Honorable F. T. Graham              opinion No.   M-220
Criminal District Attorney
Cameron County                      Re:    Validity and constitu-
Brownsville, Texas                         tionality of S.B. 94,
                                           Acts 60th Leg., 1967,
                                           (Art.  6252-171, and re-
Dear Mr. Graham:                           lated questions.

          You have requested an opinion from this office on
certain provisions of Senate Bill 94, Acts 60th Legislature,
Regular Session, 1967, Chapter 271, page 597 (hereinafter re-
ferred to as S.B. 94), Article 6252-17, Vernon's Civil Statutes.

          In particular you have requested this office to answer
certain queations, which we will set out as follows:

               (1) Doe8 S.B. 94 contravene   Section 10 of Article I
of   the   Texas Constitution?

              (2)   What ir a "meeting" or "session" as 6et out in
S.B. 947

              (31 What is the meaning of "open to the public" as
aet out in     S.B. 941

          (4) What is the meaning of         *closed to the public" as
eet out in S.B. 947

           (5) What meaning or effect is to be given to the
language of Section 4 of S.B. 94, which requires a member to
cause his dissent to,be recorded in the minutes or record of
the meeting7

              S.B. 94 reads as follows:

             "Section 1. (a) Except as otherwise pro-
       vided in this Act, every regular, special, or
       called meeting or session of every governmental
       body shall be open to the public.

             "(b) A 'governmental body,' within the mean-
       ing of this Act, is any board, commission, depart-
       ment, or agency within the executive department of
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hon. F. T. Graham, page 2 (M-220)



    the atate, which is under the direction of three
    or more elected or appointed members; and every
    Commi88ioner8 Court and city council in the state,
    and every deliberative body having rule-making or
    quasi-judicial power and classified as a depart-
    ment, agency, or political subdivi8ion of a
    county or city; and the board of trustee8   of
    every school di8trict, and every county board of
    school truetees and county board of educations
    and the governing  board of every special district
    heretofore,or hereafter created by law.

          “Sec.   2.   (a) The provirion8 of thi8 Act do
     not apply to:

            "(1) deliberation8 during a meeting to con-
     8ider the appointment, employment or dismie8al of
     a public officer or employee or to hear complaints
     or charg88 brought againrt 8uch OffiC8r or employee,
     Unle88   ruch officer or employee reqUe8t8 a public
     hearing;

          "(2) deliberations pertaining to the ac-
     qui8ition of additional real property8

            "(3) deliberation8   on matter8 affecting
     8ecurity;   or

          "(4) any investigating committee of the
     Legirlature.

          “(b) A governmental body may exclude 8ny wit-
     ne88 or witne88er from a hearing during examination
     of another witne88 in the matter being inve8tigated.

          "(c) Nothing. in this Act shall be construed
     to prevent a governing  body from consulting with
     it8 attorney.

          "(d) Nothing in thie Act shall be construed
     to affect, the deiiberationa of grand, jurie8.

          "(a) The provirion8 of thi8 Act shall not ap-
     ply to periodic conferences held among staff mera-
     bar8 of the governmental body.   Such staff meet-
     ing8 will be only for the purpose of internal ad-
     mini8tration~ and no matter8 of public bu8ine88
     or agency policies that affect public busine88

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lion. F. T. Graham, page 3   (M-220)



     will be acted upon.

          "Sec. 3. Any interested person may commence
     an action either by mandamus or injunction for
     the purpose of stopping or preventing violations
     or threatened violations of this Act by members of
     a governing body.

          "Sec. 4. Any member of a governing body who
     wilfully calls or aids in calling or organizing a
     special or called meeting or session which is
     closed to the public, or who wilfully closes or
     aids in closing a regular meeting or session to the
     public, or who participates in a regular, special,
     or called meeting or secision which is closed to
     the public without causing or attempting to cause
     hi8 di8sent to b8 entered in the record or minute8
     of the governing body, shall be guilty of a mis-
     demeanor and shall be fined not leas than $25
     nor more than $200 on the firat offense, and shall
     be fined not le8s than $100 nor more than $500 on
     each subsequent offense.

          "Sec. 5. If any provision of this Act or the
     application thereof to any person or circumstance
     18 held invalid, 8UCh invalidity shall not affect
     other provisions or applications of the Act which
     can be given effect without the invalid provision
     or application, and to this end the provisions
     of this Act are declared to be severable.

          "Sec. 6. All laws or parts of laws in con-
     flict with the provisions of this Act are repealed
     to the extent of such conflict only.

          "Sec. 7. The importance of asauring that the
     public has the opportunity to be informed concern-
     ing the transactions of public business creates an
     emergency and an imperative public necessity that
     the Constitutional Rule requiring bills to be read
     on three several day8 in each Houee be suspended,
     and this Rule is hereby suspended; and that this
     Act take effect and be in force from and after it8
     passage, and it is so enacted.*

          Section 10 of Article I of      the Texas Constitution   pro-
vides in part:

           "Sec. 10.   In, all criminal prosecutions   the

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Bon. F. T. Graham, page 4      (W-220)



      accused shall have a SDeedv oublic trial bv an
      impartial jury,. He shill ha;e the right to demand
      the nature 8nd cau8e of the accusation again-,
      and to have a copy thereof,  . . .. (Emphasis
      add e d .1

          We can see from a reading of S.B. 94, supra, that it
was the intention of the Legislature to prohibit certain govern-
mental bodies from holding meetings that are closed to the public,
except thO8e excluded by Section 2 of the Act.

            In 12 Tex.Jur.Zd    385-386, Constitutional   Law, Section
42,   it ia 8tated:

           "Although a statute will not be declared
      constitutional for the mere reason that it has been
      enacted by the legislature it 18 presumed that the
      legislature has acted within it8 powers, and a duly
      enacted statute is presumed to be constitutional.
      And if there could be a state of facts justify-
      ina the leaislative action it 18 DreSU6d that
      &%a     stak of facts exists.    Th; presumption
      also exists that the legi8lature considered the
      constitutionality of all measures enacted by It
      and that it de8ired;and intended to enact a
      valid law. And when a legielative act is 8u8-
      ceptible of more than one interpretation, one
      of which would effect   a valid enactment and an-
      other of which would render the act uncon8ti$u-
      tional, it is pre8umd that the legislature in-
      tended the interpretation that would effect a
      valid enactment.”    (Emphasis added.)

           It appear8 from a reading of Section 4 of S.B. 94,
supra, that the language used is clear and unambiguous and that
a person charged with.the violation thereof would be fully ap-
prised of the nature and cause of the accusation againet him,
and Section 4 contains no language that would deprive him of a
speedy public trial by an impartial jury. Therefore Section 4,
supra, doe8 not contravene Section 10 of Article I of the Texas
Constitution, and im therefore constitutional.

          We next consider the question of what io a meeting or
session as set out in S.B. 94, eupra.

           In the case of Town of Hodgenville v. Kentucky Util-
~,'~~~;lr,"~i;;g6hs.~,~~~;:~;:~~~ (Ky.Ct.App. 19331, the Court <n
                                  stated:

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hon. F.    T. Graham, page 5   (M-220)



             "[Tlhe word '8e58ion' may be used SynOny8IOuS-
        ly with 'meeting' or it may be used in its literal
        8enre of 'sitting'. A meeting may run for a day,
        with a morning session, an adjournment for lunch,
        an afternoon 8e88iOn . . . 8UCh 8eusion8 clearly
        bdng but 8itting8 Of the meeting.    . . ."

It 18 our opinion that the word Hmeetingw and '8688ion" 18
8ynonymou8 a8 used in S.B. 94, supra. A meeting or Se8siOn 18
one in which the member8 of the governmental body tran8act
official bU8in888 with which 8Uch agency is charged to perform.

          Your next two que8tion5, concerning the meaning of
“open to the public* and "clo8ed to the public" will be con-
ridered together.  In 53 Tex.Jur.2d 210,  Statutes, Sec. 191,
it 18 8tated:

             *The language of a statute is presumed to
        have been 8eleCted and ured with care and
        deliberation.  Every word or phraee i8 presumed
        to have been u8ed intentionally, with a meaning
        and purpose . . . Where the statutory language
        is plain and unambiguous, and expresses a single
        definite and #ens1 -ble meaning, it is COnClU8iVeTy
         re8Umed that the legislature intended to conve
        ~~dme~in~.     In 8UCh a case, it is further pri-
              t at f the leaialature had not intended an
        expre85ion to convey-it8 plain meaning it would
        h8ve 8aid 80, or would have used a differ8nt
        term, and would not have left the matter entirely
        to implication."    (Empha8i8 added.1

          We have been unable to find any cases that define
the phrase "open to the public" or "cloecd to the public."
It is our opinion that the Legislature intended these words as
used in S.B. 94, supra, be given their usual and ordinary mean-
ing. Therefore, an open meeting ia one that the public is per-
mitted to attend. A closed meeting 18 one that the public 18
prohibited from attending.

          In answer to your fifth question, Section 4, S.B. 94,
supra, provide8 in part,

             'Any member of a governing body who . . .
        or who participates in a regular, special, or
        called meeting or 8ession which i8 closed to the
        public without causing or attempting to cau8e
        hi5 dis8ent to be entered in the record or minutes
        of the governing body 8hall be guilty of a mi8-
        demeanor . . ."
                                 -1058-
hon. P. T. Graham, page 6 (M-220)



The above quoted provision permits an affirmative defense which
could be asserted by the individual charged with a violation
of this act, and would be a matter of proof.

                        SUMMARY

          Senate Bill 94, Acts 60th Legislature, 1967,
     (Article 6252-17, Vernon's Civil Statutes) is
     valid and constitutional.




                                         ORU C. MARTIN


Prepared by John H. Banks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor.; Cocchairman
W. V. Geppert
W. 0. Shults
Alvin Zimlmrman
Houghton Brownlee

A. J. CARUBBI, JR.
Executive Assistant




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