adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~`~~~~~~~~~~~~~
n Nueces County and throughout South Texas, Mary Leyendecker and Allen Fiszman organized so well. Thanks to county chairs who helped. And, as with good Democrats throughout the country, even folks with differences set them aside to help. The names of people who don't ordinarily come together came together for this campaign, and I thank each and every one of you.
Special thanks to Ami Sanchez and Garreth Broesche for undertaking event and finance efforts on an increasingly large scale. And, to Belinda Castro and Linda George Smith for extraordinary volunteer work.
In Nacogdoches County, thanks to Brenda Willett whose wise counsel and hard work got out the flyers we needed.
In North Texas, we've had so many people to thank, and wanted to make sure we include Paul and Carolyn Hood in Plano, Donna Turman, Trudy Hess, Tom Marking, Liz Wally, Grace Morrison, Jackie Fleschman, Terry Taylor, and Larry Shulman.
Thank you to Deborah Landis for the hundreds of calls, making a huge difference into East Texas, and the same for wonderful folks too numerous to name, but including Louise Chandler, and Sharon McMahon and Resa Harrison and Diane Podorsky and Janie Beltran and Alison Dieter and Anne Sigler of Huntsville and Barbara and Calvin Simper. And of course to Shirley Walston for her Smith County calls.
I will be mentioning my friends in Harris County, but the huge percentage improvements in Harris didn't just happen and the thousands of people who found their yet-changed-again polling places across the state thanks to hard work are to be congratulated.
Thanks to BAND and John Cobarruvias for poll dressing and GOTV, once again. The NASA funding cuts have hit the community and our scientific future. The hurricane damage along the Texas Coast and in East Texas doesn't receive the attention or the dollars that other states have received, yet those Texas communities which have been devastated know the struggles caused by federal inattention and incompetence. The voters in East Texas who got to the polls are very much appreciated. Recent visits to East Texas still show the story of devasation and loss, not limited to the disasters other states suffered. The difference: other states' leaders fought hard and successfully for their federal dollars, while Texas received a pittance. It's a pattern which has left Texas ranked 47th in bacon brought home by our state-wide elected officials who wrongly claim success and popularity.
BAR
Permalink
April 13, Note from the BlackDems
Congratulations! We are proud to have supported you Barbara and we plan to continue to do so in the general election as well. You earned your victory as well as the respect of our membership with your sincerity and competency.
James E. Robertson, Jr.
Permalink
April 11 Election Day Blog
I won the runoff with 60 percent of the vote, and the papers now voice a recognition of the potential strength of the grass roots. Thousands of indivduals were responsible for this decisive statewide win. It's early on April 12. I'm getting ready to head out to Austin after my morning run for meetings and a news conference for the statewide Democratic candidates. We are enjoying so many well-wishers' e mails and status reports. Mary Leyendecker organized Nueces County and worked tirelessly, and reports from Corpus Christi, where grass roots efforts turned around the primary results.
"Nueces Co. Courthouse was filled with supporters for the local races. Many people shook my hand - pals from the campaign trail - they voted for you and are so happy for your success statewide and in Nueces Co. Mike Creacy, his wife, their son William and numerous others are due a world of thanks for their support, expertise, excellent ideas, and hands-on efforts... never mind that today was election day, and another might have said enough's enough, Mike and his team copied and distributed stacks of campaign flyers to make that extra effort to get out the vote. We got signs up at all the sites. Ms. Josie Suarez said she and her family campaigned so effectively they believe they can attribute 800 votes in Robstown to their efforts."
One person can make a huge difference. Johnny Shelton came to the Victory Party sunburned from tremendous blockwalking for us, yet again. Lloyd Criss, Galveston County Chair, organized Galveston beautifully, bought ads, sent out cards. Lloyd was one of the first county chairs to endorse me and his in-kind help was immeasurable, as were so many of the county chairs, who personally donated and created a network of grass roots support. Galveston County's efforts in the runoff increased my vote from 42% in the first primary to 65.95% in the runoff. Their mailings, newspaper ads, calls, door-to-door, and polling place work was brilliant. Lubbock field was extraordinarily well organized, and county chair Johnnie Jones, Sue Wexler and our next Congressman Robert Ricketts have been with me from the beginning.
And from Burnet County, the extraordinarily hard working Democratic Chair Shirley Schmidt sent a great e mail as a status report. Guy Stuart and his family have done more than we can list, as well. Shirley wrote:
"....Burnet County, 157 votes for Radnofsky to 14 for Kelly. We hope that is the story throughout Texas. I was on the phone all day today. When I saw the last Democratic voters in all 4 Precincts, there were voters I'd called today. The last voters in two precincts were individuals who hadn't voted in the primary but promised to vote today, and they showed up. As many of 1/3 of the voters in at least one Precinct were individuals I'd called today."
I hope this small selection of the reports gives an idea across the state, every region, every area, of the grass roots efforts in small towns, rural Texas, which must not be forgotten, as well as our cities, which face such tremendous burdens. We've updated the issues chart on the issues section, and will be adding a sobering figure which answers my opponent's boast that she has brought home the bacon: Texas ranks 47th out of our 50 states in such funding brought home.
As the issues we've been highlighting hit Texans hard, we will continue to thank the grass roots folks who have educated me, helped me with financial and moral support and who made this win possible, but it would take thousands and thousands of blog entries to do so. The numbers paint an extraordinary picture of help across the state, as does a nearly twenty point improvement in five weeks.
My family and I voted together today, after I took my mother to the polls. We enjoyed the day thoroughly and really liked the news at the end of the day as AP was the first to call the race at an early hour. Maria Selma's was packed, and it was exciting to go from staffer phone to staffer phone as calls of support and congratulations came in.
We also hit the one million dollars raised mark on April 11. A Republican friend donated 4200 dollars to get us to the edge. The online donation from Carol Lewis (the olympic track star and broadcaster), sister to Radnofsky supporter and Olympian Carl Lewis appears to have hit the one millionth mark, and several others hit about the same time, including ones from my law firm partners to whom who I bid farewell this past Monday as I announced my departure from Vinson and Elkins.
The office is running smoothly with volunteer personnel and staff staying busy and our donated furniture and electronics beautifully cobbled together.
We were able to thank some but not all our well wishers and hard workers on the webcast last night, and to see the great band's performance and hear about others who helped, please view and listen to the webcast on-line. Jet Set, the phenomenal band, also recorded the campaign song: http://radnofsky.com/press/Barbara%20Ann.mp3
We know Senator Hutchison and her staff study my blog, so we want them to know I'll be in Austin, San Antonio, Houston, and DFW in the next week, then on to DC where the Democratic Senate Leadership co-hosts a fundraiser for me on April 25. We await Sen. Hutchison's dates for a series of debates, as she has finally responded in the press to my call for debates that she's looking forward to discussing the issues in public. Let's hope she makes good on what her spokesmen say, as this race has been correctly characterized by commentators as a referendum on the direction in which this state and country are headed. The downfall of DeLay emphasizes this race, and that's good, as is life. Thanks. BAR
Tuesday, October 16, 2007
WAKE~UP~CALL ...caught you in the ACT~Cornyn and Keller two rotten peons in a pod............
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
COMMENTARY: W. GARDNER SELBY
Cornyn vote on kids' health insurance might not hurt him
Do voters overlook health care as a priority issue?
Listen to this article or download audio file.Click-2-Listen
By W. Gardner Selby
AMERICAN-STATESMAN STAFF
Thursday, October 11, 2007
U.S. Sen. John Cornyn, R-Texas, assured himself of being peppered when he voted against bolstering the Children's Health Insurance Plan serving children of the working poor.
Even so, two political consultants insist that his position — rating a Democrat-steered approach too expensive and too expansive — won't hurt him.
Alicia Mireles
AMERICAN-STATESMAN
(enlarge photo)
W. Gardner Selby
MORE W. GARDNER SELBY
W. GARDNER SELBY
* Cornyn vote on kids' health insurance might not hurt him
* Two governors handled mansion renovation differently
* Unless he confesses, it's not Dewhurst's fault Texas has no early primary
* Hutchison may leave early, won't seek re-electio
What's this?
Todd Smith of Austin and Craig Murphy of Arlington should know. They coached then-state Rep. Arlene Wohlgemuth in her unsuccessful 2004 challenge to U.S. Rep. Chet Edwards, D-Texas.
Wohlgemuth snagged the GOP nomination after stressing her role whittling the Texas CHIP to help the state plug a shortfall without higher taxes. Edwards then launched a TV ad painting her as slashing health care for children.
"Very well crafted," Smith said. "Extremely effective."
But no Republican will make cutting CHIP a campaign centerpiece next year, he said, unless they tumble into a trap.
Wohlgemuth scrambled, Murphy suggested, because she wasn't widely known before Edwards popped her. Cornyn shouldn't have an identity problem, nor will he lack resources to deliver his message.
The other Texas senator, Kay Bailey Hutchison, voted for the CHIP proposal, though she conceded that she had valid concerns about the measure and said President Bush should sit down with Congress to ensure CHIP's continuation.
After vetoing the proposal opposed by Cornyn, Bush said he's open to negotiations. And Cornyn has said he supports a lesser expenditure.
Political fallout will ultimately turn on whether voters choose candidates based on health care. Other topics — perhaps war, immigration, education or taxes — are likely to rule.
In last year's Senate race, for instance, the Iraq war proved to be the major issue. Meanwhile, Hutchison said in a debate that a Republican-ushered ban on the government negotiating lower prescription drug prices for senior citizens should be looked at. Her comment drew scant attention. She and Cornyn later voted against bringing up a House-approved measure permitting negotiations, saying the current system works well.
Health care debates certainly fuel suspicions. Cornyn has said the sought CHIP changes amount to a taxpayer-funded benefit for the middle class that is likely to hurt private insurance providers. Scott McCown of the Austin-based Center for Public Policy Priorities said Cornyn may have misunderstood or misrepresented the proposal.
Opponents of the plan, McCown said, are upset at CHIP because it works: "They don't want to provide health care to the American people, and they don't want to pay for it. It's that simple."
I have doubts; simplicity out of Washington would be too much of a miracle.
wgselby@statesman.com; 445-3644 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\
Cornyn must be stupid, I am sorry, Lo siento, he is just clueless.
Why should taxpayers pay his AND for his entourage AND his family "taxpayer funded health care"?
They're SPESHHHal.....like "the church lady" says it on SNL.
What a freeloading carpetbagger! He and his Patriot group familia should move to Iraq along with their "OPM" funded JOB.
Healthcare we pay for.........but he is special?
Yeah , so slow to show his patriotism when it is not BENEFICIAL to his so called "Patriot group".
Since he does not care anymore.... and, it is obvious,"I don't feel so bad".......What a dud, maybe if the GOP was serious about backing him he would have more money than Mikal Watts.
But according to Stopcornyn.com's interview "Rick Perry Noriega" said he looks forward to "helping Cornyn enjoy"........that Noriega has informed and acted like he was one of those desperados, claiming dire straits, and in financial need..... they are no doubt stupid,since it was BS in his own words Noreiga states: "As it turns out, I have the necessary resources as well."
What was that warning Eisenhower warned us about?
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
COMMENTARY: W. GARDNER SELBY
Cornyn vote on kids' health insurance might not hurt him
Do voters overlook health care as a priority issue?
Listen to this article or download audio file.Click-2-Listen
By W. Gardner Selby
AMERICAN-STATESMAN STAFF
Thursday, October 11, 2007
U.S. Sen. John Cornyn, R-Texas, assured himself of being peppered when he voted against bolstering the Children's Health Insurance Plan serving children of the working poor.
Even so, two political consultants insist that his position — rating a Democrat-steered approach too expensive and too expansive — won't hurt him.
Alicia Mireles
AMERICAN-STATESMAN
(enlarge photo)
W. Gardner Selby
MORE W. GARDNER SELBY
W. GARDNER SELBY
* Cornyn vote on kids' health insurance might not hurt him
* Two governors handled mansion renovation differently
* Unless he confesses, it's not Dewhurst's fault Texas has no early primary
* Hutchison may leave early, won't seek re-electio
What's this?
Todd Smith of Austin and Craig Murphy of Arlington should know. They coached then-state Rep. Arlene Wohlgemuth in her unsuccessful 2004 challenge to U.S. Rep. Chet Edwards, D-Texas.
Wohlgemuth snagged the GOP nomination after stressing her role whittling the Texas CHIP to help the state plug a shortfall without higher taxes. Edwards then launched a TV ad painting her as slashing health care for children.
"Very well crafted," Smith said. "Extremely effective."
But no Republican will make cutting CHIP a campaign centerpiece next year, he said, unless they tumble into a trap.
Wohlgemuth scrambled, Murphy suggested, because she wasn't widely known before Edwards popped her. Cornyn shouldn't have an identity problem, nor will he lack resources to deliver his message.
The other Texas senator, Kay Bailey Hutchison, voted for the CHIP proposal, though she conceded that she had valid concerns about the measure and said President Bush should sit down with Congress to ensure CHIP's continuation.
After vetoing the proposal opposed by Cornyn, Bush said he's open to negotiations. And Cornyn has said he supports a lesser expenditure.
Political fallout will ultimately turn on whether voters choose candidates based on health care. Other topics — perhaps war, immigration, education or taxes — are likely to rule.
In last year's Senate race, for instance, the Iraq war proved to be the major issue. Meanwhile, Hutchison said in a debate that a Republican-ushered ban on the government negotiating lower prescription drug prices for senior citizens should be looked at. Her comment drew scant attention. She and Cornyn later voted against bringing up a House-approved measure permitting negotiations, saying the current system works well.
Health care debates certainly fuel suspicions. Cornyn has said the sought CHIP changes amount to a taxpayer-funded benefit for the middle class that is likely to hurt private insurance providers. Scott McCown of the Austin-based Center for Public Policy Priorities said Cornyn may have misunderstood or misrepresented the proposal.
Opponents of the plan, McCown said, are upset at CHIP because it works: "They don't want to provide health care to the American people, and they don't want to pay for it. It's that simple."
I have doubts; simplicity out of Washington would be too much of a miracle.
wgselby@statesman.com; 445-3644 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\
Cornyn must be stupid, I am sorry, Lo siento, he is just clueless.
Why should taxpayers pay his AND for his entourage AND his family "taxpayer funded health care"?
They're SPESHHHal.....like "the church lady" says it on SNL.
What a freeloading carpetbagger! He and his Patriot group familia should move to Iraq along with their "OPM" funded JOB.
Healthcare we pay for.........but he is special?
Yeah , so slow to show his patriotism when it is not BENEFICIAL to his so called "Patriot group".
Since he does not care anymore.... and, it is obvious,"I don't feel so bad".......What a dud, maybe if the GOP was serious about backing him he would have more money than Mikal Watts.
But according to Stopcornyn.com's interview "Rick Perry Noriega" said he looks forward to "helping Cornyn enjoy"........that Noriega has informed and acted like he was one of those desperados, claiming dire straits, and in financial need..... they are no doubt stupid,since it was BS in his own words Noreiga states: "As it turns out, I have the necessary resources as well."
What was that warning Eisenhower warned us about?
Saturday, July 21, 2007
Double Jeopardy is when you get detention then you are still sent to court for the same incident at school.....
Click for home page
March 6, 2007
The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068 Opinion No. GA-0526
Re: Whether a municipality may prohibit registered sex offenders from living in certain locations within the municipality (RQ-0526-GA)
Dear Senator Nelson:
You state that municipalities "across the state either have passed or are considering passing municipal ordinances that prohibit registered sex offenders from living within a specified distance from locations where children typically congregate, including day-care facilities, schools, public swimming pools, and parks and playgrounds." (1) You ask whether a municipality may adopt such ordinances. See Request Letter, supra note 1, at 1. You particularly ask us to address two issues:
(1) whether Chapter 508, Government Code, Article 42.12, Code of Criminal Procedure, or Chapter 62, Code of Criminal Procedure, preempts or otherwise limits a municipality's authority in this regard and (2) whether Section 3 or 19, Article I, Texas Constitution, or any other provision of the Texas Constitution limits a municipality's authority in this regard.
Id. at 2.
We note preliminarily that no particular adopted or proposed ordinance is at issue. Thus, our answer is general and does not speak to the preemption or constitutionality of a specific ordinance.
In addition, we note that you do not specify whether your question concerns general-law or home-rule municipalities. See id. at 1-2. A general-law municipality is a political subdivision "created by the State and, as such, possess[es] those powers and privileges that the State expressly confers upon [it]." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). We have found no law authorizing a general-law municipality to adopt this type of residence restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live.
On the other hand, a home-rule municipality "do[es] not depend on the legislature for specific grants of authority but, instead, ha[s] a constitutional right of self-government and look[s] to the legislature only for specific limitations on [its] power." City of Laredo v. Webb County, No. 03-05-00168-CV, 2005 WL 3234768, at *3 (Tex. App.--Austin Dec. 1, 2005, no pet.); see Tex. Const. art. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). We thus consider whether the Legislature has specifically limited a home-rule municipality's authority to adopt ordinances like those you generally describe.
I. Whether Residence Restrictions Adopted by Home-Rule Municipalities are Preempted by Government Code Chapter 508, Code of Criminal Procedure Article 42.12, or Code of Criminal Procedure Chapter 62
Despite its broad authority, a home-rule municipality may not adopt an ordinance that is "inconsistent with the Constitution of the State, or [with] the general laws enacted by the Legislature of this State." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5); see City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660, 663 (Tex. App.--Corpus Christi 2003, pet. denied). Consequently, a municipal ordinance "that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491. Nevertheless, "the mere fact that the legislature has enacted a law addressing a subject does not mean [that the] subject matter is completely preempted." Id. (quoting City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990)). A court will not hold a general law and a municipal ordinance "repugnant to each other if any other reasonable construction leaving both in effect can be reached." Id. (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). And if the Legislature chooses to preempt a subject matter usually encompassed within a home-rule municipality's broad powers, "it must do so with unmistakable clarity." Id.
You suggest that Government Code section 508.187, Code of Criminal Procedure article 42.12, or Code of Criminal Procedure chapter 62 may preempt the home-rule municipalities' ordinances. See Request Letter, supra note 1, at 2. We will discuss chapter 62 of the Code of Criminal Procedure first.
Chapter 62 establishes a sex-offender-registration program under which persons with a "reportable conviction or adjudication" or who are "required to register as a condition of parole, release to mandatory supervision, or community supervision" must register "with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." Tex. Code Crim. Proc. Ann. art. 62.051(a) (Vernon Supp. 2006); see also id. art. 62.001(1) (defining "Department"); id. art. 62.004 (requiring the Department of Public Safety to determine "which local law enforcement authority serves as [a] person's primary registration authority"). The phrase "reportable conviction or adjudication" is defined to include various sex offenses, such as indecency with a child, possessing or promoting child pornography, burglary with intent to commit a sex offense, and aggravated kidnapping with intent to sexually abuse a person younger than 17 years old. Id. art. 62.001(5). Compare Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386-87 (defining "reportable conviction or adjudication"), with Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4050-51 (same). Depending on the precise sex offense the person committed, a person's duty to register as a sex offender expires when the person dies or on the tenth anniversary of the date on which (1) the person was released from a penal institution or discharged from community supervision, or (2) the court dismissed the criminal proceedings against the person. Tex. Code Crim. Proc. Ann. art. 62.101 (Vernon Supp. 2006). Failing to register as required is a criminal offense. See id. art. 62.102.
The statutory duty to register as a sex offender does not conflict with a municipal ordinance limiting the area in which a sex offender must live. Accordingly, chapter 62 does not preempt the municipal ordinances.
Article 42.12, section 13B of the Code of Criminal Procedure and section 508.187 of the Government Code (the "child-safety-zone statutes") both provide in similar terms for the establishment of a child-safety zone that certain sex offenders may not enter. Code of Criminal Procedure article 42.12, section 13B pertains to defendants placed on community supervision, while Government Code section 508.187 pertains to convicted defendants who have served a sentence for a sex offense and are placed on parole. See id. art. 42.12, § 13B(a); Tex. Gov't Code Ann. § 508.187(a)-(b) (Vernon 2004). Under both statutes, a defendant or convicted defendant who, as a condition of community supervision or parole, must adhere to child-safety-zone provisions may not:
(A) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(B) go in, on, or within [1,000 feet, under article 42.12, section 13B or a distance specified by the panel under Government Code section 508.187(b)(1)(B)] of premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
Tex. Gov't Code Ann. § 508.187(b)(1) (Vernon 2004); cf. Tex. Code Crim. Proc. Ann. art. 42.12, § 13B(a)(1) (Vernon Supp. 2006). Subsection (B) of the child-safety-zone statutes is particularly relevant to our preemption inquiry.
The child-safety-zone statutes are not inconsistent with home-rule municipality residence restrictions as you have described them. See Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5). A sex offender may comply with both the child-safety-zone statutes and a home-rule municipality's residence restrictions by staying out of the areas described in both. In this way, the state statutes and the municipal ordinances are not repugnant; instead, they are complementary. See id. at 491 (quoting City of Beaumont, 291 S.W. at 206).
Moreover, nothing in either of the child-safety-zone statutes evidences an unmistakably clear legislative intent to preempt a home-rule municipality's authority to regulate where sex offenders may live. See id. at 491. Certainly, neither child-safety-zone statute expressly preempts municipal regulation. Cf. Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (Vernon Supp. 2006) (expressly restricting a home-rule municipality's authority to impose stricter standards on premises or businesses required to have a license or permit under the Alcoholic Beverage Code and setting out the Legislature's intent that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state"); Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491-92 (stating that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold"). In addition, nothing in the child-safety-zone statutes' legislative history suggests an intent to preempt municipal regulation. See generally Senate Comm. on Crim. Justice, Bill Analysis 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); House Comm. on Crim. Jurisprudence 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); see House Research Org., Bill Analysis 1, 3, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995).
Because the child-safety-zone statutes and municipal residence restrictions are not inconsistent and because the child-safety-zone statutes do not "with unmistakable clarity" preempt a home-rule municipality's authority to legislate in this area, we conclude that state law does not preempt municipal residence restrictions generally. (2) Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491.
II. Whether Residence Restrictions Adopted by Home-Rule Municipalities Contravene Various Provisions of the Texas Constitution
You also ask whether article I, section 3 or 19, "or any other provision of the Texas Constitution" limits a home-rule municipality's authority to adopt residence restrictions. Request Letter, supra note 1, at 2. Article I, section 3, like its federal counterpart found in the Fourteenth Amendment to the United States Constitution, guarantees "all persons similarly situated . . . equal protection under the laws of this [s]tate and of the United States." Nonn v. State, 117 S.W.3d 874, 881-82 (Tex. Crim. App. 2003); see Tex. Const. art. I, § 3; see also U.S. Const. amend. XIV, § 1. Texas cases apply federal standards "when determining whether a statute violates equal protection under either provision." Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990). Under those standards, when a law creates a classification that "does not infringe upon fundamental rights or does not burden an inherently suspect class, equal protection requires only that the statutory classification . . . rationally relate[] to a legitimate state interest." Id. "In determining whether or not a state law violates the Equal Protection Clause," a court must "consider the facts and circumstances behind the law, the interests [that] the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 (1968). Given that we have no particular municipal ordinance before us here, we cannot perform an equal-protection analysis. Courts that have considered specific state statutory residence restrictions in the context of an equal-protection analysis, however, have held that the residence restrictions do not impinge upon fundamental rights or burden an inherently suspect class and that the residence restrictions rationally relate to the state's legitimate interest in promoting children's safety. The residence restrictions that have been considered thus were found not to violate the Federal Equal Protection Clause. (3)
Article I, section 19 of the Texas Constitution, which prohibits the deprivation "of life, liberty, property, privileges, or immunities" without "due course of the law," is nearly identical to the Federal Due Process Clause, which is found in the Fourteenth Amendment to the United States Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Compare Tex. Const. art. I, § 19, with U.S. Const. amend. XIV, § 1. In matters of procedural due process, Texas courts traditionally follow "contemporary federal due process interpretations of procedural due process issues." Than, 901 S.W.2d at 929. A court's review of a due-process claim requires a two-part analysis: (1) whether the liberty or property interests allegedly involved are entitled to procedural due-process protection; and (2) if so, what process is due. Id. The Texas Supreme Court, quoting the United States Supreme Court, has indicated that the liberty interests protected by procedural due process mirror those protected by the constitutional equal-protection guarantees:
In defining the scope of protected liberty interests under the Fourteenth Amendment, the United States Supreme Court has stated that a liberty interest:
[D]enotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire usefulknowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Id. at 929-30 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)). A property interest to which procedural due process applies is one that is either vested or springs from state law. See Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App.--Austin 1992, writ denied).
Whether, in a particular instance, a sex offender subject to a municipal residence restriction can succeed in a case alleging that the residence restriction violates his or her constitutional right to procedural due process is a question that a court must decide after determining the relevant facts. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). To date no sex offender has successfully persuaded a court that a residence restriction violated the offender's procedural due process rights. See, e.g., Doe, 405 F.3d at 709 (concluding that the absence of an individualized hearing to determine a sex offender's dangerousness "does not offend principles of procedural due process"); State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005) (finding that the plaintiff "has not even explained how the [Iowa] residency restriction statute" violates "a private interest in freedom of choice in residence").
Finally, you ask if any other provision of the Texas Constitution limits a home-rule municipality's authority to impose residence restrictions. See Request Letter, supra note 1, at 2. We know of no Texas case considering challenges to residence restrictions on state constitutional grounds. We note, however, that sex offenders in other states have raised numerous federal constitutional provisions, but none have successfully argued that a residence restriction was unconstitutional. (4) Given the fact-intensive nature of any constitutional analysis of a specific home-rule municipality's ordinance, we will not consider the possible claims generally here.
S U M M A R Y
State law does not preempt a home-rule municipality's ordinance prohibiting registered sex offenders from living within a specified distance from locations where children typically congregate. Whether a particular ordinance is permitted by the Texas Constitution is a question that must be determined by a court after considering all of the relevant facts applicable to a specific ordinance; to date, however, no court has found that a statutory residence restriction violates any federal constitutional provision.
Very truly yours,
Abbott signature
GREG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
Footnotes
1. Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 29, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2. Several bills already have been filed for the Eightieth Legislative Session that prescribe state-wide residence restrictions for sex offenders. See, e.g., Tex. S.B. 94, 80th Leg., R.S. (2007); Tex. S.B. 88, 80th Leg., R.S. (2007); Tex. H.B. 203, 80th Leg., R.S. (2007); Tex. H.B. 62, 80th Leg., R.S. (2007). We do not consider in this opinion whether any of these bills, if adopted, will preempt municipal residence restrictions.
3. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013, 1016 (8th Cir. 2006) (considering the constitutionality of an Arkansas law prohibiting certain high-risk sex offenders from residing within 2,000 feet of the property on which a public or private elementary or secondary school or daycare facility is located); Doe v. Miller, 405 F.3d 700, 704, 711-14 (8th Cir.) (considering the constitutionality of an Iowa statute that prohibits a person convicted of certain sex offenses from residing within 2,000 feet of a school or registered child-care facility), cert. denied, 126 S. Ct. 757 (2005); Graham v. Henry, No. 06 CV 381 TCK FHM, 2006 WL 2645130, at *1, *8 (N.D. Okla. 2006) (considering the constitutionality of an Oklahoma statute prohibiting certain sex offenders from residing within 2,000 feet of a public or private school, educational institution, playground, park, or licensed child-care facility); People v. Leroy, 828 N.E.2d 769, 775, 778 (Ill. App. Ct. 2005) (considering the constitutionality of an Illinois statute prohibiting certain sex offenders from knowingly residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age).
4. See, e.g., Weems, 453 F.3d at 1015, 1017 (holding that Arkansas statutory residence restriction does not violate constitutional substantive due-process principles, does not violate a constitutional right to travel, and is not an unconstitutional ex post facto law); Doe, 405 F.3d at 708, 709-23 (holding that Iowa's statutory residence restriction is not unconstitutionally vague, does not violate substantive due process, does not violate the right against self-incrimination, and is not an ex post facto law); Graham, 2006 WL 2645130, at *4-*10 (concluding, in the context of a motion for a preliminary injunction, that Oklahoma's statutory residence restriction did not violate the constitutional prohibition against double jeopardy, substantive due-process principles, or the Privileges and Immunities Clause of the Fourteenth Amendment); Coston v. Petro, 398 F. Supp. 2d 878, 880, 887 (S.D. Ohio 2005) (noting sex offender's arguments that an Ohio statutory residence restriction that prohibits a sex offender from residing within 1,000 feet of a school premises infringes on the fundamental right of privacy in family matters and the fundamental right of intrastate travel and violates the constitutional right against impairment of contracts, the right against self-incrimination, the Ex Post Facto Clause, and the Takings Clause of the Fifth Amendment); Seering, 701 N.W.2d at 665, 666-69, 670 (holding that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment); Leroy, 828 N.E.2d at 776-77, 778-84 (holding that Illinois statutory residence restrictions do not violate substantive due-process principles, constitute an ex post facto law, violate the prohibition against self-incrimination, or constitute cruel and unusual punishment); Denson v. Georgia, 600 S.E.2d 645, 646-47 (Ga. Ct. App. 2004) (concluding that Georgia's statutory residence restriction, which prohibits a sex offender from residing within 1,000 feet of a day-care facility, is not an ex post facto law because the sex offender can be punished only if he "prospectively chooses to violate the law by continuing to reside" within the prohibited zone).
Home | Opinions
March 6, 2007
The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068 Opinion No. GA-0526
Re: Whether a municipality may prohibit registered sex offenders from living in certain locations within the municipality (RQ-0526-GA)
Dear Senator Nelson:
You state that municipalities "across the state either have passed or are considering passing municipal ordinances that prohibit registered sex offenders from living within a specified distance from locations where children typically congregate, including day-care facilities, schools, public swimming pools, and parks and playgrounds." (1) You ask whether a municipality may adopt such ordinances. See Request Letter, supra note 1, at 1. You particularly ask us to address two issues:
(1) whether Chapter 508, Government Code, Article 42.12, Code of Criminal Procedure, or Chapter 62, Code of Criminal Procedure, preempts or otherwise limits a municipality's authority in this regard and (2) whether Section 3 or 19, Article I, Texas Constitution, or any other provision of the Texas Constitution limits a municipality's authority in this regard.
Id. at 2.
We note preliminarily that no particular adopted or proposed ordinance is at issue. Thus, our answer is general and does not speak to the preemption or constitutionality of a specific ordinance.
In addition, we note that you do not specify whether your question concerns general-law or home-rule municipalities. See id. at 1-2. A general-law municipality is a political subdivision "created by the State and, as such, possess[es] those powers and privileges that the State expressly confers upon [it]." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004). We have found no law authorizing a general-law municipality to adopt this type of residence restriction. Thus, unless the Legislature expressly authorizes it, a general-law municipality may not adopt an ordinance restricting where a registered sex offender may live.
On the other hand, a home-rule municipality "do[es] not depend on the legislature for specific grants of authority but, instead, ha[s] a constitutional right of self-government and look[s] to the legislature only for specific limitations on [its] power." City of Laredo v. Webb County, No. 03-05-00168-CV, 2005 WL 3234768, at *3 (Tex. App.--Austin Dec. 1, 2005, no pet.); see Tex. Const. art. XI, § 5; Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). We thus consider whether the Legislature has specifically limited a home-rule municipality's authority to adopt ordinances like those you generally describe.
I. Whether Residence Restrictions Adopted by Home-Rule Municipalities are Preempted by Government Code Chapter 508, Code of Criminal Procedure Article 42.12, or Code of Criminal Procedure Chapter 62
Despite its broad authority, a home-rule municipality may not adopt an ordinance that is "inconsistent with the Constitution of the State, or [with] the general laws enacted by the Legislature of this State." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5); see City of Corpus Christi v. Five Citizens of Corpus Christi, 103 S.W.3d 660, 663 (Tex. App.--Corpus Christi 2003, pet. denied). Consequently, a municipal ordinance "that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute." Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491. Nevertheless, "the mere fact that the legislature has enacted a law addressing a subject does not mean [that the] subject matter is completely preempted." Id. (quoting City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990)). A court will not hold a general law and a municipal ordinance "repugnant to each other if any other reasonable construction leaving both in effect can be reached." Id. (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). And if the Legislature chooses to preempt a subject matter usually encompassed within a home-rule municipality's broad powers, "it must do so with unmistakable clarity." Id.
You suggest that Government Code section 508.187, Code of Criminal Procedure article 42.12, or Code of Criminal Procedure chapter 62 may preempt the home-rule municipalities' ordinances. See Request Letter, supra note 1, at 2. We will discuss chapter 62 of the Code of Criminal Procedure first.
Chapter 62 establishes a sex-offender-registration program under which persons with a "reportable conviction or adjudication" or who are "required to register as a condition of parole, release to mandatory supervision, or community supervision" must register "with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." Tex. Code Crim. Proc. Ann. art. 62.051(a) (Vernon Supp. 2006); see also id. art. 62.001(1) (defining "Department"); id. art. 62.004 (requiring the Department of Public Safety to determine "which local law enforcement authority serves as [a] person's primary registration authority"). The phrase "reportable conviction or adjudication" is defined to include various sex offenses, such as indecency with a child, possessing or promoting child pornography, burglary with intent to commit a sex offense, and aggravated kidnapping with intent to sexually abuse a person younger than 17 years old. Id. art. 62.001(5). Compare Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386-87 (defining "reportable conviction or adjudication"), with Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 2, 2005 Tex. Gen. Laws 4049, 4050-51 (same). Depending on the precise sex offense the person committed, a person's duty to register as a sex offender expires when the person dies or on the tenth anniversary of the date on which (1) the person was released from a penal institution or discharged from community supervision, or (2) the court dismissed the criminal proceedings against the person. Tex. Code Crim. Proc. Ann. art. 62.101 (Vernon Supp. 2006). Failing to register as required is a criminal offense. See id. art. 62.102.
The statutory duty to register as a sex offender does not conflict with a municipal ordinance limiting the area in which a sex offender must live. Accordingly, chapter 62 does not preempt the municipal ordinances.
Article 42.12, section 13B of the Code of Criminal Procedure and section 508.187 of the Government Code (the "child-safety-zone statutes") both provide in similar terms for the establishment of a child-safety zone that certain sex offenders may not enter. Code of Criminal Procedure article 42.12, section 13B pertains to defendants placed on community supervision, while Government Code section 508.187 pertains to convicted defendants who have served a sentence for a sex offense and are placed on parole. See id. art. 42.12, § 13B(a); Tex. Gov't Code Ann. § 508.187(a)-(b) (Vernon 2004). Under both statutes, a defendant or convicted defendant who, as a condition of community supervision or parole, must adhere to child-safety-zone provisions may not:
(A) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(B) go in, on, or within [1,000 feet, under article 42.12, section 13B or a distance specified by the panel under Government Code section 508.187(b)(1)(B)] of premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
Tex. Gov't Code Ann. § 508.187(b)(1) (Vernon 2004); cf. Tex. Code Crim. Proc. Ann. art. 42.12, § 13B(a)(1) (Vernon Supp. 2006). Subsection (B) of the child-safety-zone statutes is particularly relevant to our preemption inquiry.
The child-safety-zone statutes are not inconsistent with home-rule municipality residence restrictions as you have described them. See Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 490 (quoting Tex. Const. art. XI, § 5). A sex offender may comply with both the child-safety-zone statutes and a home-rule municipality's residence restrictions by staying out of the areas described in both. In this way, the state statutes and the municipal ordinances are not repugnant; instead, they are complementary. See id. at 491 (quoting City of Beaumont, 291 S.W. at 206).
Moreover, nothing in either of the child-safety-zone statutes evidences an unmistakably clear legislative intent to preempt a home-rule municipality's authority to regulate where sex offenders may live. See id. at 491. Certainly, neither child-safety-zone statute expressly preempts municipal regulation. Cf. Tex. Alco. Bev. Code Ann. § 109.57(a)-(b) (Vernon Supp. 2006) (expressly restricting a home-rule municipality's authority to impose stricter standards on premises or businesses required to have a license or permit under the Alcoholic Beverage Code and setting out the Legislature's intent that the Alcoholic Beverage Code "shall exclusively govern the regulation of alcoholic beverages in this state"); Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491-92 (stating that the Alcoholic Beverage Code "clearly preempts an ordinance of a home-rule city that regulates where alcoholic beverages are sold"). In addition, nothing in the child-safety-zone statutes' legislative history suggests an intent to preempt municipal regulation. See generally Senate Comm. on Crim. Justice, Bill Analysis 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); House Comm. on Crim. Jurisprudence 1, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995); see House Research Org., Bill Analysis 1, 3, Tex. C.S.S.B. 111, 74th Leg., R.S. (1995).
Because the child-safety-zone statutes and municipal residence restrictions are not inconsistent and because the child-safety-zone statutes do not "with unmistakable clarity" preempt a home-rule municipality's authority to legislate in this area, we conclude that state law does not preempt municipal residence restrictions generally. (2) Dallas Merchant's & Concessionaire's Ass'n, 852 S.W.2d at 491.
II. Whether Residence Restrictions Adopted by Home-Rule Municipalities Contravene Various Provisions of the Texas Constitution
You also ask whether article I, section 3 or 19, "or any other provision of the Texas Constitution" limits a home-rule municipality's authority to adopt residence restrictions. Request Letter, supra note 1, at 2. Article I, section 3, like its federal counterpart found in the Fourteenth Amendment to the United States Constitution, guarantees "all persons similarly situated . . . equal protection under the laws of this [s]tate and of the United States." Nonn v. State, 117 S.W.3d 874, 881-82 (Tex. Crim. App. 2003); see Tex. Const. art. I, § 3; see also U.S. Const. amend. XIV, § 1. Texas cases apply federal standards "when determining whether a statute violates equal protection under either provision." Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990). Under those standards, when a law creates a classification that "does not infringe upon fundamental rights or does not burden an inherently suspect class, equal protection requires only that the statutory classification . . . rationally relate[] to a legitimate state interest." Id. "In determining whether or not a state law violates the Equal Protection Clause," a court must "consider the facts and circumstances behind the law, the interests [that] the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 (1968). Given that we have no particular municipal ordinance before us here, we cannot perform an equal-protection analysis. Courts that have considered specific state statutory residence restrictions in the context of an equal-protection analysis, however, have held that the residence restrictions do not impinge upon fundamental rights or burden an inherently suspect class and that the residence restrictions rationally relate to the state's legitimate interest in promoting children's safety. The residence restrictions that have been considered thus were found not to violate the Federal Equal Protection Clause. (3)
Article I, section 19 of the Texas Constitution, which prohibits the deprivation "of life, liberty, property, privileges, or immunities" without "due course of the law," is nearly identical to the Federal Due Process Clause, which is found in the Fourteenth Amendment to the United States Constitution. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Compare Tex. Const. art. I, § 19, with U.S. Const. amend. XIV, § 1. In matters of procedural due process, Texas courts traditionally follow "contemporary federal due process interpretations of procedural due process issues." Than, 901 S.W.2d at 929. A court's review of a due-process claim requires a two-part analysis: (1) whether the liberty or property interests allegedly involved are entitled to procedural due-process protection; and (2) if so, what process is due. Id. The Texas Supreme Court, quoting the United States Supreme Court, has indicated that the liberty interests protected by procedural due process mirror those protected by the constitutional equal-protection guarantees:
In defining the scope of protected liberty interests under the Fourteenth Amendment, the United States Supreme Court has stated that a liberty interest:
[D]enotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire usefulknowledge, to marry, establish a home and bring up children, to worship God according to the dictates of one's own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.
Id. at 929-30 (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972)). A property interest to which procedural due process applies is one that is either vested or springs from state law. See Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App.--Austin 1992, writ denied).
Whether, in a particular instance, a sex offender subject to a municipal residence restriction can succeed in a case alleging that the residence restriction violates his or her constitutional right to procedural due process is a question that a court must decide after determining the relevant facts. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process."). To date no sex offender has successfully persuaded a court that a residence restriction violated the offender's procedural due process rights. See, e.g., Doe, 405 F.3d at 709 (concluding that the absence of an individualized hearing to determine a sex offender's dangerousness "does not offend principles of procedural due process"); State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005) (finding that the plaintiff "has not even explained how the [Iowa] residency restriction statute" violates "a private interest in freedom of choice in residence").
Finally, you ask if any other provision of the Texas Constitution limits a home-rule municipality's authority to impose residence restrictions. See Request Letter, supra note 1, at 2. We know of no Texas case considering challenges to residence restrictions on state constitutional grounds. We note, however, that sex offenders in other states have raised numerous federal constitutional provisions, but none have successfully argued that a residence restriction was unconstitutional. (4) Given the fact-intensive nature of any constitutional analysis of a specific home-rule municipality's ordinance, we will not consider the possible claims generally here.
S U M M A R Y
State law does not preempt a home-rule municipality's ordinance prohibiting registered sex offenders from living within a specified distance from locations where children typically congregate. Whether a particular ordinance is permitted by the Texas Constitution is a question that must be determined by a court after considering all of the relevant facts applicable to a specific ordinance; to date, however, no court has found that a statutory residence restriction violates any federal constitutional provision.
Very truly yours,
Abbott signature
GREG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
Footnotes
1. Letter from Honorable Jane Nelson, Chair, Committee on Health and Human Services, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Aug. 29, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2. Several bills already have been filed for the Eightieth Legislative Session that prescribe state-wide residence restrictions for sex offenders. See, e.g., Tex. S.B. 94, 80th Leg., R.S. (2007); Tex. S.B. 88, 80th Leg., R.S. (2007); Tex. H.B. 203, 80th Leg., R.S. (2007); Tex. H.B. 62, 80th Leg., R.S. (2007). We do not consider in this opinion whether any of these bills, if adopted, will preempt municipal residence restrictions.
3. See Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1013, 1016 (8th Cir. 2006) (considering the constitutionality of an Arkansas law prohibiting certain high-risk sex offenders from residing within 2,000 feet of the property on which a public or private elementary or secondary school or daycare facility is located); Doe v. Miller, 405 F.3d 700, 704, 711-14 (8th Cir.) (considering the constitutionality of an Iowa statute that prohibits a person convicted of certain sex offenses from residing within 2,000 feet of a school or registered child-care facility), cert. denied, 126 S. Ct. 757 (2005); Graham v. Henry, No. 06 CV 381 TCK FHM, 2006 WL 2645130, at *1, *8 (N.D. Okla. 2006) (considering the constitutionality of an Oklahoma statute prohibiting certain sex offenders from residing within 2,000 feet of a public or private school, educational institution, playground, park, or licensed child-care facility); People v. Leroy, 828 N.E.2d 769, 775, 778 (Ill. App. Ct. 2005) (considering the constitutionality of an Illinois statute prohibiting certain sex offenders from knowingly residing within 500 feet of a playground or a facility providing programs or services exclusively directed toward persons under 18 years of age).
4. See, e.g., Weems, 453 F.3d at 1015, 1017 (holding that Arkansas statutory residence restriction does not violate constitutional substantive due-process principles, does not violate a constitutional right to travel, and is not an unconstitutional ex post facto law); Doe, 405 F.3d at 708, 709-23 (holding that Iowa's statutory residence restriction is not unconstitutionally vague, does not violate substantive due process, does not violate the right against self-incrimination, and is not an ex post facto law); Graham, 2006 WL 2645130, at *4-*10 (concluding, in the context of a motion for a preliminary injunction, that Oklahoma's statutory residence restriction did not violate the constitutional prohibition against double jeopardy, substantive due-process principles, or the Privileges and Immunities Clause of the Fourteenth Amendment); Coston v. Petro, 398 F. Supp. 2d 878, 880, 887 (S.D. Ohio 2005) (noting sex offender's arguments that an Ohio statutory residence restriction that prohibits a sex offender from residing within 1,000 feet of a school premises infringes on the fundamental right of privacy in family matters and the fundamental right of intrastate travel and violates the constitutional right against impairment of contracts, the right against self-incrimination, the Ex Post Facto Clause, and the Takings Clause of the Fifth Amendment); Seering, 701 N.W.2d at 665, 666-69, 670 (holding that Iowa's statutory residence restriction does not violate substantive due process, the Ex Post Facto Clause, or the right against self-incrimination, and did not constitute unconstitutionally cruel and unusual punishment); Leroy, 828 N.E.2d at 776-77, 778-84 (holding that Illinois statutory residence restrictions do not violate substantive due-process principles, constitute an ex post facto law, violate the prohibition against self-incrimination, or constitute cruel and unusual punishment); Denson v. Georgia, 600 S.E.2d 645, 646-47 (Ga. Ct. App. 2004) (concluding that Georgia's statutory residence restriction, which prohibits a sex offender from residing within 1,000 feet of a day-care facility, is not an ex post facto law because the sex offender can be punished only if he "prospectively chooses to violate the law by continuing to reside" within the prohibited zone).
Home | Opinions
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall..
Click for home page Office of the Attorney General - State of Texas
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
Home | Opinions
Click for home page Office of the Attorney General - State of Texas
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer
Home | Opinions
John Cornyn
spacer shim
August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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John Cornyn
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August 13, 1999
The Honorable Carl E. Lewis
County Attorney
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3680
Open Records Decision No. 660
Re: Whether section 52(a) of article III of the Texas Constitution prohibits the Port of Corpus Christi from complying with a request under chapter 552 of the Government Code for a computer version of a digital map of the Port of Corpus Christi and related questions (ORQ-14)
Dear Mr. Lewis:
The Port of Corpus Christi Authority (the "Port") has asked whether article III, section 52(a), of the Texas Constitution prohibits the Port from releasing a digital version of an AutoCad® generated map of the Port. You contend that section 52(a) of article III of the Texas Constitution, as applied through section 552.101 of the Government Code, prohibits release of the requested information. The requested map was apparently created with the AutoCad Map™ software, and the requestor is seeking the map in its electronic format.(1) The Port states that it has spent more than $50,000 in developing the map.(2)
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 52(a) of article III of the Texas Constitution provides in part:
(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.
Tex. Const. art. III, § 52(a).(3) Texas courts have concluded that the purpose of this and similar constitutional provisions is to prevent the gratuitous application of public funds to private use. Byrd v. Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Brazoria County v. Perry, 537 S.W.2d 89, 90 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). However, the constitution does not invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Barrington v. Cokinos, 161 Tex. 136, 145, 338 S.W.2d 133, 140 (1960).
We first turn to the question of whether release of requested information under chapter 552 of the Government Code serves a legitimate public purpose. No fixed rule delineates exactly what constitutes a "public purpose." See Davis v. City of Taylor, 67 S.W.2d 1033, 1034 (1934) (quoting 6 McQuillin on Municipal Corporations § 2532, at 292 (2d ed. 1940)) ("What is a public purpose cannot be answered by any precise definition further than to state that if an object is beneficial to the inhabitants and directly connected with the local government it will be considered a public purpose.").
Texas courts defer to the legislature's determination of what is a public purpose, since deciding what is a public purpose is primarily a legislative function. Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); State v. Austin, 331 S.W.2d 737 (1960); Young v. Houston, 756 S.W.2d 813, 814 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (partial publication). Chapter 552 of the Government Code governs the public's access to a governmental body's information. The purpose of the Public Information Act (the "act") is articulated in section 552.001 of the Government Code, which provides:
The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
The Texas legislature has further established that public information encompasses information in an electronic format. Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 15, 17, 1995 Tex. Gen. Laws 5127, 5134-39; see Gov't Code §§ 552.002, .003, .228, .231, .262, and .272. Based on the preceding analysis, we conclude that the release of information held by the Port to the public serves a legitimate public purpose, because release of the digital map will promote public access to such information.
Next, we must consider whether sufficient controls exist on the release of the information to ensure that the public purpose is accomplished. This office has typically required controls on the transaction to achieve the public purpose. See, e.g., Attorney General Opinions DM-268 (1993), JM-324 (1985), JM-220 (1984), MW-89 (1979); Attorney General Letter Opinion Nos. 96-008 (1996), 93-79 (1993).(4) Therefore, following the line of Attorney General Opinions that require controls on the "transaction" to ensure that the public purpose is accomplished, we must determine whether these controls exist to ensure the public's access to government information.
A governmental body must respond "promptly" to requests for information. Gov't Code §§ 552.221(a), .228(a). Further, a governmental body must treat all requests for information uniformly. Id. § 552.223. If no previous determination as to whether requested information falls within one of the exceptions to disclosure exists, and a governmental body believes the information falls within one of the exceptions to disclosure, the governmental body must ask the Attorney General's Office for a decision as to whether the information falls within that exception within ten business days of receiving the request. Id. § 552.301(a). The Attorney General must render a decision on all such requests within a legislatively mandated period. Id. § 552.306(a). Additionally, either a requestor or the Attorney General may file for a writ of mandamus compelling a governmental body to make information available to the public if the governmental body fails to ask for a decision from the Attorney General or fails to comply with an Attorney General decision that the information is public. Id. § 552.321. A person who willfully destroys, removes, or alters public information commits a misdemeanor. Id. § 552.351. An officer for public information or the officer's agent who, with criminal negligence, fails or refuses to give access to public information also commits a misdemeanor. Id. § 552.353. We believe that these controls set out in chapter 552 of the Government Code, put into place by the legislature, are adequate controls to ensure that the public purpose of access to government information is accomplished.
The Port argues that the requestor will use the information for a commercial purpose.(5) The Port urges that this private individual's commercial purpose is not a public purpose. Similarly, the Port contends that, even assuming "there were a public service appropriate to the Port, the Port staff asserts they would have no way to maintain control over [the requestor] or his company to ensure that any such public purpose is actually achieved." First, we believe that the public purpose at issue here is the public purpose served by the Port releasing information to the public in an open democracy. Second, the legislature has prohibited governmental bodies from inquiring into the motives of a requestor in seeking information. Gov't Code § 552.222(b). Third, an officer for public information is not responsible for "the use made of the information by the requestor." Gov't Code § 552.204(1).
As an additional basis for withholding the requested information, you state that because the Port holds a copyright on the digital map, the information is excepted from required public disclosure.(6) In other words, you ask whether copyright law provides the Port a basis to refuse to comply with the Public Information Act.(7) At the outset, we recognize that a full analysis of the Federal Copyright Act (the "FCA"), title 17 of the United States Code, is beyond the scope of this ruling. The FCA, however, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. § 102(a); see also id. § 103; see generally Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359-60 (1991) (copyright laws protect work or compilation, not amount of effort expended); John Kidwell, Open Records Laws and Copyright, 1989 Wis. L. Rev. 1021, 1025 (1989). The FCA gives copyright owners the exclusive right to control the use of copyrighted works. See 17 U.S.C. § 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. § 107.
The FCA does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records owned by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).
In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Gov't Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing the maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA, to the extent the information at issue is subject to copyright protection.(8) See 17 U.S.C.§§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.
Based on the preceding analysis, we believe that the controls put in place in chapter 552 of the Government Code are adequate to ensure that a public purpose is achieved. We, therefore, conclude that the Port is not prohibited by section 52(a) of article III of the Texas Constitution or under the Federal Copyright Act from releasing the requested information.(9)
S U M M A R Y
Section 52(a) of article III of the Texas Constitution does not prohibit the Port of Corpus Christi Authority from releasing a computer generated digital map, created by the Port with public funds, in response to a request made under chapter 552 of the Government Code. Furthermore, the Federal Copyright Act may not be used to deny access to or copies of the public information under the Public Information Act when the governmental body owns the copyright. We conclude, however, that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.
Yours very truly,
Cornyn signature
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
REBECCA L. PAYNE
Chief, Open Records Division
Sam Haddad
Assistant Attorney General - Open Records Division
Footnotes
1. In Open Records Decision No. 581 (1990), this office determined that certain computer-related information, such as source codes, documentation information, and other computer programming, that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information made public under section 552.021 of the Government Code. Accordingly, to the extent that the requested information consists of computer source codes, flow charts, and software documentation, it is not subject to the Public Information Act. Gov't Code § 552.002.
2. We are assuming that the computer version of the map is a "thing of value" under section 52(a). See Key v. Commissioners Court of Marion County, 727 S.W.2d 667, 669 (Tex. App.--Texarkana 1987, no writ) (what is "thing of value" is question of fact); cf. Attorney General Opinion DM-268 (1990) (salvage/surplus property not thing of value).
3. The Port is a "political subdivision" of the state and, therefore, subject to the provisions of section 52(a). See Pillsbury Co. v. Port of Corpus Christi Auth., 66 F.3d 103 (5th Cir. 1995), cert. denied, 517 U.S. 1203 (1996) (for purposes of Eleventh Amendment, Port of Corpus Christi indistinguishable from Port of Houston Authority which court had concluded was political subdivision); see also Kamani v. Port of Houston Auth., 702 F.2d 612, 613 (5th Cir. 1983) (Port of Houston Authority is political subdivision of state for Texas Tort Claims Act); Guaranty Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 530 (Tex. 1980) (holding that Brownsville Navigation District could enter into mineral leases because it is political subdivision of state). See Tex. Const. art. III, §§ 51, 53.
4. There also was and sometimes still is a requirement that adequate consideration be received in return for the grant of money or thing of value. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94 (Tex. 1966); Byrd v. City of Dallas, 6 S.W.2d 738 (1928); George D. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 232 (1977) ("If the 'grant' is announced in advance and requires something in return, there is a quid pro quo and the 'grant' has become something else."). In Braden's commentary and in the more recent court decisions, it appears that the public benefit is the consideration. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 739-40 (Tex. 1995); Graves v. Morales, 923 S.W.2d 754, 757 (Tex. App.--Austin 1996, writ denied); Braden at 234 ("Under the new rule, the question is, of course, whether the grant or loan is for a public purpose. In a sense, this is no more than asking whether the public benefit is too remote, indirect, or general to serve as a 'quid pro quo.'").
5. The issue of commercial use of government information was discussed in connection with House Bill 1718:
A great deal of attention was given to how these records, especially when on electronic media, might be used for commercial purposes. Several proposals were made to find a way to ensure that those using the records for commercial purposes were set apart from those using the records for informational purposes. However, the privacy problems associated with asking requestors the purpose of the information that they request left only one option: treating everyone equally.
House Comm. on State Affairs, Bill Analysis, H.B. 1718, 74th Leg., R.S. (1995); see Bob Etnyre, Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous. L. Rev. 398, 425-27 (1977); see also Barrington v. Cokinos, 338 S.W.2d 133, 145 (Tex. 1960).
6. We are not aware that the Texas Legislature has authorized the Port to take steps to protect this type of information. See generally 17 U.S.C. § 105 ("copyright protection under this title is not available for any work of the United States Government"); see, e.g., Transp. Code § 201.205 (Texas Legislature has authorized Texas Department of Transportation to take steps to protect its intellectual property rights under FCA).
7. The Public Information Act requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code § 552.221; see also id. § 552.021.
8. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).
9. We suggest that if you have any concerns over the costs associated with providing the requestor with the requested digital version of the map of the Port, you contact the Open Records Administrator for the General Services Commission. See Gov't Code §§ 552.261-.274.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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Without The Education "District" Code, would not have an election code to fight over.
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Section 22 of Article IV of the Texas Constitution gives the Attorney General the authority to issue advisory opinions. That authorization has been more specifically defined in Sections 402.041 through 402.045 of the Government Code, which provide as follows:
Sec. 402.041. Definition
In this subchapter "opinion" means advice or a judgment or decision and the legal reasons and principles on which it is based.
Sec. 402.042. Questions of Public Interest and Official Duties
(a) On request of a person listed in Subsection (b), the attorney general shall issue a written opinion on a question affecting the public interest or concerning the official duties of the requesting person.
(b) An opinion may be requested by:
(1) the governor;
(2) the head of a department of state government;
(3) a head or board of a penal institution;
(4) a head or board of an eleemosynary institution;
(5) the head of a state board;
(6) a regent or trustee of a state educational institution;
(7) a committee of a house of the legislature;
(8) a county auditor authorized by law; or
(9) the chairman of the governing board of a river authority.
(c) A request for an opinion must be in writing and sent by certified or registered mail, with return receipt requested, addressed to the office of the attorney general in Austin. The attorney general shall:
(1) acknowledge receipt of the request not later than the 15th day after the date that it is received; and
(2) issue the opinion not later than the 180th day after the date that it is received, unless before that deadline the attorney general notifies the requesting person in writing that the opinion will be delayed or not rendered and states the reasons for the delay or refusal.
(d) The attorney general and the requesting person by written agreement may waive the provisions of Subsections (a) and (c) if the waiver does not substantially prejudice any person's legal rights.
Sec. 402.043. Questions Relating to Actions in Which the State is Interested
The attorney general shall advise a district or county attorney of this state, on the attorney's request, in the prosecution or defense of an action in which the state is interested before a district or inferior court if the requesting attorney has investigated the question involved and submitted a brief to the attorney general.
Sec. 402.044. Questions Relating to Bonds
The attorney general shall advise the proper legal authorities in regard to the issuance of bonds that by law require the attorney general's approval.
Sec. 402.045. Limitation
The attorney general may not give legal advice or a written opinion to a person other than a person named in this subchapter.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
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Opinions
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Legal Authority to Issue Opinions
Section 22 of Article IV of the Texas Constitution gives the Attorney General the authority to issue advisory opinions. That authorization has been more specifically defined in Sections 402.041 through 402.045 of the Government Code, which provide as follows:
Sec. 402.041. Definition
In this subchapter "opinion" means advice or a judgment or decision and the legal reasons and principles on which it is based.
Sec. 402.042. Questions of Public Interest and Official Duties
(a) On request of a person listed in Subsection (b), the attorney general shall issue a written opinion on a question affecting the public interest or concerning the official duties of the requesting person.
(b) An opinion may be requested by:
(1) the governor;
(2) the head of a department of state government;
(3) a head or board of a penal institution;
(4) a head or board of an eleemosynary institution;
(5) the head of a state board;
(6) a regent or trustee of a state educational institution;
(7) a committee of a house of the legislature;
(8) a county auditor authorized by law; or
(9) the chairman of the governing board of a river authority.
(c) A request for an opinion must be in writing and sent by certified or registered mail, with return receipt requested, addressed to the office of the attorney general in Austin. The attorney general shall:
(1) acknowledge receipt of the request not later than the 15th day after the date that it is received; and
(2) issue the opinion not later than the 180th day after the date that it is received, unless before that deadline the attorney general notifies the requesting person in writing that the opinion will be delayed or not rendered and states the reasons for the delay or refusal.
(d) The attorney general and the requesting person by written agreement may waive the provisions of Subsections (a) and (c) if the waiver does not substantially prejudice any person's legal rights.
Sec. 402.043. Questions Relating to Actions in Which the State is Interested
The attorney general shall advise a district or county attorney of this state, on the attorney's request, in the prosecution or defense of an action in which the state is interested before a district or inferior court if the requesting attorney has investigated the question involved and submitted a brief to the attorney general.
Sec. 402.044. Questions Relating to Bonds
The attorney general shall advise the proper legal authorities in regard to the issuance of bonds that by law require the attorney general's approval.
Sec. 402.045. Limitation
The attorney general may not give legal advice or a written opinion to a person other than a person named in this subchapter.
Why else do you think those regents bother? Altruistic? I bet not.
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
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Attorney General Opinions
What is an Attorney General Opinion?
Who can request an Attorney General Opinion?
About the Opinions process, and who may participate in it
Opinions on this Web site
What is an Attorney General Opinion?
An Attorney General Opinion is a written interpretation of existing law. The Attorney General writes opinions as part of his responsibility to act as legal counsel for the State of Texas. Opinions are written only at the request of certain state officials, called "authorized requestors." The Texas Government Code indicates to whom the Attorney General may provide a legal opinion. He may not write legal opinions for private individuals or for any officials other than those specified by statute.
Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law. Opinions interpret legal issues that are ambiguous, obscure, or otherwise unclear. Attorney General Opinions do not reflect the AG's opinion in the ordinary sense of expressing his personal views. Nor does he in any way "rule" on what the law should say.
Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. For this reason, the Attorney General generally does not write opinions on issues that are in pending litigation.
Who Can Request an Attorney General Opinion?
Sections 402.042 and 402.043 of the Government Code set out the state and local officials who are authorized to request formal Attorney General opinions on questions of law. The Attorney General is prohibited by statute from giving a written opinion to anyone other than an authorized requestor. Authorized requestors include:
* the Governor
* the head of a department of state government
* the head or board of a penal institution
* the head or board of an eleemosynary institution
* the head of a state board
* a regent or trustee of a state educational institution
* a committee of a house of the Texas Legislature
* a county auditor authorized by law
* the chairman of the governing board of a river authority
The Attorney General shall also advise a district or county attorney in certain instances in which the State is interested and certain requirements are met. In addition, the Attorney General shall advise the proper authorities in regard to the issuance of bonds that by law require the Attorney General's approval.
A person other than an authorized requestor who wants to ask for an opinion should approach someone who is named in statute as an authorized requestor. In addition, a county or precinct official can request a written opinion or written legal advice from the district or county attorney, regarding the official's duties under the law.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Attorney General Opinions
What is an Attorney General Opinion?
Who can request an Attorney General Opinion?
About the Opinions process, and who may participate in it
Opinions on this Web site
What is an Attorney General Opinion?
An Attorney General Opinion is a written interpretation of existing law. The Attorney General writes opinions as part of his responsibility to act as legal counsel for the State of Texas. Opinions are written only at the request of certain state officials, called "authorized requestors." The Texas Government Code indicates to whom the Attorney General may provide a legal opinion. He may not write legal opinions for private individuals or for any officials other than those specified by statute.
Attorney General Opinions clarify the meaning of existing laws. They do not address matters of fact, and they are neither legislative nor judicial in nature. That is to say, they cannot create new provisions in the law or correct unintended, undesirable effects of the law. Opinions interpret legal issues that are ambiguous, obscure, or otherwise unclear. Attorney General Opinions do not reflect the AG's opinion in the ordinary sense of expressing his personal views. Nor does he in any way "rule" on what the law should say.
Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. For this reason, the Attorney General generally does not write opinions on issues that are in pending litigation.
Who Can Request an Attorney General Opinion?
Sections 402.042 and 402.043 of the Government Code set out the state and local officials who are authorized to request formal Attorney General opinions on questions of law. The Attorney General is prohibited by statute from giving a written opinion to anyone other than an authorized requestor. Authorized requestors include:
* the Governor
* the head of a department of state government
* the head or board of a penal institution
* the head or board of an eleemosynary institution
* the head of a state board
* a regent or trustee of a state educational institution
* a committee of a house of the Texas Legislature
* a county auditor authorized by law
* the chairman of the governing board of a river authority
The Attorney General shall also advise a district or county attorney in certain instances in which the State is interested and certain requirements are met. In addition, the Attorney General shall advise the proper authorities in regard to the issuance of bonds that by law require the Attorney General's approval.
A person other than an authorized requestor who wants to ask for an opinion should approach someone who is named in statute as an authorized requestor. In addition, a county or precinct official can request a written opinion or written legal advice from the district or county attorney, regarding the official's duties under the law.
you can Imagine the obscure opinions "concern"s by the "concerned" Authorized Requestors.......
adjective
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
Of or concerned with charity: altruistic, benevolent, charitable, philanthropic, philanthropically. See give/take/reciprocity, kind/cruel.
r u SURE?
Without The Education "District" Code, would not have an election code to fight over.
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