Did the county judge or county clerk control preparation of a commissioners court's meeting agenda?

Texas AG Opinion JM-63: Control of a Commissioners Court Agenda

Plain-English summary

JM-63 concluded that neither the county judge nor the county clerk individually controlled preparation of the commissioners court agenda. The commissioners court as a collective body controlled and could amend its own agenda.

"Our answer to your question is that neither of those two individual county officials controls the agenda, but rather, as a matter of law, the commissioners court, as a whole, controls its own agenda."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"Neither the county judge nor the county clerk controls the preparation of the agenda for the commissioners court. The commissioners court as a whole has the authority to determine and amend its own agenda."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

The court could appoint an agenda clerk and set procedures for submitting agenda items. But every court member had to be permitted to place any chosen item on the agenda.

"We believe that the court may designate an agenda clerk who is responsible for compiling the items to be placed on the agenda."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"Each member of the court, of course, must be permitted to place on this agenda any item of his choosing."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

The county judge's role as presiding officer did not confer unilateral authority to decide or restrict what the court could consider. The county clerk kept minutes and records but had no independent authority to decide agenda content.

"We do not believe that the county judge's authority and duties to 'preside' over meetings of the county commissioners court grants him authority to prepare and limit, in his sole discretion, the items to be considered by the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"The clerk serves only as the keeper of the minutes and records of the commissioners court and has no independent authority to exercise his judgment as to matters which may or may not be considered by the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Currency note

This opinion was issued in 1983. 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

Could the county judge act as agenda clerk?

Yes, and JM-63 recognized that as a common practice. But acting as clerk did not give the judge personal legal control over agenda content.

"We are fully aware that it is the common practice in many counties of this state for the county judge to act as the agenda clerk and through him items may be placed on the agenda for consideration by the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"We find no authority for the county judge alone to control the contents, preparation and posting of the agenda required by the Texas Open Meetings Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Could someone else compile the agenda?

Yes. The opinion noted that some courts used a deputy county clerk or a separately hired employee under the commissioners court's supervision.

"In other counties, the commissioners court has either designated a deputy county clerk to perform these functions, or has separately hired an employee under the supervision of the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

What role did the county clerk have?

The clerk attended court terms, kept the court's books, papers, records, and effects, and issued necessary notices and process. Those duties did not include independently preparing or altering the agenda.

"The duties of the county clerk do not encompass the preparation or alteration of the commissioners court agenda."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"[A]ttend upon each term of said commissioners court; preserve and keep all books, papers, records and effects belonging thereto, issue all notices, writs and process necessary for the proper execution of the powers and duties of the commissioners court . . . ."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Why did the opinion treat the agenda as a notice?

The commissioners court had statutory authority to issue necessary notices, and the Open Meetings Act required written notice stating the date, hour, place, and subject of each meeting.

"We believe that the commissioners court agenda is a 'notice' under this provision which is 'necessary' by virtue of the Texas Open Meetings Act for the proper execution of the official duties of the court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

"Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section . . . ."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Did the county judge have any special notice duty?

For an emergency called meeting, the presiding officer could be required to notify news media.

"In the event of emergency called meetings, the presiding officer, that is, the county judge, may be required to notify the news media."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

How did the commissioners court act officially?

It acted through its minutes at a lawfully called meeting with a quorum.

"A commissioners court speaks through its minutes at any lawfully called meeting at which there is a quorum."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Background and statutory framework

The Texas Constitution provided that the four county commissioners and the county judge as presiding officer composed the commissioners court, which exercised conferred authority over county business.

"The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

The statutory counterpart likewise made the commissioners and county judge the court and designated the county judge as presiding officer when present.

"The several commissioners, together with the county judge, shall compose the 'Commissioners Court,' and the county judge, when present, shall be the presiding officer of said court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Holding

"Neither the county judge nor the county clerk controls the preparation of the agenda for the commissioners court. The commissioners court as a whole has the authority to determine and amend its own agenda."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.pdf

Citations and references

Constitutional and statutory provisions discussed by JM-63:

• "article V, section 18 of the Texas Constitution" Official PDF
• "article 2342, V.T.C.S." Official PDF
• "article 2351, subdivision 14, V.T.C.S." Official PDF
• "article 6252-17, section 3a, V.T.C.S." Official PDF
• "article 2345, V.T.C.S." Official PDF
• "article 1940, V.T.C.S." Official PDF
• "article 2343, V.T.C.S." Official PDF
• "article 2348, V.T.C.S." Official PDF

Cases cited by JM-63:

• "Hill Farm, Inc. v. Hill County, 425 S.W.2d 414 (Tex. Civ. App. - Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969)" Official PDF
• "Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), cert. denied sub nom. Rheuark v. Texas, 450 U.S. 931 (1981)" Official PDF

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0063
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0063.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

JIM MATTOX
Attorney General

August 17, 1983

Honorable James Warren Smith, Jr.
Frio County Attorney
P. O. Box V
Pearsall, Texas 78061

Opinion No. JM-63

Re: Whether county clerk or county judge controls preparation of agenda for commissioners court

Dear Mr. Smith:

You have asked whether the county judge or the county clerk controls the preparation of the agenda for the commissioners court. Our answer to your question is that neither of those two individual county officials controls the agenda, but rather, as a matter of law, the commissioners court, as a whole, controls its own agenda. We are fully aware that it is the common practice in many counties of this state for the county judge to act as the agenda clerk and through him items may be placed on the agenda for consideration by the commissioners court. In other counties, the commissioners court has either designated a deputy county clerk to perform these functions, or has separately hired an employee under the supervision of the commissioners court. The clerk serves only as the keeper of the minutes and records of the commissioners court and has no independent authority to exercise his judgment as to matters which may or may not be considered by the commissioners court.

The county commissioners court in Texas is established by article V, section 18, of the Texas Constitution:

Each county shall . . . be divided into four commissioners precincts . . . . The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.

The statutory corollary of section 18 is article 2342, V.T.C.S.:

The several commissioners, together with the county judge, shall compose the "Commissioners Court," and the county judge, when present, shall be the presiding officer of said court.

Article 2351, V.T.C.S., provides in part that

[E]ach commissioners court shall: . . . (14) Issue all such notices, citations, writs and process as may be necessary for the proper execution of the powers and duties imposed by such court and to enforce its jurisdiction.

We believe that the commissioners court agenda is a "notice" under this provision which is "necessary" by virtue of the Texas Open Meetings Act for the proper execution of the official duties of the court. We find no authority for the county judge alone to control the contents, preparation and posting of the agenda required by the Texas Open Meetings Act, article 6252-17, V.T.C.S. Section 3a provides for the required notice of meetings of the commissioners court:

Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section . . . .

. . . .

(d) A county governmental body shall have a notice posted on a bulletin board located at a place convenient to the public in the county courthouse. (Emphasis added).

In the event of emergency called meetings, the presiding officer, that is, the county judge, may be required to notify the news media. Id. §3a(h).

We do not believe that the county judge's authority and duties to "preside" over meetings of the county commissioners court grants him authority to prepare and limit, in his sole discretion, the items to be considered by the commissioners court. To preside has been defined as follows:

to occupy the place of authority, as of president, chairman, moderator, etc.; to direct, control, or regulate proceedings as chief officer . . . .

Webster's New International Dictionary, 2d Edition (1947).

The duties of the county clerk do not encompass the preparation or alteration of the commissioners court agenda. The county clerk is directed by statute to

attend upon each term of said commissioners court; preserve and keep all books, papers, records and effects belonging thereto, issue all notices, writs and process necessary for the proper execution of the powers and duties of the commissioners court . . . .

V.T.C.S. art. 2345; see also V.T.C.S. art. 1940 (ex officio clerk).

A commissioners court speaks through its minutes at any lawfully called meeting at which there is a quorum. Arts. 2343 (Quorum), 2348 (Regular terms), V.T.C.S.; Hill Farm, Inc. v. Hill County, 425 S.W.2d 414 (Tex. Civ. App. - Waco 1968), aff'd, 436 S.W.2d 320 (Tex. 1969) (commissioners court acts only through its minutes). See generally Rheuark v. Shaw, 628 F.2d 297 (5th Cir. 1980), cert. denied, sub nom. Rheuark v. Texas, 450 U.S. 931 (1981). Therefore, the commissioners court may control its own agenda much in the same way as the court may limit the comment of citizens at a public hearing. Attorney General Opinion H-188 (1973).

We believe that the court may designate an agenda clerk who is responsible for compiling the items to be placed on the agenda. The court may also prescribe the manner in which items are to be submitted for such inclusion. Each member of the court, of course, must be permitted to place on this agenda any item of his choosing.

SUMMARY

Neither the county judge nor the county clerk controls the preparation of the agenda for the commissioners court. The commissioners court as a whole has the authority to determine and amend its own agenda.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton