THE ATTORNEY GENERAL
OF TEXAS
December 28, 1989
Mr. John R. Hale Opinion No. JM-1127
Commissioner
Credit Union Department Re: Whether attendance of a
914 East Anderson Lane quorum of members of the Texas
Austin, Texas 78752-1699 Credit Union Commission at a
board meeting of the Texas
Share Guaranty Credit Union is
a "meeting" under article 6252-
17, V.T.C.S. (RQ-1763)
Dear Mr. Hale:
The Credit Union Commission is required to promulgate
reasonable rules requiring credit unions to provide share
and deposit insurance protection for their members and
depositors, l'including the authorization and establishment
of a share and deposit guaranty corporation or credit union
under the exclusive regulation of the department. . . .'I
V.T.C.S. art. 2461-11.10(e). Pursuant to this authority,
the commission has established Texas Share Guaranty Credit
Union (TSGCU) to provide share and deposit insurance protec-
tion for Texas-chartered credit unions. Rules governing
its operation are codified at 7 Texas Administrative Code
sections 95.1 through 95.507.
The TSGCU is managed by a board of directors, although
certain of its powers may be exercised only subject to the
approval of the credit union commissioner. 7 T.A.C.
55 95.5, 95.201, 95.310. Each member of the Credit Union
Commission, as well as the commissioner, his representative,
or the deputy commissioner, is permitted to attend any
meeting of the board of directors of the TSGCU. Id.
5 95.204. You are concerned about the effect of the Open
Meetings Act when members of the Credit Union Commission
attend meetings of the board of directors of TSGCU, a
separate body. YOU inquire whether the Credit Union
Commission would hold a meeting subject to the Open Meetings
P. 5931
Mr. John R. Hale - Page 2 (JM-1127)
Act if a quorum of commissioners were to attend a TSGCU
board meeting-l
YOU first ask:
Would attendance of a quorum of commissioners
at TSGCU's board meeting constitute a
'meeting' under the Texas Open Meetings Act?
The definition of "meeting" in the Open Meetings Act
states in part:
'Meeting' means any deliberation between a
quorum of members of a governmental body, or
between a quorum of members of a governmental
body and any other person, at which any
public business or public policy over which
the governmental body has supervision or
control is discussed or considered . . . .
(Emphasis added.)
V.T.C.S. art. 6252-17, 5 l(a).
"Deliberation," a key term in the definition of
**meeting,18is defined as follows:
'Deliberation' means a verbal exchange
during a meeting between a quorum of members
of a governmental body, or between a quorum
of members of a governmental body and any
other person, concerning any issue within the
jurisdiction of the governmental body or any
public business.
Id. § l(b).
1. Meetings of the TSGCU board of directors are
apparently held in accordance with the law applicable to
credit unions, and not the Open Meetings Act. -7 T.A.C.
5s 95.203, 95.204. Any questions about the establishment
and operation of TSGCU are beyond the scope of this opinion.
P. 5932
Mr. John R. Hale - Page 3 (JM-1127)
If a quorum of members of the Credit Union Commission
engages in deliberations as defined above, it will be
holding a meeting within the Open Meetings Act. Mere
physical presence of a quorum of Credit Union Commissioners
in the same room without such deliberations does not
establish a meeting within the Open Meetings Act. See
aenerallv Attorney General Opinion H-785 (1976).
Although you inquire only about the attendance at TSGCU
meetings by a quorum of board members, we believe you should
also be aware of section 4(b) of the Open Meetings Act,
which provides in part:
Any member or group of members of a
governing body who knowingly conspires to
circumvent the provisions of this Act by
meeting in numbers less than a auorum for the
purpose of secret deliberations in contra-
vention of this Act shall be guilty of a
misdemeanor . . . . (Emphasis added.)
V.T.C.S. art. 6252-17, 5 4(b).
You next ask:
If the commission has a vacancy, could
attendance of a majority of the commission
members constitute a quorum? For example if
there are at some time only 7 commission
members. would attendance of 4 at a- TSGCU
meeting be a 'meeting'?
As an initial matter, we direct your attention to
article XVI, section 17, of the Texas Constitution, which
provides as follows:
All officers within this State _ shall .
continue to perform the duties OS tneir
offices until their successors shall be duly
qualified.
When deciding whether a vacancy exists, it is necessary
to consider the effect of this provision. For example, when
an officer resigns and his resignation is accepted, the
law operates to continue him in office until his successor
qualifies. Jones v. City of Jefferson, 1 S.W. 903 (Tex.
1886); Plains Common Consol. School Dist. No. 1 v. Havhurst,
122 S.W.Zd 322 (Tex. Civ. App. - Amarillo 1938, no writ).
Thus, an individual serving on the board in a holdover
P. 5933
Mr. John R. Hale - Page 4 (JM-1127)
capacity under article ,XVI, section 17, of the Texas
Constitution will still~have the powers and duties of a
board member, and his presence will count toward making up a
quorum of the board.
The Credit Union Commission consists of nine members.
V.T.C.S. art. 2461-11.01(a). A majority of the membership
of the commission constitutes a quorum for the purpose of
transacting any business. Id. art. 2461-11.06(b). The
quorum of a board remains a majority of the positions
authorized for the board, even though there are vacancies.
Thomas v. Abernathv County Line Index. School Dist., 290
S.W. 152 (Tex. 1927); Walker v. Walter, 241 S.W. 524, 528
(Tex. Civ. App. - Fort Worth, no writ); Attorney General
Opinion O-761 (1939): Letter Opinion LO-88-45 (1988): see
Ramirez v. Zanata Countv Inden. School Dist., 273 S.W.2d 903
(Tex. Civ. App. - San Antonio 1954, no writ). Thus, five
members of the commission constitute a quorum whether or not
some positions on the commission are vacant.
Your third question is as follows:
Would a 'meeting' be avoided if no 'delibera-
tion' occurred?
If commission members sit silently,
doe:'that avoid 'deliberation'?
b. MaY the commission members ask
questions without that constituting 'deliber-
ation'? If so, could a member ask a follow-
up question, or would that constitute a
'deliberation'?
C. May a commission member make a state-
ment at the meeting without constituting
'deliberation'?
"Deliberation" is defined in section l(b) of the act as
a verbal exchange during a meeting between a
quorum of members of a governmental body, or
between a quorum of members of a governmental
body and any other person, concerning any
issue within the jurisdiction of the govern-
mental body or any public business. i
V.T.C.S. art. 6252-17, 5 l(b).
P. 5934
t
Mr. John R. Hale - Page 5 (JM-1127)
"Verbal" is defined as "of or relating to words."
Webster's 3d New International Dictionary 2542 (1961). If
members of the Credit Union Commission in attendance at a
meeting of the TSGCU engage in a verbal exchange "concerning
any issue within the jurisdiction of the governmental body
or any public business" they will be conducting delibera-
tions. See Attorney General Opinions JM-1058 (1989); JM-248
(1984); MW-417 (1981); MW-28 (1979). Comnare Attorney
General Opinion MW-390 (1981) with Attorney General Opinion
JM-640 (1987). If the credit union commissioners sit
silently and engage in no exchanges of words whatsoever,
they will not be holding deliberations.
In the other hypothetical situations you pose, one
member of the Credit Union Commission addresses a question
or statement to the TSGCU board of directors. If other
members of the Credit Union Commission follow with their
questions or statements to the TSGCU board, the possibility
of indirect deliberations between credit union commissioners
arises -- that is, deliberations by means of addressing
remarks intended for one another to the TSGCU board.
Whether sequential questions or statements addressed to
the TSGCU board by different commission members constitute
deliberations is a fact question that cannot be answered as
a matter of law in an attorney general opinion. Nor can we
predict when a statement by one credit union commissioner to
the TSGCU will elicit an answering statement by another
commissioner, so that the commissioners find themselves
involved in deliberations without having consciously formed
the intent to deliberate.
In considering your hypothetical cases we are mindful
of this possibility for indirect deliberations. If a
commission member asks a question or makes a statement to
the TSGCU board of directors, that alone will not constitute
deliberation between or among members of the Credit Union
Commission. Nor will there be deliberations because the
same commission member asks a follow-up question. If,
however, other members of the Credit Union Commission then
address their statements or questions to the TSGCU board, a
possibility arises that deliberations have taken place.
SUMMARY
If a quorum of members of the Credit Union
Commission attends a meeting of the board of
directors of the Texas Share Guaranty Credit
Union (TSGCU) but does not engage in deli-
berations as defined by the Open Meetings
Pm 5935
Mr. John R. Hale - Page 6 (JM-1127)
Act, it will not be.holding a meeting subject
to the Open Meetings Act.
A majority of the membership of the Credit
Union Commission constitutes a quorum for the
purpose of transacting any business. In the
event of a vacancy on the commission, the
quorum still consists of a majority of the
positions authorized for the board.
If members of the Credit Union Commission
present at a meeting of the TSGCU engage
directly or indirectly in a verbal exchange
t'concerning any issue within the jurisdiction
of the governmental body or any public
business" they will be conducting delibera-
tions as defined by the Open Meetings Act.
Indirect deliberations would occur when
credit union commissioners speak to the TSGCU
board in turn, addressing to it remarks
intended for the other commissioners.
Whether the commissioners have engaged in
deliberations in a given case is a fact
question.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRKARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5936