                                         The Attorney          General of Texas
                                                          August 17, 1983
JIM MATTOX
Attorney General



Supreme      Court Building
                                       Honorable James Warren Smith, Jr.     Opinion No. JM-63
P. 0. aox 12548                        Frio County Attorney
Austin.    TX. 78711. 2546             P. 0. Box V                           Re:   Whether county clerk or
5121475-2501                           Pearsall. Texas   78061               county judge controls prepara-
Telex    9101674~1367                                                        tion of agenda for commissioners
Telecopier     51214750266
                                                                             court

1607 Main St., Suite 1400              Dear Mr. Smith:
Dallas,   TX. 75201-4709
2141742-6944                                You have asked whether the county judge or the county clerk
                                       controls the preparation of the agenda for the commissioners court.
4624 Alberta       Ave.. Suite   160   Our answer to your question is that neither of those two individual
El Paso. TX.       799052793           county officials controls the agenda, but rather, as a matter of law,
915/5X-3464                            the commissioners court, as a whole, controls its own agenda. We are
                                       fully aware that it is the common practice in many counties of this
,220 Dallas Ave., suite 202
                                       state for the county judge to act as the agenda clerk and through him
Houston,     TX. 77002-6986            items may be placed on the agenda for consideration by the
7131650-0666                           commissioners court. In other counties, the commissioners court has
                                       either designated a deputy county clerk to perform these functions, or
                                       has separately hired an employee under the supervision of the
606 Broadway.        Suite 312
Lubbock,     TX.    79401-3479
                                       commissioners court. The clerk serves only as the keeper of the
6061747-5238                           minutes and records of the commissioners court and has no independent
                                       authority to exercise his judgment as to matters which may or may not
                                       be considered by the commissioners court.
4309 N. Tenth. Suite 6
McAllen.     TX. 78501.1685
                                            The county commissioners court in Texas is established by article
5121682.4547
                                       V. section 18, of the Texas Constitution:

200 Main Plaza. Suite 400                       Each county shall . . . be divided into four
San Antonio.  TX. 76205-2797                    commissioners   precincts . . . .     The   County
5121225~4191
                                                Commissioners so chosen, with the County Judge as
                                                presiding officer, shall compose the County
A” Equal      opportunityi                      Commissioners Court, which shall exercise such
Affirmative     Action     Employer             powers and jurisdiction over all county business,
                                                as is conferred by this Constitution and the laws
                                                of the State, or as may be hereafter prescribed.

                                       The statutory corollary of section 18 is article 2342, V.T.C.S.:

                                                The several commissioners, together with the
                                                county judge, shall compose the "Commissioners




                                                                 p. 272
Honorable James Warren Smith, Jr. - Page 2 (~~-63)




         Court," and the county judge, when present, shall
         be the presiding officer of said court.

Article 2351, V.T.C.S., provides in part that

         [e]ach commissioners court shall: . . . (14) Issue
         all such notices, citations, writs and process as
         may be necessary for the proper execution of the
         powers and duties imposed by such court and to
         enforce its jurisdiction.

We believe that the commissioners court agenda is a "notice" under
this provision which is "necessary" by virtue of the Texas Open
Meetings Act for the proper execution of the official duties of the
court. We find no authority for the county judge alone to control the
contents, preparation and posting of the agenda required by the Texas
Open Meetings Act, article 6252-17, V.T.C.S. Section 3a provides for
the required notice of meetings of the commissioners court:

            Written notice of the date,, hour, place, and
         subject of each meeting held by a governmental
         body shall be given before the meeting as
         prescribed by this section . . .

             .   .   .   .

            (d) A county governmental body shall have a
         notice posted on a bulletin board located at a
         place convenient to the public in the county
         courthouse. (Emphasis added).

In the event of emergency called meetings, the presiding officer, that
is, the county judge, may be required to notify the news media. Id.
§3a(h).

     We do not believe that the county judge's authority and duties to
"preside" over ,meetings of the county commissioners court grants him
authority to prepare and limit, in his sole discretion, the items to
be considered by the commissioners court. To preside has been defined
as follo"s:

          to occupy the place of authority, as of president,
          chairman, moderator, etc.; to direct, control, OI
          regulate proceedings as chief officer . . .

Webster's New International Dictionary; 2d Edition (1947).




                                  p. 273
.   .A




         Honorable James Warren Smith, Jr. - Page 3   (JM-63)




              The duties of the county clerk do not encompass the preparation
         or alteration of the commissioners court agenda. The county clerk is
         directed by statute to

                  attend upon each term of said commissioners court;
                  preserve and keep all books, papers, records and
                  effects belonging thereto, issue all notices,
                  writs and process necessary for the proper
                  execution of the powers and duties of the
                  commissioners court . . .

         V.T.C.S. art. 2345; see also V.T.C.S. art. 1940 (ex officio clerk).

              A commissioners court speaks through its minutes at any lawfully
         called meeting at which there is a quorum. Arts. 2343 (Quorum). 2348
         (Regular terms), V.T.C.S.; Hill Farm, Inc. V. Hill County, 425 S.W.2d
         414 (Tex. Civ. APP. - Waco 1968) aff'd, 436 S.W.2d 320 (Tex. 1969)
         (co&issioners coyrt acts only throughits minutes). See generally
         Rheuark V. Shaw, 628 F.2d 297 (5th Cir. 1980), cert. denied, sub nom.
         Rheuark V. Texas, 450 U.S. 931 (1980). Therefore, the commissioners
         court may control its own agenda much in the same way as the court may
         limit the comment of citizens at a public hearing.. Attorney Generai
         Opinion H-188 (1973).

              We believe that the court may designate an agenda clerk who is
         responsible for compiling the items to be placed on the agenda. The
         court may also prescribe the manner in which items are to be submitted
         for such inclusion. Each member of the court, of course, must be
         permitted to place on this agenda any item of his choosing.

                                     SUMMARY

                     Neither the county judge nor the county clerk
                  controls the preparation of the agenda for the
                  commissioners court. The cormnissionerscourt as a
                  whole has the authority to determine and amend its




                                               J
                  own agenda.

                                                Very truly your

                                                      A
                                                JIM     MATTOX
                                                Attorney General of Texas

         TOM GREEN
         First Assistant Attorney General




                                            p. 274
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Honorable James Warren Smith, Jr. - Page 4     (JM-63)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton




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