Question
December 23, 2003
VIA HAND DELIVERY
PatrickSharpe, Esq.
United States Federal Trade Commission
Premerger Notification Office
Bureau of Competition
600 Pennsylvania Avenue, N.W., Room 303
Washington, D.C. 20580
DearMr. Sharpe:
Thank youfor calling me about my December 19 letter.
I was remiss in not providing you a complete copy of(redacted) Articles of Incorporation. A copy of those articles is attached tothis letter as Exhibit 1.
TheArticles of Incorporation confirm that (redacted) (originally named (redacted)is an "instrumentality" - that is, an agency and political subdivisionof the State of Texas. The Articles plainly provide that the incorporators arecreating "a public instrumentality and nonprofit corporation"under the specified provisions of Texas statutes. Articles of Incorporation, page 1 (emphasisadded). Accord, Article IV ((redacted) is "organized for the purposes ofbenefiting and accomplishing the public purposes of the (redacted). . .").
TheArticles of Incorporation thus follow the enabling provision of Texas law which makes (redacted)an "instrumentality" of the (redacted) Texas Water Code 152.051 (a) (copy attached as Exhibit 2). (Subdivision (c) of that section, aswe wrote previously, makes (redacted) subject to the Teas Open Records Act andTexas Open Meetings Act.)
An"instrumentality," of course, is simply an "agency":
"Instrumentality. . . 2. a means or agency through which a function of another entity isaccomplished, such as a branch of a governing body."
Black's Law Dictionary, 7th ed. (1999) (emphasis added). Accord,American Heritage Dictionary of the English Language (4th ed. 2040) (definitionof "instrumentality" includes "A subsidiary branch, as ofgovernment, by means of which functions or policies are carried out").
In short,under its Articles of Incorporation and Texas statutes, (redacted) is an agency of the State and 'apolitical subdivision. We respectfully submit that its potential acquisition ofassets from (redacted) is exempt from the HSR filing requirements.
Thank youfor your consideration of this matter. The parties look forward to yourresponse.