                                  ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT




                                                 August lo,2004



The Honorable Jeff Wentworth                              Opinion No. GA-0232
Chair, Jurisprudence Committee
Texas State Senate                                        Re: Whether a student fee advisory committee
Post Office Box 12068                                     established under section 54.503 1 ofthe Education
Austin, Texas 7871 l-2068                                 Code is subject to the Open Meetings Act, chapter
                                                          5510f the Government Code (RQ-0184-GA)


Dear Senator Wentworth:

        You ask whether a student fee advisory committee established under section 54.503 1 of the
Education Code is subject to the Open Meetings Act, chapter 551 of the Government Code (the
“Act”).’

         Section 54.5031 of the Education         Code provides, in relevant part:

                            (a)   A student fee advisory committee is established at each
                  institution     of higher education except the University of Texas at
                  Austin to       advise the governing board and administration     of the
                  institution     on the type, amount, and expenditure of compulsory fees
                  for student      services under Section 54.503 of this code.

                         (b) Each committee           is composed       of the following       nine
                  members:

                                (1) five student members who are enrolled for not
                           less than six semester credit hours at the institution
                           and who are representative of all students enrolled at
                           the institution, selected under Subsection (c) of this
                           section; and




          ‘See Letter fromHonorable    JeffWenhvwth,   Chair, Jurisprudence Committee, Texas State Senate, to Honorable
Greg Abbott, Texas Attorney General (Feb. 13, 2004) ( on file with Opinion Committee, also available at
http://www.oag.state.tx.us)  [hereinafter Request Letter].
    The Honorable Jeff Wentworth       - Page 2            (GA-0232)



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                                (2) four members who are representative of the
                           entire institution, appointed by the pmident ofthe institution.

                           (c) If the institution has a student government, the student
                   government shall appoint three students to serve two-year terms on
                   the committee and two students to serve one-year terms on the
                   committee. If the institution does not have a student government, the
                   students enrolled at the institution shall elect three students to serve
                   two-year terms on the committee and two students to serve one-year
                   terms on the committee. A candidate for a position on the committee
                   must designate whether the position is for a one-year or two-year
                   term.




                           (f). The committee     shall:

                               (1) study the type, amount, and expenditure of a
                           compulsory fee under Section 54.503 of this code;
                           and

                               (2) meet with appropriate administrators of the
                          institution, submit a written report on the study under
                          Subdivision (1) ofthis subsection, and recommend the
                          type, amount, and expenditure of a compulsory fee to
                          be charged for the next academic year.

                           (g) Before recommending      the student fee budget to the
                  governing board of the institution, the president of the institution
                  shall consider the report and recommendations of the committee. If
                  the president’s    recommendations      to the governing board are
                  substantially different from the committee’s recommendations     to the
                  president, the administration     of the institution shall notify the
                  committee not later than the last date on which the committee may
                  request an appearance at the board meeting. On request of a member
                  of the committee, the administration of the institution shall provide
                  the member with a written report of the president’s recommendations
                  to the board.

    TEX. EDUC. CODEANN. 5 54.503 1 (Vernon 1996). Your question is whether a committee        established
    by this provision falls within the ambit of the Act.

            The Act provides that “[elvery regular, special, or called meeting of a governmental body
    shall be open to the public, except as provided by this chapter.” TEX. GOV’T CODEANN. 5 55 1.002
The Honorable   Jeff Wentworth   - Page 3          (GA-0232)




(Vernon 1994). The Act defines “governmental body” as, inter ah, “a board, commission,
department, committee, or agency within the executive or legislative branch of state government that
is directed by one or more elected or appointed members.” Id. 5 551.001(3)(A) (Vernon Supp.
2004). The term “meeting” is defined as, inter alia, “a deliberation between a quorum of a
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.” Id. 5
551.001(4)(A).

         In Attorney General Opinion H-772 (1976), this office considered whether the Texas Tech
University Athletic Council was subject to the Act. Relying on the definitions of a state-level
“governmental body” and “meeting” found in the Act, the attorney general declared that “before the
Act is applicable to a meeting of a statewide public body, five prerequisites must be met.” The
opinion described those prerequisites as follows:

                (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[;]

                (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.

Tex. Att’y Gen. Op. No. H-772 (1976) at 2. In 1988, a Texas court adopting the test set forth in
Opinion H-772 declared that the Act is applicable whenever these five factors are present. See Gurf
Reg’l Educ. Television Affiliates Y. Univ. of Houston, 746 S.W.2d 803, 809 (Tex. App.-Houston
[14th Dist.] 1988, writ denied). Opinion H-772 found that the Texas Tech University Athletic
Council satisfied the first four of these criteria. See Tex. Att’y Gen. Op. No. H-772 (1976) at 2,4.
The only remaining question to be determined was ‘whether the Athletic Council [had supervisory]
control over public business or policy.” Id. at 4.

         Opinion H-772 ultimately concluded that “both the structure ofthe 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 control public business.” Id. at 6. The opinion relied primarily upon
a resolution ofthe board ofregents that the board would “‘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,“’ id.
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    at 4 (citation omitted), and that although “‘the Athletic Council may review, offer suggestions and
    make recommendations       on any pertinent matters related to the University’s intercollegiate athletic
    program,       . such recommendations    and suggestions shall be made to and channeled through the
    Office of the President of the University, and it is further specifically provided that the Athletic
    Council shall not have final authority to direct, control or supervise the operation or activities ofthe
    Department of Athletics or intercollegiate athletic programs of the University.“’ Id. at 5 (citation
    omitted). Thus, the Athletic Council was not required to comply with the provisions of the Act
    because its role was purely advisory, and as a result, it did not satisfy the Act’s requirement that it
    exercise “supervision or control over        public business or policy.” Id. at 2, 6; see also City of
    Austin v. Evans, 794 S.W.2d 78,83-4 (Tex. App.-Austin 1990, no writ) (city grievance committee
    not subject to the Act because it could only make recommendations);     Tex. Att’y Gen. Op. No. H-994
    (1977) at 2-3 (committee to study the selection process of chief administrative officers of component
    institutions of the University of Texas System is not required to comply with the Act, so long as it
    has no supervision or control over public business or policy);’ Tex. Att’y Gen. LO-93-064, at 2
    (student fee advisory committee, apparently not created under section 54.503 1, Education Code, is
    not subject to the Act because it does not have supervision or control over the public business it
    conducts). But see Tex. Att’y Gen. Op. No. H-438 (1974) at 4 (Athletic Council of the University
    of Texas at Austin is governmental body that supervises public business and therefore must comply
    with the Act).

              In the situation you pose, the duties and authority of a student fee advisory committee are
    specified not by resolution of the governing board of an institution of higher education, but by
    statute. A committee’s duties are fourfold: (1) “study the type, amount, and expenditure of a
    compulsory fee under section 54.503” of the Education Code; (2) meet with administrators of the
    institution; (3) submit a written report on the aforementioned study; and (4) “recommend the type,
    amount, and expenditure of a compulsory fee to be charged for the next academic year.” See TEX.
    EDUC. CODE ANN. 5 54.5031(f) (Vernon 1996) (emphasis added).                 The committee’s report,
    moreover, must be first submitted to “appropriate administrators” rather than to the governing board.
    See id. The “president of the institution” initially considers the report before he or she submits
    recommendations to the governing board regarding compulsory student fees. Id. 5 54.503 1(g). “If
    the president’s recommendations        to the governing board are substantially different from the
    committee’s recommendations to the president,” the president is required to ‘notify the committee”
    so that the committee “may request an appearance at the board meeting.” Id.

            As in Attorney General Opinion H-772, both the structure of the student fee advisory
    committee and the statute granting it power indicate that the committee is merely an advisory body
    that has no power, actual or implied, to supervise or control public business. The committee makes
    its recommendations    to the president of the institution rather than to the university’s governing
    board. The committee’s statutory role is that of an adviser to the president, who is not a
    governmental body under the Act. See id. Thus, under this statutory structure, there still exists a



              ‘One recent judicial decision has approved the distinction drawn in Attorney General Opinion H-994 between
    an entity that has supervision or contml over public business and one that acts only in an advisory capacity. See
    Willmann v. City of San Antonio, 123 S.W.3d 469.474-75 (Tex. App.-San Antonio 2003, pet. denied).
      The Honorable Jeff W&worth         - Page 5          (GA-0232)




      layer of separation between the recommendations      of the advisory committee    and the actions of the
      governing board.

               Furthermore, the committee’s recommendations          need not be followed by the president in
      making his or her own recommendations          to the governing board. Rather, the committee’s role is
      limited, in the case of substantial disagreement with the president, to requesting an appearance before
      the governing board.         Nothing in section 54.5031 states or implies that the committee’s
      recommendations      are routinely or necessarily rubber-stamped by the governing board. Indeed, the
      governing board clearlymayrefuse        the committee’s request to appear before the board, and thus, the
      governing board may not even learn of the committee’s recommendations.            In sum, the language of
      the statute overwhelmingly demonstrates the advisory nature of the committee.

              We conclude that a student fee advisory committee established under section 54.503 1 of the
      Education Code does not hold “meetings” under the terms of the Open Meetings Act and is,
      accordingly, not subject to the Act.




..-
The Honorable Jeff Wentworth       - Page 6        (GA-0232)




                                        SU’MMARY

                      A student fee advisory committee established under section
               54.5031 of the Education Code does not hold “meetings” under the
               terms of the Open Meetings Act and is, accordingly, not subject to the
               Act.

                                              Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
