--. =-_ :_.,
The Attorney Germ-al of Texas
Novahor 13, 1981
MARK WHITE
ht0+y c30m81
l4r. Julio Garcia opinion no. nu-390
supmlu cowl Eulldlng
P. 0. Box 1284s District Attoraey
Atiln. TX. m-f11 DimIt. Zapat* L Webb Countica Rc: Whether acting called
s12i4m-2m1 P. 0. Box 1343 by district judge and
Telex 91011)7+1m7 Laredo, Texan. 78040 attended by county judge and
T.l.copl~ SlW-
NO county cd~aionera la
subject to the Open Meetinga
idol till8 Sl, sune 1400 Act-
oenm.Tx. 78201
214w42as44 Dear l4r. Garcia:
4824AlBolt Ave.. suite 180 You ask whether a particular conference vaa held in violation of
El Pa&J.TX. 7waS the Open Meetings Act, article, 6252-17. V.T.C.S. The essential facts
01- are as follol?a:
On July 16. 1981, the dfstrict judge of the 49th Judicial
1220Dan44 Ave, SUN42m
Noua:on.Tx. 77002 District convanad a conference in his office. You state that the
71- purpose of thla conference was to “present poaalble alternatives And
suggaatlona to combat the economic crisis facing Webb County.” hw
those in attendance were the county judge and tvo county comlaaion.era
ass ema~ay. sun4 512
of Webb County.
Lubbok. TX. 7mol
#M416231)
Section 3A of article 6252-17 requires public notlce of l.apendlng
meetings of governmental bodies. Your latter is accqanied by copies
Uoo N. T.n(h. bllo a of public notices of certain maetinge; there is. hovever. no
hlcAllm. TX. 78801
51-7
Indication that public notice of the July 16 gathering vaa ever
provided.
200 MaIn Plaza. eulle 400 The following provisions of the Open Meetings Act are relevant to
San Anlonl~, TX. 7(uos your question:
s12t22b41e1
Section 1. As used in thia Act:
All Eqpwloppomnnyl
Afflfln4liv4 ActIon EmploYu (a) ‘Uecting mana any dalibaration between
a guonm of -bara of a govarnwntal body at
which any public bualnaaa or public policy over
vhich the governmental body hea auperviaion or
control is discussed or considered. z at which
any formal action la taken....
Mr. Julio Garcia - Page 2 olw-390)
(b) ‘Deliberation’ means A verbal exchange
between A quorum of members of A governmental body
attempting to arrive at A decision on any public
business.
(4 ‘Governmental body’ mema. .. wary
Comiaaionera Court... .
(d) ‘Quorum’ unless othervise defined by
constitution. ch8rter. rule or law applicable to
such governing body, means A majority of the
governing body.
Sec. 2. (A) Except as otherwise provided in this
Act or specifically permitted in the Constitution.
every regular, special, or called meeting or
session of every governmental body shall be open
to the public; and no closed or executive meeting
or session... shall be held unless...,
Sec. 3A. (a) Written notice of the date, hour,
place, and subject of each meeting held by a
governmental body shall be given before the
meeting as prescribed by this section. and any
action taken by a governmental body at a meeting
on a subject which vaa not stated on the agenda in
the notice posted for such meeting is voidable....
Sec. 4. (a) Any member of A governing body who
wilfully calls or aids in calling or organizing a
special or called meeting or session which is
closed to the public, or who vilfully closes or
aids in closing a regular meeting OT session to
the public, or who vllfully participates la a
regular, special, or called meeting or session
which is closed to the public where a closed
meeting is not permitted by the provisions of this
Act.
- shall be guilty of a misdemeanor....
(b) Any member or group of members of s governing
body who conspire to circumvent the provisions of
this Act by meeting in nutiers leas than a quorum
for the purpose of secret deliberations in
contravention of this Act shall be guilty of A
misdemeanor.... (Emphasis added).
You suggest that this conference was not held in violation of the
Open Meetings Act because the members of the co~issloners court did
not psrticipste in calling it. see section 4(a), (b), or engage in
“dellberotlons” es that term is defined in section l(b).
I
hr. Julio GAKCIA - Page 3 (MW-390)
We must first determine whether this gathering constituted a
“maeting” As defined in section I(A). As noted. a quorum. &.
majority, of the members of A governing body must be present for there
to be A “meeting” vithin the meaning of this section.
Article V. section 18 of the Texas Conaticution provides in
pertinent part that:
Tbe County hlssionera so chosen, with the
County Judge as presiding officer, shall compose
the Cwnty Commissioners Court....
Article 2342, V.T.C.S.. provides that:
The several commissioners, together with the
county judge, Shall compoaa the ‘Co~iaaiorara
Court.‘...,
Article 2343. V.T.C.S.. states that:
(A) Any three members of the court, including,the
county judge, constitute A quorum for the
tr8na8ction of any business except that of....
These provisions eateblish thAt the county judge la prrrt of the
commissioners court. and that the presence of three or more mambers of
said court, including the county judge, constitutes A “quorum” of the
court. Inasmuch se the county judge and two comiasioners were
present at the July 16 conference, A “quorum” of the cowAisa1oner.s
court WAS clearly in attendance At that conference.
With renard to the uortion of section l(a) vhich estsblishes the
prerequisites of A “meeting,” Commiasionere.’ ‘Court of Rays County v.
District Judge, 22nd Judicial District of DAya County. 506 S.W.Zd 630
(Tex. Civ. ADD. - Austin 1974. writ ref’d n.r.e.1. is cited to us for
the propositibn that the Open Meetings Act is not ViOlAfed where the
commissioners court meets but does not tske any conclusive Action. It
is true that this ceae stands for this proposition. When the
particular meeting At issue in the COIIssiSSiOnerS’ Court CAse WAS held
on August 4, 1972, however, the definition of “meeting” nom contained
in the Gpen Meetings Act WAS not in ef feet. The present definition,
vhich makes it clear that the Act la Violated If final Action is taken
z if public business or policy ovet which the governmantA body in
question h8s supervision or control is discussed or considered. becAme
operAtive on JanuAry 1. 1974. See Acts 1973. 63rd Leg., ch. 31.At 45.
The Coraissioners’ Court case istherefore. of no help hare.
With respect to your argument that sections 4(a) And (b) were not
ViOlAted because the commissioners Court did not PArtiCipAte in
calling the July 16 conference, we note th.st pertlcipation in calling
an illegal meeting is not necessarily determinative of whether those
SeCtiOnS hew been violeted. SeCtiOn 4(a) also embrAce those who
.
Hr. Julio GARCIA - Page 4 olw-390)
vilfully participate in an illegally-held closed meeting, whether they
join in calling it or not.
To a-rise: (1) A quorum of the COpmiSSiOnarS COUrt WAS
present 8t the July 16 conference, And therefore “A quorum of A
governmantal body” WAS present vithin section l(a) of the act; (2)
whether final action is t8kan is not detarmin8tive of whether cm
article 6252-17 “meeting” has taken place; and (3) one need not
participate in calling an illegal maeting in order to be within
section 4(A) of the Act.
These conclusions are essential to the resolution of your
question. In order to determine whether the July 16 conference WAS
held In violation of the Open Meetings Act, however, ‘Ye would have to
make several findinga of fact , and the resolution of fact questions is
outside the scope of the opinion process. Under section l(a), A
“deliberstlon” is an essential element of a “meeting”. See sec. l(b).
On the facts given WC cannot determine whether any “deliberations”
took place. Section b(8) provides that s viol8tion occurs when A
member %ilfully” participates in an illegally closed meeting.
Whether any of the co~IaaIonera’ Court mambera vilfully participated
in an illegally closed meeting in this instsnce is A fact question.
SUMMARY
The presence of the county judge and two
members of the collnniaaionera court at sn assembly
constitutes A “quorum” of the court for purposes
of article 6252-17. V.T.C.S. Whether final action
is taken la not determinative of whether A
“meeting” has occurred within that atstute. One
need not participate in calling an illegally
closed meeting to be subject to the penalty
provisions of section 4(a) of the statute. The
question of vhether the particular conference 8t
iSSUe here ViolAted the Statute iS A fACt qUeStiOn
vhich la beyond the scope of the opinion process.
MARK WHITE
Attorney CenerAl of TeXAS
JOHN W. FAINTER, JR.
First Assistant Attorney GenecAl
RICHARD E. GRAY III
Executive Assistant Attorney General
Mr. Julio Garcia - Page 5 (mJ-nG)
Prepared by Jon Bible
Assistant Attorney GenerAl
APPROVED:
OPINION COnnITTEE
Susm L. Garrison. ChAirPan
Jon Bible
Rick Gilpin
Jim Woellinger
Bruce Youngblood