Untitled Texas Attorney General Opinion ( 2000 )

January 24,200O
The Honorable Tim Curry Opinion No. K-0169
Tarrant County Criminal District Attorney
Justice Center Re: Whether a governmental body may permit
401 West Beknap members of the public to comment at public
Fort Worth, Texas 76196-0201 meetings on matters not specified in the posted
meeting notice (RQ-0098-JC)
Dear Mr. Curry:
You have requested our opinion as to whether a governmental body may permit members
of the public to offer comments at public meetings regarding matters not specified in the posted
meeting notice. We conclude that it may do so.
The Open Meetings Act, chapter 551 of the Government Code, requires that every meeting
of a governmental body be open to the public, except for executive sessions as permitted by the
statute. See TEX. GOV’T CODE ANN. 5 551.002 (Vernon 1994). A meeting that is “open to the
public” under the Act is one that the public is entitled to attend. See Tex. Att’y Gen. Op. No. M-220
(1968) at 5. The Act does not give the public a right to speak at such meetings. See Charlestown
Homeowners Ass ‘n, Inc. Y.LaCoke, 507 S.W.2d 876,883 (Tex. Civ. App.-Dallas 1974, writ ref d
n.r.e.); Tex. Att’y Gen. Op. Nos. JM-584 (1986) at 3; H-188 (1973) at 2; Tex. Att’y Gen. LO-96-
111, at 1; see also Eudaly v. City of Colleyville, 642 S.W.2d 75,77 (Tex. App.-Fort Worth 1982,
writ ref d n.r.e.) (distinguishing between “public meeting,” where public was not entitled to
comment, and “public hearing,” where public was entitled to comment). If a governmental body
wishes to allow members of the public to speak at its public meetings, it may adopt reasonable
rules consistent with relevant provisions of law allowing them to do so. See Tex. Att’y Gen. Op. No.
H-188 (1973) at 2; Tex. Att’y Gen. LO-96-111, at 1. As you point out in your request letter,
numerous governmental bodies have allowed for public comment at their meetings, subject to rules
they have developed. You indicate:
[I]t has become increasingly common for units of local government
to invite any member of the public to make whatever comments they
desire in the public forum at the time of the public meeting. Some
entities permit any member of the public to speak aa long aa they
desire; others permit a few minutes per speaker per meeting. The
member of the public typically shows up, tills out a card indicating
they wish to address the body; and then is called upon when the
The Honorable Tim Curry - Page 2 (X-0169)
comments section of the meeting is reached. Topics are usually
entirely at the discretion of the speaker.
Letter from Honorable Tim Curry, Tsrrant County Criminal District Attorney, to Honorable
John Comyn, Texas Attorney General, at 3 (Aug. 6, 1999) (on file with Opinion Committee).
Prior to 1987, a “meeting” under the Open Meetings Act was defined to require a
“deliberation” between the members of a governmental body. Thus, members of a governmental
body could meet privately to receive information from and ask questions of their employees or of
third parties, so long as they did notdiscuss any public business among themselves. See Dallas
Morning News Co. Y. Board of Trustees, 861 S.W.2d 532 (Tex. App.-Dallas 1993, writ denied). In
1987, the definition of “meeting” was amended to include any deliberation “between a quorum of
members of a governmental body and any other person” at which public business or policy is
discussed or at which formal action is taken. Act of May 31, 1987, 70th Leg., R.S., ch. 549, $ 1,
1987 Tex. Gen. Laws 2211. The definition of “deliberation” was simultaneously amended to
include a “verbal exchange during a meeting. between a quorum of members of a governmental
body and any other person.” Id.
In Dullas Morning News Co., the court found that:
a briefing session with third parties where the public is excluded and
the governmental body does not engage in a verbal exchange with
representatives of the third party or engage in verbal exchange
between its own members about the issue within its jurisdiction or
any other public business, is not a deliberation as defined by the Act.
Therefore, there is not a meeting as defined by the Act.
Dallas Morning News Co., 861 S.W.2d at 537. Thus, between 1987 and 1999, when a quorum of
a governmental body met to listen in silence to a briefing by a third party, that gathering did not fall
within the definition of “meeting” and was hence not subject to the Open Meetings Act.
Consequently, from 1987 to 1999, a govemmcntal body could hold a “public comment” session
without providing specific notice of the topics to be discussed, on the ground that, so long as its
members merely listened, the gathering was not a “meeting.”
In its most recent session, the legislature once again amended the definition of “meeting”
to provide:
(A) 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: or
The Honorable Tim Curry - Page 3 (X-0169)
(B) except as otherwise provided by this subdivision, a
gathering:
(i) that is conducted by the governmental body or for
which the governmental body is responsible;
(ii) at which a quorum of members of the governmental
body is present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give
information to, ask questions of or receive questions from any third
person, including an employee of the governmental body, about the
pubbc business or public policy over which the governmental body
has supervision or control. The term does not include the gathering
of a quorum of a governmental body at a social function unrelated to
the public business that is conducted by the body, or the attendance
by a quorum of a governmental body at a regional, state, or national
convention or workshop, if formal action is not taken and any
discussion of public business is incidental to the social function,
convention, or workshop. The term includes a session of a
governmental body.
TEX. GOV’T CODE ANN. $551.001(4) (Vernon Supp. 2000) as amended by House Bill 156, Act of
May 22, 1999,76th Leg., R.S., ch. 647, 5 1, 1999 Tex. Gen. Laws 3218 (emphasis added). As a
result of this new language, it is clear that a “public comment” session is now encompassed within
the definition of “meeting,” since “public comment” necessarily implies that the “members” of the
governmental body will “receive information from . or receive questions t%om [a] third person.”
See id.
The Open Meetings Act requires written notice of all meetings. Section 55 1.041 provides
that “[a] governmental body shall give written notice of the date, hour, place, and subject of each
meeting held by the governmental body.” Id. 3 55 1.04 1 (Vernon 1994) (emphasis added). See City
of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991); see also Texas
Turnpike Auth. v. City ofFort Worth, 554 S.W.2d 675 (Tex. 1977); Lower Colorado River Auth. v.
City of San Marcos, 523 S.W.2d 641 (Tex. 1975). Notice should be more specific where the matter
is of particular interest to the public. See Con Enterprises, Inc. v. Board of Trustees, 706 S.W.2d
956,958-59 (Tex. 1986). In 1975, this office said that such terms as “new business,” “old business,”
“regular or routine business,” or “other business” were insufficient to inform the public of the nature
of the items to be addressed. Tex. Att’y Gen. Op. No. H-662 (1975) at 3. On their face, these cases
and opinions might seem to preclude the use of a broad term such as “public comment.” Such a
TheHonorableTimCuny - Page 4 (``-0169)
reading, however, would misconstrue the purpose both of the statute’s notice requirement and of a
“public comment” session.
The cases and opinions cited above construe the notice requirements of the Open Meetings
Act to further the statute’s intended purpose ofopening governmental decision-making to the public,
The public comment sessions at issue do not involve deliberations by a governmental body. The
Dallas Morning News case, the only judicial decision to address one-way communications by third
parties to a governmental body, concerned a formal report by a representative of the state agency
with supervisory authority over the school district. The meeting in Dallas Morning News Co. was
very different from the public comment sessions you have described. The school board knew well
before the meeting that a Texas Education Agency representative would present a report on the
district’s accreditation. Had it been required to post notice ofthe meeting, it could easily have done
so. A governmental body decides what it will discuss at its meetings, and it knows or can learn in
advance the subject matter of reports or briefings by employees, consultants, auditors, persons
engaged in business with the governmental body, and by other third parties with a special connection
to the governmental body. Thus, there are no particular difficulties in providing notice ofthe subject
matter of such presentations.
Unlike such briefings and presentations for which a governmental body may post specific
notice of the particular subject matter, public comment sessions pose notable difficulties in
predicting the subject matter of citizen comments and questions. We cannot expect a governmental
body to divine or foresee the myriad ofmatters its constituents wish to bring to its attention. Rather,
public comment sessions provide an opportunity for citizens to speak their minds on an unlimited
variety of subjects. They furnish an outlet for real and imagined grievances. Moreover, they are
held, not behind closed doors, but in the bright light of an open forum. They have been an integral
part ofpublic meetings since well before the adoption of the Open Meetings Act in 1967. See e.g.,
State Y. Hellman, 36 S.W.2d 1002, 1004 (Tex. 1931) (“[F] re q uently citizens interested in matters
to be acted upon by the council appeared before them at their meetings.“); Swank v. Sharp, 358
S.W.2d 950,951 (Tex. Civ. App.-Dallas 1962, no writ) (“[R]ules ofthe Council shall provide that
citizens shall have a reasonable opportunity to be heard.“) (citation omitted). There is not the
slightest indication in the record that the legislature, by amending the definition of “meeting” in
1999, meant to abolish them. To require specific notice of the items raised during a public comment
session would, we think, effectively end the practice. This construction+ntirely prohibiting public
comment sessions-is inconsistent with the principles of open government advanced by the Open
Meetings Act. Thus, we conclude that while such sessions constitute meetings for which notice must
be given, the terms “public comment,” “public forum, ” “open mike,” or some other generic term,
provide sufficient notice for the kind of sessions you describe.
We caution that the use of “public comment” or similar term will not provide adequate
notice if the governmental body is, prior to the meeting, aware, or reasonably should have been
aware, of specific topics to be raised. If, for example, a governmental body is apprised in advance
that members of a particular neighborhood association will be present to comment on drainage
The Honorable Tim Curry - Page 5 (``-0169)
problems, it must insure that its notice is tailored to its prior knowledge. See Cox Enterprises, 706
S.W.2d 956.
We must also briefly explain how our conclusion here relates to section 55 1.042 of the Act.
That section provides:
(a) If, at a meeting of a governmental body, a member of the
public or of the governmental body inquires about a subject for which
notice has not been given as required by this subchapter, the notice
provisions of this subchapter do not apply:
(1) a statement of specific factual information given in
response to the inquiry; or
(2) a recitation of existing policy in response to the inquiry.
(b) any deliberation of or decision about the subject ofthe inquiry
shall be limited to a proposal to place the subject on the agenda for a
subsequent meeting.
TEX. GOV’T CODE ANN. 5 551.042 (Vernon 1994). This provision relates to “inquiries” t?om
members of the public. Its purpose is to authorize a governmental body to make a limited response
to an inquiry from the public about a subject not included on the posted notice and to prevent it from
engaging in “deliberation” or making a “decision” about the subject matter of the inquiry. When an
inquiry or a comment from a member of the public requires such deliberation or decision, members
of the governmental body may respond merely that the matter shall be placed on a future agenda.
You also ask whether “employee briefing sessions” may be held without specific notice
under the category denominated “public comment” or “staff briefing.” Between 1987 and 1999,
“employee briefing sessions” were permitted to be held in executive session. Section 55 1.075
provided:
(a) This chapter does not require a governmental body to confer
with one or more employees of the governmental body in an open
meeting if the only purpose of the conference is to:
(1) receive information from the employees; or
(2) question the employees.
(b) During a conference under Subsection (a), members of the
governmental body may not deliberate public business or agency
policy that affects public business.
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Act of May 4, 1993, 73d Leg., R.S., ch. 268, 5 1, sec. 551.075, 1993 Tex. Gen. Laws 583, 590.
According to opinions of this office, “staff briefing sessions,” under the prior law, were not
“meetings” within the Act, and were therefore not required to be open to the public or to be preceded
by notice. See Tex. Att’y Gen. Op. Nos. DM-191 (1992) at 3; IM-1058 (1989). A “staffbriefmg
session,” taking place without notice or scrutiny, could provide an opportunity for secret
deliberations. The bill analysis for House Bill 156 reported that “[a]t least one state board has
conducted its deliberations as part of staff briefings that are closed to the public.” HOUSE STATE
AFFAIRS COMM., Tex. H.B. 156, 76th Leg., R.S. (1999). House Bill 156 deleted the general
authorization for briefing sessions from section 55 1.075 and replaced it with a provision applicable
only to the board of trustees of the Texas Growth Fund. See Act of May 22, 1999,76th Leg., R.S.,
ch. 647, 5 2, sec. 551.075, 1999 Tex. Gen. Laws 3218-19 (codified at TEX. GOV’T CODE ANN. 5
551.075 (Vernon Supp. 2000)).
Whether “employee briefing sessions” were more properly characterized as entirely outside
the definition of “meeting,” or a permissible subject for a properly noticed executive session, the
enactment of House Bill 156 makes clear that (1) they now fall squarely within the definition of
“meeting;” and (2) they may not be held in executive session unless some other exception is
applicable. Furthermore, we believe that a generic notice, such as “employee briefing sessions,” is
inadequate for such a session. A governmental body’s relationship to its employees is entirely
different from its relationship to the general public. It exercises control over its employees and
presumably can ascertain in advance what subjects a particular employee will address. In any event,
the amended definition of “meeting” and the repeal of the executive session provision for employee
briefing sessions mean that staff briefings may be conducted only in public, unless some specific
exception of the Act applies.
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SUMMARY
“Public comment” provides sufficient notice under the Open
Meetings Act of the subject matter of “public comment” sessions
where the general public addresses the governmental body about its
concerns and where the governmental body does not comment or
deliberate except as authorizedby section 55 1.042 ofthe Government
Code. “Employee briefing” or “staffbrieting” does not give adequate
notice of subjects presented to a governmental body by employees or
staff members.
4 c
Yo s very truly,
AT
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee