                 THE   ATTORNEY    GENERAL
                          OF TEXAS


                         December 28, 1989




Mr. John R. Hale               Opinion No.   JM-1127
Commissioner
Credit Union Department        Re: Whether attendance    of a
914 East Anderson Lane         quorum of members of the Texas
Austin, Texas 78752-1699       Credit Union Commission   at a
                               board meeting    of the   Texas
                               Share Guaranty Credit Union  is
                               a "meeting" under article 6252-
                               17, V.T.C.S.   (RQ-1763)

Dear   Mr.   Hale:

     The Credit Union Commission   is required to promulgate
reasonable rules requiring credit unions to provide    share
and deposit  insurance protection    for their members   and
depositors, l'including the authorization and establishment
of a share and deposit guaranty corporation or credit union
under the exclusive   regulation of the department. . . .'I
V.T.C.S. art. 2461-11.10(e).    Pursuant to this authority,
the commission has established   Texas Share Guaranty Credit
Union (TSGCU) to provide share and deposit insurance protec-
tion for Texas-chartered    credit unions.   Rules governing
its operation are codified at 7 Texas Administrative    Code
sections 95.1 through 95.507.

     The TSGCU is managed by a board of directors,   although
certain of its powers may be exercised only subject to the
approval  of the credit union commissioner.        7   T.A.C.
55 95.5, 95.201, 95.310.   Each member of the Credit Union
Commission, as well as the commissioner, his representative,
or the deputy commissioner,    is permitted  to attend any
meeting of the board of directors       of the TSGCU.     Id.
5 95.204. You are concerned about the effect of the Open
Meetings Act when members of the Credit Union Commission
attend meetings  of the board of directors     of TSGCU,    a
separate body.    YOU inquire whether the Credit        Union
Commission would hold a meeting subject to the Open Meetings




                               P. 5931
Mr. John R. Hale - Page 2   (JM-1127)




Act if a quorum   of commissioners     were to     attend a     TSGCU
board meeting-l

     YOU first ask:

        Would attendance of a quorum of commissioners
        at TSGCU's    board meeting    constitute    a
        'meeting' under the Texas Open Meetings Act?

     The definition of   "meeting" in the     Open Meetings       Act

states in part:



           'Meeting' means any deliberation between a
        quorum of members of a governmental body, or
        between a quorum of members of a governmental
        body and any other person,     at which any
        public business or public policy over which
        the governmental   body has supervision     or
        control is discussed   or considered . . . .
        (Emphasis added.)

V.T.C.S. art. 6252-17, 5 l(a).

     "Deliberation,"   a key term       in   the   definition      of
**meeting,18is defined as follows:

           'Deliberation' means a verbal     exchange
        during a meeting between a quorum of members
        of a governmental body, or between a quorum
        of members  of a governmental body and any
        other person, concerning any issue within the
        jurisdiction of the governmental body or any
        public business.

Id. § l(b).




     1. Meetings   of the TSGCU board of directors       are
apparently held in accordance with the law applicable     to
credit unions, and not the Open Meetings Act. -7      T.A.C.
5s 95.203, 95.204.   Any questions  about the establishment
and operation of TSGCU are beyond the scope of this opinion.




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Mr. John R. Hale - Page 3    (JM-1127)




     If a quorum of members   of the Credit Union Commission
engages in deliberations    as defined above,    it will be
holding a meeting within the Open Meetings Act.          Mere
physical presence of a quorum of Credit Union Commissioners
in the same room without such deliberations         does not
establish a meeting within the Open Meetings       Act.   See
aenerallv Attorney General Opinion H-785 (1976).

     Although you inquire only about the attendance at TSGCU
meetings by a quorum of board members, we believe you should
also be aware of section 4(b) of the Open Meetings      Act,
which provides in part:

           Any member or group of members       of a
        governing body who knowingly    conspires  to
        circumvent the provisions   of this Act by
        meeting in numbers less than a auorum for the
        purpose of secret deliberations   in contra-
        vention of this Act shall be guilty of a
        misdemeanor . . . . (Emphasis added.)

V.T.C.S. art. 6252-17, 5 4(b).

     You next ask:

        If the commission    has a vacancy,    could
        attendance of a majority   of the commission
        members constitute a quorum? For example  if
        there are at some time only     7 commission
        members. would attendance of 4 at a- TSGCU
        meeting be a 'meeting'?

     As an initial matter, we direct your attention    to
article XVI, section 17, of the Texas Constitution, which
provides as follows:

           All officers within this State _ shall   .
        continue to perform the duties OS       tneir
        offices until their successors shall be duly
        qualified.

        When deciding whether a vacancy exists, it is necessary
to consider the effect of this provision.     For example, when
an officer resigns and his resignation is accepted,          the
law operates to continue him in office until his successor
qualifies.     Jones v. City of Jefferson, 1 S.W. 903      (Tex.
1886); Plains Common Consol. School Dist. No. 1 v. Havhurst,
122 S.W.Zd 322 (Tex. Civ. App. - Amarillo 1938, no writ).
Thus, an individual      serving on the board in a holdover




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Mr. John R. Hale - Page 4    (JM-1127)




capacity under article ,XVI, section 17, of the Texas
Constitution will still~have   the powers and duties    of a
board member, and his presence will count toward making  up a
quorum of the board.

      The Credit Union Commission  consists of nine members.
V.T.C.S. art. 2461-11.01(a).   A majority of the membership
of the commission   constitutes a quorum for the purpose   of
transacting any business.     Id. art. 2461-11.06(b).     The
quorum of a board remains a majority       of the positions
authorized for the board, even though there are vacancies.
Thomas v. Abernathv County Line Index. School Dist., 290
S.W. 152 (Tex. 1927); Walker v. Walter,    241 S.W. 524, 528
(Tex. Civ. App. - Fort Worth, no writ); Attorney      General
Opinion O-761 (1939): Letter Opinion    LO-88-45 (1988): see
Ramirez v. Zanata Countv Inden. School Dist., 273 S.W.2d 903
 (Tex. Civ. App. - San Antonio 1954, no writ). Thus,     five
members of the commission constitute a quorum whether or not
some positions on the commission are vacant.

     Your third question is as follows:

        Would a 'meeting' be avoided if no 'delibera-
        tion' occurred?

               If commission members    sit   silently,
        doe:'that avoid 'deliberation'?

           b. MaY    the   commission   members   ask
        questions without that constituting 'deliber-
        ation'? If so, could a member ask a follow-
        up question,    or would that constitute    a
        'deliberation'?

           C.  May a commission member make a state-
        ment at the meeting without      constituting
        'deliberation'?

     "Deliberation"   is defined in section l(b) of the act as

        a verbal exchange during a meeting between   a
        quorum of members of a governmental body, or
        between a quorum of members of a governmental
        body and any other person,    concerning   any
        issue within the jurisdiction of the govern-
        mental body or any public business.    i
V.T.C.S. art. 6252-17, 5 l(b).




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    Mr. John R. Hale - Page 5   (JM-1127)




         "Verbal" is defined as "of or relating to words."
    Webster's 3d New International  Dictionary 2542 (1961).    If
    members of the Credit Union Commission    in attendance at a
    meeting of the TSGCU engage in a verbal exchange "concerning
    any issue within the jurisdiction of the governmental    body
    or any public business" they will be conducting     delibera-
    tions. See Attorney General Opinions JM-1058 (1989); JM-248
    (1984); MW-417   (1981); MW-28    (1979).   Comnare Attorney
    General Opinion MW-390 (1981) with Attorney General Opinion
    JM-640   (1987).  If the credit union commissioners       sit
    silently and engage in no exchanges     of words whatsoever,
    they will not be holding deliberations.

         In the other hypothetical situations you pose, one
    member of the Credit Union Commission addresses a question
    or statement   to the TSGCU board of directors.    If other
    members of the Credit Union Commission    follow with their
    questions or statements to the TSGCU board, the possibility
    of indirect deliberations between credit union commissioners
    arises -- that is, deliberations    by means of addressing
    remarks   intended for one another to the TSGCU board.
    Whether sequential   questions or statements   addressed   to
    the TSGCU board by different commission members   constitute
    deliberations is a fact question that cannot be answered   as
    a matter of law in an attorney general opinion. Nor can we
    predict when a statement by one credit union commissioner to
    the TSGCU will elicit an answering statement by another
    commissioner, so that the commissioners     find themselves
    involved in deliberations without having consciously   formed
    the intent to deliberate.

         In considering your hypothetical  cases we are mindful
    of this possibility    for indirect deliberations.      If a
    commission member asks a question or makes a statement     to
    the TSGCU board of directors, that alone will not constitute
    deliberation between or among members of the Credit Union
    Commission.  Nor will there be deliberations    because the
    same commission  member asks a follow-up question.        If,
    however, other members of the Credit Union Commission    then
    address their statements or questions to the TSGCU board, a
    possibility arises that deliberations have taken place.

                           SUMMARY

               If a quorum of members of the Credit Union
            Commission attends a meeting of the board of
            directors of the Texas Share Guaranty  Credit
            Union (TSGCU) but does not engage in deli-
            berations as defined by the Open Meetings




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Mr. John R. Hale - Page 6     (JM-1127)




        Act, it will not be.holding a meeting subject
        to the Open Meetings Act.

           A majority of the membership of the Credit
        Union Commission constitutes a quorum for the
        purpose of transacting any business.  In the
        event of a vacancy on the commission,     the
        quorum still consists of a majority of the
        positions authorized for the board.

            If members of the Credit Union Commission
        present at a meeting of the TSGCU engage
        directly or indirectly   in a verbal exchange
        t'concerning any issue within the jurisdiction
        of the governmental     body or any      public
        business" they will be conducting     delibera-
        tions as defined by the Open Meetings      Act.
        Indirect deliberations     would occur     when
        credit union commissioners speak to the TSGCU
        board   in turn, addressing     to it remarks
        intended    for   the   other    commissioners.
        Whether the commissioners     have engaged    in
        deliberations in a given case is a fact
        question.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCRKARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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