Can a Texas board continue a closed executive session to the next day under the Open Meetings Act?

Plain-English summary

A county attorney asked the Attorney General when a governmental body may continue a closed executive session of a meeting governed by the Open Meetings Act. The Aransas County Navigation District No. 1 board had opened a meeting on March 21, 2000, moved into executive session, and, unable to finish, returned to open session, announced it would recess the executive session until the next day, and adjourned the public portion. On March 22 the board met again in closed session, though it was unclear whether it first reconvened in open session.

The Attorney General concluded that a body may continue an executive session only until the following day, and must announce the continuation in open session on both days. The reasoning built on an earlier opinion (DM-482) holding that a meeting may be continued from day to day without reposting notice, but if continued to any day other than the one immediately following, notice must be reposted. That opinion drew on a court decision rejecting a two-day recess and on a 1977 opinion allowing day-to-day recesses made in good faith and not to evade the Act. Because an executive session is not a separate event but an integral part of a public meeting that may be held only after the body convenes in open session and the presiding officer announces the closed meeting and its statutory basis (section 551.101), the same day-to-day limit applies. So to resume on the second day, the body must first convene an open meeting and again follow section 551.101.

The opinion also addressed the requestor's worry that the meeting was "adjourned" on March 21 and "reconvened" on March 22. It explained that "adjourn" has no special meaning under the Act, that courts treat "recess" and "adjournment" as interchangeable in a related context, and that using the word "adjourn" carries no implication of intent to deceive as long as the chair makes clear the meeting will resume the next day. The opinion declined to decide whether the board actually violated the Act in three specific instances, because those questions required fact-finding outside the opinion process.

Currency note

This opinion was issued in 2000. 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

Governmental bodies (what the opinion held for them): The opinion held that a body may continue a closed executive session only to the following day, and that to resume it must reconvene in open session on the second day and again announce the closed session and its statutory basis under section 551.101. A continuance to a later date would require reposting notice.

The public and journalists (what the opinion held for them): The opinion confirmed that the open-session announcement requirement applies on both days of a continued executive session, so the public is told each time a body goes behind closed doors. It treated the word "adjourn" as carrying no deceptive significance when the chair states the meeting will resume the next day.

Common questions

Can a Texas board hold over a closed session to a later date in the week?
No. The opinion concluded an executive session may be continued only until the following day. Continuing it to any other day requires reposting notice for a new meeting.

Does the board have to come back into open session before resuming the closed session the next day?
Yes. The opinion concluded the body must first convene an open meeting on the second day and again announce the closed session and the section under which it is held, as section 551.101 requires.

Does it matter that the board "adjourned" rather than "recessed"?
No. The opinion concluded "adjourn" has no special meaning under the Act and signals no intent to deceive, as long as the chair makes clear the meeting will resume the next day.

Background and statutory framework

The Open Meetings Act (chapter 551 of the Government Code) requires a governmental body to convene in open session before entering a closed session, and section 551.101 requires the presiding officer to announce that a closed meeting will be held and to identify the section authorizing it. The opinion treated the executive session as part of, not separate from, the open meeting.

It applied DM-482 (1998), which held a meeting may be continued from day to day without reposting notice under section 551.041 but must be reposted if continued past the immediately following day. DM-482 rested on Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App.—San Antonio 1997, pet. denied), which found a two-day recess impermissible, and on H-1000 (1977), which allowed a day-to-day recess made in good faith and not as an evasion of the Act. Combining that day-to-day rule with the section 551.101 announcement requirement, the opinion concluded the body must reconvene in open session and re-announce the closed session on the second day. On the "adjourn" question, it cited Smith v. State, 907 S.W.2d 522, 526 n.3 (Tex. Crim. App. 1995) (en banc), treating "recess" and "adjournment" as undistinguished for purposes of article 20.08 of the Code of Criminal Procedure. It declined the three fact-specific violation questions (citing JC-0020 (1999), M-187 (1968), and O-2911 (1940)).

Citations

Statutory provisions:

• Tex. Gov't Code Ann. ch. 551, §§ 551.101 (Vernon 1994), 551.041
• Tex. Code Crim. Proc. art. 20.08

Cases and prior opinions:

• Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.—San Antonio 1997, pet. denied)
• Smith v. State, 907 S.W.2d 522 (Tex. Crim. App. 1995) (en banc)
• Tex. Att'y Gen. Op. Nos. DM-482 (1998), H-1000 (1977), JC-0020 (1999), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0285
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0285.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

September 19, 2000

The Honorable James L. Anderson, Jr.
Aransas County Attorney
301 North Live Oak Street
Rockport, Texas 78382

Opinion No. JC-0285

Re: Whether an executive session of a public meeting may be continued until the following day (RQ-0233-JC)

Dear Mr. Anderson:

You have requested our opinion as to the circumstances under which a governmental body may continue an executive session of a meeting subject to the Open Meetings Act. For the reasons set forth below, we conclude that it may continue the executive session only until the following day and must announce the continuation in open session on both days.

You indicate that the board of commissioners of the Aransas County Navigation District No. 1, pursuant to the notice requirements of the Open Meetings Act, chapter 551, Government Code, convened an open session on March 21, 2000.[1] During the course of that meeting, the commissioners moved into executive session in accordance with the statutory requirements of section 551.101. See Request Letter note 1, at 1; see also TEX. GOV'T CODE ANN. § 551.101 (Vernon 1994) (requiring governmental body to convene in open meeting before entering closed session). Unable to conclude the business of the closed session on March 21, the board then reconvened in open session and announced that the board would recess the executive session until the following day and that the public portion of the meeting was officially adjourned. See Request Letter, supra note 1, at 1-2. On March 22, the board convened in closed session to conclude that portion of the meeting. See id. at 2. It is unclear from the information furnished us whether the commissioners first met in open session on March 22. See id.

In Attorney General Opinion DM-482 (1998), this office concluded that a commissioners court was authorized to continue a meeting from day to day without re-posting notice under section 551.041 of the Open Meetings Act, but that if the meeting were continued to any day other than the one immediately following, the commissioners court was required to re-post notice. See Tex. Att'y Gen. Op. No. DM-482 (1998) at 2. The opinion relied both on the recent court decision in Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.—San Antonio 1997, pet. denied), and on a 1977 attorney general opinion. Rivera had held that a two-day recess in a public meeting was impermissible, while Attorney General Opinion H-1000 (1977), had sanctioned a recess "from day to day . . . so long as the action is in good faith and does not serve as an evasion of the Act." Tex. Att'y Gen. Op. No. H-1000 (1977) at 2. See Rivera, 948 S.W.2d at 793.

An executive session is not a separate event. It is rather an integral part of a public meeting and may not be held unless the governmental body first convenes in open session, and the presiding officer "announces that a closed meeting will be held" and "identifies the section or sections of [the Act] under which the closed meeting is held." TEX. GOV'T CODE ANN. § 551.101 (Vernon 1994). Thus, the result announced in Attorney General Opinion DM-482, that a meeting may be continued only from day to day, is equally applicable to executive sessions.

When we combine the principle of Attorney General Opinion DM-482 with the statutory requirements for holding an executive session, we may conclude that when a governmental body wishes to continue its executive session until the following day, it should return to open session and announce that fact. On the next day, it must first convene an open meeting and follow the directives of section 551.101 in order to resume the executive session.

You express concern that the meeting of the Aransas County Navigation District No. 1 was officially adjourned on March 21 and reconvened on March 22. See Request Letter, supra note 1, at 1-2. You indicate, however, that prior to that adjournment the board chairman had announced that the executive session would "recess" until the following day. Id. The term "adjourn" has no special significance under the Open Meetings Act. In the context you describe, it means "[t]o put off or defer . . . further proceedings to another day; to discontinue or dissolve it, in order to reconstitute it at another time or place." I OXFORD ENGLISH DICTIONARY 157 (2d ed. 1989). Indeed, the Texas Court of Criminal Appeals has held that, for purposes of article 20.08 of the Code of Criminal Procedure, which relates to grand jury proceedings, there is no distinction between "recess" and "adjournment." Smith v. State, 907 S.W.2d 522, 526 n.3 (Tex. Crim. App. 1995) (en banc). In our opinion, the mere use of the word "adjourn" in the context of your question carries no implication of intent to deceive, provided the chairman makes clear that the meeting will be resumed on the following day.

It is therefore our opinion that an executive session of a public meeting of a governmental body held in compliance with section 551.101 of the Government Code, which requires a quorum of the governmental body to announce the executive session after first convening in open session, may be continued until the following day, so long as, before convening the second-day executive session, the governmental body first meets in open session and complies with the requirements of section 551.101 of the Government Code. You also ask whether the board of the Aransas County Navigation District No. 1 violated the Open Meetings Act in three particular instances. Because those matters require factual inquiries, their resolution is not appropriate to an attorney general's opinion.[2]

SUMMARY

An executive session of a public meeting of a governmental body held in compliance with section 551.101 of the Government Code, which requires a quorum of the governmental body to announce the executive session after first convening in open session, may be continued until the following day, so long as, before convening the second-day executive session, the governmental body first meets in open session and complies with the requirements of section 551.101 of the Government Code.

Very truly yours,

JOHN 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

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] See Letter from Honorable James L. Anderson, Jr., Aransas County Attorney, to Honorable John Cornyn, Texas Attorney General (May 5, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make . . . factual determinations."); O-2911 (1940) at 2 ("[T]his presents a fact question which we are unable to answer.").