Untitled Texas Attorney General Opinion ( 2000 )

OFFlCE OF THE ATTORNEV GENERAL. STATE OF TEXAS
JOHN CORNYN
November 20,ZOOO
Mr. Thomas A. Davis, Jr. Opinion No. JC-0308
Director
Texas Department of Public Safety Re: Whether attendance at a legislative hearing
P.O. Box 4087 by a quorum of members of a state
Austin, Texas 78773-0001 governmental body is subject to the Open
Meetings Act (RQ-0243-K)
Dear Mr. Davis:
You have requested our opinion as to whether attendance by a quorum of members of the
board of a state governmental body at a legislative hearing is subject to the Open Meetings Act
(“Act”), chapter 55 1, Government Code. For the reasons set forth below, we conclude that such
attendance constitutes a public meeting of the board under the Act, if one or more members
participates in a discussion of matters within the board’s jurisdiction.
You explain that the Public Safety Commission (“Commission”), composed of three
members, frequently attends the hearings of certain legislative committees that “concern matters
within the purview of the Commission’s duties and powers.“’ You note that legislators often
“recognize the presence ofthe commissioners, encourage statements or comments, or make inquiries
of them regarding Department business.” Request Letter, note 1, at 1. You ask whether the
Commission must itself post notice of these hearings when a quorum of its members attends. See
id. at 2.
The Act defines “meeting,” inter alia, as:
a deliberation between a quorum of a governmental body, or between
a quorum of a governmental body and another person, during which
public business or public policy over which the governmental body
has supervision or control is discussed or considered or during which
the governmental body takes formal action.
‘Letter from Mr. Thomas A. Davis, Jr., Director, Texas Depatment of Public Safety, to Honorable John
Comyn, Texas Attorney General at 1 (June 6,200O) (on tile with Opinion Committee) [hereinafter Request Letter].
Mr. Thomas A. Davis, Jr. - Page 2 (X-0308)
TEX. GOV’T CODE ANN. 3 551.001(4)(A) (V emon 1994). A “deliberation” is “a verbal exchange
during a meeting between a quorum of a governmental body, or between a quorum of a
governmental body and another person, concerning an issue within the jurisdiction of the
governmental body or any public business.” Id. 5 551.001(2). Thus, in the circumstances you
describe, if a quorum of members ofthe Commission engages in a verbal exchange with legislators
or members of their staff, those remarks constitute a deliberation. See id, see also Bexar Medina
Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n, 2 S.W.3d 459,461~62 (Tex.
App.San Antonio 1999, pet. denied) (verbal exchange at informational gathering of water district
board with landowners where one board member asked questions and another board member
answered questions was a “‘meeting’ for purposes of the Open Meetings Act,” even though board
members did not discuss business among themselves). Ifthe deliberation relates to “public business
or public policy over which the [Commission] has supervision or control,” the legislative hearing
becomes a“meeting”oftheCommission. TEX.GOV’TCODEANN. 5 551,001(4)(A) (Vernon 1994).
In Attorney General Opinion JC-0248, we said that when a quorum of the members of a
governing body of a state agency attends a public hearing held by the Sunset Advisory Commission,
and one or more of the members of the governing body testifies, answers questions, or in any other
manner furnishes information to the Sunset Advisory Commission, the agency itself is deemed to
have held a meeting under the Act, and is, as a result, required to post the requisite notice in
accordance with the Act’s provisions. See Tex. Att’y Gen. Op. No. JC-0248 (2000) at 2. Attorney
General Opinion JC-0248 relied in large part on an earlier opinion, Attorney General Opinion JC-
0203, which held that “[wlhen a quorum ofmembers of a standing committee of the Harris County
Hospital District attends a speaking engagement or meeting conducted by another entity and a
member participates in a discussion of matters of public business or public policy within the
committee’s supervision, the committee will be subject to the OpenMeetings Act.” Tex. Att’y Gen.
Op. No. JC-0203 (2000) at 5. The circumstance you describe is entirely analogous to those
addressed in Attorney General Opinions JC-0203 and JC-0248. As a result, when a quorum of the
members of a board of a state agency attends a legislative committee hearing, the board is itself
subject to the provisions ofthe Act if one or more members of the board participates in a discussion
on matters within the board’s jurisdiction.
Unlike the situation in each of those prior opinions, however, the matter of notice in the
present instance is more problematic. Agencies with statewide jurisdiction are required to post
notice of their meetings “for at least seven days before the day of the meeting.” TEX. GOV’T CODE
ANN. § 55 1.044(a) (Vernon Supp. 2000). Presumably, an agency with statewide jurisdiction is able
to furnish more than seven days notice to the state agencies that it summons to appear before it. See
id. The legislature, on the other hand, is not compelled to do so. Section 55 1.046 provides that
“[tlhe notice of a legislative committee meeting shall be as provided by the rules of the house of
representatives or ofthe senate.” Id. 5 55 1.046 (Vernon 1994). As you indicate, “legislative posting
time requirements are generally shorter than the seven-day posting required for state agencies.”
Request Letter, supra note 1, at 2. A state agency that appears before a legislative committee may
thus find it impossible to comply with the posting requirements of the Act.
Mr. Thomas A. Davis, Jr. - Page 3 (X-0308)
Section 55 1.045 permits a governmental body to hold an “emergency” meeting under certain
circumstances. See TEX. GOV’T CODE ANN. § 551.045 (Vernon 1994). In such an instance, notice
is sufficient if it is posted for at least two hours before the meeting begins. See id. 5 55 1.045(a). But
the requirements for an emergency meeting are quite strict. Such a meeting may be held only when
“immediate action is required of a governmental body” in response to either “( 1) an imminent threat
to public health and safety; or (2) a reasonably unforeseeable situation.” Id. 5 55 1.045(b). The
nature of the emergency must be clearly identified in the notice. See id. § 55 1.045(c). As the court
said in River Road Neighborhood Association v. South Texas Sports, 720 S.W.2d 55 1, 557 (Tex.
App.-San Antonio 1986, writ dism’d w.0.j.):
[T]he term generally refers to an unforeseen combination of
circumstances that calls for immediate action; a sudden orunexpected
occasion for action. The mere necessity for quick action does not
constitute an emergency where the situation calling for such action is
one which reasonably should have been anticipated. The Texas
Supreme Court has said that an emergency is a condition arising
suddenly and unexpectedly, not caused by any neglect or omission of
the person in question, which calls for immediate action,
Id. (citations omitted)
In our opinion, an emergency based on a reasonably unforeseeable situation may arise when
a state agency is unexpectedly summoned with less than seven days notice to appear before a
legislative committee. The circumstances arise suddenly, are not caused by any neglect or omission
of the agency and call for immediate action. When a quorum of the board of a state agency appears
voluntarily before a legislative committee, however, we do not believe that immediate action can
reasonably be said to be required. In such case, the agency has two options available. It may
determine that a quorum of the board should not attend the hearing. In the alternative, it may
endeavor to determine, at least seven days in advance of any potential hearing, a range of dates
during which the committee may consider matters relevant to the concerns of the agency. Then it
may post notice announcing ameeting ofthe agency’s board on the first ofthose dates. The meeting
may then be continued from day to day, without the need for reposting notice, until the legislative
committeereaches the issue ofinterest to the agency. SeeRivera v. Cityoflaredo, 948 S.W.2d 787,
793 (Tex. App.San Antonio 1997, writ denied); Tex. Att’y Gen. Op. No. DM-482 (1998); see also
Tex. Att’y Gen. Op. No. JC-0285 (2000).
You also ask whether, when a quorum of the board of a state agency attends a legislative
hearing, “minutes must be kept in accordance with section 551.021 of the Act.” Request Letter,
supra note 1, at 2. Section 551.021 requires that “[a] governmental body shall prepare and keep
minutes or make a tape recording of each open meeting of the body.” TEX. GOV’T CODE ANN.
5 551.021(a) (Vernon 1994). Because, as we have concluded, the attendance of a quorum of
members ofthe board of a state agency at a legislative committee hearing itselfconstitutes ameeting
Mr. Thomas A. Davis, Jr. - Page 4 (X-0308)
for purposes of the Act, it follows that the board is required to prepare and keep minutes or make a
tape recording of that meeting in accordance with section 55 1.02 1.
We are aware that the solution offered to the problem you pose is an inelegant one. We are
mindful ofthe difficulties involved in reconciling the legislature’s need to receive information from
state agencies with the agencies’ duty to provide notice under the Act, and we have addressed this
issue within the bounds of the laws as enacted by the legislature. The legislature is the proper body
to resolve these matters as it deems appropriate.
Mr. Thomas A. Davis, Jr. Page 5 cJC-0308)
SUMMARY
Attendance by a quorum of the members of the board of a
state governmental body at a legislative hearing is subject to the Open
Meetings Act if one or more members participates in a discussion of
matters within the board’s jurisdiction. If the board is summoned
with less than seven days notice by the legislative committee, it may
invoke the emergency notice provisions of the Act.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee