Do judges who manage a probation department have to follow the Open Meetings Act in Texas?

Plain-English summary

In Texas, adult probation is run by a Community Supervision and Corrections Department (a "CSCD"), and the judges who try criminal cases in a judicial district both establish that department and "participate in the management" of it. Harris County District Attorney John B. Holmes, Jr., asked whether the committee of district and statutory county court judges that oversees the Harris County CSCD has to follow the Open Meetings Act when it meets to manage the department. The Attorney General concluded that it does.

The Open Meetings Act (chapter 551 of the Government Code) requires every regular, special, or called meeting of a "governmental body" to be open to the public, with notice. The office first found these gatherings are "meetings": when the judges meet to establish a CSCD, appoint its director, or weigh its expenditures, they are taking formal action or deliberating over public business under the act's definition (section 551.001(4)). The harder question was whether the committee is a "governmental body." The act's definition (section 551.001(3)) lists specific bodies, and a 1987 opinion (JM-740) had found that judges meeting to appoint a county auditor were not a governmental body at all, which cut against coverage.

What tipped the answer was the "special district" category. The Austin court of appeals, in Sierra Club v. Austin Transportation Study Policy Advisory Committee, had read "governing body of a special district" broadly, using Black's Law Dictionary's definition of a special district as a limited governmental structure serving a primarily local benefit. The office agreed that reading was broad enough to cover this committee: a CSCD is territorially limited to the judicial district (local in nature), and the committee controls the CSCD's directorship and finances, so it functions as the governing body of a special district. The office then dealt with a counterargument, that the judges' meetings fall within the "judicial branch" and so are implicitly outside the act (which names only executive and legislative branch committees). It rejected that, relying on Benavides v. Lee, a San Antonio court of appeals open-records case holding that a juvenile board's selection of a probation officer was administration, not a judicial act. By that logic, appointing a CSCD director and approving its spending are administrative functions, not judicial ones, so the committee is not acting "within the judicial branch." The office therefore concluded the committee's CSCD-management meetings are subject to the Open Meetings Act.

Currency note

This opinion was issued in 1996. 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 opinion construed the Open Meetings Act (chapter 551 of the Government Code), including the definitions of "meeting" and "governmental body," and chapter 76 of the Government Code (Community Supervision and Corrections Departments, recodified in 1995 from article 42.131 of the Code of Criminal Procedure), as those statutes stood in 1996. They have been amended since, so section numbers and details may differ today. Read this page for the office's 1996 reasoning, and verify the current statutes and open-government case law before relying on any specific provision.

What the opinion meant at the time

For the committee of judges managing a CSCD (and similar judge-run boards): The opinion meant that when these judges met to carry out their statutory CSCD-management functions (establishing the department, appointing its director, approving its spending), those meetings were subject to the Open Meetings Act, so chapter 551's notice and open-session requirements applied.

For the public and the press: The opinion meant such meetings were ones the public could attend and receive notice of, because the office read the committee as the governing body of a "special district" within the act.

For lawyers: The office relied on the Austin court of appeals' broad "special district" construction in Sierra Club, distinguished its own earlier Opinion JM-740 (county-auditor appointments), and used Benavides v. Lee from the open-records context to reject the argument that the committee fell within an implied "judicial branch" exclusion, characterizing the appointment and expenditure functions as administrative rather than judicial. The office expressly did not reach whether the committee was "within state government" generally, and a footnote noted it was not addressing a single district judge performing the same duties.

Common questions

Do meetings of judges who run a probation department have to be open to the public in Texas?
Under this opinion, yes, when the judges meet to perform their statutory functions managing a Community Supervision and Corrections Department. The office concluded those meetings are subject to the Open Meetings Act (chapter 551 of the Government Code).

Why are these judges treated as a "governmental body"?
The office read the committee as the governing body of a "special district." Following the Austin court of appeals' broad reading of that term in the Sierra Club case, it reasoned that a CSCD is a locally limited governmental structure, and the committee, which appoints the CSCD director and controls its finances, governs it.

Aren't judges part of the judicial branch and exempt from open-meetings rules?
The office considered that argument and rejected it. It pointed to Benavides v. Lee, an open-records case holding that a juvenile board's selection of a probation officer was administration, not a judicial act. By analogy, appointing a CSCD director and approving expenditures were administrative functions, so the committee was not acting within the judicial branch.

What exactly counts as a covered "meeting"?
Under section 551.001(4), a deliberation of the body about public business it supervises or controls, or in which formal action is taken. The office said that establishing a CSCD, appointing its director, or considering its expenditures all qualified.

Did this apply to a single judge acting alone?
The opinion was about a committee of judges. A footnote said the office was not addressing the situation where one district judge performs the chapter 76 duties.

Background and statutory framework

The Open Meetings Act, chapter 551 of the Government Code, requires that, with stated exceptions, every regular, special, or called meeting of a governmental body be open to the public (section 551.002), with notice (sections 551.041 and the exceptions in sections 551.071 through .104). A "meeting" is defined in section 551.001(4) as a deliberation of a governmental body in which public business or policy over which the body has supervision or control is discussed, or in which formal action is taken. "Governmental body" is defined in section 551.001(3) through a list that includes executive- and legislative-branch committees, county commissioners courts, municipal governing bodies, certain deliberative bodies with rulemaking or quasi-judicial power, school boards, and, in subsection (H), "the governing body of a special district created by law."

The judges' role comes from chapter 76 of the Government Code, recodified in 1995 without substantive change from article 42.131 of the Code of Criminal Procedure. Section 76.002 directs the district judges trying criminal cases in each judicial district to establish a CSCD and authorizes the district judges and statutory county court judges served by the CSCD "to participate in the management" of it. Section 76.004 has the district judges appoint a CSCD director, who in turn employs the department's staff, and other sections govern funding. (The office noted in a footnote, citing its Opinion DM-208, that the judges compensate but do not themselves hire the department personnel; the director does.)

Two lines of authority pulled in opposite directions. Opinion JM-740 (1987) had concluded that district judges meeting to appoint a county auditor were not a "governmental body," which suggested the CSCD meetings might not be covered either. The Sierra Club case, by contrast, read the "special district" category broadly, holding that a multi-government highway-planning committee was the governing body of a special district and "just the sort of body the Open Meetings Act was designed to govern." The office followed Sierra Club, finding the CSCD committee fit the "special district" definition. It then addressed and rejected the "judicial branch" exclusion argument by analogy to Benavides v. Lee, where the San Antonio court of appeals held a juvenile board's hiring of a probation officer was administrative and within the Open Records Act, refusing to extend the "judiciary exception" (now section 552.003(1)(b) of the Government Code) "to every governmental entity having any connection with the judiciary." Reasoning that the CSCD committee's appointment and expenditure functions were likewise administrative, the office concluded a court would find the committee subject to the Open Meetings Act.

Citations

Statutory provisions discussed:

• Government Code ch. 551 (Open Meetings Act), including §§ 551.001(3) ("governmental body"), 551.001(4) ("meeting"), 551.002 (open meetings), 551.041 and 551.071-.104 (notice and exceptions)
• Government Code ch. 76 (Community Supervision and Corrections Departments), including §§ 76.002, 76.004, 76.008, 76.009, 76.010; recodified in 1995 from Code of Criminal Procedure art. 42.131
• Local Government Code § 84.005 (appointment of county auditor; subject of Opinion JM-740)
• Government Code ch. 552 (Open Records Act), § 552.003(1)(b) (judiciary exception)

Attorney General opinions cited:

• JM-740 (1987), JM-1185 (1990), DM-208 (1993)
• Open Records Decision Nos. 417 (1984), 527 (1989)

Cases discussed:

• Sierra Club v. Austin Transportation Study Policy Advisory Committee, 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied)
• Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-San Antonio 1983, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0395
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0395.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 17, 1996

The Honorable John B. Holmes, Jr.
Harris County District Attorney
201 Fannin, Suite 200
Houston, Texas 77002-1901

Opinion No. DM-395

Re: Whether the meetings of judges to perform statutory functions with respect to the management of a community supervision and corrections department are subject to the Open Meetings Act, chapter 551, Government Code (RQ-840)

Dear Mr. Holmes:

You ask:

Is the Harris County Committee of District and Statutory Judges [t]rying [c]riminal [c]ases overseeing the Community Supervision and Corrections Department subject to the Open Meetings Act when it meets to participate in the management of the Harris County Community Supervision and Corrections Department?

The Open Meetings Act (the "act"), chapter 551, Government Code, requires that, except as provided therein, "[e]very regular, special, or called meeting of a governmental body shall be open to the public." Gov't Code § 551.002. The act additionally provides for notice of meetings subject to the act and exceptions to the requirement that meetings be open to the public. Id. §§ 551.041, .071-.104.

Provisions formerly in article 42.131, Code of Criminal Procedure, and recodified in 1995 without substantive change as chapter 76, Government Code, provide for the establishment of a Community Supervision and Corrections Department (a "CSCD"). Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 7.11, 1995 Tex. Sess. Law Serv. 458, 580-84. Section 76.002 provides that the district judge[1] or judges trying criminal cases in each judicial district shall establish a CSCD and "employ"[2] district personnel as necessary to conduct presentence investigations, supervise and rehabilitate defendants placed on community supervision (formerly known as "probation"), enforce the conditions of community supervision, and staff community corrections facilities. The section also authorizes both district judges trying criminal cases and the judges of statutory county courts trying criminal cases that are served by a CSCD "to participate in the management" of the CSCD. Section 76.004 directs the district judges to appoint a director of the CSCD, who in turn "employs"[3] other CSCD officers and staff. In addition to county support (Gov't Code § 76.008), the district judges may expend district funds to provide CSCD facilities under the conditions set out in section 76.009. The district judges may additionally authorize the expenditure of funds provided the CSCD by the Community Justice Assistance Division of the Texas Board of Criminal Justice for community corrections facilities subject to the limitations in section 76.010.

The question here is whether the meetings of the judges you ask about in connection with the CSCD are "meetings" of "governmental bodies" within the terms of and subject to the act. "Meeting" is defined in section 551.001(4) of the act as deliberation of a governmental body in which public business or policy over which the governmental body has supervision or control is discussed or in which formal action is taken. We think it clear that when the judges you ask about meet to establish a CSCD, appoint a CSCD director, or consider expenditures of funds for CSCD purposes they are either taking formal action or deliberating over public business within the definition of "meeting." But do the judges meeting in such context constitute a "governmental body" under the act?

"Governmental body" under section 551.001(3) of the act means:

(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;

(B) a county commissioners court in the state;

(C) a municipal governing body in the state;

(D) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(E) a school district board of trustees;

(F) a county board of school trustees;

(G) a county board of education;

(H) the governing body of a special district created by law;

(I) [certain nonprofit water supply and wastewater companies].

In 1987, Attorney General Opinion JM-740 concluded that a meeting of district judges under provisions now in Local Government Code section 84.005 to appoint a county auditor was not subject to the act because the appointing judges did not constitute a "governmental body" under any of the definitions in the act. Attorney General Opinion JM-740 (1987) at 4. The conclusion of Attorney General Opinion JM-740 suggests that the meetings of judges you ask about in connection with the CSCD may not be subject to the act.

You argue that the committee of judges here, under the reading the Austin court of appeals gave the section 551.001(3)(H) definition of governmental body as the governing body of a "special district" in Sierra Club v. Austin Transportation Study Policy Advisory Committee, 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied), is a governmental body under that provision and that their meetings are therefore subject to the requirements of the act. The Sierra Club court ruled that the Austin Transportation Study Policy Advisory Committee ("ATSPAC"), a seventeen-member committee consisting of state, county, regional, and municipal public officials, created pursuant to federal law to enable federal, state, and local cooperation in highway planning, was a governing body of a "special district" under the definition of "governmental body" now set out in section 551.001(3)(H) of the act. The court quoted the following broad definition of "special district" in Black's Law Dictionary:

A limited governmental structure created to bypass normal borrowing limitations to insulate certain activities from traditional political influence, to allocate functions to entities reflecting particular expertise, to provide services in otherwise unincorporated areas, or to accomplish a primarily local benefit or improvement, e.g., parks and planning, mosquito control, sewage removal.

BLACK'S LAW DICTIONARY 1253 (5th ed. 1979).

Emphasizing the importance of the decision-making function of ATSPAC in determining highway development in the central Texas area and finding that ATSPAC was designed to "accomplish a primarily local benefit or improvement," in the words of the Black's definition of "special district," the court stated that ATSPAC was "just the sort of body the Open Meetings Act was designed to govern." Sierra Club, 746 S.W.2d at 301. It concluded that ATSPAC should be considered as the governing body of a "special district" within the definition of "governmental bodies" subject to the act. See generally Attorney General Opinion JM-1185 (1990) at 7. We agree that the reading the Sierra Club court gave the "special district" component of the act's definition of "governmental body" is broad enough to include the committee of judges you ask about here. The CSCD it manages is territorially limited to the judicial district, thus of a local nature, per the Black's definition of "special district" relied on in Sierra Club, and its control over the CSCD directorship and CSCD finances, as well as its general managerial function with respect to the CSCD, makes it, we think, a "governing body" of such special district within the act's definition.

We note at this juncture that it could be argued that the judges' meetings here are "within the judicial branch of state government" and therefore not covered by the act. Again, section 551.001(3)(A) provides that a committee "within the executive or legislative branch of state government" is a "governmental body" subject to the act, arguably implying that a committee within the judicial branch of state government was not intended to be covered. This result would be consistent with Attorney General Opinion JM-740, which dealt with district judges' meetings to appoint a county auditor, although the rationale that such judges' meetings were ones within the judicial branch of state government and therefore excluded from the act's coverage was not expressly given in that opinion. However, a 1984 San Antonio court of appeals case in the analogous area of open records law, Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-San Antonio 1983, no writ), suggests to us that a court would probably not find such argument persuasive.

Benavides dealt with the question whether the specific exclusion of the "judiciary" from governmental bodies subject to the Open Records Act, now in section 552.003(1)(b), Government Code, excepted resumes of applicants for the position of juvenile probation officer in the hands of a juvenile board composed of members of the judiciary and the county judge. The Open Records Act, which provides, with certain exceptions, for public access to records of "governmental bodies," is codified as chapter 552, Government Code. Finding that the board's selection of a probation officer "is simply part of the Board's administration of the juvenile probation system, not a judicial act by a judicial body," and stating that the "judiciary exception" under the act "must not be extended to every governmental entity having any connection with the judiciary," the Benavides court held the board a governmental body subject to the act, thus requiring public release of the requested record. Id. at 152; see also, e.g., Open Records Decisions Nos. 417 (1984) at 1, 527 (1989) at 3 (relying on Benavides).

We believe, in light of Benavides' treatment of the group of judges making up the juvenile board under the analogous provisions of the Open Records Act, that a court would probably characterize the statutory functions of the committee of judges here with respect to the CSCD (the appointment of the CSCD director and approval of CSCD expenditures) as administrative rather than judicial. Therefore, even if the committee you asked about could be considered one "within . . . state government" (and we do not reach this issue here), we do not believe it should be considered one within the "judicial branch of state government." Thus, we do not think that a court would be persuaded by the argument that the committee here is one within the judicial branch of state government and is implicitly excluded from the coverage of the act.

In conclusion, we believe that the broad construction given the "special district" component of the act's definition of a "governmental body" subject to the act in the Sierra Club opinion, discussed above, indicates that a court would find the committee of judges you ask about within that definition and thus subject to the act when it meets to perform its statutory functions in connection with the CSCD.

SUMMARY

The meetings of judges to perform statutory functions with respect to the management of a Community Supervision and Corrections Department are subject to the Open Meetings Act, chapter 551, Government Code.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] You ask about a committee of judges. We do not address the situation where one district judge performs chapter 76 duties.

[2] Attorney General Opinion DM-208 concluded that the provisions now in section 76.002 empower the district judges to "compensate" but not to hire such personnel, since section 76.004 authorizes the department director, himself appointed by the district judges, to "employ" department personnel. Attorney General Opinion DM-208 (1993) at 5.

[3] See supra note 2.