                               ATTORNEYGENERAL                      OF    TEXAS
                                            GREG        ABBOTT



                                                 May 18,2005



The Honorable Tom Maness                                Opinion No. GA-0326
Jefferson County Criminal District Attorney
1001 Pearl Street, 3rd Floor                            Re: Proper construction of Government Code
Beaumont, Texas 77701-3545                              section 55 1.143 and whether it is unconstitutionally
                                                        vague (RQ-029 1-GA)


Dear Mr. Maness:

       You ask about the proper construction             of section 551.143 of the Government            Code and
whether it is unconstitutionally vague.’

I.      Background

        Section 55 1.143, an Open Meetings Act enforcement               provision, reads in relevant part:

                           (a) A member or group of members of a governmental body
                  commits an offense if the member or group of members knowingly
                  conspires to circumvent this chapter by meeting in numbers less than
                  a quorum for the purpose of secret deliberations in violation of this
                  chapter.

                          (b) An offense under Subsection (a) is a misdemeanor.               ...

TEX. GOV’T     CODE   ANN. 5 551.143 (Vernon 2004); see also Open Meetings Act (the “OMA”), id.
55 551.001-.146     (Vernon 2004 & Supp. 2004-05).

         You observe that in the past two years your office has conducted two investigations into
allegations that public officials within yourjurisdiction violated section 55 1.143. See Request Letter,
supra note 1, at 1. Although the allegations did not lead to criminal prosecution, you are nonetheless
concerned about the substantial disagreement among interested parties regarding the provision’s
correct construction and constitutionality.    Id.



           ‘Letter fromHonorable TomManess, Jefferson County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Nov. 3, 2004) (on file with Opinion Committee, also available  athttp://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Tom Maness                 - Page 2         (GA-0326)




         Specifically, you note that “the problem in interpretation arises in part from the definitions
section of the COMA],” which you suggest renders section 551.143 meaningless. Id. at 2; see also
TEX.GOV’TCODEANN. 5 551.001 (VemonSupp. 2004-05). Section551.143 criminalizes“meeting
in numbers less than a quorum for the purpose ofsecret deliberations.” See TEX. GOV’T CODE ANN.
5 55 1.143(a) (Vernon 2004) (emphasis added). The provision, however, does not define these terms
separately for its purposes and therefore relies on section 551.001, the general OMA definitional
provision, to supply the definitions. And section 551.001 defines “meeting”and “deliberation” in
                                                                                               7
terms of a governmental body quorum. See Request Letter, supra note 1, at 2; TEX. GOV T CODE
ANN. 5 55 1.001(2), (4) (Vernon Supp. 2004-05).* Thus, you consider section 55 1.143 defective
because on its face it would be impossible for individuals to meet or deliberate in groups less than
a quorum to knowingly circumvent the Open Meetings Act. See Request Letter, supra note 1, at 2-3.




         Z”‘Deliberation’ means a verbal exchange during a meeting between a quonrm of a governmental body, or
between a quorum of a governmental body and another person, concerning an issue within the jurisdiction  of the
governmental body or any public business.”

TEX. GOV’TCODEANN. 5 551.001(2)            (V emon Supp. 2004.05) (emphasis added).

         And “meeting”     is defmed as:

                    (A) A deliberationbetween   a quorum ofa governmental body, or between a quorum
                    of a governmental body and another person, during which public business or public
                    policy over which the governmental body has supervision or control is discussed or
                    considered or during which the governmental body takes formal action; or

                    (B) except as otherwise provided by this subdivision,     a gathering:

                           (i) that is conducted by the governmental        body or for which the
                           governmental body is responsible;

                           (ii) at which a quorum     of members    of the governmental      body is
                           prW3lr;

                           (iii) that has been called by the governmental   body; and

                           (iv) atwhichthemembersreceive      information from, give information
                           to, ask questions of, or receive questions from any third person,
                           including an employee of the governmental body, about the public
                           business or public policy over which the governmental body has
                           supervision or control. The term does not include the gathering of a
                           quonrm of a governmental body at a social function unrelated to the
                           public business that is conducted by the body, or the attendance by a
                           quorum of a governmental       body at a regional, state, or national
                           convention   or workshop, if formal action is not taken and any
                           discussion of public business is incidental to the social function,
                           convention,   or workshop.      The term includes a session of a
                           governmental body.

Id. 5 551.001(4)   (emphasis   added).
The Honorable Tom Maness          - Page 3          (GA-0326)




         In light of its apparent circularity, you ask that we apply section 5 5 1.143 to a hypothetical
situationinwhich,    with therequisiteculpablemental     state, acountycommissionermakes      successive
telephone calls to other members of the commissioners court to discuss public matters and to urge
that the other members vote on those matters in a certain way. See id. at 3.

II.     Analvsis

        A.       Proper Construction       of Section 551.143

                  To answer your questions, we return to section 55 1.143 and note that a violation is
dependent on proof of the presence of an actor or actors, subject to the OMA, who knowingly
conspire to circumvent the act’s requirements by meeting in numbers less than a quorum for the
purpose of secret deliberations. See TEX. GOV’T CODEANN. 5 55 1.143(a) (Vernon 2004). Because
it is the phrase “meeting in numbers less than a quorum for the purpose of secret deliberations” about
which you express concern, we focus on its meaning.

        In construing a statute we are charged with determining and giving effect to the legislature’s
intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is
accomplished by establishing the “plain and common meaning of the statute’s words.” Id.
Generally, if a statute’s meaning is unambiguous, we interpret the statute according to its plain
meaning. Id. Furthermore, we presume that, inter ah, a statute is constitutional and that a result
feasible of execution is intended. See TEX. GOV’T CODEANN. 5 311.021 (Vernon 2005).

        Initially, and important to this analysis, we agree with you that “meeting” in section 55 1.143
is not defined by the OMA’s general definition of the term. See Request Letter, supra note 1, at 2;
TEX. GOV’TCODE ANN. $5 551.143(a) (Vernon 2004), 551.001(4) (Vernon Supp. 2004-05). That
is, the section 551.001 definition of “meeting” as a noun does not apply here because section
55 1.143 employs the word as a verb. See Request Letter, supra note 1, at 2; TEX. GOV’T CODEANN.
$5 551.143(a) (Vernon 2004), 551.001(4) (Vernon Supp. 2004-05). Thus, the phrase “meeting in
numbers less than a quorum” does not present a legal dilemma because the plain meaning of
“meeting” as a verb does not require a quorum.’ Furthermore, we read “meeting in numbers less
than a quorum” to have a particular meaning that does not render the provision circular.

         The OMA does not require that governmental body members be in each other’s physical
presence to constitute a quorum. See TEX. GOV’T CODEANN. 4 55 l.OOl(6) (Vernon Supp. 2004-05)
(defining “quorum” simply as a majority of a governmental body)., As such, we construe section
55 1.143 to apply to members of a governmental body who gather in numbers that do not physically
constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public
matter with a quorum of that body. In essence, it means “a daisy chain ofmembers the sum ofwhom




        ‘See, e.g., THE NEW OXFORD AMERICAN DICTIONARY 1063 (2001) (defining   “meet”   as to ‘r~omeinto the
presence or company of (someone) by chance OI arrangement”).
The Honorable Tom Maness          - Page 4           (GA-0326)




constitute a quorum’” that meets for secret deliberations. Under this construction, “deliberations”
as used in section 55 1.143 is consistent with its definition in section 55 1.001 because “meeting in
numbers less than a quorum” describes a method of forming a quorum, and a quorum formed this
way may hold deliberations like any other quorum, see id. 9 551.001(2).

         This construction is discernible Tom a plain reading of the provision. Moreover, because
your alternative understanding of this phrase renders the provision fatally defective, and because it
is contrary to the presumption that the legislature intended a result feasible of execution, we believe
section 551.143’s proper construction is the one we describe here. And, also important, our
construction comports with past opinions from this office and judicial decisions that have addressed
similar issues.

        As a general matter, Texas civil courts, in construing the OMA, rely on the OMA’s core
purpose, which is to guarantee access to the actual decision-making process of governmental bodies.
See Esperanza Peace &Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433,472 (W.D. Tex.
2001). As such, the civil courts construe the OMA’s provisions liberally in favor of open
government.    See id. Furthermore, “[ w ]h en a majority of a public decisionmaking        body is
considering a pending issue, there can be no ‘informal’ discussion.         There is either formal
consideration of a matter in compliance with the Open Meetings Act or an illegal meeting.” Acker
v. Tex. Water Comm’n, 790 S.W.2d 299,300 (Tex. 1990).

         With these as its guiding principles, the federal district court in Esperanza found that in a
civil context “meeting in numbers less than a quorum for the purpose of secret deliberations” refers
to a quorum or more of a body that attempts to avoid the OMA’s purposes by deliberately meeting
in numbers physically less than a quorum in closed sessions to discuss public business and then
ratifying its actions in a physical gathering of the quorum in a subsequent sham public meeting. See
Esperanza, 3 16 F. Supp. 2d at 473,476; accord Willmann v. City of San Antonio, 123 S.W.3d 469,
478 (Tex. App.-San Antonio 2003, pet. denied); Tex. Att’y Gen. Op. No. JC-0307 (2000) at 8; Tex.
Att’y Gen. LO-95-055, at 4; Tex. Att’y Gen. Op. No. DM-95 (1992) at 4; see generally Hitt v.
Mabry, 687 S.W.2d 791,794 (Tex. App.-San Antonio 1985, no writ). In Esperanza, San Antonio
city council members passed around a consensus memorandum on the city’s budget, which a number
of council members equaling at least a quorum signed individually, and then adopted the budget
reflected in the memorandum at an open meeting without discussing the memorandum’s contents.
The court concluded that the council’s actions concerning the budget were void because they
constituted a meeting held in violation of the OMA. See Esperanza, 3 16 F. Supp. 2d at 478; see also
TEX. GOV’T CODEANN. § 551.141 (Vernon 2004) (“An action taken by a governmental body in
violation of this chapter is voidable.“).

        Jn direct consideration of section 55 1.143, this office has also relied on a definition similar
to the one outlined here to conclude that a governmental body’s actions in avoiding the technical



          4Brief from Joseph R. Larsen, Attorney at Law, Ogden, Gibson, White, Broocks & Longoria, L.L.P., to Office
of the Attorney General at 2 (Jan. 24,2005) (tiled on behalf of the Freedom of Information Foundation) (on tile with
Opinion Committee).
The Honorable Tom Maness           - Page 5       (GA-0326)




definitionsof “meeting” and “deliberation” were nonetheless meetings under the OMA. See
generally Tex. Att’y Gen. Op. Nos. JC-0307 (2000), DM-95 (1992); Tex. Att’y Gen. LO-95-055.

         In Attorney General Opinion DM-95, this office considered whether members of a
governmental body would violate section 551.143’s statutory predecessor if they, without ever
creating a physical quorum, signed a letter on matters relevant to public business and then did not
meet to take action on the matters in open session. The opinion concluded that “the physical
presence of a quorum in a single place at the same time is not always necessary for violation of [the
OMA] to occur. Avoiding the technical definition of ‘meeting’ or ‘deliberation’ is not, therefore,
a foolproof insulator from the effect of the act.” Tex. Att’y Gen. Op. No. DM-95 (1992) at 5.
Moreover, “it would appear the legislature intended expressly to reach deliberate evasions of these
definitions in enacting section4(b) [section 55 1.143’ s statutory predecessor] ofthe act.” Id.; accord
Tex. Att’y Gen. LO-95-055, at 3-4.

         In Attorney General Opinion JC-0307, this office again considered section 551.143 and its
proper construction. In that opinion, this office was asked whether a third party could violate section
551.143 by enticing members of a body to meet in numbers of less than a quorum for purposes of
circumventing the OMA. Relevant to your question, this office, before considering the ultimate
question in that opinion, considered whether a governmental body member could violate section
551.143 by enlisting a non-member to facilitate secret deliberations between members. See Tex.
Att’y Gen. Op. No. JC-0307 (2000) at 4. The opinion, relying on DM-95, concluded that “[blecause
the [OMA] has been construed to apply to situations in which members of a governmental body act
as a body but are not in each other’s physical presence, ” such a violation of section 55 1.143 was
possible. Id.

        Further, the federal district court in Esperanza and the Texas appellate court in Willmann v.
City of San Antonio relied on these attorney general opinions to hold that in the civil context the
OMA is applicable,to a governmental body that takes action without a public meeting, even though
it avoids the technical definitions of “meeting” and “deliberation.” See Esperanza, 316 F. Supp. 2d
at 473; Willmann, 123 S.W.3d at 479. And though neither opinion construed section 551.143 in a
criminal context, both concluded that “‘it would appear that the legislature intended expressly to
reachdeliberateevasions    ofthesedefinitions  in enacting [section 551.1431.” Willmann, 123 S.W.3d
at 479 (quoting Tex. Att’y Gen. Op. No. DM-95 (1992) at 5); Esperanza, 316 F. Supp. 2d at 473
(quoting Tex. Att’y Gen. LO-95-055, at 4). These courts’ construction of “meeting in numbers less
than a quorum” aa applying to, for example, a “walking quorum”5 is consistent with our construction
and is consistent with the OMA’s definition of “meeting” and “deliberation.”

        Returning to your hypothetical,        you ask that we apply section 551.143 to the following
hypothetical situation:

                  Commissioner A makes successive telephone calls to Commissioner
                  B and the County Judge. During these conversations Commissioner


         ‘See Willmann,   123 S.W.3d at 418.
The Honorable Tom Maness       - Page 6         (GA-0326)




               A discusses a matter which has already been posted for the next
               regularly scheduled Commissioners’ Court meeting and urges either
               directly or impliedly that Commissioner B and the County Judge vote
               in a certain way.

Request Letter, supra note 1, at 3. Generally, three members of the commissioners court constitute
a quorum, see TEX. LQC. GOV’T CODEANN. 3 81.006(a) (Vernon 1999), and we assume that in this
opinion the hypothetical county commissioners and county judge would constitute a quorum.

         On the hypothetical’s face, without more, we would not be able to answer your question
conclusively. Commissioner A appears to violate the statute because he seems to be operating with
the requisite culpable mental state and is in fact meeting with a quorum of the commissioners court
to secretly discuss public matters. However, proof ofhis culpable mental state is a fact question the
resolution ofwhich is not appropriate to the opinion process. See Tex. Att’y Gen. Op. No. GA-01 56
(2004) at 10. Furthermore, whether Commissioner B and the County Judge committed a crime is
likewise a fact question dependent on proof of their culpable mental state, and the facts described
on the face of this hypothetical are insufficient for us to determine as a matter of law that
Commissioner B or the County Judge has violated the statute.

        You ask us, nevertheless, to assume that the commissioners and county judge knowingly
conspired to circumvent the OMA. See Request Letter, supra note 1, at 3. Based on such
assumptions, because they, in effect, achieved a quorum and held secret deliberations with the intent
to avoid an open meeting, Commissioner A, Commissioner B, and the County Judge appear to have
violated section 551.143.    CJ Harris County Emergenq Serv. Dist. No. I v. Harris County
Emergency Corps, 999 S.W.2d 163, 169 (Tex. App.-Houston            [14th Dist.] 1999, no pet.) (no
evidence that the members were attempting to circumvent the OMA by using telephone to avoid a
quorum).

        B.      Section 551.143’s Constitutionality

                 You also ask whether section 55 1.143 is unconstitutionally     vague on its face. See
Request Letter, supra note 1, at 3. Generally, the void-for-vagueness doctrine “requires that a penal
statute define the criminal offense with such definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.”     Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations omitted). Still, “[a]
provision need not      be cast in terms that are mathematically precise; it need only give fair warning
of the conduct prescribed, in light of common understanding and practices.” State v. Garcia, 823
S.W.2d 793,798 (Tex. App.-San Antonio 1992, writ ref d). And while the doctrine speaks in terms
of actual notice to citizens, its important aspect is “the requirement that a legislature establish
minimal guidelines to govern law enforcement.” Kolender, 461 U.S. at 358. (citations omitted). A
court, moreover, must evaluate a facial challenge to a state law by “consider[ing] any limiting
construction that a state court or enforcement agency has proffered.” Id. at 355 (citations and
internal quotes omitted).
The Honorable Tom Maness      - Page 7        (GA-0326)




         Here, the activity made illegal by section 551.143 is quite definite on its face. The Penal
Code’s definition of “knowingly” applies to section 551.143 because the OMA does not provide a
definition of this culpable mental state. See TEX. PEN.CODEANN. 4 1.03(b) (Vernon 2003). Penal
Code section 6.03(b) states that

               [a] person acts knowingly, or with knowledge, with respect to the
               nature of his conduct or to circumstances surrounding his conduct
               when he is aware of the nature of his conduct or that the
               circumstances exist. A person acts knowingly, or with knowledge,
               with respect to a result of his conduct when he is aware that his
               conduct is reasonably certain to cause the result.

Id. 5 6.03(b); see also Tovar v. State, 978 S.W.2d 584, 586-87 (construing     “knowingly” in the
context of Government Code section 55 1.144). And “meeting in numbers less than a quorum for
the purpose of secret deliberations” has been understood by civil courts and this office to apply to
members of a governmental body who gather in numbers that do not physically constitute a quorum
at any one time but who, through successive gatherings, secretly discuss a public matter with a
quorum of that body. See supra pp. 3-6.

         Because section 551.143’s meaning is plain, it provides adequate notice and does not allow
for arbitrary enforcement.   Consequently, we conclude that this section is not unconstitutionally
vague.
The Honorable Tom Maness      - Page 8      (GA-0326)




                                      SUMMARY

                       Members of a governmental body who knowingly conspire to
               gather in numbers that do not physically constitute a quorum at any
               one time but who through successive gatherings secretly discuss a
               public matter with a quorum of that body violate section 551.143 of
               the Open Meetings Act. This section is not on its face void for
               vagueness.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
