Does a public board's committee meeting become an open meeting if a quorum of the full board shows up?

Plain-English summary

The Edwards Aquifer Authority's board has seventeen directors, fifteen of whom vote, and eight directors make a quorum. The board runs eight standing committees that each include fewer than eight voting members and only make recommendations, so the committees on their own are not open-meetings bodies. A state senator asked what happens when extra board members, who are not on the committee, drop in on a committee meeting to hear the staff presentation and the public comment, and their attendance pushes the number of voting directors in the room to a quorum of the full board.

The Attorney General concluded that the committee meeting then becomes subject to the Open Meetings Act. The opinion ran the situation through both halves of the statute's definition of "meeting." Under the first half, a quorum plus any verbal exchange about board business by a committee member with anyone counts as a meeting, and the visiting members do not have to say a word; their presence creating the quorum is enough. Under the second half, added in 1999 to stop boards from evading the Act through "staff briefings," a quorum gathering called by or held for a governmental body to receive information from a third person is itself a meeting, even with no deliberation among members. The opinion held the gathering was one the board was responsible for and had called, because the committees are creatures of the board, and warned that treating a committee as a separate convener would let a board recreate the very staff-briefing loophole the Legislature closed. So once a board quorum is present and information is exchanged with staff or the public, the committee meeting is an open meeting regardless of whether anyone deliberates.

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

The Edwards Aquifer Authority and its board (what the opinion held for them): The opinion held that the board could not treat a committee meeting as exempt from the Open Meetings Act once enough non-committee board members attended to create a quorum of the full board and the board received or exchanged information with staff or the public. At that point the committee meeting was an open meeting.

Other governmental bodies that use committees (what the opinion held for them): The opinion held that a committee is a creature of the parent board, so a gathering the parent board is responsible for and effectively called falls within the Act, and a board cannot escape the Act by routing staff briefings through a committee.

Board members who like to drop in on committees (what the opinion held for them): The opinion held that a board member who merely attends a committee meeting, without speaking, still counts toward the quorum that triggers the Act. Attendance alone can convert the gathering into a meeting subject to open-meetings requirements.

Common questions

If board members just sit in on a committee meeting, is that an open meeting?
Under this opinion, it can be. Once enough voting board members are present to form a quorum of the full board and the board receives information from staff or the public, the committee meeting is subject to the Open Meetings Act, even if the visitors never speak.

Do the visiting members have to participate for the Act to apply?
No. The opinion held that their mere presence, which creates the quorum, is enough, as long as a voting committee member takes part in a verbal exchange about board business, or, under the second definition, the quorum simply receives information from a third person.

Why does it matter who "called" the meeting?
Because the 1999 definition of "meeting" applies to a gathering called by or held for the governmental body. The opinion concluded the board, not just the committee, was responsible for and effectively called the gathering, so the board could not use the committee as a shield.

What was the 1999 change meant to stop?
The opinion explained the second definition was added in part to eliminate the perceived abuse of "staff briefings," where members gathered to be briefed by staff without calling it a meeting.

Background and statutory framework

The Open Meetings Act, chapter 551 of the Government Code, defines "meeting" in section 551.001(4) two ways. The first, section 551.001(4)(A), covers a deliberation between a quorum of a governmental body (or a quorum and another person) about public business the body controls. The second, section 551.001(4)(B), covers a gathering conducted by or for the body and called by the body, at which a quorum is present and members receive information from, give information to, or exchange questions with any third person, including staff, about public business the body controls; it excludes a quorum gathered at a social function. "Deliberation" is separately defined in section 551.001(2) as a verbal exchange during a meeting between a quorum (or a quorum and another person) about an issue within the body's jurisdiction.

The opinion treated the committees as not independently subject to the Act, citing Attorney General Opinion JC-0060 and Water Code section 36.064(b). It relied on Attorney General Opinion JC-0203 and Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n for the point that deliberations can occur at an informational gathering where one board member asks and another answers, even without members discussing business among themselves. For the staff-briefing concern, it cited the House Committee on State Affairs bill analysis of H.B. 156, 76th Legislature. The Authority's board structure came from the 1993 enabling act as amended in 1995.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 551.001(2), (4) (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 551.001(4)(A), (4)(B)(i), (iii), (iv)
• Tex. Water Code Ann. § 36.064(b) (Vernon 1999)

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)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0060 (1999)
• Tex. Att'y Gen. Op. No. JC-0203 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0313
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0313.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 30, 2000

The Honorable Jeff Wentworth
Chair, Committee on Nominations
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0313

Re: Whether a component committee of the Edwards Aquifer Authority is subject to the Open Meetings Act when a majority of the members of the Authority's Board attends a meeting of the committee (RQ-0262-JC)

Dear Senator Wentworth:

You have requested our opinion as to whether a component committee of the Edwards Aquifer Authority (the "Authority") is subject to the Open Meetings Act, chapter 551 of the Government Code, when a majority of the voting members of the Authority's Board is present at a meeting of the committee. For the reasons indicated below, we conclude that it is, under such circumstances, subject to the Act.

The Board of the Edwards Aquifer Authority ("the Board") is composed of seventeen directors, fifteen of whom are elected officials entitled to vote on matters before the Board. See Act of May 29, 1995, 74th Leg., R.S., ch. 261, § 1, 1995 Tex. Gen. Laws 2505, 2506 (amending Act of May 30, 1993, 73d Leg., R.S., ch. 626, § 1.09, 1993 Tex. Gen. Laws 2350, 2356). The remaining two directors are appointed officials who serve as nonvoting members. See id. A quorum is constituted by eight members who are entitled to vote. See id.

You explain that the Authority has eight standing committees, composed of both voting and nonvoting members, whose function is to make recommendations to the full Board.[1] "[E]ach committee is organized to include less than eight voting members." Request Letter, note 1, at 2. You assert that, "[a]lthough the Edwards Aquifer Authority is subject to the Texas Open Meetings Act, the committee meetings of the Board are not required to be open meetings as long as a quorum of the Board is not present. The practice of the Edwards Aquifer Authority is not to appoint a quorum of the voting members of the Board to a committee." Id. We assume, for purposes of this opinion, that on the basis of both their composition and their function, these committees are not themselves subject to the Open Meetings Act. See Tex. Att'y Gen. Op. No. JC-0060 (1999) at 5; see also TEX. WATER CODE ANN. § 36.064(b) (Vernon 1999).

You indicate that "[i]n some instances, one or more members of the Board who are not members of a committee may attend a committee meeting in order to receive the benefit of the staff's presentation of an issue, the discussion between committee members and staff, and the comments of the public attending the meeting. This may lead to the presence of a quorum of the voting members of the Board at a particular committee meeting." Request Letter, supra note 1, at 2. You ask whether this resulting presence of a quorum brings the committee's meeting within the ambit of the Open Meetings Act.

The Open Meetings Act defines "meeting," in relevant part, as follows:

(A) 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; 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. The term does not include the gathering of a quorum of a governmental body at a social function.

TEX. GOV'T CODE ANN. § 551.001(4) (Vernon Supp. 2000). "Deliberation" is defined as "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).

Under the first definition of "meeting," the situation you describe constitutes a "meeting" when a quorum is present and when one or more members of the Board, including committee members, engages in a deliberation with any other member of the Board or committee or with any other person about public business or policy over which the Board has supervision or control. See id. § 551.001(4)(A). Note that the visiting members of the Board do not have to participate in the deliberation for the statute to apply. Their mere presence, which results in a quorum, is sufficient to bring the meeting within the Open Meetings 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. See Tex. Att'y Gen. Op. No. JC-0203 (2000) at 3 (citing Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 462 (Tex. App.-San Antonio 1999, pet. denied) ("deliberations took place at informational gathering of water district board with landowners, where one board member asked question and another board member answered questions, even though board members did not discuss business among themselves").

The second definition of "meeting" is in some respects broader than the first because it does not require any sort of deliberation between Board members. It thus may apply to a situation in which the meeting's only purpose is for members of the Board to "receive information from" a "third person," including staff. TEX. GOV'T CODE ANN. § 551.001(4)(B)(iv) (Vernon Supp. 2000). But this definition of "meeting" requires, inter alia, that the gathering be one "that is conducted by the governmental body or for which the governmental body is responsible," and that the gathering "has been called by the governmental body." Id. § 551.001(4)(B)(i), (iii). Because the Authority's Board appoints the component committees, we have no difficulty in concluding that such a gathering is one "for which the governmental body is responsible." See id. § 551.001(4)(B)(i).

We also conclude that the gathering of which you inquire "has been called by the governmental body," i.e., the Board of the Edwards Aquifer Authority. The second definition of "meeting" was enacted in 1999 in part to eliminate the perceived abuse of "staff briefings." See HOUSE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 156, 76th Leg., R.S. (1999). Were we to conclude that a committee of the Board rather than the Board itself was the agent responsible for the gathering in the circumstances you describe, a governmental body could re-establish the staff briefing exception merely by appointing a committee to summon members of the governmental body for such briefings. Furthermore, the gathering of which you inquire has in the larger sense been "called" by the Authority's Board. The committee is wholly a creature of the Board; it is not independently subject to the Open Meetings Act; and the presence of a quorum of the Board at one of its gatherings is the event that triggers the application of the Act.

We conclude that a component committee of the Board of the Edwards Aquifer Authority is subject to the Open Meetings Act under the following circumstances: the committee meeting is attended by additional voting members of the Authority's Board so that a quorum of the Board is present, and the members of the Board "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." See TEX. GOV'T CODE ANN. § 551.001(4)(B)(iv). Under these circumstances, the committee is subject to the Open Meetings Act regardless of whether the committee members or any attending Board members engage in a deliberation with one another or any third party.

SUMMARY

A component committee of the Board of the Edwards Aquifer Authority is subject to the Open Meetings Act when a majority of the voting members of the Authority's Board, including the committee members, is present at a meeting of the committee, and the Board 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 Edwards Aquifer Authority has authority, regardless of whether the committee members or any Board members engage in a deliberation as defined by Government Code section 551.001(2). TEX. GOV'T CODE ANN. § 551.001 (Vernon Supp. 2000).

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 Jeff Wentworth, Chair, Committee on Nominations, to Honorable John Cornyn, Texas Attorney General at 2 (July 20, 2000) (on file with Opinion Committee) [hereinafter Request Letter].