   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN       CORNYN




                                                 March 52001



The Honorable Michael P. Fleming                         Opinion No. JC-0352
Harris County Attorney
1019 Congress, 15th Floor                                Re: Whether Governrnent Code section 5 5 1.125
Houston, Texas 77002- 1700                               permits absent members of a governmental body
                                                         to participate in a meeting by telephone con-
                                                         ference call when a quorum of the governmental
                                                         body has convened in one location, and related
                                                         questions (RQ-0297-JC)


Dear Mr. Fleming:

        You ask a number of questions about the authority of a county commissioners court to hold
an emergency meeting by telephone conference call under section 55 1.125 of the Government Code. *
See TEX. GOV’T CODE ANN. 4 55 1.125 (Vernon Supp. 2001). We conclude that a governmental
body need not state in the notice of a section 55 1.125 meeting that the meeting will be held by
telephone conference call. Section 55 1.125, in permitting a meeting by telephone conference call
only in case of an emergency or public necessity and only if it is “difficult or impossible” to convene
a quorum in one location, contemplates meetings by telephone conference call in extraordinary
circumstances and not merely when attending a meeting at short notice would inconvenience
members of the governmental body. See id. Ej551.125(b). When a quorum of the governmental
body has convened for an emergency meeting at the meeting location, section 55 1.125 does not
permit absent members to participate in the meeting by telephone conference call. Finally, given
that a court might void actions taken at a meeting for which a member does not receive notice, a
governmental body should make every effort to provide every member with actual notice of
meetings.

        Before turning to your specific questions, we briefly review the statute at issue. Chapter 55 1
of the Government Code, the Open Meetings Act (the “Act”), generally requires a governmental
body, such as a county commissioners court, to hold meetings by convening a quorum of its
members in one location: “The Qpen Meetings Act contemplates that members of a governmental
body participating in a meeting must be physically present unless expressly authorized to participate
by other means. . . . [S]uch legislative authorizations must be strictly construed and may not be
expanded to allow exceptions not expressly contemplated.”          Tex. Att’y Gen. Op. No. DM-478
(1998) at 4. This office has concluded that a governmental body may not permit a member to



           ‘See Letter from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn,   Texas
Attorney    General (Oct. 13,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable   Michael P. Fleming    - Page 2      (JC-0352)




participate in a meeting from a remote location by telephone or videoconference        call unless
specifically authorized by statute to do so. See Tex. Att’y Gen. Op. Nos. JC-0194 (2000), DM-478
(1998), DM-207 (1993), JM-584 (1986).

         Subchapter F of chapter 55 1 contains a number of provisions authorizing governmental
bodies to hold meetings using telephone and video conferencing technology. Section 55 1.125 of the
Government Code, the statute you ask us to interpret, is located in subchapter F. Section 55 1.125
provides that a governmental body may hold a meeting by telephone conference call “only if: (1)
an emergency or public necessity exists within the meaning of Section 55 1.045 of this chapter; and
(2) the convening at one location of a quorum of the governmental body is difficult or impossible;
or (3) the meeting is held by an advisory board.” TEX. GOV’T CODE ANN. 0 551.125(b) (Vernon
Supp. 2001). Section 55 1.045 of the Act provides that an emergency or an urgent public necessity
exists “only if immediate action is required of a governmental body because of: (1) an imminent
threat to public health and safety; or (2) a reasonably unforeseeable situation.” Id. 5 55 1.045(b)
(Vernon 1994). Thus, section 5 5 1.125 authorizes a meeting by teleconference only in very limited
situations.

         Under section 55 1.125, a telephone conference call meeting is subject to the notice
requirements applicable to other meetings. See id. 6 55 1.125(c) (Vernon Supp. 2001). In addition,
the notice of the telephone conference call meeting must specify as the location of the meeting the
location where meetings of the governmental body are usually held. See id. § 55 1.125(d). Section
55 1.125 also imposes technical requirements, namely:

                    (e) Each part of the telephone conference call meeting that is
                required to be open to the public shall be audible to the public at the
                location specified in the notice of the meeting as the location of the
                meeting and shall be tape-recorded. The tape recording shall be made
                available to the public.

                     (f) The location designated in the notice as the location of the
                meeting shall provide two-way communication          during the entire
                telephone conference call meeting and the identification of each party
                to the telephone conference shall be clearly stated prior to speaking.

Id. 8 55 1.125(e), (f). Other provisions in subchapter F permit governing boards of institutions of
higher education to meet by telephone conference call in similar circumstances, see id. fj 55 1.12 1
(Vernon 1994), and provide that a governmental body may hold a meeting by videoconference call
if a quorum of the governmental body is physically present at one location, see id. 5 55 1.127
(Vernon Supp. 2001).

        We now turn to your questions about section 55 1.125. As a threshold matter, we note that
your questions assume that a commissioners court, the meetings of which are also governed by
chapter 8 1 of the Local Government Code, is authorized to hold an emergency meeting under the
The Honorable   Michael P. Fleming    - Page 3      (JC-0352)




Open Meetings Act. Section 55 1.045 of the Government Code authorizes a governmental body to
hold a meeting with only two hours notice in cases of an emergency or urgent public necessity. See
id. 8 55 1.045 (Vernon 1994). Although section 8 1.005(a) of the Local Government Code requires
a commissioners court to establish a weekly, monthly or quarterly time to convene in regular term,
subsection (b) of that statute provides that “[tlhe county judge or three county cornmissioners may
call a special term of the court.” TEX.Lot. GOV’T CODEANN. 5 8 1.005(a), (b) (Vernon Supp. 2001).
As section 8 1.005(b) authorizes a commissioners court to hold a meeting other than at regular term,
we conclude that a commissioners court may hold an emergency meeting under the Open Meetings
Act.

         First, you ask if “the notice of the telephone conference call meeting [must] expressly state
that the meeting will be conducted as a telephone conference call meeting?” Request Letter, supra
note 1, at 1. We conclude that the notice need not state that the meeting will be conducted as a
telephone conference call.

         The legislature has expressly provided a number of requirements that the notice of a section
55 1.125 meeting must satisfy; the requirement that the notice state that the meeting will be held as
a telephone conference call is not among them. See TEX. GOV’T CODE ANN. 5 551.125 (Vernon
Supp. 2001). Again, section 55 1.125 expressly provides that notice of a telephone conference call
must specify as the location of the meeting the location where meetings of the governmental body
are usually held. See id. 8 55 1.125(d). In addition, section 55 1.125 also states that such a meeting
is subject to the notice requirements applicable to other meetings. See id. 4 551.125(c). These
requirements include the general requirements of section 55 1.041 regarding the date, hour, place,
and subject of each meeting and the special requirements for emergency meetings in sections
55 1.045 and 55 1.047, including the requirement that the notice “clearly identify the emergency or
urgent public necessity,” id. 5 55 1.045(c) (Vernon 1994) and that special notice be given to
members of the news media who request it, see id. 5 551.047. Given these detailed notice
requirements, we do not believe the legislature intended to require governmental bodies to provide
notice that a section 55 1.125 meeting will be held by telephone conference call.

         Of course, although the Act does not require it, a governmental body may certainly include
in the notice the fact that the meeting will be conducted as a telephone conference call. We caution,
however, that if a governmental body has a practice of stating in its notices that a meeting will be
conducted as a telephone conference call, an unannounced change in this practice could affect the
adequacy of notice. See Tex. Att’y Gen. Op. No. JC-0057 (1999) at 4-5 (“The governmental body’s
usual practice in formulating notice may also be relevant to its adequacy in a particular case,
depending on whether it establishes particular expectations in the public about the subject matter of
the meeting.“) (relying on River Rd. Neighborhood Ass’n v, S. Tex. Sports, 720 S.W.2d 551, 557
(Tex. App.-San Antonio 1986, writ dism’d)).

        Next you ask: “What is the meaning of ‘difficult or impossible’ as used in Section
55 1.125(b)?” Request Letter, supra note 1, at 1. The Code Construction Act provides that “words
and phrases that have acquired a technical or particular meaning, whether by legislative definition
The Honorable Michael P. Fleming       - Page 4      (JC-0352)




or otherwise, shall be construed accordingly.” TEX. GOV’T CODEANN. 0 3 11 .O11 (b) (Vernon 1998).
Absent such a meaning, words and phrases are “read in context and construed according to the rules
of grammar and common usage.” Id. 8 3 11.01 l(a). The phrase “difficult or impossible” is not
defined in section 5 5 1.125(b) or in section 5 5 1.12 1, another Open Meetings Act provision predating
section 55 1.125 that authorizes governing boards of institutions ofhigher education to hold meetings
by telephone conference call in certain limited situations, see id. 8 55 1.121 (c)(2) (Vernon 1994).
Nor are we aware of any other statute or judicial or attorney general opinion construing the phrase.
For this reason, we construe the phrase in context and according to the common dictionary
definitions of the words “difficult” and “impossible.”

          Section 55 1.125 permits a meeting by telephone conference call if an emergency or public
necessity exists and “the convening at one location of a quorum of the governmental body is difJicuZt
or impossible.” Id. 8 55 1.125(b) (emphasis added). “Difficult” means “[nlot easy; requiring
effort or labour; occasioning or attended with trouble; troublesome, hard.” IV OXFORDENGLISH
DICTIONARY 641 (2d ed. 1989). “Impossible” means “[nlot possible; that cannot be done or
effected. . . .” VII OXFORDENGLISHDICTIONARY732 (2d ed. 1989). Section 55 1.125, in permitting
a meeting by telephone conference call only in case of an emergency or public necessity and only
if it is “difficult or impossible” to convene a quorum in one location, contemplates meetings by
telephone conference in extraordinary circumstances and not merely when attending a meeting at
short notice would inconvenience members of the governmental body. Whether the convening at
one location of a quorum of a governmental body is difficult or impossible in a particular
circumstance, however, would involve questions of fact beyond the purview of an attorney general
opinion.

         You also ask: “If a quorum of the Commissioners Court physically appears at the location
designated in the notice as the location of the meeting, may or must the other members of the Court
be joined in the meeting by telephone conference call?” Request Letter, supra note 1, at 1. We
conclude that if a quorum of a commissioners court appears at the meeting location, section 55 1.125
does not authorize other members to participate from other locations by telephone conference call.
Again, section 55 1.125 authorizes a meeting by telephone conference only on certain conditions,
including (except in the case of advisory boards) the condition that “convening at one location of a
quorum of the governmental          body is difficult or impossible.”     TEX. GOV’T CODE ANN.
5 551.125(b)(2) (V emon Supp. 2001). Section 55 1.125 permits meeting by teleconference only
when a quorum of the governmental body is not located in one place. If a quorum of the court
appears at the meeting location, section 55 1.125 does not apply and would not authorize the
participation of other members by telephone. This office reached a similar conclusion with respect
to section 55 1.121, which authorizes the governing board of an institution of higher education to
hold a special called meeting by telephone conference call if “the convening at one location of a
quorum of the governing board is difficult or impossible,” id. 0 55 1.121(c)(2) (Vernon 1994),
opining that that statute did not permit a governing board to allow absent members to participate by
teleconference call in regular meetings at which a quorum was present. See Tex. Att’y Gen. Op.
Nos. JC-0194 (2000) (affirming conclusion of Attorney General Opinion DM-478 (1998)); DM-478
(1998).
The Honorable   Michael P. Fleming     - Page 5      (JC-0352)




        Finally, you ask: “In setting up the telephone conference call, what level of effort must be
made to contact the members of the Court not physically present at the designated location of the
meeting?” Request Letter, supra note 1, at 1. Your memorandum brief suggests that the officer in
charge of organizing the meeting need only make a good faith effort to provide notice to and to
contact members of the court. See Memorandum at 4, attached to Request Letter, supra note 1. We
caution, however, that because a court might void an action taken at a meeting for which a member
does not receive notice, a governmental body should make every effort to provide every member
with actual notice of meetings.

         The Open Meetings Act establishes requirements governmental bodies must follow for
providing notice of their meetings to the public. See, e.g., TEX. GOV’T CODE ANN. $9 551.041
(Vernon 1994) (notice requirement); .043 (notice must be posted at place readily accessible’to the
public).    As one court has noted, “The members of the interested public are the ‘intended
beneficiaries of the Act,’ and as long as the public is informed, the purpose of the Open Meetings
Act is fulfilled. It is irrelevant whether the individuals most likely to be affected are given notice.”
Markowski v. City of Marlin, 940 S.W.2d 720, 725-26 (Tex. App.-Waco                  1997, writ denied).
Similarly, we believe the Act does not govern governmental bodies’ duty to provide notice of
meetings to their members.

         We have not been able to locate any statute or case that specifies the “level of effort” that
must be made to notify members of a governmental body of a meeting of the body. Case law
predating the Open Meetings Act suggests, however, that a governmental body may not hold a valid
meeting or take a valid action without providing notice of the meeting to all of its members. As the
Texas Supreme Court stated in Webster v. Texas & PaczJic Motor Transport Co., 166 S.W.2d 75
(Tex. 1942):

                [Wlhere the Legislature has committed a matter to a board, bureau,
                or commission, or other administrative agency, such board, bureau,
                or commission must act thereon as a body at a stated meeting, or one
                properly called, and of which all the members of such board have
                notice, or of which they are given an opportunity to attend. Consent
                or acquiescence of, or agreement by the individual members acting
                separately, and not as a body, or by a number of the members less
                than the whole acting collectively at an unscheduled meeting without
                notice or opportunity of the other members to attend, is not sufficient.

Webster, 166 S.W.2d at 76-77 (emphasis added); see also Cassin v. Zavalla County, 8 S.W. 97,98
(Tex. 1888) (holding illegal meeting convened by county judge and two commissioners prior to
qualification of two remaining commissioners and for which latter were not provided notice).
Following Webster, courts have voided the actions of governmental bodies taken at meetings of
which a member did not receive notice. See Singleton v. Smithers, 359 S.W.2d 152, 153-54 (Tex.
Civ. App.-Amarillo   1962, writ ref d n.r.e) (action of county board of trustees was void because one
The Honorable   Michael P. Fleming    - Page 6      (JC-0352)




county trustee was not notified of special called session) (citing Webster); Palmer v. Dist. Trs., 289
S.W.2d 344, 345 (Tex. Civ. App.-Texarkana          1956, writ ref d n.r.e.) (holding county board of
trustees order void where notice of meeting was not given to one member of the board and board
member did not participate in the meeting) (citing Webster); see also Cassin, 8 S.W. at 98 (voiding
contract entered into by county judge and two commissioners prior to qualification of two remaining
commissioners and at a meeting for which latter were not provided notice). Although the general
notice of a meeting provided to the public under the Open Meetings Act may be sufficient to inform
a member of a governmental body of a regularly scheduled meeting, we suggest that the
commissioners court agree to procedures for contacting each member of the court on short notice
so that the court may provide each member with actual notice of emergency meetings.
The Honorable Michael P. Fleming     - Page 7      (JC-0352)




                                       SUMMARY

                        A governmental body need not state in the notice of a meeting
               that the meeting will be held by telephone conference call pursuant
               to section 55 1.125 of the Government Code. See TEX. GOV’T CODE
               ANN. 9 55 1.125 (Vernon Supp. 2001). Section 55 1.125, in permitting
               a meeting by telephone conference call only in case of an emergency
               or public necessity and only if it is “difficult or impossible” to
               convene a quorum in one location, contemplates           meetings by
               telephone conference call in extraordinary circumstances and not
               merely when attending a meeting at short notice would inconvenience
               members of the governmental body. See id. 0 55 1.125(b). When a
               quorum of the governmental body has convened for an emergency
               meeting at the meeting location, section 55 1.125 does not permit
               absent members to participate in the meeting by telephone conference
               call. Given that a court might void actions taken at a meeting for
               which a member does not receive notice, a governmental body should
               make every effort to provide every member with actual notice of
               meetings.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
