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DAN MORALES
 ATTORNEY
      GENERAL                                      June lo,1998

   Mr. Dehnar L. Cain                                      Opinion No. DM-478
   General Counsel
   The Texas A&M University System                         Re: Whether recently enacted Government Code
   301 Tarmw, 6th Floor                                    section 55 1.126, an Open Meetings Act provision
   College Station, Texas 77843-1230                       authorizing governmental bodies to hold meetings
                                                           by videoconference call, applies to a governing
                                                           board of an institution of higher education, and
                                                           related questions (RQ-1040)

   Dear Mr. Cain:

            On behalf of the board of regents of The Texas A&M University System, you ask about the
   relationship between two sections of the Open Meetings Act - Government Code section 55 1.126,’
   a recently enacted provision authorizing governmental bodies to hold meetings by videoconference
   call, and Government Code section 551.121, a ten-year-old provision authorizing a governing board
   of an institution of higher education to hold a meeting by telephone conference call in certain
   situations. You suggest that section 551.126 does not apply to any meeting of a governing board of
   an institution of higher education and that any meeting of a goveming body of an institution of
   higher education conducted by videoconference call is governed only by section 551.121. We
   conclude that both sections apply to a governing body of an institution of higher education.

             Chapter 55 1 of the Government Code, the codification of the Open Meetings Act, subchapter
   F, contains several provisions permitting meetings by teleconference and videoconference. Section
   551.121, which was enacted in 1987: authorizes the governing board of an institution of higher
   education to conduct a meeting by telephone conference call under certain conditions. It provides
   in pertinent part as follows:

                   (II) This chapter does not prohibit the governing board of an institution
               of higher education from holding an open or closed meeting by telephone
               conference call.




            ‘TheSeventy-ffi Legislatureenactedtwopmvisionscurrentlycodifiedas Governmen   t Code section 551.126.
   Throughout thisoption, WC addnss onlysection551.126 as enactedby Act ofMay30,1997,75tb    Leg., RS., cb. 1038,
   1991 Tex. Gen. Laws 3896,3896 (eff. Sept. I, 1997).

           =See Act of June 1,1987,7Oth   Leg., RS., ch. 964.5 4,1987   Tex. Gem. Laws 3282.3283.
    Mr. Dehmr L. Cam - Page 2                     (DM-478)




                   (c) A meeting held by telephone conference call may be held only iE

                     (1) the meeting is a special called meeting and hmnediate action is
                   required, and

                     (2) the convening at one location of a quorum of the governing
                   board is diffkult or impossible.

                   (d) The telephone conference call meeting is subject to the notice
               requirements applicable to other meetings.

                   (e) The notice of the telephone conference call meeting must specify as
               the location of the meeting the location where meetings of the governing
               board are usually held. For a meeting of the governing board of a university
               system, the notice must specify as the location of the meeting the board’s
               conference room at the university system office.

                    (t) Each part of the telephone conference call meeting that is required to
               be open to the public shall be audible to the public at the location specified
               in the notice of tbe meeting as the location of the meeting and shall be tape
               recorded. The tape recording shall be made available to the public.

    Gov’t Code § 551.121.

           Recently enacted section 551.126, which authorizes videoconference call meetings,
    to govemmental bodies generally, providing in pertinent part:
-
                   (a) Except as otherwise provided by this section, this chapter does not
               prohibit a governmental body from holding an open or closed meeting by
               videoconference call.

                   (b) A meeting may be held by videoconference call only if a quorum of
               the governmental body is physically present at one location of the meeting.

                   (c) A meeting held by videoconference call is subject to the notice
               requirements applicable to other meetings in addition to the notice
               requirements prescribed by this section.

                   (d) The notice of the meeting to be held by videoconference call must
               specify as a location of the meeting the location where a quorum of the
               governmental body will be physically present and specify the intent to have
               a quorum present at that location. In addition the notice,of the meeting must
               specify as a location of the meeting each other location where a member of



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Mr. Dehnar L. Cain - Page 3                            (~~-478)




            the governmental body who will participate in the meeting will be physically
            present during the meeting. Each of the locations shah be open to the public
            during the open portions of the meeting.

                (e) Each portion of a meeting held by videoconference call that is
            required to be open to the public shall be visible and audible to the public at
            each location specified under Subsection (d).

               (t) The governmental body shall make at least an audio recording of the
            meeting. The recording shall be made available to the public.

                (g) Each location specified under Subsection (d) shall have two-way
            communication with each other location during the entire meeting. Each
            participant in the ‘videoconference call, while speaking, shall be clearly
            visible and audible to each other participant and, during tbe open portion of
            the meeting, to the members of the public in attendance at the location of the
            meeting.

Id. § 55 1.126. Subsections (h) and (i) govern the quality of audio and video signals. Subsection (j)
permits a governmental body to allow a member of the public to testify at a meeting kom a remote
location by videoconference call, without regard to whether a member of the governmental body is
participating from a remote location.

         To summarize the pertinent highlights of these provisions, section 55 1.121 anthorizes the
governing board of an institution of higher education to hold a meeting. by telephone czmfemnce call
only ifthe meeting is a special called meeting regarding a matter requiring immediate action and it
is difficult or impossible to convene a quorum of the governing board inone location. The open
portions of the telephone conference call meeting must be audible to the public at the location the
governing board usually meets. Section 551.121 contemplates that a quorum of the governing board
is not present in one location Section 551.126, on tbe other hand, authorizes any governmental body
to hold any meeting, not just a special called meeting, by videoconference call if a quorum of the
governmental body is present at one location. Any open portion of the meeting must be open to the
public, not only at the location of the quorum, but also at every remote location from which a
member participates. There must be two-way video communication between all locations.

        The Texas A&M University System suggests that section 551.126 is inapplicable to
governing boards of institutions of higher education because section 551.121 is specific to such
bodies and predates section 55 1.126. We see no reason to exclude governing boards of institutions
of higher education from the scope of section 551.126. First, a governing board of an institution of
higher education is a “governmental body” within the meaning of section 551.126.’ Furthermore,
sections551.121and551.126innowayconflict.          Section551.121allowsagovemingboardofan


        ‘See Gov’t Code 5 551.001(3)(A)   (defhition    of “govmunental   body”).




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Mr. Dehnar L. Cain - Page 4                        (DM-478)




institution of higher education to conduct a meeting by telephone conference call in certain very
liited circumstances - when a quorum cannot be present for a special called meeting regarding a
matter requiring immediate action. Section 551.126 is broader, applying to governmental bodies
generally, and authorizing any meeting by videoconference call if a quorum of the governmental
body is present in one location and the governmental body adheres to various special requirements.
Govermnent Code section 55 1.125, which also predates4 section 55 1.126, is quite similar to section
55 1.121, authorizing governmental bodies to hold emergency meetings by telephone conference call
when it is difficult or impossible to convene a quorum in one location. The availability of telephone
conference call meetings to all governmental bodies further supports our conclusion that the
legislature intended the telephone conference call statutes and section 55 1.126 to be read together
to apply to different types of meetings - a special or emergency meeting where a quorum cannot be
present in one location in the case of the telephone conference call statutes and a regular meeting
where a quorum is present in one location in the case of section 551.126.

         The Texas A&M University System asks if it may hold a regular meeting, at which a quorum
is present but at which other members are unable to personally attend, with participation of the
nonpresent members by telephone. We conclude that it may not. The Open Meetings Act
contemplates that members of a governmental body participating in a meeting must be physically
present unless expressly authorized to participate by other means. See Attorney General Opinions
DM-207 (1993), JM-584 (1986). Thus, this office has concluded that in the absence of specific
legislative authorization, a member may not participate in a meeting via telephone conference call
or video transmission. See id We believe such legislative authorixations must be strictly construed
and may not be expanded to allow exceptions not expressly contemplated and authorized by the
legislature. Section 551.121 permits The Texas A&M University System board of regents to
conduct a meeting by telephone conference call only if the meeting is a special called meeting
regarding a matter requiring immediate action and it is difficult or impossible to convene a quorum
of the board at one location. Section 55 1.121 did not apply to regular meetings of the board regents
before the enactment of section 551.126 and it does not apply to regular meetings now. If the board
of regents wishes to allow nonpresent members to participate in a regular meeting from a remote
location, it must do so by videoconference call under section 551.126. A quormn of the board of
regents must be present in one location and members of the public must have access to all locations.

         We have also been asked if the governing board of an institution of higher education may
“continue to use real-time videoconferencing as a means of holding board meetings under the
authority gmnted to such boards to hold telephonic meetings” under section 55 1.121. This question
requires  us to addrtxs two issues: first, whether videoconference call tedmo~ogy may be used for a
section  551.12 1 meeting, and, if so, whether a videuconference call meeting under section 55 1.12 1
must adhere to section 551.126 requirements, such as public access to remote locations or
transmission quality standards, which section 55 1.121 does not impose



        ‘Government Code .ection 551.125 was enacted in 1995. See Act of May 29,1995,74thLeg.,   R.S., ch 1046,
1995 Tex. Gen. Laws 5193.5193.



                                                   p.   2708
Mr. Delmar L. Cain - Page 5                           (~~-478)




         With respect to the first issue, section 551.121 authorizes a special called meeting by a
specific technology -- telephone conference call. As noted above, we believe section 55 1.121 must
be strictly construed. Thus, we conclude that a section 55 1.121 meeting must be conducted by the
technology specified by the legislature - telephone conference call. Whether a specific technology
con&itutes a telephone conference call is a question of fact beyond the purview of this office. It may
be the case that The Texas A&M University System video network uses the same technology as a
telephone conference call, transmitting both an audio and a video signal. In that case, we believe
section 55 1.121 would be satisfied by use of the video network. If the technologies are different,
we see no reason why The Texas A&M University System board of regents could not use both
technologies in tandem. Use of telephone conference call technology would satisfy section 55 1.121,
and section 551.121 certainly does not preclude the use of additional technologies that provide
additional access to the public. We do not believe, however, that the video network may be used in
lieu of a telephone conference call if the technologies are different.’

        With respect to the second issue, assuming that the video network may be used to conduct
asection551.121meetin&wedonotbelievethemeetingissubjecttosection551.126requirements
not applicable to a meeting under section 55 1.121. Thus, for example, the public need not be granted
access to the remote locations nor must the transmission quality comport with section 551.126
standards. We stress, however, that section 551.121 only applies to a special called meeting
regarding a matter requiring immediate action and for which it is difficult or impossible for a quorum
of the board of regents to convene at one location.

         In sum, section 551.121 permits a special called meeting of a governing board of an
institution of higher education to be conducted by telephone conference call only if the meeting
pertains to a matter requiring immediate action and it is difficult or impossible for a quorum to
convene at one location. Section 55 1.126 permits any govermnental body, including a governing
board of an institution of higher education, to hold a meeting by videoconference call if a quorum
is present in one location. A governing body of an institution of higher education may not conduct
a regular meeting by telephone conference call. A section 55 1.121 special called meeting may be
transmitted by video ifthe video transmission uses telephone conference call technology or is used
in addition to telephone conference call technology.




           ‘We have received a letter from your office describing the video network at issue, the Trans-Texas
Videoconference Network The letter states that the network “provides for real time audio and video hansmission for
mukiple users. It operates using cmnpd        video techdogy   and telephone lines.” Letter tinm Genevieve G. Stubbs,
Associate General Couascl, The Texas A&M University System, Office of General Counsel (Jan. 9, 1998). This
description suggests that the network uses telephone conference call tccbnology.      As noted above, however, whether
a pattieular network uses telephone conference call technology is ultimately a fact detcrminatioa and is thaefore beyond
the purview of an attorney general opinion. Tbia determination must be made by ‘The Texas ABrM University System
in the fmt instance.




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Mr. Delmar L. Cain - Page 6                  (DM-478)




                                      SUMMARY

               Govermnent Code section 551.126 permits any governmental body,
          including a governing board of an institution of higher education, to hold a
          meeting by videoconference call if a quorum is present in one location.
          Section 55 1.12 1 permits a special called meeting of a governing board of an
          institution of higher education to be conducted by telephone conference call
          only if the meeting pertains to a matter requiring immediate action and it is
          difficult or impossible for a quorum to convene at one location. A goveming
          body of an institution of higher education may not conduct a regular meeting
          by telephone conference call. A section 551.121 special called meeting may
          be tmnsmitted by video if the video transmission uses telephone conference
          call te&nology or is used in addition to telephone conference call technology.




                                             DAN MORALES
                                             Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHJRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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