Untitled Texas Attorney General Opinion ( 1990 )


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  • Honorable Michael J. Guarino       Opinion No. JM-1185
    Criminal District Attorney
    Galveston County                   Re: Whether    a community
    405 County Courthouse              justice    council created
    Galveston, Texas 77550             pursuant to article 42.13,
    Texas    Code of Criminal
    Procedure,   is subject to
    the   Open Meetings   Act,
    V.T.C.S.     art.  6252-17
    (RQ-1879)
    Dear Mr. Guarino:
    You state that House Bill 2335 of the 71st regular
    session of the Legislature has created community   justice
    councils for counties wishing to establish     a community
    corrections facility. See Acts 1989, 71st Leg., ch. 785,
    art. 1, at 3471.     You ask whether a community   justice
    council is subject to the Texas Open Meetings Act, article
    6252-17, V.T.C.S.
    Some background   about the structure of the criminal
    justice system and the state-local relationships established
    by House Bill 2335 is necessary to understand          what a
    community justice council does and whether it is a govern-
    mental body subject to the Open Meetings Act. House Bill
    2335 made many changes in the structure of the criminal
    justice system at the state and local level, some of which
    give the counties     financial incentives    for supervising
    felony probationers and taking other measures to reduce the
    number of persons sent from the counties to be incarcerated
    in state prisons. Acts 1989, 71st Leg., ch. 785, art. 3, at
    3482. It created the Texas Department of Criminal Justice
    as the state agency       with primary responsibility       for
    confining felons, developing a system of state and local
    punishment, supervision,   and rehabilitation   programs,   and
    reintegrating   felons into    society after release       from
    confinement.    V.T.C.S.  art.   4413(401).    The   community
    justice assistance division (the division) is establii:;d
    within the Department of Criminal Justice.      V.T.C.S.      .
    4413(401), !j 1.11; see Code Crim. Proc. art. 43.13.        The
    division is responsible   for establishing minimum   standards
    for programs, facilities, and services provided at a local
    P. 6246
    Honorable Michael J. Guarino - Page 2    (JM-1185)
    level by a community supervision and corrections department,
    and for certifying and funding the programs, facilities, and
    services provided   by such departments.     V.T.C.S.   art.
    4413(401), 5 1.12.
    Community supervision and corrections departments        are
    to be established   by the district judge or judges trying
    criminal cases in each judicial district in the state. Code
    Crim. Proc. art. 42.131. These departments serve the courts
    by conducting   presentence investigations     and risk assess-
    ments,    supervising    and    rehabilitating     probationers,
    enforcing the terms of probation,      and operating   community
    corrections facilities.      
    Id. 52. The
    judge or judges
    appoint a department director, who employs other persons       to
    do the work of the department.     The district judge or judges
    may establish   a community     justice council to serve the
    department.   The judges must do so before the department,
    county,  or city may establish        a community    corrections
    facility under article 42.131 of the Code of Criminal
    Procedure, and before a county may establish           a county
    correctional center under subchapter Ii, chapter         352 of
    the Local Government Code.      Code Crim. Proc. art. 42.131,
    5 3(b). The council's primary responsibility is to prepare
    a criminal justice plan for submission      to the division    in
    fulfillment of a reporting requirement and as a condition of
    the department's   receipt of state aid.       Code Crim. Proc.
    art. 42.13,   §S 3, 6. When the division has made funds
    available to a department to provide facilities,      equipment,
    and utilities   for community     corrections   facilities,   the
    council has a role in recommending expenditures.        Finally,
    the council %hall     provide continuing   policy guidance    and
    direction for the development of criminal justice plans and
    community corrections    facilities and programs."     
    Id. art. 42.131,
    r, 3.
    The council is composed of various   officers from the
    county or counties wherein it is established.  Each officer
    is chosen by the other persons who hold the same kind of
    office he does in the county or counties served by the
    council.   For example, a council includes "a sheriff of a
    county to be served by the [community corrections] facility,
    chosen by the sheriffs of the counties to be served by the
    facility.*   Code Crim. Proc. art. 42.131, S 3(b)(l).    The
    following officers of political subdivisions to be served by
    the community corrections facility are also represented   on
    the council:   a county commissioner  or a county judge: a
    city council member of the most populous municfpality in a
    county to be served by the facility; no more than two state
    legislators; the presiding judge of a judicial district, the
    judge of a statutory     county court exercising    criminal
    jurisdiction; a county attorney with criminal jurisdiction:
    P. 6247
    Honorable Michael J. Guarino - Page 3 (JM-1185)
    a district attorney or criminal district attorney: and an
    elected member of the board of trustees of an independent
    school district in a county to be served by the facility.
    Both the composition and the function of the community
    justice council are relevant to determining whether it is a
    governmental body subject to the Open Meetings Act. The act
    defines "governmental body" in part as
    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 . . . .
    V.T.C.S. art. 6252-17, 5 l(c).
    Since the council is established and operates only at a
    local level, it is not "within the executive or legislative
    department  of the state."      Se ,   .I Attorney   General
    Opinions JM-596 (1986); JM-340 (T98:;.    The definition  of
    *qgovernmental body" applicable   to local entities    is as
    follows:
    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 I  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, 5 l(c).
    The criminal justice council is not a governing body of
    a city or county. As a body established     by the district
    judges and composed of elected officers of various jurisdic-
    tions, it cannot be considered    a aepartment,  agency,  or
    political subdivision  of a county or city. See Attorney
    General Opinions JM-740 (1987); JM-183 (1984); MW-28 (1979).
    Nor is it one of the education entities named in the
    statute.
    A more detailed analysis of the council's functions  is
    necessary to determine whether or not it is "the governing
    board of . . . [a] special district . . . created by law."
    The decision in Sierra Club v. Austin TranSD. Studv Policy
    Advisorv Comm., 
    746 S.W.2d 298
    (Tex. App. - Austin     1988,
    P. 6248
    Honorable Michael J. Guarino - Page 4     (JM-1185)
    writ denied),   determined   that the Austin Transportation
    Study Policy Advisory      Committee   (ATSPAC), a seventeen-
    member committee consisting of state, county, regional,     and
    municipal public officials, was a special district      subject
    to the Open Meetings Act. 1 The ATSPAC had been designated a
    "Metropolitan Planning Organization" pursuant to a provision
    of the Federal-aid highway     law directed at enabling     the
    Secretary of Transportation     to cooperate with state and
    local officials    in developing     transportation  plans and
    programs based on transportation needs. 23 U.S.C. § 134. A
    metropolitan planning    organization is "the forum for co-
    operative   transportation   decision    making."   23   C.F.R.
    5 450.104(b)(3).
    The opinion in Sierra Club said that the ATSPAC was
    charged with developing various transportation plans for the
    use of federal agencies in determining funding for the local
    
    projects. 746 S.W.2d at 300
    . "As a result, ATSPAC plays a
    vital role in deciding which highway projects are planned,
    built and funded in the Austin area." 
    Id. at 300-01.
       "Its
    decisions affect highway planning in Travis, Hays, Caldwell,
    Bastrop, and Williamson counties."   ;EeL at 300. The court
    thus emphasized the decision-making function of the ATSPAC.
    The court also ,pointed out that committees like the
    ATSPAC did not exist when the Open Meetings Act was adopted
    in 1967, but that when its functions are compared to those
    of the governmental bodies defined in the act, **it is clear
    that the committee   is just the sort of body the Open
    Meetings Act was designed to govern."      
    Id. at 301.
       It
    quoted the following dictionary     definition  of "special
    district":
    A limited governmental    structure created to
    bypass  normal    borrowing   limitations,      to
    insulate certain activities from traditional
    political influence, to allocate functions to
    entities reflecting particular expertise,       to
    provide services in otherwise unincorporated
    areas, or t0   aCCOmDliSh   a orimarilv    lOCal
    benefit  or imorovement, U,         parks     and
    planning, mosquito control, sewage removal.
    1. Attorney General Opinion JM-183 (1984) held that a
    library council  consisting of representatives    chosen by
    governing bodies of political subdivisions   was a "hybrid"
    body that did not fit any definition of "governmental  body"
    in the Open Meetings Act.
    P. 6249
    Honorable Michael J. Guarino - Page 5     (JM-1185)
    Black's Law Dictionary   (5th ed. 1986) (emphasis added).
    Relying particularly  on the underlined language,   the
    court found that the ATSPAC was a special district, in that
    it was designed to accomplish the primarily local benefit or
    improvement of bringing   federal highway   funds into the
    Austin urban area for highway planning and 
    construction. 746 S.W.2d at 301
    .
    In deciding   that the ATSPAC was a governmental        body
    subject to the Open Meetings Act, the court first considered
    the powers it exercised and applied a test similar to that
    applied by the courts and by prior opinions of this office
    to decide whether    an entity in the executive branch must
    comply with the act. Among other prerequisites for esta-
    blishing that a committee, board, or other entity in the
    executive branch of government        is subject to the Open
    Meetings Act, it must deliberate        or act on a matter      of
    public business or policy over which it has supervision         or
    control.    See, e.a      Gulf    Reaional    Educ.    Television
    Affiliates v. Unive&tv       of Houston, 
    746 S.W.2d 803
         (Tex.
    APP- -   Houston  [14th  Dist.]  1988,   writ denied);   Attorney
    General Opinions H-772     (1976); H-438   (1974). An advisory
    body,  with no power  to supervise  or  control public business,
    is not subject to the Open Meetings Act. Attorney         General
    Opinion JM-331 (1985) (citizens advisory panel of Office of
    Public Utility    Counsel); H-994    (1977) (advisory committee
    studying selection process for university president).
    A department or agency of a city or county is a govern-
    mental body within the act if it has rule-making or guasi-
    judicial powers. V.T.C.S. art. 6252-17, 5 l(c). In deter-
    mining whether an entity is a governmental body within this
    provision,    this office also considers whether      it  has
    authority to exercise governmental power, or whether it has
    only an advisory role. Attorney General Opinion MW-506
    (1982) determined    that the board of trustees of a city
    firemen's retirement fund was an agency of the city subject
    to the Open Meetings Act.     The board had power to receive,
    manage, and disburse the retirement       fund: moreover,   it
    exercised quasi-judicial powers    in hearing and determining
    applications for benefits.     Attorney General Opinion R-467
    (1974) I in contrast,  dealt with a city library board that
    was authorized to act in an advisory capacity only and held
    that insofar as it truly acted only in an advisory capacity,
    it was not required to comply with the Open Meetings Act.
    .
    The responsibilities of the criminal justice council,
    and its place in the criminal justice hierarchy, persuade us
    that it is properly characterized    as an advisory body, and
    not a governmental body within the Open Meetings Act. As we
    p. 6250
    Honorable Michael J. Guarino - Page 6 (JM-1185)
    have already said, its most important function is to prepare
    the community justice plan that a community supervision    and
    corrections department must submit to the community    justice
    assistance division before the city, county, or the depart-
    ment may establish   certain correctional   facilities.   Code
    Crim. Proc. arts. 42.13, 5 3; 42.131, 5 3. As of September
    1, 1990, a department must submit a plan to the division    as
    a condition of receiving state aid. &     art. 42.131,   §S 6,
    11.
    The division determines      the format for     community
    justice plans.    
    Id. 5 2(a)
    (3). Section 6 of article   42.13
    sets out the information that must be included in a plan.
    It must give a detailed description of the services provided
    by the department   and new facilities or programs    proposed
    for the department, such as electronic monitoring     programs
    and community corrections facilities.    It also must include
    a description of services needed within the area,     informa-
    tion about contracts    necessary   to achieve programs    and
    facilities, and 'lastatement of commitment by the community
    justice council and the department to achieve a targeted
    level of alternative sanctions."     
    Id. 5 6(b)(5).
    The plan
    may include other information,     such as information   about
    personnel training or program evaluation, as well as "other
    details or options that the community justice council wishes
    to include."
    The plan is thus primarily descriptive of corrections
    facilities that are established or may be established by a
    community supervision and corrections department, a county,
    a municipality, or a combination    of these. See Code Crim.
    Proc. a*.    42.131,  9 3.    It appears that the council's
    responsibility is to gather and report information about the
    facilities operated by these entities but not to decide how
    the facilities are to be operated or which facilities are to
    be proposed.    Decisions   on these matters  are made by the
    division, the district     judges, the department,    and the
    political subdivisions    operating  correctional  facilities.
    Moreover, a community justice council may not submit a plan
    to the division as a condition of payment of state aid to a
    department unless the plan is first approved by the district
    judges who manage the department served by the council. 
    Id. art. 42.13,
    § 6.
    The council also has the following responsibility    over
    expenditures:
    .
    The district judge or judges may authorize
    expenditures of funds provided by the divi-
    sion to the department for the purposes     of
    P. 6251
    Honorable Michael J. Guarino - Page 7    (JM-1185)
    providing facilities, equipment, and utili-
    ties for community corrections facilities if:
    (1) the communitv iustice council    recom-
    mends the exnenditures; and
    (2) the division provides  funds for the
    purpose of assisting in the establishment or
    improvement of the facilities.
    Code Crim. Proc. art. 42.131, 5 10 (emphasis added).
    In this case, the council makes recommendations,    but
    the judge or judges make the decisions about expenditures.
    In Gulf Reaional Educ. Television Affiliates v. University
    of Houston, sunra, at 809, the court found that an auxiliary
    enterprise of a state university was subject to the Open
    Meetings Act because it spent public funds and operated with
    little control or supervision by the university board of
    regents.    In contrast,   the community   justice   council
    recommends expenditures, but does not expend public funds on
    its own authority.      In Attorney General Opinion    H-467
    (1974) I this office decided that a city library board was
    not subject to the Open Meetings Act because         it was
    empowered to act in an advisory capacity only. The library
    board was authorized to recommend the adoption of rules to
    administer the library, to make recommendations for library
    facilities, and to submit its proposed expenditures for the
    approval of the city council.
    In our opinion, a criminal justice council acts in an
    advisory capacity only, like the library board at issue in
    Attorney General Opinion H-467. It does not have the power
    to make decisions that the courts found the ATSPAC to have
    in Sierra Club and the auxiliary enterprise in Gulf Reaional
    Educ. Television Affiliates.     It is not "the sort of body
    the OpenMeetings    Act was designed to govern."   Sierra Club,
    sunra, at 301. Although it assists the department's efforts
    to secure     state    funding   for   community    corrections
    facilities, the council does not V~accomnlish a primarily
    local benefit or improvement."        
    Id. (emphasis added).
    Thus, it is not a "special district" within the Sierra Club
    case.    Accordingly,   a criminal justice council      is not
    subject to the Open Meetings Act.
    P. 6252
    Honorable Michael J. Guarino - Page 8     (JM-1185)
    SUMMARY
    A criminal justice council established
    by the district judge or judges under section
    3 of article 42.131 of the Code of Criminal
    Procedure is not subject to the Open Meetings
    Act.
    JIM     MATTOX
    Attorney General of Texas
    MARYKHLLKR
    First Assistant Attorney General
    IOU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STKAKLSY
    Special Assistant Attorney General
    RENHA HICKS
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Susan L. Garrison
    Assistant Attorney General
    P. 6253
    

Document Info

Docket Number: JM-1185

Judges: Jim Mattox

Filed Date: 7/2/1990

Precedential Status: Precedential

Modified Date: 2/18/2017