Honorable Michael J. Guarino       Opinion No. JM-1185
Criminal District Attorney
Galveston County                   Re: Whether    a community
405 County Courthouse              justice    council created
Galveston, Texas 77550             pursuant to article 42.13,
                                   Texas    Code of Criminal
                                   Procedure,   is subject to
                                   the   Open Meetings   Act,
                                   V.T.C.S.     art.  6252-17
                                   (RQ-1879)

Dear Mr. Guarino:

     You state that House Bill 2335 of the 71st regular
session of the Legislature has created community   justice
councils for counties wishing to establish     a community
corrections facility. See Acts 1989, 71st Leg., ch. 785,
art. 1, at 3471.     You ask whether a community   justice
council is subject to the Texas Open Meetings Act, article
6252-17, V.T.C.S.

     Some background   about the structure of the criminal
justice system and the state-local relationships established
by House Bill 2335 is necessary to understand          what a
community justice council does and whether it is a govern-
mental body subject to the Open Meetings Act. House Bill
2335 made many changes in the structure of the criminal
justice system at the state and local level, some of which
give the counties     financial incentives    for supervising
felony probationers and taking other measures to reduce the
number of persons sent from the counties to be incarcerated
in state prisons. Acts 1989, 71st Leg., ch. 785, art. 3, at
3482. It created the Texas Department of Criminal Justice
as the state agency       with primary responsibility       for
confining felons, developing a system of state and local
punishment, supervision,   and rehabilitation   programs,   and
reintegrating   felons into    society after release       from
confinement.    V.T.C.S.  art.   4413(401).    The   community
justice assistance division (the division) is establii:;d
within the Department of Criminal Justice.      V.T.C.S.      .
4413(401), !j 1.11; see Code Crim. Proc. art. 43.13.        The
division is responsible   for establishing minimum   standards
for programs, facilities, and services provided at a local



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Honorable Michael J. Guarino - Page 2    (JM-1185)




level by a community supervision and corrections department,
and for certifying and funding the programs, facilities, and
services provided   by such departments.     V.T.C.S.   art.
4413(401), 5 1.12.

     Community supervision and corrections departments        are
to be established   by the district judge or judges trying
criminal cases in each judicial district in the state. Code
Crim. Proc. art. 42.131. These departments serve the courts
by conducting   presentence investigations     and risk assess-
ments,    supervising    and    rehabilitating     probationers,
enforcing the terms of probation,      and operating   community
corrections facilities.      Id. 52.     The judge or judges
appoint a department director, who employs other persons       to
do the work of the department.     The district judge or judges
may establish   a community     justice council to serve the
department.   The judges must do so before the department,
county,  or city may establish        a community    corrections
facility under article 42.131 of the Code of Criminal
Procedure, and before a county may establish           a county
correctional center under subchapter Ii, chapter         352 of
the Local Government Code.      Code Crim. Proc. art. 42.131,
5 3(b). The council's primary responsibility is to prepare
a criminal justice plan for submission      to the division    in
fulfillment of a reporting requirement and as a condition of
the department's   receipt of state aid.       Code Crim. Proc.
art. 42.13,   §S 3, 6. When the division has made funds
available to a department to provide facilities,      equipment,
and utilities   for community     corrections   facilities,   the
council has a role in recommending expenditures.        Finally,
the council %hall     provide continuing   policy guidance    and
direction for the development of criminal justice plans and
community corrections    facilities and programs."     Id. art.
42.131, r, 3.

     The council is composed of various   officers from the
county or counties wherein it is established.  Each officer
is chosen by the other persons who hold the same kind of
office he does in the county or counties served by the
council.   For example, a council includes "a sheriff of a
county to be served by the [community corrections] facility,
chosen by the sheriffs of the counties to be served by the
facility.*   Code Crim. Proc. art. 42.131, S 3(b)(l).    The
following officers of political subdivisions to be served by
the community corrections facility are also represented   on
the council:   a county commissioner  or a county judge: a
city council member of the most populous municfpality in a
county to be served by the facility; no more than two state
legislators; the presiding judge of a judicial district, the
judge of a statutory     county court exercising    criminal
jurisdiction; a county attorney with criminal jurisdiction:


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Honorable Michael J. Guarino - Page 3 (JM-1185)




a district attorney or criminal district attorney: and an
elected member of the board of trustees of an independent
school district in a county to be served by the facility.

     Both the composition and the function of the community
justice council are relevant to determining whether it is a
governmental body subject to the Open Meetings Act. The act
defines "governmental body" in part as

        any board, commission, department, committee,
        or agency within the executive or legislative
        department of the state, which is under the
        direction of one or more elected or appointed
        members . . . .

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

     Since the council is established and operates only at a
local level, it is not "within the executive or legislative
department  of the state."      Se ,   .I Attorney   General
Opinions JM-596 (1986); JM-340 (T98:;.    The definition  of
*qgovernmental body" applicable   to local entities    is as
follows:

        every Commissioners Court and city council in
        the state, and every deliberative body having
        rule-making  or    quasi-judicial  power   and
        classified  as a     department,  agency I  or
        political subdivision   of a county or city;
        and the board of trustees of every school
        district, and every county board of school
        trustees and county board of education:    and
        the governing board of every special district
        heretofore or hereafter created by law.

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

     The criminal justice council is not a governing body of
a city or county. As a body established     by the district
judges and composed of elected officers of various jurisdic-
tions, it cannot be considered    a aepartment,  agency,  or
political subdivision  of a county or city. See Attorney
General Opinions JM-740 (1987); JM-183 (1984); MW-28 (1979).
Nor is it one of the education entities named in the
statute.

     A more detailed analysis of the council's functions  is
necessary to determine whether or not it is "the governing
board of . . . [a] special district . . . created by law."
The decision in Sierra Club v. Austin TranSD. Studv Policy
Advisorv Comm., 746 S.W.2d 298 (Tex. App. - Austin     1988,



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Honorable Michael J. Guarino - Page 4     (JM-1185)




writ denied),   determined   that the Austin Transportation
Study Policy Advisory      Committee   (ATSPAC), a seventeen-
member committee consisting of state, county, regional,     and
municipal public officials, was a special district      subject
to the Open Meetings Act. 1 The ATSPAC had been designated a
"Metropolitan Planning Organization" pursuant to a provision
of the Federal-aid highway     law directed at enabling     the
Secretary of Transportation     to cooperate with state and
local officials    in developing     transportation  plans and
programs based on transportation needs. 23 U.S.C. § 134. A
metropolitan planning    organization is "the forum for co-
operative   transportation   decision    making."   23   C.F.R.
5 450.104(b)(3).

     The opinion in Sierra Club said that the ATSPAC was
charged with developing various transportation plans for the
use of federal agencies in determining funding for the local
projects.  746 S.W.2d at 300. "As a result, ATSPAC plays a
vital role in deciding which highway projects are planned,
built and funded in the Austin area." Id. at 300-01.    "Its
decisions affect highway planning in Travis, Hays, Caldwell,
Bastrop, and Williamson counties."   ;EeL at 300. The court
thus emphasized the decision-making function of the ATSPAC.

     The court also ,pointed out that committees like the
ATSPAC did not exist when the Open Meetings Act was adopted
in 1967, but that when its functions are compared to those
of the governmental bodies defined in the act, **it is clear
that the committee   is just the sort of body the Open
Meetings Act was designed to govern."      Id. at 301.    It
quoted the following dictionary     definition  of "special
district":

        A limited governmental    structure created to
        bypass  normal    borrowing   limitations,      to
        insulate certain activities from traditional
        political influence, to allocate functions to
        entities reflecting particular expertise,       to
        provide services in otherwise unincorporated
        areas, or t0   aCCOmDliSh   a orimarilv    lOCal
        benefit  or imorovement, U,         parks     and
        planning, mosquito control, sewage removal.



     1. Attorney General Opinion JM-183 (1984) held that a
library council  consisting of representatives    chosen by
governing bodies of political subdivisions   was a "hybrid"
body that did not fit any definition of "governmental  body"
in the Open Meetings Act.




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Honorable Michael J. Guarino - Page 5     (JM-1185)




Black's Law Dictionary   (5th ed. 1986) (emphasis added).

     Relying particularly  on the underlined language,   the
court found that the ATSPAC was a special district, in that
it was designed to accomplish the primarily local benefit or
improvement of bringing   federal highway   funds into the
Austin urban area for highway planning and construction.
746 S.W.2d at 301.

      In deciding   that the ATSPAC was a governmental        body
subject to the Open Meetings Act, the court first considered
the powers it exercised and applied a test similar to that
applied by the courts and by prior opinions of this office
to decide whether    an entity in the executive branch must
comply with the act. Among other prerequisites for esta-
blishing that a committee, board, or other entity in the
executive branch of government        is subject to the Open
Meetings Act, it must deliberate        or act on a matter      of
public business or policy over which it has supervision         or
control.    See, e.a      Gulf    Reaional    Educ.    Television
Affiliates v. Unive&tv       of Houston, 746 S.W.2d 803      (Tex.
APP- -   Houston  [14th  Dist.]  1988,   writ denied);   Attorney
General Opinions H-772     (1976); H-438   (1974). An advisory
body,  with no power  to supervise  or  control public business,
is not subject to the Open Meetings Act. Attorney         General
Opinion JM-331 (1985) (citizens advisory panel of Office of
Public Utility    Counsel); H-994    (1977) (advisory committee
studying selection process for university president).

      A department or agency of a city or county is a govern-
mental body within the act if it has rule-making or guasi-
judicial powers. V.T.C.S. art. 6252-17, 5 l(c). In deter-
mining whether an entity is a governmental body within this
provision,    this office also considers whether      it  has
authority to exercise governmental power, or whether it has
only an advisory role. Attorney General Opinion MW-506
(1982) determined    that the board of trustees of a city
firemen's retirement fund was an agency of the city subject
to the Open Meetings Act.     The board had power to receive,
manage, and disburse the retirement       fund: moreover,   it
exercised quasi-judicial powers    in hearing and determining
applications for benefits.     Attorney General Opinion R-467
 (1974) I in contrast,  dealt with a city library board that
was authorized to act in an advisory capacity only and held
that insofar as it truly acted only in an advisory capacity,
it was not required to comply with the Open Meetings Act.
                      .
      The responsibilities of the criminal justice council,
and its place in the criminal justice hierarchy, persuade us
that it is properly characterized    as an advisory body, and
not a governmental body within the Open Meetings Act. As we



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Honorable Michael J. Guarino - Page 6 (JM-1185)




have already said, its most important function is to prepare
the community justice plan that a community supervision    and
corrections department must submit to the community    justice
assistance division before the city, county, or the depart-
ment may establish   certain correctional   facilities.   Code
Crim. Proc. arts. 42.13, 5 3; 42.131, 5 3. As of September
1, 1990, a department must submit a plan to the division    as
a condition of receiving state aid. &     art. 42.131,   §S 6,
11.

     The division determines      the format for     community
justice plans.    Id. 5 2(a) (3). Section 6 of article   42.13
sets out the information that must be included in a plan.
It must give a detailed description of the services provided
by the department   and new facilities or programs    proposed
for the department, such as electronic monitoring     programs
and community corrections facilities.    It also must include
a description of services needed within the area,     informa-
tion about contracts    necessary   to achieve programs    and
facilities, and 'lastatement of commitment by the community
justice council and the department to achieve a targeted
level of alternative sanctions."     Id. 5 6(b)(5). The plan
may include other information,     such as information   about
personnel training or program evaluation, as well as "other
details or options that the community justice council wishes
to include."

     The plan is thus primarily descriptive of corrections
facilities that are established or may be established by a
community supervision and corrections department, a county,
a municipality, or a combination    of these. See Code Crim.
Proc. a*.    42.131,  9 3.    It appears that the council's
responsibility is to gather and report information about the
facilities operated by these entities but not to decide how
the facilities are to be operated or which facilities are to
be proposed.    Decisions   on these matters  are made by the
division, the district     judges, the department,    and the
political subdivisions    operating  correctional  facilities.
Moreover, a community justice council may not submit a plan
to the division as a condition of payment of state aid to a
department unless the plan is first approved by the district
judges who manage the department served by the council. Id.
art. 42.13, § 6.

     The council also has the following responsibility    over
expenditures:
          .
            The district judge or judges may authorize
        expenditures of funds provided by the divi-
        sion to the department for the purposes     of




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Honorable Michael J. Guarino - Page 7    (JM-1185)




        providing facilities, equipment, and utili-
        ties for community corrections facilities if:

            (1) the communitv iustice council    recom-
        mends the exnenditures; and

            (2) the division provides  funds for the
        purpose of assisting in the establishment or
        improvement of the facilities.

Code Crim. Proc. art. 42.131, 5 10 (emphasis added).

     In this case, the council makes recommendations,    but
the judge or judges make the decisions about expenditures.
In Gulf Reaional Educ. Television Affiliates v. University
of Houston, sunra, at 809, the court found that an auxiliary
enterprise of a state university was subject to the Open
Meetings Act because it spent public funds and operated with
little control or supervision by the university board of
regents.    In contrast,   the community   justice   council
recommends expenditures, but does not expend public funds on
its own authority.      In Attorney General Opinion    H-467
(1974) I this office decided that a city library board was
not subject to the Open Meetings Act because         it was
empowered to act in an advisory capacity only. The library
board was authorized to recommend the adoption of rules to
administer the library, to make recommendations for library
facilities, and to submit its proposed expenditures for the
approval of the city council.

      In our opinion, a criminal justice council acts in an
advisory capacity only, like the library board at issue in
Attorney General Opinion H-467. It does not have the power
to make decisions that the courts found the ATSPAC to have
in Sierra Club and the auxiliary enterprise in Gulf Reaional
Educ. Television Affiliates.     It is not "the sort of body
the OpenMeetings    Act was designed to govern."   Sierra Club,
sunra, at 301. Although it assists the department's efforts
to secure     state    funding   for   community    corrections
facilities, the council does not V~accomnlish a primarily
local benefit or improvement."        Id.    (emphasis added).
Thus, it is not a "special district" within the Sierra Club
case.    Accordingly,   a criminal justice council      is not
subject to the Open Meetings Act.




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Honorable Michael J. Guarino - Page 8     (JM-1185)




                       SUMMARY

             A criminal justice council established
        by the district judge or judges under section
        3 of article 42.131 of the Code of Criminal
        Procedure is not subject to the Open Meetings
        Act.




                                     JIM     MATTOX
                                     Attorney General of Texas


MARYKHLLKR
First Assistant Attorney General

IOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLSY
Special Assistant Attorney General

RENHA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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