               THE      ATTORXEP        GENERML
                            OF TEXAS




Honorable Ernestine V. Glossbrenner        Opinion No.    JM-1072
Chairman
Public Education Committee                 Re:     Whether certain
Texas House of Representatives             subcommittees    of the
P. O..Box 2910                             board of trustees      of
Austin, Texas 78768-2910                   school districts      are
                                           subject to the Texas
                                           Open    Meetings    Act,
                                           article         6252-17,
                                           V.T.C.S.    (RQ-1702)

Dear   Representative   Glossbrenner:

     As chair of the House Public Education Committee,   YOU
,inquire about the extent to which the Texas Open Meetings
Act, article 6252-17, V.T.C.S., applies to committees of the
board of trustees   of a school district.  In specific,  YOU
ask about a committee   of members of the board of trustees
that comprises   less than a quorum of the board.        YOU
indicate that the committee at issue "performs     functions
regarding matters    affecting the school district."      We
presume that your question    is limited to those functions
that such a committee may lawfully perform. See Webster v.
Texas & Pac. Motor TransD. Co., 166 S.W.2d 75, 76 (Tex.
1942).

     The Open Meetings Act requires that each "governmental
body" in this state post notice for and deliberate at meet-
ings that are open to the public unless a closed session    is
expressly permitted.   V.T.C.S. art. 6252-17, § Z(a); see Cox
Enterprises, Inc. v. Board of Trustees of Austin       Indeo.
School Dist., 706 S.W.2d 956, 960     (Tex. 1986); see also
Attorney General Ooinion H-3 (1973) (act ooens decision-mak-
ing process); but see Citv of San Antonio v. Aquilar,      670
S.W.2d 681, 686 (Tex. APP. '- San Antonio 1984, writ ref'd
n.r.e.) (attorney-client privilege may form separate basis
for closed meeting).    The act encompasses each "meeting,"
which is defined,   in part, as !'any deliberation between   a
quorum of members  of a governmental   body." V.T.C.S.   art.
6252-17, 5 l(a) (emphasis added). A "quorum" is a majority
of the governing   body.    &    5 l(d).   Many governmental
bodies believe that the act does not apply when a quorum    is




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Honorable Ernestine V. Glossbrenner - Page 2 (JM-1072)



not present.   Whether  such subcommittees   are themselves
subject to the act depends, in part, on the act's definition
of "governmental body."

     Section l(c) of the Open Meetings Act provides:

           'Governmental body'    means any     board,
        commission, department, committee, or agency
        within the executive  or legislative   depart-
        ment of the state, which is under          the
        direction of one or more elected or appointed
        members: and every Commissioners   Court and
        city council in the state, and every deliber-
        ative body. having rule-making    or    quasi-
        judicial power and classified   as a depart-
        ment, agency, or political subdivision of a
        county or city: and the board of trustees   of
        everv school district. and everv countv board
        of school trustees and countv board of educa-
        t&z$J; and the governing    board of     every
        special district heretofore    or    hereafter
        created by law.

V.T.C.S. art. 6252-17, 5 l(c). For a local-level entity to
constitute a "governmental  body" under section  l(c), as a
general rule, the entity must fall within       one of the
section's three specific descriptions.     Attorney  General
Opinions JM-794  (1987); JM-340 (1985).    Subcommittees  of
school districts are not listed expressly.

     The first category includes "every deliberative     body
having rule-making or quasi-judicial power and classified as
a department, agency, or political subdivision of a county
or city." V.T.C.S. art. 6252-17, 5 l(c). Subcommittees     or
agencies of a .city or county therefore fall. within      the
definition of "governmental body" when they have rule-making
or quasi-judicial    power.    See,   cl   Attorney   General
Opinions JM-1007   (1989), H-1281 (t978j (salary grievance
committees); MW-506 (1982) (board of trustees of firemen's
retirement fund has quasi-judicial   powers and is agency of
city): MW-177 (1980) (higher education authority created   by
city or cities); H-554      (1975) (hospital authority   that
performs governmental function and that is created by city).
The act does not cover a purely      "advisory" agency of a
county or city that is not composed of members        of the
governmental  body.    See Attorney General    Opinion H-467
(1974) (city's library'board).

     The definition of "governmental body" also lists two
other categories of local-level entities: school districts
and special districts.     The definition  does not   list




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Honorable Ernestine V. Glossbrenner - Page 3   (JM-1072)



agencies or committees subordinate  to school districts   and
special districts.  Attorney General Opinion JM-340   (1985).
This omission implies that subcommittees of school districts
and other special districts   are not covered by the act.
This does not, however, prevent a subcommittee of a special
district covered by the act from falling within the scope of
the Open Meetings Act. This is true particularly in regard
to subcommittees comprising members of the parent govern-
mental body.

     When a subcommittee      includes members  of a parent
governmental body, the subcommittee itself may be covered by
the Open Meetings Act.       In 1973, the attorney general
considered whether a state-level entity, the Texas Board of
Mental Health and Mental Retardation,     could institute, a
practice of dividing board members into several    specialized
committees.    Attorney   General Opinion H-3    (1973).    The
committees were to meet with the board's staff to study
specific matters and recommend actions at open meetings      of
the whole board. Reasoning      that the board might     simply
"rubber-stamp" the committees' recommendations and that this
would deprive the public of access to the board's        actual
decision-making process, the attorney general concluded that
committees composed of members of the board, even if less
than a quorum,, must comply with the Open Meetings Act.     Id.
at 10; see also Attorney General Opinion H-823 (1976).        A
similar approach applies to analysis of special d'istricts'
subcommittees.   For example, standing committees of special
districts that are composed of members of the governing
board of the special districts must comply with the Open
Meetings Act when the standing subcommittees discuss public
business or policy. Attorney General Opinion H-238       (1974)
(standing committee     of board of managers    of    hospital
district).

     You indicate that the school district subcommittee    at
issue "performs   functions regarding matters affecting   the
school district."   If the committee at issue is composed  of
one or more members of the school board, the committee
itself is subject to the Open Meetings Act.1 Moreover,     as



     1.   The criminal sanctions of the act may also be of
concern when the members of an entity covered by the act
divide into or participate in subcommittees.      See, e.q
Attorney General Opinions MW-390     (1981); MW-28. (1979;:
Proving a criminal offense depends on proof of the requisite
culpable state of mind. Violation of the criminal provi-
                                        (Footnote Continued)




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Honorable.Ernestine   V. Glossbrenner - Page 4   (JM-1072)



indicated, it is not clear that the board lawfully may
delegate to a subcommittee the power to act on behalf of the
board. See Webster v. Texas & Pac. Motor TranSD.        Co.,
m.

                         SUMMARY

             If a committee comprising   one or more
        members of the board of trustees of a school
        district meets to discuss public business  or
        policy, the committee itself is subject to
        the Texas Open Meetings Act, article 6252-17,
        V.T.C.S.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General




(Footnote Continued)
sions of the act depends on what constitutes "meeting    in
numbers less than a quorum for the purpose of secret delib-
erations" to "knowingly conspire to circumvent"    the Open
Meetings Act. V.T.C.S. art. 6252-17, 5 4(b).




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