Does the Texas Open Meetings Act apply to a legislative advisory commission?

Plain-English summary

Representative Jim Murphy, who chaired the Partnership Advisory Commission, asked the Attorney General whether that commission is subject to the Texas Open Meetings Act. The commission was established under chapter 2268 of the Government Code as an advisory commission in the legislative branch that advises responsible state governmental entities on public-private partnership proposals received under chapter 2267. When a state entity receives a qualifying proposal, it must send copies to the commission and to the House Appropriations and Senate Finance committees, and the commission may accept or decline to review it. If it reviews a proposal, the commission provides findings and recommendations: whether the proposal creates state tax-supported debt, an analysis of the financial impact, a review of policy aspects, and proposed general business terms. As the chair stated and the opinion agreed, the commission acts in an advisory capacity only; a submitting entity is not bound by its findings, and the commission cannot approve, disapprove, or condition a project.

The Open Meetings Act applies to a meeting of a governmental body that deliberates or acts on public business or policy over which the body "has supervision or control." Texas courts have read that to mean an advisory body without authority to control or supervise public business generally does not hold "meetings" subject to the Act. The opinion cited decisions holding that a body whose sole purpose is to make recommendations to other governmental bodies, and a city grievance committee that could only recommend, were not subject to the Act. Because chapter 2268 makes the commission an advisory body with the duty to make findings and recommendations and does not give it ultimate control over public business or policy, the opinion concluded that, given the limited scope of its defined duties, the commission is generally not the kind of entity courts would deem subject to the Act.

The opinion then drew an important limit on its own answer. Under Texas case law, a body labeled "advisory" can still be subject to the Act if its recommendations about public business or policy are routinely "rubberstamped" by the governing body that receives them. Whether the commission's recommendations are in fact routinely rubberstamped is a fact question, and the Attorney General expressly declined to resolve it, citing a prior opinion that whether conduct is a meeting under the Act sometimes turns on questions of fact the opinion process cannot definitively decide. So the opinion concluded that the commission's statutorily defined duties do not make it subject to the Act, while whether in practice it exercises the kind of policymaking power that would render it subject to the Act was a question it could not address.

Currency note

This opinion was issued in 2013. 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 Partnership Advisory Commission and similar advisory bodies (as the opinion described it): The opinion told the commission that, based on its statutorily defined advisory duties alone, it is generally not subject to the Open Meetings Act, because it makes findings and recommendations rather than supervising or controlling public business.

State agencies submitting public-private partnership proposals (as the opinion described it): The opinion reaffirmed that a submitting entity is not bound by the commission's findings and that the commission cannot approve, disapprove, or condition a project; the submitting entity decides whether to proceed.

Anyone asking whether the commission must meet in the open in practice (as the opinion described it): The opinion expressly declined to decide this. Whether the commission's recommendations are routinely rubberstamped, which could subject it to the Act, was treated as a fact question outside what an attorney general opinion can resolve.

Common questions

Is an advisory commission covered by the Texas Open Meetings Act?
The opinion explained that an advisory body without authority to control or supervise public business generally does not hold meetings subject to the Act. It concluded the Partnership Advisory Commission's defined duties, making findings and recommendations, do not make it subject to the Act.

What makes a body subject to the Open Meetings Act?
Under the Act as described in the opinion, it applies to meetings of a governmental body deliberating or acting on public business or policy "over which the governmental body has supervision or control." Bodies that can only recommend generally fall outside that definition.

Could the commission still be subject to the Act in some situations?
Yes. The opinion noted that an "advisory" body may be deemed subject to the Act when its recommendations are routinely rubberstamped by the receiving governing body. Whether that happens here was a fact question the opinion did not resolve.

Why didn't the AG just decide whether the commission has to follow the Act?
The opinion answered the legal question about the commission's defined duties, but said whether it effectively exercises policymaking power in practice depends on facts (such as rubberstamping) that an attorney general opinion cannot definitively determine.

Background and statutory framework

The opinion construed chapter 2268 of the Government Code, which created the Partnership Advisory Commission as an advisory commission in the legislative branch (section 2268.051) to advise the governmental entities described in section 2267.001(5)(A) on proposals under chapter 2267 (sections 2267.001-.066, authorizing public-private agreements to develop or operate qualifying projects). It described the submission process (section 2268.058(a)), the commission's discretion to accept or decline review (section 2268.058(d)), and the required findings and recommendations (section 2268.058(g)). The opinion noted that the 2011 Legislature enacted two chapters both numbered 2267: Senate Bill 1048 added chapter 2267 ("Public and Private Facilities and Infrastructure") and chapter 2268, while House Bill 628 added a different chapter 2267 ("Contracting and Delivery Procedures for Construction Projects"); section 2268.051 refers to the chapter 2267 added by Senate Bill 1048.

For the Open Meetings Act analysis, the opinion relied on the Act's definition of a covered meeting (section 551.001(4)(A), (B)(iv)) and on case law construing "governmental body": Willmann v. City of San Antonio (the definition comprehends an entity with power to supervise or control public business, and recognizing the rubberstamp exception), Beasley v. Molett (a body whose sole purpose is to recommend does not hold meetings subject to the Act), and City of Austin v. Evans (a city grievance committee that could only recommend was not subject to the Act). It cited a prior opinion, GA-0957 (2012), for the point that whether conduct is a meeting under the Act can turn on unresolvable fact questions.

Citations

Cases:

• Willmann v. City of San Antonio, 123 S.W.3d 469, 479 (Tex. App.-San Antonio 2003, pet. denied)
• Beasley v. Molett, 95 S.W.3d 590, 606-07 (Tex. App.-Beaumont 2002, pet. denied)
• City of Austin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.-Austin 1990, no writ)

Statutes:

• Tex. Gov't Code Ann. § 2268.051 (West Supp. 2012); § 2267.001(5)(A); §§ 2267.001-.066; § 2268.058(a); § 2268.058(d); § 2268.058(g); § 2268.001-.059 (West Supp. 2012)
• Tex. Gov't Code Ann. § 551.001(4)(A), (B)(iv) (West 2012)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0957 (2012)
• Act of May 27, 2011, 82d Leg., R.S., ch. 1334, § 1, secs. 2267.001-.066, 2011 Tex. Gen. Laws 3859, 3859-72 (Senate Bill 1048)
• Act of May 29, 2011, 82d Leg., R.S., ch. 1129, § 2.08, secs. 2267.001-.452, 2011 Tex. Gen. Laws 2900, 2904-20 (House Bill 628)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0999
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0999.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

April 15, 2013

The Honorable Jim Murphy Opinion No. GA-0999
Chair, Partnership Advisory Commission
Texas House of Representatives Re: Whether the Partnership Advisory
Post Office Box 2910 Commission is subject to the requirements of
Austin, Texas 78768-2910 the Texas Open Meetings Act (RQ-1093-GA)

Dear Representative Murphy:

You ask whether the Partnership Advisory Commission (the "Commission") is subject to the requirements of the Texas Open Meetings Act (the "Act").[1]

The Commission is established under chapter 2268 of the Government Code as "an advisory commission in the legislative branch that advises responsible governmental entities described by Section 2267.001(5)(A) on proposals received under Chapter 2267." TEX. GOV'T CODE ANN. § 2268.051 (West Supp. 2012).[2] The governmental entities described in section 2267.001(5)(A) are "a board, commission, department, or other agency of this state," and certain institutions of higher education. Id. § 2267.001(5)(A). Chapter 2267 authorizes agreements between public and private entities to develop or operate projects that qualify under that chapter. Id. §§ 2267.001-.066.

A state governmental entity that receives a proposal subject to chapter 2268 must submit copies of the proposal to the Commission and to the House Appropriations Committee and Senate Finance Committee. Id. § 2268.058(a). The Commission may decide whether to accept or decline to review the proposal. Id. § 2268.058(d). When it accepts a proposal for review, the Commission must "provide findings and recommendations to the responsible governmental entity" including:

(1) a determination on whether the terms of the proposal and proposed qualifying project create state tax-supported debt, taking into consideration the specific findings of the comptroller with respect to the recommendation;

(2) an analysis of the potential financial impact of the qualifying project;

(3) a review of the policy aspects of the detailed proposal and the qualifying project; and

(4) proposed general business terms.

Id. § 2268.058(g). You state your understanding of the Commission's authority under chapter 2268:

[A] submitting governmental entity is not bound by any finding or recommendation of the commission. The commission has no actual or implied authority to approve or disapprove a proposed project or to place any condition on the approval of a proposed project. Each submitting entity is ultimately responsible for independently deciding whether to proceed with a proposed project. The [C]ommission acts in an advisory capacity only.

Request Letter at 1. Your understanding of the Commission's authority is consistent with the plain language of chapter 2268. See TEX. GOV'T CODE ANN. § 2268.001-.059 (West Supp. 2012).

The Act applies to a meeting of a governmental body that includes deliberations, other exchanges of information, or formal action concerning "public business or public policy over which the governmental body has supervision or control." Id. § 551.001(4)(A), (B)(iv) (West 2012); see also Willmann v. City of San Antonio, 123 S.W.3d 469, 479 (Tex. App.-San Antonio 2003, pet. denied) (stating that "the definition of a governmental body [under the Act] generally comprehends an entity with the power to supervise or control public business"). Therefore, courts have determined that an advisory body that does not have the authority to control or supervise public business or policy generally does not hold "meetings" that are subject to the Act. See Beasley v. Molett, 95 S.W.3d 590, 606-07 (Tex. App.-Beaumont 2002, pet. denied) (holding that a statutorily created governmental body whose purpose is solely to make recommendations to other governmental bodies does not hold meetings subject to the Act); City of Austin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.-Austin 1990, no writ) (determining that a city grievance committee was not subject to the Act because the committee could only make recommendations). Chapter 2268 creates the Commission as an advisory body with the duty to make certain findings and recommendations and does not vest the Commission with ultimate control over public business or policy. Thus, given the limited scope of its statutorily defined duties, the Partnership Advisory Commission is generally not the kind of entity that courts would deem subject to the Texas Open Meetings Act.

Nevertheless, under particular facts, a body designated as "advisory" may be deemed subject to the Act when the body's recommendations about public business or policy are routinely "rubberstamped" by a governing body receiving the recommendations. Willmann, 123 S.W.3d at 479-80. Whether the Commission's recommendations are routinely rubberstamped by the entities receiving them is a fact question that cannot be resolved in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0957 (2012) at 1 (noting that "whether conduct is a meeting under the Act will sometimes involve questions of fact that we cannot definitively resolve through the opinion process"). Thus, while we conclude that the Commission's statutorily defined duties do not make it subject to the Act, whether in practice the Commission effectively exercises the kind of policymaking power that renders it subject to the Act is not a question we can address here.

SUMMARY

While the Partnership Advisory Commission's statutorily defined duties do not make it subject to the Open Meetings Act, whether in practice the Commission effectively exercises the kind of policymaking power that renders it subject to the Act is not a question that can be addressed in an attorney general opinion.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] Letter and Brief from Honorable Jim Murphy, Chair, P'ship Advisory Comm'n, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 18, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] In 2011, the Legislature added two chapters to the Government Code that are both identified as "chapter 2267." Senate Bill 1048 added chapter 2267, entitled "Public and Private Facilities and Infrastructure," and chapter 2268, establishing the Commission. See Act of May 27, 2011, 82d Leg., R.S., ch. 1334, § 1, secs. 2267.001-.066, 2011 Tex. Gen. Laws 3859, 3859-72. House Bill 628 added another chapter 2267, "Contracting and Delivery Procedures for Construction Projects." See Act of May 29, 2011, 82d Leg., R.S., ch. 1129, § 2.08, secs. 2267.001-.452, 2011 Tex. Gen. Laws 2900, 2904-20. Section 2268.051 of the Government Code refers to the chapter 2267 that was added by Senate Bill 1048.