ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August lo,2004
The Honorable Jeff Wentworth Opinion No. GA-0232
Chair, Jurisprudence Committee
Texas State Senate Re: Whether a student fee advisory committee
Post Office Box 12068 established under section 54.503 1 ofthe Education
Austin, Texas 7871 l-2068 Code is subject to the Open Meetings Act, chapter
5510f the Government Code (RQ-0184-GA)
Dear Senator Wentworth:
You ask whether a student fee advisory committee established under section 54.503 1 of the
Education Code is subject to the Open Meetings Act, chapter 551 of the Government Code (the
“Act”).’
Section 54.5031 of the Education Code provides, in relevant part:
(a) A student fee advisory committee is established at each
institution of higher education except the University of Texas at
Austin to advise the governing board and administration of the
institution on the type, amount, and expenditure of compulsory fees
for student services under Section 54.503 of this code.
(b) Each committee is composed of the following nine
members:
(1) five student members who are enrolled for not
less than six semester credit hours at the institution
and who are representative of all students enrolled at
the institution, selected under Subsection (c) of this
section; and
‘See Letter fromHonorable JeffWenhvwth, Chair, Jurisprudence Committee, Texas State Senate, to Honorable
Greg Abbott, Texas Attorney General (Feb. 13, 2004) ( on file with Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Jeff Wentworth - Page 2 (GA-0232)
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(2) four members who are representative of the
entire institution, appointed by the pmident ofthe institution.
(c) If the institution has a student government, the student
government shall appoint three students to serve two-year terms on
the committee and two students to serve one-year terms on the
committee. If the institution does not have a student government, the
students enrolled at the institution shall elect three students to serve
two-year terms on the committee and two students to serve one-year
terms on the committee. A candidate for a position on the committee
must designate whether the position is for a one-year or two-year
term.
(f). The committee shall:
(1) study the type, amount, and expenditure of a
compulsory fee under Section 54.503 of this code;
and
(2) meet with appropriate administrators of the
institution, submit a written report on the study under
Subdivision (1) ofthis subsection, and recommend the
type, amount, and expenditure of a compulsory fee to
be charged for the next academic year.
(g) Before recommending the student fee budget to the
governing board of the institution, the president of the institution
shall consider the report and recommendations of the committee. If
the president’s recommendations to the governing board are
substantially different from the committee’s recommendations to the
president, the administration of the institution shall notify the
committee not later than the last date on which the committee may
request an appearance at the board meeting. On request of a member
of the committee, the administration of the institution shall provide
the member with a written report of the president’s recommendations
to the board.
TEX. EDUC. CODEANN. 5 54.503 1 (Vernon 1996). Your question is whether a committee established
by this provision falls within the ambit of the Act.
The Act provides that “[elvery regular, special, or called meeting of a governmental body
shall be open to the public, except as provided by this chapter.” TEX. GOV’T CODEANN. 5 55 1.002
The Honorable Jeff Wentworth - Page 3 (GA-0232)
(Vernon 1994). The Act defines “governmental body” as, inter ah, “a board, commission,
department, committee, or agency within the executive or legislative branch of state government that
is directed by one or more elected or appointed members.” Id. 5 551.001(3)(A) (Vernon Supp.
2004). The term “meeting” is defined as, inter alia, “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.” Id. 5
551.001(4)(A).
In Attorney General Opinion H-772 (1976), this office considered whether the Texas Tech
University Athletic Council was subject to the Act. Relying on the definitions of a state-level
“governmental body” and “meeting” found in the Act, the attorney general declared that “before the
Act is applicable to a meeting of a statewide public body, five prerequisites must be met.” The
opinion described those prerequisites as follows:
(1) The body must be an entity within the executive or legislative
department of the state;
(2) The entity must be under the control of one or more elected or
appointed members;
(3) The meeting must involve formal action or deliberation between
a quorum of members[;]
(4) The discussion or action must involve public business or public
policy; and
(5) The entity must have supervision or control over that public
business or policy.
Tex. Att’y Gen. Op. No. H-772 (1976) at 2. In 1988, a Texas court adopting the test set forth in
Opinion H-772 declared that the Act is applicable whenever these five factors are present. See Gurf
Reg’l Educ. Television Affiliates Y. Univ. of Houston, 746 S.W.2d 803, 809 (Tex. App.-Houston
[14th Dist.] 1988, writ denied). Opinion H-772 found that the Texas Tech University Athletic
Council satisfied the first four of these criteria. See Tex. Att’y Gen. Op. No. H-772 (1976) at 2,4.
The only remaining question to be determined was ‘whether the Athletic Council [had supervisory]
control over public business or policy.” Id. at 4.
Opinion H-772 ultimately concluded that “both the structure ofthe Council and the resolution
granting it power indicate that the Texas Tech Athletic Council is an advisory body and has no
power, actual or implied, to control public business.” Id. at 6. The opinion relied primarily upon
a resolution ofthe board ofregents that the board would “‘continue to exercise its exclusive and final
authority to supervise and control all matters concerning the public business and internal affairs of
the Department of Athletics and all other intercollegiate athletic programs of the University,“’ id.
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at 4 (citation omitted), and that although “‘the Athletic Council may review, offer suggestions and
make recommendations on any pertinent matters related to the University’s intercollegiate athletic
program, . such recommendations and suggestions shall be made to and channeled through the
Office of the President of the University, and it is further specifically provided that the Athletic
Council shall not have final authority to direct, control or supervise the operation or activities ofthe
Department of Athletics or intercollegiate athletic programs of the University.“’ Id. at 5 (citation
omitted). Thus, the Athletic Council was not required to comply with the provisions of the Act
because its role was purely advisory, and as a result, it did not satisfy the Act’s requirement that it
exercise “supervision or control over public business or policy.” Id. at 2, 6; see also City of
Austin v. Evans, 794 S.W.2d 78,83-4 (Tex. App.-Austin 1990, no writ) (city grievance committee
not subject to the Act because it could only make recommendations); Tex. Att’y Gen. Op. No. H-994
(1977) at 2-3 (committee to study the selection process of chief administrative officers of component
institutions of the University of Texas System is not required to comply with the Act, so long as it
has no supervision or control over public business or policy);’ Tex. Att’y Gen. LO-93-064, at 2
(student fee advisory committee, apparently not created under section 54.503 1, Education Code, is
not subject to the Act because it does not have supervision or control over the public business it
conducts). But see Tex. Att’y Gen. Op. No. H-438 (1974) at 4 (Athletic Council of the University
of Texas at Austin is governmental body that supervises public business and therefore must comply
with the Act).
In the situation you pose, the duties and authority of a student fee advisory committee are
specified not by resolution of the governing board of an institution of higher education, but by
statute. A committee’s duties are fourfold: (1) “study the type, amount, and expenditure of a
compulsory fee under section 54.503” of the Education Code; (2) meet with administrators of the
institution; (3) submit a written report on the aforementioned study; and (4) “recommend the type,
amount, and expenditure of a compulsory fee to be charged for the next academic year.” See TEX.
EDUC. CODE ANN. 5 54.5031(f) (Vernon 1996) (emphasis added). The committee’s report,
moreover, must be first submitted to “appropriate administrators” rather than to the governing board.
See id. The “president of the institution” initially considers the report before he or she submits
recommendations to the governing board regarding compulsory student fees. Id. 5 54.503 1(g). “If
the president’s recommendations to the governing board are substantially different from the
committee’s recommendations to the president,” the president is required to ‘notify the committee”
so that the committee “may request an appearance at the board meeting.” Id.
As in Attorney General Opinion H-772, both the structure of the student fee advisory
committee and the statute granting it power indicate that the committee is merely an advisory body
that has no power, actual or implied, to supervise or control public business. The committee makes
its recommendations to the president of the institution rather than to the university’s governing
board. The committee’s statutory role is that of an adviser to the president, who is not a
governmental body under the Act. See id. Thus, under this statutory structure, there still exists a
‘One recent judicial decision has approved the distinction drawn in Attorney General Opinion H-994 between
an entity that has supervision or contml over public business and one that acts only in an advisory capacity. See
Willmann v. City of San Antonio, 123 S.W.3d 469.474-75 (Tex. App.-San Antonio 2003, pet. denied).
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layer of separation between the recommendations of the advisory committee and the actions of the
governing board.
Furthermore, the committee’s recommendations need not be followed by the president in
making his or her own recommendations to the governing board. Rather, the committee’s role is
limited, in the case of substantial disagreement with the president, to requesting an appearance before
the governing board. Nothing in section 54.5031 states or implies that the committee’s
recommendations are routinely or necessarily rubber-stamped by the governing board. Indeed, the
governing board clearlymayrefuse the committee’s request to appear before the board, and thus, the
governing board may not even learn of the committee’s recommendations. In sum, the language of
the statute overwhelmingly demonstrates the advisory nature of the committee.
We conclude that a student fee advisory committee established under section 54.503 1 of the
Education Code does not hold “meetings” under the terms of the Open Meetings Act and is,
accordingly, not subject to the Act.
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SU’MMARY
A student fee advisory committee established under section
54.5031 of the Education Code does not hold “meetings” under the
terms of the Open Meetings Act and is, accordingly, not subject to the
Act.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee
Untitled Texas Attorney General Opinion
Combined Opinion