Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 29,2005
Mr. Wayne Thorbum, Administrator Opinion No. GA-0379
Texas Real Estate Commission
Post Office Box 12188 Re: Whether the Texas Real Estate Inspector
Austin, Texas 78711-2188 Committee and its subcommittees may conduct
meetings by telephone conference call pursuant
to section 55 1.125(b)(3) ofthe Government Code
(RQ-0349-GA)
Dear Mr. Thorbum:
You ask whether the Texas Real Estate Inspector Committee and its subcommittees may
conduct meetings by telephone conference call pursuant to Government Code, section
551.125(b)(3).’
I. StatutoryBackmound
Real estate inspectors in Texas are licensed and regulated by the Texas Real Estate
Commission (the “TREC”) under chapter 1102 of the Occupations Code. See TEX. Oct. CODE ANN.
0 9 1101.15 1 (Vernon 2004) (TREC’s general powers and duties under chapters 1101 and 1102),
1102.001 (chapter 1102 definitions of “commission” and “committee”), 1102.101-.253 (inspector
licensing), 1102.401 (TREC’s disciplinary authority with respect to inspectors). In regulating
inspectors, the TREC is assisted by the Texas Real Estate Inspector Committee (the “Committee”),
which, by statute, “has the powers and shall perform the duties that the [TREC] delegates to the
committee” and, in particular, is charged with developing, recommending, and reviewing TREC
rules for licensing and regulating inspectors. See id. $5 1102.058-.059. The Committee, which
consists of nine members appointed by the TREC, see id. 4 1102.05 1, must meet semiannually and
at the call of the TREC, see id. 5 1102.056(a). It may also meet at the call of a majority of its
members. See id.
The TREC may modify a rule developed by the Committee and, if the Committee does not
recommend a rule within a reasonable time, may develop a rule. See id. 6 1102.059(c). In the event
‘See Letter from Mr. Wayne Thorbum, Administrator, Texas Real Estate Commission, to Honorable Greg
Abbott, Texas Attorney General at 2 (June 14, 2005) (on file with Opinion Committee, also available at
http:l/www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Wayne Thorbum - Page 2 (GA-0379)
the Committee decides not to develop or recommend a rule to the TREC, chapter 1102 provides for
the creation of an “ad hoc body” consisting of four TREC members and three Committee members
to consider the Committee’s position. See id. 0 1102.059(d). In addition, chapter 1102 provides that
the TREC “shall consider the committee’s recommendations relating to qualifications and licensing
of inspectors to assure the public of a quality professional inspection system in real estate
transactions in this state.” Id. 3 1102.060. In contested cases regarding an inspector, the TREC may
“(1) authorize the committee to conduct administrative hearings, recommend the entry of final
orders, or both; and (2) authorize specific employees to conduct hearings and render final decisions.”
Id. 0 1102.061. The TREC “shall adopt procedural rules to be used by the committee in
implementing its powers and duties.” Id. 0 1102.062.
You do not provide any information about the activities of the Committee’s subcommittees,
which are not addressed in chapter 1102. We assume that the TREC delegates duties to the
Committee and that the subcommittees work on tasks delegated by the Committee, not the TREC.
You ask about meeting by telephone conference call under the Open Meetings Act (or “the
Act”), Government Code chapter 551. See Request Letter, supra note 1, at 2. The Act applies to
a “governmental bod y,” a term that it expressly defines in section 55 l.OOl(3) of the Government
Code to include specific categories of bodies governing state and local entities; advisory bodies
are not expressly included in the list. See TEX. GOV’T CODEANN. 5 55 l.OOl(3) (Vernon 2004). The
legislature also sometimes expressly provides in other statutes that an entity is subject to the Act, as
it has in chapter 1102 of the Occupations Code: “The committee is subject to Chapters 551, 552,
2001, and 2002, Government Code.” TEX. Oct. CODEANN. $ 1102.057 (Vernon 2004).
The Open Meetings Act requires a governmental body or other entity subject to its provisions
to post notice of its meetings and to hold its meetings in public. See TEX. GOV’T CODEANN. $9
551.002, .041 (Vernon 2004). In the absence of specific statutory authority, a meeting held by
telephone conference call or similar means does not meet the Act’s requirements. See Tex. Att’y
Gen. Op. Nos. JC-0352 (2001), JC-0194 (2000), DM-478 (1998), DM-207 (1993), JM-584 (1986).
Certain provisions in subchapter F of the Open Meetings Act authorize specific governmental bodies
to meet by telephone conference call. See, e.g., TEX. GOV’T CODEANN. 99 55 1.12 1-. 124 (Vernon
2004). None ofthese provisions applies to the Committee, nor does chapter 1102 ofthe Occupations
Code address meeting by telephone.
Section 55 1.125 of the Government Code, another subchapter F provision, grants more
general authority to meet by telephone conference call in certain circumstances:
(a) Except as otherwise provided by this subchapter, this
chapter does not prohibit a governmental body from holding an open
or closed meeting by telephone conference call.
(b) A meeting held by telephone conference call may be held
only if:
Mr. Wayne Thorbum - Page 3 (GA-0379)
(1) an emergency or public necessity exists within the
meaning of Section 55 1.045 of this chapter; and
(2) the convening at one location of a quorum of the
governmental body is difficult or impossible; or
(3) the meeting is held by an advisory board.
Id. $ 551.125(a)-(b). Th e meeting is subject to notice requirements:
(c) The telephone conference call meeting is subject to the
notice requirements applicable to other meetings.
(d) The notice of the telephone conference call meeting must
specify as the location of the meeting the location where meetings of
the governmental body are usually held.
Id. 3 55 1,125(c)-(d). And the meeting must be audible to the public, with two-way communication
between the meeting location and the members who participate from another location via telephone:
(e) Each part of the telephone conference call meeting that is
required to be open to the public shall be audible to the public at the
location specified in the notice of the meeting as the location of the
meeting and shall be tape-recorded. The tape recording shall be made
available to the public.
(f) The location designated in the notice as the location of the
meeting shall provide two-way communication during the entire
telephone conference call meeting and the identification of each party
to the telephone conference shall be clearly stated prior to speaking.
Id. 9 551.125(e)-(f).
Section 55 1.125(b) generally permits a meeting by telephone conference call only when there
is an emergency or public necessity and it is difficult or impossible to convene a quorum of the
governmental body at one location. See id. 4 55 1.125(b)(1)-(2). Section 55 1.125(b)(3) by its plain
terms, however, permits an advisory board to meet by telephone conference call without satisfying
those conditions: “A meeting held by telephone conference call may be held only if. . . the meeting
is held by an advisory board.” Id. 9 551.125(b)(3). Whether held under the authority of section
551.125(b)(l)-(2)or(3),h owever, a meeting by telephone conference call is subject to the notice and
openness requirements set forth in section 55 1.125(c)-(f).
Mr. Wayne Thorbum - Page 4 (GA-0379)
II. Analysis
You ask whether the Committee and its subcommittees are advisory bodies that may conduct
meetings by telephone conference call pursuant to section 551.125(b)(3). Chapter 1102 of the
Occupations Code creates the Committee and makes it subject to the Open Meetings Act. See TEX.
OCC. CODE ANN. $4 1102.051, .057-.058 (Vernon 2004). But chapter 1102 does not expressly
provide that the Committee acts in an advisory capacity. See id. On the face of chapter 1102, it
appears that the Committee’s powers are generally advisory in nature. For example, the Committee
is charged with recommending rules and fees, see id. 5 1102.058(b), and with developing,
recommending, and reviewing TREC rules in an “advisory capacity,” id. 0 1102.059(a). The TREX
is vested with authority to administer chapter 1102 and to adopt rules to administer the chapter. See
id. $1102.058(b)( 1). However, other provisions authorize the TREC to delegate additional authority
to the Committee. In particular, section 1102.058(a) broadly provides that the Committee “has the
powers and shall perform the duties that the [TREC] delegates to the committee.” Id. 6 1102.058(a);
see also id. 3 1102.061 (“In contested cases regarding an inspector, the [TREC] may . . . authorize
the committee to conduct administrative hearings, recommend the entry of final orders, or both[ .I”).
And section 1102.062 refers to the Committee’s “powers and duties.” Id. $ 1102.062.
Section 55 1.125 does not define the term “advisory board,” nor is the term defined elsewhere
in the Open Meetings Act or Texas statutes.2 It is also not clear from the face of section
55 1.125(b)(3) what criteria must be met for a board to be “advisory.” For example, courts and this
office have concluded with respect to state advisory entities not expressly made subject to the Act
that “before the Act is applicable to a meeting of a statewide public body, five prerequisites must be
met.” Tex. Att’y Gen. Op. No. H-772 (1976) at 2; GulfReg’l Educ. Television Affiliates v. Univ. of
Houston, 746 S.W.2d 803, 809 (Tex. App.-Houston [14th Dist.] 1988, writ denied) (citing Tex.
Att’y Gen. Op. No. H-772); see also Beasley v. Molett, 95 S.W.3d 590,606 (Tex. App.-Beaumont
2002, pet. denied); Tex. Att’y Gen. Op. No. GA-0232 (2004). However, these criteria are not
necessarily appropriate to determine whether an entity is an advisory board under section
551.125(b)(3). These criteria often require a factual inquiry into the body’s actual duties and
powers.3 Thus, as a practical matter it may be difficult for an entity’s members and interested
citizens to apply these criteria to assess whether the entity may meet under section 55 1.125(b)(3),
a result we doubt the legislature intended. See TEX. GOV’T CODEANN. $5 3 11.02 l(3)-(4) (Vernon
2T~o Government Code provisions define the similar general term “advisory committee” to refer to an entity
that has as its primary function advising a state agency. See TEX. GOV’T CODEANN. $9 325.002(2) (Vernon 2005)
(“‘Advisory committee’ means a committee, council, commission, or other entity created under state law whose primary
function is to advise a state agency.“) (Sunset Law), 2110.001 (Vernon Supp. 2005) (“In this chapter, ‘advisory
committee’ means a committee, council, commission, task force, or other entity with multiple members that has as its
primary function advising a state agency in the executive branch of state government.“).
‘See GulfReg ‘1Educ. Television Afiliates, 746 S.W.2d at 809 (“( 1) The body must be an entity within the
executive or legislative department of the state; (2) The entity must be under the control of one or more elected or
appointed members; (3) The meeting must involve formal action or deliberation between a quorum of members; (4) The
discussion or action must involve public business or public policy; and (5) The entity must have supervision or control
over that public business or policy.“). In the case of an advisory body, whether it meets the fifth criterion will depend
upon the facts. See, e.g., Tex. Att’y Gen. Op. Nos. JM-331 (1985) at 1-2, H-994 (1977) at 2-3.
Mr. Wayne Thorburn - Page 5 (GA-0379)
2005) (“In enacting a statute, it is presumed that . . . a just and reasonable result is intended; [and]
a result feasible of execution is intended[ .I”), 3 11.023(l), (5) (in construing a statute, a court may
consider the “object sought to be attained” and the “consequences of a particular construction”)
(Code Construction Act). Moreover, section 55 1.125(b) is an exception to the general requirement
that the members of a governmental body subject to the Act must meet together in the same location
and therefore must be strictly construed. See Tex. Att’y Gen. Op. No. JC-0352 (2001) at 1 (“‘The
Open Meetings Act contemplates that members of a governmental body participating in a meeting
must be physically present unless expressly authorized to participate by other means. . . . [S]uch
legislative authorizations must be strictly construed , . . .“‘) (quoting Tex. Att’y Gen. Op. No.
DM-478 (1998) at 4). This rule of strict construction supports construing section 55 1.125(b)(3) to
apply to entities that are clearly advisory from the face of their creating statutes because they are
granted only advisory duties.
Because chapter 1102 does not expressly limit the Committee to acting in an advisory
capacity and, moreover, authorizes the Committee to perform any duties delegated by the TREC
without limitation, see TEX. Oct. CODEANN. 4 1102.058(a) (Vernon 2004), we conclude that the
Committee is not an advisory board within the meaning of section 55 1.125(b)(3) of the Government
Code. As a result, the Committee and its subcommittees may meet by telephone conference call only
under section 55 1.125(b)(1)-(2).
Mr. Wayne Thorburn - Page 6 (GA-0379)
SUMMARY
Chapter 1102 of the Occupations Code creates the Texas
Real Estate Inspector Committee to assist the Texas Real Estate
Commission and provides that the Committee is subject to the Open
Meetings Act. However, chapter 1102 does not expressly limit the
Committee to exercising advisory duties and expressly authorizes the
Committee to perform any duties delegated by the Commission. As
a result, the Committee is not an advisory board under section
55 1.125(b)(3) of the Government Code and the Committee and its
subcommittees may meet by telephone conference call only under
section 55 1.125(b)(1)-(2).
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee