               TREA'ITORNEYGENERAL
                                 OF    TEXAS

                          Aum-rxw'lksam               787ll



                                    August    20.   1974



The Honorable   Franklin L. Smith                   Opinion     No.    H-   373
Nuecee County Attorney
Nueces County Courthouse                            Re:       Notice   requirement   of
Corpus Christi,  Texas 78401                                  the Open Meetings   Law
                                                              (Art. 6252-17,  V. T. C. S. )
Dear Mr.     Smith:

    Section 3A, Article  6252-17,   Vernon’s     Texas Civil Statutee,  as amended
in 1973 (Acts 1973, 63rd Leg.,    ch. 31, p.47).    the Cpen Meetings   Law, re-
quires that written notice of each meeting held by a governmental         body be
posted at least 72 hours preceding the day of the meeting,        except under
certain emergency   conditions.

    You have asked our interpretation   of this provision   and, in your brief,
suggest that the notice provisions  were enacted to prescribe      a method
of effectively giving the public actual notice of meetings.     You concluded
that the requirement   of 72 hours notice required that those hours should
elapse during working days and not on a Saturday,      a Sun&y or a legal
holiday.

    Section 1 of the amended law defines it terms.  Section 2 defines                     its
scope.    Section 3 authorizes enforcement by mandamus   or injunction.
Section 3A. with which your question is concerned,   reads:

               Sec. 3A.   (a)    Written notice of the date, hour,
           place, and subject     of each meeting held by a govern-
           mental body shall     be given before the meeting   as
           prescribe.d by this    section.

                (b) A State governmental    body shall furnish
           notice to the Secretary  of State, who shall then
           post the notice on a bulletin board to be located
           in the main office of the Secretary   of State at a
           place convenient to the public.




                                         p.    1754
The Honorable   Franklin   L.   Smith,        page 2   (H-373)

           (c) A city governmental   body shall have a notice
       posted on a bulletin board to be located at a place
       convenient to the public in the city hall.

            (d) A county governmental  body shall have a
       notice posted on a bulletin board located at a place
       convenient to the public in the county courthouse.

           (e) A school district    shall have a notice posted
       on a bulletin board located at a place convenient to
       the public in its central administrative  office and,
       in addition, shall either furnish a notice to the county
       clerk in the county in which most, if not all, of the
       school district’s  pupils reside or shall give notice
       by telephone or telegraph to any news media requesting
       such notice and consenting to pay any and all expenses
       incurred by the school district in providing special
       notice.

            (f) A governmental    body of a water district or
       other district or political subdivision   covering all or
       part of four or more counties shall have a notice posted
       at a place convenient to the public in its administrative
       office, and shall also furnish the notice to the Secretary
       of State, who shall then post the notice on a bulletin
       board located in the main office of the Secretary of
       State at a place convenient to the public; and it shall
       also furnish the notice to the county clerk of the county
       in which the administrative    office of the district of poli-
       tical subdivision is located,   who shall then post the notice
       on a bulletin board located at a place convenient to the
       public in the county courthouse.

            (g) The governing body of a water district,        other
       district,  or other political  subdivision,    except a dist-
       rict or political subdivision    described   in Subsection
       (f) of this section,  shall have a notice posted at a
       place convenient to the public in its administrative
       office, and shall also furnish the notice to the county
       clerk or clerks of the county or counties in which
       the district or political   subdivision  is located.    The
       county clerk shall then post the notice on a bulletin
       board located at a place convenient to the public in the
       county courthouse.




                                         p.    1755
The Honorable      Franklin     L.   Smith,    page    3    (H-373)




             (h)   Notice     of a meeting     must    be posted      for at
         leaat 72 hours preceding the day of the meeting,              except
         that in case of emergency        or urgent public necessity,
         which shall be expressed        in the’ notice, it shall be
         sufficient if notice is posted two hours before the meeting
         is convened.      In the.event of an emergency          meeting,   the
         presiding’officer     or the member       calling such meeting
          shall, if request therefore ‘containing all pertinent
         information     has previously    been filed at the headquarters
         of the governmental      body, give notice by telephone or
         telegraph to any news media requesting              such notice and
          consenting to pay any and all expenses           incurred by the
          governmental     body in providing such special notice.
          Then notice provisions     for legislative     committee meetings
          shall be as provided by the rules of the house and senate.

    In construing   this language,     of course,   it is our obligation    to attempt to
determine   the legislative    intent.   Article  10, V, T. C.S.    We cannot ascribe
to the Legislature    an intention to write a meaningless        statute.    Therefore,
like you, we conclude it was the intention of the Legislature            that the public
be given at least 72 hours effective notice prior to the holding of a meeting
covered by the law.       Certainly this cannot be achieved by posting notice
inside   a building   which is locked         over    a week-end      or holiday.

    Were we at liberty to freely interpret the notice requirement      we would
be inclined to put the greatest emphasis   on its requirement    that the posting
be at a place convenient to the public,  and that it be accessible   to the
public for the full 72 hours even though some of them might fall on a
Saturday,   Sunday or Holiday.

      However,   the Amarillo      Court of Civil Appeals has held that public, acces-
 sibility or convenience     is not determinative.      In Lipscomb   Independent School
 District v. County School Trustees,         498 S. W. 2d 364 (Tex. Civ.App.,     Amarillo
 1973, writ ref’d.,   n. r. e. ), the Court citing Toyah Independent School District
 v. Pecos-Barstow      Independent School District,        466 S. W. 2d 377 (Tex. Civ.
 APP..   San  Antonio  1971.   no  writ) to the effect  that the terms of Article  6252-17
 are mandatory      and that at least substantial     compliance with its provisions
 is required,   held that, even though the notice was locked inside the court-
 house from Friday afternoon until Monday morning and was unavailable               to
 the public:




                                               P.    1756
The Honorable   Franklin   L.   Smith,    page 4     (H-373)




        . . . The statute requires     the notice to be posted at a
       convenient place in the courthouse        (court’s emphasis)
       at least three days prior to the meeting,         but makes no
       requirement    that such notice be accessible       to the public
       at all times during that three day period,         nor does the
       statute exclude Saturdays and Sundays from such three
       day time period requirement.          There is no evidence
       that the trustees had any intent to keep such meeting
       closed to the public.    There is no evidence that any-
       one who desired to attend the meeting failed to attend,
       nor is there any evidence that anyone who desired to
       attend was denied admittance.          Mr. Don Beard, one
       of the appellants,   admits in a sworn deposition that he
       was present at the May 26 meeting.          Mr. Carl Hanshu,
       a county school trustee,     testified by sworn deposition
       that not only was Mr. Beard present at the May 26
       meeting,   but that he had an opportunity to speak and
       otherwise participate    in the discussion,      but failed to
       do so.   After a careful review of the record,         it be-
       comes apparent the situation upon which the holding
       in the Td      case was based is not applicable here
       and there is sufficient evidence to support a finding
       that the county school trustees       substantially   complied
       with the provisions    of Art. 6252-17.      Appellant’s    first
       four points are overruled.        (Emphasis     added) 498 S. W. 2d
       at 366.

     The application for writ of error filed in the Lipscomb case made no
mention of Article 6252-17 and asserted      no error in the interpretation of it
by the Court of Civil Appeals.     The notation by the Supreme Court that the
application was “Refused,     No Reversible   Error”was the Court’s indication
that, while it was not satisfied that the opinion of the Court of Civil Appeals
in all respects had correctly    declared the law, the application presented    no
error requiring rev-ersal.     Rule 483, Texas Rules of Civil Procedure.

    The Lipscomb Court stressed     the statutory language of Section 3A
requiring that notice be posted i_n the county courthouse and ignored lang-
uage requiring that it be at a place convenient to the public.  We believe it




                                         p.   1757
    .       .

.       .


                The Honorable    Franklin     L.   Smitbb page 5     (H-373)




                erred and would predict tliat, when the Supreme Court paeses squarely
                on the question, it will hold that the public is entitled to effective notice
                for the full statutory   period,  either by requiring that notice be posted
                at a place accessible    to the public or that perioda when it is unacces-
                eible not be counted.

                     However,   our function is advisory only and at this time we cannot
                ignore the clear holding in Liuscomb        that the statute does not unalterably
                exclude Saturdays,     Sundays,   legal holidays,    and other days on which the
                posted notice is hidden from public view from being counted in determining
                compliance    with Article  6252-17,   V. T. C. S. We are unable to discern
                from a reading of Lipscomb        how much significance     the court attached to
                the absence of evidence that anyone desiring to attend the meeting failed
                to attend or was denied admittance        or that the trustees intentionally
                kept the meeting closed.      For the present,     the rule established   by
                 Lipscomb   is one requiring    substantial compliance     with the notice require-
                ment considering    all the relemnt     facts and circumstances.

                    Lipscomb    was decided under the statute prior to ita amendment    in
                1973.   At that time, it only required notice “for at leapt the three days
                preceding the day of meeting. ” In our opinion the 1973 amendments,
                requiring notice of 72 hours,    do no more than to make certain that the
                three   days are three full    days before    the day of the meeting.

                                            SUMMARY

                              Judicial precedent.     which we may not ignore,
                         has established     that the notice requirement    of
                         Article   6252-17.    the C$en Meetings Law,’ may be
                         satisfied   by substantial    compliance  including the
                         posting of notice in a courthouse closed for a
                         week-end     or holiday,   if there is no evidence that
                         anyone was denied an opportunity to attend.          The
                         better practice,      in our opinion, and the practice
                         that probably will best reflect the legislative      intent
                         if the matter is ever squarely presented to the
                         Supreme Court is to provide the public effective




                                                         p.   1758
The Honorable     Franklin   L.   Smith,   page 6      (H-373)




          notice for the full statutory period,    either by
          requiring that notice be posted at a place
          accessible    to the public or that periods when
          it is inaccessible   not be counted.




                                           JOHN L. HILL
                                           Attorney General      of Texas

APPWVED:




Opinion    Committee




                                           p.   1759
