THE ATTORNEY GENERAL
OF TEXAS
Mr. Charles D. Penick Opinion No. JM-985
Criminal District Attorney
Bastrop County Re: The meaning of "emergency"
804 Pecan Street in section 3A of the Texas Open
Bastrop, Texas 78602 Meetings Act, article 6252-17,
V.T.C.S., and whether a govern-
mental entity may ratify cer-
tain actions taken during an
emergency meeting. (RQ-1483)
Dear Mr. Penick:
YOU ask several questions about the meetings and
procedures leading up to the 1985 purchase of a tract of
land by the Elgin Independent School District. A taxpayer
group was formed in March of 1988 to examine school district
expenditures. The group now questions the validity of the
1985 purchase because the board approved the purchase during
a closed emergency meeting.
On August 20, 1985, the school board posted notice for
an emergency meeting for "Consideration of Real Estate
Purchase in Executive Session.t' The reason stated for the
emergency was that "the land is now available but [the fact
that] a decision must be made immediately makes it necessary
to hold an emergency meeting." The minutes of the emergency
meeting show that the board met in emergency session,
recessed to executive session, and then reassembled from
executive session. The minutes state, "It was the consensus
of the Board to offer Adrian Ford $450,000 for [a specific]
parcel of land he owns.” The minutes also state that the
board authorized the superintendent to work out the purchase
details, subject to final board approval, and that final
approval was obtained later that day by telephone poll. The
board "approved" these minutes during its regular monthly
meeting on September 5, 1985.
YOU ask 1) whether taking this action during an
emergency meeting complied with the Texas Open Meetings Act,
article 6252-17, V.T.C.S.; 2) whether the subsequent
.h
approval of the emergency meeting minutes validated the
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Mr. Charles D. Penick - Page 2 (JM-985)
emergency _action;
_ 3) _whether
. the taxpayers of the district
nave any legal remedies: and 4) whether the district may
legally pay for the district's defense of the action taken
during the emergency meeting.
The Open Meetings Act requires governmental bodies to
hold all meetings, with certain exceptions, in open session.
Cox Enterorises. Inc. v. Board of Trustees of the Austin
Inden. School Dist., 706 S.W.2d 956, 958 (Tex. 1986).
Executive or closed sessions may be held only when expressly
authorized and when certain procedural requirements are
satisfied. Your concern is not that the meeting at issue
was improperly closed, but that the notice for the meeting
was defective.
Adequate notice must precede executive sessions. Id.
at 958; Art. 6252-17, 0 2(a). Notice of meetings must be
posted for at least 72 hours preceding the scheduled time of
a meeting. Art. 6252-17, 5 Xi(h). The Open Meetings Act,
however, authorizes two-hour notice for emergency meetings.
In 1985, section 3A(h) of the Open Meetings Act
provided, in part:
-.
In case of emergency or urgent public
necessity, which shall be expressed in the
notice, it shall be sufficient if the notice
is posted two hours before the meeting is
convened. . . .[I]t shall be sufficient if
the notice or supplemental notice is posted
two hours before the meeting is convened, and
the presiding officer or the member calling
such emergency meeting or posting
supplemental notice to the agenda for any
other meeting shall, if request therefor
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.
This section was amended in 1987 to define emergency and to
require that the notice state the reason for the emergency
meeting. See Acts 1987, 70th Leg., ch. 549, 5 5, at 2213.
Because the meeting at issue here occurred in 1985, this
amendment is not at issue. It does not apply
retrospectively.
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c
Mr. Charles D. Penick - Page 3 (JM-985)
River Road Neiahborhood Assoc. v. South Texas
Zp$ 720 S.W.2d 551 (Tex. APP. - San Antonio 1986, writ
the court construed the emergency notice provision
as it ehisted at the time of the meeting at issue here. The
court held that notice of an emergency meeting need not
describe the nature of the emergency necessitating the
emergency meeting. The court provided a general definition
of "emergency":
[T]he term generally refers to an unforeseen
combination of circumstances that calls for
immediate action: a sudden or unexpected
occasion or action. The mere necessity for
quick action does not constitute an emergency
where the situation calling for such action
is one which reasonably should have been
anticipated. The Texas Supreme Court has
said that an emergency is a condition arising
suddenly and unexpectedly, not caused by any
neglect or omission of the person in
question, which calls for immediate action.
(Citations omitted.)
720 S.W.2d 551, 557. The court held that because the school
board knew action would be necessary on a specific date
several weeks before the date, an emergency meeting was not
warranted.
In the case you present, it is not clear whether an
l'emergency,lVwithin the meaning of section 3A(h), existed.
The existence of an emergency necessarily depends on the
facts in any given case. -See-Common Cause v. ‘Metronolitan
Transit Authority, 666 S.W.2d, 610, 613 (Tex. App. - Houston
[lst Dist.] 1984, writ ref'd n.r.e.). The attorney
general's authority to issue legal opinions is directed to
questions of law. See Attorney General Opinion JM-827
(1987). The attorney general cannot finally resolve
disputed questions of fact such as whether a particular
meeting complied with the Open Meetings tact. See Attorney
General Opinion MW-390 (1981); see also Attorney General
Opinion NW-28 (1979). Based on the facts you have provided,
it does not appear that an emergency existed. Only the
courts, however, can overturn governmental actions taken in
violation of the Open Meetings Act.
You note that the school board also approved the
minutes of the action taken during the emergency meeting.
Because you ask about the legal effect of subsequent action
.- taken by the board, we assume you ask whether the subsequent
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Mr. Charles D. Penick - Page 4 (JM-985)
action could ratify the action taken at the emergency
meeting.
In bower Colorado River Authoritv " of Still
Marcos, 523 S.W.2d 641, 646 (Tex. 1975), t:i T%s Supreme
Court held that the LCRA Board's notice to consider matters
"including the ratification of the prior
action. . . taken. . . in response. . . to chanqes in
electric power ratesV substantially complied with the act's
notice provisions. The court invalidated tha Fl~ive
II
Authority's attempt to raise rates at the subsequent mAotin
because the no,tice of the previous meeting, at whiz" acC.ion
was taken, was not in compliance with the act. effect,
the court required notice that rates might be increased, not
simply notice that a prior action regarding rates would be
ratified.
The case you present involves the timeliness of notice.
Although that supreme court decision applied to the
substance of the notice rather than to the timeliness of the
notice, the same general principles apply to both. Applyinq
thi.s decision to the case at hand indicates that t.ne
subsequent "approval" of the minutes of the ener'.Iency
meeting could not affect the validity of action taken. In
the first place, the approval of minutes i.s not necensarily
the equivalent of ratifying an action. Even if the approval
of the minutes were the equivalent of ratification, if Khe
notice for the emergency meeting was defective, the
suhserB1en.tmeeting codd not correct ths error simply by
ratifying the minutes of prior action. See Common Cause VI.
Metrouolitan Transit Authoritv, m at 613. The notice
for the subsequent meeting would have to specify the action
to be ratified.
You ask what remedies are available to the school
district's 'taxpayers. A governmental body's determination
of the existence of an "emergency" is subject to judicial
review. tie Garcia v. City of Kinqsville, 641 S.W.2d 339
(Tex. App. - Corpus Christi 1982, no writ) ; Cameron Colinty
Good Government
--.---- Leaque v. RZTl?Ofl , 61.9 S.W.2d 224 (Tex. Civ.
APP. - Beaumont 1937, writ ref'd n.r.c.). Actions taken in
violation of the Open Meetings Act are not automatically
void, they are subject to reversal in court actions. -3
Colorado River Authority v. Citv of San Marcos, sunra, at
646; see Tovah Inden. School Dist. v. Pecos - Barstow Inde&
Di.st I 466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971, no
A.
writ). To overturn the actions of the district, the
taxpayers would have to file a civil lawsuit against the
district.
-.
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Mr. Charles D. Penick - Page 5 (JM-985)
P
Finally, you ask whether the district may legally pay
for the district's defense of the action taken during the
emergency meeting. An independent school district has the
authority to hire attorneys to protect its interests in a
lawsuit. Tex. Educ. Code 5 23.26; Attorney General Opinion
JM-685 (1987). This authority, however, is limited to
defending legitimate interests of the district, interests
that also serve the public interest. Attorney General
Opinions JM-824, JM-685 (1987) (and cases cited therein).
The lawfulness of expending public funds in a lawsuit
against a school district or against the members of a school
board involves questions of fact. Attorney General Opinion
JM-824. As indicated, the attorney general's opinion
process is not designed to resolve disputed questions of
fact.
SUMMARY
The Texas Open Meetings Act, article
,-. 6252-17, V.T.C.S., authorizes holding
meetings with only two hours' notice only for
legitimate emergencies. Action taken in
violation of the Open Meetings Act's
emergency notice provisions cannot be
validated simply by ratifying the minutes of
the emergency meeting.
The existence of an emergency necessarily
depends on the facts in any given case.
Based on the facts you present, an emergency
did not exist. Actions taken in violation of
the Open Meetings Act are not automatically
void: they are subject to reversal in court
actions.
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Mr. Charles D. Penick - Page 6 (JM-985)
Independent school districts have the
authority to hire attorneys to protect the
legitimate interests of the districts. The
lawfulness of defending a particular law suit
depends on the facts.
J-b
Very truly yo r ,
.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee
Prepared by Jennifer S. Riggs
Assistant Attorney General
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