OFPKE OF THE ATTORNEV GENEKAL STATE OF TEXAS
JOHN CORNYN
November 20,200O
The Honorable J. Collier Adams, Jr. Opinion No. JC-0307
Cochran County Attorney
109 West Washington Re: Whether a criminal violation of the Open
Morton, Texas 79346-2536 Meetings Act, chapter 55 1 ofthe Government Code,
occurs when a person urges individual members of
a commissioners court to place an item on the
commissioners court’s agenda or to vote a certain
way on an item on the agenda (RQ-0242-JC)
Dear Mr. Adams:
You ask whether a criminal violation of the Open Meetings Act, chapter 551 of the
Government Code (the “Act”), occurs when a person urges individual members of a commissioners
court to place an item on the commissioners court’s agenda or vote a certain way on an item on the
agenda. Your question is considered hypothetically without reference to any particular incident. We
cannot and do not resolve whether or not any person has actually violated the Open Meetings Act.
Such a determination would require the investigation and resolution of fact questions, which cannot
be done in an attorney general opinion.’
We conclude that a person who acts independently to urge individual members of a
commissioners court to place an item on the commissioner court’s agenda or vote a certain way on
an item on the agenda does not commit an offense, even if he or she informs members of other
members’ views on the matter. Although a person who is not a member of the commissioners court
may be charged with a violation of section 55 1.143 or 55 1.144 of the Open Meetings Act under
sections 7.01 and 7.02 ofthe Penal Code, we believe that a person does not commit an offense under
these provisions unless, acting with intent, he or she aids or assists a member or members who
knowingly act to violate the Act.
You also ask whether a violation ofthe Act occurs when a claim, invoice, or bill is approved
for payment by members of a commissioners court in writing rather than at a meeting held under the
Act. We conclude that a claim, invoice, or bill must be approved by a commissioners court at a
meeting held pursuant to the Act. Circulation of a claim, invoice, or bill among members of a
‘See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process); M- 187 (1968) at 3 f”[T]his office is without authority to make. factual
determinations.“); O-291 1 (1940) at 2 (“[Tlhis presents a fact question which we ale unable to answer.“).
The Honorable J. Collier Adams, Jr. - Page 2 (X-0307)
commissioners court for approval in writing in lieu of its consideration at a meeting held pursuant
to the Open Meetings Act would violate the Act.
Before turning to your questions, we briefly review the major provisions ofthe Act. The Act
requires a governmental body to meet in properly noticed public meetings unless the governmental
body is expressly authorized by law to discuss an item in closed session. See TEX. GOV’T CODE
ANN. @55 1.002 (“Every regular, special, or called meeting of a governmental body shall be open
to the public, except as provided by this chapter.“), ,041 (notice), .071-,086 (exceptions to
requirement that meetings be open) (Vernon 1994 & Supp. 2000). A county commissioners court
is a governmental body subject to the Act. See id. $ 551.001(3)(B) (Vernon Supp. 2000).
The Act defines a meeting as “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. 3 551,001(4)(A). It
also defines a meeting as a gathering:
(i) that is conducted by the governmental body or for which the
governmental body is responsible;
(ii) at which a quorum of members of the governmental body is
present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give
information to, ask questions of, or receive questions from any third
person, including an employee of the governmental body, about the
public business or public policy over which the governmental body
has supervision or control.
Id. 9 551.001(4)(B); see also id. 5 551,001(4)(B)(iv) (“The term does not include the gathering of
a quorum of a governmental body at a social function unrelated to the public business that is
conducted by the body, or the attendance by a quorum of a governmental body at a regional, state,
or national convention or workshop, if formal action is not taken and any discussion of public
business is incidental to the social function, convention, or workshop.“). “Deliberation” means “a
verbal exchange during a meeting between a quorum of a governmental body, or between a quorum
of a governmental body and another person, concerning an issue within the jurisdiction of the
governmental body or any public business.” Id. 5 551.001(2).
Under these definitions, a meeting between a quorum of a governmental body and a staff
member is a meeting subject to the Act. See Tex. Att’y Geu. Op. No. JC-0169 (2000) at 6 (“staff
The Honorable J. Collier Adams, Jr. - Page 3 (K-0307)
briefings may be conducted only in public, unless some specific exception of the Act applies”). A
quorum is defined as “a majority of a governmental body, unless defined differently by applicable
law or rule or the charter of the governmental body.” TEX. GOV’TCODE ANN. 5 55 l.OOl(6) (Vernon
Supp. 2000). The Local Government Code provides that “[tlhree members of the commissioners
court constitute a quorum for conducting county business except the levying of a county tax.” TEX.
Lot. GOV’T CODE ANN. 5 81.006(a) (Vernon 1999).
Your first two questions ask whether a criminal violation of the Gpen Meetings Act occurs
when “a person who is not a member of the Commissioners Court goes outside of a called meeting
to all or a quorum of the County Commissioners to secretly secure their commitment to decide a
matter that is on the Commissioners Court agenda to be heard at an open session set in the future”
or “to urge a specific decision on a matter that the actor wants placed on the Commissioners Court
agenda?“’ In a related question you ask, “Can the criminal penalties of the Open Meetings Act be
applied to a person who is not a member of the County Commissioners Court, but engages in
conduct that results in secret deliberations and decision-making by the Commissioners Court?’
Request Letter, supra note 2, at 2.
As background, you posit the following situation:
An example of such conduct might be when a person who
wants a certain course of action to take place at a future meeting in
the Commissioners Court, goes to and finds, wherever they may be
found, at home or work, all of the County Commissioners one by one,
or goes to at least three Commissioners, or goes to two
Commissioners and the County Judge either to have the item placed
on the agenda and decided in the manner advocated by that person,
or to decide a matter on the agenda in the manner urged by that
person.
Id. You do not ask about the criminal liability of a member of the commissioners court. We gather
you are concerned about a person who speaks to members of a commissioners court individually to
urge them to place an item on the commissioners court’s agenda or vote a certain way on an item
on the agenda and who, in doing so, may inform members of other members’ views on the matter.
We assume that you ask about a person who approaches the members on his or her own initiative
and not upon the request of a member or members of the court.
The Act contains two criminal misdemeanor provisions that are potentially relevant to your
question. Each of these offenses is punishable by a tine of not less than $100 or more than $500,
confinement in the county jail for not less than one month or more than six months, or both fine and
‘Letter from Honorable J. Collier Adams, Jr., Cocbran County Attorney, to Honorable John Comyn, Texas
Attorney General at 1 (June 9, 2000) (on tile with Opinion Committee) [hereinafter Request Letter].
The Honorable J. Collier Adams, Jr. - Page 4 (X-0307)
confinement. See TEX. GOV’T CODE ANN. §§ 551.143(b), .144(b) (Vernon 1994 & Supp. 2000).
Section 55 1,143 provides that:
(a) A member or group of members of a governmental body
commits an offense if the member or group of members knowingly
conspires to circumvent this chapter by meeting in numbers less than
a quorum for the purpose of secret deliberations in violation of this
chapter.
Id. $ 551.143(a) (Vernon 1994). Section 551.144provides that:
(a) A member of a governmental body commits an offense if a
closed meeting is not permitted under this chapter and the member
knowingly:
(1) calls or aids in calling or organizing the closed meeting,
whether it is a special or called closed meeting;
(2) closes or aids in closing the meeting to the public, if it is
a regular meeting; or
(3) participates in the closed meeting, whether it is a regular,
special, or called meeting.
Id. 5 55 1.144(a) (Vernon Supp. 2000); seealso id. 5 551.001(l) (“‘Closedmeeting’means ameeting
to which the public does not have access.“). A member of a governmental body may be “held
criminally responsible [under section 551.1441 for his involvement in the holding of a closed
meeting which is not permitted under the Act regardless ofhis mental state with respect to whether
the closed meeting is permitted under the Act.” Tovar v. State, 978 S.W.2d 584, 587 (Tex. Crim.
App. 1998) (en bane). It is a defense to prosecution under section 551.144 “that the member of the
governmental body acted in reasonable reliance on a court order or a written interpretation of this
chapter contained in an opinion of a court of record, the attorney general, or the attorney for the
governmental body.” TEX. GOV’T CODE ANN. 5 551.144(c) (Vernon Supp. 2000).
Before considering whether a person who is not a member of a governmental body may be
criminally liable under these provisions, we consider whether a member of a governmental body
could commit either ofthese offenses by enlisting apersonwho is not amember ofthe governmental
body to facilitate secret deliberations between members of the governmental body. Because the Act
has been construed to apply to situations in which members of a governmental body act as a body
but are not in each other’s physical presence, we believe this is possible.
In Attorney General Opinion DM-95, this office addressed whether members of a
governmental body could violate the Act by signing a letter on matters relevant to public business
without meeting to take action on the matter in a meeting held pursuant to the Act. After noting that
The Honorable J. Collier Adams, Jr. - Page 5 (X-0307)
the Act’s definitions of the terms “meeting” and “deliberation” speak in terms of a quorum of a
governmental body coming together in one location in each other’s physical presence, the opinion
considered whether members of a governmental body may violate the criminal provisions of the Act
when they do not come together in the same location and the gathering therefore does not technically
meet these definitions. The opinion carefully analyzed the court’s decision in Hitt Y. Mubry, 687
S.W.2d 791 (Tex. App.-San Antonio 1985, no writ), which concluded that members of a school
board had violated the Act by deciding to send out a letter to all parents ofthe school district without
discussion of the matter in an open meeting. After noting that the court had specifically upheld an
order enjoining the school board from polling its members by telephone, this office concluded that
“the physical presence of a quorum in a single place at the same time is not always necessary for a
violation of [the Act] to occur. Avoiding the technical definition of ‘meeting’ or ‘deliberation’ is
not, therefore, a foolproof insulator from the effect of the act.” Tex. Att’y Gen. Op. No. DM-95
(1992) at 5. But see Harris County Emergency Sew. Dist. No. I v. Harris County Emergency Corps,
999 S.W.2d 163, 169 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (finding, absent evidence of
secret deliberations attempting to circumvent the Act, that where less than a quorum of a
governmental body meets together they have not had a “meeting” for purposes of the Act and have
not violated the Act). The opinion also noted that the enactment of the statutory predecessor of
section 551.143, which prohibits members of a governmental body from conspiring to avoid the
Act’s requirements by meeting in numbers of less than a quorum, indicates that the legislature did
not intend that criminal provision to be strictly construed according to the Act’s definitions of
meeting and deliberation. SeeTex. Att’y Gen. Op. No. DM-95 (1992) at 5 (“Indeed, it would appear
that the legislature intended expressly to reach deliberate evasions of these definitions in enacting
section 4(b) of the act.“); see also Tex. Att’y Gen. Op. No. LO-95-055, at 4 (“It is possible for
members of a governmental body to violate the Open Meetings Act even [though] they are not
physically present in one place, for example, by discussing public business ofthe governmental body
over the telephone.“). Thus, we believe it is conceivable that members of a governmental body
could violate the Act by using third persons as intermediaries to hold a closed meeting or to meet
in numbers of less than a quorum.
We note that two judicial opinions issued after DM-95 could be read to suggest that the Act’s
definition of “deliberation” as “a verbal exchange during a meeting between a quorum of a
governmental body, or between a quorum of a governmental body and another person,“T~~. GOV'T
CODE ANN. $ 551.001(2) (Vernon Supp. 2000) (emphasis added), includes only spoken
communications. See Gurdnerv. Herring, 21 S.W.3d 767,771 (Tex. App.-Amarillo 2000, no pet.)
(concluding that under Act prior to 1999 amendments, “a meeting occurred when there was a ‘giving
and receiving of spoken words’ about a matter ofpublic business or within the body’s jurisdiction”);
DullusMorningNews Co. v. Bd. of Trs., 861 S.W.2d 532,537 (Tex. App.-Dallas 1993, writ denied)
(“the words ‘verbal exchange’ mean a reciprocal giving and receiving of spoken words”). In both
these cases, the courts considered whether a deliberation occurred when a quorum of a governmental
body was present and arguably listened but did not respond to a verbal presentation. Neither case
involved written or other forms of exchange, and in neither case did the court distinguish between
spoken and other forms of exchange. We therefore do not read these cases to hold that the Act’s
definition of “deliberation” excludes all forms of nonspoken exchange, such as written materials or
electronic mail. Furthermore, the meaning of word “verbal” is not limited to spoken words. See,
The Honorable .I. Collier Adams, Jr. - Page 6 (JC-0307)
e.g., XIX OXFORDENGLISHDICTIONARY528 (2d ed. 1989) (defining “verbal” first as “[dlealing in
or with words” and fourth as “[elxpressed or conveyed by speech instead of writing”); MERRIAM-
WEBSTER’SCOLLEGIATEDICTIONARY1311 (10th ed. 1993) (defining “verbal” first as “of, relating
to, or consisting of words” and third as “spoken rather than written”); BLACK’S LAW DICTIONARY
1554 (7th ed. 1999), (defining “verbal” first as “[o]f, relating to, or expressed in words” and second
as “[lloosely, of, relating to, or expressed in spoken words”). In addition, were we to conclude that
only spoken communications are included in the definition of “deliberation,” then members of a
governmental body could easily avoid the Act’s requirements by discussing public business via
written notes and electronic mail. We decline to give the term “deliberation” such a limited
construction.
Next, we consider whether a person who is not a member of a governmental body may be
criminally liable under section 551.143 or 551.144. On their face, both provisions expressly apply
only to members of a governmental body. See TEX. GOV’TCODEANN. $5 551.143(a) (“A member
orgroup ofmembers of a governmental body commits an offense. “); .144(a) (“A member of a
governmental body commits an offense “) (Vernon 1994 & Supp. 2000) (emphasis added).
Importantly, however, the Penal Code applies to the Act’s criminal provisions. See Martinez v.
State, 879 S.W.2d 54,56 n.4 (Tex. Crim. App. 1994) (en bane) (concluding that Penal Code applies
to Open Meetings Act offenses); TEX. PEN. CODEANN. 5 1.03(b) (Vernon 1994) (Penal Code applies
to “offenses defined by other laws, unless the statute defining the offense provides otherwise”).
Section 7.01 of the Penal Code provides that “[a] person is criminally responsible as a party to an
offense if the offense is committed by his own conduct” and that “[elach party to an offense may be
charged with commission of the offense.” TEX. PEN. CODE ANN. 5 7.01(a), (b) (Vernon 1994).
Section 7.02 of the Penal Code further provides:
(a) A person is criminally responsible for an offense committed
by the conduct of another if:
(2) acting with intent to promote or assist the commission
ofthe offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense
Id. 5 7.02(a)(2) (emphasis added). Pursuant to the Penal Code, aperson acts “intentionally” or“with
intent” “with respect to the nature of his conduct or to a result ofhis conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.” Id. 5 6.03(a). Section 7.03 provides
that in “a prosecution in which an actor’s criminal responsibility is based on the conduct of another,
the actor may be convicted on proof of commission of the offense and that he was a party to its
commission.” Id. § 7.03. It is no defense “(1) that the actor belongs to a class of persons that by
definition ofthe offense is legally incapable of committing the offense in an individual capacity” or
“(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has
The Honorable .I. Collier Adams, Jr. - Page 7 (JC-0307)
not been prosecuted or convicted, has been convicted of a different offense or of a different type or
class of offense, or is immune from prosecution.” Id.
Significantly, under chapter 7 of the Penal Code, a person who aids a public officer in the
commission of an offense that may only be committed by a public officer may be charged as if he
or she had directly committed the offense even though he or she lacked the legal capacity to commit
the offense. In WooZey v. State, 629 S.W.2d 867 (Tex. App.-Austin 1982, pet. ref d), the defendant
was charged with receiving fruit juice that belonged to a school district from the district’s food
service director. See Wooley, 629 S.W.2d at 869. Although the defendant was not a public official,
he was charged and convicted under section 39.01(a)(5) of the Penal Code, prohibiting a public
servant from taking anything of value belonging to the government that may have come into his
custody by virtue of his employment. See id. The defendant unsuccessfully challenged the
indictment: “[The defendant] did not and could not commit the offense of official misconduct, but
instead he aided the official in the commission of the offense. Nevertheless [the defendant] may be
charged as if he had directly committed the offense.” Id. at 870. The court also rejected the
defendant’s contention that the evidence was insufficient to support his conviction for official
misconduct because the state did not prove that he was a public official, noting that under chapter
7 of the Penal Code “a party may be held criminally responsible as a party to an offense which he
is otherwise legally incapable of committing alone.” Id. at 871; see also Quillin v. State, 187 S.W.
199 (Tex. Crim. App. 1916) (person who was not a public officer could be prosecuted as a principal
for misapplication of public money even though offense applied only to tax collectors).
Because a person who is not a public official may be held criminally responsible as a party
to the offense of official misconduct based on allegation that he aided the official in the commission
of the offense, we believe it follows that the law permits the charging of a person who is not a
member of a governmental body with an offense under the Open Meetings Act. Thus, for example,
a person who is not a member of a governmental body, who “acting with intent to promote or assist
the commission of the offense,” “solicits, encourages, directs, aids, or attempts to aid” a member of
a governmental body to circumvent the Act by meeting in numbers less than a quorum for the
purpose of secret deliberations, could be charged with violating section 55 1.143. See TEX. PEN.
CODE ANN. 5 7,02(a)(2) (Vernon 1994). We stress, however, that under section 551.143, there is no
violation unless a member or members “knowingly conspire” to circumvent the Act’s open meetings
requirement by meeting in numbers of less than a quorum. And under section 55 1.144, a member
must “knowingly” participate in a closed meeting. Therefore, we believe that a person who is not
a member of a governmental body cannot violate these provisions unless he or she, acting with
intent, aids or assists a member or members of the court who knowingly act to violate the Act. See
TEX. GOV’T CODE ANN. $5 551.143, .144 (Vernon 1994 & Supp. 2000); TEX. PEN. CODE ANN. §
6.03(a), (b) (definitions of acting “with intent” and acting “knowingly”) (Vernon 1994).
Again, you appear to be concerned about a person who speaks to members of a
commissioners court individually to urge them to place an item on the commissioner court’s agenda
or vote a certain way on an item on the agenda and who, in doing so, may inform members of other
members’ views on the matter. You ask about a person who approaches the members on his or her
own initiative and not upon the request of other members of the court. We conclude that such a
The Honorable J. Collier Adams, Jr. - Page 8 (JC-0307)
person, who does not act in concert with a member or members ofthe court, does not violate the Act.
Because we conclude that this conduct does not violate the Act, we do not address your question
regarding the responsibility of members of the court who are aware of it. See Request Letter, supra
note 2, at 2 (“If so, then what is the responsibility of a County Commissioner or County Judge
toward someone the County Commissioner or County Judge suspects is violating the Open Meetings
Act by peddling secret deliberations among more than one member ofthe Commissioners Court?“).
Furthermore, we note that we have received briefs expressing the concern that construing the
Act’s criminal provisions to apply to nonmembers’ unsolicited conduct might impede citizens’
access to public officials elected to represent their interests and penalize public officers for being
open to their constituents. Because we conclude that a nonmember may not be criminally liable
under the Open Meetings Act unless, acting with intent, he or she aids or assists a member or
members ofthe governmental body who knowingly act to violate the Act, we do not believe that our
conclusion here should concern citizens and members of governmental bodies who discuss public
business in good faith.
Finally you ask if “a violation of the Open Meetings Act occur[s] when a claim, invoice, or
bill is circulated or passed among the County Commissioners until at least three signatures are
attained then to deliver the claim, invoice or bill to the County Auditor/Treasurer for payment?’ See
id. Approval of a claim, invoice, or bill by the commissioners court for payment is an official act
of the court that must take place at a meeting held under the Act. Section 113.064(a) of the Local
Government Code provides that in a county with a county auditor, “each claim, bill, and account
against the county must be filed in sufficient time for the auditor to examine and approve it before
themeetingofthe commissioners court.” TEX. LOC. GOV’TCODE ANN. 5 113.064(a) (Vernon 1999)
(emphasis added). Section 115.021, ofthe Local Government Code provides that the commissioners
court “shall audit and settle all accounts against the county and shall direct the payment of those
accounts.” Id. 5 115.021. Courts have held that these provisions require the auditor and the
commissioners court separately to examine and make a decision as to whether to approve each claim
against county funds. See Criderv. Con, 960 S.W.2d. 703,706 (Tex. App.-Tyler 1997, pet. denied);
Smith v. McCoy, 533 S.W,2d457,459 (Tex. Civ. App.-Dallas 1976, writ dism’d). “The legislative
scheme of control of county funds requires specific approval of the claim by the Auditor before
consideration by the Commissioners Court. Likewise, the Auditor may not direct the expenditure
of county funds without the County Commissioner’s order.” Crider, 960 S.W.2d. at 706.
A commissioners court may only act to approve a claim, invoice, or bill as a body at a
meeting subject to the Open Meetings Act. See Swaim Y. Montgomery, 154 S.W.2d 695, 696-97
(Tex. Civ. App.-Amarillo 1941, writ ref d) (stating that commissioners court does not act by
statement of one member; rather, it acts as court, meeting in open session to transact county
business) (quoting Tarrant Countyv. Smith, 81 S.W.2d 537,538 (Tex. Civ. App.-Fort Worth 1935,
writ ref d)); see also Tex. Att’y Gen. LO-95-002, at 2 (county treasurer may not make payments
from county treasury prior to the commissioners court’s approval of such expenditures in an open
meeting under the Open Meetings Act). Approving a claim, invoice, or bill in writing constitutes
deliberation of county business within the meaning of the Act. See Tex. Att’y Gen. Op. No. DM-95
(1992) (“If a quorum of a governmental body agrees on a joint statement on a matter of [public
The Honorable J. Collier Adams, Jr. - Page 9 (X-0307)
business], the deliberation by which that agreement is reached is subject to the requirements of the
Act, and those requirements are not necessarily avoided by avoiding the physical gathering of a
quorum in one place at one time.“); see also discussion supra pp. 5-6 (regarding whether “verbal
exchange” includes written communications). Accordingly, a commissioners court’s approval (or
attempted approval) of payment of a claim, invoice, or bill given by members in writing in lieu of
consideration of the matter at a meeting held under the Act would violate the Act’s requirement
that a vote, decision, or final action on a matter be taken in a properly noticed open meeting. See
TEX. GOV’T CODE ANN. $5 551.002, ,102 (Vernon 1994); id. 5 551.141 (“An action taken by
a governmental body in violation of this chapter is voidable.“); see also Tex. Att’y Gen. Op. No.
DM-95 (1992) (holding that letter signed by quorum of governmental body concerning public
business is official action of signatory members subject to requirements of the Act); Tex. Att’y Gen.
Op. No. H-l 163 (1978) at 2 (governmental body may not vote by secret written ballot). In addition,
deliberation about such a claim, invoice, or bill between members of a commissioners court outside
an open meeting could violate the Act’s criminal provisions. See TEX. GOV’T CODE ANN.
3s 551.143, .144 (Vernon 1994 & Supp. 2000). This does not mean, however, that individual
members of the court may not receive and review a claim, invoice, or bill in advance of a meeting,
provided that they do not discuss or otherwise communicate approval or disapproval of the item
outside a meeting held pursuant to the Act.
The Honorable J. Collier Adams, Jr. - Page 10 (X-0307)
SUMMARY
A person who acts independently to urge individual members
of a commissioners court to place an item on the commissioners
court’s agenda or vote a certain way on an item on the agenda does
not commit an offense under the Open Meetings Act, even if he or
she informs members of other members’ views on the matter. A
person who is not a member of the commissioners court may be
charged with a violation of section 551.143 or 551.144 of the Open
Meetings Act, but only ifthe person, acting with intent, aids or assists
a member or members who knowingly act to violate the Act.
Circulation of a claim, invoice, or bill among members of a
commissioners court for approval of payment in writing in lieu of
consideration of the item at a meeting held pursuant to the Act would
violate the Act.
CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee