Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORXEP GENERML
OF TEXAS
Honorable Ernestine V. Glossbrenner Opinion No. JM-1072
Chairman
Public Education Committee Re: Whether certain
Texas House of Representatives subcommittees of the
P. O..Box 2910 board of trustees of
Austin, Texas 78768-2910 school districts are
subject to the Texas
Open Meetings Act,
article 6252-17,
V.T.C.S. (RQ-1702)
Dear Representative Glossbrenner:
As chair of the House Public Education Committee, YOU
,inquire about the extent to which the Texas Open Meetings
Act, article 6252-17, V.T.C.S., applies to committees of the
board of trustees of a school district. In specific, YOU
ask about a committee of members of the board of trustees
that comprises less than a quorum of the board. YOU
indicate that the committee at issue "performs functions
regarding matters affecting the school district." We
presume that your question is limited to those functions
that such a committee may lawfully perform. See Webster v.
Texas & Pac. Motor TransD. Co., 166 S.W.2d 75, 76 (Tex.
1942).
The Open Meetings Act requires that each "governmental
body" in this state post notice for and deliberate at meet-
ings that are open to the public unless a closed session is
expressly permitted. V.T.C.S. art. 6252-17, § Z(a); see Cox
Enterprises, Inc. v. Board of Trustees of Austin Indeo.
School Dist., 706 S.W.2d 956, 960 (Tex. 1986); see also
Attorney General Ooinion H-3 (1973) (act ooens decision-mak-
ing process); but see Citv of San Antonio v. Aquilar, 670
S.W.2d 681, 686 (Tex. APP. '- San Antonio 1984, writ ref'd
n.r.e.) (attorney-client privilege may form separate basis
for closed meeting). The act encompasses each "meeting,"
which is defined, in part, as !'any deliberation between a
quorum of members of a governmental body." V.T.C.S. art.
6252-17, 5 l(a) (emphasis added). A "quorum" is a majority
of the governing body. & 5 l(d). Many governmental
bodies believe that the act does not apply when a quorum is
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I
Honorable Ernestine V. Glossbrenner - Page 2 (JM-1072)
not present. Whether such subcommittees are themselves
subject to the act depends, in part, on the act's definition
of "governmental body."
Section l(c) of the Open Meetings Act provides:
'Governmental body' means any board,
commission, department, committee, or agency
within the executive or legislative depart-
ment of the state, which is under the
direction of one or more elected or appointed
members: and every Commissioners Court and
city council in the state, and every deliber-
ative body. having rule-making or quasi-
judicial power and classified as a depart-
ment, agency, or political subdivision of a
county or city: and the board of trustees of
everv school district. and everv countv board
of school trustees and countv board of educa-
t&z$J; and the governing board of every
special district heretofore or hereafter
created by law.
V.T.C.S. art. 6252-17, 5 l(c). For a local-level entity to
constitute a "governmental body" under section l(c), as a
general rule, the entity must fall within one of the
section's three specific descriptions. Attorney General
Opinions JM-794 (1987); JM-340 (1985). Subcommittees of
school districts are not listed expressly.
The first category includes "every deliberative body
having rule-making or quasi-judicial power and classified as
a department, agency, or political subdivision of a county
or city." V.T.C.S. art. 6252-17, 5 l(c). Subcommittees or
agencies of a .city or county therefore fall. within the
definition of "governmental body" when they have rule-making
or quasi-judicial power. See, cl Attorney General
Opinions JM-1007 (1989), H-1281 (t978j (salary grievance
committees); MW-506 (1982) (board of trustees of firemen's
retirement fund has quasi-judicial powers and is agency of
city): MW-177 (1980) (higher education authority created by
city or cities); H-554 (1975) (hospital authority that
performs governmental function and that is created by city).
The act does not cover a purely "advisory" agency of a
county or city that is not composed of members of the
governmental body. See Attorney General Opinion H-467
(1974) (city's library'board).
The definition of "governmental body" also lists two
other categories of local-level entities: school districts
and special districts. The definition does not list
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Honorable Ernestine V. Glossbrenner - Page 3 (JM-1072)
agencies or committees subordinate to school districts and
special districts. Attorney General Opinion JM-340 (1985).
This omission implies that subcommittees of school districts
and other special districts are not covered by the act.
This does not, however, prevent a subcommittee of a special
district covered by the act from falling within the scope of
the Open Meetings Act. This is true particularly in regard
to subcommittees comprising members of the parent govern-
mental body.
When a subcommittee includes members of a parent
governmental body, the subcommittee itself may be covered by
the Open Meetings Act. In 1973, the attorney general
considered whether a state-level entity, the Texas Board of
Mental Health and Mental Retardation, could institute, a
practice of dividing board members into several specialized
committees. Attorney General Opinion H-3 (1973). The
committees were to meet with the board's staff to study
specific matters and recommend actions at open meetings of
the whole board. Reasoning that the board might simply
"rubber-stamp" the committees' recommendations and that this
would deprive the public of access to the board's actual
decision-making process, the attorney general concluded that
committees composed of members of the board, even if less
than a quorum,, must comply with the Open Meetings Act. Id.
at 10; see also Attorney General Opinion H-823 (1976). A
similar approach applies to analysis of special d'istricts'
subcommittees. For example, standing committees of special
districts that are composed of members of the governing
board of the special districts must comply with the Open
Meetings Act when the standing subcommittees discuss public
business or policy. Attorney General Opinion H-238 (1974)
(standing committee of board of managers of hospital
district).
You indicate that the school district subcommittee at
issue "performs functions regarding matters affecting the
school district." If the committee at issue is composed of
one or more members of the school board, the committee
itself is subject to the Open Meetings Act.1 Moreover, as
1. The criminal sanctions of the act may also be of
concern when the members of an entity covered by the act
divide into or participate in subcommittees. See, e.q
Attorney General Opinions MW-390 (1981); MW-28. (1979;:
Proving a criminal offense depends on proof of the requisite
culpable state of mind. Violation of the criminal provi-
(Footnote Continued)
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Honorable.Ernestine V. Glossbrenner - Page 4 (JM-1072)
indicated, it is not clear that the board lawfully may
delegate to a subcommittee the power to act on behalf of the
board. See Webster v. Texas & Pac. Motor TranSD. Co.,
m.
SUMMARY
If a committee comprising one or more
members of the board of trustees of a school
district meets to discuss public business or
policy, the committee itself is subject to
the Texas Open Meetings Act, article 6252-17,
V.T.C.S.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee
Prepared by Jennifer S. Riggs
Assistant Attorney General
(Footnote Continued)
sions of the act depends on what constitutes "meeting in
numbers less than a quorum for the purpose of secret delib-
erations" to "knowingly conspire to circumvent" the Open
Meetings Act. V.T.C.S. art. 6252-17, 5 4(b).
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