Untitled Texas Attorney General Opinion ( 1989 )

June 14, 1989
Mr. Charles Stevenson Opinion No. JR-1858
Acting Commissioner
Texas Department of Human Re: Whether the Texas Open
Services Meetings Act authorizes
P. 0. Box 2960 governmental body to hoi:
Austin, Texas 78769 "briefing sessions" to receive
information from staff members
without providing notice
(RQ-1686)
Dear Mr. Stevenson:
You ask whether the Texas Open Meetings Act, article
6252-17, V.T.C.S., applies to orientation or briefing
sessions of the Board of Human Services, at which board
members receive information and ask questions of staff
members but do not engage in ~discussion between themselves.
This office has issued two opinions concluding that such
sessions were not subject to the requirements of the Open
Meetings Act. Attorney General Opinions JM-640 (1987);
JR-248 (1984).
Attorney General Opinion JM-248 relied on the trial
court's construction of the Open Meetings Act in Pea Picker,
Inc.. v. Reaaan, 632 S.W.2d 674 (Tex. App. - Tyler 1982,
writ ref'd n.r.e.). The court found that a meeting held by
a commissioners court to hear reports from agents and
employees was not a @'meetingl' within article 6252-17,
V.T.C.S. The act then defined a l'meeting*las "any delibera-
tion between a quorum of members of a governmental body at
which any public business . . . is discussed.1W (Emphasis
added.) See Acts 1973, 63d Leg., ch. 31, 5 1, at 45. If no
deliberations were held between members of the governmental
body, then no *lmeetingN*took place and the requirements of
the Open Meetings Act did not apply. See also Attorney
General Opinion JM-640 (1987) (oral exam of applicant by
licensing board was not a "meeting").
Senate Bill 168 of the 70th Legislature adopted a
number of amendments to the Open Meetings Act. S.B. 168,
Acts 1987, 70th Leg., ch. 549, at 2211. The bill added
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Mr. Charles Stevenson - Page 2 (JM-1058)
language to the definition of *'meetingl'so that it now reads
in part:
(4 'Meeting' means van
between a quorum of members of a governmental
body, or between a Quorum of members of a
a overnm en t a 1 bod v and anv other I)
erson, at
which any public business . . . is discussed
or considered . . . . (Emphasis added.)
V.T.C.S.. art. 6252-17, § l(a). The same language was added
to the definition of 11deliberation*1so that it now reads as
follows:
(b) 'Deliberation' means a verbal ex-
chancre durina a meetinq between a quorum of
members of a governmental body, or between a
cue rum of members of a aovernmental bodv and
a Y other D concerning any issue within
t:e jurisdizETz:'of the governmental body or
any public business. (Emphasis added.)
Id. 5 l(b).
A facial reading of the amended sections l(a) and 1 (b)
yields more than one interpretation. This office has found
the Open Meetings Act applicable to a meeting called by a
district judge and attended by a quorum of members of a
county commissioners court if the commissioners engaged in
deliberations. Attorney General Opinion MW-390 (1981). The
Act has also been held to apply to a joint meeting of
representatives of two or more governmental bodies if a
quorum of members of one governmental body attends and
engages in deliberations. Attorney General Opinion MB-417
(1981); see Attorney General Opinion MW-28 (1979). The
amendments could have been adopted to make explicit this
application of the Open Meetings Act. However, the bill
analysis prepared for Senate Bill 168 indicates that the
amendments were designed to overturn the conclusion of
Attorney General Opinion JM-248. The following language
appeared in the bill analysis prepared for the introduced
version of the bill, but was not updated as the bill
underwent substantive changes:
The Texas Open Meetings Act (TOMA) . . .
was enacted in 1967 to ensure that important
governmental decisions are made in public
meetings. Several problems under TOMA
currently are frustrating this purpose of
'government in the sunshine.' Courts and the
p. 5508
Mr. Charles Stevenson - Page 3 (JM-1058)
attorney general have ruled that members of a
public body may meet without complying with
TOMA to receive information and ask questions
of a third party. [The analysis then men-
tions Attorney General Opinion JR-248 and its
reliance on an appellate court case]. . . .
In The Pea Picker, Inc. v. Reaaan, . . . the
court held that receiving information from
employees was not a 'meeting' because no
'deliberation' had occurred in that there was
no exchange between the members. (Emphasis
in original.)
Bill Analysis, S.B. 168, 70th Leg. (1987). Since Attorney
General Opinion JR-248 relied on the definitions of
"meeting" and "deliberation," Senate Bill 168 sought to
bring such briefing sessions within the coverage of the Open
Meetings Act by amending those definitions.
These amendments to subsections l(a) and l(b) of the
Open Meetings Act appeared in Senate Bill 168 as introduced
and in the bill as adopted by the legislature. The intro-
duced bill was reported adversely by the Senate Committee on
State Affairs and a committee substitute was reported
favorably. The committee substitute included the following
provision, not found in the introduced bill:
(r) Nothing in this Act shall be con-
strued to require a quorum of the members
of a governmental body to confer with an
employee or employees of the governmental
body in an oven meetinq where such conference
is for the sole purpose of receiving informa-
tion from the employee or employees or to
ask questions of the employee or employees:
provided, however, that no discussion of
public business or agency policy that affects
public business shall take place between the
members of the governmental body during the
conference. (Emphasis added.)
V.T.C.S. art. 6252-17, 5 z(r).1
1. A provision on meeting by telephone conference call
also codified as section 2(r) was added to the Open Meetings
Act by another bill during the same session. S.B. 560, Acts
1987, 70th Leg., ch. 964, 5 4, at 3283.
p. 5509
Mr. Charles Stevenson - Page 4 (JM-1058)
Section 2(r) uses the terms "confer" and l*conference"
instead of the statutorily defined terms "meeting" and
"deliberation" to describe a briefing session. Nearly all
of the section 2 exceptions use one or both of the statutory
terms. But see id. 55 2(e) ("consultations" with attorney),
2(p) ("interviews and counseling sessions" between members
of Board of Pardons and Paroles and inmates of Department
of Corrections). The legislature could have chosen its
language to distinguish such conferences from meetings and
to remove them completely from the Open Meetings Act,
including its notice and record-keeping requirements. On
the other hand, the legislature may have thought that the
section 2(r) "conference" would involve *Iaverbal exchange
. . . between a quorum of members of a governmental body and
any other person" and that it would therefore be a "meeting"
at which l'deliberationsl*take place.
The placement of subsection (r) in section 2 does not
resolve this ambiguity, since section 2 includes various
types of provisions and not merely provisions authorizing a
closed session during a meeting subject to the Open Meetings
Act.2 Although several of these provisions authorize
executive sessions for governmental bodies subject to the
act, others appear to remove some entities completely from
the act. Comvare V.T.C.S. art. 6252-17, 5 2(e), (f), (s),
(h), (j), Cm), to), (P), (s) withid. 5 2(d), (n). Various
other procedural provisions are also included in section 2.
See id. 8 z(a), (b), (c), (i), (W, (l), (r) (telephone con-
ference calls).
2. The Austin Court of Appeals recently issued a
decision reconciling the provisions of the Administrative
Procedure and Texas Register Act on ex varte communications
between agency members in contested cases, - V.T.C.S.
art. 6252-13a, 5 17, with the Open Meetings Act provisions
requiring governmental bodies to deliberate in public.
Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. -
Austin, May 17, 1989) (motion for rehearing filed May 31,
1989); - Attorney General Opinion JM-645 (1987) (Adminis-
trative Procedure and Texas Register Act creates an
exception to Open Meetings Act permitting commission
decisions on claims of privilege to be made in a closed
meeting); cf Attorney General Opinion H-1269 (1978)
(decision-making process under article 6252-13a, V.T.C.S.,
is not exempt from requirements of Open Meetings Act). The
court's list of provisions authorizing executive sessions
did not include section 2(r) of the Open Meetings Act.
P. 5510
E
Mr. Charles Stevenson - Page 5 (JM-1058)
The legislative intent must ultimately be found in the
language of the statute. See. e.a., Government Personnel
Mutual Life Ins. Co. v. Wear, 251 S.W.Zd 525 (Tex. 1952).
The answer to Your ouestion devends on what the lanauaae
~~--a
co-ed
adopted as Senate Biil 168 comm;nicates to the persons who
read it.3 As already pointed out, subsection 2(r) uses the
terms "conferl* and %onference." The same bill that adopted
this provision used very different language in the amend-
ments to subsections l(a) and l(b). The legislature's use
of language in subsection 2(r) that differs from the
language added to the definitions suggests that 2(r) and
those definitions do not refer to the same thing.
Moreover, subsection 2(r) provides that "no discussion
of public business or agency policy that affects public
business shall take place between the members of the
governmental body during the conference." "Meeting" is
defined as "any deliberation" between certain described
persons "at which any public business or public policy over
which the governmental body has supervision or control
is discussed or considered . . . .*I V.T.C.S. art. 6252-17,
§ l(a). The quoted phrases are not identical, but their
differences are subtle. The phrases are sufficiently
similar that a reasonable person could read subsection 2 (r)
to prohibit the kind of discussion which is a defining
characteristic of a "meeting" and therefore to exclude a
"conferencel' from the definition of l'meeting.lq In our
opinion, whatever the legislature may have intended, the
relevant provisions do not communicate an intent to subject
briefing sessions to the Open Meetings Act with the option
of holding them in executive session.
The adoption of Senate Bill 168 involved negotiation
and compromise between competing interests. If briefing
sessions were subject to the Open Meetings Act, the public
would receive notice of the time, place, and subject of such
sessions, although they could be excluded from the actual
briefing. Id. 5 3A. Members of the public would thus have
3. A review of the testimony on this bill shows con-
flicting statements by the senate sponsor. See Hearing on
S.B. 168 before the Senate Comm. on State Affairs, 70th Leg.
(March 23, 1987) (tape recording available from Senate Staff
Services Office); Debate on S.B. 168 on the Floor of the
Senate, 70th Leg. (April 15, 1987) (tape recording available
from Senate Staff Services Office).
p. 5511
Mr. Charles Stevenson - Page 6 (JM-1058)
access to a minimal amount of additional information about
government. The governmental body would have to keep a
record of the briefing session as required by section 2A,
and this requirement presumably would help enforce
the prohibition against board members discussing among
themselves "public business or agency policy that affects
public business" when involved in a conference under
subsection 2(r).
On the other hand, if a governmental body had to comply
with the notice requirements prior to briefings by
employees, it would have to wait three days or seven days to
hear the information, depending on which notice period
applies to it. Id. S 3A(h). In the event of an emergency
or urgent public necessity, it would have to wait for two
hours before the briefing. a Y Attorney
General Opinion JM-985 (198~'(d~&~?~~l~eaning of
emergency). This delay would occur before a session in
which the governmental body would neither deliberate nor
take action, but would only receive some information
relevant to its public duties. Delays in the board members1
receipt of information needed for their work could interfere
with the efficient conduct of public business and might even
paralyze the governmental body in matters of great urgency.
In weighing these competing interests, the legislature might
reasonably have concluded that briefing sessions should be
taken completely out of the Open Meetings Act.
Finally, since members of a governmental body are
subject to criminal penalties for certain knowing violations
of the Open Meetings Act, - V.T.C.S. art. 6252-17, 5 4, a
contrary interpretation of subsections l(a) and (b) and 2(r)
would raise a constitutional question. The Fifth and
Fourteenth Amendments of the United States Constitution
prohibit the enforcement of any law that "either forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application." Connally v. General
Constr. Co., 269 U.S. 385 (1926); see also Baker v. State,
478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute
threatens punishment of people who had no fair warning of
what conduct to avoid. See United States v. Cardiff, 344
U.S. 174 (1952). A higher standard of certainty is required
of a statute imposing criminal penalties than of one relying
on civil enforcement. Xolender v. Lawson, 461 U.S. 352,
358 at n. 8 (1983); see Winters v. New York, 333 U.S. 507
(1948).
We believe that the language of the statute does not
fairly warn persons of common intelligence that a sub-
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Mr. Charles Stevenson - Page 7 (JM-1058)
section 2(r) conference is a "meeting" within the Open
Meetings Act and that they will be subject to criminal
penalties for participation in a conference that is not
conducted according to the requirements of the act. Our
construction of the statute is thus necessary because of the
inclusion of criminal penalties to enforce its procedural
provisions.
SUMMARY
Conferences between members of a govern-
mental body and an employee or employees for
the sole purpose of receiving information or
asking questions are not l'meetings*'or "deli-
berations" subject to any requirements of the
Open Meetings Act, article 6252-17, V.T.C.S.
Subsection 2(r) of the act, adopted by Senate
Bill 168 of the 70th Legislative Session,
removes the conferences it describes from the
coverage of the act.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5513