Untitled Texas Attorney General Opinion ( 1975 )

OF TEXAS
AUFWX-IN. TEXAS 78711
April 28, 1975
The Honorable Eddie Bernice Johnson Opinion No. H- 594
Chairperson, Labor Committee
House of Representatives Re: Effect of a commissioners
P. 0. Box 2910 court’s failure to ratify action
Aystin, Texas 78767 of a prior commissioners court
creating a civil service system
when it is alleged that the original
action was taken in a proceeding
which violated the Open Meetings
Act.
Dear Representative Johnson:
You have requested our opinion regarding the effect of a
commirsionerr court’s failure to ratify a prior commissioners court
action that created a county civil service, when it is alleged that the
original action was taken in a proceeding that violated the Open Meetings Act.
You state that the Tarrant County Commissioners Court adopted
the provisions of the County Civil Service Act, article 237211-6, V. T. C. S.,
thereby creating a civil service system in Tarrant County. See Green v.
Stewart, 516 S. W. 2d 133 (Tex. Sup. 1974). A subsequently elected Com-
missioners Court was advised that prior proceedings of the Court had not
been held in strict compliance with the terms of the Open Meetings Act,
article 6252-17, V. T. C. S. It voted to validate all prior proceedings of
the Court since 1971, and to except from such validation the proceedings
at which county civil service had been adopted. Following such action,
the Court pronounced civil service to be no longer in effect in Tarrant
County,. The alleged defe,ct in the earlier meetings involved the posting
of notice, and we have been informed that there is a dispute regarding the
facts.
Although the Open Meetings Act does not explicitly provide for
invalidation of actions taken in violation of its requirements, three court
decisions since 1971 have recognized that:
p. 2645
The Honorable Eddie Bernice Johnson, page 2 (H-594)
[t]he terms of article 6252-17 are mandatory so
as to require at least substantial compliance with
its provisions in order to uphold proceedings to
which the statute is applicable. Lipscomb Inde-
pendent,School District v. County School Trustees
of Lipscomb County, 498 S. W. 2d 364, 366 (Tex.
Civ. App. --Amarillo 1973, writ ref’d., n. r. e. ).
See also Hall v. Thomas, 474 S. W. 2d 276 (Tex. Civ. App. --Texarkana
1971, writ diam’d.‘); Torah Indeuendent School District v. Pecos-Barstow
Indeuendent School District, 466 S. W:2d 377 (Tex. Civ. App. --San Antonio
1971, no writ). Since an entity to which the Act applies is authorized by
its terms “to act only at a meeting which [is] open to the public, ” then
“[it] is an anomaly to say that a meeting, the holding of which is forbidden
by law, is a legal meeting. ” Togh, supra at 380. Action taken at a meeting
which is not held in compliance with the Gpen Meetings Law has been held
to be voidable. Tovah, sunra. Attorney General Opinions H-419 (1974); M-494
(1969). Also see, La
18 Tex.Sup. Ct. Journal No. 11, p1 125 (Dec. 11, 1974).
The cases suggest that compliance with the provisions of the Act
need be only “substantial. I’ m, s- at 380. The question of
substantial~mmpliance, which necessarily involves determinations of fact,
must be resolved eventually “in subsequent court proceedings initiated
by persons adversely affected by such action. ‘I B, ..‘itip’,r’%. a-t: p’. : 3 7 8.
In each of the three decisions we have mentioned, the validity of the pro-
ceeding had been challenged by an aggrieved party in an original court action.
In the present instance, however, the Commissioners Court itself
purported to render its.prior action void merely by failing to ratify it. We
do not believe that such action was sufficient to abolish civil service in
Tarrant County, in the absence of an adversary proceeding initiated by an
aggrieved party. If such a proceeding ensues,. the factual issue of “substantial
compliance” with the terms of the Open Meetings Act can be appropriately
resolved.
p. 2646
The Honorable Eddie Bernice Johnson page 3 (H- 594)
SUMMARY
A commissioners court’s mere refusal to
ratify a prior action allegedly taken fin violation
of the Open Meetings Act does not in and, of
itself have the effect of invalidating the prior
action. Such invalidation can finally occur only
after a finding of a lack of substantial compliance
with the provisions of the Open Meetings Act
arising from an adversary proceeding initiated
by an aggrieved party.
Very truly yours;
A
// Attorney General of Texas
APPROVED:
V
n
hQ-av-w&
DAVID M. KENDALL, First Assistant
Opinion Committee
p. 2647