   OFFlCE   OF THE    ATTORNEY   GENERAL   STATE   OF TEXAS

   JOHN CORNYN




                                                    May 26,1999



The Honorable Joe F. Grubbs                                   Opinion No. JC-0057
Ellis County and District Attorney
Ellis County Courthouse                                       Re: Notice requirements applicable to executive
Waxahachie, Texas 75165-3759                                  session held to allow a governmental body to
                                                              consult with its attorney under section 55 1.071 of
                                                              the Government Code (RQ-1208)
Dear Mr. Grubbs:

        You request advice about the “attorney consultation” provision in the Open Meetings Act,
chapter 55 1 of the Government Code (the “Act”). You state that a complaint has been tiled with
your office alleging that the mayor, city council, city manager, and city attorney ofRed Oak, Texas,
have violated the act. You inform us that the complaint makes the following allegation:

                     [O]n April 13, 1998, the Red Oak City Council went into an
                     executive session to discuss an item that was not specifically listed on
                     the Executive Session agenda. The City Council consulted with their
                     attorney in such a closed session on a proposed fireworks ordinance.
                     The proposed fireworks ordinance and its effect on recently annexed
                     property was the subject of numerous threats of litigation.          The
                     fireworks ordinance was listed on the “regular” meeting agenda, but
                     while the agenda did list an item for executive session, there was not
                     a listing on the Executive Session agenda to consult with their
                     attorney on this specific subject matter.

Letter from Honorable Joe F. Grubbs, Ellis County and District Attorney, to Honorable Dan
Morales, Attorney General (Oct. 7, 1998) (on tile with Opinion Committee) [hereinafter “Request
Letter of 10/7/98”].

         We assume the complaint relates to a possible violation of section 551.144 of the
Government Code, which prohibits a member of a governmental body from knowingly calling or
aiding in calling a closed meeting that is not permitted by the Open Meetings Act or participating
in a closed meeting that is not permitted by the Act. See Tovar v. State, 978 S.W.2d 584 (Tex. Crim.
App. 1998) (en bane) (construing “knowingly” in section 55 1.144 of the Government Code). Of
course, we cannot determine in a legal opinion whether or not any person has actually violated the
Open Meetings Act. This determination requires the investigation and resolution of fact questions,
which cannot be done in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. DM-98
The Honorable    Joe F. Gmbbs      - Page 2          (X-0057)




(1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2; Tex. Att’y Gen. ORD-426
(1985). Moreover, “[i]n the trial of all causes in the District Courts, the plaintiff or defendant shall,
upon application made in open court, have the right of trial by jury.      .” TEX. CONST.art. V, 5 10.
Finally, it is within your broad discretion as a prosecutor to determine whether and how to prosecute
an alleged violation ofthe law. See Meshell v. State, 739 S.W.2d 246,254 (Tex. Crim. App. 1987)
(en bane).

        You ask the following question:

                          Under the authority of the exception encompassed in Section
                 55 1.07 1 of the Texas Government Code, must a governing body post
                 notice of an executive session, stating that the governing body will be
                 consulting with their attorney, when such governing body wants to
                 consult in private with their attorney, regarding an issue posted on the
                 “regular” agenda?

Request Letter of 10/7/98 supra, at 1.

        The Act requires a governmental body to give written notice of the date, hour, place, and
subject of each meeting that it holds. TEX. GOV’T CODE ANN. 3 551.041 (Vernon 1994). Your
question relates to section 551.071 of the Government Code, which reads as follows:

                         A governmental body may not conduct a private consultation
                 with its attorney except:

                         (1) when the governmental         body seeks the advice of its
                 attorney about:

                             (A)    pending or contemplated     litigation; or

                             (B)    a settlement   offer; or

                          (2) on a matter in which the duty of the attorney to the
                 governmental     body under the Texas Disciplinary         Rules of
                 Professional Conduct of the State Bar of Texas clearly conflicts with
                 this chapter.

Id. 5 551.071.

         You suggest that a “private consultation” with an attorney is not a “meeting” within the Open
 Meetings Act, so that advance written notice is not required under the Open Meetings Act. You
 point out that, except for the attorney consultation exception, the provisions authorizing executive
 sessions use the words “open meetings” or “closed meetings.” See e.g., id. $4 551.072 (closed
The Honorable   Joe F. Grubbs   - Page 3         (X-0057)




meeting to deliberate matters concerning real property); 55 1.074 (open meeting not required for
personnel matters); 55 1.076 (open meeting not required to deliberate on deployment of security
personnel or devices). You argue that the legislature, by this specific language, distinguished
attorney consultations from other exceptions. In addition, you suggest that this interpretation is
appropriate because the nature of an attorney’s advice often requires that it be given in private, and
the circumstances often dictate that such advice be given immediately to the governmental body,
without having to wait for the item to be posted as an executive session item. If your reasoning is
correct, a governmental body would be allowed to consult with its attorney at any time, without
convening in a public meeting for that purpose and without having to provide written notice of the
date, hour, place, and subject of the consultation.

         The courts have not discussed the use oftbe word “consultation” instead of “closedmeeting”
to describe executive sessions under section 55 1.07 1, but they have made it clear that a consultation
under this provision is a meeting subject to the requirements of the Open Meetings Act, including
the notice requirement.   See Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956, 958-59
(Tex. 1986); Lone Star Greyhound Park, Inc. v. Texas Racing Comm’n, 863 S.W.2d 742,746-47
(Tex. App.-Austin 1993, no writ); see also TEX. GOV’T CODE ANN. $ 551.001(4) (Vernon 1994)
(defining “meeting”).     The wording of section 551.071 may reflect its purpose of protecting
confidential communications between the governmental body and its attorney. See Tex. Att’y Gen.
Op. Nos. MW-417 (1981) at 2; M-1261 (1972). Most ofthe executive session provisions relate to
deliberations among members of the governmental body rather than consultations with a third party.

         One case seems to support your view, but it has been overruled sub silentio by the Texas
Supreme Court. The court in Rogers v. State Board of Optometry, 619 S.W.2d 603 (Tex. Civ.
App.-Eastland    1981, no writ), appeared to distinguish between a “meeting” and a “private
consultation between the governmental body and its attorney” as authorized by section 2(e) of
former article 6252-17 of the Revised Civil Statutes, the predecessor of section 551.071 of the
Government Code. The Rogers court held that the notice requirements for open meetings did not
apply to an executive session called to seek an attorney’s advice with respect to pending litigation
and that the Open Meetings Act did not require such a session to be listed as an agenda item on the
notice posted for an open meeting. Rogers, 619 S.W.2d at 606.

       The Texas Supreme Court overruled Rogers sub silentio in Cox Enterprises. In Cox
Enterprises, the court determined that executive sessions held under the predecessor of Government
Code section 551.071, section 2(e) of article 6252-17 of the Revised Civil Statutes, are subject to
the notice requirements of the Open Meetings Act, stating that “[a]n executive session, even if
properly convened and closed to the public . . , falls within the definition of ‘meeting.“’ Cox
Enterprises, 706 S.W.2d at 958. Thus, a school board was required to post adequate notice that it
would discuss “a major desegregation lawsuit,” even though it held the discussion in an executive
session. Id. at 959. The court stated that “a school board is not expected to disclose its litigation
strategy, but it cannOt totally conceal that a pending desegregation lawsuit will be discussed.” Id.
Accordingly, the Open Meetings Act requires a governmental body to give notice of the subject of
 its meetings, including an executive session consultation with its attorney. Ofcourse, as we discuss
The Honorable   Joe F. Grubbs   - Page 4         (X-0057)




below, whether a particular notice item complies with the Open Meetings Act is a question of fact.
See Tex. Att’y Gen. Op. No. JM-985 (1988) at 3.

        If a governmental body truly needs to consult with its attorney on an emergency basis, the
Open Meetings Act permits it to do so. In the event of an emergency or urgent public necessity, a
governmental body may hold a meeting by posting two hours notice, which clearly identifies the
emergency or urgent public necessity. The Open Meetings Act provides that an emergency or
urgent public necessity exists only “if immediate action is required of a governmental body because
of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation.”
TEX. GOV’T CODE ANN. 5 551.045(b) (Vernon 1994).

          Even if an actual emergency exists, the governmental body must “clearly identity” the reason
for the emergency in the notice. Id. 3 551.045(c); Markowski Y. City of Mzrlin, 940 S.W.2d 720,
724 (Tex. App.-Waco 1997, writ denied); Piazza Y. City of Granger, 909 S.W.2d 529,533 (Tex.
App.-Austin      1995, no writ). Attorney General Opinion JIM-1037 determined that the two-hour
notice given of an “emergency meeting” to discuss litigation tiled against a city did not comply with
the Gpen Meetings Act, based on the fact that the notice stated no reason for the emergency. The
opinion also pointed out that the situation did not require “immediate action,” because the city had
more than 20 days in which to take action. Tex. Att’y Gen. Op. No. JM-1037 (1989) at 2-3; see also
Markowski, 940 S.W.2d at 725 (facts justified emergency meeting to seek attorney’s advice about
litigation filed against the city; distinguishing Attorney General Opinion JM-1037).

         Having concluded that an attorney consultation is a “meeting” subject to notice under the
Open Meetings Act, we next address the notice requirement.         You specifically ask whether the
governing body must post “notice of an executive session, stating that the governing body will be
consulting with their attorney,” when it wants to consult in private with the attorney about an issue
posted on the “regular agenda.” Request Letter of 10/7/98 supra, at 1.

        Whether a particular notice item complies with the Act generally requires the resolution of
fact questions. River Rd. Neighborhood Ass’n Y. South Tex. Sports, 720 S.W.2d 551, 557 (Tex.
App.-San Antonio 1986, writ dism’d w.o.j.). Accordingly, we cannot advise you in an attorney
general opinion whether or not the notice item in question complied with the Act. See Tex. Att’y
Gen. Op. Nos. O-291 1 (1940); DM-98 (1992) at 3. We can advise you of the standards stated by
the courts and of the kinds of facts that may be relevant to the validity of a notice item.

         The Act requires the notice to frilly disclose the subject matter of a meeting to the members
ofthe interested public. City ofSun Antonio Y. Fourth Court ofAppeals, 820 S.W.2d 762,765 (Tex.
1991); Con Enterprises, 706 S.W.2d at 960. More specific notice is required for subjects of special
interest to the public than for routine matters. Id. at 959; see also Port Isabel Zndep. Sch. Dist. v.
Hinojosa, 797 S.W.2d 176 (Tex. App.Xorpus Christi 1990, writ denied). For example, in the case
you inquire about, the degree of public interest in the proposed fireworks ordinance would be
relevant to determining whether notice was adequate. The governmental body’s usual practice in
formulating notice may also be relevant to its adequacy in a particular case, depending on whether
The Honorable   Joe F. Grubbs    - Page 5          (JC-0057)




it establishes particular expectations in the public about the subject matter ofthe meeting. River Rd.,
720 S.W.2d at 557.

        An issue about the City of Red Oak’s usual practice in formulating notice of city council
meetings is raised by notice you describe. You write that the fireworks ordinance was listed on the
“regular”meeting     agenda, but there was no listing on the “executive” session agenda for the council
to consult with the city attorney on this specific subject matter. See Request Letter of 1O/7/98 supra,
at 1. The distinction you suggest between a “regular” and “executive” agenda relates to a common
practice of governmental bodies in preparing notice of their meetings and not to an express
requirement of the Open Meetings Act. Neither the Open Meetings Act nor cases interpreting it
require the notice to state that a particular subject will be discussed in executive session rather than
in open meeting. See Tex. Att’y Gen. LO-90-27. Rather, section 551.041 requires notice of the
subject matter to be considered at a meeting of a governmental body.

         Nonetheless, some governmental bodies indicate in their notice which items will be discussed
in open session and which may be discussed in closed or executive session. See, e.g., Cox
Enterprises, 706 S.W.2d at 957. When the notices posted for a governmental body’s meetings
consistently distinguish between subjects for public deliberation and subjects for executive session
deliberation, an abrupt departure from this practice may deceive the public and thereby render the
notice inadequate.     In River Road, the court described the notice of a school board meeting as
deceptive because of its departure from the board’s customary description of an item set for board
action. The school board held five emergency meetings to discuss the Alamo Stadium lease, four
of which were preceded by notice describing the meeting’s purpose as “discussion/action.”          The
notice of the fifth meeting limited its purpose to “discussion,” a description well-understood in the
community to mean that no action would be taken, but the board acted to approve the lease at that
meeting. The court held:

                         Considering all of the facts and circumstances present in this
                case, it can only be concluded that the notice of the May 3 1 meeting,
                which described the purpose of the meeting only as “discussion,” was
                deceptive because, in view of the well established custom and
                practice of the District, it did not alert the public to the fact that action
                might be taken.

River Rd., 720 S.W.2d at 557. If a particular notice abruptly departs from a customary practice of
distinguishing between the items to be discussed in open session and those to be discussed in closed
or executive session, a question may arise as to its adequacy to inform the public of the subjects to
be discussed at the meeting. Accordingly, facts about the city’s usual practices in formulating the
notice ofRed Oak City Council meetings are relevant to determining whether or not the notice item
on the fireworks ordinance complied with the Gpen Meetings Act.
The Honorable   Joe F. Grubbs   - Page 6         (X-0057)




                                        SUMMARY

                         The Open Meetings Act requires a governmental body to give
                notice of the subject of its meetings.        A governmental    body’s
                consultation with its attorney held in closed session is not exempt
                from the requirements of the Act. No judicial decision or attorney
                general opinion states that a governmental body must indicate in the
                notice of the meeting whether a subject will be discussed in open or
                closed session. However, if the notices posted for a governmental
                body’s meetings consistently distinguish between subjects for public
                deliberation and subjects for executive session deliberation, an abrupt
                departure from this practice may raise a question as to the adequacy
                of a notice to inform the public.




                                                     I         \
                                               JOHN     CORNYN
                                               Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KBNT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General
