Did the Texas Office of Public Utility Counsel's volunteer citizens advisory panel have to hold publicly noticed meetings?

Texas AG Opinion JM-331: Utility Advisory Panel Meetings

Plain-English summary

The Office of Public Utility Counsel asked whether meetings of its citizens advisory panel required public notice. The office had created the panel to give the public counsel "advice and suggestions" about residential utility customers' concerns. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

The request described the panel as advisory only, with "no statutory or official duties," and said its members received no compensation or expense reimbursement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

JM-331 used the five-part framework from Attorney General Opinion H-772 for applying the Open Meetings Act to a statewide public body. It said the first four criteria probably were satisfied, but the fifth was not: the entity did not supervise or control the public business or policy under discussion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Based on the supplied facts, the panel had "no power, actual or implied, to supervise or control public business." JM-331 therefore concluded that its meetings were not subject to the Open Meetings Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

The conclusion was conditional. The opinion warned that if the panel functioned as more than a merely advisory body and actually supervised or controlled public business or policy, it would have to comply with the Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

What was the advisory panel supposed to do?

It supplied advice and suggestions to the public counsel about residential utility consumers' concerns. The request said the panel had no statutory or official duties. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

What five criteria did JM-331 use for a statewide public body?

The body had to be within the executive or legislative department, be controlled by elected or appointed members, deliberate or act through a quorum, address public business or policy, and supervise or control that business or policy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Which criterion did the panel fail?

The fifth. On the stated facts, it did not have supervision or control over public business or policy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Did the opinion create a blanket exemption for every advisory committee?

No. It relied on how this panel actually functioned. A panel that moved beyond advice and supervised or controlled public business would have to comply with the Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Did lack of compensation decide the issue?

No. The request mentioned unpaid service, but the opinion's conclusion turned on the panel's lack of actual or implied supervisory or controlling power. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Background and statutory framework

The Legislature created the Office of Public Utility Counsel in 1983 to represent residential and small commercial utility customers. The request cited article 1446c, section 15A, and article 1446c-0, section 9.07. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Article 6252-17 was the Open Meetings Act at the time. JM-331 relied on Attorney General Opinion H-772's interpretation of the statutory definitions rather than on the panel's label alone. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

The same prior opinion had addressed the Texas Tech Athletic Council. JM-331 adopted its distinction between a body that only advises and one that actually exercises supervisory authority over public business or policy. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Citations and references

• V.T.C.S. article 1446c, section 15A
• V.T.C.S. article 1446c-0, section 9.07
• V.T.C.S. article 6252-17
• Attorney General Opinions H-772 (1976), H-438 (1974), H-238 (1974), and H-3 (1973)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0331
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0331.pdf

Original opinion text

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

The Attorney General of Texas

July 11, 1985

Mr. Jim Boyle
Public Counsel
Office of Public Utility Counsel
8140 Mopac, Westpark III
Suite 120
Austin, Texas 78759

Opinion No. JM-331

Re: Whether the citizens advisory panel of the Office of Public Utility Counsel is subject to the Open Meetings Act, article 6252-17, V.T.C.S.

Dear Mr. Boyle:

In your request letter you stated:

The Office of Public Utility Counsel was established in September 1983 by the Texas Legislature [article 1446c, section 15A and article 1446c-0, section 9.07, Vernon's Texas Civil Statutes] to represent the interests of residential and small commercial utility customers in Texas. In June 1984 the office established a citizens advisory panel to provide advice and suggestions to the public counsel on the concerns of residential utility customers. The committee is advisory only, has no statutory or official duties and receives no compensation or reimbursement for expenses. I am writing to inquire about whether meetings of this committee are subject to public notice requirements.

In Attorney General Opinion H-772 (1976), this office said that

before the [Open Meetings Act, article 6252-17, V.T.C.S.] is applicable to a meeting of a statewide public body, five prerequisites must be met. These are:

(1) The body must be an entity within the executive or legislative department of the state;

(2) The entity must be under the control of one or more elected or appointed members;

(3) The meeting must involve formal action or deliberation between a quorum of members. Compare Attorney General Opinions H-238 (1974) and H-3 (1973) holding that meetings of committees consisting of less than a quorum of the parent body must be open;

(4) The discussion or action must involve public business or public policy; and

(5) The entity must have supervision or control over that public business or policy.

The first four of these criteria are probably satisfied in this instance. Even if this is so, however, we conclude, on the strength of the facts that you have furnished, that the fifth criterion is not met here. Accordingly, we answer your question in the negative.

Attorney General Opinion H-772 dealt, inter alia, with the question of whether meetings of the Texas Tech University Athletic Council are subject to the act. In the course of answering this question with a qualified "no," the opinion said:

[B]oth the structure of the Council and the resolution granting it powers indicate that the Texas Tech Athletic Council is an advisory body and has no power, actual or implied, to supervise or control public business. Compare Attorney General Opinion H-438 (1974), where the structure of a similar body and all briefs submitted to the Attorney General on behalf of that body indicated that it exercised supervisory authority over public business or policy. We cannot resolve disputed questions of fact, and we necessarily have relied on the facts presented by the University. According to those facts, the "meetings" of the Texas Tech Athletic Council do not meet the definition of that term set out in the Open Meetings Act, and its proceedings would not be required to be held in conformity with the dictates of that Act.

However, we strongly caution that should the Council actually function as something more than a merely advisory body with the result that it in fact supervises or controls public business or policy, it would have to comply with the mandate of the Open Meetings Act regarding public notice and open meetings, and in that instance, its members may be subject to sanctions imposed for failure to comply with the Act.

We take the same approach here. The facts at hand indicate that this citizens advisory panel "is an advisory body and has no power, actual or implied, to supervise or control public business." Id. Therefore, its meetings are not subject to the Open Meetings Act. We caution, however, that "should the [panel] actually function as something more than a merely advisory body with the result that it in fact supervises or controls public business or policy, it would have to comply with" the act. Attorney General Opinion H-772 (1976).

SUMMARY

Under the facts provided, meetings of the citizens advisory panel appointed by the Office of Public Utility Counsel, article 1446c, section 15A, V.T.C.S., are not subject to the Open Meetings Act, article 6252-17, V.T.C.S.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood