Does a Texas state board have to follow the Open Meetings Act when its members attend a legislative hearing?

Plain-English summary

The Public Safety Commission, the three-member board that runs the Texas Department of Public Safety, regularly sat in on legislative committee hearings that touched its work. Legislators would recognize the commissioners in the room and sometimes ask them questions about Department business. The Department's director asked the Attorney General a practical question: when a quorum of the board shows up at one of these hearings, does the board itself have to post public notice under the Open Meetings Act, and keep minutes?

The Attorney General concluded yes, with a condition. The Act defines a "meeting" as a deliberation between a quorum of a governmental body and another person about public business the body controls. So if a quorum of the board attends a legislative hearing and one or more members joins a discussion of matters within the board's jurisdiction, that attendance is a meeting of the board. The board must post notice and keep minutes or a recording, just as if it had convened on its own. This followed two earlier 2000 opinions (JC-0203 and JC-0248) reaching the same result for standing committees and Sunset Advisory Commission hearings.

The harder part was notice. Agencies with statewide jurisdiction normally must post seven days ahead, but legislative committees can give much shorter notice, so a board summoned to appear may find it impossible to comply. The opinion offered two paths. If the agency is summoned unexpectedly on short notice, that can qualify as a "reasonably unforeseeable situation" allowing an emergency meeting with as little as two hours' notice. If the board is attending voluntarily, there is no emergency; instead the agency should pick a range of dates at least seven days out, post notice for a meeting on the first of them, and continue that meeting from day to day, without reposting, until the committee reaches the issue the board cares about. The opinion called its own solution "inelegant" and said the Legislature is the proper body to reconcile the tension between its need for agency testimony and the agencies' duty to give notice.

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

State agency boards and commissions (what the opinion held for them): The opinion held that a quorum's attendance at a legislative committee hearing is a meeting of the board whenever a member participates in discussing matters within the board's jurisdiction, triggering the Act's notice and minutes requirements. Mere silent attendance by a quorum, with no member joining the discussion, was not treated as a meeting.

Agency staff handling notice and records (what the opinion held for them): The opinion held that the board must post notice and keep minutes or a tape recording (§ 551.021) of such a meeting. For the timing problem, it held that an unexpected short-notice summons could support emergency notice (two hours), while voluntary attendance required advance posting plus a day-to-day continuance.

The Legislature (what the opinion held for it): The opinion held that it had resolved the question "within the bounds of the laws as enacted" but called the fit awkward, and stated the Legislature is the proper body to reconcile its need for agency information with the agencies' notice duty.

Common questions

If a few state board members happen to sit in on a legislative hearing, does that trigger the Open Meetings Act?
Under this opinion, it depends on whether a quorum is present and whether a member takes part in the discussion. A quorum that attends and joins a discussion of matters within the board's jurisdiction creates a meeting subject to the Act. A quorum that simply observes without participating was not treated as a meeting.

Why is just attending a hearing treated as the board's own meeting?
Because the Act defines a "meeting" to include a deliberation between a quorum of the body and another person about public business the body supervises. The opinion read questions and answers exchanged with legislators as that kind of verbal exchange, relying on the Bexar Medina Atascosa water-district case.

How can a board post seven days of notice when the committee gives only a day or two?
The opinion gave two answers. An unexpected summons on short notice can count as a reasonably unforeseeable situation, allowing an emergency meeting with two hours' notice. If the board is going voluntarily, it should post in advance for a meeting on the first of a range of dates and then continue the meeting day to day until the committee reaches the relevant issue.

Did the board also have to keep minutes of a legislative hearing it attended?
Yes. Because the attendance counted as a meeting, the opinion held the board had to prepare and keep minutes or make a tape recording under section 551.021.

Background and statutory framework

The Open Meetings Act is chapter 551 of the Government Code. Under § 551.001(4)(A), a "meeting" includes a deliberation between a quorum of a governmental body and another person during which public business or policy over which the body has supervision or control is discussed. The companion definition in § 551.001(2) treats a "deliberation" as a verbal exchange during a meeting concerning an issue within the body's jurisdiction or any public business. The opinion read those definitions together to mean that a quorum exchanging questions and answers with legislators about agency matters is deliberating, and the hearing becomes a meeting of the board. It cited Bexar Medina Atascosa Water District v. Bexar Medina Atascosa Landowners' Association, where a board's question-and-answer session with landowners was a meeting even though board members did not talk among themselves.

The opinion built on Attorney General Opinion JC-0248 (2000), which held that a quorum attending and testifying before the Sunset Advisory Commission caused the agency to have held a meeting, and on JC-0203 (2000), which reached the same conclusion for a standing committee of the Harris County Hospital District attending another entity's engagement.

On notice, section 551.044(a) requires statewide agencies to post at least seven days ahead, while section 551.046 leaves notice of a legislative committee meeting to the rules of the House or Senate, which are generally shorter. Section 551.045 allows an emergency meeting on two hours' notice for an imminent threat to public health and safety or a reasonably unforeseeable situation, with the nature of the emergency clearly identified. The opinion quoted River Road Neighborhood Association v. South Texas Sports on what counts as an emergency (a sudden, unexpected occasion for action not caused by the body's own neglect) and cited Rivera v. City of Laredo, along with prior opinions DM-482 (1998) and JC-0285 (2000), for the day-to-day continuance device. Section 551.021(a) requires a governmental body to prepare and keep minutes or a tape recording of each open meeting.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 551.001(2), (4)(A) (Vernon 1994)
• Tex. Gov't Code Ann. § 551.021(a) (Vernon 1994)
• Tex. Gov't Code Ann. § 551.044(a) (Vernon Supp. 2000)
• Tex. Gov't Code Ann. §§ 551.045, 551.046 (Vernon 1994)

Cases:

• Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459 (Tex. App.—San Antonio 1999, pet. denied)
• River Road Neighborhood Association v. South Texas Sports, 720 S.W.2d 551 (Tex. App.—San Antonio 1986, writ dism'd w.o.j.)
• Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.—San Antonio 1997, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0308
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0308.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

November 20, 2000

Mr. Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-0001

Opinion No. JC-0308

Re: Whether attendance at a legislative hearing by a quorum of members of a state governmental body is subject to the Open Meetings Act (RQ-0243-JC)

Dear Mr. Davis:

You have requested our opinion as to whether attendance by a quorum of members of the board of a state governmental body at a legislative hearing is subject to the Open Meetings Act ("Act"), chapter 551, Government Code. For the reasons set forth below, we conclude that such attendance constitutes a public meeting of the board under the Act, if one or more members participates in a discussion of matters within the board's jurisdiction.

You explain that the Public Safety Commission ("Commission"), composed of three members, frequently attends the hearings of certain legislative committees that "concern matters within the purview of the Commission's duties and powers."[1] You note that legislators often "recognize the presence of the commissioners, encourage statements or comments, or make inquiries of them regarding Department business." Request Letter, note 1, at 1. You ask whether the Commission must itself post notice of these hearings when a quorum of its members attends. See id. at 2.

The Act defines "meeting," inter alia, as:

a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, 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.

TEX. GOV'T CODE ANN. § 551.001(4)(A) (Vernon 1994). A "deliberation" is "a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2). Thus, in the circumstances you describe, if a quorum of members of the Commission engages in a verbal exchange with legislators or members of their staff, those remarks constitute a deliberation. See id.; see also Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 461-62 (Tex. App.—San Antonio 1999, pet. denied) (verbal exchange at informational gathering of water district board with landowners where one board member asked questions and another board member answered questions was a "'meeting' for purposes of the Open Meetings Act," even though board members did not discuss business among themselves). If the deliberation relates to "public business or public policy over which the [Commission] has supervision or control," the legislative hearing becomes a "meeting" of the Commission. TEX. GOV'T CODE ANN. § 551.001(4)(A) (Vernon 1994).

In Attorney General Opinion JC-0248, we said that when a quorum of the members of a governing body of a state agency attends a public hearing held by the Sunset Advisory Commission, and one or more of the members of the governing body testifies, answers questions, or in any other manner furnishes information to the Sunset Advisory Commission, the agency itself is deemed to have held a meeting under the Act, and is, as a result, required to post the requisite notice in accordance with the Act's provisions. See Tex. Att'y Gen. Op. No. JC-0248 (2000) at 2. Attorney General Opinion JC-0248 relied in large part on an earlier opinion, Attorney General Opinion JC-0203, which held that "[w]hen a quorum of members of a standing committee of the Harris County Hospital District attends a speaking engagement or meeting conducted by another entity and a member participates in a discussion of matters of public business or public policy within the committee's supervision, the committee will be subject to the Open Meetings Act." Tex. Att'y Gen. Op. No. JC-0203 (2000) at 5. The circumstance you describe is entirely analogous to those addressed in Attorney General Opinions JC-0203 and JC-0248. As a result, when a quorum of the members of a board of a state agency attends a legislative committee hearing, the board is itself subject to the provisions of the Act if one or more members of the board participates in a discussion on matters within the board's jurisdiction.

Unlike the situation in each of those prior opinions, however, the matter of notice in the present instance is more problematic. Agencies with statewide jurisdiction are required to post notice of their meetings "for at least seven days before the day of the meeting." TEX. GOV'T CODE ANN. § 551.044(a) (Vernon Supp. 2000). Presumably, an agency with statewide jurisdiction is able to furnish more than seven days notice to the state agencies that it summons to appear before it. See id. The legislature, on the other hand, is not compelled to do so. Section 551.046 provides that "[t]he notice of a legislative committee meeting shall be as provided by the rules of the house of representatives or of the senate." Id. § 551.046 (Vernon 1994). As you indicate, "legislative posting time requirements are generally shorter than the seven-day posting required for state agencies." Request Letter, supra note 1, at 2. A state agency that appears before a legislative committee may thus find it impossible to comply with the posting requirements of the Act.

Section 551.045 permits a governmental body to hold an "emergency" meeting under certain circumstances. See TEX. GOV'T CODE ANN. § 551.045 (Vernon 1994). In such an instance, notice is sufficient if it is posted for at least two hours before the meeting begins. See id. § 551.045(a). But the requirements for an emergency meeting are quite strict. Such a meeting may be held only when "immediate action is required of a governmental body" in response to either "(1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation." Id. § 551.045(b). The nature of the emergency must be clearly identified in the notice. See id. § 551.045(c). As the court said in River Road Neighborhood Association v. South Texas Sports, 720 S.W.2d 551, 557 (Tex. App.—San Antonio 1986, writ dism'd w.o.j.):

[T]he term generally refers to an unforeseen combination of circumstances that calls for immediate action; a sudden or unexpected occasion for action. The mere necessity for quick action does not constitute an emergency where the situation calling for such action is one which reasonably should have been anticipated. The Texas Supreme Court has said that an emergency is a condition arising suddenly and unexpectedly, not caused by any neglect or omission of the person in question, which calls for immediate action.

Id. (citations omitted).

In our opinion, an emergency based on a reasonably unforeseeable situation may arise when a state agency is unexpectedly summoned with less than seven days notice to appear before a legislative committee. The circumstances arise suddenly, are not caused by any neglect or omission of the agency and call for immediate action. When a quorum of the board of a state agency appears voluntarily before a legislative committee, however, we do not believe that immediate action can reasonably be said to be required. In such case, the agency has two options available. It may determine that a quorum of the board should not attend the hearing. In the alternative, it may endeavor to determine, at least seven days in advance of any potential hearing, a range of dates during which the committee may consider matters relevant to the concerns of the agency. Then it may post notice announcing a meeting of the agency's board on the first of those dates. The meeting may then be continued from day to day, without the need for reposting notice, until the legislative committee reaches the issue of interest to the agency. See Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App.—San Antonio 1997, writ denied); Tex. Att'y Gen. Op. No. DM-482 (1998); see also Tex. Att'y Gen. Op. No. JC-0285 (2000).

You also ask whether, when a quorum of the board of a state agency attends a legislative hearing, "minutes must be kept in accordance with section 551.021 of the Act." Request Letter, supra note 1, at 2. Section 551.021 requires that "[a] governmental body shall prepare and keep minutes or make a tape recording of each open meeting of the body." TEX. GOV'T CODE ANN. § 551.021(a) (Vernon 1994). Because, as we have concluded, the attendance of a quorum of members of the board of a state agency at a legislative committee hearing itself constitutes a meeting for purposes of the Act, it follows that the board is required to prepare and keep minutes or make a tape recording of that meeting in accordance with section 551.021.

We are aware that the solution offered to the problem you pose is an inelegant one. We are mindful of the difficulties involved in reconciling the legislature's need to receive information from state agencies with the agencies' duty to provide notice under the Act, and we have addressed this issue within the bounds of the laws as enacted by the legislature. The legislature is the proper body to resolve these matters as it deems appropriate.

SUMMARY

Attendance by a quorum of the members of the board of a state governmental body at a legislative hearing is subject to the Open Meetings Act if one or more members participates in a discussion of matters within the board's jurisdiction. If the board is summoned with less than seven days notice by the legislative committee, it may invoke the emergency notice provisions of the Act.

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] Letter from Mr. Thomas A. Davis, Jr., Director, Texas Department of Public Safety, to Honorable John Cornyn, Texas Attorney General at 1 (June 6, 2000) (on file with Opinion Committee) [hereinafter Request Letter].