Untitled Texas Attorney General Opinion ( 1981 )

--. =-_ :_., The Attorney Germ-al of Texas Novahor 13, 1981 MARK WHITE ht0+y c30m81 l4r. Julio Garcia opinion no. nu-390 supmlu cowl Eulldlng P. 0. Box 1284s District Attoraey Atiln. TX. m-f11 DimIt. Zapat* L Webb Countica Rc: Whether acting called s12i4m-2m1 P. 0. Box 1343 by district judge and Telex 91011)7+1m7 Laredo, Texan. 78040 attended by county judge and T.l.copl~ SlW- NO county cd~aionera la subject to the Open Meetinga idol till8 Sl, sune 1400 Act- oenm.Tx. 78201 214w42as44 Dear l4r. Garcia: 4824AlBolt Ave.. suite 180 You ask whether a particular conference vaa held in violation of El Pa&J.TX. 7waS the Open Meetings Act, article, 6252-17. V.T.C.S. The essential facts 01- are as follol?a: On July 16. 1981, the dfstrict judge of the 49th Judicial 1220Dan44 Ave, SUN42m Noua:on.Tx. 77002 District convanad a conference in his office. You state that the 71- purpose of thla conference was to “present poaalble alternatives And suggaatlona to combat the economic crisis facing Webb County.” hw those in attendance were the county judge and tvo county comlaaion.era ass ema~ay. sun4 512 of Webb County. Lubbok. TX. 7mol #M416231) Section 3A of article 6252-17 requires public notlce of l.apendlng meetings of governmental bodies. Your latter is accqanied by copies Uoo N. T.n(h. bllo a of public notices of certain maetinge; there is. hovever. no hlcAllm. TX. 78801 51-7 Indication that public notice of the July 16 gathering vaa ever provided. 200 MaIn Plaza. eulle 400 The following provisions of the Open Meetings Act are relevant to San Anlonl~, TX. 7(uos your question: s12t22b41e1 Section 1. As used in thia Act: All Eqpwloppomnnyl Afflfln4liv4 ActIon EmploYu (a) ‘Uecting mana any dalibaration between a guonm of -bara of a govarnwntal body at which any public bualnaaa or public policy over vhich the governmental body hea auperviaion or control is discussed or considered. z at which any formal action la taken.... Mr. Julio Garcia - Page 2 olw-390) (b) ‘Deliberation’ means A verbal exchange between A quorum of members of A governmental body attempting to arrive at A decision on any public business. (4 ‘Governmental body’ mema. .. wary Comiaaionera Court... . (d) ‘Quorum’ unless othervise defined by constitution. ch8rter. rule or law applicable to such governing body, means A majority of the governing body. Sec. 2. (A) Except as otherwise provided in this Act or specifically permitted in the Constitution. every regular, special, or called meeting or session of every governmental body shall be open to the public; and no closed or executive meeting or session... shall be held unless..., Sec. 3A. (a) Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section. and any action taken by a governmental body at a meeting on a subject which vaa not stated on the agenda in the notice posted for such meeting is voidable.... Sec. 4. (a) Any member of A governing body who wilfully calls or aids in calling or organizing a special or called meeting or session which is closed to the public, or who vilfully closes or aids in closing a regular meeting OT session to the public, or who vllfully participates la a regular, special, or called meeting or session which is closed to the public where a closed meeting is not permitted by the provisions of this Act. - shall be guilty of a misdemeanor.... (b) Any member or group of members of s governing body who conspire to circumvent the provisions of this Act by meeting in nutiers leas than a quorum for the purpose of secret deliberations in contravention of this Act shall be guilty of A misdemeanor.... (Emphasis added). You suggest that this conference was not held in violation of the Open Meetings Act because the members of the co~issloners court did not psrticipste in calling it. see section 4(a), (b), or engage in “dellberotlons” es that term is defined in section l(b). I hr. Julio GAKCIA - Page 3 (MW-390) We must first determine whether this gathering constituted a “maeting” As defined in section I(A). As noted. a quorum. &. majority, of the members of A governing body must be present for there to be A “meeting” vithin the meaning of this section. Article V. section 18 of the Texas Conaticution provides in pertinent part that: Tbe County hlssionera so chosen, with the County Judge as presiding officer, shall compose the Cwnty Commissioners Court.... Article 2342, V.T.C.S.. provides that: The several commissioners, together with the county judge, Shall compoaa the ‘Co~iaaiorara Court.‘..., Article 2343. V.T.C.S.. states that: (A) Any three members of the court, including,the county judge, constitute A quorum for the tr8na8ction of any business except that of.... These provisions eateblish thAt the county judge la prrrt of the commissioners court. and that the presence of three or more mambers of said court, including the county judge, constitutes A “quorum” of the court. Inasmuch se the county judge and two comiasioners were present at the July 16 conference, A “quorum” of the cowAisa1oner.s court WAS clearly in attendance At that conference. With renard to the uortion of section l(a) vhich estsblishes the prerequisites of A “meeting,” Commiasionere.’ ‘Court of Rays County v. District Judge, 22nd Judicial District of DAya County. 506 S.W.Zd 630 (Tex. Civ. ADD. - Austin 1974. writ ref’d n.r.e.1. is cited to us for the propositibn that the Open Meetings Act is not ViOlAfed where the commissioners court meets but does not tske any conclusive Action. It is true that this ceae stands for this proposition. When the particular meeting At issue in the COIIssiSSiOnerS’ Court CAse WAS held on August 4, 1972, however, the definition of “meeting” nom contained in the Gpen Meetings Act WAS not in ef feet. The present definition, vhich makes it clear that the Act la Violated If final Action is taken z if public business or policy ovet which the governmantA body in question h8s supervision or control is discussed or considered. becAme operAtive on JanuAry 1. 1974. See Acts 1973. 63rd Leg., ch. 31.At 45. The Coraissioners’ Court case istherefore. of no help hare. With respect to your argument that sections 4(a) And (b) were not ViOlAted because the commissioners Court did not PArtiCipAte in calling the July 16 conference, we note th.st pertlcipation in calling an illegal meeting is not necessarily determinative of whether those SeCtiOnS hew been violeted. SeCtiOn 4(a) also embrAce those who . Hr. Julio GARCIA - Page 4 olw-390) vilfully participate in an illegally-held closed meeting, whether they join in calling it or not. To a-rise: (1) A quorum of the COpmiSSiOnarS COUrt WAS present 8t the July 16 conference, And therefore “A quorum of A governmantal body” WAS present vithin section l(a) of the act; (2) whether final action is t8kan is not detarmin8tive of whether cm article 6252-17 “meeting” has taken place; and (3) one need not participate in calling an illegal maeting in order to be within section 4(A) of the Act. These conclusions are essential to the resolution of your question. In order to determine whether the July 16 conference WAS held In violation of the Open Meetings Act, however, ‘Ye would have to make several findinga of fact , and the resolution of fact questions is outside the scope of the opinion process. Under section l(a), A “deliberstlon” is an essential element of a “meeting”. See sec. l(b). On the facts given WC cannot determine whether any “deliberations” took place. Section b(8) provides that s viol8tion occurs when A member %ilfully” participates in an illegally closed meeting. Whether any of the co~IaaIonera’ Court mambera vilfully participated in an illegally closed meeting in this instsnce is A fact question. SUMMARY The presence of the county judge and two members of the collnniaaionera court at sn assembly constitutes A “quorum” of the court for purposes of article 6252-17. V.T.C.S. Whether final action is taken la not determinative of whether A “meeting” has occurred within that atstute. One need not participate in calling an illegally closed meeting to be subject to the penalty provisions of section 4(a) of the statute. The question of vhether the particular conference 8t iSSUe here ViolAted the Statute iS A fACt qUeStiOn vhich la beyond the scope of the opinion process. MARK WHITE Attorney CenerAl of TeXAS JOHN W. FAINTER, JR. First Assistant Attorney GenecAl RICHARD E. GRAY III Executive Assistant Attorney General Mr. Julio Garcia - Page 5 (mJ-nG) Prepared by Jon Bible Assistant Attorney GenerAl APPROVED: OPINION COnnITTEE Susm L. Garrison. ChAirPan Jon Bible Rick Gilpin Jim Woellinger Bruce Youngblood