Can a Texas board member attend an open meeting by video instead of in person?

Plain-English summary

Long before video meetings became routine, the chair of the Texas Alcoholic Beverage Commission asked a forward-looking question: if a commissioner cannot make it to a meeting in person because of a scheduling conflict, can that commissioner join by live video, on camera, able to see and hear the room while the room sees and hears the commissioner? The Attorney General's answer in 1993 was no, not under the Open Meetings Act as it then stood.

The reasoning leaned on an earlier opinion (JM-584) from 1986, which had said the Open Meetings Act is built on the assumption that members of a government board show up in person at the place named in the meeting notice. The Act's text points that way: it talks about members gathering at a "place," about handling questions from people attending the meeting, and so on. The Texas Supreme Court had also signaled, in a 1986 case, that the public interest in open government supports having board members attend in person.

The opinion recognized that live video is better than a phone call in some respects. With a phone call, the earlier opinion had worried the absent member could not hear the public and the public could not see the member's face or hear the member's voice. Live video fixes those problems. Even so, the opinion concluded, the Act still assumes physical presence, and live video does not satisfy that assumption.

A telling clue was what the legislature had done since 1986. It had passed a specific law letting the governing bodies of colleges and universities meet by telephone conference call. The fact that the legislature singled out higher-education bodies for that permission showed that, for everyone else, the Act still required physical presence. The opinion also noted that private corporations can meet by phone or even live video under the Business Corporation Act, but that is because corporate meetings are not open to the public, a different situation from government meetings, which exist to let the public watch the decision-making. The bottom line: unless and until the legislature specifically authorized it, a government body covered by the Open Meetings Act could not let an absent member participate by live video.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. This area of Texas law has changed dramatically since 1993: the Open Meetings Act was recodified into chapter 551 of the Government Code, and the legislature has since added detailed provisions expressly authorizing videoconference and telephone-conference meetings for many governmental bodies (with its own notice and access requirements), so the flat prohibition described here no longer reflects current law. Confirm the current Government Code provisions before relying on anything here.

Background and statutory framework

The Chairman of the Texas Alcoholic Beverage Commission asked whether the Open Meetings Act (V.T.C.S. article 6252-17) permitted a commission member who could not attend a meeting in person to participate by live video transmission. The proposed arrangement would televise the absent commissioner live so that the public and the present commissioners could see and observe the absent member, and the absent member could see and observe them. The Attorney General concluded the Act does not permit such an arrangement.

The JM-584 framework. The opinion drew on AG Opinion JM-584 (1986), which had considered whether the Texas Board of Licensure for Nursing Home Administrators could meet and vote by telephone conference call. JM-584 had not limited itself to that board, instead stating its conclusions apply to all governmental bodies subject to the Act. While JM-584 recognized that a teleconferenced deliberation could fall within the Act's definition of "meeting" (the legislature intended the Act to reach the whole governmental decision-making process; Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956, 958 (Tex. 1986)), it identified several provisions assuming members would appear in person. Section 1(a) provides that members are not prohibited from gathering for social occasions or at conventions and workshops. Section 3A, which exempts from the notice requirement limited answers to an inquiry made at a meeting "by a member of the general public or by a member of the governmental body," rests on the assumption that board members will hear people attending, and contemplates the meeting being held in a "place" specified in the notice (the public has no general right to speak at a meeting; AG Opinion H-188 (1973)). These provisions suggested the legislature assumed board members would be physically present. JM-584 also relied on Cox Enterprises, which implied the public interest requires board members to attend meetings in person.

The Business Corporation Act contrast. JM-584 compared the Act with article 9.10(C) of the Business Corporation Act (V.T.C.S. article 1.01-12.54), which expressly authorizes a private corporation's shareholders, directors, or a committee to participate in a meeting by means of conference telephone or similar communications equipment by which all participating persons can hear each other. But meetings of shareholders and directors are not open to the public, so a corporation need not consider the public interest in deciding to meet by teleconference, while the legislature intended the Open Meetings Act to protect the public interest in the governmental meeting process. JM-584 thus concluded the Act itself does not permit a governmental body to meet by telephone conference call, although the legislature may authorize it.

Live video does not change the result. The opinion acknowledged that some JM-584 concerns about teleconferencing do not apply to live video: there, the office had worried the absent member could not hear the public and the public could not observe the member's demeanor or hear the member's voice, whereas the proposed live-video arrangement would let the public and present commissioners see and hear the absent commissioner and vice versa. Nevertheless, the opinion concluded the Act assumes members will be physically present at the location designated in the notice. The opinion noted that, after JM-584, the legislature added section 2(r) (Acts 1987, 70th Leg., ch. 964, § 4), authorizing the governing body of an institution of higher education to conduct an open or closed meeting by telephone conference call; that enactment validated the view that, except for higher-education governing bodies, the Act assumes physical presence. And although the opinion believed article 9.10(C) would permit a private corporation to meet by live video, it concluded the legislature had not authorized a governmental body subject to the Act to permit live-video participation by an absent member. Unless and until the legislature authorized such a practice, a governmental body subject to the Act may not permit an absent member to participate by live video transmission.

Common questions

Could a Texas board member attend an open meeting by live video in 1993?
No. The opinion concluded that, without specific legislative authorization, a governmental body subject to the Open Meetings Act could not let an absent member participate by live video transmission.

Why didn't live video count, if everyone could see and hear each other?
The opinion concluded the Act was written on the assumption that members are physically present at the place named in the meeting notice, and live video, while better than a phone call, still did not satisfy that physical-presence assumption.

Why could private corporations meet remotely but not government boards?
Because, the opinion explained, corporate meetings are not open to the public, so a corporation need not weigh the public interest, while government meetings exist to let the public observe decision-making.

Did the law allow any remote meetings back then?
Yes, but only narrowly. The legislature had specifically authorized the governing bodies of higher-education institutions to meet by telephone conference call. That carve-out is part of why the opinion concluded everyone else still had to be present in person.

Citations

• V.T.C.S. art. 6252-17 (Open Meetings Act); § 1(a) (social/convention gatherings); § 2(r) (higher-education telephone-conference meetings); § 3A (inquiries; "place" in notice)
• Business Corporation Act art. 9.10(C) (V.T.C.S. art. 1.01-12.54) (private-corporation conference-telephone meetings)
• Acts 1987, 70th Leg., ch. 964, § 4 (adding section 2(r))
• Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956 (Tex. 1986)
• Attorney General Opinions JM-584 (1986), H-188 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0207
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0207.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 16, 1993

Honorable Renee Higginbotham-Brooks
Chairman
Texas Alcoholic Beverage Commission
P.O. Box 13127
Austin, Texas 78711-3127

Opinion No. DM-207

Re: Whether the Open Meetings Act, V.T.C.S. article 6252-17, permits a member of the Alcoholic Beverage Commission who is unable to attend a commission meeting in person to participate by live video transmission (RQ-428)

Dear Chairman Higginbotham-Brooks:

You have asked us to determine whether the Open Meetings Act (the "act"), V.T.C.S. article 6252-17, permits a member of the Alcoholic Beverage Commission who is unable because of scheduling problems to attend a commission meeting in person to participate in the meeting via live video transmission. You explain that the proposed arrangement would enable the absent commissioner to be recorded live with video and televised so that both the members of the public and the commissioners present at the meeting can see and observe the absent commissioner. The absent commissioner also would be able to see and observe both the members of the public and the commissioners present. We conclude that the act does not permit such an arrangement.

This office considered a similar problem in Attorney General Opinion JM-584 (1986), in which the Texas Board of Licensure for Nursing Home Administrators (the "board") asked whether it could meet and vote on matters by teleconference call. Attorney General Opinion JM-584 (1986) at 1. This office did not limit the opinion to meetings of the board, however; instead, the opinion stated that its conclusions would apply to all meetings of all governmental bodies that are subject to the act. Id. at 3. Initially, the opinion noted that the act did not explicitly answer the board's request, but the opinion reasoned that the legislature intended the act to reach the entire governmental decision-making process. Id.; see Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956, 958 (Tex. 1986).

While the opinion determined that deliberations by teleconference could fall within the act's definition of "meeting," it cited several provisions in the act indicating that the legislature assumed that members of a governmental body would appear in person at a meeting. Attorney General Opinion JM-584 at 3. The opinion gave several such provisions:

Section 1(a) provides that members of a governmental body are not prohibited from gathering for social occasions or meetings at national conventions and workshops, gatherings that may involve personal attendance. Section 3A exempts from the notice requirement of article 6252-17, V.T.C.S., limited answers to "an inquiry made at such meeting . . . made by a member of the general public or by a member of the governmental body." V.T.C.S. art. 6252-17, § 3A. The public has no right under the act to speak at a meeting; that is a matter controlled by the discretion of the governmental body or, in some cases, by a particular statute. Attorney General Opinion H-188 (1973) . . . . Nonetheless, the section 3A procedure for handling inquiries from the public rests on the assumption that board members will be able to hear people attending the meeting. Section 3A also contemplates that the meeting shall be held in a "place" specified in the notice. These provisions at least suggest that the legislature assumed that board members would be physically present at meetings subject to the Open Meetings Act.

Id. at 3-4. In addition, the opinion relied upon the language of the Texas Supreme Court's decision in Cox Enterprises, Inc., which implied that the public interest requires board members to attend meetings in person. Id. at 4.

Finally, the opinion compared the act with article 9.10(C) of the Business Corporation Act, V.T.C.S. article 1.01-12.54, in which the legislature expressly has authorized a private corporation's shareholders, members of the board of directors, or members of a committee that the board has designated to hold a meeting "by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other." Id. at 5 (quoting Bus. Corp. Act art. 9.10(C)). Of course, as the opinion pointed out, meetings of shareholders and directors are not open to the public; as a result, a corporation need not consider the public interest when it decides to conduct a meeting by teleconference. Id. On the other hand, the legislature intended the act to protect the public interest in the governmental meeting process of governmental bodies. Id. at 6. The opinion concluded that the act itself does not permit a governmental body to conduct a meeting by telephone conference call, although the legislature may authorize such a practice. Id. at 7.

Admittedly, some of the concerns we expressed in Attorney General Opinion JM-584 about meetings conducted by teleconference do not apply to meetings conducted by live video transmission. For example, in regard to the teleconference meeting the board proposed, this office was concerned that the absent board member would be unable to hear members of the public attending the meeting. See id. at 4. This office also was concerned that members of the public would be unable to observe the demeanor or to hear the voice of the absent board member. Id. at 6. Here, however, you state that the live video transmission arrangement you are proposing would enable the members of the public and commissioners in attendance at a meeting to see and hear the absent commissioner, and vice versa. Nevertheless, as we stated in Attorney General Opinion JM-584, we believe that the act assumes that members will be physically present at the location designated in the notice to conduct a meeting subject to the act.

We note that, subsequent to the issuance of Attorney General Opinion JM-584, the legislature added section 2(r) to the act. See Acts 1987, 70th Leg., ch. 964, § 4. Section 2(r) authorizes the governing body of an institution of higher education to conduct an open or closed meeting by telephone conference call. In our opinion, the legislature's enactment of section 2(r) validates this office's belief that, with the exception of the governing body of an institution of higher education, the act assumes that members of a governmental body will be physically present at a meeting of the governmental body.

Furthermore, we note that article 9.10(C) of the Business Corporation Act authorizes a private corporation's shareholders, board of directors, or committee to meet "by means of conference telephone or similar communications equipment." We believe that article 9.10(C) permits shareholders, the members of a corporation's board of directors, or a committee to conduct a meeting by means of live video transmission, the method you are suggesting. The legislature has not, however, explicitly authorized a governmental body subject to the act to permit a member who is unable to attend a meeting in person to participate via live video transmission. Unless and until the legislature authorizes such a practice, a governmental body subject to the act may not permit an absent member to participate in a meeting of the governmental body by means of live video transmission.

SUMMARY

In the absence of specific legislative authorization, a governmental body subject to the Open Meetings Act, V.T.C.S. article 6252-17, may not permit a member who is unable to attend a meeting in person to participate via live video transmission.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee