Untitled Texas Attorney General Opinion

May 5,1999

Mr. Charles L. Dunlap Opinion No. JC-0043

Executive Director

Teacher Retirement System of Texas Re: Permissible investments of Teacher

1000 Red River Retirement System and related questions

Austin. Texas 78701 (RQ-1174)

Dear Mr. Dunlap:

On behalf of the Board of Trustees of the Teacher Retirement System (the “Board”), you

inquire about the Board’s authority to invest the retirement system’s trust fund. You first inquire

about the scope of the term “securities” in article XVI, section 67 of the Texas Constitution, which

provides that the assets of the retirement system are to be invested in “such securities as the board

may consider to be prudent investments.” We reject the conclusion of Attorney General Opinion

MW-152 (1980) and Letter Opinion No. 94-052 that “securities” within this provision consists of

those investments that the federal Securities and Exchange Commission or the State Securities Board

has determined to be a security within the regulatory statutes they administer. Instead, we conclude

that “securities” is to be defined by reference to chapter 8 of the Texas Business and Commerce

Code, which defines securities for investment purposes.

You also inquire about the authority of the Board under sectibn 825.301(b) of the Texas

Government Code to delegate authority to manage certain investments to outside managers. We

conclude that the Board of Trustees lacks authority to delegate its discretionary authority over

investments to private investment managers.

I. Introduction

Article XVI, section 67(b)(l) of the Texas Constitution provides that the “legislature shall

establish by law a Teacher Retirement System of Texas to provide benefits for persons employed

in the public schools, colleges, and universities supported wholly or partly by the state.” See TEX.

CONST.art. XVI, 5 67(b)(2) (similar provision applicable to the Employees Retirement System for

officers and employees of the state). The amount contributed by a person participating in the

Teacher Retirement System of Texas (“TRS”) “shall be established by the legislature but may not

be less than six percent of current compensation.” Id. 5 67(b)(3). See TEX. GOV’TCODEANN.

5 x25.402(5) (Vernon 1994) (rate of contribution for retirement system members is 6.4 percent of

member’s annual compensation). “The amount contributed by the state may not be less than six

Mr. Charles L. Dunlap - Page 2 (X-0043)

percent nor more than 10 percent of the aggregate compensation paid to individuals participating in

the system.” TEX. CONST.art. XVI, $67(b)(3); see TEX. GOV’TCODEANN. 5 825.404(a) (Vernon

1994) (state contributes to retirement system an amount equal to eight percent of aggregate annual

compensation of all retirement system members during that fiscal year).

The TRS trust fund, which is held in trust for the benefit of members, TEX. CONST.art. XVI,

5 67(a), exceeds $60 billion in value. Brief from Teacher Retirement System of Texas to Office of

Attorney General 15 (Sept. 18,199s) [hereinafter TRS Brief 9/18/98]. Approximately sixty percent

ofthe portfolio is invested in equity securities traded on domestic and foreign public exchanges, with

the bulk of the remainder invested in fixed-income instruments such as corporate and government

bonds. Id. at 14. “Depending on the current market values of the publicly-traded securities in the

portfolio, between 1 and 3% of the portfolio is invested in real estate mortgages or real estate accrued

through foreclosure or deed in lieu of foreclosure and alternative investments such as the Texas

Growth Fund.” Id.; see TEX. CONST.art. XVI, 5 70 (establishing Texas Growth Fund to make

investments “directly related to the creation, retention or expansion of employment opportunity and

economic growth in Texas” and authorizing investment in growth fund of TRS fund and certain

other constitutionally established trust funds).

As background to your questions, you refer to the “Report to the Legislative Audit

Committee Regarding the Investment Program and Practices of the Texas Teacher Retirement

System,” prepared by Independent Fiduciary Services, Inc. (“Fiduciary Services”), and submitted

to the Legislative Audit Committee in October of 1996. The Report suggests that the Teacher

Retirement System consider investing in “alternative” investments, high yield bonds, and financial

futures contracts as a means of diversifying its investments. “Alternative investments,” as

commonly defined, include “a wide range of disparate strategies and types of assets, including

emerging market securities (i.e., debt and equity of companies based in underdeveloped countries),

private domestic equity (including venture capital and mezzanine financing), international private

equity, leveraged buy-out funds, distressed securities (issued by companies which the investment

manager seeks to “turn around”), oil and gas programs, timberland and farmland.” INDEPENDENT

FIDUCIARYSERVICES,INC., REPORTTO THE LEGISLATIVE

AUDIT COMMI~EE REGARDINGTHE

INVESTMENTPROGRAMANDPRAC~CESOFTHETEXASTEACHERRETIREMENTSYSTEM 146-47 (1996)

[hereinafter IFS Report]. A State Auditor’s report on investment practices at certain state investing

entities defines “alternative investments” as follows:

Investment opportunities which have not been identified by

traditional public equity or fixed income capital markets. Also may

be defined as private, non-traditional, illiquid investments. . .

Alternative investments are accomplished almost exclusively through

private offerings of debt or equity interests, and are often made

through entities organized as limited partnerships. Examples of

alternative investments include international and emerging market

stocks, hedge funds, event driven strategies+ well as illiquid equity

Mr. Charles L. Dunlap - Page 3 (X-0043)

investments such as venture capital, mezzanine financing, private

equity and buy-out investing, real estate, and oil and gas.

OFFICEOF THE STATEAUDITOR,A REVIEWOF CONTROLSOVERINVESTMENT PRACTICESAT SIX

MAJOR STATEINVESTINGENTITIES177 (Nov. 1996) [hereinafter Review]; SW also id. at 180

(“mezzanine financing” is investment in the subordinated debt of privately owned companies, the

debt holder participating in equity appreciation through conversion features such as rights, warrants,

or options).

The Independent Fiduciary Services report also recommends that the Board “promptly and

expressly” decide whether to renew the mortgage loan program, setting out certain fundamental

issues the Board should address in making this decision. IFS Report supra, at 42. In deciding

whether and in what form to renew mortgage lending, “the Board should consider retaining a

nationally-prominent strategic real estate consulting firm.” Id. at 43.

The report states that the review was conducted primarily from an investment perspective

and it is not expressing an opinion as to the legality of the measures it recommends. Id. at 5.

Following a discussion of the merits of delegating investment authority to outside investors, the

report recommends that “the Board seek to obtain appropriate clarification or support (whether

through legislation, constitutional amendment, if necessary or otherwise), permitting it to delegate

investment authority. .” Id. at 26. Thus, the report does not assume that TRS has present

authority to implement its recommendations. See alsoReview supru, at 26 (suggesting that TRS and

ERS jointly request attorney general opinion regarding their ability to delegate investment authority).

II. What is the meaning of usecurities” in article XVI, section 67(a)(3) of the Texas

Constitution?

Your first question is as follows:

1. For purposes of determining the scope of TRS’ constitutional and

statutory investment authority, is the definition of “securities” for

regulatory purposes, e.g., under The Securities Act, TEX. REV. CIV.

STAT. ANN. art. 581-4(A) (Vernon Supp. 1998), the sole and

exclusive definition upon which TRS must rely? If not, may TRS rely

on the concept that a security is the evidence of debt or of ownership

obtained as a result of the outlay or commitment of money for the

purpose and with the expectation of earning revenue, income or profit

from its employment in a common (separate) enterprise?

The term “security” is not defined in the constitutional provision, nor is it defined by a statute

applicable to TRS. Section 825.301 of the Government Code authorizes the TRS Board to “invest

and reinvest assets of the retirement system without distinction as to their source in accordance with

Section 67, Article XVI, Texas Constitution” and expressly provides that the Board may invest in

Mr. Charles L. Dunlap - Page 4 (X-0043)

a list of specific securities: “[Olbligations issued, assumed, or guaranteed by the Inter-American

Development Bank, the International Bank for Reconstruction and Development (the World Bank),

the African Development Bank, the Asian Development Bank, and the International Finance

Corporation.” Government Code section 825.301(a) also provides that the Board’s “[ilnvestment

decisions are subject to the standard provided in the Texas Trust Code by section 113.056(a),

Property Code,” which states the prudent person rule. See Hoenig & Union Nat ‘1Bank v. Texas

Commerce Bunk, 939 S.W.2d 656,661 (Tex. App.-San Antonio 1996, no writ).

Prior opinions of this office have advised TRS that the term “securities” in the Texas

Constitution, article XVI, section 67(a)(3), is defined according to the definition of this term in the

federal and state securities regulatory acts. See Tex. Att’y Gen. Op. No. MW-152 (1980), Tex. Att’y

Gen. LO-94-052. We examine this prior advice in light of an analysis of article XVI, section 67 of

the Texas Constitution.

A. Historv of article XVI. section 67 of the Texas Constitution

Article XVI, section 67 of the Texas Constitution was adopted in 1975 by the voters’

approval of a resolution that consolidated nearly all constitutional provisions relating to state

and local retirement systems. CONSTITUTION OFTHESTATEOFTEXAS, Amendments Adopted in

1973-1975, 1975 Tex. Gen. Laws LXXV, XLVII,LXXXII-LXXXIII.The constitutional provision sets

out the following duties of trustees of statewide retirement systems:

[e]ach statewide benefit system must have a board of trustees to

administer the system and to invest the funds of the system in such

securities as the board may consider prudent investments. In making

investments, a board shall exercise the judgment and care under the

circumstances then prevailing that persons of ordinary prudence,

discretion, and intelligence exercise in the management of their own

affairs, not in regard to speculation, but in regard to the permanent

disposition oftheir funds, considering the probable income therefrom

as well as the probable safety of their capital. The legislature by law

may further restrict the investment discretion of a board.

TEX. CONST. art. XVI, 5 67(a)(3). This provision applies to the trustees of the Employees

Retirement System (“ERS”) as well as the trustees ofthe Teacher Retirement System. It establishes

two important limitations for statewide retirement systems-the funds are to be invested in

“securities” and these investments are to be made according to the “prudent person” standard that

it sets out.

Local retirement systems are not subject to the constitutional constraints that apply to

statewide retirement systems. Article XVI, section 67(c) provides that the “legislature shall provide

by law” for creation of a benefits system by a city or county for its officers and employees and for

statewide benefit systems available to the officers and employees of cities, counties, and other

Mr. Charles L. Dunlap - Page 5 (X-0043)

political subdivisions. TEX. CONST.art. XVI, $ 67(c). Thus, the constitution does not limit local

retirement systems to investing in “securities,” nor does this provision state the standard of care

applicable to trustees in making investment decisions for local retirement systems. The legislature

may address these aspects oflocal retirement systems absent the constitutional constraints applicable

to laws on statewide retirement systems. See Williams v. McKnight, 402 S.W.2d 505 (Tex. 1966)

(legislature may not enact laws in conflict with the constitution); Jones v. Williams, 45 S.W.2d 130

(Tex. 1931) (legislature may enact any law not in violation of state or federal constitution).

The constitutional provision that had formerly governed the investment of TRS assets, was

repealed by adoption of the same resolution that proposed article XVI, section 67. See TEX. CONST.

of 1965, art. III, $48b (repealed 1975). The former provision authorized the TRS Board to invest

the assets of the System in specific and narrow categories of investments: bonds, notes or other

evidences of indebtedness of the United States, the State of Texas, or a political subdivision of the

State of Texas, corporate stocks, bonds, notes, and other evidences of indebtedness, and land, a

building, and equipment for the TRS offices. Tex. S.J. Res. 27, 59th Leg., R.S., 1965 Tex. Gen.

Laws 2201. Article XVI, section 67 authorized the Boards of TRS and ERS “to invest the fimds of

the system in such securities as the board may consider prudent investments,” thus broadening their

investment authority while including strict safeguards for fund security. TEX. LEG. COUNCIL,2

PROPOSED CONSTITUTIONAL AMENDMENTS ANALYZED 3 (Apr. 22,1975); see also COMM.ONCONST.

REV.,BILLANALYSIS,Tex. S.J.R. 3,64th Leg., R.S. (1975). Given the nature of the TRS funds and

the constitutional language, the underlying purpose of the constitutional provision must necessarily

be to safeguard the funds and maximize returns to provide teachers with the maximum retirement

benefits. See Woods v. Reilly, 218 S.W.2d 437,442 (Tex. 1949) (purpose of former art. III, 5 48a

ofthe Texas Constitution of 1936 (repealed 1965) was to provide security for public school teachers

and provide incentive for qualified persons to become and remain teachers).

Article XVI, section 67, represents a development ofthe categorical approach to investments

found in its predecessor, former article III, section 48b of the Texas Constitution, but it still places

limits on the class of investments permissible for retirement system funds. For example, in 1980,

this office advised TRS that it could not invest in real estate, because real estate was not a security

within the constitutional provision. Tex. Att’y Gen. Op. No. MW-152 (1980). In 1982, a legislative

study of public retirement systems commented as follows on the attorney general’s opinion:

Investment of the [TRS] fund is governed by a provision in

the Texas [Clonstitution which specifies that the trustees are

responsible for investing system assets in such securities as are

deemed prudent. This version of the ‘prudent person rule,’ as inter-

preted by the State Attorney General, effectively precludes invest-

ments in such categories as equity real estate or tangible assets which

might, depending on the nature and form ofthe investment and other

Mr. Charles L. Dunlap - Page 6 (JC-0043)

circumstances otherwise be deemed prudent by a board of trustees

working under a pure version of the prudent person rule.

SELECTCOMM.ONPUB.RETIREMENT SYSTEMS, F&PORTTOSPEAKERANDMEMBERSOFTHETEXAS

HOUSEOFREPRESENTATIVES

68~~ LEGISLATURE

52 (Oct. 1982) (emphasis in original) [hereinafter

PRS Report]. A “pure” version of the “prudent person rule” would allow a board of trustees to

invest funds limited solely by the “prudent person rule.” See generally HOUSERETIREMENT &

AGING COMM., BILLANALYSIS,Tex. S.J. Res. 6, 72d Leg., R.S. (1991). The report recommended

to the legislature the removal of specific constitutional and statutory restrictions on the investment

of the assets of ERS and TRS and the grant of investment authority in the form of the prudent person

rule as defined by common law. PRS Report supra, at 54. The Sixty-eighth Legislature did not

propose an amendment to article XVI, section 67, but it did adopt provisions authorizing the trustees

of TRS to “contract with private professional investment managers to assist the board in investing

the assets of the retirement system.” Act ofMay 29,1983,68th Leg., R.S., ch. 926,s 4, 1983 Tex.

Gen. Laws 5099,510O (now codified as TEX. GOV’TCODEANN.§ 825.301(b) (Vernon 1994)).

In 1991 the legislature proposed an amendment to article XVI, section 67 that would have

substituted a “pure” version of the “prudent person” rule for the present language, but it was rejected

by the voters. The amendment, proposed by Senate Joint ResolutionNo. 6, would have deleted from

article XVI, section 67, the language authorizing the trustees “to invest the funds of the system in

such securities as the board may consider prudent investments,” and provided them authority “to

invest the funds of the system in such manner as the board may consider prudent.” Tex. S.J. Res.

6, 72d Leg., R.S., 1991 Tex. Gen. Laws 3520 (emphasis in original). The bill analysis for the

proposed amendment provides the following background:

Over several legislative sessions, the Employees Retirement

System (ERS) and the Teacher Retirement System (TRS) enabling

laws have been amended to remove statutory lists of legal

investments for those funds. However, an Attorney General’s

opinion (MW-152) has held that the Constitution’s use of the word

“securities” restricts the systems from certain investments.

HOUSERETIREMENT&AGINGCOMM.,BILLANALYSIS,T~~.S.J.R~~.~,~~~L~~.,R.S. (1991). Thus,

article XVI, section 67(a)(3) has not been amended since it was adopted in 1975. We note, however,

that a pending resolution proposes an amendment to article XVI, section 67(a)(3) of the Texas

Constitution that would delete the term “securities” and authorize the board of a statewide system

“to invest the funds of the system in such investments as the board may consider prudent

investments.” Tex. H.R.J. Res. 9, 76th Leg., R.S. (1999) (proposing a constitutional amendment

relating to investment of the Texas Growth Fund and by statewide public retirement systems)

(emphasis added).

Mr. Charles L. Dunlap - Page 7 UC-0043)

B. Rules of constitutional construction

With the history of article XVI, section 67 in mind, we attempt to define “securities” as it

appears in this constitutional provision. The provision itself does not define the term “securities,”

nor are there any judicial decisions construing this term. The statute implementing the TRS

investment authority, Government Code section 825.301(a), essentially restates the constitutional

authorization and therefore provides us with no guidance in defining terms used in article XVI,

section 67. See generally Hill County v. Sheppard, 178 S.W.2d 261 (Tex. 1944) (court looks to

statute creating office of “criminal district attorney” to construe that term in article V, section 21 of

Texas Constitution); Aerospace Optimist Club v. Texas Alcoholic Beverage Comm ‘n, 886 S.W.2d

556,560 (Tex. App.-Austin 1994, no writ) (looking to bingo statute’s definition of “proceeds” to

define that term in article III, section 47, Texas Constitution).

In construing the state constitution, a court will give effect to its plain language, also

considering the purpose of the provision, its historical context, and the collective intent of the

framers and the people who adopted it. Republican Party v. Die&, 940 S.W.2d 86,89 (Tex. 1997);

Con v. Robinson, 150 S.W. 1149, 1151 (Tex. 1912) (proceedings of legislative body framing

provision may be examined to aid in resolving questions of construction). See Aerospace Optimist

Club, 886 S.W.2d at 560 (we “look to other sources for instruction as to the meaning and purpose”

of the term, including legislative interpretations). The prior state ofthe law may be examined. Cox,

150 S.W. at 1156. The constitution must be read as a whole and ambiguities may be resolved by

reference to other parts ofthe constitution. Collingsworth County v. Allred, 40 S.W.2d 13,14 (Tex.

193 1). Thus, a clause that, standing by itself, might seem of doubtful import may yet be made plain

by comparison with other clauses or portions of the same instrument. Purcell v. Lindsey, 314

S.W.2d 283 (Tex. 1958); Snelson v. Murray, 252 S.W.2d 720 (Tex. Civ. App.-El Paso 1952, writ

ref d n.r.e.).

The meaning of constitutional provisions may be ascertained by reference to the common

law. Trimmier v. Carlton, 296 S.W. 1070, 1079 (Tex. 1927) (delegation of legislative powers). A

dictionary may be consulted to determine the meaning of a word employed in a statute. Texas &

P.Ry. Co. v. Railroad Comm’n, 150 SW. 878,881 (Tex. 1912); see Booth v. Strippleman, 61 Tex.

378,3 82 (1884) (rules analogous to those goveming interpretation ofstatutes and private instruments

are referred to in construing constitutional provisions). However, one word may be used to express

different ideas, Oden v. Gates, 24 S.W.2d 381 (Tex. 1930), and this is true ofthe word “securities.”

Bahre v. Pearl, 595 A.2d 1027, 1035 (Me. 1991) (definitions of “security” in securities regulatory

statute and Uniform Commercial Code article 8 are separate and distinct). The meaning of a word

must be determined according to the context, subject matter, and evident intent of the framers and

the people. Oden, 24 S.W.2d at 382. When one of two equally reasonable constructions of a

constitutional provision will give rise to fewer or less complicated questions in its application, that

constructionshouldbe favored. Thomnsv. Creuger, 107 S.W.2d705,710 (Tex. Civ. App.-Eastland

1937, writ dism’d); see also Moore v. Edna Hosp. Dist., 449 S.W.2d 508, 526 (Tex. Civ.

App.Xorpus Christi 1969, writ ref d n.r.e.). When, in addition, one of the two constructions will,

Mr. Charles L. Dunlap - Page 8 (X-0043)

to a greater degree, effect the purpose of the provision, such construction should be adopted.

Creager, 107 S.W.2d at 710.

C. Common-law and dictionarv definitions of “securities”

The TRS argues that “securities” within the constitutional provision should be defined by

reference to the common law and to dictionary definitions, stating that the definition of securities

found in the regulatory statutes is too uncertain to provide the exclusive source for determining its

constitutional investment authority. TRS Brief 9/l S/98, at 49. “Securities,” as TRS defines the term

on the basis of the common law and dictionaries, would include any evidence of debt, property, or

ownership, and evidences of obligations to pay money or of rights to participate in earnings and

distribution of corporate, trust, or other property. Id. at 3-4. TRS suggests that cases interpreting

the term “securities” in wills may be instructive, id. at 36, but we disagree. Such common-law

definitions were developed to construe a particular will, not to determine appropriate investments

for a public pension fund. See Huckubee v. Hansen, 422 S.W.2d 606,609 (Tex. Civ. App.Corpus

Christi 1967, no writ) (considering whether “securities” in context ofwill included savings account);

see also Ocean Accident & Guarantee Corp., Ltd. v. First Nat ‘IBank, 84 S.W.2d 1111,1115 (Tex.

Civ. App.-Galveston 1935, writ dism’d) (“securities” within bank burglary and robbery policy

included loss of jewelry held by insured as collateral security for loans). These common-law

definitions do not apply to the term “securities” as used in article XVI, section 67.

In connection with its argument that dictionary definitions may be relied upon to construe

“securities,” the TRS brief cites Webster’s dictionary, which defines “security” as “an evidence of

debt or of ownership (as a stock certificate or bond).” TRS Brief g/18/98, at 35 (citing WEBSTER’S

NEW COLLEGIATEDICTIONARY1045 (8th ed. 1973) & MERRIAM-WEBSTER’COLLEGIATE S

DICTIONARY 1056 (10th ed. 1993)). It also cites the following definition of“securities” from Black’s

Law Dictionary:

Stocks, bonds, notes, convertible debentures, warrants, or other

documents that represent a share in a company or a debt owned by a

company or government entity. Evidences of obligations to pay

money or of rights to participate in earnings and distribution of

corporate assets. Instruments giving to their legal holders rights to

money or other property; they are therefore instruments which have

intrinsic value and are recognized and used as such in the regular

channels of commerce.

Id. at 35 (citing BLACK’SLAWDICTIONARY

1354 (6th ed. 1990)) (citation omitted).

TRS proposes an extremely broad definition of securities, one that would in effect remove

any limitations on its investment authority imposed by the term “securities” and substitute a formula

that is difficult to distinguish t?om the pure “prudent person” rule. In our opinion, “security” has a

meaning that may not be swept away by such construction. A greatly broadened definition of

Mr. Charles L. Dunlap - Page 9 (X-0043)

“securities” for purposes of article XVI, section 67, might give the TRS Board more ability to

diversify its portfolio and place funds in novel investments, subject to the prudent person standard.

In our opinion, however, such a broad definition would virtually delete the term “securities” from

that constitutional provision. We have already noted that in 1982 a committee proposed the deletion

of‘kecurities,” from article XVI, section 67, and that in 1991 the legislature proposed an amendment

to the constitution deleting this term, only to have it defeated by the voters. Thus, the term

“securities,” with the limitations it places on the TRS investment authority, remains in the

constitution.

Moreover, by comparing article XVI, section 67(a)(3) with certain other constitutional grants

of investment authority, we can illustrate the limits that the term “securities” imposes on TRS’s

power to invest the System’s assets. The 1988 constitutional amendment that established the Texas

Growth Fund and adopted article VII, subsection 5(d) and section 1 lb of the Texas Constitution

grants specific governmental entities broad investment authority over certain constitutional funds.

Tex. H.R.J. Res. 5,7Oth Leg., 2d C.S., 1988 Tex. Gen. Laws 942; Votes on Proposed Amendments

to the Texas Constitution, 1875-May 1993, 1993 Tex. Gen. Laws 23 (Table following index)

[hereinaflerVotesonProposed Amendments]. Before the 1988 amendment was adopted, articleVI1,

section 4 of the Texas Constitution provided that the proceeds of selling lands set apart to the public

free school fund must be used to purchase other land for the fund,

or the proceeds shall be invested by the treasurer, as may be directed

by the Board of Education . , in the bonds of the United States, the

State of Texas, or counties in said State, or in such other securities,

and under such restrictions as may be prescribed by law. .

TEX. CONST.art. VII, 5 4 (amended 1883,1985,1995).

The voters’ approval in 1988 ofHouse Joint Resolution No. 5 established the Texas Growth

Fund and authorized the Board of Regents of the University of Texas System and the State Board

ofEducation to invest in the fund. See Tex. H.R.J. Res. 5,7Oth Leg., 2d C.S., 1987 Tex. Gen. Laws

942; Votes on Proposed Amendments supra, at 23. It moreover broadened the authority of the State

Board of Education to invest the assets of the Permanent School Fund. See TEX. CONST.art. VII,

$5 5(d), 1 lb; id. art. XVI, $70 (constitutional amendments approved by adoption 0fH.R.J. Res. No.

5). Subsection 5(d) of article VII, as adopted by House Joint Resolution No. 5, provides as follows:

Notwithstanding any other provision of this constitution, in

managing the assets of the permanent school fund, the State Board of

Education may acquire, exchange, sell, supervise, manage, or retain,

through procedures and subject to restrictions it establishes and in

amounts it considers appropriate, any kind ofinvestment, including

investments in the Texas growth fund created by Article XVI, Section

70, of this constitution, that persons of ordinary prudence, discretion,

and intelligence, exercising the judgment and care under the

Mr. Charles L. Dunlap - Page 10 (X-0043)

circumstances then prevailing, acquire or retain for their own account

in the management of their affairs, not in regard to speculation but in

regard to the permanent disposition of their funds, considering the

probable income as well as the probable safety of their capital.

TEX. CONST.art. VII, 5 5(d) (emphasis added).

Section llb of article VII provides similar authority for the Board of Regents of the

University of Texas to invest the permanent university fund. The constitutional amendments

allowed “the trustees of the Permanent University Fund (PUF) and the Permanent School Fund

(PSF) to make any type of investment, subject solely to the prudent-person standard.” HOUSE

RESEARCHORG., SPECIALLEGISLATIVE

REPORT,1988 CONSTITIJTIONAL

AMENDMENTS,19, 21

(1988). Article XVI, section 67(a)(3), in contrast, does not accord TRS equally broad authority to

invest the teacher retirement fund.

D. “Securities” as defined bv statute

The definitions of “securities” we have found in the common law and in dictionaries are too

broad to define that term in conformity with the purposes of article XVI, section 67(a)(3). We will

thus consider the purpose of the provision, its historical context, and the collective intent of the

framers and the people who adopted it. Die&, 940 S.W.2d at 89. One aspect ofthe historical context

of article XVI, section 67, is the body of law defining securities that existed in 1975. The subject

of securities is comprehensively governed by legislation, so that definitions in statutes may

reasonably have shaped the legislature’s understanding of the term “securities” in the constitutional

amendment.

Although we will examine statutes in effect in 1975 because they are part of the historical

context of article XVI, section 67(a)(3), we believe we are not limited to the 1975 versions of those

statutes but may look at their amended and successor versions. The legislature could have adopted

a statute in 1975, or any time thereafter, defining “securities” for purposes of article XVI, section

67(a)(3), in terms of characteristics typical of that class of investment, and the definition could

encompass securities with those characteristics that became available after 1975. Because the

legislature has in fact not adopted a statute defining “securities,” within article XVI, section 67(a)(3),

we will examine statutes adopted for other purposes that define “securities” or address the

investment of public funds in securities.

1. Securities regulatorv statutes

When this office was first asked to determine whether a particular investment was a

“security” within article XVI, section 67(a)(3), it in fact looked to a statutory definition of“security”

to construe the constitutional provision. In 1980, TRS asked this office whether it had authority to

Mr. Charles L. Dunlap - Page 11 (X-0043)

invest in real estate or mortgage certificates secured by real estate, and Attorney General Opinion

MW-152, issued in response to this question, determined that TRS had authority to invest in

mortgage certificates secured by real property but not in real estate itself. Attorney General Opinion

MW-152 reviewed definitions of “security” found in the Securities Act, TEX. F&v. CIV. STAT.ANN.

art. 581-4(A) (Vernon Supp. 1999), and in state and federal cases. It in effect determined that real

estate was not a security under any definition of the term.

In 1994, the ERS asked this office whether it had authority under article XVI, section 67 of

the Texas Constitution and its enabling legislation to invest its funds in equity swap contracts and

interest rate swap contracts. Attorney General Letter Opinion No. 94-052, issued in response to this

question, relied on the definitionof‘security” or “securities”in article 581-4(A) ofthe Revised Civil

Statutes, as well as the substantially similar definition of “security” in the federal Securities Act of

1933, 15 U.S.C.A. 9 77b(a)(l) (West 1997), and the federal Securities Exchange Act of 1934, id.

5 78c(a)(lO). It concluded that the ERS might invest its funds in equity swap contracts or interest

rate swap contracts if the contracts are securities under either federal or state securities laws,

providing, of course, that the ERS Board had determined that investing funds in such contracts was

a prudent investment.

Your request for advice has caused us to reconsider the reasoning of Attorney General

Opinion MW-152 and Letter Opinion No. 94-052. We reject their conclusion that the securities

regulatory statutes are an appropriate source of the definition of “securities” within article XVI,

section 67. We do, however, accept the premise of Attorney General Opinion MW-152 that a

statutory definition of “securities” that predated the adoption of article XVI, section 67, may assist

us in construing the constitutional language.

Attorney General Opinion MW- 152 and Letter Opinion No. 94-052 relied on the definition

of “securities” in the regulatory statutes without considering whether it carried out the intent of

article XVI, section 67-to safeguard the funds and maximize returns to provide security for

teachers. The regulatory statutes serve a very different purpose. Securities regulatory statutes were

adopted to “eliminate serious abuses in a largely unregulated securities market.” Reves v. Ernst &

Young,494U.S. 56,60-61(1990); UnitedHow. Found.,Znc., v. Forman, U.S. 837,849 (1975);

Kadane Y. Clark, 143 S.W.2d 197,199 (Tex. 1940). They define the term “securities” expansively,

to help achieve the goal of protecting investors. Reves, 494 U.S. at 60-61. With certain omissions

not relevant here, article 581-4 of the Revised Civil Statutes defines “security” or “securities” to

include

any limited partner interest in a limited partnership, share, stock,

treasury stock, stock certificate under a voting trust agreement,

collateral trust certificate, equipment trust certificate, preorganization

certificate or receipt, subscription or reorganization certificate, note,

bond, debenture, mortgage certificate or other evidence of

Mr. Charles L. Dunlap - Page 12 (JC-0043)

indebtedness, any form of commercial paper, certificate in or under

a profit sharing or participation agreement, certificate or any

instrument representing any interest in or under an oil, gas or mining

lease, fee or title, or any certificate or instrument representing or

secured by an interest in any or all of the capital, property, assets,

profits or earnings of any company, investment contract, or any other

instrument commonly known as a security, whether similar to those

herein referred to or not.

TEX. REV. CIV. STAT.ANN. art. 581-4 (Vernon Supp. 1999) (emphasis added). This definition is

substantially similar to the definition of “security” in the federal Securities Act of 1933,15 U.S.C.

5 77b (West 1997), and the federal Securities Exchange Act of 1934, id. fj 78c(a)(lO), which also

include the sweeping description “any. instrument commonly known as a ‘security,“’ in their

definitions of security. Id. $5 77b(a)(l), 78c(a)(lO). In Reves v. Ernst & Young, the United States

Supreme Court discussed the reasons for a definition of this breadth:

The fundamental purpose undergirding the Securities Acts is

“to eliminate serious abuses in a largely unregulated securities

market.” UnitedHousingFoundation, Inc. v. Foeman, 421 U.S. 837,

849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). In defining the

scope of the market that it wished to regulate, Congress painted with

a broad brush. It recognized the virtually limitless scope of human

ingenuity, especially in the creation of “countless and variable

schemes devised by those who seek the use of the money of others on

the promise of profits,” SEC v. WJ. Howey Co., 328 U.S. 293,299,

66 S.Ct. 1100, 1103,90 L.Ed. 1244 (1946), and determined that the

best way to achieve its goal of protecting investors was “to define

‘the term “security” in sufficiently broad and general terms so as to

include within that definition the many types of instruments that in

our commercial world fall within the ordinary concept of a security.“’

Foeman, supra, 421 U.S., at 847-848, 95 S.Ct., at 2058-2059

(quoting H.R.Rep. No. 85, 73d Cong., 1st Sess., 11 (1933)).

Congress therefore did not attempt precisely to cabin the scope ofthe

Securities Acts. Rather, it enacted a definition of “security”

sujkiently broad to encompass virtually any instrument that might

be sold as an investment.

494 U.S. at 60-61 (footnote omitted) (emphasis added).

We have reconsidered the assumption in Attorney General Opinion MW-152 and Letter

Opinion No. 94-052 that we may rely upon the definition of “securities” in the regulatory acts to

Mr. Charles L. Dunlap - Page 13 (JC-0043)

define “securities” in article XVI, section 67 of the Texas Constitution and have concluded that it

is incorrect. Accordingly, the Board may not rely on the definition of “securities” from the

Securities Act, TEX. REV.CIV. STAT.ANN.art. 58 1-4(A) (Vernon Supp. 1999), the federal Securities

Act of 1933,15 U.S.C.A. 8 77b(a)(l) (West 1997), and the federal Securities Exchange Act of 1934,

id. 5 78c(a)(lO), to determine the scope of TRS’ constitutional and statutory investment authority.

We overrule Attorney General Opinion MW-152 and Letter Opinion No. 94-052 to the extent they

rely on the definition of “securities” in the regulatory statute to define that term for purposes of

article XVI, section 67(a)(3).

2. Public Funds Investment Act

We turn to other statutory sources ofinfonnation about the term “securities” as used in article

XVI, section 67. A 1967 statute authorized state boards and agencies with investment authority

to invest and reinvest any of their funds in direct obligations of or

obligations the principal and interest of which are guaranteed by the

United States of America; in direct obligations of or participation

certificates guaranteed by the Federal Intermediate Credit Bank,

Federal Land Banks, Federal National Mortgage Association, Federal

Home Loan Banks, and Banks for Cooperatives; in certificates of

deposit of any bank or trust company the kind hereinabove specified;

in any other securities made eligible for such investment by other

laws and constitutional provisions.

Act of May 25, 1967,6Oth Leg., R.S., ch. 401,1967 Tex. Gen. Laws 915 (initially codified at TEX.

REV. CIV. STAT. ANN. art. 6252-5a, § 1 (1925)). This provision was codified as section 2256.101

of the Government Code in 1995 without substantive change, Act of May 4,1993,73d Leg., R.S.,

ch. 268, 5 1, 1993 Tex. Gen. Laws 583, 867 (nonsubstantive revision of statutes relating to certain

areas of government, including fiscal affairs). It was repealed in 1995 by legislation amending

the Public Funds Investment Act, TEX. GOV’T CODE ANN. ch. 2256 (Vernon 1999). Act of

May 18, 1995,74th Leg., R.S., ch. 402, $ 1, 1995 Tex. Gen. Laws 2958,2969.

The Public Funds Investment Act, chapter 2256 of the Government Code, sets out the

investments in which a state agency, a local government, or a nonprofit corporation or investment

pool acting on behalf of a local government or state agency may generally invest its funds. See TEX.

GOV’T CODE ANN. $2256.003 (Vernon 1999); see also id. 5 2256.004 (provisions do not apply to

public retirement system, state funds invested under section 404.024, certain higher education

institutions, registry funds, and deferred qualifying compensation plans). While Government Code

chapter 2256 is not a successor of the 1969 legislation, it authorizes investment of public funds in

the instruments identified in the 1969 legislation as well as certain more up-to-date instruments

Mr. Charles L. Dunlap - Page 14 (JC-0043)

suitable for such investments. Thus, its expanded list of investments can be regarded as illustrative

of “securities” for purposes of investing public funds.

The authorized investments generally consist of the following: (1) obligations of, or backed

by, the United States or its instrumentalities or a state or its political subdivisions, but excluding

certain collateralized mortgage obligations, id. 5 2256.009; (2) secured or guaranteed certificates of

deposit issued by state or national banks, savings banks or state or federal credit unions, id.

3 2256.010; (3) fully-collateralized, repurchase agreements or reverse repurchase agreement with

certain terms and attributes, id. $2256.011; (4) banker’s acceptances, again with certain terms and

attributes, id. 5 2256.012; (5) high-grade commercial paper, id. 5 2256.013; (6) no-load money

market mutual funds or no-load mutual funds with specific attributes, id.9 2256.014; (7) secured,

guaranteed investment contracts, id 5 2256.015; and (8) cash management funds sponsored by tax-

exempt organizations, high-grade, negotiable certificates of deposit, and high-grade corporate

obligations, id. 5 2256.020.

The Public Funds Investment Act deals with the investment ofpublic moneys and represents

a legislative balancing ofmaximizing investment flexibility and protecting public funds in the choice

of the authorized investments listed. The purposes and interests served by this statute are closer to

those underlying article XVI, section 67(a)(3) than those served by the regulatory statutes, but they

are not identical. For example, the TRS funds are not public moneys but trust fund moneys invested

to provideretirement benefits for teachers. See Tex. Att’y Gen. Op. Nos. JM-300 (1985) (retirement

fund ofERS is a trust fund), WW-565 (1959) (ERS assets are trust funds.). But more importantly,

the Public Funds Investment Act does not define the term “securities.” While its categorical listing

of authorized investments may include examples of securities, it does not assist the TRS Board to

determine whether or not other investments may be securities. Accordingly, we cannot rely on the

Public Funds Investment Act to define securities for the purposes of the constitutional provision.

3. Article 717m-1, TEX. REV.Crv. STAT.ANN., validation of securities

We next consider article 717m-1 of the Revised Civil Statutes. The statute was adopted in

1979, Act of May 27, 1979, 66th Leg., R.S., ch. 400, 1979 Tex. Gen. Laws 874, repealing and

replacing a similar provision dating from 1959. See Act ofMay 6, 1959, 56th Leg., R.S., ch. 316,

5 1,1959Tex. Gen. Laws 690 (codified asarticle717m, TEX.REV.CIV.STAT.ANN.(1925)). Article

717m-1 authorizes any state or local governmental entity to institute an in rem proceeding

for a declaratory judgment on its authority to issue securities and as to the legality or validity of any

Mr. Charles L. Dunlap - Page 15 (JC-0043)

proceedings relating to the securities. See TEX. REV. CIV. STAT. ANN. art. 717m-1, $4 l(l), 2

(Vernon Supp. 1999). In contrast to the Public Funds Investment Act, article 717m-1 defines the

term securities:

“Securities”means all interest-bearing obligations, including without

limitation, any bonds, notes, bond anticipation notes, warrants,

certificates, or other evidences of indebtedness, whether general or

special, whether negotiable or nonnegotiable in form, whether in

bearer or registered form, whether in temporary or permanent form,

whether with, or without interest coupons, and regardless of the

source of payment, whether t?om taxes, revenues, or both, or

otherwise.

Id. $ l(2). See TEX. REV. CIV. STAT. ANN art. 717m (1925) (repealed) (“securities” in the

predecessor statute, consisted of “bonds, notes, or other evidences of indebtedness whether payable

from taxes, revenues, or both taxes and revenues”). But the purpose of article 717m-1 is completely

different Tom that of article XVI, section 67. Article 717m-1 allows governmental bodies to obtain

declaratory judgments as to governmental securities. Although securities is defined broadly in terms

of “evidences of indebtedness,” it is nonetheless limited togovernmental securities, consistent with

that statute’s purpose and intent. See Hatten v. City ofHouston, 373 S.W.2d 525, 534 (Tex. Civ.

App.-Houston 1963, writref dn.r.e.) (article 717m, TEX. REV.CIV. STAT.ANN. (1925), was adopted

to provide speedier and more efficient method of adjudicating validity of public securities than

previously available). The purpose of article 7 17m- 1 differs greatly from that of Texas Constitution,

article XVI, section 67(a)(3), and its narrow definition of “securities” is not relevant to the

investment purposes of the constitutional provision. While article 717m-1 identities a class of

securities in which the TRS may invest, its definition of “securities” does not illuminate that term

as it appears in the constitutional provision we address.

4. Uniform Commercial Code definition of securities

We turn to the standard and most commonly accepted definition of investment securities

under Texas law, namely that in chapter 8 of the Business and Commerce Code, Uniform

Commercial Cod+Investment Securities. See TEX. Bus. & COM. CODE ANN. 5 8.102 (Vernon

Supp. 1999) (defining securities). The legislature adopted the Uniform Commercial Code in 1965

and revised and reenacted it in 1967 as part of the Texas Business and Commerce Code.’ Therefore,

the legislature was aware of this statute and its definition of securities when it proposed the 1975

constitutional amendment authorizing the TRS to invest the retirement funds in securities. See Acker

‘See Act ofMay 19, 1965,59thLeg.,R.S., ch. 721,196S Tex. Gen. Laws 1, 132(UniformCommercialCode),

repealedby Act of May 25, 1967, 60th Leg., RX, ch. 785, $1, 1967 Tex. Gen. Laws 2343, 2498 (revising and

reenacting Uniform Commercial Code as part of Texas Business and Commerce Code).

Mr. Charles L. Dunlap - Page 16 (JC-0043)

v. Texas Water Comm ‘n, 790 S.W.2d 299,301 (Tex. 1990); Garner v. Lumberton Indep. Sch. Dist.,

430 S.W.2d 418,423 (Tex. Civ. App.-Austin, no writ) (statute is presumed to have been enacted by

legislature with complete knowledge of existing laws, particularly those dealing with subject matter

under consideration). Section 8.102(a)(l5) ofthe Business and Commerce Code sets out the general

definition of a security in terms of the attributes that an instrument must possess to qualify as a

security:

“Security,” except as otherwise provided in Section 8.103, means an

obligation of an issue? or a share, participation, or other interest in an

issuer or in property or an enterprise of an issuer:

(A) that is represented by a security certificate in bearer or

registered form,3 or the transfer ofwhich may be registered on books

maintained for that purpose by or on behalf of the issuer;

(B) that is one of a class or series or by its terms is divisible into

a class or series shares, participations, interests, or obligations; and

(C) that:

(i) is, or is of a type, dealt in or traded on securities

exchanges or security markets; or

(ii) is a medium for investment and by its terms expressly

provides that it is a security governed by this chapter.

See TEX. Bus. & COM.CODEANN. 5 8.102(U) (V emon Supp. 1999) (footnotes added). In short,

a security is a share or participation in an enterprise or an obligations that (1) is fully transferable,

(2) is one of a series rather than an individual contractual obligation, and (3) is itself or is of a type

““Issuer” generally includes a person (1) that places OI authorizes the placement of its name to evidence an

interest in its property or enterprise or duty to perform an obligation represented by the certificate, (2) creates an interest

in its property or in an enterprise or undertakes an obligation, that is an uncatiticated security, (3) directly or indirectly

creates a fractional interest in its rights or property, if the fractional interest is.represented by a security certificate, OI

(4) becomes responsible for or in place of another person described as an issuer. TEX.BUS. & COM.CODEANN. 5 8.201

(Vernon Supp. 1999). A “certificated security” simply means a security that is represented by a certificate, id.

5 8.102(a)(4), and an “uncertificated security” is a security not represented by a certificate, id. 5 8.102(a)(18).

‘“Bearer form” applies to a certificated security and means a form in which the security is payable to the bearer

of the security certificate according to its terms and not by reason of any indorsement. Id. 5 8.102(a)(2). “Registered

form” also applies to a certificated security and means a form in which the security certificate names the person entitled

to payment; and a transfer of the security may be registered on books maintained by the issuer for that purpose “or the

security so states.” Id. g 8.102(@(13).

Mr. Charles L. Dunlap - Page 17 (JC-0043)

of interest dealt in or traded on securities market or exchanges, or is a medium of investment and,

by its terms, a security governed by chapter 8 (“opt-in provision”). See id. 5 8.102 cmt. 15.

Section 8.103 ofthe Business and Commerce Code further elaborates and refines the general

definition in section 8.102(a)(l5) by providing that:

(a) A share or similar equity interest issued by a corporation,

business trust, joint stock company, or similar entity is a security.

(b) An investment company security is a security. “Investment

company security” means a share or similar equity interest issued by

an entity that is registered as an investment company under the

federal investment company laws, an interest in a unit investment

trust that is so registered, or a face-amount certificate issued by a

face-amount certificate company that is so registered. “Investment

company security” does not include an insurance policy or

endowment policy or annuity contract issued by an insurance

company.

(c) An interest in a partnership or limited partnership company is

not a security unless it is dealt or traded on securities exchanges or in

securities markets, its terms expressly provides that it is a security

governed by this chapter, or it is an investment company security.

However, an interest in a partnership or limited liability company is

a financial asset4 if it is held in a securities account.

.

(e) An option or similar obligation issued by a clearinghouse

corporation to its participants is not a security, but is a financial asset.

(f) A commodity contract, as defined in Section 9.115, is not a

security or a financial asset.

Id. 8 8.103 (footnote added). Section 8.103 supplements the general definitions of security and is

“intended to foreclose interpretive issues concerning the application of the general definitions to

several specific investment products.” Id. 5 8.103 cmt. 1. Thus, subsection (a) establishes that

ordinary corporate stock is a security irrespective of whether it is dealt with or traded on the

“‘Financial asset” is a broader category of obligations, shares, participation, and interest that includes

“securities,” to which assets other UCC rules may apply. See id. 5 8,102(a)(9) & ant. 9.

Mr. Charles L. Dunlap - Page 18 (JC-0043)

securities exchange or in the securities market. Id. cmt. 2. Accordingly, shares of a closely held

corporation constitute securities. Id.; Kenney v. Porter, 604 S.W.2d 297, 302 (Tex. Civ.

App.Corpus Christi 1980, writ ref d n.r.e.) (stating that it is generally recognized that stock of

closely held corporation is a security). Additionally, investment vehicles offered to the public by

investment companies registered under the federal Investment Company Act of 1940 are securities

under subsection (b), notwithstanding that the “typical transaction in shares of open-end investment

companies is an issuance or redemption, rather than a transfer of shares horn one person to another”

as in the ordinary corporate stock transaction. TEX. BUS. & COM. CODEANN. $ 8.103(b) cmt. 3

(Vernon Supp. 1999). Subsection (c) is intended to clarify the application “of the type” language

in section 8.102(a)(l5)(iii) to partnership interests and establishes the general rule that a partnership

or limited partnership interest is not a security unless it is commonly dealt in or traded on the

financial markets, it has an explicit opt-in provision, or it is an investment company security. Id.

cmt. 4. See generally Andrea G. Nadel, J.D., Annotation, What is a Security Under UCCArt. 8,11

A.L.R. 4th 1036, 5 11 (Supp. 1998) (discussing cases generally holding partnership interest not

securities). Finally, subsections (e) and (l) make clear that trade-stock options or commodity

contracts are not securities. Id. cmt. 6; see generally 11 A.L.R. 4th 1036 (1982 & Supp. 1998)

(discussing generally instruments found by courts to constitute “securities” under UCC chapter 8).

In sum, chapter 8 of the Business and Commerce Code provides a functional and flexible

definition of securities (the “UCC definition”). TEX. Bus. & COM. CODEANN. $ 8.102 cmt. 15

(Vernon Supp. 1999); id. $ 8.103 cmt. 1; Kenney, 604 S.W.2d at 301 (definition and comments

explain parameters of what instruments qualify as security). Given that the UCC definition

generally requires that securities be instruments commonly dealt in or traded on the securities market

or exchange-the common understanding of the term “securities’‘-we believe that this definition

is more likely to express the intent of the legislature and the people in adopting article XVI, section

67, than the more amorphous definitions found in regulatory statutes and dictionaries.

We note that the underlying purpose of chapter 8 is different from that of article XVI, section

67. The underlying purpose of the constitutional provision is to safeguard the funds and maximize

returns to provide security for teachers. Chapter 8, on the other hand, is designed to define the rights

and duties associated with investments that qualify as securities and to state the rules relating to the

transfer and establishment of those rights and duties. TEX. BUS. & COM.CODEANN. 5 8.101 cmt.

(Vernon Supp. 1999). Nevertheless, because chapter 8 addresses investment securities, its purpose

is more compatible with that of the TRS constitutional provision than the federal and state securities

regulatory statutes. The UCC definition is more fixed and certain. See id $5 8.102(a)( 15), ,103; see

also Thomas Y. Creager, 107 S.W.2d at 710 (favoring construction of constitutional provision that

will cause fewer or less complicated questions in its application). Generally, its purpose is to

encompass instruments commonly accepted as securities. TEX. Bus. & COM. CODE ANN.

$5 8.102(a)(l5), ,103 (Vernon Supp. 1999). As a result, although fewer investments qualify as

securities under the UCC definition than under the regulatory definitions, a more restricted class of

Mr. Charles L. Dunlap - Page 19 (JC-0043)

investments comports more with the constitutional purpose of defining a universe of securities in

which moneys to provide teachers’ retirement benefits may be safely and profitably invested.

But while more restrictive in some ways than the regulatory statutes’ definitions, the UCC

definition is not categorical. Unlike former article III, section 48b of the Texas Constitution, the

Public Funds Investment Act, or article 717m-1 of the Revised Civil Statutes, it does not set forth

an exclusive list of investment categories. Instead, it defines “securities” according to certain

attributes that allow incorporation of a new investment product that becomes generally accepted as

a medium of investment in the financial markets, as long as the instrument otherwise conforms to

the statutory requirements. See TEXBUS.&COM. CODEANN. 5 8.102 cmt. 15 (vemon Supp. 1999)

(explaining first two components of section 8.102(a)(l5) test that must be satisfied and noting

that third requirement, the “functional test,” provides flexibility “while ensuring that the Article 8

rules do not apply to interests or obligations in circumstances so unconnected with the securities

markets .“).

Moreover, the UCC definition provides more guidance than the other definitions we have

considered. Sections 8.102(a)( 15) and 8.103 and the official comments to these sections explain the

parameters of the class of instruments qualifying as securities. See id. fj$ 8.102, ,103 & cmts.

Accordingly, the more concrete UCC definition provides a better framework for determining

whether a particular instrument is a security than definitions phrased in general, descriptive terms,

such as notes, bonds, debentures, and similar terms. See Kenney, 604 S.W.2d at 301 (definition and

comments explain parameters of the instruments qualifying as securities).

While not a perfect tit, we believe the UCC definition of security is a better fit than any other

definition of which we are aware. We believe the UCC definition generally comprises the

instruments commonly understood to constitute securities and as a result represents a better balance

of investment flexibility and fiscal restraint. Additionally, it also provides a more functional

criterion for determining whether particular instruments are securities. Moreover, this definition was

in place when the legislature proposed adoption of the TRS constitutional provision, and it is

reasonable to assume that the legislature understood the term “securities” to be defined as it is in

chapter 8 of the UCC. Accordingly, we advise you that the term “securities” as used in Texas

Constitution article XVI, section 67, is to be defined according to the UCC definition, until the

legislature adopts a definition pursuant to the constitutional provision or until it is judicially defined.

Mr. Charles L. Dunlap - Page 20 (JC-0043)

III. TRS authoritv under the UCC definition

In questions two and three, you ask whether specific kinds of instruments are securities in

which the TRS trust fund may be invested:

2. Will an investment in “alternative,” real estate-related, or other asset

classes having similar investment attributes constitute a security in which

TRS may invest if it is an instrument or vehicle listed, defined, or specified

as a “security” either in The Securities Act, or in a federal securities law, or

in the securities law of another state, or by the Securities and Exchange

Commission?

3. Do any of the following vehicles or investments constitute “securities”

which are listed, defined, or specified as a “security” in The Securities Act

and therefore require no further “security” analysis by TRS: a limited

partnership, a limited liability partnership (LLP), a limited liability company

(LLC), a real estate investment trust @BIT), a real estate operating company

(REOC), a group trust or commingled fund, joint ventures, financial futures,

or investment accounts? If so, please identify which vehicles or investment

categories constitute securities.

We have determined that “securities” within article XVI, section 67(a)(3) is to be defined in

according to the definition of that term in the Uniform Commercial Code, while your questions are

framed in light of prior opinions defining “securities” according to the state and federal regulatory

statutes. In answer to questions two and three, we advise you that the TRS trust fund may be invested

ininstruments defined as securities by sections 8.102(a)(l5) and 8.103 oftheBusiness andcommerce

Code. The attributes of a particular investment are more important than the name of the category to

which the investment belongs. Although you name certain types of enterprises or investments, you

do not provide information about their attributes that would allow us to determine even generally

whether they constitute securities under sections 8102(a)(l5) and 8.103. For example, even the

provision excluding limited partnerships as a general matter from the definition of “securities” has

exceptions. See TEX. BUS. & COM. CODE ANN. 5 8.103(c) (Vernon Supp. 1999) (partnership or

limited partnership interest is not a security unless it is commonly dealt in or traded on the financial

markets, it has an explicit opt-in provision, or it is an investment company security). Because the

definition of “securities” from chapter 8 ofthe Business and Commerce Code provides much greater

clarity than the definition from the regulatory statutes, we believe that the TRS itself will be able to

answer many of its questions about particular investments. If questions remain about specific

investments, the TRS Board may of course seek advice from this office.

Mr. Charles L. Dunlap - Page 21 (K-0043)

Your fourth and fifth questions are as follows:

4. If your answer to #2 or #3 above is negative in any respect or in

cases where the task is to analyze and determine whether an

investment instrument or vehicle is a security under Texas law, will an

investment in “alternative,” real estate-related, or other asset classes

having similar investment attributes constitute a security in which TRS

may invest if it is an instrument or vehicle which meets the

requirements of an investment contract under the “Howey test,” as

applied by Texas courts? See S.E.C. v. W.J. Howq Co., 328 U.S. 293,

66 S.Ct. 1100,90 L.Ed. 1244 (1946) and its progeny, including federal

and Texas cases. If any vehicle or investment category listed in #3 is

not identified by you as a “security,” will or may such a vehicle or

investment category qualify as a security under the Howey test?

5. What criteria are available to assist TRS in determining the level

of participation or the control features TRS may have as reflected in

the negotiated provisions of the investment documents, e.g. the

investment contract documents or the limited partnership agreement,

without jeopardizing the “security” designation of a particular

investment.

Given that we believe that the UCC definition of“securities” informs the meaning of that term

in article XVI, section 67, the “Howey test” is inapposite. That test developed under the securities

regulatory statutes, which we believe are at cross-purposes with the constitutional authorization in

article XVI, section 67(a)(3). Accordingly, TRS should rely on the more certain yet flexible UCC

definition.

We also wish to point out that, despite our overruling of Attorney General Opinion MW-152,

real estate itself is not a “security” for purposes of article XVI, section 67(a)(3) of the Texas

Constitution, because it is not included in the definition of “securities” found in chapter 8 of the

Business and Commerce Code as discussed above. See TEX.Bus. & COM.CODEANN.5 8.102(a)( 15)

(Vernon Supp. 1999) (“security” is a share or participation in enterprise, that is fully transferable and

is one of a series rather than an individual contract). Moreover, Attorney General Opinion MW-152

concluded that, “[i]n view of the long established and dominant legislative and judicial construction

that realty is not within the ambit of “securities, ” it is our opinion that constitutional amendment

would be necessary to enable the board of trustees of the Teacher Retirement System to invest its

funds in real property.” Our decision about the definition of security has not changed this conclusion.

Mr. Charles L. Dunlap - Page 22 (JC-0043)

IV. Delegation of investment authority

Your remaining question concerns whether the Board may delegate authority to manage

certain investments to outside persons:

6. May TRS use its authority under 5 825301(b) of the Texas

Government Code to allocate responsibilities to outside managers in

the management of “alternative” or real estate-related securities? See

TEX. GOV’T CODE ANN. 5 825.301(b) (Vernon 1994).

By “outside manager,” we understand you to mean “external manager.” An “external

manager” is “[a] person or firm that makes investment portfolio decisions and executes transactions

independently, subject to the overall restrictions agreed upon by contract between the fiduciary for

the fund and the external manager.” Review supra, at 179. An external manager’s role differs from

that of an “investment advisor,” who is retained by an investing entity to provide investment advice

for a fee. Id. at 180. An investment advisor may, for example, present information about the

economic climate in general or industry information that may affect the entity’s decisions about

investing in specific securities. Id.

The report prepared by Independent Fiduciary Services, Inc. discusses the merits of internal

versus external investment management ofTRS timds and recommends that the Board “seek to obtain

appropriate clarification or support (whether through legislation, constitutional amendment, if

necessary or otherwise), permitting it to delegate investment authority.” IFS Report supra, at 7,14,

16, 54. Accordingly, you ask whether section 825.301(b) authorizes TRS to delegate to private

persons or firms the authority to make investments on its behalf, subject to restrictions agreed upon

by TRS and the private person or firm.

Section 825.301(b) ofthe Government Code provides as follows: “The board oftrustees may

contract with private professional investment managers to assist the board in investing the assets of

the retirement system.” TEX. GOV’TCODEANN. 5 825.301(b) (Vernon 1994).

In Attorney General Letter Opinion No. 92-37 this office construed a similar provision

applicable to the trustees of certain municipal fire tighter retirement systems. Section 28(a) ofarticle

6243e of the Revised Civil Statutes formerly authorized the board of trustees to “employ professional

investment counselors to assist and advise the board in the investment of the assets of the fund.”

(Emphasis added). Act ofApr. 27,1989,71st Leg., R.S., ch. 98, § I,1989 Tex. Gen. Laws 426,436,

amended by Act ofMay 7,1993,73d Leg., R.S., ch. 173,s 12,1993 Tex. Gen. Laws 326,328. This

office concluded that subsection 28(a) “clearly does not permit the board of trustees to delegate its

entire discretionary authority over investments to a professional investment counselor,” and that the

phrase “assist and advise” circumscribed the duties of any investment counselor selected by the

Mr. Charles L. Dunlap - Page 23 (JC-0043)

Board, “to the extent that the board will retain all final decision-making with regard to investments.”

In our opinion, Attorney General Letter Opinion No. 92-37 correctly interpreted the phrase

“assist and advise.” Under article 825.301(b), the TRS Board may seek advice horn outside

investment counselors to assist it in making its investment decisions, but the Board must retain final

decision-making as to all investments and may not delegate to outside investment managers the power

to decide which securities to purchase with assets of the retirement fund.

A comparison of article 825.301(b) with provisions expressly authorizing such delegations

supports our construction of article 825.301(b). Section 28 of article 6243e of the Revised Civil

Statutes, the statute on municipal fire fighter retirement systems that Attorney General Letter Opinion

No. 92-37 construed, has been amended to read as follows:

(a) The board oftrustees. may appoint investment managers for

the system by contracting for professional investment management

services with one or more organizations, which may include a bank if

it has a trust department, that are in the business of managing

investments.

. ..

(c) In a contract made under this section, the board of trustees

shall specify policies, requirements, and restrictions that the board

of trustees adopts for investments of the system.

(d) [board must act prudently in choosing and contracting for

professional investment management services] .

(e) A trustee is not liable for the acts or omissions of an

investment manager appointed under this section, nor is a trustee

obligated to invest or otherwise manage any asset of the system

subject to management by the investment manager.

(f) A board of trustees may employ professional investment

counselors to assist and advise the board in the investment of the

assets of the fund or to evaluate the performance of an investment

manager appointed under this section.

Act ofMay 7,1993,73d Leg., R.S., ch. 173,s 12,1993 Tex. Gen. Laws 326,328 (emphasis added).

Mr. Charles L. Dunlap - Page 24 (JC-0043)

The amended version of article 6243e, section 28 adds significant new authority to a board’s

existing power to receive advice from professional investment counselors. A board may now contract

with an organization, including a bank with a trust department, to manage and invest the assets of the

system. See TEX. REV. CIV. STAT.ANN. art. 6243e, $28(a), (e) (Vernon Supp. 1999). If the board

decides to continue to invest some or all of the assets of the fimd, it retains authority under section

28(f) to seek assistance and advice from a professional investment counselor. The Board of TRS, in

contrast, has only the authority to contract for advice and assistance concerning its investment

decisions. Nothing in section 825.301(b) allows the TRS Board to delegate investment authority to

outside managers that section 28 of article 6243e of the Revised Civil Statutes gives to the boards of

municipal fire tighter retirement systems.

Article XVI, section 70 of the Texas Constitution, which established the Texas Growth Fund

under a board of trustees, states that the board of trustees shall manage the investment of the fund,

and may “employ and retain staff, including a chief executive officer; set investment policy of the

fund; .[and] adopt rules regarding the operation of the fund.” “[Alltematively, or in combination

with its own staff,” the board may “contract for the management of investments under this section

with a private investment management firm .” Because our conclusion rests on statutory grounds,

we need not, and do not, decide the significance, if any, ofthese differences in constitutional wording.

Because we have determined that TRS lacks statutory authority under Government Code

section 825.301(b) to delegate investment authority to outside managers, we do not decide whether

article XVI, section 67(a)(3), would permit such delegation by TRS of its investment authority to

outside managers. As we have already noted, however, article XVI, section 67(c) places fewer

constraints on local benefit systems, such as systems benetitting local firefighters, than article XVI,

section 67(a)(3) places on statewide retirement systems such as TRS. Further, we note the existence

of constitutional authority related to the Texas Growth Fund that provides more explicitly for

delegation.

Our reading of the statutory authority of the TRS Board of Trustees is consistent with case

law on the delegation of a trustee’s authority. Generally, a trustee may not delegate his discretionary

power to another; however, a trustee, after determining how to exercise his discretion, may authorize

another to carry out ministerial or mechanical acts to effectuate such decision. Trunsamerican

Leasing Co. v. Three Bears, Inc., 586 S.W.2d 472,476 (Tex. 1979); West v. Hapgood, 174 S.W.Zd

963 (Tex. 1943). There is an exception to the rule against a trustee’s delegation of his discretionary

power to another, where the settlors give the trustee the express power of delegation. Transamericun

Leasing Co., 586 S.W.2d at 476. Because the Board of TRS does not have express authority to

delegate its authority to invest in securities to private firms, the exception does not apply.

Accordingly, the trustees of TRS may not allocate to private investment managers their power to

decide to invest the TRS fund in particular securities.

Mr. Charles L. Dunlap - Page 25 (JC-0043)

SUMMARY

The Board of Trustees of the Teacher Retirement System of Texas

(“TRS”) has authority under article XVI, section 67(a)(3) of the Texas

Constitution to invest the funds of the retirement system “in such

securities as the board may consider prudent investments.” TEX.

CONST. art. XVI, 5 67(a)(3). In the absence of legislation defining

“securities” within this provision, this term is defined as the authorized

investments set out in chapter 8 of the Texas Business and Commerce

Code. The conclusions ofAttorney General Opinion MW-152 (1980)

and Letter OpinionNo. 94-052, that “securities” for purposes of TRS

investment is defined by the state and federal securities regulatory

statutes, are overruled. However, Attorney General Opinion MW- 152

correctly determined that real property is not a security within article

XVI, section 67(a)(3) of the Texas Constitution.

The Board of Trustees may seek advice from outside

investment counselors to assist it in making its investment decisions;

the Boardmay not, however, delegate to external investment managers

its authority to decide in which securities the TRS fund is to be

invested.

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

CLARK RENT ERVIN

Deputy Attorney General - General Counsel

ELIZABETH ROBINSON

Chair, Opinion Committee

Prepared by Susan L. Garrison

Assistant Attorney General