                                 ATTORNEY GENERAL OF TEXAS
                                              GREG        ABBOTT




                                                   June 1,2009



The Honorable Kenda Culpepper                              Opinion No. GA-0717
Rockwall County Criminal District Attorney
Rockwall Government Center                                 Re: Validity of a city charter provision that
1101 Ridge Road, Suite 105                                 permits a majority of council members to call a
Rockwall, Texas 75087                                      special meeting (RQ-0763-GA)

Dear Ms. Culpepper:

        You indicate that section 3.08 of the charter of the City of Rockwall declares that "[s]pecial
meetings of the City Council shall be held at the call of the Mayor or a majority of the Council
members ... upon provision of public notice in accordance with state law. ,,\ You inquire as to
whether section 3.08 violates the Open Meetings Act, chapter 551 of the Government Code (the
"Act") either facially or as it may be applied. Specifically, you ask whether "a majority of council
members [may] call, without deliberating at a publicly noticed meeting ... a special meeting of the
city council without violating the Open Meetings Act." Request Letter at 1. As we have not been
presented with a specific factual scenario, our analysis is necessarily limited to whether the charter
provision violates the Act on its face.

       The Act does not specifically address the procedures for calling a special meeting of a
governmental body. However, any procedures adopted by the city council must be consistent with
the Act's requirements. Under the terms of the Act, "[e]very regular, special, or called meeting of
a governmental body shall be open to the public, except as provided by this chapter." TEx. GOV'T
CODE.ANN. § 551.002 (Vernon 2004). The Act defines "meeting" to include a "deliberation between
a quorum ofa governmental body." fd § 551.001(4) (Vernon SUpp. 2008). A "deliberation" is a
"verbal exchange during a meeting between a quorum of a governmental body ... concerning an
issue within the jurisdiction of the governmental body or any public business." fd § 551.001(2).2
Because the Rockwall City Council consists of a mayor and six council members, a majority of the


         lRequest Letter (available at http://www.texasattomeygeneral.gov).

         21n a prior opinion, we said that the Act "does not require that governmental body members be in each others'
physical presence to constitute a quorum." Tex. Att'y Gen Op. No. GA-0326 (2005) at 3. Relying, inter alia, on
Esperanza Peace & Justice Center v. City a/San Antonio, the opinion found that the Act is applicable to a governmental
body that takes action without conducting a public meeting, even though that action avoids the technical definitions of
"meeting" and "deliberation." Id. at 5 (citing Esperanza Peace & Justice Ctr. v. City a/San Antonio, 316 F. Supp. 2d
433,472,478).
The Honorable Kenda Culpepper - Page 2                        (GA-0717)



Council, as called for by the charter provision, also constitutes a quorum of the governmental body
(Council plus Mayor) under the Act. The word "quorum" generally means "a majority of a
governmental body." Id § 551.001(6).

       In a prior opinion, this office stated that "agenda preparation procedures may not involve
deliberations among a quorum of members of a governmental body except in a public meeting for
which notice has been posted." Tex. Att'y Gen. Op. No. DM-473 (1998) at 3. We need not,
however, adopt any global statement about agenda preparation procedures, because the question
before us is more narrow than that. 3 We are asked only to determine whether a majority of the city
council may call a "special meeting" under the referenced charter provision without violating the
Act.

        As was the case with agenda preparation, the procedures for calling a special meeting under
the charter provision may not involve deliberations among a quorum of the city council outside of
a public meeting for which notice has been posted. While the charter provision appears to invite a
quorum of the governmental body to engage in a prohibited exchange "concerning an issue within
the jurisdiction of the governmental body or any public business," the charter provision does not
necessarily mandate any deliberation among a quorum of city council members. TEx. GOV'T CODE
ANN. § 551.001(2) (Vernon Supp. 2008). In addition, your request to us expressly assumes a call
made "without deliberating at a publicly noticed meeting." Request Lett~r at 1. In other words, your
question asks us to assume the call at issue is made without deliberation. Thus, we cannot conclude
that every conceivable procedure put into place by the city council to implement section 3.08 of the
charter would on its face violate the Act. As a result, we cannot determine as a matter of law that
the charter provision at issue would contraven~ the Act.

        We caution, however, that "if a member or group of members of a governmental body
knowingly conspires to circumvent the [A]ct by meeting in numbers less than a quorum for the
purpose of secret deliberations in violation of the [A]ct, the person or persons commit a criminal
offense.,,4 Tex. Att'y Gen. Op. No. DM-0473 (1998) at 3.




         3We also need not address section 22.038(b) of the Local Government Code, which provides that "[t]he mayor
may call a special meeting on the mayor's own motion or on the application of three aldermen." TEx. Loc. Gov'r CODE
ANN. § 22.038(b) (Vernon 2008). That chapter of the Local Government Code is applicable only to a Type A general-
law municipality. Id § 22.001. The City of Rockwall is on the other hand, by virtue of its charter, a home-rule
municipality.

          4Jn considering a claim by two elected officials that section 551.144 of the Act violates the First Amendment,
the Fifth Circuit concluded that this provision is a content-base~ speech regulation that is subject to strict scrutiny review,
and remanded the case for further proceedings in the district court. Rangra v. Brown, No. 06-51587,2009 WL 1100611,
at **1,3 (5th Cir. Apr. 24, 2009). Although the court directed the district court to apply strict scrutiny in evaluating the
elected officials' First Amendment claim, it did not invalidate section 551.144. See id.
The Honorable Kenda Culpepper - Page 3         (GA-0717)



                                    SUMMARY

                     We cannot conclude, as a matter of law, that a charter
              provision of the City of Rockwall permitting a majority of members
              of the city council to call a special meeting violates the Open
              Meetings Act on its face.                                     '

                                            Very truly yours,




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
