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Office of the Attorney General - State of Texas John Cornyn |
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May 10, 2001 Mr. Stephen L. Mitchell
OR2001-1923 Dear Mr. Mitchell: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 147018. The Texas Western Municipal Gas Corporation (the "gas company"), which you represent, received a request for a print out of all accounts for the month of January. You ask whether the gas company is a governmental body subject to the Act. The Act requires governmental bodies to make public, with certain exceptions, information in their possession. The Act only applies to entities within the definition of "governmental body" found in section 552.003 of the Government Code. That definition includes several entities, but, since the others are clearly inapplicable, we need only address the following two: (iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality; (x) the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds[.] Gov't Code § 552.003(1)(A)(iv), (x). You explain that: The Gas Company is a non-profit corporation formed in the 1960's. The company transports natural gas 70+ miles to serve the citizens (residential users, commercial users and agricultural users) in and around the Town of Van Horn in Culberson County, Texas. The Company is managed by a board of directors who are appointed by the Town Council of the Town of Van Horn. The Gas Company operates on its own revenues, is responsible for its own budget, and does not receive any operational funds, grants or other monies from the Town of Van Horn. The Gas Company sells natural gas to the Town of Van Horn as it does to numerous other business, governmental and residential customers in the city. When the outstanding bonds of the Gas Company are retired (paid-off), in approximately the year 2010, the Company will be owned and operated purely as a municipal utility, as an entity or instrumentality of the Town of Van Horn. In addition, Ms. Rebecca Brewster, the city secretary of the Town of Van Horn, by sworn affidavit, states that [T]he TOWN OF VAN HORN has never given any money to fund the operations of the gas company. The gas company is a Texas corporation and its operations are completely independent of the TOWN OF VAN HORN. The Gas Company is not managed, controlled, or operated, in any facet, by the TOWN OF VAN HORN. At present, and at all times within the past twenty (20) or more years, the only relationship between the TOWN OF VAN HORN and the Gas Company is that the Town Council appoints the board members who serve on the Gas Company. I believe this is the case because of a "Bond Indenture" or bonded indebtedness of the Gas Company dating back to approximately 1965. The TOWN OF VAN HORN does not receive regular operating reports from, does not monitor, and does not control or oversee, any operations of the Gas Company, financial or otherwise. The Gas Company is not a department, agency, or political subdivision or the TOWN OF VAN HORN and, as respects the TOWN OF VAN HORN, the Gas Company is not a deliberative body that has rulemaking or quasi-judicial power. The TOWN OF VAN HORN does not monitor or control the operating budget of the Gas Company and does not fund or provide monies for any aspect of the operations fo the Gas Company As for subsection (iv) of the governmental body definition, we find that you have provided no information to allow us to conclude that the gas company is a deliberative body that has rulemaking or quasi-judicial power or that the gas company is a department, agency, or political subdivision of the Town of Van Horn. Furthermore, in regard to subsection (x), we have no information that the gas company spends or is supported in whole or in part by funds from the City of Van Horn or from any other public source. You do not suggest that funds of the Town of Van Horn or the State of Texas or any other governmental body are used to secure or pay off the bonds. See Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353 (Tex. App.-Waco 1998, pet. denied). In fact, you state that "the only funds the gas company receives are those derived from sales of natural gas to its customers." Accordingly, based on your representations, we find that the gas company is not subject to the Act as it is not within the Act's definition of a governmental body. See Gov't Code § 552.003. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Kay Hastings
KH/LKM/seg Ref: ID# 147018 Encl. Submitted documents cc: Ms. Virginia Tavares
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |