Untitled Texas Attorney General Opinion ( 1969 )

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October20, 1969
Honorable F. B. Lloyd, Jr. Opinion NO. M-494.
District Attorney
79th Judicial District BE?: Construction of Art. 6252-17,
P-0. Box 965 V.C.S., as amended by S.B. 260,
Alice, Texas 78332 Ch. 227, Acts 61st Leg.,
requiring governmental
agencies to give notice of
Dear Mr. Lloyd: their meetings.
In your request for an,opinion you state the f0110wing:
"The Jim Wells County Judge has requested
my opinion concerning the effect of .SenateBill
260, Ch. 227, 61st Legislature, requiring govern-
mental agencies to give public notice of their
meetings.
"Section 3A (a) requires 'written notice of
the date, place and subject of each meeting.'
"The specific questions I have been requested
to answer are as follows:
"1 . With ~regard ko &y meeting of the
Commissioners' Court, either regular or
special, is it sufficient for the notice to
state: 'The regular monthly meeting of the
Jim Wells County Commissioners' Court will be
held at 10:00 a.m. on the -day of
in the County Courtroom of the Courthouse in
Alice, Texas, at which time the Commissioners'
Court will consider such matters pertaining
to the Jim Wells County business as may come
before it.' Or.must an itemized agenda for
each meeting be prepared and set out in the
notice.
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Hon. F. B. Lloyd, Page 2 (M-494)
"2. After the notice of a particular meeting
has already been posted, if some matter that should
be taken up at the meeting , comes to the attention
of the County Judge or a County Commissioner, is
it necessary for a new notice to be posted, or
can the matter be considered without notice?
“3. If some new item of business should
come up at the meeting, even though the matter
was not on the agenda, and not contemplated by the
Conunissioners'Court prior to the meeting, and
if such matter is not urgent but should be
acted upon at that meeting in order to keep
from having to call a special meeting, can the
Commissioners' Court act on such matter at mat
time or must they delay consideration aa call a
special meeting so that notice can be posted?
“4. If the Commissioners' Court should fail,
#rough oversight or for any reason, to post the
required notice, would the action taken at such
meeting where no notice has.been given be void,
voidable, or valid and effective?
"5. Who has the responsibility of post,ingthe
notices?
‘6. What, if any- penalty would be imposed
upon all or any persons who
(a) fail to post the notice, or
(b) participate in a meeting where
no notice was posted?"
The 1969 amendment to said Article 6252-17, in part,
reads as follows, to-wit:
"Sec. 3A. (a) Written notice of the date,
place, and subject of each meeting held by a
governmental body shall be given before the
meeting as prescribed by this section...
"(cl)A County governmental body shall have a notice
posted on a bulletin board located at a place conven-
ient to the public in the county courthouse...
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Hon. F. B. Lloyd, Page 3 (M-494)
"(f) Notice of the meeting must be posted
for at least the three days preceding the day of the
meeting. However, in case of emergency or urgent
public necessity, which shall be expressed in the notice,
it is sufficient that the notice is posted before
the meeting is convened or called to order."
1.
Where a right is conferred or obligation imposed on the
Commissioners' Court, it has implied authority to exercise a broad
discretion to accomplish the purpose intended. Anderson v. w00a,
137 Tex. 201, 152 S.W.2d 1084 (1941). The notice should
specifically set out any special or unusual matters to be con-
sidered or any matter in which the public has a~particular
interest, as well as general statements concerning routine
matters. Of course, an itemized agenda of all matters to be
considered would be in strict compliance with the requirements of
the statutes.
2.
If some matter to be considered by the Commissioners'
Court comes to its attention after the notice has been posted, a
supplemental notice should be posted before the meeting is convened
or called to order, as required by Paragraph (f) of Section 3A
i& said Article 6252-17.
3.
If a routine matter of.business comes up at the meeting,
the Commissioners' Court may consider it even though it was not
included in the notice. However, if an unusual matter or one
in which the public has a particular interest comes up eat the
meeting, the Commissioners' Court should delay an action thereon
and should not consider such matter until after a proper notice
has been posted.
4.
Where the Commissioners' Court has considered a
matter without the required notice, the law presumes that
the action was legal and that the Commissioners' Court acted
in accordance with the law;.such presumption prevails in the
absence of and not against proof and may be overcome by
evidence to the contrary. Bollin v. Brazoria County, 381 S.u.2d
206 (Tex.Civ.App., 1964, no 47 Tex.Jur.2d 153 Public
Officers, Section 118. The statute provides that notice
"shall be given." The use of the word "shall" is ordinarily
mandatory. Moyer v. Kelley, 93 S.W.Zd 502 (Tex.Civ., 1936, error
dismissed); 53 Tex.Jur.2d 30, Statutes, Section 16.
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Hon. F. B. Lloyd, Page 4 (M-494)
Statutes regulating the general subject of notice should be
strictly complied with. Realty Trust Co. v. Lindsey, 129 Tex.
516, 105 S.W.Zd 210 (1937);.41 Tex.Jur.2d 526, Notice, Sec. 8.
It will be presumed that the Commissioners' Court
acted legally, but the action of said court would be voidable upon
proof that the required notice was not given.
5.
It is the duty of the Commissioners' Court to have the
proper notice posted on the bulletin board. Sec. 3A (d) of
Article 6252-17, Vernon's Civil Statutes.
6.
While Section 4 of said Article 6252-17 imposes penalties
upon any member of the Commissioners' Court who willfully calls
a meeting which is closed to the~public, the statute does not
contain any provision imposing penalties for failure to post
notices. However, Section 3 of the statute provides that any
interested person may commence an action for the purpose of
stopping or preventing violation or threatened violations of the
act.
SUMMARY
----_--
Notice of a meeting should include any
matter other than routine to be considered by
the Commissioners' Court. If a matter comes up
after notice has been posted, a supplemental
notice concerning such matter should be placed
on the bulletin board before the meeting of
the Commissioners' Court is .convened. Routine
matters may be considered by the Commissioners'
Court without notice, but unusual matters or
one in which the public has.a particular interest
should not be considered by.the court until the
required notice has been given. The act of the
Commissioners' Court will be presumed to be
valid but will be voidable upon proof that
proper notice.was not given., The Commissioners'
Court has the responsibility to have the notice
posted, but the statute does not impose any
penalty upon the members of the court for failing
to post the notice or participating in a meeting
where no notice was given.
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Hon. F. B. Lloyd, Page 5 (M-494)
C. MARTIN
General of Texas
Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMNITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
James Cowden
Houghton Brownlee
Alfred Walker
Roy W. Mouer
MEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant
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