Do Texas judges have to follow the Open Meetings Act when they meet to appoint a county auditor or probation director?

Plain-English summary

Brazos County Auditor Katie Conner asked the AG whether the Open Meetings Act (the "Act") applies to a group made up only of district and county court-at-law judges when they meet to appoint county officials. She gave two examples: judges meeting to appoint a county auditor, and judges meeting to appoint a community supervision and corrections department director (the head of the local probation department). The Act's notice requirements apply only to a "governmental body," so the real question was whether either group of judges fits that definition.

On the county-auditor example, the AG had an easy answer. Under chapter 84 of the Local Government Code, the district judges in a county appoint the county auditor at a special meeting. A 1987 opinion (JM-740) had already concluded that judges meeting for that purpose are not a "governmental body," because the group is not a board, commission, department, or agency of state government, not a department or political subdivision of a county or city, and not the governing board of a special district. Since the law on appointing a county auditor had not substantively changed, the AG said that conclusion still applied.

The probation-director example took more work, because a 1996 opinion (DM-395) had reached the opposite result. The AG ran the group of judges through each part of the "governmental body" definition. It is not a state-government board or agency, because the judges are not elected or appointed to serve as members; their membership comes from statute. It has quasi-judicial power but is not a department, agency, or political subdivision of a county or city. And although DM-395 had treated the judges as the governing board of a "special district," the AG explained that 2005 legislation significantly cut back what these judges do. They no longer hire personnel, authorize weapons, spend department funds, or manage the department; their role is now limited to appointing a director and fiscal officer and approving the budget. Because that managerial role was the basis for DM-395, the AG concluded a court would likely find the group is no longer a "governmental body," and treated DM-395's conclusion as no longer valid. Since neither group is a governmental body, the Act does not require either to post notice of its meetings, and the AG did not reach the final question, which assumed the groups were governmental bodies.

Currency note

This opinion was issued in 2015. 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 definitions in Government Code section 551.001 and the judges' role under chapter 76 may have been amended since 2015, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

County auditors and the judges who appoint them (as the opinion described it): The opinion described district judges meeting to appoint a county auditor under chapter 84 of the Local Government Code as not a "governmental body" under the Open Meetings Act, following the 1987 opinion JM-740, and therefore not required to post notice of those meetings.

Judges appointing a probation department director (as the opinion described it): The opinion described the group of judges in section 76.002(a) of the Government Code as likely not a "governmental body" after the 2005 legislation curtailed their managerial role, and treated the earlier contrary opinion DM-395 as no longer valid. It described those meetings as not requiring posted notice under the Act.

Members of the public (as the opinion described it): The opinion described the Act's written-notice requirement as applying only to meetings of a "governmental body," so where the meeting group is not a governmental body, the public-notice requirement in section 551.041 does not apply.

Common questions

Do judges have to give public notice before meeting to appoint a county auditor?
The AG concluded they do not. District judges meeting to appoint a county auditor under chapter 84 of the Local Government Code are not a "governmental body" under the Open Meetings Act, so the Act's notice requirement does not apply.

What about meetings to appoint a probation (community supervision) department director?
The AG concluded those meetings also likely do not require notice. After 2005 legislation cut back the judges' managerial role over the department, a court would likely find the group is not a "governmental body," so the Act does not require posted notice.

Why did the AG say an earlier opinion was no longer valid?
The 1996 opinion DM-395 had treated the judges as the governing board of a "special district," based on the broad management duties they had at the time. The 2005 changes removed most of those duties, so the AG concluded the legal basis for DM-395 had changed and its conclusion on this point was no longer valid.

Does having "quasi-judicial power" make the group a governmental body?
Not by itself. The AG acknowledged the group of judges exercises quasi-judicial power, but explained that the relevant definition also requires the body to be a department, agency, or political subdivision of a county or municipality, which the group is not.

Background and statutory framework

The Open Meetings Act requires written notice of the date, hour, place, and subject of each meeting held by a "governmental body" (Tex. Gov't Code Ann. § 551.041 (West 2012)). The Act defines "governmental body" to include a board, commission, department, committee, or agency within the executive or legislative branch of state government directed by elected or appointed members (Tex. Gov't Code Ann. § 551.001(3)(A) (West Supp. 2014)); a deliberative body with rulemaking or quasi-judicial power classified as a department, agency, or political subdivision of a county or municipality (id. § 551.001(3)(D)); and the governing board of a special district created by law (id. § 551.001(3)(H)).

For the county-auditor example, chapter 84 of the Local Government Code directs the district judges to appoint a county auditor at a special meeting (Tex. Loc. Gov't Code Ann. § 84.001(a), § 84.003(a) (West 2008)). The AG followed prior opinion JM-740 (1987), which held such a group is not a governmental body. For the probation example, the judges listed in section 76.002(a) appoint a department director after a competitive hiring process (Tex. Gov't Code Ann. § 76.002(a), § 76.004(a), (h) (West 2013)). The AG analyzed quasi-judicial power using Fiske v. City of Dallas, 220 S.W.3d 547 (Tex. App.-Texarkana 2007, no pet.), and the "special district" question using the definition in Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied), on which prior opinion DM-395 (1996) had relied. Because 2005 legislation limited the judges' role to appointing a director and fiscal officer and approving the budget (Tex. Gov't Code Ann. § 76.0045(a)-(b) (West 2013)), the AG concluded the group is likely no longer the governing structure of a special district, and treated DM-395's contrary conclusion as no longer valid.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 551.001(3)(A) (West Supp. 2014) (state-government board/agency directed by elected or appointed members)
• Tex. Gov't Code Ann. § 551.001(3)(D) (West Supp. 2014) (quasi-judicial body classified as a county/municipal department, agency, or political subdivision)
• Tex. Gov't Code Ann. § 551.001(3)(H) (West Supp. 2014) (governing board of a special district)
• Tex. Gov't Code Ann. § 551.041 (West 2012) (public-notice requirement for meetings of a governmental body)
• Tex. Loc. Gov't Code Ann. § 84.001(a) (West 2008) (district judges appoint a county auditor)
• Tex. Loc. Gov't Code Ann. § 84.003(a) (West 2008) (appointment at a special meeting)
• Tex. Gov't Code Ann. § 76.002(a) (West 2013) (group of judges for a community supervision and corrections department)
• Tex. Gov't Code Ann. § 76.004(a), (h) (West 2013) (appointment of a department director)
• Tex. Gov't Code Ann. § 76.0045(a)-(b) (West 2013) (limited personnel and budgetary role of the judges)

Cases:

• Fiske v. City of Dallas, 220 S.W.3d 547, 551 (Tex. App.-Texarkana 2007, no pet.)
• Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298, 301 (Tex. App.-Austin 1988, writ denied)

Prior Attorney General opinions discussed: JM-740 (1987), DM-395 (1996), JM-1185 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0038
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0038.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 28, 2015

Ms. Katie Conner Opinion No. KP-0038
Brazos County Auditor
200 South Texas Avenue, Suite 218 Re: Whether the Open Meetings Act applies
Bryan, Texas 77803 to district and county court-at-law judges
when they meet to appoint county officials
(RQ-0019-KP)

Dear Ms. Conner:

Your questions concern the Open Meetings Act (the "Act") and to what extent it may apply to "a group comprised solely of district and county court-at-law judges." [1] You provide two statutory examples of such judicial groups, asking whether each group constitutes a "governmental body" under the Act. See Request Letter at 2. The term "governmental body" is defined under the Act to include "a 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) (West Supp. 2014). The term also includes "a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality" and "the governing board of a special district created by law." Id. § 551.001(3)(D), (H). With this statutory language in mind, we examine each judicial group about which you ask.

Your first example concerns district judges who meet to appoint a county auditor. Request Letter at 2. Pursuant to chapter 84 of the Local Government Code, "the district judges having jurisdiction" in a county with a population of 10,200 or more "shall appoint a county auditor." [2] TEX. LOC. GOV'T CODE ANN. §§ 84.001(a), .002(a) (West 2008). The judges shall appoint the auditor "at a special meeting held for that purpose." Id. § 84.003(a). The district judges also approve the appointment of assistants to the county auditor. Id. § 84.021(a). This office has previously opined that a group of district judges meeting to appoint a county auditor pursuant to chapter 84 of the Local Government Code is not a "governmental body" under the Act because the group "does not constitute a board, commission, department, committee, or agency within the executive or legislative department of the state nor is it a department, agency, or political subdivision of a county or a city or the governing board of a special district created by law." Tex. Att'y Gen. Op. No. JM-740 (1987) at 4 (considering the predecessor to section 84.005 of the Local Government Code). The law governing the appointment of a county auditor has not substantively changed since 1987 when Opinion JM-740 was issued. Thus, the analysis and conclusion of that opinion is still applicable. A group of district judges meeting to appoint the county auditor pursuant to chapter 84 of the Local Government Code is not a "governmental body" under the Act.

Your second example concerns district and county court judges who meet to appoint a community supervision and corrections department ("department") director. Request Letter at 2. Section 76.004 of the Government Code directs a specific group of judges to "appoint a department director" after publicly advertising the position, posting a job description, conducting a competitive hiring process, and reviewing eligible applicants. TEX. GOV'T CODE ANN. § 76.004(a), (h) (West 2013). This group of judges also establishes the department as a whole and approves the department's budget and community justice plan. Id. § 76.002(a). Against this background, we examine each relevant definition of "governmental body" in the Act.

First, subsection 551.001(3)(A) of the Act defines "governmental body" as "a 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." Id. § 551.001(3)(A) (West Supp. 2014). Although it establishes a department, the group of judges itself is not "a board, commission, department, committee, or agency" that is "directed by one or more elected or appointed members" because the judges are not elected or appointed to serve as a member of the group. Id. Membership in the group is established, not by election or appointment, but by statute. See id. § 76.002(a) (West 2013) (listing a specific group of judges). Thus, it is not a "governmental body" under subsection 551.001(3)(A).

Next we examine subsection 551.001(3)(D), which defines a governmental body as "a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality." Id. § 551.001(3)(D). The group of judges has quasi-judicial power because it exercises judgment and discretion in its statutory functions, and its decisions are binding. See Fiske v. City of Dallas, 220 S.W.3d 547, 551 (Tex. App.-Texarkana 2007, no pet.) (defining "quasi-judicial power" to include these elements, among others). The group of judges is not, however, "a department, agency, or political subdivision of a county or municipality," and thus it is not a "governmental body" under subsection 551.001(3)(D).

Finally, the definition of "governmental body" in subsection 551.001(3)(H) of the Act refers to "the governing board of a special district created by law." TEX. GOV'T CODE ANN. § 551.001(3)(H) (West Supp. 2014). A previous opinion of this office concluded that a group of district and county judges appointing the director of a department pursuant to chapter 76 of the Government Code comes within the scope of a "special district" and thus constitutes a "governmental body" as that term is defined by subsection 551.001(3)(H) of the Act. See Tex. Att'y Gen. Op. No. DM-395 (1996) at 4. Since the time that DM-395 was issued, however, the Legislature has altered the role of district and county judges with respect to departments. See Tex. Att'y Gen. Op. No. JM-1185 (1990) at 3 (noting the relevance of a governmental body's function in determining whether it is a governmental body subject to the Act).

Opinion DM-395 based its conclusion on both the broad definition of "special district" used by an appellate court and the broad statutory responsibilities then in place for district and county judges with respect to departments, particularly those involving management and decision-making. See Tex. Att'y Gen. Op. No. DM-395 (1996) at 3-4 (examining Sierra Club v. Austin Transp. Study Policy Advisory Comm., 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied)). The court in Sierra Club defined "special district" as "[a] limited governmental structure created . . . to accomplish a primarily local benefit or improvement." Sierra Club, 746 S.W.2d at 301. The Attorney General in DM-395 stated that "[the committee of judges'] control over the CSCD directorship and CSCD finances, as well as its general managerial function with respect to the CSCD, makes it, we think, a 'governing body' of such special district within the [A]ct's definition." Tex. Att'y Gen. Op. No. DM-395 (1996) at 4. Legislation passed in 2005, however, significantly scaled back the role of judges with respect to a department. See Act of May 16, 2005, 79th Leg., R.S., ch. 255, §§ 1, 4, 5, 7, 8, 12, 2005 Tex. Gen. Laws 454, 454-58 (codified at TEX. GOV'T CODE ANN. §§ 76.002, .0045, .0051, .009, & .010 (West 2013)). As a result of these changes, judges no longer have the authority to employ personnel, authorize the carrying of weapons, expend or authorize expenditures of department funds, or participate in the management of a department that they previously had. See id. Instead, "[t]he responsibility of a judge described by Section 76.002 for personnel decisions is limited to the appointment of a department director and fiscal officer," and for budgetary decisions the responsibility "is limited to: (1) appointment of a fiscal officer; and (2) approval of the department's budget." TEX. GOV'T CODE ANN. § 76.0045(a)-(b) (West 2013). Thus, the role of the district and county judges that appoint the department director is no longer that of a decision-making "governmental structure" inherent in the Sierra Club court's definition of a "special district." Because the managerial role of the district and county judges with respect to a department has been significantly curtailed, a court would likely conclude that the group of judges described in section 76.002(a) of the Government Code who appoint the director of a department is not a "governmental body" as that term is defined under subsection 551.001(3)(H) of the Act. [3]

Assuming this conclusion, you next ask whether each group of judges is nonetheless required to post notice of some of its meetings. Request Letter at 2. The requirement under the Act that "written notice of the date, hour, place, and subject of each meeting" shall be given to the public applies to "each meeting held by [a] governmental body." TEX. GOV'T CODE ANN. § 551.041 (West 2012) (emphasis added). If the group that is meeting is not a "governmental body" under the Act, it follows that the notice requirement in section 551.041 of the Act is inapplicable. Thus, the Act does not require either group of judges about which you ask to post notice of its meetings. Because your last question is premised on an affirmative conclusion that the groups in question constitute governmental bodies under the Act, we need not address it.

SUMMARY

A group of district judges meeting to appoint the county auditor pursuant to section 84.003 of the Local Government Code is not a "governmental body" under the Open Meetings Act. Consequently, notice of the group's meetings is not required by the Act to be posted.

A court would likely conclude that a group of district and county judges meeting to appoint a community supervision and corrections department director pursuant to chapter 76 of the Government Code as currently written is not a "governmental body" under the Act because of the statutory curtailment of the group's previous managerial role with respect to departments. Consequently, notice of the group's meetings is not required by the Act to be posted.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. Katie Conner, Brazos Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Mar. 24, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Brazos County has a population of 194,851. See U.S. Census Bureau, U.S. Dep't. of Commerce, 2010 Census of Population, http://quickfacts.census.gov/qfd/.

[3] Because the statutory basis on which Opinion DM-395 relied has changed, its conclusion about the Act's application to the judges described in section 76.002(a) of the Government Code is no longer valid.