Can a Texas school board post its trustees' personal financial statements on the district website?

Plain-English summary

A 2013 Texas law, section 11.0641 of the Education Code, requires school board members in El Paso County to file an annual personal financial statement. The statute is written narrowly: it applies only to independent school districts in a county on the international border that also contains a municipality of 600,000 or more people, which is El Paso County, and a fiscal note said it was bracketed to reach nine districts there. Each trustee files the statement two places, with the board of trustees and with the county commissioners court, and the commissioners court enforces the deadline. A late filer owes the county a $500 civil penalty (up to $10,000 in aggravated cases), and a trustee who does not file at all commits a Class B misdemeanor.

The chair of the House Transportation Committee asked the AG two things: may a board post these statements on the district website, and may a board majority require posting even over a trustee who objects? The wrinkle is that the statute borrows the Texas Ethics Commission's public-access rules (Subchapter B of Chapter 572, Government Code) and assigns them to the commissioners court, not to the school board. So the statute itself does not tell the board what to do with the copy it receives.

The AG worked the gap through general public-records law instead. The financial statements are public records under section 572.032(a). Under the Public Information Act, a governmental body must promptly produce public information, and the authority to post the records online can be implied as incident to that duty. Reading the commissioners-court procedures onto the board would mean inserting words the Legislature did not write, which courts avoid. So the AG concluded a court would likely find posting within the board's discretion. On the second question, because a board acts only by majority vote and the statute gives no individual trustee a veto over disclosure, a board majority may require posting over an objecting trustee. The AG cautioned that any confidential information, such as Social Security numbers or protected personal information, should be withheld.

Currency note

This opinion was issued in 2016. 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. Section 11.0641 of the Education Code, Chapter 572 of the Government Code, and the Public Information Act may have been amended since 2016, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

El Paso County school boards subject to section 11.0641 (as the opinion described it): The opinion described it as within the board's discretion to post member trustees' personal financial statements on the district website, treating the statements as public records under section 572.032(a) and the posting authority as implied under the Public Information Act.

Individual trustees (as the opinion described it): The opinion concluded that section 11.0641 does not give an individual trustee a right to block disclosure of the copy filed with the board, so a board majority could require posting over that trustee's objection.

Members of the public (as the opinion described it): The opinion noted the public could still seek inspection of the complete financial statements from the commissioners court under section 11.0641 and Chapter 572, the office to which the statute assigned the Texas Ethics Commission's access role.

Anyone handling the records (as the opinion described it): The opinion cautioned that the statements may contain information made confidential or protected by other law, and that the board should withhold such information rather than post it.

Common questions

Can an El Paso school district post its trustees' financial statements online?
The AG concluded a court would likely find it within the board's discretion to do so, because the statements are public records and posting them can be implied as incident to the board's duties under the Public Information Act.

Does the law actually require the board to post them?
No. The AG read the statute as giving the board discretion, not a mandate. The specific access and inspection procedures in section 11.0641(c) were assigned to the county commissioners court, not the board.

Who does section 11.0641 apply to?
The AG noted it applies only to independent school districts in a county on the international border that also contains a municipality of 600,000 or more, which is El Paso County, and a fiscal note said it was bracketed to nine districts there.

Can a trustee refuse to have their statement posted?
The AG concluded a board majority may require posting over an individual trustee's objection, because a board acts only by majority vote and the statute gives no trustee a personal veto over disclosure.

Could sensitive personal details end up online?
The AG cautioned that the statements may contain confidential or protected information, such as Social Security numbers or addresses protected by other law, and said a board should withhold that information.

Background and statutory framework

Section 11.0641 of the Education Code requires each member of the board of trustees of a covered independent school district to file a financial statement with both the board and the county commissioners court, and it makes a late filing punishable by a $500 civil penalty (up to $10,000 in aggravated cases) and a non-filing a Class B misdemeanor (Tex. Educ. Code § 11.0641). Section 11.0641(c) applies Subchapter B of Chapter 572 of the Government Code, governing contents, timeliness, and public inspection, as if the trustee were a state officer and the commissioners court were the Texas Ethics Commission. The relevant access provision, section 572.032, declares such statements public records and sets out how the commission maintains and provides access to them (Tex. Gov't Code § 572.032).

Because section 11.0641 does not address what the board must do with its copy, the AG turned to general public-records law. Under the Public Information Act, a governmental body must promptly produce public information (Tex. Gov't Code § 552.221), and a board possesses powers necessarily implied from its express powers (Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699). The AG declined to read the commissioners-court procedures onto the board, citing the rule that courts do not insert non-existent language into statutes (MCI Sales & Serv. v. Hinton, 329 S.W.3d 475). The AG also flagged confidentiality limits in other law (Tex. Bus. & Com. Code § 521.051; Tex. Gov't Code § 552.117; Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112) and the offense for distributing confidential information (Tex. Gov't Code § 552.352). A separate Education Code provision lets some boards require filings with the Ethics Commission instead (Tex. Educ. Code § 11.064).

Citations

Statutory provisions:

• Tex. Educ. Code § 11.0641 (El Paso County trustee financial-statement filing, penalties, and applied Chapter 572 procedures)
• Tex. Educ. Code § 11.064 (separate financial-statement filing with the Texas Ethics Commission)
• Tex. Educ. Code § 11.051 (board acts only by majority vote of members present)
• Tex. Gov't Code § 572.032 (public access to filed financial statements)
• Tex. Gov't Code § 552.221 (Public Information Act duty to promptly produce public information)
• Tex. Gov't Code § 552.117 (confidentiality of certain addresses, phone numbers, and personal information)
• Tex. Gov't Code § 552.352 (offense for distributing confidential information)
• Tex. Gov't Code § 552.021 (general rule of required disclosure)
• Tex. Bus. & Com. Code § 521.051 (unauthorized use or possession of personal identifying information)

Cases:

• Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref'd n.r.e.)
• MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 502 (Tex. 2010)
• Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 119 (Tex. 2011)
• York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 685 (Tex. App.-Austin 2013, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0069
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0069.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 14, 2016

The Honorable Joseph C. Pickett Opinion No. KP-0069
Chair, House Committee on Transportation
Texas House of Representatives Re: Whether a school district board of
Post Office Box 2910 trustees may post on the district website the
Austin, Texas 78768 personal financial statements of board
members submitted pursuant to section
11.0641 of the Education Code
(RQ-0053-KP)

Dear Representative Pickett:

You ask whether a school district board of trustees may post on the district website the personal financial statements of board members submitted pursuant to section 11.0641 of the Education Code. [1] Section 11.0641 "applies only to the board of trustees of an independent school district that is located in a county that is located on the international border and in which a municipality with a population of 600,000 or more is located," i.e., El Paso County. TEX. EDUC. CODE § 11.0641(a); see Fiscal Note, Tex. H.B. 343, 83d Leg., R.S. (2013) at 1 (stating that "[t]he bill is bracketed to apply to nine independent school districts (ISDs) within El Paso County"). Subsection (b) of the statute requires "[e]ach member of the board of trustees of an independent school district [to] file a financial statement with: (1) the board of trustees; and (2) the commissioners court of the county in which the school district's central administrative office is located." TEX. EDUC. CODE § 11.0641(b). Under the statute, the commissioners court is to determine "whether a statement required to be filed under this section is late," in which case "the individual responsible for filing the statement is liable to the county for a civil penalty of $500" and, in aggravated circumstances, may be the basis of a civil penalty of up to $10,000. Id. § 11.0641(e). Moreover, a trustee who fails to file the required statement commits a Class B misdemeanor offense. Id. § 11.0641(d).

Section 11.0641(c) provides:

The provisions of Subchapter B, Chapter 572, Government Code, governing the contents, timeliness of filing, and public inspection of a statement apply to a statement filed under this section as if the trustee were a state officer and the commissioners court of the county were the Texas Ethics Commission.

Id. § 11.0641(c) (emphasis added). [2] Accordingly, 11.0641(c) gives the commissioners court the powers and responsibilities of the Texas Ethics commission with respect to the contents, timeliness, and public inspection of a financial statement required by the section. In subchapter B, chapter 572, the provision concerning "Public Access to Statements" is section 572.032, which provides:

(a) Financial statements filed under this subchapter are public records. The commission shall maintain the statements in separate alphabetical files and in a manner that is accessible to the public during regular office hours.

(a-1) The commission shall remove the home address of a judge or justice from a financial statement filed under this subchapter before:
(1) permitting a member of the public to view the statement; or
(2) providing a copy of the statement to a member of the public.

(b) During the one-year period following the filing of a financial statement, each time a person requests to see the financial statement, excluding the commission or a commission employee acting on official business, the commission shall place in the file a statement of the person's name and address, whom the person represents, and the date of the request. The commission shall retain that statement in the file for one year after the date the requested financial statement is filed.

(c) After the second anniversary of the date the individual ceases to be a state officer, the commission may and on notification from the former state officer shall destroy each financial statement filed by the state officer.

TEX. GOV'T CODE § 572.032. Thus, these access provisions apply only to the Texas Ethics Commission and, by virtue of section 11.0641(c), the commissioners court.

While section 11.0641 of the Education Code requires a copy of the financial statement to be filed with the board of trustees, it does not address the responsibilities of the board that receives the required statement. See TEX. EDUC. CODE § 11.0641(a). Thus, we must consider other law governing access to public records held by governmental bodies. We are not aware of any statute, judicial opinion, or other law that generally prohibits a governmental body from posting a personal financial statement on its website. But personal financial statements that are required to be filed under chapter 572, subchapter B are public records. TEX. GOV'T CODE § 572.032(a). Under the Public Information Act ("PIA"), a governmental body has a duty to promptly produce public information. Id. § 552.221. The authority to provide access to personal financial statements by posting them on the district website may be implied as incident to the board of trustees' duties and authority under the PIA. See Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref'd n.r.e.) (determining that a board of trustees possesses powers expressly conferred on it by law or necessarily implied from its express powers); Tex. Att'y Gen. Op. No. ORD-682 (2005) at 7 (noting that, while making information available on a website does not satisfy section 552.221 of the PIA, "a requestor may agree to accept information on a governmental body's website in fulfillment of the request" for information under the PIA). Accordingly, a court would likely conclude that it is within the board of trustees' discretion to post on the district website the personal financial statements of board members submitted pursuant to section 11.0641 of the Education Code.

Members of the Legislature may have intended for the board to require the same procedures as the commissioners court, but the language of the statute does not do so. To conclude that the procedures in subsection 11.0641(c) apply to the board of trustees requires reading language into the statute, which courts generally do not do. MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 502 (Tex. 2010) (observing that "courts should not by judicial fiat insert non-existent language into statutes"). If the Legislature intended for the board to follow those procedures, it should amend the statute accordingly.

The personal financial statements required by section 11.0641 may contain information made confidential or otherwise protected under other law. See, e.g., TEX. BUS. & COM. CODE § 521.051 ("Unauthorized Use or Possession of Personal Identifying Information"); TEX. GOV'T CODE § 552.117 ("Exception: Confidentiality of Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information"); Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 119 (Tex. 2011) (noting that information protected under the common-law privacy doctrine is exempt from disclosure under the PIA). Thus, while a board has discretion to post financial statements required by section 11.0641 on its website, it is cautioned that it should withhold information made confidential or otherwise protected by other law. See TEX. GOV'T CODE § 552.352(a) ("A person commits an offense if the person distributes information considered confidential under the terms of [the PIA]."). Members of the public who desire to do so may seek an inspection of the complete financial statements in full from the commissioners court under section 11.0641 of the Education Code and chapter 572 of the Government Code. [3]

Your second question is whether "the board of trustees by a majority vote [may] require the posting of the personal financial statement of a trustee who objects." Request Letter at 2. A board of trustees "may act only by majority vote of the members present at a meeting." TEX. EDUC. CODE § 11.051(a-1). Section 11.0641 of the Education Code does not create a right in an individual trustee to limit disclosure of the copy of the public document filed with the board of trustees. Thus, under section 11.0641, a majority of the board of trustees may require the posting of the personal financial statement of an individual trustee over the trustee's objections. [4]

SUMMARY

A court would likely conclude that it is within the discretion of a school board of trustees subject to section 11.0641 of the Education Code to post on the district's website the personal financial statements of member trustees required by that section. Under section 11.0641, a majority of the board of trustees may require the posting of the personal financial statement of an individual trustee over the trustee's objections.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See generally Letter and Brief from Honorable Joseph C. Pickett, Chair, House Transp. Comm., to Honorable Ken Paxton, Tex. Att'y Gen. (Sept. 14, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Brief," respectively).

[2] Under a different section of the Education Code, a board of trustees, or in certain instances the commissioner of education, may require a board's members to file a financial statement with their board and the Texas Ethics Commission, not with a county commissioners court. TEX. EDUC. CODE § 11.064(a)-(a-4).

[3] See York v. Tex. Guaranteed Student Loan Corp., 408 S.W.3d 677, 685 (Tex. App.-Austin 2013, no pet.) (holding that exceptions from general rule of required disclosure under section 552.021 of the Public Information Act "do not ... purport to operate more generally against public-access or disclosure requirements created or imposed by other law").

[4] Because the answer to your first question is in the affirmative, we do not address your third question.