                            @ffice of the Efttornep @eneral
                                         &ate     of UJexas
DAN MORALES
 ATTORNEY
      GENERAL                               May 17,1996


    The Honorable John B. Holmes, Jr.                Opinion No. DM-395
    Harris County Diict Attorney
    201 Fatmin, Suite 200                            Re: Whether the meetings of judges to
    Houston, Texas 77002-1901                        pedolm statutory h2tions.with respect to
                                                     themanagementofac.Qmmunitysupervi-
                                                     sion and correctiotis department are subject
                                                     to the Open Meetings Act, chapter 551,
                                                     Oovemment Code (RQ-840)

    Dear Mr. Holmes:

            You ask:
               Is the Harris County Committee of District and Statutory Judges
               [t]fying [c]riminal [c]ase.s owseeing the Community Supervision
               and Corrections Department subject to the Open Meetings Act when
               it n&s to participate in the management of the Harris County
               Community Supervision and Corrections Department?
             The Open Meetings Act (the “act”), chapter 55 1, Government Code, quires that,
     except as provided therein, “[e]very regular, special, or called meeting of a governmental
     body shall be open to the public.” Gov’t Code 0 551.002. The act additionally provides
     for notice of meetings subject to the act and exceptions to the requirement that meetings
     be open to the public. Id. $5 551.041, .071- .104.

             Provisions formerly in article 42.131, Code of Criminal FVocedure,and recodi6ed
     in 1995 without substantive change as chap&r 76, Government Code, provide for the
     establishmentof a Community Supervision and Corrections Department (a “CSCD”). Act
     of April 25, 1995, 74th Leg., RS., ch. 76, F,7.11, 1995 Tex. Sess. Law Serv. 458,
     580-84. Section 76.002 provides that the district judge1 or judges trying criminal cases in


             ‘You ssk ahouta oommittccofjudgcs. We do not addmsshue situationswhcrc OIXdistrictjudge
     pe-rfonnscbaptcr76 dubs.
The Honorable John B. Holmes. Jr. - Page 2        (DM-395)




each judicial district shall establish a CSCD and “employ”s district personnel as necessary
to conduct presentence investigations, supervise and rehabilitate defendants placed on
community supervision (formerly known as “probation”), enforce the conditions of
cmmmmity supervision, and stsE community corrections facilities. The sbction also
authorizes both district judges trying crimintd cases and the judges of statutory county
courts trying crimind cases that are served by a CSCD “to participate in the management”
of the CSCD. Section 76.004 directs the district judges to appoint a director of the
CSCD, who in turn “employs”s other CSCD officers and stafX In addition to county
support-Gov’t Code $76.008-&e district judges may expend district timds to provide
CSCD facilities under the conditions set out in section 76.00!9. The district judges may
additionally authorize the expenditure of funds provided the CSCD by the Community
Justice Assistance Division of the Texas Board of Criminal Justice for community
corrections facilities subject to the limitationsin section 76.010.

        The question here is whether the meetings of the judges you ask about in
connection with the CSCD are “meetings”of “governmental bodies” within the terms of
and subject to the act. “Meeting” is de&ted in section 551.001(4) of the act as
deliberation of a governmental body in which public business or policy over which the
govemmentsl body has supervision or control is discussed or in which formal action is
taken. We think it clear that when the judges you ask about meet to establish a CSCD,
appoint a CSCD director, or consider expenditures of timds for CSCD purposes they sre
either taking formal action or debiting    over public business within the deSnition of
“meeting.” But do the judges meeting in such context constitute a “govemmentrd body’
under the act?
       “Govemmental body” under section 551.001(3) of the act means:
                   (A) a board, commission, department, committee, or
               agency within the executive or legislative branch of state
               government that is directed by one or more elected or appointed
               members;
                   (B) a county commissionerscourt in the state;
                   (C) a municipalgoverning body in the state;




       2Attomey   amaal opinion DM-208 concluded that the provisions now in section 76.002
exopomdthcdistriujudgcsto      “compmsatc”but not to hire such pmminel, since section 76.004
euthorizcathe deperhmt dhwtor, him& appointedhy the districtjudges, to “empl~ depbenl
persoonel. AttorneyGeneralOpinion DM-208 (1993) at 5.

       3See supm note 2.




                                           p. 2164
The Honorable John B. Holmes, Jr. - Page 3         (DM-395)




                   (D) a deliberative body that has rulemaldng or qussi-
              judicial power and that is clsssified as a department, agency, or
              political subdivisionof a county or municipality;
                   Q    a school district board of trustees;
                   (F) a county board of school trustees;
                   (G) a county board of education;
                   (I-I).the governing body of a special district created by law;
                  (I) [certaht nonprofit water supply and wastewater
          companies].
         In 1987, Attorney Genersl Opinion JM-740 concluded that a meeting of district
judges under provisions now in Local Government Code section 84.005 to appoint a
county auditor was not subject to the act because the appointingjudges did not constitute
a “governmental body” under any of the deSnitions in the act. Attorney General Gpinion
JM-740 (1987) at 4. The conclusion of Attorney Genersl Opinion JM-740 suggests that
the meetings of judges you ash about in connection with the CSCD may not be subject to
the act.

        You argue that the committee ofjudges here, under the reading the Austin court of
appeals gave the section 55 1.001(3)(H) definition of governmental body as the governing
body of a “special district” in Sierra Club v. At&i> TransporMon St+ Policy Advisoty
Committee, 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied), is a governmental
body under that provision and that their meetings are therefore subject to the ms
of the act. The Sierra Club court ruled that the Austin Transportation Study Policy
Advisory Committee (“ATSPAC”), a seventeen-member committee consistmg of state,
county, regional, and municipal public officials, created pursuant to federal law to enable
federal, state, and local cooperation in highway planning, was a governhrg body of a
“special district” under the definition of “governmental body” now set out in section
55l.O01(3)0 of the act. The court quoted the following broad definition of “special
district” in B&k ‘e Law Dictkmaty:
               A limited governmental stmctum created to bypass normal
          borrowing limitationa to insulate certain activities t+om traditional
          political influence. to allocate timctions to entities reflecting
          particular expertise, to provide services in othetwise unincorporated
          areas, or to accomplish a primarily local benefit or improvement, e.g.,
          parks and planning, mosquito control, sewage removal.
BLACK’SLAW DETIONARY1253(5th ed. 1979).




                                           p. 2165
The Honorable John B. Holmes, Jr. - Page 4       (DM-395)




        Emphasbdng the importance of the decision-making function of ATSPAC in
determining highway development in the central Texas area and tinding that ATSPAC was
designed to %ccomplish a primarily local benefit or improvement,” in the words of the
Black’s detinition of “special district,” the court stated that ATSPAC was “just the sort of
body the Open Meetings Act was designed to govem.” Sierra Club, 746 S.W.Zd at 301.
It concluded that ATSPAC should be consideted as the governing body of a “special
district” within the defmition of “governmental bodies” subject to the act. See gcnemf~
Attorney Cenerrd Opinion Jh4-1185 (1990) at 7. We agree that the reading the Sierra
Club court gave the “special district” component of the act’s definition of “govemmemal
body” is broad enough to include the committee of judges you ask about here. The CSCD
it manages is territorially limited to the judicial district, thus of a local nature, per the
Black’s definition of “special district” retied on in Sjerm Club, and its control over the
CSCD directorship and CSCD thumces, as well as its general managerial tunction with
respect to the CSCD. makes it, we think, a “‘governingbody” of such special district
within the act’s definition.

        We note at this juncture that it could be argued that the judges’ meetings here are
“within the judicial branch of state government” and therefore not covered by the act.
Again, section 551.001(3)(A) provides that a committee “within the executive or
legislative branch of state government” is a “governmental body” subject to the act,
arguably implyingthat a committee within the&a?cial branch of state government was not
intended to be covered. This result would be consistent with Attorney General Opiion
JM-740, which dealt with district judges’ meetings to appoint a county auditor, although
the rationale that. such judges’ meetings were ones within the judicial branch of state
govermnent and therefore excluded from the act’s coverage was not expressly given in
that opinion. However, a 1984 San Antonio court of appeals case in the analogous area of
open records law, Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-San Antonio 1983, no
writ), suggests to us that a court would probably not tind such argument persuasive.

         Benavkh dealt with the question whether the specific exclusion of the “judiciary”
from govemmentsl bodies subject to the Open Records Act, now in section
552.003(1)(b), Government Code, excepted resumes of applicants for the position of
juvenile probation officer in the hands of a juvenile board composed of members of the
judiciary and the county judge. The Open Records Act, which provides, with certain
exceptions, for public access to records of “govemmentsj bodies” is codified as chapter
 552, Government Code. Finding that the board’s selection of a probation officer “is
 simply part of the Board’s administration of the juvenile probation system, not a judicial
 act by a judicisl body,” and stating that the ujudiciary exception”under the act “must not
 be extended to every governmental entity having any connection with the judiciary,” the
Benavides court held the board a governmental body subject to the act, thus requiring
 public release of the requested record. Id. at 152; see also, e.g., Open Records Decisions
 Nos. 417.(1984) at 1, 527 (1989) at 3 (relying on Bemzvkzh).




                                           p. 2166
The Honorable John B. Holmes, Jr. - Page 5         W-395)




        We believe, in light of Bermides’ treatment of the group of judges making up the
juvenile board under the analogous provisions of the Open Records Act, that a court
would probably characterize the statutory tbnctions of the committee of judges here with
respect to the CSCD-the appointment of the CSCD director and approval of CSCD
expenditures-as administrativerather thsn judicial. Therefore, even if the committee you
asked about could be considered one ‘within , . . state government”-and we do not reach
this issue here-we do not believe it should be considered one within the “judicial branch
of state government.” Thus, we do not think that a court would be persuaded by the
argument that the committee here is one within the judicial branch of state government
and is implicitly excluded from the coverage of the act.

         In conclusion, we believe that the broad construction given the “special district”
component of the act’s definitionof a “governmentalbody” subject to the act in the Sierra
CIub opinion, discussed above, indicates that a court would fmd the committee of judges
you ask about witbin that detinition and thus subject to the act when it meets to perform
its statutory tImctions in connection with the CSCD.

                                  SUMMARY

              The meetings of judges to perform statutory functions with
          respect to the management of a Community Supervision and
          Corrections Department are subject to the Open Meetings Act,
          chapter 551, Government Code.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLBY
chair, Opinion Committee

Prepared by WilliamWalker
Assistant Attorney General




                                         p. 2167
