Can a Texas school board or city council make a decision in an emergency meeting called on short notice?

Texas AG Opinion JM-985: When Can a Texas Board Meet on Emergency Notice?

Plain-English summary

Texas has a strong open-government rule: government bodies, from city councils to school boards, generally have to meet in public and post notice of the meeting at least 72 hours ahead so people can show up and watch. There is an exception for emergencies. When something genuinely unexpected happens and the body has to act right away, it can meet on just two hours' notice. The obvious risk is that a board might slap an "emergency" label on an ordinary decision to avoid the usual public-notice period.

That is what a Bastrop County prosecutor asked about. In 1985 the Elgin school board bought a tract of land, and it approved the purchase in a closed emergency meeting posted only two hours in advance. The stated reason was that the land was now available and a decision had to be made immediately. Years later a taxpayer group questioned whether that was really an emergency.

The Attorney General laid out the legal standard. An "emergency" is an unforeseen combination of circumstances calling for immediate action, a sudden or unexpected situation. Just needing to move fast is not enough if the situation was one the board reasonably should have seen coming. In a case with similar facts, a court had held that when a board knew weeks ahead that it would need to act on a specific date, there was no emergency. Applying that here, and stressing that whether an emergency exists is ultimately a fact question the Attorney General cannot finally decide, the opinion said that based on the facts presented, it did not look like a genuine emergency.

The prosecutor also asked whether the board fixed any problem by "approving" the minutes of the emergency meeting at its next regular meeting. The answer was no. Approving minutes is not the same as ratifying a decision, and even a real ratification cannot rescue an action taken on defective notice unless the board holds a new, properly noticed meeting that specifically says the earlier action is up for ratification. You cannot cure a bad-notice problem by quietly blessing the old minutes.

Two practical points close out the opinion. First, an Open Meetings Act violation does not make the action automatically void; it makes it reversible, which means someone (here, the taxpayers) has to go to court and win to undo it. Second, a school district can hire lawyers to defend its legitimate interests, but whether spending public money on a specific lawsuit is lawful turns on the facts, which again is not something the Attorney General resolves.

Currency note

This opinion was issued in 1988. 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 was recodified in 1993 from article 6252-17, V.T.C.S., into chapter 551 of the Government Code, so the article and section numbers used throughout this opinion no longer match current citations, and the emergency-notice rules have been amended since (including the 1987 change this opinion notes). The core principles, that emergency notice is reserved for genuine emergencies and that a violation is reversible rather than automatically void, remain part of Texas open-government law, but anyone dealing with an emergency-meeting question today should consult chapter 551 of the Government Code and current case law rather than the 1985-era provisions described here.

Who this opinion affected (as of 1988)

Governmental bodies (school boards, city councils, districts): The opinion warned that the two-hour emergency notice is only for genuine emergencies and that they cannot cure a defective emergency notice by later approving the minutes.

Taxpayers and the public: The opinion confirmed that a board's emergency determination is subject to judicial review and that citizens who want to overturn an action taken in violation of the Act must file a civil lawsuit.

The Elgin Independent School District specifically: The opinion concluded that, on the facts presented, its 1985 emergency land-purchase meeting did not appear to involve a real emergency and that its later approval of the minutes did not validate the action.

Common questions

What counts as an "emergency" that justifies a two-hour meeting notice?
An unforeseen combination of circumstances calling for immediate action, a sudden or unexpected occasion. In this opinion the Attorney General stressed that merely needing to act quickly is not an emergency where the situation reasonably should have been anticipated.

Can a board fix a bad emergency meeting by approving the minutes later?
No. The Attorney General concluded that approving minutes is not necessarily ratification, and even ratification cannot cure defective notice unless a later, properly noticed meeting specifies the action to be ratified.

Is a decision made in violation of the Open Meetings Act automatically void?
No. The opinion explained that such actions are not automatically void; they are subject to reversal in court. Someone must sue and obtain a judgment to undo the action.

What can taxpayers do if they think a board misused the emergency procedure?
The Attorney General concluded a governmental body's emergency determination is subject to judicial review, so taxpayers would have to file a civil lawsuit against the body to overturn the action.

Background and statutory framework

The Open Meetings Act requires governmental bodies to hold meetings in open session except in certain circumstances (Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956, 958 (Tex. 1986)), and executive or closed sessions may be held only when expressly authorized and when procedural requirements are met. Adequate notice must precede executive sessions (id. at 958; art. 6252-17, section 2(a)), and notice generally must be posted at least 72 hours before a meeting. The Act authorized two-hour notice for emergency meetings.

In 1985, section 3A(h) of the Open Meetings Act provided that in case of emergency or urgent public necessity, which shall be expressed in the notice, it is sufficient if the notice is posted two hours before the meeting is convened, with a further requirement to give telephone or telegraph notice to news media that had filed a proper request and consented to pay the expense. That section was amended in 1987 to define emergency and to require the notice to state the reason for the emergency meeting (Acts 1987, 70th Leg., ch. 549, section 5, at 2213); because the meeting at issue occurred in 1985, the amendment did not apply, as it does not operate retrospectively.

In River Road Neighborhood Assoc. v. South Texas Sports, 720 S.W.2d 551 (Tex. App. - San Antonio 1986), construing the emergency notice provision as it existed at the relevant time, the court held that notice of an emergency meeting need not describe the nature of the emergency, and gave a general definition: the term generally refers to an unforeseen combination of circumstances that calls for immediate action, a sudden or unexpected occasion or action; the mere necessity for quick action does not constitute an emergency where the situation calling for such action is one that reasonably should have been anticipated; an emergency is a condition arising suddenly and unexpectedly, not caused by any neglect or omission of the person in question, which calls for immediate action. 720 S.W.2d at 557. The court held that because the school board there knew action would be necessary on a specific date several weeks in advance, an emergency meeting was not warranted.

Whether an emergency existed in the case presented necessarily depends on the facts (Common Cause v. Metropolitan Transit Authority, 666 S.W.2d 610, 613 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.)). The attorney general's authority to issue opinions is directed to questions of law and cannot finally resolve disputed fact questions such as whether a particular meeting complied with the Act (Attorney General Opinions JM-827 (1987); MW-390 (1981); MW-28 (1979)). Based on the facts provided, it did not appear an emergency existed, but only the courts can overturn governmental actions taken in violation of the Act.

On ratification, in Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975), the Texas Supreme Court held that notice to consider matters including ratification of prior action taken in response to changes in electric power rates substantially complied with the notice provisions, but invalidated the authority's attempt to raise rates at a subsequent meeting because the notice of the previous meeting, at which action was taken, did not comply; in effect the court required notice that rates might be increased, not simply notice that a prior action would be ratified. Although that decision addressed the substance of notice rather than its timeliness, the same principles apply. Applying them, the subsequent approval of the emergency meeting minutes could not affect the validity of the action taken: approval of minutes is not necessarily the equivalent of ratifying an action, and even if it were, a subsequent meeting could not correct defective notice simply by ratifying the minutes of prior action; the notice for the subsequent meeting would have to specify the action to be ratified (Common Cause v. Metropolitan Transit Authority, supra, at 613).

On remedies, a governmental body's determination of the existence of an emergency is subject to judicial review (Garcia v. City of Kingsville, 641 S.W.2d 339 (Tex. App. - Corpus Christi 1982, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex. Civ. App. - Beaumont 1981, writ ref'd n.r.e.)). Actions taken in violation of the Act are not automatically void; they are subject to reversal in court actions (Lower Colorado River Authority v. City of San Marcos, supra, at 646; see Toyah Independent School Dist. v. Pecos-Barstow Independent School Dist., 466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971, no writ)). To overturn the district's actions, the taxpayers would have to file a civil lawsuit against the district.

Finally, an independent school district has authority to hire attorneys to protect its interests in a lawsuit (Tex. Educ. Code section 23.26; Attorney General Opinion JM-685 (1987)), but that authority is limited to defending legitimate interests of the district that also serve the public interest (Attorney General Opinions JM-824, JM-685 (1987)), and the lawfulness of expending public funds on a particular lawsuit is itself a fact question the opinion process is not designed to resolve (Attorney General Opinion JM-824).

Citations

Statutory authority:

• Open Meetings Act, art. 6252-17, V.T.C.S. § 2(a) (adequate notice required before executive sessions)
• Open Meetings Act, art. 6252-17, V.T.C.S. § 3A(h) (two-hour notice for emergency or urgent public necessity, 1985 version)
• Texas Education Code § 23.26 (school district authority to hire attorneys)

Cases:

• Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956 (Tex. 1986)
• River Road Neighborhood Assoc. v. South Texas Sports, 720 S.W.2d 551 (Tex. App. - San Antonio 1986)
• Common Cause v. Metropolitan Transit Authority, 666 S.W.2d 610 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.)
• Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)
• Garcia v. City of Kingsville, 641 S.W.2d 339 (Tex. App. - Corpus Christi 1982, no writ)
• Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex. Civ. App. - Beaumont 1981, writ ref'd n.r.e.)
• Toyah Independent School Dist. v. Pecos-Barstow Independent School Dist., 466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971, no writ)

Related opinions:

• Attorney General Opinion JM-827 (1987)
• Attorney General Opinion JM-824 (1987)
• Attorney General Opinion JM-685 (1987)
• Attorney General Opinion MW-390 (1981)
• Attorney General Opinion MW-28 (1979)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-985
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0985.pdf

Original opinion text

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

Mr. Charles D. Penick
Criminal District Attorney
Bastrop County
804 Pecan Street
Bastrop, Texas 78602

Opinion No. JM-985

Re: The meaning of "emergency" in section 3A of the Texas Open Meetings Act, article 6252-17, V.T.C.S., and whether a governmental entity may ratify certain actions taken during an emergency meeting. (RQ-1483)

Dear Mr. Penick:

You ask several questions about the meetings and procedures leading up to the 1985 purchase of a tract of land by the Elgin Independent School District. A taxpayer group was formed in March of 1988 to examine school district expenditures. The group now questions the validity of the 1985 purchase because the board approved the purchase during a closed emergency meeting.

On August 20, 1985, the school board posted notice for an emergency meeting for "Consideration of Real Estate Purchase in Executive Session." The reason stated for the emergency was that "the land is now available but [the fact that] a decision must be made immediately makes it necessary to hold an emergency meeting." The minutes of the emergency meeting show that the board met in emergency session, recessed to executive session, and then reassembled from executive session. The minutes state, "It was the consensus of the Board to offer Adrian Ford $450,000 for [a specific] parcel of land he owns." The minutes also state that the board authorized the superintendent to work out the purchase details, subject to final board approval, and that final approval was obtained later that day by telephone poll. The board "approved" these minutes during its regular monthly meeting on September 5, 1985.

You ask 1) whether taking this action during an emergency meeting complied with the Texas Open Meetings Act, article 6252-17, V.T.C.S.; 2) whether the subsequent approval of the emergency meeting minutes validated the emergency action; 3) whether the taxpayers of the district have any legal remedies; and 4) whether the district may legally pay for the district's defense of the action taken during the emergency meeting.

The Open Meetings Act requires governmental bodies to hold all meetings, with certain exceptions, in open session. Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School Dist., 706 S.W.2d 956, 958 (Tex. 1986). Executive or closed sessions may be held only when expressly authorized and when certain procedural requirements are satisfied. Your concern is not that the meeting at issue was improperly closed, but that the notice for the meeting was defective.

Adequate notice must precede executive sessions. Id. at 958; Art. 6252-17, § 2(a). Notice of meetings must be posted for at least 72 hours preceding the scheduled time of a meeting. Art. 6252-17, § 3A(h). The Open Meetings Act, however, authorizes two-hour notice for emergency meetings.

In 1985, section 3A(h) of the Open Meetings Act provided, in part:

In case of emergency or urgent public necessity, which shall be expressed in the notice, it shall be sufficient if the notice is posted two hours before the meeting is convened. . . . [I]t shall be sufficient if the notice or supplemental notice is posted two hours before the meeting is convened, and the presiding officer or the member calling such emergency meeting or posting supplemental notice to the agenda for any other meeting shall, if request therefor containing all pertinent information has previously been filed at the headquarters of the governmental body, give notice by telephone or telegraph to any news media requesting such notice and consenting to pay any and all expenses incurred by the governmental body in providing such special notice.

This section was amended in 1987 to define emergency and to require that the notice state the reason for the emergency meeting. See Acts 1987, 70th Leg., ch. 549, § 5, at 2213. Because the meeting at issue here occurred in 1985, this amendment is not at issue. It does not apply retrospectively.

In River Road Neighborhood Assoc. v. South Texas Sports, 720 S.W.2d 551 (Tex. App. - San Antonio 1986, writ ref'd n.r.e.), the court construed the emergency notice provision as it existed at the time of the meeting at issue here. The court held that notice of an emergency meeting need not describe the nature of the emergency necessitating the emergency meeting. The court provided a general definition of "emergency":

[T]he term generally refers to an unforeseen combination of circumstances that calls for immediate action: a sudden or unexpected occasion or action. The mere necessity for quick action does not constitute an emergency where the situation calling for such action is one which reasonably should have been anticipated. The Texas Supreme Court has said that an emergency is a condition arising suddenly and unexpectedly, not caused by any neglect or omission of the person in question, which calls for immediate action. (Citations omitted.)

720 S.W.2d 551, 557. The court held that because the school board knew action would be necessary on a specific date several weeks before the date, an emergency meeting was not warranted.

In the case you present, it is not clear whether an "emergency," within the meaning of section 3A(h), existed. The existence of an emergency necessarily depends on the facts in any given case. See Common Cause v. Metropolitan Transit Authority, 666 S.W.2d 610, 613 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.). The attorney general's authority to issue legal opinions is directed to questions of law. See Attorney General Opinion JM-827 (1987). The attorney general cannot finally resolve disputed questions of fact such as whether a particular meeting complied with the Open Meetings Act. See Attorney General Opinion MW-390 (1981); see also Attorney General Opinion MW-28 (1979). Based on the facts you have provided, it does not appear that an emergency existed. Only the courts, however, can overturn governmental actions taken in violation of the Open Meetings Act.

You note that the school board also approved the minutes of the action taken during the emergency meeting. Because you ask about the legal effect of subsequent action taken by the board, we assume you ask whether the subsequent action could ratify the action taken at the emergency meeting.

In Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975), the Texas Supreme Court held that the LCRA Board's notice to consider matters "including the ratification of the prior action . . . taken . . . in response . . . to changes in electric power rates" substantially complied with the act's notice provisions. The court invalidated the River Authority's attempt to raise rates at the subsequent meeting because the notice of the previous meeting, at which action was taken, was not in compliance with the act. In effect, the court required notice that rates might be increased, not simply notice that a prior action regarding rates would be ratified.

The case you present involves the timeliness of notice. Although that supreme court decision applied to the substance of the notice rather than to the timeliness of the notice, the same general principles apply to both. Applying this decision to the case at hand indicates that the subsequent "approval" of the minutes of the emergency meeting could not affect the validity of action taken. In the first place, the approval of minutes is not necessarily the equivalent of ratifying an action. Even if the approval of the minutes were the equivalent of ratification, if the notice for the emergency meeting was defective, the subsequent meeting could not correct the error simply by ratifying the minutes of prior action. See Common Cause v. Metropolitan Transit Authority, supra, at 613. The notice for the subsequent meeting would have to specify the action to be ratified.

You ask what remedies are available to the school district's taxpayers. A governmental body's determination of the existence of an "emergency" is subject to judicial review. See Garcia v. City of Kingsville, 641 S.W.2d 339 (Tex. App. - Corpus Christi 1982, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex. Civ. App. - Beaumont 1981, writ ref'd n.r.e.). Actions taken in violation of the Open Meetings Act are not automatically void; they are subject to reversal in court actions. Lower Colorado River Authority v. City of San Marcos, supra, at 646; see Toyah Independent School Dist. v. Pecos-Barstow Independent School Dist., 466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971, no writ). To overturn the actions of the district, the taxpayers would have to file a civil lawsuit against the district.

Finally, you ask whether the district may legally pay for the district's defense of the action taken during the emergency meeting. An independent school district has the authority to hire attorneys to protect its interests in a lawsuit. Tex. Educ. Code § 23.26; Attorney General Opinion JM-685 (1987). This authority, however, is limited to defending legitimate interests of the district, interests that also serve the public interest. Attorney General Opinions JM-824, JM-685 (1987) (and cases cited therein). The lawfulness of expending public funds in a lawsuit against a school district or against the members of a school board involves questions of fact. Attorney General Opinion JM-824. As indicated, the attorney general's opinion process is not designed to resolve disputed questions of fact.

SUMMARY

The Texas Open Meetings Act, article 6252-17, V.T.C.S., authorizes holding meetings with only two hours' notice only for legitimate emergencies. Action taken in violation of the Open Meetings Act's emergency notice provisions cannot be validated simply by ratifying the minutes of the emergency meeting.

The existence of an emergency necessarily depends on the facts in any given case. Based on the facts you present, an emergency did not exist. Actions taken in violation of the Open Meetings Act are not automatically void; they are subject to reversal in court actions.

Independent school districts have the authority to hire attorneys to protect the legitimate interests of the districts. The lawfulness of defending a particular lawsuit depends on the facts.

Very truly yours,

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