Paxton, 072720 TXAGO, AGO RQ-0366-KP

Docket Nº:AGO RQ-0366-KP
Case Date:July 27, 2020
The Honorable Ken Paxton
AGO RQ-0366-KP
No. RQ-0366-KP
Texas Attorney General Opinion
July 27, 2020
          RECEIVED By Opinion Committee July 27, 2020          The Honorable Ken Paxton          Attention: Opinion Committee          P.O. Box 12548          Austin, TX 78711-2548          RE: Attorney General Opinion Request Housing Authority Instrumentalities; Public Facility Corporation Act          Dear General Paxton:          I am requesting your opinion regarding a non-profit corporation created by the Housing Authority of the City of New Braunfels, Texas (“Housing Authority”). The Housing Authority is operated pursuant to the provisions of the Texas Housing Authorities Law, Chapter 392 of the Local Government Code and complies with the Texas Open Meetings Act, Chapter 551 of the Government Code. This request seeks clarification of the legal status of a non-profit corporation created by the Housing Authority.          Legal Background          A housing authority is a governmental unit and can only act to promote a public purpose          The Housing Authorities Law describes the governmental nature of housing authorities and outlines their powers and duties. See generally Tex. Loc. Gov’t Code Sec. 392.001 et seq. For all purposes, a housing authority is a unit of government and the functions of a housing authority are essential governmental functions and not proprietary functions. Sec. 392.006. An authority is a public body corporate and politic. Sec. 392.011(b).          Other governmental attributes of a housing authority include:
■ its property is public property used for essential public and governmental purposes (Sec. 392.005(a));
■ it has a territorial area of operation (Sec. 392.014);
■ it is authorized to conduct hearings, administer oaths, issue subpoenas, and make findings and recommendations regarding a building or property where conditions exist that are dangerous to the public health, morals, safety, or welfare available to appropriate agencies (Sec. 392.060); and
■ it has the power of eminent domain (Sec. 392.061(a)).
         A housing authority is a governmental unit and can only act to promote a public purpose          A housing authority exercises public and essential governmental functions and has the powers necessary or convenient to accomplish the purposes and provisions of the Housing Authorities Law. Sec. 392.051(a). While a housing authority may take actions only to the extent “necessary or convenient to the exercise of the authority's powers.” Sec. 392.065(4). The powers of an authority are vested in the commissioners of the authority, and an authority may delegate a power or duty to an agent or employee as it considers proper. Sec. 392.051(b) and (c). Therefore, it would appear then that an authority can only delegate a power or duty it possesses and cannot otherwise act through a third party to perform acts the authority cannot do...

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