If a quorum of a board shows up at a committee meeting, does the Open Meetings Act apply?

Plain-English summary

The Open Meetings Act, found in chapter 551 of the Government Code, requires governmental bodies to hold their deliberations in public, with advance notice. A common gray area is the committee meeting: a board often sends a small committee to do detailed work, and a committee that is less than a quorum of the full board usually is not subject to the Act. But what happens when so many board members show up at a committee meeting that a quorum of the whole board is present? A House committee chair asked the Attorney General that question, using the Denton County Transportation Authority (DCTA), a coordinated county transportation authority, as the example. The DCTA board had fourteen members, and five members make a quorum.

The opinion first cautioned that whether any specific gathering is a "meeting" can turn on facts an opinion cannot resolve, but it could give general legal guidance. The Act defines "meeting" to include a deliberation between a quorum of a governmental body during which public business the body controls is discussed, considered, or acted on. Applying that definition, the opinion concluded that if a quorum of the DCTA board attends a committee meeting and deliberation about board business occurs, the committee meeting generally qualifies as a meeting of the board under the Act. It relied on an earlier opinion (JC-0313) holding that non-committee board members do not even have to participate; their mere presence creating a quorum is enough to bring the Act into play, as long as a voting committee member takes part in a verbal exchange about public business the board controls.

From there, the answers followed. Because such a committee meeting can be a board meeting, the body must post written notice telling the public that the board is meeting (the date, hour, place, and subject). Nothing in the Act caps how many members may serve on or attend a committee; the Act only requires notice when a quorum attends and deliberation occurs. On the final question, the opinion said whether a particular notice complies is a factual inquiry it could not perform, but as a general matter a notice that identifies the governmental body, date, hour, place, and subject meets the Act's content requirements. So a court would likely find that a committee-meeting notice stating that a quorum of the board may attend is sufficient to alert the public that the board may be meeting, as long as the Act's other requirements are satisfied. The opinion grounded that in the Act's purpose of ensuring the public can be informed about the transactions of public business.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Denton County Transportation Authority and similar bodies (as the opinion described it): The opinion read the Act so that a committee meeting attended by a quorum of the board, with deliberation on board business, is a board meeting. It said the body must post notice that the board is meeting.

Board and committee members (as the opinion described it): The opinion treated the mere presence of enough non-committee members to form a quorum as triggering the Act, even without their active participation, so long as a voting committee member engages in a verbal exchange about public business.

The public and open-government watchers (as the opinion described it): The opinion said a notice announcing a committee meeting and indicating that a quorum of the board may attend would likely suffice, provided it identifies the body, date, hour, place, and subject. Whether a specific notice complied was a fact question it did not decide.

Common questions

Does the Open Meetings Act apply to a committee meeting?
A committee of less than a quorum usually is not subject to the Act, but if enough board members attend to create a quorum and there is deliberation about board business, the opinion said the committee meeting becomes a meeting of the full board under the Act.

Do the extra board members have to speak for the Act to apply?
No. The opinion, following an earlier opinion, said their mere presence creating a quorum is enough, as long as a voting committee member participates in a verbal exchange about public business the board controls.

How should the meeting be noticed?
The body must give written notice of the date, hour, place, and subject. Because the committee meeting can be a board meeting, the notice should inform the public that the board is meeting.

Is it enough to say a quorum 'may' attend?
A court would likely find that sufficient, the opinion said, as long as the notice identifies the body, date, hour, place, and subject. Whether a given notice actually complied was a factual question the opinion could not resolve.

Background and statutory framework

The Denton County Transportation Authority is a coordinated county transportation authority under chapter 460 of the Transportation Code; section 460.205(a) sets a five-member quorum of its board. The Open Meetings Act defines "meeting" in Government Code section 551.001(4), including (subdivision (A)) a deliberation between a quorum during which public business the body controls is discussed, considered, or acted on. Section 551.041 requires written notice of the date, hour, place, and subject of each meeting.

The opinion drew on Bexar Medina Atascosa Water District v. Bexar Medina Atascosa Landowners' Ass'n (whether specific behavior violates the Act is a fact question) and Acker v. Texas Water Commission (the Act's purpose is to keep the public informed about public business). It relied on its prior opinions JC-0313 (2000) (a quorum attending a committee meeting can make it a board meeting), JC-0407 (2001) (meetings of less than a quorum generally are not subject to the Act, with exceptions), JC-0057 (1999) (the opinion process cannot decide whether a particular notice complied), and GA-0876 (2011) (fact questions are not resolved in the opinion process).

Citations

Cases:

• Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 461 n.2 (Tex. App.—San Antonio 1999, pet. denied)
• Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990)

Statutes:

• Tex. Transp. Code Ann. § 460.205(a) (West Supp. 2011)
• Tex. Gov't Code Ann. § 551.001(4), 551.001(4)(A) (West Supp. 2011)
• Tex. Gov't Code Ann. § 551.041 (West 2004)

Prior Attorney General opinions referenced:

• Tex. Att'y Gen. Op. Nos. JC-0057 (1999), JC-0313 (2000), JC-0407 (2001), GA-0876 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0957
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0957.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 27, 2012

The Honorable Burt R. Solomons Opinion No. GA-0957
Chair, Committee on Redistricting
Texas House of Representatives Re: Application of the Open Meetings Act, chapter
Post Office Box 2910 551 of the Government Code, to a coordinated
Austin, Texas 78768-2910 county transportation authority created under
chapter 460 of the Transportation Code, and to its
committees (RQ-1042-GA)

Dear Representative Solomons:

You ask several questions about the application of the Open Meetings Act (the "Act") to meetings of various committees of a transportation authority created pursuant to Transportation Code chapter 460.[1] Specifically, you ask about the Denton County Transportation Authority ("DCTA"). While you tell us that the DCTA currently has fourteen board members, Transportation Code section 460.205 provides that "[f]ive members constitute a quorum of the board of directors." TEX. TRANSP. CODE ANN. § 460.205(a) (West Supp. 2011). You explain that the chair of the Board of DCTA (the "Board") has appointed two standing committees and several ad hoc committees, each consisting of at least three members of the DCTA. Request Letter at 1. Your questions suggest that on occasion, in addition to the committee members, additional members of the Board attend committee meetings, possibly resulting in a quorum of the Board at a committee meeting. Id. at 2. You therefore ask whether such circumstances constitute meetings of the Board and, if so, how the Act's notice requirements may apply.

In answering your questions, we first note that analyzing whether conduct is a meeting under the Act will sometimes involve questions of fact that we cannot definitively resolve through the opinion process. See Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 461 n.2 (Tex. App.—San Antonio 1999, pet. denied) (noting that whether any specific behavior violates the Act is a question of fact); Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (noting that questions of fact are not resolved in the opinion process). However, we can provide general legal advice as to when the events you describe may constitute meetings under the Act and which entities may be required to give notice of those meetings.

The Act broadly defines "meeting" in two ways:

(A) a deliberation between a quorum of a governmental body ... 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; or

(B) except as otherwise provided by this subdivision, 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.

TEX. GOV'T CODE ANN. § 551.001(4) (West Supp. 2011). "A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body." Id. § 551.041 (West 2004).

Your first two questions concern whether the DCTA committee meetings are considered meetings of the Board "if, in addition to the committee members, a quorum of the DCTA Board attends the committee meeting." Request Letter at 2. Under this scenario, a quorum of the governmental body is present, and deliberation about public business or public policy of the governmental body is likely to occur. Thus, the committee meetings you describe generally qualify as meetings under the Act. TEX. GOV'T CODE ANN. § 551.001(4)(A) (West Supp. 2011). Addressing a similar question, a prior opinion of this office concluded that when a committee meeting of a governmental body is attended by non-committee members, bringing the number of governmental body members in attendance to a quorum, that situation constitutes a meeting of the governmental body under the Act. Tex. Att'y Gen. Op. No. JC-0313 (2000) at 3-4. That opinion noted that non-committee members of the governing body that attend a committee meeting "do not have to participate in the deliberation for [the Act] to apply. Their mere presence, which results in a quorum, is sufficient to bring the meeting within [the Act] as long as any voting member of the committee participates in a verbal exchange about public business or policy over which the Board has supervision or control." Id. at 3. Thus, if a quorum of the DCTA Board attends a committee meeting and deliberation occurs about public business or public policy over which the DCTA Board has supervision or control, the committee meeting will constitute a meeting of the DCTA Board under the Act.

Assuming an affirmative answer to your first two questions, your third question asks whether a committee meeting attended by a quorum of the Board should "require an agenda posting as a DCTA Board meeting rather than as a meeting of the specific DCTA committee?" Request Letter at 2. The Act requires a governmental body to "give written notice of the date, hour, place, and subject of each meeting held by the governmental body." TEX. GOV'T CODE ANN. § 551.041 (West 2004). Because a committee meeting attended by a quorum of the Board could constitute a meeting of the Board itself, the Act requires that notice be posted informing the public that the Board is meeting.[2]

Your fourth question asks whether "non-committee members of the DCTA Board [may] attend a DCTA committee meeting when the attendance of the [non-committee members] brings the total count of Board members present to five (5) or more?" Request Letter at 2. Nothing in the Act limits the number of members that can serve on a committee or attend meetings. The Act requires only that the governmental body post notice if a quorum of members attend a meeting and deliberation occurs about public business or public policy over which the governmental body has supervision or control.

Your final question asks whether a notice posted for a DCTA committee meeting that indicates "a quorum of the Board 'may' attend" complies with the notice requirements of the Act for the Board. Request Letter at 2. Whether a given notice complies with the Act will require a factual inquiry into the nature of the meeting, which this office cannot perform. Tex. Att'y Gen. Op. No. JC-0057 (1999) at 4 (noting that "we cannot advise you in an attorney general opinion whether or not the notice item in question complied with the Act"). However, we can generally advise that as long as a notice identifies the governmental body, date, hour, place, and subject of a meeting, it will comply with the content requirements of the Act. TEX. GOV'T CODE ANN. § 551.041 (West 2004). The purpose of the Act is to ensure that "the public has the opportunity to be informed concerning the transactions of public business." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990). A committee meeting notice that informs the public of the possibility that a quorum of the Board may attend and complies with the additional requirements of the Act provides the public with all the information necessary to ensure governmental decision-making is open to the public. Thus, a court would likely conclude that a public notice that announces a committee meeting and indicates a quorum of the governmental body may attend is sufficient to notify the public of the governmental body's meeting under the Act.

SUMMARY

Pursuant to the Legislature's definition of "meeting" in Government Code section 551.001(4), if a quorum of the governmental body attends a committee meeting at which deliberation takes place regarding public business or public policy over which the governmental body has supervision or control, the committee meeting will constitute a meeting of the governmental body under the Open Meetings Act. In this circumstance, the Act requires that a public notice be posted announcing a meeting of the governmental body. A court would likely conclude that a notice posted for a committee meeting that indicates a quorum of the governmental body may attend is sufficient to notify the public of such a meeting, as long as the other requirements of the Act are satisfied.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Burt R. Solomons, Chair, House Comm. on Redistricting, to Honorable Greg Abbott, Tex. Att'y Gen. (Feb. 27, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Whether a committee of less than a quorum of a governmental body must post notice for its meetings will depend on a number of factual issues, and we therefore cannot answer the second part of your question about whether the Act requires notice that the committee is meeting. Generally, meetings of less than a quorum of a governmental body are not subject to the Act. Tex. Att'y Gen. Op. No. JC-0407 (2001) at 9. However, the Act may apply to committee meetings of less than a quorum if the committee supervises or controls business of the governmental body or makes recommendations that are merely rubber-stamped by the governmental body. Id.