Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 13, 2011
Mr. Don Sloan, President Opinion No. GA-0896
Bandera County River Authority
and Groundwater District Re: Whether certain kinds of electronic communication
Post Office Box 177 among members of the board of directors of a river
Bandera, Texas 78003 authority constitute a violation of the Open Meetings
Act, chapter 551 of the Government Code
(RQ-0977-GA)
Dear Mr. Sloan:
You ask "when, and to what extent, might e-mail or other electronic communications rise to
the potential of a violation of the Texas Open Meetings Act, or in particular, constitute a 'walking
quorum. ",1 You explain that the Bandera County River Authority and Groundwater District (the
"District") is "concerned about three categories of electronic communications": First, e-mail
disseminated among a quorum of the District's Board of Directors (the "Board"); second, e-mail sent
to less than a quorum of the Board and copied to the District's general manager, who does not know
whether the e-mail was sent to other Board members; and third, messages sent by a Board member
to an internet-based group whose members are unknown to the District. Request Letter
at 1. Your letter includes copies of many messages that might fall within one or more of the three
categories you describe. Id. at 1 (tabs 3-12). You write that the District is concerned that some of
the Board members' electronic communications might violate the Act, and you want our "opinion
as to the appropriateness" of the communications. Id. at 2. However, the "District recognizes that
this may be [a] very difficult issue [on which] to render opinions based upon the number of
unknowns." Id. at 2. Indeed, this office cannot resolve questions of fact. Tex. Att'y Gen. Op. No.
GA-0751 (2009) at 1. Therefore, we cannot resolve the many factual questions surrounding the
messages you ask about in your letter. Id. Instead, we will give you general legal guidance on your
questions.
lLetter fromMr. Don Sloan, President, Bandera County River Authority and Groundwater District, to Honorable
Greg Abbott, Attorney General of Texas at 1 (June 9, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request
Letter") (with attachments, tabs 3 through 12). We limit this opinion to the question you ask about the Open Meetings
Act (the "Act") and presume, as a Texas court WOUld, that the Act is constitutional. See Tex. Att'y Gen. Op. No. GA-
0890 (2011) at 1, n.1 (citing section 311.021 (l) of the Government Code, providing that it is presumed that laws are
constitutional); Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659,662 (Tex. 1996) (presuming that a
statute is constitutional)).
Mr. Don Sloan - Page 2 (GA-0896)
We begin by reviewing the Act. "Every regular, special, or called meeting of a governmental
body shall be open to the public, except as provided by this chapter." TEX. GOY'T CODE ANN.
§ 551.002 (West 2004). The Board is a "governmental body." See id. § 551.001(3)(H)(West. Supp.
2011) (providing that the governing board of a special district created by law is a governmental
body). See also ActofMay31, 1971, 62dLeg., R.S., ch. 629, § 1,1971 Tex. Gen.Laws2045,2045
(creating the District). Therefore, the Act apples to the Board. The Act defines a "meeting" as
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; ...
TEX. GOy'T CODE ANN. § 551.001(4)(A) (West. Supp. 2011). A "deliberation" is a "verbal
exchange during a meeting between a quorum of a governmental body, or between a quorum of a
governmental body and another person, concerning an issue within the jurisdiction of the
governmental body or any public business." Id. § 551.001 (2). The Act does not define a "walking
quorum." See generally id. § 551.001. However, a Texas appellate court has defined the term to
mean "serial meetings of less than a quorum." Willmann v. City of San Antonio, 123 S.W.3d 469,
478 (Tex. App.-San Antonio 2003, pet. denied). See also Esperanza Peace & Justice Ctr. v. City
of San Antonio, 316 F. Supp. 2d 433,474 (W.D. Tex. 2001) (describing the term as "an overlapping
series of meetings or telephone conferences [when] a quorum of members was not in the same room
at the same time").
Although the Act applies to a "verbal exchange" involving a quorum of the governmental
body, the Act does not provide that the words exchanged must be spoken in person. TEX. GOY'T
CODE ANN. § 551.001(4) (West. Supp. 2011). See also Tex. Att'y Gen. Op. No. JC-0307 (2000) at
5-6 (explaining that the word "verbally" usually describes the expression of something in words
generally rather than the expression of something in spoken words only). Indeed, members of a
governmental body need not be in each other's physical presence to constitute a quorum. Tex. Att'y
Gen. Op. Nos. GA-0326 (2005) at 3, JC-0307 (2000) at 4, DM-95 (1992) at 5. See also Esperanza
Peace & Justice Ctr., 316 F. Supp. 2d at 473 (indicating that the court of appeals in Hitt v. Mabry,
687 S.W.2d 791, 796 (Tex. App.-San Antonio, no writ), found that members of a governmental
body need not be in each other's physical presence to constitute a quorum), Willmann, 123 S.W.3d
at 476-77 (same). See also TEX. GOy'T CODE ANN. §§ 551.125, .127 (West 2004) (providing that
a governmental body is not prohibited from holding a "meeting" by telephone and video,
respectively, and that such a meeting must comply with the "notice requirements applicable to other
meetings"). Therefore, based on the plain language of the Act, Texas court opinions, and prior
opinions of this office, we conclude that electronic communications could, depending on the facts
of a particular case, constitute a deliberation and a meeting that must comply with the Act. See Tex.
Att'y Gen. Op. No. JC-0307 (2000) at 5-6 (declining to opine that the word "deliberation" in section
551.001(2) refers only to spoken words because, if it did, members of a governmental body could
avoid the Act's requirements by using e-mail).
Mr. Don Sloan - Page 3 (GA-0896)
We have not determined whether the electronic communications you include in your
request constitute a deliberation for purposes of the Act. Attempting to make that determination
would require the consideration of fact questions, which we cannot do in the opinion process. Tex.
Att'y Gen. Op. No. GA-0751 (2009) at 1. Nor have we determined whether the members who
disseminated the electronic communications violated the Act. Attempting to make that
determination would require an inquiry into their respective states of mind. See TEX. GOV'T CODE
ANN. § 551.143(a) (West 2004) (prohibiting members of a governmental body from "knowingly"
conspiring to circumvent the Act by meeting in numbers less than a quorum for the purpose of secret
deliberations in violation of the Act); id. § 551. 144(a) (prohibiting a member of a governmental body
from "knowingly" calling or participating in a closed meeting that is not permitted under the Act).
Instead, we conclude that the fact that communications are electronic does not render them free from
the Act's requirements.
Mr. Don Sloan - Page 4 (GA-0896)
SUMMARY
Electronic communications could, depending on the facts of
a particular case, constitute a deliberation and a meeting for purposes
of the Texas Open Meetings Act.
Very truly yours, ~ •
BOTT
~
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee