Honorable Michael J. Guarino Opinion No. JM-1185
Criminal District Attorney
Galveston County Re: Whether a community
405 County Courthouse justice council created
Galveston, Texas 77550 pursuant to article 42.13,
Texas Code of Criminal
Procedure, is subject to
the Open Meetings Act,
V.T.C.S. art. 6252-17
(RQ-1879)
Dear Mr. Guarino:
You state that House Bill 2335 of the 71st regular
session of the Legislature has created community justice
councils for counties wishing to establish a community
corrections facility. See Acts 1989, 71st Leg., ch. 785,
art. 1, at 3471. You ask whether a community justice
council is subject to the Texas Open Meetings Act, article
6252-17, V.T.C.S.
Some background about the structure of the criminal
justice system and the state-local relationships established
by House Bill 2335 is necessary to understand what a
community justice council does and whether it is a govern-
mental body subject to the Open Meetings Act. House Bill
2335 made many changes in the structure of the criminal
justice system at the state and local level, some of which
give the counties financial incentives for supervising
felony probationers and taking other measures to reduce the
number of persons sent from the counties to be incarcerated
in state prisons. Acts 1989, 71st Leg., ch. 785, art. 3, at
3482. It created the Texas Department of Criminal Justice
as the state agency with primary responsibility for
confining felons, developing a system of state and local
punishment, supervision, and rehabilitation programs, and
reintegrating felons into society after release from
confinement. V.T.C.S. art. 4413(401). The community
justice assistance division (the division) is establii:;d
within the Department of Criminal Justice. V.T.C.S. .
4413(401), !j 1.11; see Code Crim. Proc. art. 43.13. The
division is responsible for establishing minimum standards
for programs, facilities, and services provided at a local
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Honorable Michael J. Guarino - Page 2 (JM-1185)
level by a community supervision and corrections department,
and for certifying and funding the programs, facilities, and
services provided by such departments. V.T.C.S. art.
4413(401), 5 1.12.
Community supervision and corrections departments are
to be established by the district judge or judges trying
criminal cases in each judicial district in the state. Code
Crim. Proc. art. 42.131. These departments serve the courts
by conducting presentence investigations and risk assess-
ments, supervising and rehabilitating probationers,
enforcing the terms of probation, and operating community
corrections facilities. Id. 52. The judge or judges
appoint a department director, who employs other persons to
do the work of the department. The district judge or judges
may establish a community justice council to serve the
department. The judges must do so before the department,
county, or city may establish a community corrections
facility under article 42.131 of the Code of Criminal
Procedure, and before a county may establish a county
correctional center under subchapter Ii, chapter 352 of
the Local Government Code. Code Crim. Proc. art. 42.131,
5 3(b). The council's primary responsibility is to prepare
a criminal justice plan for submission to the division in
fulfillment of a reporting requirement and as a condition of
the department's receipt of state aid. Code Crim. Proc.
art. 42.13, §S 3, 6. When the division has made funds
available to a department to provide facilities, equipment,
and utilities for community corrections facilities, the
council has a role in recommending expenditures. Finally,
the council %hall provide continuing policy guidance and
direction for the development of criminal justice plans and
community corrections facilities and programs." Id. art.
42.131, r, 3.
The council is composed of various officers from the
county or counties wherein it is established. Each officer
is chosen by the other persons who hold the same kind of
office he does in the county or counties served by the
council. For example, a council includes "a sheriff of a
county to be served by the [community corrections] facility,
chosen by the sheriffs of the counties to be served by the
facility.* Code Crim. Proc. art. 42.131, S 3(b)(l). The
following officers of political subdivisions to be served by
the community corrections facility are also represented on
the council: a county commissioner or a county judge: a
city council member of the most populous municfpality in a
county to be served by the facility; no more than two state
legislators; the presiding judge of a judicial district, the
judge of a statutory county court exercising criminal
jurisdiction; a county attorney with criminal jurisdiction:
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Honorable Michael J. Guarino - Page 3 (JM-1185)
a district attorney or criminal district attorney: and an
elected member of the board of trustees of an independent
school district in a county to be served by the facility.
Both the composition and the function of the community
justice council are relevant to determining whether it is a
governmental body subject to the Open Meetings Act. The act
defines "governmental body" in part as
any board, commission, department, committee,
or agency within the executive or legislative
department of the state, which is under the
direction of one or more elected or appointed
members . . . .
V.T.C.S. art. 6252-17, 5 l(c).
Since the council is established and operates only at a
local level, it is not "within the executive or legislative
department of the state." Se , .I Attorney General
Opinions JM-596 (1986); JM-340 (T98:;. The definition of
*qgovernmental body" applicable to local entities is as
follows:
every Commissioners Court and city council in
the state, and every deliberative body having
rule-making or quasi-judicial power and
classified as a department, agency I or
political subdivision of a county or city;
and the board of trustees of every school
district, and every county board of school
trustees and county board of education: and
the governing board of every special district
heretofore or hereafter created by law.
V.T.C.S. art. 6252-17, 5 l(c).
The criminal justice council is not a governing body of
a city or county. As a body established by the district
judges and composed of elected officers of various jurisdic-
tions, it cannot be considered a aepartment, agency, or
political subdivision of a county or city. See Attorney
General Opinions JM-740 (1987); JM-183 (1984); MW-28 (1979).
Nor is it one of the education entities named in the
statute.
A more detailed analysis of the council's functions is
necessary to determine whether or not it is "the governing
board of . . . [a] special district . . . created by law."
The decision in Sierra Club v. Austin TranSD. Studv Policy
Advisorv Comm., 746 S.W.2d 298 (Tex. App. - Austin 1988,
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Honorable Michael J. Guarino - Page 4 (JM-1185)
writ denied), determined that the Austin Transportation
Study Policy Advisory Committee (ATSPAC), a seventeen-
member committee consisting of state, county, regional, and
municipal public officials, was a special district subject
to the Open Meetings Act. 1 The ATSPAC had been designated a
"Metropolitan Planning Organization" pursuant to a provision
of the Federal-aid highway law directed at enabling the
Secretary of Transportation to cooperate with state and
local officials in developing transportation plans and
programs based on transportation needs. 23 U.S.C. § 134. A
metropolitan planning organization is "the forum for co-
operative transportation decision making." 23 C.F.R.
5 450.104(b)(3).
The opinion in Sierra Club said that the ATSPAC was
charged with developing various transportation plans for the
use of federal agencies in determining funding for the local
projects. 746 S.W.2d at 300. "As a result, ATSPAC plays a
vital role in deciding which highway projects are planned,
built and funded in the Austin area." Id. at 300-01. "Its
decisions affect highway planning in Travis, Hays, Caldwell,
Bastrop, and Williamson counties." ;EeL at 300. The court
thus emphasized the decision-making function of the ATSPAC.
The court also ,pointed out that committees like the
ATSPAC did not exist when the Open Meetings Act was adopted
in 1967, but that when its functions are compared to those
of the governmental bodies defined in the act, **it is clear
that the committee is just the sort of body the Open
Meetings Act was designed to govern." Id. at 301. It
quoted the following dictionary definition of "special
district":
A limited governmental structure created to
bypass normal borrowing limitations, to
insulate certain activities from traditional
political influence, to allocate functions to
entities reflecting particular expertise, to
provide services in otherwise unincorporated
areas, or t0 aCCOmDliSh a orimarilv lOCal
benefit or imorovement, U, parks and
planning, mosquito control, sewage removal.
1. Attorney General Opinion JM-183 (1984) held that a
library council consisting of representatives chosen by
governing bodies of political subdivisions was a "hybrid"
body that did not fit any definition of "governmental body"
in the Open Meetings Act.
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Honorable Michael J. Guarino - Page 5 (JM-1185)
Black's Law Dictionary (5th ed. 1986) (emphasis added).
Relying particularly on the underlined language, the
court found that the ATSPAC was a special district, in that
it was designed to accomplish the primarily local benefit or
improvement of bringing federal highway funds into the
Austin urban area for highway planning and construction.
746 S.W.2d at 301.
In deciding that the ATSPAC was a governmental body
subject to the Open Meetings Act, the court first considered
the powers it exercised and applied a test similar to that
applied by the courts and by prior opinions of this office
to decide whether an entity in the executive branch must
comply with the act. Among other prerequisites for esta-
blishing that a committee, board, or other entity in the
executive branch of government is subject to the Open
Meetings Act, it must deliberate or act on a matter of
public business or policy over which it has supervision or
control. See, e.a Gulf Reaional Educ. Television
Affiliates v. Unive&tv of Houston, 746 S.W.2d 803 (Tex.
APP- - Houston [14th Dist.] 1988, writ denied); Attorney
General Opinions H-772 (1976); H-438 (1974). An advisory
body, with no power to supervise or control public business,
is not subject to the Open Meetings Act. Attorney General
Opinion JM-331 (1985) (citizens advisory panel of Office of
Public Utility Counsel); H-994 (1977) (advisory committee
studying selection process for university president).
A department or agency of a city or county is a govern-
mental body within the act if it has rule-making or guasi-
judicial powers. V.T.C.S. art. 6252-17, 5 l(c). In deter-
mining whether an entity is a governmental body within this
provision, this office also considers whether it has
authority to exercise governmental power, or whether it has
only an advisory role. Attorney General Opinion MW-506
(1982) determined that the board of trustees of a city
firemen's retirement fund was an agency of the city subject
to the Open Meetings Act. The board had power to receive,
manage, and disburse the retirement fund: moreover, it
exercised quasi-judicial powers in hearing and determining
applications for benefits. Attorney General Opinion R-467
(1974) I in contrast, dealt with a city library board that
was authorized to act in an advisory capacity only and held
that insofar as it truly acted only in an advisory capacity,
it was not required to comply with the Open Meetings Act.
.
The responsibilities of the criminal justice council,
and its place in the criminal justice hierarchy, persuade us
that it is properly characterized as an advisory body, and
not a governmental body within the Open Meetings Act. As we
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Honorable Michael J. Guarino - Page 6 (JM-1185)
have already said, its most important function is to prepare
the community justice plan that a community supervision and
corrections department must submit to the community justice
assistance division before the city, county, or the depart-
ment may establish certain correctional facilities. Code
Crim. Proc. arts. 42.13, 5 3; 42.131, 5 3. As of September
1, 1990, a department must submit a plan to the division as
a condition of receiving state aid. & art. 42.131, §S 6,
11.
The division determines the format for community
justice plans. Id. 5 2(a) (3). Section 6 of article 42.13
sets out the information that must be included in a plan.
It must give a detailed description of the services provided
by the department and new facilities or programs proposed
for the department, such as electronic monitoring programs
and community corrections facilities. It also must include
a description of services needed within the area, informa-
tion about contracts necessary to achieve programs and
facilities, and 'lastatement of commitment by the community
justice council and the department to achieve a targeted
level of alternative sanctions." Id. 5 6(b)(5). The plan
may include other information, such as information about
personnel training or program evaluation, as well as "other
details or options that the community justice council wishes
to include."
The plan is thus primarily descriptive of corrections
facilities that are established or may be established by a
community supervision and corrections department, a county,
a municipality, or a combination of these. See Code Crim.
Proc. a*. 42.131, 9 3. It appears that the council's
responsibility is to gather and report information about the
facilities operated by these entities but not to decide how
the facilities are to be operated or which facilities are to
be proposed. Decisions on these matters are made by the
division, the district judges, the department, and the
political subdivisions operating correctional facilities.
Moreover, a community justice council may not submit a plan
to the division as a condition of payment of state aid to a
department unless the plan is first approved by the district
judges who manage the department served by the council. Id.
art. 42.13, § 6.
The council also has the following responsibility over
expenditures:
.
The district judge or judges may authorize
expenditures of funds provided by the divi-
sion to the department for the purposes of
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Honorable Michael J. Guarino - Page 7 (JM-1185)
providing facilities, equipment, and utili-
ties for community corrections facilities if:
(1) the communitv iustice council recom-
mends the exnenditures; and
(2) the division provides funds for the
purpose of assisting in the establishment or
improvement of the facilities.
Code Crim. Proc. art. 42.131, 5 10 (emphasis added).
In this case, the council makes recommendations, but
the judge or judges make the decisions about expenditures.
In Gulf Reaional Educ. Television Affiliates v. University
of Houston, sunra, at 809, the court found that an auxiliary
enterprise of a state university was subject to the Open
Meetings Act because it spent public funds and operated with
little control or supervision by the university board of
regents. In contrast, the community justice council
recommends expenditures, but does not expend public funds on
its own authority. In Attorney General Opinion H-467
(1974) I this office decided that a city library board was
not subject to the Open Meetings Act because it was
empowered to act in an advisory capacity only. The library
board was authorized to recommend the adoption of rules to
administer the library, to make recommendations for library
facilities, and to submit its proposed expenditures for the
approval of the city council.
In our opinion, a criminal justice council acts in an
advisory capacity only, like the library board at issue in
Attorney General Opinion H-467. It does not have the power
to make decisions that the courts found the ATSPAC to have
in Sierra Club and the auxiliary enterprise in Gulf Reaional
Educ. Television Affiliates. It is not "the sort of body
the OpenMeetings Act was designed to govern." Sierra Club,
sunra, at 301. Although it assists the department's efforts
to secure state funding for community corrections
facilities, the council does not V~accomnlish a primarily
local benefit or improvement." Id. (emphasis added).
Thus, it is not a "special district" within the Sierra Club
case. Accordingly, a criminal justice council is not
subject to the Open Meetings Act.
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Honorable Michael J. Guarino - Page 8 (JM-1185)
SUMMARY
A criminal justice council established
by the district judge or judges under section
3 of article 42.131 of the Code of Criminal
Procedure is not subject to the Open Meetings
Act.
JIM MATTOX
Attorney General of Texas
MARYKHLLKR
First Assistant Attorney General
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLSY
Special Assistant Attorney General
RENHA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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