                  THE   ATTORNEY            GENERAL
                            OF TEXAS




     Mr. Charles D. Penick        Opinion      No. JM-985
     Criminal District Attorney
     Bastrop County               Re: The meaning of "emergency"
     804 Pecan Street             in section 3A of the Texas Open
     Bastrop, Texas 78602         Meetings Act, article   6252-17,
                                  V.T.C.S., and whether a govern-
                                  mental entity may ratify cer-
                                  tain actions taken during      an
                                  emergency meeting.   (RQ-1483)

     Dear Mr. Penick:

          YOU ask several questions     about the meetings    and
     procedures leading up to the 1985 purchase of a tract of
     land by the Elgin Independent School District. A taxpayer
     group was formed in March of 1988 to examine school district
     expenditures.  The group now questions the validity of the
     1985 purchase because the board approved the purchase during
     a closed emergency meeting.

          On August 20, 1985, the school board posted notice   for
     an emergency meeting     for "Consideration  of Real Estate
     Purchase in Executive Session.t'   The reason stated for the
     emergency was that "the land is now available but [the fact
     that] a decision must be made immediately makes it necessary
     to hold an emergency meeting."   The minutes of the emergency
     meeting show that the board met in emergency         session,
     recessed to executive session, and then reassembled      from
     executive session. The minutes state, "It was the consensus
     of the Board to offer Adrian Ford $450,000 for [a specific]
     parcel of land he owns.”    The minutes  also state that the
     board authorized the superintendent to work out the purchase
     details, subject to final board approval,     and that final
     approval was obtained later that day by telephone poll. The
     board "approved" these minutes during    its regular monthly
     meeting on September 5, 1985.

          YOU ask 1) whether taking this action during an
     emergency meeting complied with the Texas Open Meetings Act,
     article  6252-17, V.T.C.S.;    2) whether   the   subsequent
.h
     approval of the emergency meeting minutes validated      the




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emergency _action;
              _    3) _whether
                         .      the taxpayers of the district
nave any legal remedies:    and  4) whether  the district may
legally pay for the district's defense of the action taken
during the emergency meeting.

     The Open Meetings Act requires governmental bodies to
hold all meetings, with certain exceptions, in open session.
Cox Enterorises. Inc. v. Board of Trustees    of the Austin
Inden. School Dist., 706    S.W.2d 956, 958     (Tex. 1986).
Executive or closed sessions may be held only when expressly
authorized and when certain procedural     requirements  are
satisfied.  Your concern is not that the meeting at issue
was improperly closed, but that the notice for the meeting
was defective.

     Adequate notice must precede executive sessions.    Id.
at 958; Art. 6252-17, 0 2(a). Notice of meetings must be
posted for at least 72 hours preceding the scheduled time of
a meeting.  Art. 6252-17,  5 Xi(h).  The Open Meetings  Act,
however, authorizes two-hour notice for emergency meetings.

     In 1985, section     3A(h)     of     the   Open   Meetings   Act
provided, in part:
                                                                         -.
        In case of      emergency or urgent       public
        necessity, which shall be expressed in the
        notice, it shall be sufficient if the notice
        is posted two hours before the meeting        is
        convened. . . .[I]t shall be sufficient       if
        the notice or supplemental notice is posted
        two hours before the meeting is convened, and
        the presiding officer or the member      calling
        such    emergency     meeting     or     posting
        supplemental notice to the agenda       for any
        other meeting    shall, if request therefor
        containing   all pertinent    information    has
        previously been filed at the headquarters     of
        the governmental     body, give      notice   by
        telephone or telegraph    to any news media
        requesting such notice and consenting to pay
        any and     all expenses    incurred by      the
        governmental body in providing such special
        notice.

This section was amended in 1987 to define emergency and to
require that the notice state the reason for the emergency
meeting. See Acts 1987, 70th Leg., ch. 549, 5 5, at 2213.
Because the meeting at issue here occurred     in 1985, this
amendment   is   not  at   issue.    It   does    not   apply
retrospectively.




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              River Road Neiahborhood    Assoc. v. South Texas
     Zp$     720 S.W.2d 551 (Tex. APP. - San Antonio 1986, writ
              the court construed the emergency notice provision
     as it ehisted at the time of the meeting at issue here. The
     court held that notice of an emergency meeting     need not
     describe the nature of the emergency      necessitating the
     emergency meeting. The court provided a general definition
     of "emergency":

             [T]he term generally refers to an unforeseen
             combination of circumstances   that calls for
             immediate action: a sudden or unexpected
             occasion or action.   The mere necessity  for
             quick action does not constitute an emergency
             where the situation calling for such action
             is one which reasonably     should have been
             anticipated.  The Texas Supreme Court has
             said that an emergency is a condition arising
             suddenly and unexpectedly, not caused by any
             neglect or    omission of     the person   in
             question, which calls for immediate action.
             (Citations omitted.)

     720 S.W.2d 551, 557. The court held that because the school
     board knew action would be necessary    on a specific date
     several weeks before the date, an emergency meeting was not
     warranted.

          In the case you present,    it is not clear whether   an
     l'emergency,lVwithin the meaning of section 3A(h), existed.
     The existence   of an emergency necessarily   depends on the
     facts in any given case. -See-Common Cause v. ‘Metronolitan
     Transit Authority, 666 S.W.2d, 610, 613 (Tex. App. - Houston
     [lst Dist.]    1984, writ    ref'd n.r.e.).    The   attorney
     general's authority to issue legal opinions is directed    to
     questions of law.     See Attorney General Opinion JM-827
     (1987).   The attorney     general cannot   finally   resolve
     disputed questions   of fact such as whether a particular
     meeting complied with the Open Meetings tact. See Attorney
     General Opinion MW-390 (1981); see also Attorney      General
     Opinion NW-28 (1979). Based on the facts you have provided,
     it does not appear that an emergency existed.       Only the
     courts, however, can overturn governmental actions taken in
     violation of the Open Meetings Act.

          You note that the school board also approved the
     minutes of the action taken during the emergency meeting.
     Because you ask about the legal effect of subsequent  action
.-   taken by the board, we assume you ask whether the subsequent




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action could   ratify   the   action   taken   at   the   emergency
meeting.

     In bower Colorado River Authoritv                " of Still
Marcos, 523 S.W.2d 641, 646    (Tex. 1975), t:i T%s     Supreme
Court held that the LCRA Board's notice to consider     matters
"including     the      ratification      of      the      prior
action. . . taken. . . in   response.  . .   to    chanqes    in
electric power ratesV substantially complied with the act's
notice provisions.      The court     invalidated   tha    Fl~ive
                                                               II
Authority's attempt to raise rates at the subsequent mAotin
because the no,tice of the previous meeting, at whiz" acC.ion
was taken, was not in compliance with the act.          effect,
the court required notice that rates might be increased, not
simply notice that a prior action regarding rates would be
ratified.
      The case you present involves the timeliness of notice.
Although   that supreme court     decision  applied  to   the
substance of the notice rather than to the timeliness of the
notice, the same general principles apply to both. Applyinq
thi.s decision   to the case at hand indicates that t.ne
subsequent    "approval" of the minutes    of the ener'.Iency
meeting could not affect the validity of action taken.     In
the first place, the approval of minutes i.s not necensarily
the equivalent of ratifying an action. Even if the approval
of the minutes were the equivalent of ratification, if Khe
notice   for the emergency     meeting was defective,     the
suhserB1en.tmeeting   codd not correct ths error simply by
ratifying the minutes of prior action. See Common Cause VI.
Metrouolitan Transit Authoritv, m       at 613. The notice
for the subsequent meeting would have to specify the action
to be ratified.

     You ask what remedies are available            to the school
district's 'taxpayers. A governmental body's determination
of the existence    of an "emergency"       is subject to judicial
review. tie Garcia v. City of Kinqsville, 641 S.W.2d             339
(Tex. App. - Corpus Christi       1982, no writ) ; Cameron   Colinty
Good Government
        --.----   Leaque v. RZTl?Ofl , 61.9 S.W.2d 224 (Tex. Civ.
APP.  -  Beaumont 1937, writ ref'd n.r.c.).       Actions taken   in
violation of the Open Meetings Act are not            automatically
void, they are subject to reversal in court actions.          -3
Colorado River Authority v. Citv of San Marcos, sunra, at
646; see Tovah Inden. School Dist. v. Pecos - Barstow Inde&
Di.st I 466 S.W.2d 377 (Tex. Civ. App. - San Antonio 1971, no
A.
writ).     To overturn   the actions of the district,            the
taxpayers would have to file a civil lawsuit against the
district.
                                                                       -.




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      Mr.   Charles D. Penick - Page 5 (JM-985)
P




            Finally, you ask whether the district may legally pay
      for the district's   defense of the action taken during the
      emergency meeting. An independent school district has the
      authority to hire attorneys to protect    its interests in a
      lawsuit. Tex. Educ. Code 5 23.26; Attorney General     Opinion
      JM-685 (1987).    This authority, however,    is limited to
      defending legitimate   interests of the district,    interests
      that also serve the public interest.        Attorney   General
      Opinions JM-824, JM-685    (1987) (and cases cited therein).
      The lawfulness of expending public      funds in a lawsuit
      against a school district or against the members of a school
      board involves questions of fact. Attorney General Opinion
      JM-824.    As indicated, the attorney general's        opinion
      process is not designed to resolve disputed questions       of
      fact.



                               SUMMARY


                   The Texas Open Meetings Act,         article
,-.             6252-17,   V.T.C.S.,     authorizes     holding
                meetings with only two hours' notice only for
                legitimate  emergencies.    Action taken      in
                violation  of   the    Open   Meetings     Act's
                emergency   notice   provisions     cannot    be
                validated simply by ratifying the minutes     of
                the emergency meeting.

                   The existence of an   emergency  necessarily
                depends on the facts      in any given case.
                Based on the facts you   present, an emergency
                did not exist. Actions   taken in violation  of
                the Open Meetings Act    are not automatically
                void: they are subject    to reversal in court
                actions.




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Mr. Charles D. Penick - Page 6 (JM-985)




           Independent  school districts   have   the
        authority to hire attorneys   to protect the
        legitimate interests of  the districts.   The
        lawfulness of defending a particular law suit
        depends on the facts.




                                     J-b
                                       Very truly yo r ,
                                             .


                                       JIM     MATTOX
                                       Attorney General of Texas

    MARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    JENNIFER S. RIGGS
    Chief, Open Government Section
    of the Opinion Committee

    Prepared by Jennifer S. Riggs
    Assistant Attorney General




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