Untitled Texas Attorney General Opinion ( 1974 )

TREA'ITORNEYGENERAL
OF TEXAS
Aum-rxw'lksam 787ll
August 20. 1974
The Honorable Franklin L. Smith Opinion No. H- 373
Nuecee County Attorney
Nueces County Courthouse Re: Notice requirement of
Corpus Christi, Texas 78401 the Open Meetings Law
(Art. 6252-17, V. T. C. S. )
Dear Mr. Smith:
Section 3A, Article 6252-17, Vernon’s Texas Civil Statutee, as amended
in 1973 (Acts 1973, 63rd Leg., ch. 31, p.47). the Cpen Meetings Law, re-
quires that written notice of each meeting held by a governmental body be
posted at least 72 hours preceding the day of the meeting, except under
certain emergency conditions.
You have asked our interpretation of this provision and, in your brief,
suggest that the notice provisions were enacted to prescribe a method
of effectively giving the public actual notice of meetings. You concluded
that the requirement of 72 hours notice required that those hours should
elapse during working days and not on a Saturday, a Sun&y or a legal
holiday.
Section 1 of the amended law defines it terms. Section 2 defines its
scope. Section 3 authorizes enforcement by mandamus or injunction.
Section 3A. with which your question is concerned, reads:
Sec. 3A. (a) Written notice of the date, hour,
place, and subject of each meeting held by a govern-
mental body shall be given before the meeting as
prescribe.d by this section.
(b) A State governmental body shall furnish
notice to the Secretary of State, who shall then
post the notice on a bulletin board to be located
in the main office of the Secretary of State at a
place convenient to the public.
p. 1754
The Honorable Franklin L. Smith, page 2 (H-373)
(c) A city governmental body shall have a notice
posted on a bulletin board to be located at a place
convenient to the public in the city hall.
(d) A county governmental body shall have a
notice posted on a bulletin board located at a place
convenient to the public in the county courthouse.
(e) A school district shall have a notice posted
on a bulletin board located at a place convenient to
the public in its central administrative office and,
in addition, shall either furnish a notice to the county
clerk in the county in which most, if not all, of the
school district’s pupils reside or shall give notice
by telephone or telegraph to any news media requesting
such notice and consenting to pay any and all expenses
incurred by the school district in providing special
notice.
(f) A governmental body of a water district or
other district or political subdivision covering all or
part of four or more counties shall have a notice posted
at a place convenient to the public in its administrative
office, and shall also furnish the notice to the Secretary
of State, who shall then post the notice on a bulletin
board located in the main office of the Secretary of
State at a place convenient to the public; and it shall
also furnish the notice to the county clerk of the county
in which the administrative office of the district of poli-
tical subdivision is located, who shall then post the notice
on a bulletin board located at a place convenient to the
public in the county courthouse.
(g) The governing body of a water district, other
district, or other political subdivision, except a dist-
rict or political subdivision described in Subsection
(f) of this section, shall have a notice posted at a
place convenient to the public in its administrative
office, and shall also furnish the notice to the county
clerk or clerks of the county or counties in which
the district or political subdivision is located. The
county clerk shall then post the notice on a bulletin
board located at a place convenient to the public in the
county courthouse.
p. 1755
The Honorable Franklin L. Smith, page 3 (H-373)
(h) Notice of a meeting must be posted for at
leaat 72 hours preceding the day of the meeting, except
that in case of emergency or urgent public necessity,
which shall be expressed in the’ notice, it shall be
sufficient if notice is posted two hours before the meeting
is convened. In the.event of an emergency meeting, the
presiding’officer or the member calling such meeting
shall, if request therefore ‘containing all pertinent
information has previously been filed at the headquarters
of the governmental body, give notice by telephone or
telegraph to any news media requesting such notice and
consenting to pay any and all expenses incurred by the
governmental body in providing such special notice.
Then notice provisions for legislative committee meetings
shall be as provided by the rules of the house and senate.
In construing this language, of course, it is our obligation to attempt to
determine the legislative intent. Article 10, V, T. C.S. We cannot ascribe
to the Legislature an intention to write a meaningless statute. Therefore,
like you, we conclude it was the intention of the Legislature that the public
be given at least 72 hours effective notice prior to the holding of a meeting
covered by the law. Certainly this cannot be achieved by posting notice
inside a building which is locked over a week-end or holiday.
Were we at liberty to freely interpret the notice requirement we would
be inclined to put the greatest emphasis on its requirement that the posting
be at a place convenient to the public, and that it be accessible to the
public for the full 72 hours even though some of them might fall on a
Saturday, Sunday or Holiday.
However, the Amarillo Court of Civil Appeals has held that public, acces-
sibility or convenience is not determinative. In Lipscomb Independent School
District v. County School Trustees, 498 S.W.2d 364 (Tex. Civ.App., Amarillo
1973, writ ref’d., n. r. e. ), the Court citing Toyah Independent School District
v. Pecos-Barstow Independent School District, 466 S.W.2d 377 (Tex. Civ.
APP.. San Antonio 1971. no writ) to the effect that the terms of Article 6252-17
are mandatory and that at least substantial compliance with its provisions
is required, held that, even though the notice was locked inside the court-
house from Friday afternoon until Monday morning and was unavailable to
the public:
P. 1756
The Honorable Franklin L. Smith, page 4 (H-373)
. . . The statute requires the notice to be posted at a
convenient place in the courthouse (court’s emphasis)
at least three days prior to the meeting, but makes no
requirement that such notice be accessible to the public
at all times during that three day period, nor does the
statute exclude Saturdays and Sundays from such three
day time period requirement. There is no evidence
that the trustees had any intent to keep such meeting
closed to the public. There is no evidence that any-
one who desired to attend the meeting failed to attend,
nor is there any evidence that anyone who desired to
attend was denied admittance. Mr. Don Beard, one
of the appellants, admits in a sworn deposition that he
was present at the May 26 meeting. Mr. Carl Hanshu,
a county school trustee, testified by sworn deposition
that not only was Mr. Beard present at the May 26
meeting, but that he had an opportunity to speak and
otherwise participate in the discussion, but failed to
do so. After a careful review of the record, it be-
comes apparent the situation upon which the holding
in the Td case was based is not applicable here
and there is sufficient evidence to support a finding
that the county school trustees substantially complied
with the provisions of Art. 6252-17. Appellant’s first
four points are overruled. (Emphasis added) 498 S.W.2d
at 366.
The application for writ of error filed in the Lipscomb case made no
mention of Article 6252-17 and asserted no error in the interpretation of it
by the Court of Civil Appeals. The notation by the Supreme Court that the
application was “Refused, No Reversible Error”was the Court’s indication
that, while it was not satisfied that the opinion of the Court of Civil Appeals
in all respects had correctly declared the law, the application presented no
error requiring rev-ersal. Rule 483, Texas Rules of Civil Procedure.
The Lipscomb Court stressed the statutory language of Section 3A
requiring that notice be posted i_n the county courthouse and ignored lang-
uage requiring that it be at a place convenient to the public. We believe it
p. 1757
. .
. .
The Honorable Franklin L. Smitbb page 5 (H-373)
erred and would predict tliat, when the Supreme Court paeses squarely
on the question, it will hold that the public is entitled to effective notice
for the full statutory period, either by requiring that notice be posted
at a place accessible to the public or that perioda when it is unacces-
eible not be counted.
However, our function is advisory only and at this time we cannot
ignore the clear holding in Liuscomb that the statute does not unalterably
exclude Saturdays, Sundays, legal holidays, and other days on which the
posted notice is hidden from public view from being counted in determining
compliance with Article 6252-17, V. T. C. S. We are unable to discern
from a reading of Lipscomb how much significance the court attached to
the absence of evidence that anyone desiring to attend the meeting failed
to attend or was denied admittance or that the trustees intentionally
kept the meeting closed. For the present, the rule established by
Lipscomb is one requiring substantial compliance with the notice require-
ment considering all the relemnt facts and circumstances.
Lipscomb was decided under the statute prior to ita amendment in
1973. At that time, it only required notice “for at leapt the three days
preceding the day of meeting. ” In our opinion the 1973 amendments,
requiring notice of 72 hours, do no more than to make certain that the
three days are three full days before the day of the meeting.
SUMMARY
Judicial precedent. which we may not ignore,
has established that the notice requirement of
Article 6252-17. the C$en Meetings Law,’ may be
satisfied by substantial compliance including the
posting of notice in a courthouse closed for a
week-end or holiday, if there is no evidence that
anyone was denied an opportunity to attend. The
better practice, in our opinion, and the practice
that probably will best reflect the legislative intent
if the matter is ever squarely presented to the
Supreme Court is to provide the public effective
p. 1758
The Honorable Franklin L. Smith, page 6 (H-373)
notice for the full statutory period, either by
requiring that notice be posted at a place
accessible to the public or that periods when
it is inaccessible not be counted.
JOHN L. HILL
Attorney General of Texas
APPWVED:
Opinion Committee
p. 1759