--.   =-_     :_.,




                                       The Attorney Germ-al of Texas
                                                                 Novahor        13,        1981

      MARK WHITE
      ht0+y          c30m81



                                     l4r. Julio   Garcia                                             opinion       no.   nu-390
      supmlu cowl Eulldlng
      P. 0. Box 1284s                District    Attoraey
      Atiln. TX. m-f11               DimIt.     Zapat* L Webb Countica                               Rc:      Whether    acting     called
      s12i4m-2m1                     P. 0. Box 1343                                                  by       district        judge      and
      Telex 91011)7+1m7              Laredo,    Texan.    78040                                      attended       by county judge      and
      T.l.copl~ SlW-
                                                                                                     NO      county    cd~aionera          la
                                                                                                     subject      to the Open Meetinga
      idol till8 Sl, sune 1400                                                                       Act-
      oenm.Tx. 78201
      214w42as44                     Dear    l4r.   Garcia:


      4824AlBolt Ave.. suite 180             You ask whether    a particular                   conference    vaa     held in violation     of
      El Pa&J.TX. 7waS               the    Open Meetings  Act,   article,                 6252-17.    V.T.C.S.       The essential    facts
      01-                            are    as follol?a:

                                             On   July    16.    1981,   the  dfstrict       judge     of    the     49th     Judicial
      1220Dan44 Ave, SUN42m
      Noua:on.Tx. 77002              District      convanad     a conference     in his      office.        You state        that the
      71-                            purpose     of thla     conference    was to “present         poaalble      alternatives        And
                                     suggaatlona       to combat the economic crisis            facing Webb County.”              hw
                                     those    in attendance      were the county       judge   and tvo county         comlaaion.era
      ass ema~ay. sun4 512
                                     of Webb County.
      Lubbok. TX. 7mol
      #M416231)
                                            Section    3A of article          6252-17    requires      public  notlce   of l.apendlng
                                     meetings     of governmental          bodies.     Your latter       is accqanied       by copies
      Uoo N. T.n(h. bllo a           of    public     notices       of      certain      maetinge;       there   is.    hovever.     no
      hlcAllm. TX. 78801
      51-7
                                     Indication      that     public       notice     of   the     July    16 gathering     vaa   ever
                                     provided.

       200 MaIn Plaza. eulle 400             The    following     provisions          of     the Open Meetings           Act   are   relevant   to
       San Anlonl~, TX. 7(uos        your question:
       s12t22b41e1

                                             Section     1.     As used    in   thia         Act:
       All Eqpwloppomnnyl
       Afflfln4liv4 ActIon EmploYu                           (a)   ‘Uecting     mana    any dalibaration        between
                                                     a guonm       of -bara         of a govarnwntal           body at
                                                     which any public         bualnaaa     or public     policy     over
                                                     vhich     the governmental        body   hea auperviaion          or
                                                     control     is discussed       or considered.      z     at which
                                                     any formal     action    la taken....
Mr. Julio   Garcia    - Page     2     olw-390)




                   (b) ‘Deliberation’     means   A verbal   exchange
            between A quorum of members of A governmental         body
            attempting  to arrive     at A decision    on any public
            business.

                  (4          ‘Governmental          body’        mema.    ..     wary
            Comiaaionera         Court...   .

                    (d)     ‘Quorum’ unless    othervise     defined                  by
            constitution.       ch8rter. rule   or law applicable                     to
            such     governing     body, means    A majority      of                 the
            governing     body.

            Sec. 2.      (A)  Except as otherwise          provided    in this
            Act or specifically        permitted    in the Constitution.
            every    regular,      special,      or   called      meeting    or
            session    of every     governmental      body shall       be open
            to the public;      and no closed       or executive       meeting
            or session...     shall    be held unless...,

            Sec. 3A.      (a)     Written     notice  of the date,         hour,
            place,    and    subject      of each     meeting      held    by a
            governmental       body     shall      be  given      before     the
            meeting    as prescribed          by this    section.       and any
            action   taken by a governmental            body at a meeting
            on a subject      which vaa not stated         on the agenda in
            the notice     posted    for such meeting       is voidable....

            Sec. 4.          (a)     Any member of A governing                 body who
            wilfully        calls     or aids     in calling       or organizing         a
            special        or     called      meeting     or   session        which    is
            closed      to the public,            or who vilfully            closes    or
            aids     in closing          a regular      meeting       OT session       to
            the public,            or who vllfully            participates          la a
            regular,         special,        or called       meeting       or session
            which      is     closed       to   the    public     where       a closed
            meeting       is not permitted           by the provisions           of this
            Act.
            -       shall      be   guilty     of  a  misdemeanor....

            (b)    Any member or group of members of s governing
            body who conspire         to circumvent       the provisions    of
            this   Act by meeting        in nutiers     leas    than a quorum
            for    the     purpose      of    secret      deliberations     in
            contravention       of this      Act shall       be guilty   of A
            misdemeanor....        (Emphasis    added).

       You suggest     that  this   conference   was not held in violation      of the
Open Meetings      Act because      the members of the co~issloners         court  did
not psrticipste       in calling       it.  see section     4(a),   (b), or engage   in
“dellberotlons”      es that    term is defined      in section   l(b).
I



    hr.   Julio     GAKCIA - Page         3     (MW-390)



           We must  first      determine     whether    this   gathering   constituted      a
    “maeting”   As defined        in section      I(A).     As noted.    a quorum.     &.
    majority,  of the members of A governing            body must be present      for there
    to be A “meeting”     vithin     the meaning     of this  section.

           Article     V. section              18   of   the     Texas   Conaticution         provides       in
    pertinent      part that:

                    Tbe    County   hlssionera                   so    chosen,     with   the
                    County   Judge as presiding                 officer,     shall    compose
                    the Cwnty     Commissioners              Court....

    Article       2342,   V.T.C.S..       provides       that:

                    The     several       commissioners,            together      with    the
                    county      judge,      Shall   compoaa          the    ‘Co~iaaiorara
                    Court.‘...,

    Article       2343.   V.T.C.S..       states     that:

                    (A) Any three             members of the court,      including,the
                    county      judge,           constitute   A    quorum       for    the
                    tr8na8ction      of       any business  except    that    of....

            These provisions         eateblish      thAt the county        judge   la prrrt of the
    commissioners       court.     and that     the presence     of three      or more mambers of
    said    court,    including      the county      judge,   constitutes       A “quorum”  of the
    court.       Inasmuch       se   the    county     judge   and     two    comiasioners    were
    present     at   the July       16 conference,         A “quorum”      of the cowAisa1oner.s
    court WAS clearly          in attendance       At that   conference.

            With renard       to the uortion         of section        l(a)    vhich     estsblishes        the
    prerequisites         of A “meeting,”         Commiasionere.’        ‘Court      of Rays County v.
    District      Judge,     22nd Judicial        District       of DAya County.          506 S.W.Zd 630
     (Tex. Civ. ADD. - Austin             1974. writ        ref’d    n.r.e.1.       is cited      to us for
    the propositibn          that   the Open Meetings             Act is not ViOlAfed where the
    commissioners        court meets but does not tske any conclusive                           Action.       It
    is    true     that     this    ceae     stands       for     this      proposition.           When the
    particular       meeting     At issue      in the COIIssiSSiOnerS’ Court CAse WAS held
    on August       4, 1972, however,          the definition          of “meeting”         nom contained
    in the Gpen Meetings            Act WAS not in ef feet.                  The present        definition,
    vhich    makes it clear        that    the Act la Violated              If final     Action      is taken
    z    if public       business      or policy       ovet     which     the governmantA             body in
    question      h8s supervision        or control        is discussed         or considered.          becAme
    operAtive      on JanuAry 1. 1974.             See Acts 1973. 63rd Leg.,                 ch. 31.At 45.
    The Coraissioners’           Court   case istherefore.               of no help hare.

            With respect     to your argument      that sections      4(a)  And (b) were not
    ViOlAted       because    the   commissioners      Court     did    not   PArtiCipAte      in
    calling     the July 16 conference,        we note th.st pertlcipation          in calling
    an illegal       meeting    is not necessarily      determinative       of whether     those
    SeCtiOnS      hew    been violeted.       SeCtiOn    4(a)    also    embrAce     those    who
.



    Hr.   Julio    GARCIA - Page         4      olw-390)



    vilfully     participate       in an illegally-held               closed    meeting,         whether   they
    join     in calling     it   or not.

            To a-rise:              (1)   A quorum of           the    COpmiSSiOnarS        COUrt WAS
    present      8t the      July     16 conference,         And therefore           “A quorum of A
    governmantal        body” WAS present         vithin       section      l(a)   of the act;     (2)
    whether      final    action      is   t8kan    is   not     detarmin8tive         of whether   cm
    article      6252-17      “meeting”      has   taken      place;      and    (3)    one need  not
    participate        in   calling      an illegal       maeting       in order        to be within
    section     4(A)    of the Act.

            These     conclusions           are    essential        to     the    resolution        of     your
    question.        In order        to determine         whether      the July       16 conference         WAS
    held    In violation        of the Open Meetings              Act, however,        ‘Ye would have to
    make several       findinga        of fact , and the resolution               of fact questions            is
    outside      the    scope      of    the    opinion      process.         Under     section      l(a),       A
    “deliberstlon”         is an essential           element     of a “meeting”.           See sec.      l(b).
    On the facts          given      WC cannot        determine       whether      any “deliberations”
    took place.          Section        b(8)    provides      that     s viol8tion         occurs      when A
    member      %ilfully”           participates          in    an     illegally        closed      meeting.
    Whether any of the co~IaaIonera’                      Court mambera vilfully              participated
    in an illegally          closed      meeting     in this     instsnce       is A fact     question.

                                                  SUMMARY

                           The presence         of    the    county        judge       and    two
                   members of the collnniaaionera               court      at sn assembly
                   constitutes         A “quorum”      of the court            for purposes
                   of article       6252-17.     V.T.C.S.        Whether final           action
                   is     taken      la    not    determinative             of    whether        A
                   “meeting”       has occurred        within      that      atstute.         One
                   need      not    participate        in     calling         an    illegally
                   closed       meeting      to    be    subject        to     the      penalty
                   provisions        of section       4(a)     of the statute.                The
                   question      of vhether        the particular            conference         8t
                   iSSUe     here ViolAted       the Statute        iS A fACt qUeStiOn
                   vhich     la beyond the scope of the opinion                     process.




                                                                 MARK            WHITE
                                                                 Attorney      CenerAl      of    TeXAS


    JOHN W. FAINTER, JR.
    First Assistant Attorney                 GenecAl


    RICHARD E. GRAY III
    Executive Assistant            Attorney       General
Mr. Julio    Garcia   - Page   5   (mJ-nG)




Prepared    by Jon Bible
Assistant    Attorney  GenerAl


APPROVED:
OPINION COnnITTEE

Susm L. Garrison.       ChAirPan
Jon Bible
Rick Gilpin
Jim Woellinger
Bruce Youngblood
