Untitled Texas Attorney General Opinion ( 1999 )

December 29.1999
The Honorable Debra Danburg Opinion No. JC-0160
Chair, Committee on Elections
Texas House of Representatives Re: Whether an ad hoc intergovernmental working
P.O. Box 2910 group is subject to the Open Meetings Act, chapter
Austin, Texas 78768-2910 55 1 of the Government Code (RQ-0096-JC)
Dear Representative Danburg:
You have requested our opinion as to whether an ad hoc intergovernmental working group
is subject to the OpenMeetings Act, chapter 551 ofthe Government Code. We conclude that, under
the circumstances you describe, such an entity is not within the ambit of that statute.
Harris County, the City of Houston, and the Houston Independent School District propose
to enter into a contract (the “agreement”) under the Interlocal Cooperation Act, section 791.011 of
the Government Code, “to jointly coordinate the sale of tax foreclosed property pursuant to the
authority granted by” chapter 34 of the Tax Code. See Proposed lnterlocal Agreement for the Sale
of Seized and Tax Foreclosed Property, Harris County-City of Houston-Houston Ind. Sch. Dist.,
Final Draft, at 1 (on tile with Opinion Committee) [hereinafter “Proposed Interlocal Agreement”].
The agreement provides that each party is to appoint “one officer or employee” as a member of a
three-member committee. Id. at 2. Each party is required to “direct its attorney for delinquent ad
valorem tax matters to prepare a list of all properties to be scheduled for foreclosure or resale.” Id.
At meetings of the committee, the members, after receiving the proposed tax foreclosure sales or
resales, “may postpone the foreclosure or resale of any property to conduct any additional
investigations that the Members deem necessary.” Id. at 4. A property scheduled for foreclosure
or resale must be removed from the list if a “member objects to the sale.” Id. “If a member objects
to a sale or resale, but another Member desires to proceed,” the terms of the interlocal agreement do
not apply. Id. The committee is also required to “adopt a marketing program or place public notices
to promote the resale of Struck-Off Properties.” Id.
The three-member committee is funded by an initial deposit of $10,000 by each of the three
entities into an account in the name of the county, and the account may be replenished as needed.
The committee may authorize the expenditure of funds from this account with the unanimous
approval of the members. Id.
A brief submitted by the committee’s attorney states that “it is not contemplated that any
member of the three (3) entities[‘] governing bodies will be a member of the committee or would
attend the meetings.” Brief from William E. King, Houston Managing Partner, Linebarger, Heard,
Goggan, Blair, Graham, Pena, & Sampson, UP, Attorneys at Law, to Elizabeth Robinson, Chair,
The Honorable Debra Danburg - Page 2 (JC-0160)
Opinion Committee, Office of the Attorney General, at 1 (Nov. 12, 1999) (on tile with Opinion
Committee) [hereinafter “Brief’]. Althoughnothing in the proposed interlocal agreement precludes
such an arrangement, we will assume for purposes of this opinion that no county commissioner, city
council member, or school trustee will serve as a member ofthe committee. The brief also notes that
“the committee has the power to take only two actions.” Id. The first is the power of “any one
member [to] object to the sale of any property proposed for foreclosure,” on the basis of the
policies of the entity he or she represents. Id. Those policies are not set by the committee, or any
of its members, but are established by each entity itself. The brief explains that a member may
interpose a temporary objection to a sale because of “the [inladequacy of the work done in taking
the judgment,” and demand further investigation. Id. at 2. With regard to the decision of ultimate
sale, however, the agreement does not permit any member to impose his or her will on the
governmental entity of another member. If the other member “desires to proceed” with the sale, that
particular property is removed from the terms of the agreement. See Proposed Interlocal Agreement
at 4.
The other power of the committee, according to the brief, is the authority to manage “struck-
off’ properties, i.e., those temporarily removed from sale because the minimum bid required by
statute (taxes + costs) has not been received. The agreement proposes to share the burden of
maintenance costs, additional investigation, and remarketing, by permitting the committee to expend
funds from its account for these purposes. The brief notes, however, that the initial deposit into the
account will have been approved by the governing body of each entity, “and to the extent[] state law
requires competitive bidding, those matters will be submitted to the governing bodies for approval.”
See Brief at 2.
The Open Meetings Act defines “governmental body” as, inter ah,
(B) a county commissioners court in the state;
(C) a municipal governing body in the state;
(D) a deliberative body that has rulemaking or quasi-judicial power
and that is classified as a department, agency, or political subdivision
of a county or municipality;
(E) a school district of trustees;
[and1
(H) the governing board of a special district created by law;
TEX. GOV'T CODE ANN. $551.001(3) (Vernon Supp. 2000).
Numerous opinions have held that a subcommittee of a governmental body may itself be
subject to the Open Meetings Act, even though the subcommittee consists of less than a quorum of
The Honorable Debra Danburg - Page 3 (JC-0160)
the parent body. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0060 (1999); JC-0053 (1999). In the
situation you pose, however, no member of one of the three governing bodies is a member of the
committee. Furthermore, as the brief points out, it is not “contemplated that the governing bodies
will ‘ratify’ or otherwise act on the actions taken by the committee.” See Brief at 1. In Attorney
General Opinion JC-0060, we indicated, in effect, that the relevant factors to be considered are: (1)
the composition of the subcommittee; (2) its purpose; and (3) the extent to which its
recommendations are “rubber-stamped” by the parent body. Tex Att’y Gen. Op. No. JC-0060 (1999)
at 2-3. Neither the composition of the committee, nor its purpose, nor the possibility of “rubber-
stamping,” nor all together, lead to the conclusion that it is a subcommittee of any of the
governmental bodies that compose its membership.
We must also consider the applicability of the court’s decision in Sierra Club v. Austin
Transportation Study Policy Advisory Committee, 746 S.W.2d 298 (Tex. App.-Austin 1988, writ
denied). In that case, the entity was composed of seventeen state, county, regional, and municipal
public officials, whose purpose was to “play[] a vital role in deciding which highway projects are
planned, built and funded in the Austin urban area.” Id. at 300-01. The committee had also been
designated a “Metropolitan Planning Organization” for purposes of “receiving federal highway
funds.” Id. at 300. The court held that the committee was “‘a special district’ and thus a
‘governmental body’ within the terms of the Open Meetings Act.” Id. at 301.
In Sierra Club, the committee was comprised of public officials rather than employees.
Sierra Club, 746 S.W.2d at 300. In addition, the committee’s designation of a particular highway
project was a prerequisite for that project’s immediate funding. Id. Finally, the committee had been
officially designated by the governor as a“Metropolitan Planning Organization” in compliance with
federal law. Id. In our opinion, the committee of which you inquire bears little resemblance to the
significant policy-making creature of Sierra Club. It appears to constitute, rather, an informal
working group of staff persons whose purpose is to coordinate the details of interlocal tax
foreclosures and sales. The according of “special district” status to an entity not designated as such
by the legislature has not been extended (or followed) in the nearly twelve years since Sierra Club,
and we decline to do so here on such a flimsy reed. It is therefore our opinion that the three-member
committee is not a “governmental body” under the terms of the Open Meetings Act.
The Honorable Debra Danburg - Page 4 (X-0160)
SUMMARY
An ad hoc intergovernmental working group consisting of
non-elected public officials, and whose purpose is to confer with
private legal counsel hired by each governmental body regarding the
sales and foreclosures oftax judgments on delinquencies within their
overlapping jurisdictions, is not as a matter of law a “governmental
body” for purposes of the Open Meetings Act.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELLZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee