                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                January 23, 2012



The Honorable John E. Davis                               Opinion No. GA-0908
Chair, Committee on Economic
   and Small Business Development                         Re: Whether the members of the board of trustees
Texas House of Representatives                            of the Clear Lake City Community Association
Post Office Box 2910                                      may hold a meeting by means of a telephone
Austin, Texas 78768-2910                                  conference call (RQ-0989-GA)

Dear Representative Davis:

       You ask whether members of the board of trustees of the Clear Lake City Community
Association (the "Association") may hold a meeting by means of a telephone conference call.I

         As you indicate, since 2007, a property owners' association in a county with a population of
2.8 million or more, like the Association at issue here, has been, under particular circumstances,
subject to the Open Meetings Act (the "Act") "in the same manner as the governing body of a
governmental body." TEX. GOv'T CODE ANN. § 551.0015(b) (West Supp. 2011). The Act
authorizes a governmental body to conduct a meeting by telephone conference call only under
specified, limited conditions. Most governmental bodies may hold a meeting by telephone
conference call only if "(1) an emergency or public necessity exists within the meaning of Section
551.045 of this chapter; and (2) the convening at one location of a quorum of the governmental body
is difficult or impossible; or (3) the meeting is held by an advisory board." Id. § 551.125(a) (West
2004). You do not suggest that any of these circumstances are relevant to your question.

         You first ask whether the attendance by one member of the Association's board by means
of a telephone conference call would implicate the Act. In a prior opinion that relied on previous
attorney general opinions, this office declared that "if a quorum of a commissioners court appears
at the meeting location, section 551.125 does not authorize other members to participate from other
locations by telephone conference call." Tex. Att'y Gen. Op. No. JC-0352 (2001) at 4. See also
Tex. Att'y Gen. Op. Nos. JC-0194 (2000) at 2 (concluding that Act does not permit a governmental
body to allow a board member to participate in a regular meeting by telephone); DM-207 (1993)



        I Letter from Honorable John E. Davis, Chair, House Committee on Economic and Small Business Development,

to Honorable Greg Abbott, Attorney General of Texas (July 22, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml
("Request Letter").
The Honorable John E. Davis - Page 2           (GA-0908)




at 3 (noting that the Act assumes that "members will be physically present at the location designated
in the notice"); JM-584 (1986) at 7 (concluding that a meeting conducted by teleconference call
among geographically dispersed board members is not "open to the public" as required by the Act).
We conclude that the Association would violate section 551.125 of the Act by permitting one
member of its board to participate in a meeting by telephone conference call.

         Certain statutes outside the Act authorize specific entities subject to the Act to hold their
meetings by telephone conference call or similar telecommunications device. For example, section
322.003 of the Government Code declares that "[a]s an exception to Chapter 551 and other law, if
a meeting is located in Austin and the joint chairs of the [Legislative Budget Board] are physically
present at a meeting, then any number of the other members of the board may attend the meeting by
use of telephone conference call, video conference call, or other similar telecommunication device."
TEX. GOV'T CODE ANN. § 322.003(d) (West Supp. 2011). Other statutes specifically permit various
governmental bodies to hold their meetings by telephone conference call if certain conditions are
met. See, e.g., TEX. AGRIc. CODE ANN. § 62.0021(a) (West 2004) (State Seed and Plant Board);
TEX. FIN. CODE ANN. § 11.106(c) (West 1998) (Finance Commission); TEX. GOV'T CODE ANN.
§ 501.139(b) (West 2004) (Correctional Managed Health Care Committee). Thus, the Legislature
knows how to authorize a telephone conference call under particular circumstances. You point to
no statute, and we are aware of none, authorizing an entity such as the Association to hold its board
meetings by telephone conference call.

       You ask, however, whether two provisions of the Business Organizations Code (the "Code")
furnish authority for the Association's board members to hold their meetings via telephone
conference call. Request Letter at 2. You note that the Association is a nonprofit corporation
"originally formed under the Texas Corporation Act, now re-codified as the Texas Business
Organizations Code." Id. The statutes provide, in relevant part:

                        (a) Subject to this code and the governing documents of a
               domestic entity, the owners, members, or governing persons of the
               entity, or a committee of the owners, members, or governing persons,
               may hold meetings by using a conference telephone or similar
               communications equipment, or another suitable electronic
               communications system, including videoconferencing technology or
               the Internet, or any combination, if the telephone or other equipment
               or system permits each person participating in the meeting to
               communicate with all other persons participating in the meeting.

TEX. Bus. ORGS. CODE ANN. § 6.002(a) (West 2010).

                      Subject to the provisions of this code and the certificate of
               formation and bylaws of a corporation, a meeting of the members of
               a corporation, the board of directors of a corporation, or any
               committee designated by the board of directors of a corporation may
The Honorable John E. Davis - Page 3            (GA-0908)




                be held by means of a remote electronic communications system,
                including videoconferencing technology or the Internet, only if:

                        (1) each person entitled to participate in the meeting consents
                to the meeting being held by means of that system; and

                        (2) the system provides access to the meeting in a manner or
                using a method by which each person participating in the meeting can
                communicate concurrently with each other participant.

[d. § 22.002.

        Section 6.002 of the Code is applicable generally to any "domestic entity" subject to this
Code. See TEX. Bus. ORGS. CODE ANN. § 6.002 (West 2010). Likewise, section 22.002 of the Code
applies to any meeting of the members or board of directors of a "corporation," defined as "a
domestic nonprofit corporation subject to this chapter." [d. §§ 22.001 (defining "corporation");
22.002 (allowing meetings by remote communications technology). These provisions of the Code
are globally applicable to an entity like the Association, irrespective of the applicability of the Act.

        On the other hand, section 551.0015 of the Act specifically declares a "property owners'
association," like the one that is the subject of your request, to be subject to the Act "in the same
manner as ... a governmental body." See TEX. GOV'T CODE ANN. § 551.0015 (West Supp. 2011).
Moreover, section 551.125 imposes strict limitations upon any telephone conference call conducted
by a governmental body. As a result, the general provisions of the Code that allow the Association,
as a domestic entity or corporation, to hold a meeting by telephone conference call conflict with the
specific provisions of chapter 551 that restrict the authority of the Association, as a governmental
body, to hold a meeting by telephone conference call. The Code Construction Act provides that, in
the event of conflict between a general and a special provision, the special provision prevails, "unless
the general provision is the later enactment and the manifest intent is that the general provision
prevail." [d. § 311.026(b) (West 2005). City o/Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008)
("In determining legislative intent, we are . . . guided by the principle that a specific statute will
ordinarily prevail over a general statute when the two cannot be reconciled."). Because, in this
instance, sections 551.0015 and 551.125 of the Act are more specific provisions than either section
6.002 or section 22.002 of the Code, sections 551.0015 and 551.125 prevail. It follows that
members of the board of trustees of the Association may not hold a meeting by means of a telephone
conference call, except in the limited circumstances described in section 551.125 of the Government
Code.
The Honorable John E. Davis - Page 4         (GA-0908)




                                      SUMMARY

                       The members of the board of trustees of the Clear Lake City
               Community Association, a "property owners' association" as defined
               in the Open Meetings Act, chapter 551 of the Government Code, may
               not hold a meeting by means of a telephone conference call, even if
               only one member so participates, except in the limited circumstances
               described in section 551.125, Government Code.

                                             Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
