What power does the Houston City Council have over the Houston-Harris County Sports Authority?

TX AG Opinion DM-0454: How much control does the Houston City Council have over the Houston-Harris County Sports Authority?

Plain-English summary

In 1997 the City of Houston and Harris County jointly created the Houston-Harris County Sports Authority under chapter 335 of the Local Government Code, the new venue-district law, to build and run sports facilities including a downtown ballpark for major league baseball. Senator Rodney Ellis asked the Attorney General a set of questions about what authority the Houston City Council kept over the new entity.

The Attorney General's bottom line: the council's role was narrow. The council and the county commissioners court together created the authority by adopting matching ("concurrent") orders, and after that the law vested the day-to-day powers in the authority itself. The one continuing power the statute gave the council was the right of prior approval over the authority's bonds and other obligations.

On the specific questions, the Attorney General answered "no" to three. The council could not approve change orders on the authority's contracts, because the power to contract belongs to the authority. It could not place restrictions on leases the authority negotiated, because the leasing power belongs to the authority too. And it had no general oversight responsibilities beyond approving bonds; because the Legislature spelled out that one reserved power, the opinion reasoned (citing Harris County v. Crooker) that other powers not granted were excluded.

The fourth question, whether the council could appoint or confirm the authority's directors, turned on the concurrent order. The statute gives the mayor the formal appointment power for the city's directors, to be exercised "in accordance with the concurrent order," and lets the order set the "manner of appointment." So the council could have written in a right to confirm the mayor's appointees. But the senator advised that, on the city attorney's recommendation, the order included no confirmation right. Without it, chapter 335 placed the sole appointment power in the mayor and the county judge.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construed chapter 335 of the Local Government Code as enacted in 1997 and the specific concurrent order that created this authority. Both the statute and the local arrangements may have changed since. Treat the analysis as historical.

Common questions

Could the Houston City Council appoint or confirm the authority's directors?
No, as the concurrent order was written. The statute gave the mayor the formal appointment power for the city's directors. The opinion said the council could have reserved a confirmation right by including one in the order's "manner of appointment," but on the city attorney's advice the order did not, so the appointment power rested solely with the mayor and county judge.

Could the council approve or block change orders on the authority's contracts?
No. The opinion concluded the power to contract was vested in the authority itself, not the council.

Could the council restrict the authority's lease agreements?
No. The opinion concluded the authority held the leasing power, so the council could not impose restrictions on leases the authority negotiated.

Did the council keep any ongoing power over the authority?
Yes, one. The statute gave the council (and the county) the right of prior approval over the authority's issuance of bonds and other obligations. The opinion found no general oversight role beyond that.

Background and statutory framework

Chapter 335 of the Local Government Code, added by House Bill 92 in 1997, let a county and a municipality create a venue district by adopting concurrent orders with identical provisions, district boundaries coextensive with the creating subdivisions, and a designated number of directors and manner of appointment (sections 335.021, 335.022). A district is governed by a board of at least four directors appointed by the mayors or county judges in accordance with the concurrent order, with directors removable at will by the appointing official (section 335.031); the board designates its own officers (section 335.034).

The general powers of the district (section 335.071) include performing any act necessary to exercise its powers, acquiring and disposing of property, adopting operating rules, and contracting with public or private persons (including a sports team) to develop an approved venue project. The district may issue bonds and other obligations to pay project costs, but for a district created by a county over 2.2 million in population and a municipality over 1.2 million, that bond power is "subject to the prior approval by the governing bodies of the county and municipality" (section 335.073(a)). Reading that reserved approval right against the general grant of powers to the district, and applying the principle that expressing one reserved power implies the exclusion of others (Harris County v. Crooker), the opinion concluded the council kept no broader oversight role.

Citations

Statutes:

• Tex. Local Gov't Code ch. 335; §§ 335.021, 335.022, 335.031, 335.034, 335.071, 335.073
• House Bill 92, Act of May 22, 1997, 75th Leg., R.S., ch. 551

Cases:

• Harris County v. Crooker, 248 S.W. 652 (Tex. 1923)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0454
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0454.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

November 7, 1997

The Honorable Rodney Ellis
Chair, Jurisprudence Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-454

Re: Authority of the Houston City Council with regard to the Houston-Harris County Sports Authority (RQ-986)

Dear Senator Ellis:

You have requested our opinion regarding the newly-created Houston-Harris County Sports Authority (the "authority"), which was established concurrently by the City of Houston and Harris County effective September 1, 1997. The authority was created under the provisions of chapter 335, Local Government Code. See H.B. 92, Act of May 22, 1997, 75th Leg., R.S., ch. 551, 1997 Tex. Sess. Law Serv. 1929, 1945-50. Chapter 335 provides, in pertinent part:

Sec. 335.021. CREATION. A county and a municipality . . . may create a venue district under this chapter to plan, acquire, establish, develop, construct, or renovate one or more venue projects in the district subject to voter approval under Subchapter D.

Sec. 335.022. ORDER CREATING DISTRICT. A county and a municipality . . . may create a district under this chapter by adopting concurrent orders. A concurrent order must:

(1) contain identical provisions;

(2) define the boundaries of the district to be coextensive with the combined boundaries of each creating political subdivision; and

(3) designate the number of directors, the manner of appointment, and the manner in which the chair will be appointed in accordance with Section 335.031.

Sec. 335.031. COMPOSITION AND APPOINTMENT OF BOARD.

(a) A district is governed by a board of at least four directors.

(b) The board is appointed by the mayors or county judges, or both as appropriate, of the political subdivisions that create the district in accordance with the concurrent order.

(c) Directors serve staggered two-year terms. A director may be removed by the appointing mayor or county judge at any time without cause. Successor directors are appointed in the same manner as the original appointees.

Sec. 335.034. OFFICERS. The presiding officer is designated as provided by the concurrent order. The board shall designate from the members of the board a secretary and other officers the board considers necessary.

. . . .

Sec. 335.071. GENERAL POWERS OF DISTRICT. (a) A district may:

(1) perform any act necessary to the full exercise of the district's powers;

. . . .

(3) acquire, sell, lease, convey, or otherwise dispose of property or an interest in property, including a right-of-way or easement or an approved venue project, under terms and conditions determined by the district;

. . .

(5) adopt rules to govern the operation of the district and its employees and property.

(b) A district may contract with a public or private person, including one or more political subdivisions that created the district or a sports team, club, organization, or other entity, to:

(1) plan, acquire, develop, construct, or renovate an approved venue project; or

(2) perform any other act the district is authorized to perform under this chapter, other than conducting an election under this chapter.

Sec. 335.073. BONDS AND OTHER OBLIGATIONS.

(a) A district in which an approved venue project is located may issue bonds, including revenue bonds and refunding bonds, or other obligations to pay the costs of the approved venue project. For a district created by a county with a population of more than 2.2 million and a municipality with a population of more than 1.2 million, the power of the district to issue bonds or other obligations is subject to the prior approval by the governing bodies of the county and municipality.

You ask a series of questions about the responsibility of the Houston City Council with regard to the authority:

1. Whether the city council has the formal power of appointment or right of confirmation of the directors.

2. Whether the city council has authority to approve change orders for Authority contracts.

3. Whether the city council may place restrictions on lease agreements negotiated by the Authority.

4. Whether the city council has general oversight responsibilities in addition to power to approve issuance of bonds and other obligations by the Authority.

We will first address your second, third, and fourth questions.

The answer to each of these questions is "no." The city council has very limited powers with regard to the authority. The council, together with the county commissioners court, is specifically authorized to "create" the authority by concurrent order. After the authority is created, the power to contract, Local Gov't Code section 335.071(b), and the power to enter into lease agreements, id. § 335.071(a), is vested in the authority itself. The council is, however, given the right of "prior approval" of bonds or other obligations. Id. § 335.073(a). Since the legislature reserved this authority to the council, it seems apparent that it meant to exclude others not specifically granted. See Harris County v. Crooker, 248 S.W. 652 (Tex. 1923). Thus, after the authority has been created, the city council has no "general oversight responsibilities" beyond its power to approve bonds or other obligations.

The answer to your first question depends on the terms of the concurrent order creating the authority. Although the mayor clearly holds the "formal power of appointment" of the city's designated members, Local Gov't Code section 335.031(b), he must exercise that power "in accordance with the concurrent order." The concurrent order may "designate . . . the manner of appointment." Id. § 335.022. In our opinion, the council's power to determine the "manner of appointment" means that it might have reserved to itself a right of confirmation of those directors appointed by the mayor. You advise, however, that "On the advice of the city attorney," the concurrent order did not contain a right of confirmation for the council. In the absence of such language, chapter 335 clearly places the sole power of appointment in the mayor and county judge.

SUMMARY

The Houston City Council does not have either the formal power of appointment or the right of confirmation of directors of the Houston-Harris County Sports Authority (the "authority"). The city council is not empowered to approve change orders for authority contracts or to place restrictions on lease agreements negotiated by the authority, nor does it have general oversight responsibilities over the authority beyond the right to approve the issuance of bonds and other obligations.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General