                        June 14, 1989



Mr. Charles Stevenson         Opinion No.   JR-1858
Acting Commissioner
Texas Department of Human     Re: Whether the Texas Open
   Services                   Meetings Act    authorizes
P. 0. Box 2960                governmental  body   to    hoi:
Austin, Texas   78769         "briefing sessions" to receive
                              information from staff members
                              without providing notice
                              (RQ-1686)

Dear Mr. Stevenson:

     You ask whether  the Texas Open Meetings Act, article
6252-17, V.T.C.S.,   applies to orientation     or  briefing
sessions of the Board of Human Services, at which board
members receive information   and ask questions    of staff
members but do not engage in ~discussion between themselves.
This office has issued two opinions concluding that such
sessions were not subject to the requirements of the Open
Meetings Act.   Attorney  General Opinions JM-640     (1987);
JR-248 (1984).

     Attorney General Opinion JM-248 relied on the trial
court's construction of the Open Meetings Act in Pea Picker,
Inc.. v. Reaaan,   632 S.W.2d 674 (Tex. App. - Tyler 1982,
writ ref'd n.r.e.). The court found that a meeting held by
a commissioners  court to hear reports      from agents and
employees was not a @'meetingl' within article       6252-17,
V.T.C.S.  The act then defined a l'meeting*las "any delibera-
tion between a quorum of members of a governmental body at
which any public business . . . is discussed.1W     (Emphasis
added.) See Acts 1973, 63d Leg., ch. 31, 5 1, at 45. If no
deliberations were held between members of the governmental
body, then no *lmeetingN*took place and the requirements   of
the Open Meetings Act did not apply.      See also Attorney
General Opinion JM-640 (1987) (oral exam of applicant      by
licensing board was not a "meeting").

     Senate Bill 168 of the 70th Legislature    adopted a
number of amendments to the Open Meetings Act. S.B. 168,
Acts 1987, 70th Leg., ch. 549, at 2211.    The bill added




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Mr. Charles Stevenson - Page 2      (JM-1058)




language to the definition of *'meetingl'so that it now reads
in part:

               (4    'Meeting'      means   van
           between a quorum of members of a governmental
           body, or between a Quorum of members of a
           a overnm en t a 1 bod v and anv other I)
                                                  erson, at
           which any public business . . . is discussed
           or considered . . . . (Emphasis added.)

V.T.C.S.. art. 6252-17, § l(a). The same language was added
to the definition of 11deliberation*1so that it now reads as
follows:

               (b)  'Deliberation' means a verbal     ex-
           chancre durina a meetinq between a quorum of
           members of a governmental body, or between   a
           cue rum of members of a aovernmental bodv and
           a Y other D        concerning any issue within
           t:e jurisdizETz:'of the governmental body or
           any public business.    (Emphasis added.)

Id.   5 l(b).

     A facial reading of the amended sections l(a) and 1 (b)
yields more than one interpretation.   This office has found
the Open Meetings Act applicable to a meeting called by a
district judge and attended by a quorum of members of a
county commissioners court if the commissioners engaged     in
deliberations.   Attorney General Opinion MW-390 (1981). The
Act has also been held to apply to a joint meeting          of
representatives of two or more governmental bodies       if a
quorum of members    of one governmental   body attends    and
engages in deliberations.    Attorney General Opinion MB-417
(1981); see Attorney    General Opinion MW-28    (1979).   The
amendments could have been adopted to make explicit       this
application of the Open Meetings Act.      However, the bill
analysis prepared   for Senate Bill 168 indicates that the
amendments were designed to overturn the conclusion         of
Attorney General   Opinion JM-248. The following      language
appeared in the bill analysis prepared    for the introduced
version of the bill, but was not updated as the bill
underwent substantive changes:

               The Texas Open Meetings Act    (TOMA) . . .
            was enacted in 1967 to ensure that important
            governmental decisions   are made   in public
            meetings.   Several    problems   under   TOMA
            currently are frustrating this purpose      of
            'government in the sunshine.' Courts and the




                                  p. 5508
Mr. Charles Stevenson - Page 3    (JM-1058)




        attorney general have ruled that members of a
        public body may meet without complying with
        TOMA to receive information and ask questions
        of a third party.   [The analysis then men-
        tions Attorney General Opinion JR-248 and its
        reliance on an appellate court case]. . . .
        In The Pea Picker, Inc. v. Reaaan, . . . the
        court held that receiving   information   from
        employees was not a 'meeting' because       no
        'deliberation' had occurred in that there was
        no exchange between the members.     (Emphasis
        in original.)

Bill Analysis, S.B. 168, 70th Leg. (1987). Since Attorney
General Opinion JR-248 relied      on the definitions     of
"meeting" and "deliberation,"   Senate Bill 168 sought to
bring such briefing sessions within the coverage of the Open
Meetings Act by amending those definitions.

     These amendments to subsections l(a) and l(b) of the
Open Meetings Act appeared in Senate Bill 168 as introduced
and in the bill as adopted by the legislature.   The intro-
duced bill was reported adversely by the Senate Committee on
State Affairs    and a committee    substitute was reported
favorably. The committee substitute included the following
provision, not found in the introduced bill:

           (r) Nothing in this Act shall be con-
        strued to require a quorum of the members
        of a governmental   body to confer with an
        employee or employees    of the governmental
        body in an oven meetinq where such conference
        is for the sole purpose of receiving informa-
        tion from the employee or employees    or to
        ask questions of the employee or employees:
        provided,   however, that no discussion    of
        public business or agency policy that affects
        public business shall take place between the
        members of the governmental body during the
        conference.   (Emphasis added.)

V.T.C.S. art. 6252-17, 5 z(r).1



     1. A provision on meeting by telephone conference call
also codified as section 2(r) was added to the Open Meetings
Act by another bill during the same session. S.B. 560, Acts
1987, 70th Leg., ch. 964, 5 4, at 3283.




                                 p. 5509
Mr. Charles Stevenson - Page 4    (JM-1058)




     Section 2(r) uses the terms "confer" and l*conference"
instead of the statutorily     defined terms "meeting"   and
"deliberation" to describe a briefing session. Nearly    all
of the section 2 exceptions use one or both of the statutory
terms. But see id. 55 2(e) ("consultations" with attorney),
2(p) ("interviews and counseling sessions" between members
of Board of Pardons and Paroles and inmates of Department
of Corrections).  The legislature     could have chosen  its
language to distinguish such conferences from meetings   and
to remove them completely     from the Open Meetings    Act,
including its notice and record-keeping requirements.     On
the other hand, the legislature may have thought that the
section 2(r) "conference" would involve *Iaverbal   exchange
. . . between a quorum of members of a governmental body and
any other person" and that it would therefore be a "meeting"
at which l'deliberationsl*take place.

      The placement of subsection (r) in section 2 does not
resolve this ambiguity, since section 2 includes various
types of provisions and not merely provisions authorizing   a
closed session during a meeting subject to the Open Meetings
Act.2    Although   several of these provisions     authorize
executive sessions for governmental bodies    subject to the
act, others appear to remove some entities completely    from
the act. Comvare V.T.C.S. art. 6252-17,     5 2(e), (f), (s),
(h), (j), Cm), to), (P), (s) withid.   5 2(d), (n).   Various
other procedural provisions are also included in section 2.
See id. 8 z(a),   (b), (c), (i), (W, (l), (r) (telephone con-
ference calls).



     2. The Austin Court of Appeals       recently   issued a
decision reconciling   the provisions  of the Administrative
Procedure and Texas Register Act on ex varte communications
between agency members    in contested  cases, -      V.T.C.S.
art. 6252-13a, 5 17, with the Open Meetings Act provisions
requiring   governmental  bodies to deliberate     in public.
Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. -
Austin, May 17, 1989) (motion for rehearing filed May 31,
1989); -    Attorney General Opinion JM-645 (1987) (Adminis-
trative   Procedure  and Texas    Register Act creates       an
exception   to Open    Meetings Act permitting      commission
decisions on claims of privilege to be made       in a closed
meeting);   cf   Attorney   General Opinion H-1269       (1978)
(decision-making process under article 6252-13a, V.T.C.S.,
is not exempt from requirements of Open Meetings Act).      The
court's list of provisions    authorizing executive   sessions
did not include section 2(r) of the Open Meetings Act.




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E

    Mr.   Charles Stevenson - Page 5   (JM-1058)




         The legislative intent must ultimately be found in the
    language of the statute.     See. e.a., Government  Personnel
    Mutual Life Ins. Co. v. Wear, 251 S.W.Zd 525 (Tex. 1952).
    The answer to Your ouestion devends on what the lanauaae
                                                          ~~--a
                                                              co-ed
    adopted as Senate Biil 168 comm;nicates to the persons who
    read it.3 As already pointed out, subsection 2(r) uses the
    terms "conferl* and %onference."   The same bill that adopted
    this provision used very different language    in the amend-
    ments to subsections l(a) and l(b). The legislature's      use
    of language   in subsection    2(r) that differs    from the
    language added to the definitions suggests that 2(r) and
    those definitions do not refer to the same thing.

         Moreover, subsection 2(r) provides that "no discussion
    of public business or agency policy that affects public
    business   shall take place between the members       of the
    governmental body during the conference."       "Meeting"    is
    defined as "any deliberation"     between  certain described
    persons "at which any public business or public policy over
    which the governmental    body has supervision    or control
    is discussed or considered . . . .*I V.T.C.S. art. 6252-17,
    § l(a). The quoted phrases     are not identical, but their
    differences   are subtle.    The phrases   are   sufficiently
    similar that a reasonable person could read subsection    2 (r)
    to prohibit    the kind of discussion   which is a defining
    characteristic of a "meeting" and therefore     to exclude a
    "conferencel' from the definition    of l'meeting.lq In our
    opinion, whatever   the legislature may have intended, the
    relevant provisions do not communicate an intent to subject
    briefing sessions to the Open Meetings Act with the option
    of holding them in executive session.

         The adoption of Senate Bill 168 involved negotiation
    and compromise  between competing interests.    If briefing
    sessions were subject to the Open Meetings Act, the public
    would receive notice of the time, place, and subject of such
    sessions, although they could be excluded   from the actual
    briefing.  Id. 5 3A. Members of the public would thus have



         3. A review of the testimony   on this bill shows con-
    flicting statements by the senate sponsor. See Hearing    on
    S.B. 168 before the Senate Comm. on State Affairs, 70th Leg.
    (March 23, 1987) (tape recording available from Senate Staff
    Services Office); Debate on S.B. 168 on the Floor of the
    Senate, 70th Leg. (April 15, 1987) (tape recording available
    from Senate Staff Services Office).




                                   p. 5511
Mr. Charles Stevenson - Page 6    (JM-1058)




access to a minimal   amount of additional information   about
government.  The governmental body would have to keep a
record of the briefing session as required by section      2A,
and this    requirement    presumably  would   help    enforce
the prohibition  against board members     discussing    among
themselves "public business   or agency policy that affects
public business"    when involved in a conference        under
subsection 2(r).

     On the other hand, if a governmental body had to comply
with the notice     requirements   prior    to briefings    by
employees, it would have to wait three days or seven days to
hear the information,   depending   on which notice period
applies to it. Id. S 3A(h).     In the event of an emergency
or urgent public necessity,   it would have to wait for two
hours before the briefing.                a        Y Attorney
General Opinion JM-985      (198~'(d~&~?~~l~eaning          of
emergency).  This delay would occur before a session         in
which the governmental body would neither deliberate       nor
take action, but would only receive some           information
relevant to its public duties.   Delays in the board members1
receipt of information needed for their work could interfere
with the efficient conduct of public business and might even
paralyze the governmental body in matters of great urgency.
In weighing these competing interests, the legislature might
reasonably have concluded that briefing sessions should be
taken completely out of the Open Meetings Act.

      Finally, since members of a governmental      body are
subject to criminal penalties for certain knowing violations
of the Open Meetings Act, -    V.T.C.S. art. 6252-17, 5 4, a
contrary interpretation of subsections l(a) and (b) and 2(r)
would raise a constitutional      question.   The Fifth and
Fourteenth Amendments  of the United States Constitution
prohibit the enforcement of any law that "either forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application."      Connally v. General
Constr. Co., 269 U.S. 385   (1926); see also Baker v. State,
478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute
threatens punishment of people who had no fair warning     of
what conduct to avoid. See United States v. Cardiff,      344
U.S. 174 (1952). A higher standard of certainty is required
of a statute imposing criminal penalties than of one relying
on civil enforcement.   Xolender v. Lawson, 461 U.S. 352,
358 at n. 8 (1983); see Winters v. New York, 333 U.S. 507
 (1948).

       We believe that the language of the statute does not
fairly warn persons   of common intelligence   that a sub-



                                 p. 5512
Mr. Charles Stevenson - Page 7     (JM-1058)




section 2(r) conference   is a "meeting" within the Open
Meetings Act and that they will be subject to criminal
penalties for participation in a conference that is not
conducted according  to the requirements of the act.     Our
construction of the statute is thus necessary because of the
inclusion of criminal penalties to enforce its procedural
provisions.

                       SUMMARY

           Conferences between members  of a govern-
        mental body and an employee or employees   for
        the sole purpose of receiving information   or
        asking questions are not l'meetings*'or "deli-
        berations" subject to any requirements of the
        Open Meetings Act, article 6252-17, V.T.C.S.
        Subsection 2(r) of the act, adopted by Senate
        Bill 168 of the 70th Legislative      Session,
        removes the conferences it describes from the
        coverage of the act.




                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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