                     January27, 1976


The Honorable Bevington Reed       Opinion No. H-772
Commissioner, Coordinating Board
Texas College and University       Re: Whether certain
     System                        university groups are
P. 0. Box 12788, Capitol Station   required to hold open
Austin, Texas 78711                meetings.
The Honorable Grover E. Murray
President
Texas Tech University
P. 0. Box 4349
Lubbock, Texas 79489
Gentlemen:
     you have asked our opinion on the applicability of the
Texas Open Meetings Act, article 6252-17, V.T.C.S., to
meetings of particular bodies. Dr. Reed asks if the meetings
of the general'faculty of a state-supported college or
university are covered by the Open Meetings Act. Dr. Murray
asks if the meetings of the Texas Tech University Athletic
Council are covered by the Act.
     The extent of the Open Meetings Act's coverage is
established in the definitions of "governmental bodies" and
"meetings." Section l(c) of the Act provides in part:
          (c)'Governmental body' means any board,
          commission, department, committee, or
          agency within the executive or legislative
          department of the state, which ,isunder
          the direction of one or more elected or
          appointed members. . . .




                         p. 3261
The Honorable Bevington Reed
The Honorable Grover E. Murray - page 2   (H-772)


Section l(a) of the Act provides in part:
         (a) 'Meeting' means any deliberation
         between a quorum of members of a govern-
         mental body at which any public business
         or public policy over which the govern-
         mental body has supervision or control
         is discussed or considered, or at which
         any formal action is taken.
     Thus, it is apparent that before the.Act is applicable to a
meeting of a statewide public body, five prerequisites must
be met. These are:
          (1) The body must be an entity within
          the executive or legislative department
          of the state:
          (2) The entity must be under the control
          of one or more elected or appointed
          members;
          (3) The meeting must involve formal
          action or deliberation between a quorum
          of members. Cornare Attorney General
          Opinions I-l-2.64)~   and H-3 (1973)
          holding that meetings of committees
          consisting of less than a quorum of the
          parent body must be open;
          (4) The discussion or action must
          involve public business or public policy;
          and
          (5) The entity must have supervision or
          control over that public business or
          policy.
     We believe it is clear that the first, third and fourth
of these tests are satisfied in each of the cases about
which you inquire. It is necessary, however, to determine
(1) whether these two bodies are under the direction of one
or more elected or appointed members and (2) whether they
discuss business or policy over which they have supervision
or control.



                           p. 3262
The Honorable Bevington Reed
The Honorable Grover E. Murray - page 3 (H-772)



    _We believe the Legislature's
                    _.     _      use of the word "appointed"
in this context was designed to signify something more than
normal employment. We are supported in this belief by the
proceedings on the floor of the House of Representatives on
January 29, 1973, when the bill providing for substantial
changes in the law was being debated. Acts 1973, 63rd Leg.,
ch. 31, p. 45. The author of the bill explained that the
word "member" in section l(c) was not intended to include
staff. A colloquy between Representative Poff and the
author of the bill, Representative Parker, used the Insur-
ance Commission as an example and indicated:
              Poff: Mr. Parker, in.your defini-
         tion ne     word member aren't you
         excluding staff? Now that was the way I
         understood it. When you talk about a
         quorum of members, you don't mean to
         cover staff do you?
              Parker:. No.
              Poff: All right, that was the way
         I undaood    it. So by 'member' you
         mean the actual ~InsuranceCommissioners.
         Now if they all get together with,some
         s,taff~you'vegot a quorum of members
         plus its,staff. But as long as its just
         employees you're not going tommake it an
         open meeting,~right?
               Parker: Mr. Poff, your astuteness
          sometZii&YZazes me.
     Accordingly, we believe that where the general faculty
of an institution is solely a group of employees, as would
normally be the case, its meetings are not covered by the
Open Meetings,Act.




                             p. 3263
The Honorable Bevington Reed
The Honorable Grover E. Murray - page 4 (H-772)


     With regard to the Athletic Council at Texas Tech
University, Dr. Murray informs us that the Council consists
of nine members appointed by the President, who is the chief
executive officer of the University. Texas Education Code
s 109.23. We have previously held that the University of
Texas Athletics Council includes appointed members. Attorney
General Opinion H-438 (1974). That Council included five
members appointed by the President of the University and two
members appointed by the Board of Regents. Furthermore, the
State Textbook Committee has been found to be composed of
appointed members. Attorney General Opinion M-136 (1967).
That Committee wascomposed of persons nominated by the
Commissioner of Education and approved by the,State Board of
Education. Acts 1949, 51st Leg., ch. 299, p. 537 at 542.
Accordingly, it is our opinion that the Athletic Council at
Texas Tech University is composed of one or more appointed
members.
     The remaining question is whether the Athletic Council
has supervision or control over public business or policy.
     The Texas Tech University Board of Regents has adopted
a resolution which provides:
          Resolved that the Board of Regents of
          Texas Tech University does hereby declare
          that it'shall continue to exercise its
          exclusive statutory authority to govern,
          control and direct the policies for the
          Department of Athletics and all other
          intercollegiate athletic programs of the
          University, within the regulations of
          the NCAA and Southwest Conference as
          accepted by the Board;
         And it is further Resolved and declared
         by this Board, that it shall continue to
         exercise its exclusive and final authority
         to supervise and control all matters
         concerning the public business and
         internal affairs of the Department of
         Athletics and all other intercollegiate
         athletic programs of the University;




                            p. 3264
The Honorable Bevington Reed
The Honorable Grover E. Murray - page 5 (H-772)


         And it is further Resolved that the
         Athletic Council of the University may
         review and make recommendations to the
         Office of the President of the Univer-
         sity on any matters pertaining to the
         enforcement of eligibility rules and
         regulations established by any athletic
         conference or national association in
         which the University holds membership.
         Also, the Athletic Council may review,
         offer suggestions and make recommendations
         on any pertinent.matters related to the
         Universityls intercollegiate athletic
         program, however, such recommendations
         and suggestions shall be made to and
         channeled through the Office of the
         Presidentof the University, and it is
         further specifically provided that the
         Athletic Council shall not have final
         .authority,to direct; control or super-
         vise:the operation or activities of the
         Department of Athletics or intercollegiate
         athletic programs of the University.
    Furthermore, Dr. Murray advises us that:
         The Athletic Council,at this University
         has no authority to hire or fire the
         Athletic Director, coaches or staff
         personnel. Personnel contracts are made
         by and between the individual and the
         University. The Athletic Council has no
         power or authority, delegated or other-
         wise, to contract with any person, group
         or corporation concerning athletics.,
         The Council has no authority to direct,
         control or supervise athletics or anything
         else on this campus either by statute or
         Board authority. The Athletic Council's
         advice and recommendations are not a
         prerequisite to action by either the
         Board or the Administration on a matter
         concerning athletics at this University.




                           p. 3265
The Honorable Bevington Reed
The Honorable Grover E. Murray - page 6 (H-772)


Thus, both the structure of the Council and the resolution
granting it power indicate that the Texas Tech Athletic
Council is an advisory body and has no power, actual or
implied, to supervise or control public business. Compare
Attorney General Opinion H-438 (1974), where the structure
of a similar body and all briefs submitted to the Attorney
General on behalf of that body indicated that it exercised
supervisory authority over public business or policy. We
cannot resolve disputed questions of fact, and we neces-
sarily have relied on the facts presented by the University.
According to those facts, the "meetings" of the Texas Tech
Athletic Council do not~meet the definition of that term set
out in the Open Meetings Act,.and its proceedings would not
be required to be held in conformity with the dictates of
that Act.
     However, we strongly caution that should the Council
actually function as something more than a merely advisory
body with the result that it in fact supervises or controls
public business or policy, it would have to comply with the
mandate of the Open Meetings Act regarding public notice and
open meetings, and in that instance, its,members may be
subject to sanctions imposed for failure to comply with the
Act. Open Meetings Act, V.T.C.S. art. 6252-17, S 4; Attorney
General Opinion H-467 (197.4).
                     SUMMARY
               A meeting of a group of employees
          such as the general faculty of a state
          college or university is not covered by
          the Open Meeting~sAct.
               Under the facts presented here, the
          Texas Tech Athletic Council is not re-
          quired to conduct its meetings under the
          dictates of the Open Meetings Act so long
          as it has no supervision or control,
          actual or implied, over public business




                           p.   3266
The Honorable Bevington Reed
The Honorable Grover E. Murray - page     7   (H-772)




            or policy. If it in actuality supervises
            or controls public business or policy, it
            must comply with the mandate of the Act
            and in that instance its members may be
            subject to the sanctions of the Act for
            any failure to comply.




                                                        Texas
APPROVED:




Opinion Committee
jwb




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