    OFFKE   OF THE ATTORNEY   GENERAL.   STATE OF TEXAI

    JOHN     CORNYN




                                                     July lo,2000



Mr. Joey Langley                                            Opinion No. JC-0248
Director, Sunset Advisory Commission
P.O. Box 13066                                              Re: Whether a state agency that is the subject of
Austin, Texas 7871 l-3066                                   a public hearing before the Sunset Advisory
                                                            Commission must post notice under the Open
                                                            Meetings Act when its members attend the
                                                            hearing (RQ-Ol93-JC)


Dear Mr. Langley:

        You have requested our opinion as to whether a state board or commission that is the subject
of a public hearing before the Sunset Advisory Commission must itself post notice under the Open
Meetings Act when its members attend the hearing. For the reasons indicated below, we conclude
that such a board or commission must do so when a quorum of its members attend the hearing.

         Each statutory agency, in its enabling legislation, is granted a fixed life, not to exceed twelve
years. TEX. GOV'T CODE ANN. 5 325.015 (Vernon 1998). Unless continued by the legislative
session immediately before its scheduled extinction, an agency will be terminated. Id. The Sunset
Advisory Commission (the “Commission”) is a state agency charged with recommending to the
legislature “whether a public need exists for the continuation of a state agency or its advisory
committees or for the performance of the functions of the agency or its advisory committees.” Id.
5 325.011 (Vernon Supp. 2000). The Commission makes recommendations,                   inter ah, for “the
abolition, continuation, or reorganization” of state agencies, and for “the consolidation, transfer, or
reorganization of programs within state agencies.” Id. § 325.012; see also id. $ 325.010 (Vernon
 1998) (at each session commission shall present the legislature and governor a report on agencies
and advisory committees scheduled to be abolished). In preparation therefor, the Commission is
directed “between September 1 and December 1 of the calendar year before the year a state agency
[is]      abolished,” to “conduct public hearings.” Id. 5 325.009.

         You indicate that, at such a public hearing, “agency staff and members of the agency’s
policymaking body are called to testify.” Letter from Mr. Joey Longley, Director, Sunset Advisory
Commission, to Honorable John Comyn, Attorney Genera1 (Feb. 22,200O) (on tile with Opinion
Committee) [hereinafter “Request Letter”]. You further advise that the Commission itself “conducts
its hearings in accordance with the Open Meetings Act and posts notice according to the rules of the
House and Senate.” Id. You ask whether the agency under review must “post a separate notice by
Mr. Joey Longley   - Page 2                     (X-0248)




virtue of the fact that a quorum of its policymaking body might attend and/or testify at a Sunset
Commission hearing on matters relating to that agency.” Id.

       The Open Meetings Act, chapter 551 of the Government       Code, defines “meeting” as:

                       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.

TEX. GOV’T CODE ANN. 5 551.001(4)(A)           (Vernon Supp. 2000). A “deliberation” is “a verbal
exchange during a meeting between a quorum 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.” Id. $ SSl.OOl(2). See Bexar Medina Atascosa Water
Dist. Y. Bexar Medina Atascosa Landowners ’Ass’n, 2 S.W.3d 459,462 (Tex. App.-San Antonio
1999, pet. denied) (deliberations took place at informational gathering of water district board with
landowners, where one board member asked question and another board member answered
questions, even though board members did not discuss business among themselves).          In a recent
opinion, we concluded that “[wlhen a quorum of members of a standing committee of the Harris
County Hospital District.      attends a speaking engagement or meeting conducted by another entity
and a member participates in a discussion of matters of public business or public policy within the
committee’s supervision, the committee will be subject to the Open Meetings Act.” Tex. Att’y Gen.
Op. No. JC-0203 (2000) at 5.

          The public hearings of the Sunset Advisory Commission that you describe fall squarely
within the principle of Attorney General Opinion JC-0203. Members of the board of a state agency
that appear before the Commission “attend a meeting conducted by another entity.” Because the
hearing is held for the purpose of evaluating the agency’s performance and determining whether its
existence should be continued, it seems obvious that there will be “a discussion of matters of public
business or public policy within the [agency’s] supervision.” Thus, if a quorum of the members of
the governing body of an agency attends the public hearing, and one or more of them testifies before
the Commission, answers questions, or in any manner supplies information, the agency will itself
be found to have held a “meeting” under the Open Meetings Act, and thus be required to post the
requisite notice in accordance with the Act’s provisions. If, on the other hand, only staff members,
 or any number less than a quorum of the governing body, attend the public hearing, the agency will
 not have held a “meeting.” Similarly, even if a quorum of members of the governing body attends,
 but no one among them testifies, answers questions, or in any manner furnishes information to the
 Commission, the agency will not have held a “meeting,” and thus, will not be required to post the
 requisite notice.
Mr. Joey Longley   - Page 3                    (X-0248)




                                      SUMMARY

                       If a quorum of the members of a governing body of a state
               agency attends a public hearing held by the Sunset Advisory
               Commission under the authority of section 325.009, Government
               Code, and one or more of such members testifies, answers questions,
               or in any other manner furnishes information to the Commission, the
               agency &II itself be found to have held a “meeting” under the Open
               Meetings Act, and thus be required to post the requisite notice in
               accordance with the Act’s provisions.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
