Honorable David Wade                       Opinion       No. Ii- 3
Commlssloner
Texas Department of Mental Health          Re:        Construction    of
and Mental Retardation                                Article   6252-17,
P. 0. Box 12668, Capitol  Station                     Vernon’s Civil
Austin,  Texas                                        Statutes   (the
                                                      “Open Neet lnga
Dear Dr. Wade:                                        Act“).
       Your letter   requesting   an opinion     of    this   office
states:

                   “In order for the Texas Board of Uental
            Health and Mental Retardation        to more effl-
            clently   manage its affairs,      It desires   to
            dtvlde Its membership Into various committees.
            Those matter8 to be presented to the Texae
            Board of Mental Health and Mental Retardation
            would first    be assigned    to the appropriate
            committee.     The   various  committees would at
            their discretion      meet with members of the
            Texas Board of Mental Health and Mental
            Retardation    staff   to discuss and rtudy the
            matter before     It and.would recommend a course
            of action to the Texas Board of Mental Health
             and Mental Retardation      at Its open public
             meeting.    Any member of the Texas Board of
             Mental Health and Mental Retardation         could
             attend these committee meetings and dlecuss
             the matters under consideration        but only
             co&nlttee members would be allowed to vote
             on what recommendation the committee was to
             make to the Texas Board of Mental Health and
             Mental Retardation.

                  “These committee meetings would not be
             open to the public and no notice of euch meetlnge
             would be posted.




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Dr.     David Wade, page 2,         (H-3)


                          opinion la reepectfully
                       "Your                       requested
              with respect to whether or not the procedure
              yAo;t;l?ed   above violates  Article 6252-17,
                . . . .

         Appropriate     portions of Article 62        Vernon’s Texas
Civil     Statutes     (the “Open Meetings Act"    read a8 follows:
                    “Section    1. (a) Except as otherwlae
              provided In thle Act, every regular,     special,
              or called    meeting or eeaslon of every govern-
              mental body ehall be open to the public.
                      “(b) A ‘governmental body, ’ within the
               meaning of this Act, Is any board, commlsslon,
               department,    or agency w,lthln the executive
               department of the etate,     which Is under the
               direction   of three or more-elected    or appolnt-
               cd members. . .’

                       “Sec.   2.
                        II. . . .

                     “(d) The provisions    of this Act shall not
               apply   to periodic  conferencee   held among staff
               membere   of the governmental    body.  Such staff
               meetings will be only for the purpose of
               Internal   admlnlatratlon   and no matters of
               public business or agency pollclee      fihat affect
               public business will be acted upon.
                        n. * . .

                      “Sec. 3A.  (a) Written notice of the
                date, place, and subject of each meeting held
                by a governukntal body shall be given before
                the meeting as described   bg this Section.”

       The provlslone    of Article    6252-17, V.T.C.S.  are mandatory
  and are to be liberally    construed to effect     Its purpose.
  Toyah Ind. Sch.     Met. 0. Pecoe - Ihretow Ind. Sch.        Dizt .,
   66 s W 2d 371 (Tex.Clv.App.       1971           . The Coui33E
  that caee recited    the leglelatlveJp~~p~~e    for the enactment
Dr. David Wade, page 3,        (H-3)



of the statute to be one”of aeIsurlng that the public has the
opportunity   to be Informed concerning   the transactions   of
public  bualness”,   In determining   whether a particular   meeting
of the School Board was to be declared voidable,       the Court
asked Itself:

                     “IO fihe above .Btate legl8latlVe7   purpose
              effected   6y an Interpretation   which declares
              that action taken at an Illegal      meeting cannot
              be questioned?”     (466 S.w.tiat 380)

       The Texas Board of Mental Health and Mental Retardation
le a “governmental body” within the meaning of the statute.
Texas Liquor Control &. v, Continental Dlitllllnn          Salee
       199 S W 2 1009 1015 (Te Cl A            1947         I )
ii$‘meetl&    ofdthe f;ll   Board “fir ~t;eP~;rpoaeJo~d:rf~aelng
and etudylng a matter and deciding      upon a course of action
 Is required to be open to the public unless one of the
 etatutory  exceptions   applies,       _

      One of the exceptions       provided    by the Act Is:

                    “(d) The provlolone     of this Act shall
              not apply to periodic     conferences  held among
              staff members of the governmental body.
              Such staff meetings will be on1 for the
              purpose of Internal              --f on and no
                                     admlnlstrat
              matters of public buslneee or agencycles
              that affect  public buslnees will be acted
              upon.

        Tnls exception    would be unnecessary unless the Act
 applies   to meetings    within the body other than formal board
 meetings.     .
       Your letter  Indicates an expectation  that Board Members
 composing a committee created by the authority of the full
 Board would themselves periodically    meet with the agency
 staff  “to dlecuse and study the matter before It and. , ,
 recommend a couree of action   to the Texas! Board of Mental
 Health and Xental Retardation   at Its open public meeting".

          Paraphrasing   the qu%etlon    posed In the Toyah case,
 supra,     we ask:




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Dr. David Wade, page 0,       (H-3)


                 “Isthe leglrlatlve    purpose effected
           by an Interpretation    which declares  that
           Board members acting aa an official     committee
           of the Board may make decisions     at private
           meetings clored to the public,     that the full
           Board might lawfully accomplish Only at a
           meeting open to the public?”

       A committee,  assuming that Its members did not compose
a quorum of the full Board, would have no power to bind the
Board on matters before It.     Nevertheless    a real danger
exists   that the full Board might become merely the ‘rubber
etamp” of one or more of Its committees and thereby deprive
the public of access to the effective      decision-making
process.     Cf. Acord v. Booth, 35 Utah 279, 93 Pac. 734(1X)8).

       A holding   that a committee, which maket recommendations
only, Is governed by the Open Meetings Act la not without
precedent.      The duty of the State Textbook Committee,
prescribed     by statute, la to recommend to the State Commlealoner
of Fducatlon a complete list of textbooks which It approves
for adoption.      Books not recommended by It cannot be adopted
by the State Board of Education.       In Attorney General’s
Opinion M-136(1967) It was held that the exclusion      of books
 from echoole    Is an Important exercise  of a governmental
 function,   undertaken by an agency of the government, whatever
 Its name, within the spirit     and Intent of the Act and that,
 therefore,    the Act applied.

         In Attorney General’s Opinion M-220(1968),       the term
 “meeting”,      as used In the Open Meetings Act; was deflned
 as “one In which thr cembere of the governmental body
 transact    official    bus-with        which such agency 1~s charged
 to perform”.        lhe word “transact”   was not defined.    However,
 It connotes an Interchange of Ideas or actions and IE broader
 than the word “contract”.         A “transaction”  may Involve
 negotiations      *or dealings only partly concluded.      See Eozled
 ;;,;~;$$n,         58 N.W.2d .313 (Mlnn., 1953);
               ommleelon v. Talley Induet;:
  Clr .l*);     Kn pfl        S k , 106 N W
 Webster’s     ‘Zhtzd N~wv~nt~r~atlonal~Mctlona
 Black’s    Law Mctlonary,      4th Ed ., P.      ;
  335.
    Dr. David Wade, page 5,         (H-3)


           Whatever are the llmltatlons     placed on the aCtlVltleS
    of Board Membere meeting in private,        It 18 clear that Staff
    members of the governmental body can meet and Confer pmely
    -Tar        purpose8 of Internal    admlnlstratlon    and that no
    +ma ter affecting     public bualneac may be acted upon at Such
     meetings.     Since Staff members themaelve~e           no power to
     act for the Board In the formal sense, the LeglSlatUre           muet
     have had In mind actions      OS a leaa final nature when It
     prohibited    staff members from privately     meeting to act on
     public business.      The obvious purpose was to avoid pro forma
     public approval by the agency of matters already privately
     determined by Its etaff,      and to Insure that policy     decisions
     and deliberations     would not be made In bureaucratic      laolatlon,
     but exposed to the view of the lntereeted         public.   A Staff
     meeting called for the purpoee of making recommendations to
     the bard     for action In matters before the Board would seem
     to be within the prohibition.

           It would be strange If the Legislature      Intended that
    staff members could act otherwlee at private staff meetings
    so long as one or more members of the Board, acting 85 a
    committee,    were present,    and It la the opinion of this
I   office   that the Legislature     had no @uch intention.    It
    follows    that a committee of Board members mey not meet
    privately    and without complying with the provlslona      of
    Article    6252-17 with staff    membere for the purpose of
    formulating     recommendations to be made to the full Board
    concerning     the dlepoeltlon   of matters before the Board.
    Therefore,     our answer to the question posed by your letter
    as It applies      to this particular   eltuatlon,  Is In the
     negative.
            This opinion must be.construed       as limited to the
     question you asked.       It Is our understanding that the Poard
     Is concerned primarily       with formulating basic and general
     pollclee    and not with particular,      Individual     casee or case
     histories.     Art. 5547-202,     Sec. 2.11(a),     V.T.C.S.    It Is
     not our Intent to hold that Information            concerning   Identified
     lndlvlduala    should  be   made  public,  In   violation    of Sec.
     2.23(c)    of Art. 5547-202,     V.T.C.S.




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.


.    Dr. rbvld   Wade, page 6,     (H-3)



                                 -SUMFlARY-

                        Official    commltteec compoced of members
                 of governmental bodice regulated by Article
                 6252-17,     Vernon’8 Texas Civil Statutea,
                 meeting to formulate recommendations for
                 the disposition      of matters pendlng before
                 the parent body, must comply with the
                 “notice”     and “open meeting” provlalona   of
                 Article     6252-17,

                                             -Very     truly     youre,




                                                  Attorney     General    of Texas

      APPROVED:




       OEN M BARRON
      krst  ieelztant
    T-v

     h3Yzs++&
      DAVID M. KENDALL, Chairman
      Opinion Committee




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