Does the Texas Open Meetings Act apply to a school board subcommittee that has fewer members than a quorum?

Texas AG Opinion JM-1072: Do Open-Meeting Rules Reach School Board Subcommittees?

Plain-English summary

The chair of the Texas House Public Education Committee asked the Attorney General a practical question: when a school district's board of trustees splits off a small committee of its own members, and that committee has fewer people than a quorum of the whole board, does the Texas Open Meetings Act still apply to the committee's meetings?

The Open Meetings Act requires each "governmental body" to post notice and hold its deliberations in public unless a closed session is specifically allowed. The act defines a "meeting" in part as a deliberation among a quorum of a governmental body's members. Because of that quorum language, many public bodies assumed the act simply did not apply when fewer than a quorum gathered. The opinion explained why that assumption is too broad.

The act's definition of "governmental body" lists the board of trustees of every school district, but it does not list subcommittees or committees that sit beneath a school board. Read narrowly, that silence might suggest subcommittees are outside the act. But the Attorney General pointed to a line of prior opinions, starting with H-3 in 1973, holding that board members cannot sidestep the open-meeting requirement by dividing themselves into smaller committees. If a board could quietly work through a subcommittee and then simply rubber-stamp that subcommittee's recommendation in an open session, the public would be shut out of the real decision-making. So a committee made up of board members, even a handful of them, is treated as covered when it meets to discuss public business or policy.

The opinion also drew a contrast. A purely advisory group that is not composed of members of the governmental body, for example a city library board staffed by non-members, is treated differently and may fall outside the act. The hinge is whether the smaller group includes members of the parent board. If it does, and it meets to discuss public business or policy, it must follow the Open Meetings Act.

The opinion added a note of caution in a footnote: the act carries criminal penalties, and members who divide into subcommittees to hold secret deliberations, "knowingly conspiring to circumvent" the act, can face those sanctions, though proving a criminal offense depends on proving the required culpable mental state.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG 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 cited here as article 6252-17, V.T.C.S., has since been recodified into the Texas Government Code, and the statute has been amended many times since 1989. The core idea in this opinion, that a subcommittee of board members can be covered by the open-meeting rules, has continued to be litigated and refined by later opinions and court decisions. Anyone dealing with a present-day question about whether a particular board committee must meet in public should check the current Texas Open Meetings Act in the Government Code and recent case law rather than relying on the 1989 statute citation used here.

Who this opinion affected (as of 1989)

School boards and their committees: The opinion told trustees they could not treat a below-quorum committee of board members as automatically exempt. If such a committee met to discuss public business or policy, it had to post notice and meet in public like the full board.

Other special districts: The opinion applied the same logic to standing committees of special districts made up of members of the governing board, pointing to hospital-district committees as an example.

Members of the public and journalists: The opinion reinforced access to the actual decision-making process, closing off the tactic of moving substantive discussion into small, unannounced subcommittee meetings.

Advisory bodies of non-members: The opinion signaled these can be different. A purely advisory group not composed of members of the governmental body may fall outside the act, so the line turns on who sits on the smaller group.

Common questions

If a school board committee has fewer members than a quorum, is it automatically exempt from the Open Meetings Act?
No. The Attorney General concluded that a committee composed of one or more members of the board of trustees that meets to discuss public business or policy is itself subject to the act, even though it has fewer than a quorum of the full board.

Why does it matter whether the committee includes board members?
Because the concern is that the full board could rubber-stamp the recommendations of a subcommittee of its own members, hiding the real decision-making from the public. A group made up of outside advisors or staff who are not board members raises a different question and may fall outside the act.

Does the act mention school board subcommittees by name?
No. The definition of "governmental body" lists the board of trustees of every school district but does not list subcommittees. The opinion held that a subcommittee of board members can still be covered based on prior opinions like H-3 (1973), even though it is not listed expressly.

Can members face criminal penalties for using subcommittees to avoid the act?
The opinion noted the act's criminal sanctions can be a concern when members divide into subcommittees, but proving an offense depends on proving the required culpable state of mind, tied to knowingly conspiring to circumvent the act.

Background and statutory framework

The request came from the chair of the House Public Education Committee and asked how far the Texas Open Meetings Act, article 6252-17, V.T.C.S., reaches into committees of a school district's board of trustees, specifically a committee comprising fewer members than a quorum of the board. The opinion presumed the question was limited to functions such a committee may lawfully perform.

The act requires each "governmental body" to post notice for and deliberate at open meetings unless a closed session is expressly permitted (§ 2(a)); see Cox Enterprises, Inc. v. Board of Trustees of Austin Indep. School Dist., 706 S.W.2d 956, 960 (Tex. 1986); Attorney General Opinion H-3 (1973); but see City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex. App. - San Antonio 1984, writ ref'd n.r.e.) (attorney-client privilege may form a separate basis for a closed meeting). The act reaches each "meeting," defined in part as any deliberation between a quorum of members of a governmental body (§ 1(a)), and a "quorum" is a majority of the governing body (§ 1(d)). Because of that language, many bodies believed the act did not apply without a quorum present.

Whether subcommittees are themselves subject to the act depends in part on the act's definition of "governmental body" in section 1(c), which lists boards, commissions, and committees within the executive or legislative department of the state; commissioners courts and city councils; deliberative bodies with rule-making or quasi-judicial power classified as a department, agency, or political subdivision of a county or city; the board of trustees of every school district and every county board of school trustees and county board of education; and the governing board of every special district. For a local-level entity to constitute a governmental body under section 1(c), as a general rule it must fall within one of the section's specific descriptions. Attorney General Opinions JM-794 (1987); JM-340 (1985). Subcommittees of school districts are not listed expressly.

Subcommittees or agencies of a city or county fall within the definition when they have rule-making or quasi-judicial power. See Attorney General Opinions JM-1007 (1989); H-1281 (1978) (salary grievance committees); MW-506 (1982) (board of trustees of firemen's retirement fund has quasi-judicial powers and is an agency of the city); MW-177 (1980) (higher education authority created by city or cities); H-554 (1975) (hospital authority that performs a governmental function and is created by a city). The act does not cover a purely advisory agency of a county or city that is not composed of members of the governmental body. See Attorney General Opinion H-467 (1974) (city's library board).

The definition also lists school districts and special districts but does not list agencies or committees subordinate to them. Attorney General Opinion JM-340 (1985). That omission implies subcommittees of school districts and other special districts are not covered by the act. But that does not prevent a subcommittee, particularly one comprising members of the parent governmental body, from falling within the act's scope. In 1973 the attorney general considered whether the Texas Board of Mental Health and Mental Retardation could divide its members into specialized committees to study matters and recommend actions at open meetings of the whole board. Reasoning that the board might simply rubber-stamp the committees' recommendations, which would deprive the public of access to the board's actual decision-making, the attorney general concluded that committees composed of board members, even if fewer than a quorum, must comply with the act. Attorney General Opinion H-3 (1973) at 10; see also Attorney General Opinion H-823 (1976). A similar approach applies to special districts' subcommittees; standing committees composed of members of a special district's governing board must comply with the act when they discuss public business or policy. Attorney General Opinion H-238 (1974) (standing committee of board of managers of a hospital district).

Applying that framework, the opinion concluded that if the school district subcommittee at issue is composed of one or more members of the school board, the committee itself is subject to the Open Meetings Act. A footnote flagged that the act's criminal sanctions may be a concern when members of a covered entity divide into or participate in subcommittees, see Attorney General Opinions MW-390 (1981); MW-28 (1979), while noting that proving a criminal offense depends on proof of the requisite culpable mental state, tied to the act's language on meeting in numbers less than a quorum for secret deliberations and knowingly conspiring to circumvent the act (§ 4(b)).

Citations

Statutory authority:

• V.T.C.S. art. 6252-17 (Texas Open Meetings Act), §§ 1(a), 1(c), 1(d), 2(a), 4(b)

Cases cited:

• Cox Enterprises, Inc. v. Board of Trustees of Austin Indep. School Dist., 706 S.W.2d 956, 960 (Tex. 1986)
• City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex. App. - San Antonio 1984, writ ref'd n.r.e.)
• Webster v. Texas & Pac. Motor Transp. Co., 166 S.W.2d 75, 76 (Tex. 1942)

Attorney General opinions referenced:

• H-3 (1973); H-238 (1974); H-467 (1974); H-554 (1975); H-823 (1976); H-1281 (1978)
• MW-28 (1979); MW-177 (1980); MW-390 (1981); MW-506 (1982)
• JM-340 (1985); JM-794 (1987); JM-1007 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1072
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1072.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

July 12, 1989

Honorable Ernestine V. Glossbrenner
Chairman
Public Education Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1072

Re: Whether certain subcommittees of the board of trustees of school districts are subject to the Texas Open Meetings Act, article 6252-17, V.T.C.S. (RQ-1702)

Dear Representative Glossbrenner:

As chair of the House Public Education Committee, you inquire about the extent to which the Texas Open Meetings Act, article 6252-17, V.T.C.S., applies to committees of the board of trustees of a school district. In specific, you ask about a committee of members of the board of trustees that comprises less than a quorum of the board. You indicate that the committee at issue "performs functions regarding matters affecting the school district." We presume that your question is limited to those functions that such a committee may lawfully perform. See Webster v. Texas & Pac. Motor Transp. Co., 166 S.W.2d 75, 76 (Tex. 1942).

The Open Meetings Act requires that each "governmental body" in this state post notice for and deliberate at meetings that are open to the public unless a closed session is expressly permitted. V.T.C.S. art. 6252-17, § 2(a); see Cox Enterprises, Inc. v. Board of Trustees of Austin Indep. School Dist., 706 S.W.2d 956, 960 (Tex. 1986); see also Attorney General Opinion H-3 (1973) (act opens decision-making process); but see City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex. App. - San Antonio 1984, writ ref'd n.r.e.) (attorney-client privilege may form separate basis for closed meeting). The act encompasses each "meeting," which is defined, in part, as "any deliberation between a quorum of members of a governmental body." V.T.C.S. art. 6252-17, § 1(a) (emphasis added). A "quorum" is a majority of the governing body. Id. § 1(d). Many governmental bodies believe that the act does not apply when a quorum is not present. Whether such subcommittees are themselves subject to the act depends, in part, on the act's definition of "governmental body."

Section 1(c) of the Open Meetings Act provides:

'Governmental body' means any board, commission, department, committee, or agency within the executive or legislative department of the state, which is under the direction of one or more elected or appointed members; and every Commissioners Court and city council in the state, and every deliberative body having rule-making or quasi-judicial power and classified as a department, agency, or political subdivision of a county or city; and the board of trustees of every school district, and every county board of school trustees and county board of education; and the governing board of every special district heretofore or hereafter created by law.

V.T.C.S. art. 6252-17, § 1(c). For a local-level entity to constitute a "governmental body" under section 1(c), as a general rule, the entity must fall within one of the section's three specific descriptions. Attorney General Opinions JM-794 (1987); JM-340 (1985). Subcommittees of school districts are not listed expressly.

The first category includes "every deliberative body having rule-making or quasi-judicial power and classified as a department, agency, or political subdivision of a county or city." V.T.C.S. art. 6252-17, § 1(c). Subcommittees or agencies of a city or county therefore fall within the definition of "governmental body" when they have rule-making or quasi-judicial power. See, e.g., Attorney General Opinions JM-1007 (1989), H-1281 (1978) (salary grievance committees); MW-506 (1982) (board of trustees of firemen's retirement fund has quasi-judicial powers and is agency of city); MW-177 (1980) (higher education authority created by city or cities); H-554 (1975) (hospital authority that performs governmental function and that is created by city). The act does not cover a purely "advisory" agency of a county or city that is not composed of members of the governmental body. See Attorney General Opinion H-467 (1974) (city's library board).

The definition of "governmental body" also lists two other categories of local-level entities: school districts and special districts. The definition does not list agencies or committees subordinate to school districts and special districts. Attorney General Opinion JM-340 (1985). This omission implies that subcommittees of school districts and other special districts are not covered by the act. This does not, however, prevent a subcommittee of a special district covered by the act from falling within the scope of the Open Meetings Act. This is true particularly in regard to subcommittees comprising members of the parent governmental body.

When a subcommittee includes members of a parent governmental body, the subcommittee itself may be covered by the Open Meetings Act. In 1973, the attorney general considered whether a state-level entity, the Texas Board of Mental Health and Mental Retardation, could institute a practice of dividing board members into several specialized committees. Attorney General Opinion H-3 (1973). The committees were to meet with the board's staff to study specific matters and recommend actions at open meetings of the whole board. Reasoning that the board might simply "rubber-stamp" the committees' recommendations and that this would deprive the public of access to the board's actual decision-making process, the attorney general concluded that committees composed of members of the board, even if less than a quorum, must comply with the Open Meetings Act. Id. at 10; see also Attorney General Opinion H-823 (1976). A similar approach applies to analysis of special districts' subcommittees. For example, standing committees of special districts that are composed of members of the governing board of the special districts must comply with the Open Meetings Act when the standing subcommittees discuss public business or policy. Attorney General Opinion H-238 (1974) (standing committee of board of managers of hospital district).

You indicate that the school district subcommittee at issue "performs functions regarding matters affecting the school district." If the committee at issue is composed of one or more members of the school board, the committee itself is subject to the Open Meetings Act.[1] Moreover, as indicated, it is not clear that the board lawfully may delegate to a subcommittee the power to act on behalf of the board. See Webster v. Texas & Pac. Motor Transp. Co., supra.

[1] The criminal sanctions of the act may also be of concern when the members of an entity covered by the act divide into or participate in subcommittees. See, e.g., Attorney General Opinions MW-390 (1981); MW-28 (1979). Proving a criminal offense depends on proof of the requisite culpable state of mind. Violation of the criminal provisions of the act depends on what constitutes "meeting in numbers less than a quorum for the purpose of secret deliberations" to "knowingly conspire to circumvent" the Open Meetings Act. V.T.C.S. art. 6252-17, § 4(b).

SUMMARY

If a committee comprising one or more members of the board of trustees of a school district meets to discuss public business or policy, the committee itself is subject to the Texas Open Meetings Act, article 6252-17, V.T.C.S.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General