                                                              Authorities created under chapter
                                                              53 of the Texas Education Code.

                   Dear Representative Delco:

                           You ask whether various state statutes apply to Higher Education
                   Authorities created under chapter 53 of the Texas Education Code. A
                   Higher Education Authority is created by the governing body of a city or
                   cities by ordinance pursuant to section 53.R of the Education Code. An
                   authority is a “body politic and corporate? Educ. Code S 53.13. It is also
                   referred   to as ‘a vmunicipal corporation.” Educ. Code S 53.47(d). It
                   comprises cnly the territory included within the boundaries of the city or
                   cities creating it. Educ. Code’ S 53.12.’ Nonetheless, it may acquire
                   educational facilities outside the city limits. Educ. Code S 53.33. It may
                   also purchase student loan notes executed by students attending school
                   anywhere in Texas. Educ. Code S 53.47(b).

                          You first ask whether Higher Education Authorities are subject to
                   article 6252-9b, V.T.C.B., which establishes standardsof conduct for persons
                   employed by a state agency, the courts, or the legislature. Sec. 2(7).
                   Section 3 of this statute requires officers and executive heads of state
                   agencies to file financial disclosure statements. A state agency is defined
                   as follows:

                                (A) any department, commission, board, office, or
                              other agency that:
                                (i) is in the executive branch of state government;
                                (ii) has authority that is not limited to a
                              geographical portion of the state; and
                                (iii) was created by the constitution or a statute of
                              this state; or
                                (B) a university system or an institution of higher
                              education as defined in Section 61.003, Texas
                              Education Code, as amended, other than a public
                              junior college.




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Honorable WilhelminaDelco        -   Page Two   (W-177)



V.T.C.S. art. 6252-9b, S 2(E).

       In our opinion, a Higher Education Authority is not a state sgency within this
definition. A body politic and corporate is not an instrumentallty of the state, but a local
public corporation like a municipal corporation. Hatcher v. State, 81 S.W.2d 499 (Tex.
1935). A Higher Education Authority, created by a city, is an instrumentality of local
government and is not in the executive branch of state government. See Attorney General
Opinion M-538 (1969). It is not an institution of higher education~defined        in section
6LOO3,of the Texas Education Code. Therefore, a Higher Education Authority ls not
stiject to article 6252-94 V.T.C.S., relating to fhtancial disclosure.

      You next ask whether Higher Education Authorities are subject to article 6252-llb,
V.T.C.S., which requires state agencies to post listings of job opportunities. This statute
defines “state agency” in the same way as does article 6252-94 V.T.C.S. Thus, we
conclude that a Higher Education Authority is not a state agency within its definition and
not subject to its requirements.

     You next ask whether a Higher Education Authority ls subject to article 6252-l3a,
V.T.C.S., which requires the publication of state agency ruIes. nAgencywis defined as

           any state board, eommlssion, department, or officer having
           statewicls jurisdiction, other than an agency wholly financed by
           federal funds, the legislature, the courts, the Industrial Accident
           Board, and institutions of higher education, ‘that makes rules or
           determines contested cases..

V.T.C.S. art., 6252-134 S 3(l). We cb not believe the Higher ,Educatlon Authority is a
“state board, commission, [or] department”for the same reasons relied upon in answer to
your first two questions.

      You next inquire whether the Open Meetings Act, V.T.C.S. art. 6252-17, applies to
Higher Education Authorities. The Open Meetings Act applies to meetings of a quorum of
members of a governmental body. Sec. L “Governmental body” ls defined ln pertinent
part 85 follows:

           every deliberative body having rule-making or quasi-judicial power
           and classified as a department, agency, or political subdivision of a
           county or city. . . .

V.T.C.S. art. 6252-17, S I(c). A Higher Education Authority has authority to make, amend,
and repeal its bylaws. Educ. Code S 53.13. We believe this constitutes rule-making power
within the above definition. It is therefore a governmental body, and meetings of its
directors are subject to the Open Meetings Act.

      You ask whether a Higher Education Authority is subject to the Open Records Act,
V.T.C.S. art. 6252-17a. This statute applies to records held by a “governmental body”
defined in pertinent part as follows:
Honorable WllhelmlnaDelco      -   Page Three    (~~-177)



              (P) the part, section, or portion of every crganixation,
           corporation, commission, 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 funda of the
           State of Texas or any governmental subdivisionthereof;

V.T.C.S. art. 6252-Da, S 2. A Higher Education Authority is supported by public funds
acquired through the issuance of revenue bonds. Educ. Code SS 53.34, 53.47. Therefore,
it ls a governmental body subject to the Open Records Act.

     You next inquire about article 6252-llc, V.T.C.S., relating to the use of private
consultants by state agencies. “State agency” is defined as

           any state department, commission, board, office, institution,
           facility, or other agency, including a university system or an
           institution of higher education as deflned in Section 6LOO3,Texas
           Education Code, as amended, other than a public junior college.

V.T.C.S. art. 6252-llc, S l(3). This definition tracks in pertinent part the definition of
“state agency” in article 6252-13a, V.T.C.S., which we said did not include Higher
Education Authorities.

     You next inquire whether article 6Olb, V.T.C.S., the State Purchasing and General
Services Act, applies to Higher Education Authorities. This statute applies to state
agencies &fined to include

             (A) any department, commission, board, office, or other agency
           in the executive branch of state government created by the
           constitution or a statute of this state;
             (B) the Supreme Court of Texas, the Court of Criminal Appeals
           of Texas, a court of civil appeals, or the Texas Civil Judicial
           Council; or
             (Cl a university system or an institution of higher education as
           defined in Section 61.003,Texas Education Code, as amended, other
           than a public junior college.

V.T.C.S. art. 601b, S LO2(2). A Higher Education Authority is not an agency in the
executive branch of state government; consequently it is not subject to the State
Purchasing and General Services Act.

       You next ask whether board members are required to take statutory or
constitutional oaths of office.  No statute requires an oath of directors of a Higher
Education Authority. Article XVI, section 1 of the Texas Constitution requires appointed
officers to take an oath. Section 53&(b) of the Education Code refers to the position of
the directors as an office. Moreover, we believe the position of a director fills the legal
criteria of an office.    The key factor which distinguishes a public officer from an




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Honorable WilhelmlnaDelco     -    Page FOUC     (NW-1771



employee ls that some sovereign function of government is confwwd upon him to be
exercised for the benefit of the public largely independent of the control of others.
Aldlna Independent School Dist. v. Standle& 280 S.W.2d 578 (Tex. 1955). The directors
exercise governmental authority in authorming the issuance of revenue bonds and the
expenditure of bond proceeds. Educ. Code SS 53.34, 53.35, 53.47. In our opinion, they are
officers required to take the constitutional oath for appointed officers.

                                     SUMMARY

           Higher Education Authorities organized pursuant to chapter 53 of
           the Education Coda are subject to articles 6252-17, V.T.C.S., and
           6252-174 V.T.C.S. They are not sajact to articles 601b, V.T.C.S.,
           6252-9b,    V.T.C.S., 6252-l.@, V.T.C.S., 6252-llc, V.T.C.S., or
           6252-134 V.T.C.S. The directors of a Higher Education Authority
           are officers required to take the constitutional oath of office.




                                               Attorney General of Texas

JOHN W. FAINTER,JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by SusanGarrison
Assistant Attorney General

APPROVED:
OPINIONCOMMlTl’EE

C. Robert Heath, Chairman
SusanGarrison
Rick Gilpin
Eva Loutxanhiier
Bruce Youngblood




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