                           QBffice    of the !Zlttarnep       General
                                       &ate of flhxas
DAN MORALES                             December 6, 1994
 .ATTORNEY
       GENERAL
     Honorable Fred Hill                            Opinion No. DM-309
     Chair
     Committee on Urban Alfairs                     Re: Whether the members of the City of
     Texas House of Representatives                 Dallas Planning and Zoning Commission are
     Austin, Texas 78768-2910                       “local public officials” under chapter 171 of
                                                    the Local Government Code and related
                                                    questions (RQ-689)

     Deu Representative I-Jill:

             You ask whether members of the City of Dallas Planning and Zoning Commission
     (the “commission”) are “local public officials” under chapter 171 of the Local Government
     Code. Specifically, you ask if the members are “local public officials” for purposes of
     chapter 171
               when they make recommendations on proposed changes to zoning
               regulations or boundaries in accordance with Section 211.007(b) of
               the [Local Government] Code in light of the fact that Dallas has
               adopted an ordinance in conjunction with Section 211.006(f) of the
               Local Government Code that requires an at&native vote of at least
               three-fourths of the entire City Council to overrule a
               recommendation of denial by the commission.

            Section 211.007 of the Local Government Code provides in pertinent part:

                     (a) To exercise the powers authorized by this subchapter, the
               governing body of a home-rule municipality shall, and the governing
               body of a general-law municipality may, appoint a zoning
               commission. The commission shall recommend boundaries for the
               original zoning districts and appropriate zoning regulations for each
               district. If the municipality has a municipal planning commission at
               the time of implementation of this subchapter, the governing body
               may appoint that commission to serve as the zoning commission.

                     (b) The zoning commission shall make a preliminary report and
               hold public hearings on that report before submitting a tinal report to
               the governing body. The governing body may not hold a public
               hearing until it receives the final report of the zoning commission
               unless the governing body by ordinance provides that a public
               hearing is to be held, after the notice required by Section 211.006(a),
               jointly with a public hearing required to be held by the zoning



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Honorable Fred Hill - Page 2          (DM-309)




          commission. In either cam, the governing body may not take action
          on the matter until it receives the fhtal report of the zoning
          commission.

Local Gov’t Code 8 211.007. Section 211.006(f) provides as follows:

                (t) The governing body by ordinance may provide that the
           aflirmative vote of at least -fourths of all its members is required
           to overrule a recommendation of the municipality’s zoning
           commission that a proposed change to a regulation or boundary be
           denied.

Id. 5 211.006.

        Chapter 171 of the Local Government Code governs congicts of interest on the
part of %cal public officials.” “Local public 05cial” is detined as follows:
                 “Local public official” means a member of the governing body or
           another officer, whether elected, appointed, paid, or unpaid, of any
           district (including a school district), county, municipality, precinct,
           central appraisal district, transit authority or district, or other local
           governmental entity who exercises responsibilities beyond those that
           are advisory in nature.

Id. 9 171.001(l).   In light of the information you have provided, it is clear that a member
of the commission exercises responsibilities beyond those that are advisory in nature.
Thus, we conclude that a commission member is a “local public official” under the
foregoing definition and therefore subject to the requirements of chapter 171. We further
note that a commission member is subject to chapter 171 not just when he or she makes a
recommendation specified in section 211.006(t). Rather, all of his or her acts as a
commission member are subject to chapter 171.

        Next you ask, “Does the term ‘involving the business entity’ used in Section
171.004(a) refer only to the business entity whose request is the subject matter of the vote
or decision, or does it also include a business entity that is paid to represent the entity
whose request is the subject matter of the vote or decision?” In a related question, you
ask, “Does the term ‘involving the business entity’ used in Section 171.004(a) include a
business entity that is paid to represent a person or group opposing the business entity
whose request is the subject matter of the vote or decision?” We conclude that the term
“business entity” includes any business entity that represents a party with an interest in a
matter before the commission for the following reasons.

        Section 171.004 provides in pertinent part:
                (a) If a local public official has a substantial interest in a
           business entity or in real property, the o5cial shall file, before a vote
           or decision on any matter involving the business entity or the real


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Honorable Fred Hill - Page 3             (DM-309)




           property, an affidavit stating the nature and extent of the interest and
           shah abstain from further participation in the matter if:

                      (1) if in the case of a substantial interest in a business entity
                 the action on the matter will have a special economic etfect on
                 the business entity that is distinguishable from the etfect on the
                 public; or

                      (2) in the case of a substantial interest in real property, it is
                 reasonably foreseeable that an action on the matter will have a
                 sped ‘economic e5xt           on the value of the property,
                 distinguishable from its effect on the public.



                 (c) If a local public official is required to file and does file an
            affidavit under Subsection (a), the o5cial is not required to abstain
            from tinther participation in the matter requiring the affidavit if a
            majority of the members of the governmental entity of which the
            o5cial is a member is composed of persons who are likewise
            required to file and who do file affidavits of similar interests on the
            same official action.

Section 171.004(a)(l) requires a commission member to 5e an a5davit if he or she has a
substantial interest in a business entity’ and the action on the matter will have a special
economic effect on the business entity. Id. 5 171.004(a)(l). Section 171.004(a)(l) is
broadly written and does not require that the business entity have a direct interest in the
matter. It only requires that the action on the matter have a special economic etfect on the
business entity. Furthermore, chapter 171 does not confme the term ‘business entity” to
only those business entities with a direct interest in an action. See id. 8 171.001(2)
(“‘Business entity’ means a sole proprietorship, partnership, firm, corporation, holding
company, joint-stock company, receivership, trust, or any other entity recognized by
law.“). We believe that section 171.004(a)(l) extends to an action of the commission that
will have a special economic effect on a business entity that represents an entity or person
with an interest in a matter before the commission. Whether or not a particular action will
have a special economic effect on a business entity that represents an entity or person with
an interest in a matter before the commission is a question of fact and is therefore beyond
the purview of the opinion process. See Attorney General Opinion DM-279 (1993) at 7.
A local public official commits a criminal offense if he or she knowingly fails to file an
affidavit stating the nature and extent of his or her substantial interest in a business entity


         ‘A person has a ‘substantial interest in a business entity” if(i) the person owns ten percent or
more of the voting stock or shares of the business entity or owns either ten percent or more or SS,OOOor
more of the fair market value of the business entity or (ii) fimds received by the person from the business
entity exceed ten percent of the person’s gross income for the previous year. See Local God Code
5 171.002(a).




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    Honorable Fred Hill - Page 4         (TIM-309)




    on which a vote or decision will have a special economic effect, as required by section
    171.004. SeeLocal Gov’t Code 4 171.003.

                                       SUMMARY

                   A member of the City of Dallas Phuming and Zoning
              Commission (the “wmmission”) is a “local public o5cial” subject to
              the requimments of chapter 171 of the Local Government Code.
              Section 171.004(a)(J) extends to an action of the wmmtssr   ’ ‘onthat
              will have a special economic etTect on a business entity that
              represents an entity or person with an interest in a matter before the
              wnunission.
.




                                                        DAN MORALES
                                                        Attorney General of Texas

    JORGE VEGA
    First Assistant Attorney General

    DREW T. DURHAM
    Deputy Attorney General for Criminal Justice

    JAVJER AGUJLAR
    Special Assistant Attorney General

    RENEA HICKS
    State Solicitor

    SARAH J. SHJRLEY
    Chair, Opinion Committee

    Prepared by Mary R. Crouter
    Assistant Attorney General




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