Can a Texas public board hold an official meeting outside the United States?

Plain-English summary

The chair of the University of Texas System Board of Regents wanted to hold a Board meeting in Mexico. The plan was to meet with representatives of a Mexican institution of higher education to discuss distance education, observe technology in use there, and explore cooperative educational efforts; a quorum of the Board would attend, and the chair thought holding the first such meeting in Mexico would signal the Board's interest in cross-border relationships. He asked the Attorney General whether the Board could do that. The answer was no.

The Texas Open Meetings Act (chapter 551 of the Government Code) requires that every meeting of a governmental body be open to the public, and the Board of Regents is a governmental body the Act covers. The Attorney General read the Act, as a prior opinion (JC-0053) had, to require that a meeting be physically accessible to the public. The opinion pointed to several features of the Act that only make sense if meetings are physically reachable: a body may go into closed session only after first meeting in open session; a videoconference meeting requires each location where a member is present to be open to the public; the right to record a meeting and the procedure for public inquiries both assume people are present. From that, the opinion concluded that holding a meeting anywhere outside the geographical boundaries of the United States would contravene the Act. It drew support from out-of-state authority reaching similar results about distant meeting sites, including a Kansas Attorney General opinion (a city commission meeting in the Colorado mountains) and a Florida appellate decision (a school board meeting more than 100 miles away). It also noted a practical enforcement problem: if the Board allegedly violated the Act while meeting abroad, it is unclear whether any Texas prosecutor would have jurisdiction, and any civil suit would be complicated by the foreign location.

The chair had proposed fixes: post and hold the meeting at a publicly accessible site, broadcast it by two-way videoconferencing to UT campuses across Texas, and add an Internet broadcast. The opinion rejected each. A meeting in Mexico is not physically accessible no matter how it is posted. The Legislature has allowed videoconference meetings only in narrow circumstances (a quorum, or for a state body a majority of the quorum, must be physically present at one location), and treating videoconferencing as a cure here would logically let any city council lock the public out of its meetings as long as it set up a video feed elsewhere, an expansion of the Act that is the Legislature's job to make, not the Attorney General's. An Internet broadcast under section 551.128 is only an additional way to disseminate a meeting, not a substitute for an accessible in-person one. The opinion closed by noting that nothing in the Act stops the Board from sending fewer than a quorum to Mexico to observe and confer.

Currency note

This opinion was issued in 2002. 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. The Open Meetings Act's videoconferencing and remote-meeting provisions (Government Code chapter 551) have been amended several times since 2002, so the specific section text described here reflects the law as it stood then.

What the opinion meant for those who asked

The UT System Board of Regents and its chair (what the opinion held for them): The opinion held that the Board could not hold a meeting of a quorum of its members in Mexico, and that the proposed videoconferencing and Internet-broadcast measures would not make such a meeting lawful. It also held that the Board could send fewer than a quorum to Mexico to observe and discuss cooperation, because that is not a "meeting" under the Act.

Other Texas governmental bodies (what the opinion held for them): The opinion read the Open Meetings Act to require physically accessible meeting locations and concluded that a Texas public body may not hold a public meeting outside the geographical boundaries of the United States, and that videoconferencing is a substitute for in-person meetings only in the narrow situations the Legislature specified.

The public and journalists (what the opinion held for them): The opinion reinforced that the Act exists to keep government meetings physically reachable by the people affected, and that a body cannot move a meeting somewhere inaccessible and offer a remote feed in place of in-person access.

Common questions

Can a Texas city council, school board, or university board meet in another country?
The opinion concluded a Texas public body may not hold a meeting of a quorum outside the geographical boundaries of the United States, because the Open Meetings Act requires meetings to be physically accessible to the public.

Does livestreaming or videoconferencing the meeting fix the problem?
The opinion said no. The Legislature allowed videoconference meetings only in limited circumstances (with a quorum, or a majority of the quorum for a state body, physically present at one location), and an Internet broadcast is just an extra way to share the meeting, not a substitute for an accessible in-person one.

Why does the location matter so much?
Because, in the opinion's reading, the whole Act assumes the public can show up: closed sessions require first meeting in open session, attendees have a right to record, and the public can make inquiries. A location people cannot realistically reach defeats those guarantees.

Could board members still travel to Mexico for this purpose?
Yes. The opinion noted that sending fewer than a quorum of members to observe technology and discuss cooperation is not a "meeting" under the Act, so that is not prohibited.

Background and statutory framework

The Open Meetings Act, chapter 551 of the Government Code, applies to every board, commission, department, committee, or agency in the executive or legislative branch of state government directed by elected or appointed members, Tex. Gov't Code Ann. § 551.001(3)(A) (Vernon Supp. 2002), and the Board of Regents is a "governmental body" within that definition. The Act "is intended to safeguard the public's interest in knowing the workings of its governmental bodies." Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 960 (Tex. 1986). Section 551.002 requires every meeting to be open to the public except as the Act otherwise provides. Tex. Gov't Code Ann. § 551.002 (Vernon 1994).

In Attorney General Opinion JC-0053, this office had read section 551.002 to require that a meeting be physically accessible to the public, based on provisions that contemplate physical access: a body may conduct a closed session only after first meeting in open session, Tex. Gov't Code Ann. §§ 551.071-.085, 551.101 (Vernon 1994 & Supp. 2002); a videoconference meeting requires each location where a member is present to be open to the public, id. § 551.127(e) (Vernon Supp. 2002); and the term "meeting" excludes a quorum's attendance at a convention or workshop only if no formal action is taken, id. § 551.001(4). Other provisions give an attendee the right to record and set a procedure for public inquiries. Id. §§ 551.023, 551.042 (Vernon 1994). JC-0053 had found it highly unlikely that a meeting in an underwriter's office in New York City, "half a continent's distance from the state," was accessible. The opinion also cited out-of-state authority: Kansas Attorney General Opinion 82-133 (a Lawrence City Commission meeting in the Colorado mountains), Kan. Att'y Gen. Op. No. 82-133, 1982 WL 187622, and Rhea v. School Board of Alachua County, 636 So. 2d 1383, 1384-85 (Fla. Dist. Ct. App. 1984, rev. denied) (a school board meeting more than 100 miles away), along with a 1996 Florida Attorney General opinion advising boards to avoid meeting in places not easily accessible.

On the proposed remote-meeting cures, the opinion explained the narrow statutory windows. A telephone conference meeting is allowed only in an emergency or public necessity, Tex. Gov't Code Ann. §§ 551.125(b)(1) (Vernon Supp. 2002), 551.045(b) (Vernon 1994), which the Board did not claim. Videoconference meetings require a quorum physically present at one location, Act of May 30, 1997, 75th Leg., R.S., ch. 1038, 1997 Tex. Gen. Laws 3896, and for a state governmental body (under a provision added by House Bill 35 in the 77th Legislature) at least a majority of the quorum present at one location, Tex. Gov't Code Ann. § 551.127(c) (Vernon Supp. 2002). The office had narrowly construed these technology provisions before. See Tex. Att'y Gen. Op. Nos. JC-0194 (2000); DM-478 (1998). An Internet broadcast under section 551.128 merely provides an additional means of disseminating a meeting and does not substitute for an in-person one. Tex. Gov't Code Ann. § 551.128 (Vernon Supp. 2002). The opinion concluded that the proposed measures would require broadening the Act, a task for the Legislature.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 551.001(3)(A) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 551.001(4) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 551.002 (Vernon 1994)
• Tex. Gov't Code Ann. §§ 551.071-.085 (Vernon 1994 & Supp. 2002)
• Tex. Gov't Code Ann. § 551.101 (Vernon 1994)
• Tex. Gov't Code Ann. § 551.023 (Vernon 1994)
• Tex. Gov't Code Ann. § 551.042 (Vernon 1994)
• Tex. Gov't Code Ann. § 551.125(b)(1) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 551.045(b) (Vernon 1994)
• Tex. Gov't Code Ann. § 551.127(c) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 551.127(e) (Vernon Supp. 2002)
• Tex. Gov't Code Ann. § 551.128 (Vernon Supp. 2002)
• Act of May 30, 1997, 75th Leg., R.S., ch. 1038, 1997 Tex. Gen. Laws 3896
• Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, art. 19, § 19.01(50), 1999 Tex. Gen. Laws 127

Cases:

• Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956 (Tex. 1986)
• Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. Dist. Ct. App. 1984, rev. denied)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0053 (1999)
• Tex. Att'y Gen. Op. No. JC-0194 (2000)
• Tex. Att'y Gen. Op. No. DM-478 (1998)
• Kan. Att'y Gen. Op. No. 82-133 (1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0487
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0487.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor errors may remain, and a few short mid-opinion passages marked [. . .] were not recoverable from the source extraction; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

March 27, 2002

Mr. Charles Miller
Chair, Board of Regents
University of Texas System
201 West Seventh Street
Austin, Texas 78701-2981

Opinion No. JC-0487

Re: Whether the Board of Regents of the University of Texas System may hold a public meeting in Mexico (RQ-0448-JC)

Dear Mr. Miller:

You have requested our opinion as to whether the Board of Regents of the University of Texas System [hereinafter "the Board"] may hold a public meeting in Mexico. For the reasons explained below, we conclude that it may not do so under current Texas law.

You indicate:

The Chairman of the Board of Regents of The University of Texas System would like to schedule a meeting in Mexico between representatives of an institution of higher education in Mexico and representatives of the Board of Regents. It is anticipated that a quorum of the Board of Regents will attend the meeting. The purpose of the meeting will be to discuss the best practices related to distance education; to observe firsthand the technology and newest methods being used at institutions in Mexico; and to consider methods to enhance ongoing cooperative educational efforts between institutions in the U.T. System and institutions of higher education in Mexico. Such cooperative efforts have the potential for expanding the educational experiences available in Texas and in Mexico. These purposes can be best achieved if the meeting is held at an appropriate place in Mexico so that the members of the Board of Regents may evidence the Board's desire to enhance cross-Border relationships by scheduling the first meeting of this type in Mexico.[1]

The Open Meetings Act, chapter 551 of the Government Code, (the "Act"), applies to meetings of every "board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members." TEX. GOV'T CODE ANN. § 551.001(3)(A) (Vernon Supp. 2002). The Board of Regents of the University of Texas System is a "governmental body" within this definition. "The Act is intended to safeguard the public's interest in knowing the workings of its governmental bodies." Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 960 (Tex. 1986). Section 551.002 of the Government Code provides that every meeting of a governmental body must be open to the public except as provided elsewhere in the Act. See TEX. GOV'T CODE ANN. § 551.002 (Vernon 1994). We first consider whether a meeting of a quorum of a governmental body may be held in a foreign country.

As this office recently concluded in Attorney General Opinion JC-0053, the Act presupposes that a meeting is physically accessible to the public. See Tex. Att'y Gen. Op. No. JC-0053 (1999). Indeed, we specifically concluded that section 551.002 of the Government Code, which provides that every meeting of a governmental body must be open to the public except as provided elsewhere in the Act, see TEX. GOV'T CODE ANN. § 551.002 (Vernon 1994), requires that a meeting must be physically accessible to the public. This construction of the statute was based on a number of provisions of the Act that clearly contemplate that meetings are and must be physically accessible to the public. For example, while a governmental body may conduct closed sessions regarding certain matters, see id. §§ 551.071-.085 (Vernon 1994 & Supp. 2002) (bases for executive sessions), it may do so only if the governmental body first meets in open session, see id. § 551.101 (Vernon 1994). The announcement that a governmental body will meet in executive session must be physically accessible to the public. Additionally, the provision authorizing a governmental body to conduct a meeting by videoconference call assumes that members of the public will have physical access to each location of the meeting where a member of the governmental body will be physically present. See id. § 551.127(e) (Vernon Supp. 2002) ("Each of the locations shall be open to the public during the open portions of the meeting."). Furthermore, section 551.001(4) of the Act, which provides that the term "meeting" does not include the attendance of a quorum of a governmental body at a regional, state or national convention or workshop "if formal action is not taken and any discussion of public business is incidental to the . . . convention[] or workshop," see id. § 551.001(4), allows members of a governmental body to participate in certain types of conventions or workshops held outside the governmental body's jurisdiction, but only if the members do not take final action or deliberate regarding public business. In other words, a governmental body may not hold a meeting at a location inaccessible to the public. All of these provisions assume or require that the public will have physical access to meetings under the Act, as do many other of the Act's provisions. See, e.g., id. §§ 551.023 (providing person in attendance with right to record meeting), .042 (procedure for handling inquiries from members of the public at meetings) (Vernon 1994). Thus, we must determine whether a meeting held in Mexico would be physically accessible to the public.

You do not indicate the location in Mexico where the proposed meeting would be held. In our opinion, however, the holding of a meeting at any location outside the geographical boundaries of the United States would contravene the Open Meetings Act. We have previously said that "section 551.002 requires that a meeting be physically accessible to the public. While a governmental body may conduct closed sessions regarding certain matters, it may do so only if the governmental body first meets in open session." Tex. Att'y Gen. Op. No. JC-0053 (1999) at 5 (citations omitted). In Attorney General Opinion JC-0053, we considered whether a pricing committee of the Texas Public Financing Authority Board of Directors was permitted to hold a meeting at the offices of an underwriter in New York City. In finding that the Open Meetings Act would preclude holding a meeting at such location, the Attorney General stated the following:

[A]lthough no provision of the Act mandates where meetings must be held or expressly prohibits a governmental body from holding a meeting at an inaccessible location, the Act's provisions assume that meetings will be held in locations accessible to the public. A meeting held in an inaccessible location would violate the Act. Whether a meeting location is accessible to the public for purposes of the Open Meetings Act is ultimately a question of fact . . . . Although this office is not a trier of fact and may not be able to resolve this fact-bound issue in other instances, we find it highly unlikely that a meeting of a Texas governmental body in an underwriter's office in New York City, half a continent's distance from the state, is accessible to the public for purposes of the Texas Open Meetings Act.

Id. at 6 (citations and footnote omitted).

Two of the opinions cited in Attorney General Opinion JC-0053 are relevant to the question you pose. In Kansas Attorney General Opinion 82-133, the issue was "whether . . . a meeting of the Lawrence City Commission in the Colorado mountains would be so inaccessible to the public as to not be 'open' to the public within the meaning of the [Kansas Open Meetings] Act." Kan. Att'y Gen. Op. No. 82-133, 1982 WL 187622, at *1. The Attorney General of Kansas said that:

[w]ithout question, it would be inconvenient and expensive for those wishing to attend the meetings of the Lawrence City Commission to be forced to travel hundreds of miles to the Colorado mountains to attend such meetings. Such expense and inconvenience is an effective bar to attendance by most, if not all, Lawrence residents, the only class of citizens of the "public" at large keenly interested in the business and affairs of the city commission.

Id. at *2.

In Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. Dist. Ct. App. 1984, rev. denied), the school board of Alachua County, Florida, sought to hold its meeting in Orlando, more than 100 miles from the board's headquarters. In holding that a meeting held at that location would violate the Florida version of the Open Meetings Act, the court said that, "[f]or a meeting to be 'public,' it is essential that the public be given advance notice and a reasonable opportunity to attend." Rhea, 636 So. 2d at 1384-85. "[T]he relevant 'public,' the community that would be affected by the Board's official actions, is Alachua County." Id. at 1385.

In 1996, the Attorney General of Florida considered whether a city's police pension board was authorized to hold a meeting in a facility to which the public had limited access. The Florida Attorney General declared:

This office has advised public boards or commissions to avoid holding meetings in places not easily accessible to the public. [P]ersons who wish to attend the pension board meeting may be reluctant to attend a meeting at a place not normally open to the public at which they must provide identification to enter and must leave such identification while in the building. In addition, before entering the meeting room, according to your letter, persons must obtain the permission of the receptionist before being allowed "to enter the inner offices where the conference room is located." Such conditions would appear to have a chilling effect on the public's willingness to attend.

[. . .]

[A Texas public body that] alleged to have violated that portion of the Open Meetings Act that regulates executive sessions, it is unclear whether any Texas-based prosecutor would have jurisdiction to bring criminal charges. In addition, any civil action brought against the Board for alleged violations would be greatly complicated by the fact that the conduct took place in a foreign jurisdiction. In sum, we believe it is highly likely that a court would conclude, as a matter of law, that a Texas public body may not hold a public meeting outside the geographical boundaries of the United States. As a result, we find that a quorum of the Board of Regents of the University of Texas System is prohibited from holding a meeting in Mexico.

You suggest that the problem of accessibility may be cured by certain ameliorative measures. In particular, you propose the following:

The proposed meeting would be posted and held at a location open and accessible to the public.

The meeting would be broadcast by two-way videoconferencing technology to an appropriate U.T. campus site in all geographic areas in Texas where component institutions of the U.T. system are located.

If the selected meeting site in Mexico allows Internet broadcast of the meeting, it will be broadcast.

The posted notice of the meeting will advise the public of the location of the broadcast site at each component institution and how to access the meeting via personal computer if Internet broadcast can be made.

Request Letter, supra note 1, at 2.

As to the first of these proposals, we have already found that a meeting held in Mexico is per se not physically accessible to the public. The second, third and fourth proposals require a more detailed analysis. Subsection 551.125(b)(1) of the Government Code permits a governmental body to hold a meeting by telephone conference call if "an emergency or public necessity exists within the meaning of Section 551.045." TEX. GOV'T CODE ANN. § 551.125(b)(1) (Vernon Supp. 2002). Section 551.045 provides that an emergency or urgent public necessity exists "only if immediate action is required of a governmental body because of . . . an imminent threat to public health and safety[,] or . . . a reasonably unforeseeable situation." Id. § 551.045(b) (Vernon 1994). You do not suggest that a meeting held under the circumstances you describe would constitute a valid "emergency" meeting. This office has followed the legislature in narrowly construing these provisions of the Act. See Tex. Att'y Gen. Op. Nos. JC-0194 (2000) at 4 ("No governmental body subject to the Open Meetings Act may hold a meeting by telephone or videoconference except as expressly authorized by the Act."); DM-478 (1998) (institution of higher education was not authorized to conduct a regular meeting by telephone conference call).

Section 551.127 permits a governmental body, in limited situations, to hold a meeting by videoconference call. Subsection (b), enacted prior to 2001, provides that "[a] meeting may be held by videoconference call only if a quorum of the governmental body is physically present at one location of the meeting." Act of May 30, 1997, 75th Leg., R.S., ch. 1038, 1997 Tex. Gen. Laws 3896. In House Bill 35, the Seventy-seventh Legislature added subsection (c), which states:

A meeting of a state governmental body or a governmental body that extends into three or more counties may be held by videoconference call only if a majority of the quorum of the governmental body is physically present at one location of the meeting.

TEX. GOV'T CODE ANN. § 551.127(c) (Vernon Supp. 2002). Thus, prior to 2001, any governmental body could hold a meeting by videoconference call if a quorum was physically present at one location. Under the terms of subsection (c), a state governmental body needs to have only a majority of the quorum physically present at one location.

[. . .]

(of the meeting where a member of the governmental body will be physically present.) In short, the provision of the Open Meetings Act which would permit a governmental body to use videoconferencing prescribes very limited circumstances under which such a meeting may take place.

Furthermore, if videoconferencing is an acceptable substitute for meetings physically held in a foreign country, it necessarily follows that it is an adequate substitute for meetings held within the geographical jurisdiction of the particular governmental body. A city council could, under this scenario, bar public entry to its meetings so long as it provided for television monitors to accommodate members of the public at a different location. As we have said, the legislature has permitted videoconferencing as a substitute for in-person meetings only under very limited circumstances. The ameliorative measures you propose would require an extensive broadening of the Act. Such expansion is a task for the legislature.

Your third and fourth proposals suggest that the meeting site in Mexico might allow Internet broadcast of the Board's meeting with Mexican officials. Although section 551.128 of the Government Code permits a governmental body to broadcast a meeting via the Internet, such a broadcast in no way substitutes for conducting an in-person meeting. See TEX. GOV'T CODE ANN. § 551.128 (Vernon Supp. 2002). Rather, it merely provides an additional means of disseminating the meeting. In sum, it is our opinion that the Board of Regents of the University of Texas System would fail to comply with the Open Meetings Act if it held a meeting of a quorum of its members in Mexico. We note, however, that nothing in the Act would prohibit the Board of Regents from sending less than a quorum of its members to Mexico "to observe firsthand the technology and newest methods being used at institutions in Mexico," and "to consider methods to enhance ongoing cooperative educational efforts between institutions in the UT System and institutions of higher education in Mexico." Request Letter, supra note 1, at 1.

SUMMARY

Under current Texas law, the Open Meetings Act prohibits the Board of Regents of the University of Texas System from holding a meeting of a quorum of its members in Mexico, regardless of whether the Board broadcasts the meeting by videoconferencing technology to all geographic areas in Texas where component institutions of the University of Texas System are located.

                              JOHN CORNYN
                              Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter submitted on behalf of the University of Texas System Board of Regents, Charles Miller, Chair, from W. O. Schultz II, Office of the General Counsel, The University of Texas System, to Honorable John Cornyn, Texas Attorney General, at 1 (Oct. 10, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See Act of Apr. 23, 1999, 76th Leg., R.S., ch. 62, art. 19, § 19.01(50), 1999 Tex. Gen. Laws 127, 414.