                               QMfice      of the Igttornep            QBeneral
                                              &ate of QCexae
DAN MORALES
 ATTORNEY
      CENERAL                                    April 13,1998

   The Honorable Steven D. Wolens                     Opinion No. DM-473
   Chair, Committee on State Affairs
   Texas House of Representatives                     Re:      Validity of Dallas City Council rule that
   P.O. Box 2910                                      requires request by five council members or majority
   Austin, Texas 78768-2910                           of a city council committee to place items on agenda
                                                      for council meeting (RQ-952)

   Dear Representative Wolens:

          You ask whether the following city council rule of procedure for the City of Dallas violates
   the Texas Gpen Meetings Act, Government Code chapter 55 1:

                   Presentations by Members of Council The mayor shall include on an
              agenda any item requested by five city council members or by a majority of
              a city council committee to be brought before the city council. The item must
              be placed on the tirst voting agenda scheduled at least 30 calendar days after
              receipt of request, unless the request is withdrawn by any of the five city
              council members or by a majority of the city council committee, whichever
              applies.’

  Five city council members constitute one-third of the till city council membership.2

          You further state:

                   As applied by the Dallas City Council, this rule has been utilized to
              prohibit placement of an item on the council’s agenda unless request for
              placement has been made by five city council members, or by a majority of
              a city council committee. This rule has been utilized to severely circumscribe
              and restrict what matters of public interest come before the council for
              consideration.


           ‘City of Dallas, Texas, City Council Rules of Procedure, Rule 6.2, as adopted 8/l l/93 and amended by
  Resolution Nos. 94-0297,94-2571,94-3328,94-3675,95-1545,95-2450,95-2451,95-2760,          954204, and 96-0713.

           ‘Letter from Sam Lindsay, City Attorney, City of Dallas, to The Honorable Dan Moraks, Office of Texas
  Attorney Ciencral (Oct. 1, 1997). See Texas State Directory 475 (38th cd. 1995); Ciq of Dallas,Mayorand City
  Council, (Sept. 6, 1997)<hnp:Nwebster.ci.dallas.tx.usmhnVmay                            (listing mayor and city
  council members).
The Honorable Steven D. Wolens - Page 2                  (DM-473)




        The rule you cite is not the only provision for raising a matter of public interest at a city
council meeting. The Dallas city chatter provides that

                Special meetings shall be called by the city secretary upon the written
            request of the mayor, the city manager or three members of the council. Any
            such notice shall state the subject to be considered at the special meeting and
            may provide for the taking up of any other matters presented at such
            meeting.3

The Open Meetings Act (the “‘act”) includes the following provision:

                (a) If, at a meeting of a governmental body, a member of the public or of
            the governmental body inquires about a subject for which notice has not been
            given as tequired by this subchapter, the notice provisions of this subchapter
            do not apply to:

                    (1) a statement of specific factual information given in response to
                the inquiry; or

                     (2) a recitation of existing policy in response to the inquiry.

               (b) Any deliberation of or decision about the subject of the inquiry shall
           be limited to a proposal to place the subject on the agenda for a subsequent
           meeting.’

While this provision does not mandate that the item be placed on the agenda of a &me meeting,
it does allow an individual member of the governmental body to bring up a subject of public interest
and to request consideration of it in the future.

         We turn to your question as to the validity under the act of the rule requiring the agreement
of five council members to place an item on the agenda of a meeting. The City of Dallas, like other
home-rule cities: has broad discretionary powers to legislate on its own behalf, provided that no
charter provision or ordinance “shah contain any provision inconsistent with the Constitution of the
State, or of the general laws enacted by the Legislature of this State.‘* An ordinance of a home-rule
city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the



       ‘Dallas, Tex., CIhartq ch. III, $7 (1993).

       ‘Clov’t Code 0 551.042.

       ‘LkdkwMmhant ‘s& cOacess&naire
                                   ‘sAss‘IIv. Cityof Dallas,852 S.W.Zd 489.490-91 (Tex. 1993).




                                                    p.   2673
The Honorable Steven D. Wolens - Page 3                     (DM-473)




extent it wnflicts with the state statutes Thus, the Dallas City Council may adopt rules of procedure
for its meetings as long as they are not inwnsistent with the constitution, legislation, or city charter
provisions.*

         The Texas Open Meetings Act does not cover the details of agenda preparation. “Although
the drawing up of an agenda is a matter related to a noticed public meeting, it essentially is an
inkgal part of the actual me&anics and procedures for conducting that meeting and, therefore, aptly
relegated to local practice and procedure as prescribed by city charters and ordinances.‘* Any
procedures for agenda preparation adopted by the city council must nonetheless be consistent with
the act’s requirements that each meeting of a govermnental body be open to the public, subject to
certain exceptions, and that written noticeto of the “‘date, hour, place, and subject of each meeting”
be posted prior to the meeting.” Thus, agenda preparation procedures may not involve deliberations
among a quorum of members of a governmental body except in a public meeting for which notice
has been posted in accordance with the act. As noted in Attorney General Opinion DM-95
deliberations among a quorum of members of a govermnental body may be subject to the act even
if a quorum never gathers in one place at one time, but wmmunicates by telephone or by circulating
a memorandum.‘* Acconlingly, rules on prep sring an agenda may not involve delibemtions among
a quorum of members of a governmental body, unless they are conducted in wmpliance with the
act.13 Moreover, if a member or group of members of a governmental body knowingly conspires to
circumvent the act by meeting in numbers less than a quorum for the purpose of secret deliberations
in violation of the act, the person or persons commit a criminal offense. We caution members of


          ‘Dallas Merchant ‘s & ConcessioMire ‘s Ass ‘II,852 S.W.2d at 490-91; see C&vof Sweehvalerv. Germ, 380
S.W.2d 550,552 (Tex. 1964) (iflegislahue choosu to preempt subject matter usually encompassed by broad powers
of h-rule      city, it must do so with unmistakable clarity).

         ‘Seegenerally 56 Ahi. JUR.20 Municipal Gwporatiom 5 156 (1971).

        ‘Hough v. .%mbridge, 278 S&d 288,291 (Fla Disk CX App. 1973); see dw La. Att’y Gut. Ops. Nos. 94-152
(1994) (WL 379277 (1994)), 90-541(1990) (WL 544987 1990)) (setting agenda is matter of internal procedure to be
-cd       by go” elmnental body).

         The written notice pcstod prior to the meeting is often desaibed as the “age&”   because of the practice of
postingthe agendaas the noticeor as an appendixto the notice. See Ciry of SanAntoniov. Fourth CourtofAppeals,
820 S.W.Zd 762,761 (Tex. 1991); Attorney General Opinion DM-228 (1993) at 2 n.2.

         “G&t cc-de pp 5s1.002, all.

          %x Attorney General Opiion DM-95 (1992). Attorney General Opinion Mw-32 upheld as not violating
the act an agenda preparationprocedure under which the members of Aii CkmlrolBoard n&tied the wxutive director
to place a particularitem on UK.ageada of a meeting. Attorney General Opinion MW-32 (1979). Prior to its abolition
in 1991, see Act of July 30, 1991,72d Leg., 1st C.S., ch. 3, 0 1, 1991 Tex. Gen. Laws 4,46, the Air control Board
consisted of nine members. Act ofMay 24,1967,6Otb kg., R.S., ch. 727.5 3.1967 Tex. Gen. Laws 1941.1942.

         “The Dallas City Council is a gov cmmental body subject to tbe act. See Gov’t Code 0 551.001(3)(C).
Whetbamyofthe     commiti    that may place items on the agenda are governmen talbodicsmustbccktemincdma
casaby-case basis by nrsmining tbei authority in light of the deftitions in tbe act.



                                                       p.   2674
The Honorable Steven D. Wolens - Page 4                (DM-473)




governmental bodies to be aware of this provision when proposing items for inclusion on the agenda
of a meeting.

        You do not ask us to evahtate any other statute in connection with this rule of procedure nor
have we found any provision that governs the preparation of the agenda for council meetings of a
home-rule city. Attorney General Opinions JhI-63 and DM-228, which determine that each member
of a county wmmiss’toners court may place items on the agenda, relied on statutes applicable to
wwties, not cities. Attorney General Opinions DM-228 (1993), JM-63 (1983).

        A case styled Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no
writ), which Attorney General Gpinion DM-228 relied upon, can also be distinguished The wurt
held that a county judge, as presiding officer of the commissioners court, ‘has no discretion in
receiving motions offered in the regular discharge of the court’s business, and submitting said
motions to a vote of the members of the court for their decision.“” Thus, the county judge was
subject to a writ of mandamus where he refused to rewgnixe a motion duly proposed and seconded
at a commissioners court meeting. Hansbro indicates that a single member of the commissioners
court may raise a subject before the court by proposing a motion. That right can only be
implemented under present law if the individual member may place subjects on the agenda posted
as notice of a commissioners court meeting. Thus, the result in Hunsbro is consistent with our
wnclusions in Attorney General Opinions JM-63 and DM-228, that individual members of the
commissioners court may place items on the agenda. However, the rule of procedure stated in
Hansbro does not wntrol the city council of a home-rule city. If this case is based on statutes
applicable only to the commissioners court, it does not apply to the governing body of a city. If it
is based on a common-law rule of meeting procedure, a home-rule city may change the rule by
exercise of its legislative power. IJ Accordingly, Hansbro does not prevent the city council of a
home-rule city t?om adopting reasonable mles of procedure for its meetings.

        You state that the Dallas rule “has been utilii    to severely circumscribe and restrict what
mat&s of public interest wme before the wuncil for consideration,” but you do not identify any city
charter provision or wnstitutional provision that may limit the city council’s authority to adopt this
rule. In Attorney General Opinion H-188, this office determined that the Open Meetings Act does
not authorixe the public to choose the items to be discussed or to discuss subjects on the agenda The
opinion stated as follows:

               So long as the requirements of. . . [the Open Meetings Act] are met and
           the right of citizens to apply to their government for redress of grievance by




       “Hansbm v. Neiderhofw, 83 S.W.Zd 685 (Tex. Civ. App.-Beaumont 1935, no writ).

       “See Attomey t3ene-d Opinion JM-1087 (1989) (h ome-rule city may ovcrcomc ccmmon-law do&k    of
inwmpatiiiIity for city offims by chatter provision).



                                                  p.     2675
 The Honorable Steven D. Wolens - Page 5                     @M-473)




              “petition, addms or remonstranw’*16is not abridged. . ., it is our opinion that
              a Commissioners Court need not provide a public forum for every citizen
              wishing to express an opinion on a matter.

Attorney General Opinion H-188 (1973) (footnote added).” We find no basis for concluding that
the city council rule in question is invalid for being inwnsistent with the wnstitution, general laws,
or city charter provisions.

        We cannot determine in the opinion process whether the rule you inquire about is a
reasonable exercise of the city council’s power to establish its rules of procedure. In addressing the
reasonableness of this rule, however, we believe it is appropriate to consider it together with other
procedures for placing items on the agenda of a meeting. The reasonableness of the city’s rules of
procedure is in the first instance a matter for the discretion of the city council, subject to judicial
review for abuse of discretion.




         ‘qex. Comt. art. I.5 27.

         “The legislature has stated in section 22.043 of the Local Gov-ent          Code, that “~]etitions and
remonstrancea may be pnsented to the governing body of the municipality and must be. in witing.” While section
22.043 expressly &ies to type A gcneml-law cities, other Local Gov anmeat Code provisions make it applicable to
tpe B and type C general-law cities. l%i.sprovision illwhwes a method other than inclu.sion on the agenda of a city
council meeting whereby matters of public interest may be presented to members of the city council.




                                                        p.    2676
The Honorable Steven D. Wolens - Page 6         (DM-473)




                                     SUMMARY

                A rule of Dallas City Council on preparing the agenda of a city council
            meeting requires five members (onethird) of the city council or a majority
            of a city council wmmittee to request the mayor to include an item on the
            agenda of a meeting. The City of Dallas, as a home-rule city, is author&d
            to adopt reasonable rulesof procedure for its meetings as long as they are
           not inconsistent with the wnstitution, statutes, or city charter provisions.
            We see no basis for tinding the rule invalid under the Open Meetings Act or
            inwnsistent with the wnstitution, general laws, or city charter provisions.
            Whether a particular rule is reasonable cannot be determined in the opinion
           process. It is a matter for the discretion of the city council, subject to
           judicial review for abuse of discretion.




                                            DAN MORALES
                                            Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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