Untitled Texas Attorney General Opinion ( 1992 )

QBffice of the Elttornep @enera
&ate of Qtexae
DAN MORALES
ATTORNEY
GENERAL December 16.1992
Honorable David Cain Opinion No. DM-191
Chainnan
Transportation Committee. Re: The withdrawal and reconsideration
Texas House of Representatives of Anomey General Opinion DM-17
P. 0. Box 2910 (1991) (RQ-4W
Austin, Texas 78769
Dear Representative Cain:
You have asked this office to withdraw and reconsider Attorney General Opinion
DM-17 (1991). In that opinion, we addressed whether the Open Meetings Act, V.T.C.S.
article 6252-17. permitted the Houston Metropolitan Transit Authority (METRO) to hold
a closed session to review proposals submitted in response to MBTRO’s “Request for
Proposals for a Pied Guideway Transit System.” During this session, the board reviewed
the proposals by listening to presentations by the proposers. The board members did not
discuss the proposals among themselves and did not make any decisions. The board held
the meeting in private to permit the proposers to present proprietary information to the
board members all at once. We concluded that briefing sessions, such as this one, did not
constitute meetings within the meaning of the Open Meetings Act and, thus, could be held
in private without giving public notice. We now overrule that decision.
Before the 1987 amendments to the Open Meetings ‘Act, a meeting subject to the
act was held when a quorum of members of a governmental body was present and the
memberstook any formal action or engaged in a verbal exchange among themselves about
the public business or policy over which the body had jurisdiction. Acts 1973,63d Leg.,
ch. 31, 5 1, at 45 (V.T.C.S. art. 6252-17, 5 l(a), @)).I Thus, the members of a
governmental body could meet privately to receive information from and ask questions of
‘Befote the 1987antendmnts,arlicle 6252-17,sectionl(a) stated,in n&vant part:
“Mcding”mcaosanydclik~oaktwcenaquonun~mcmkrsota
gcvemmcntalbodyat which any publicbusinessor public policy ever which the
govcmmentalbcdyhasmpuvisioncrwntrclisdisnumdorwasidcrcd,crat
which any formalaction is taken.
Acts 1973.63d Lea., ch. 31, g 1, at 45. “Deliion” was detitud as “a verbal exclrsaae
kchvunaqucmmcfmembersofagovcrnmuual body attemptingto arrive at a decisionon
any publicbosiness.” Id.
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 Honorable David Cain - Page 2 (DM-191)
their employees or other third parties so long as they did not discuss any public business
among themselves. See Attorney General Opinion JM-248 (1984); see also l?re Pea
Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.-Tyler 1982, writ ref d n.r.e.). This
type. of briefmg session was not a “meeting” covered by the Open Meetings Act, and
therefore, a governmental body could convene without admitting the general public.
Attorney General Opiion IM-248 at 2.
In 1987. however, the legislature amended the definitions of “meeting” and
“de&ration.” The definition of “meeting” now reads, in relevant part:
“Meeting” means any deliberation between a quorum of mem-
bers of a govemme-ntal body, or between u quorum of members of a~
governmental bo@ and any other person, at which any public
busiiess or public policy over which the governmental body has
supervision or control is discussed or considered, or at which any
formal action is taken.
V.T.C.S. art. 6252-17, Q I(a) (emphasis added). The defmition of “deliberation” now
includes “a verbal exchange. . between a quorum of members of a governmental body
and any other person,” as well as “a verbal exchange . . between a quorum of members
of a governmental body.” Id. 5 l(b).
Our decision in Attorney General Opinion DM-17 essentially read these
amendments out of the statute. Because the new language in both definitions includes the
phrase “between a quorum of members of the governmental body,” we concluded that a
meeting covered by the Open Meetings Act still had to involve deliberations among the
members of the governmental bod~.~ However, the previous definitions of “meeting” and
“deliberation” were broad enough to encompass briefing sessions at which the members
of a governmental body discuss business among themselves and with third parties.
Therefore, this reading of the amendments rendered them meaningless.
We overrule Attorney General Opinion DM-17, in part, to give the 1987
amendments to sections l(a) and l(b) of the Open Meetings Act some meaning. We must
presume that the legislature intends to make some change in the existing law when it
Qcfom the 1987 ~thcphra5e”bctweeaaqumumofmembcrscfagovanmntal
~puitcdtartyrrfcncdtodelikrPtionrorvcltralacbangcsamongthemrmkrsofagovanmntal
lmdywkn a quomm was present. Tkmfore, ia Attcmey Geaerai Opinkm DM-17, we interpretedthe
phnue”hchwenaqwmmefmembeadagcvemmea talbdyandanyothcrpmon”tompireathmc-
wayamvumtion: thcnllmbenofthc govanmcntal bodymost &l~heratcamongtlwnselvcs and with at
kastoncthirdpdrty.
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Honorable David Cain - Page 3 (DM-191)
adopts an amendment, and we must give effect to that change. i’kuvenol Lab., Inc. v.
-lab., Inc., 608 S.W.2d 308, 314 (Tex. Civ. App.-Waco 1980. writ refd n.r.e.).
Therefore, we now conclude that a&r the 1987 amendments, a meeting covered by the
Open Meetings Act no longer must involve deliberations between the members of a
governmentsJ body when a quorum of members is present. Rather, a governmental body
also holds a meeting covered by the Open Meetings Act when a quorum of members is
present and meets with a third party about the public business or policy over which the
body has jurisdiction.
The addition of section 2(r) to the act in 1987 provides tkrther evidence that the
legislature intended to include briefing sessions in the definition of “meeting.” This
section provides as follows:
Nothing in this Act shall be wnstrued to require a quorum of the
members of a governmental body to w&r with an employee or
employees of the governmental body in an open meeting where such
conference is for the sole purpose of receiving information from the
employet or employees or to ask questions of the employee or
employees; provided, however, that no discussion of public business
or agency policy that atkts public business shall take place between
members of the governmental body during the wnf~ence.
Id. 5 2(r) (as added by Acts 1987,7Oth Leg., ch. 549, 0 2). This section creates a specific
exception for briefing sessions between the members of a governmental body and their
employees. See Attorney General Opinion JM-1058 (1989). If the amendments to
sections l(a) and l(b) were not intended to make the definition of “meeting’* encompass
briefing sessions, then the addition of section 2(r) to the act was unnecessary.
Although we now interpret the Open Meetings Act to encompass brie.Gng sessions
between the members of a governmental body and third parties other than employees, we
also re&rm the decision in Attorney General Opinion JM-1058. In that opinion, we
concluded that brieling sessions in which the members of a governmental body receive
information gem and ask questions of an employee or employees without engaging in any
discussion among themselves do not constitute meetings under the Open Meetings Act.
This conclusion is based on our reading of section 2(r), rather than our reading of sections
l(a) and l(b). Therefore, it survives our reinterpretation of sections I(a) and l(b).
Although this opinion changes the result reached under Attorney General Opiion
DM-17, we do not believe that members of governmental bodies will be subject to the
penalties wntained in the Open Meetings Act for acting in accordance with Attorney
&neral Opinion DM-17 prior to issuance of this opinion. To be subject to the miminal
pn&ie.s contained in section 4 of the act, a member of a governmental body has to
engage in a knowing violation of the act. V.T.C.S. art. 6252-17, 5 4. Knowing conduct
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Honorable David Cain - Page 4 (DM-191)
occurs when a person is aware that the conduct is reasonably certain to cause the unlawful
result. SEARCY& PAI-IXRSON,practice Commentary, Penal Code 5 6.03(b) (Vernon
1974). Absent other facts, we do not believe a member of a governmental body would
violate the Open Meetings Act when that member was acting in accordance with an
opinion of the anomey general. In addition, the Texas Supreme Court has held that
government 05cials act in good faith when they rely on the advice of the attorney general.
Wi&a Corm@ v. Robinson, 276 S.W.Zd 509, 516 (Tex. 1954) (opinion on motion for
rehearing).
SUMMARY
This opinion overrules Attorney General Opiion DM-17
(1991). After the 1987 amendments to the Open Meetings Act, a
“meeting” subject to the act includes a briefing session in which a
quorum of members of the governmental body is present and meets
with a third party, other than an employee, about the public business
or policy over which the body has jurisdiction. However, section
2(r) of V.T.C.S. article 6252-17, as added by Acts 1987, 70th Leg.,
ch. 549, 4 2, wntinues to exclude from the definition of meeting
briefing sessions between the members of a governmental body and
that body’s employees. Therefore, the members of a governmental
body may consult with their employees in private, but may not
consult with other third parties in private.
DAN MORALES
Attorney General of Texas
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Honorable David Cain - Page 5 (DM-191)
WILL. PRYOR
Pii Assistant Attorney General
MARYKELLBR
Deputy Assistant Attorney General
RBNEAHICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepred by Margare-t A. Roll
Assistant Attorney General
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