|Office of the Attorney General - State of Texas
December 19, 2000
Mr. Roy D. Hailey
Dear Mr. Hailey:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142834.
The Westbranch Community Association (the "association"), a property owners' association which you represent, received a request for access to all of its records. You state that in accordance with Article 1396-2.23.A. of the Texas Non-Profit Corporation Act, you will allow the requestor access to the responsive information. However, you argue that since the association does not meet the criteria set out in section 552.0035 of the Government Code, the association is not subject to the requirements of the Public Information Act (the "act"). We have considered your arguments and have reviewed the submitted information.
Section 552.0035 of the Government Code states:
A property owners' association is subject to [the act] in the same manner as a governmental body if:
(1) membership in the property owners' association is mandatory for owners or for a defined class of owners of private real property in a defined geographic area in a county with a population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more;
(2) the property owners' association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and
(3) the amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation under Section 20, Article VIII, Texas Constitution.
Therefore, a property owners' association is only subject to the act if it meets all three of the enumerated requirements.
You represent to this office that the association does not base its mandatory special or regular assessments, in whole or in part, on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation. Furthermore, you have provided for our review a portion of the association's restrictive covenants which supports your statements. Based on your representations and our review of the submitted information, we agree that the association does not meet the definition in section 552.0035 and, therefore, is not subject to the requirements of the act.
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 52.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.
June B. Harden
Ref: ID# 142834
cc: Ms. Yvonne Silva