                                 ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                 September 8,2003



The Honorable Robert R. Puente                                   Opinion No. GA-0098
Chair, House Committee on Natural Resources
Texas House of Representatives                                   Re: Whether, under the Open Meetings Act,
P.O. Box 2910                                                    a river authority may hold an informational
Austin, Texas 78768-29 10                                        meeting that is open only to its invitees,
                                                                 including   members    of the press      and
                                                                 community leaders (RQ-0044-GA)

Dear Representative       Puente:

         You ask whether the Open Meetings Act, chapter 55 1 of the Government Code, permits a
river authority to hold an informational meeting that is open only to the authority’s invitees,
including members of the press and community leaders. We understand that your question involves
the Sulphur River Basin Authority.’

        You have furnished a redacted copy of a notice regarding an informational                      meeting.     That
notice reads as follows:

                  The . . . wishes to invite you to an informational meeting to hear a
                  presentation of the Economic Study conducted by . . . regarding the
                  economic impact of the proposed. . . Reservoir. The meeting will be
                  held at the . . . City Hall Community Room on Thursday, March 13,
                  2003 at 1:00 p.m.

                  Dr. . . . , the Assistant Professor for the Institute of Applied
                  Economics at the. . . will be making the presentation. There will be
                  a question and answer period at the end of the presentation.

                  This will be the first of several informational meetings to be held in
                  . . . Texas to inform citizens throughout. . . Texas and the. . . River
                  Basin.


           ‘Although you do not identify a particular river authority, the president of the Sulphur River Basin Authority
has informed us that your request relates to that entity. See Letter from Mike Huddleston, President, Sulphur River Basin
Authority, to Honorable Greg Abbott, Texas Attorney General (May 28, 2003) (on file with Opinion Committee)
[hereinafter Authority Brief’j .
The Honorable     Robert R. Puente      - Page 2         (GA-0098)




                  As a member of the press, your attendance at this meeting is
                  extremely important.    Please bring this letter to the meeting for
                  admittance since this is not a public meeting.2

          The Sulphur River Basin Authority (the “Authority”) was created by the legislature in 1985.
See Act of May 29, 1985, 69th Leg., 1st C.S., ch. 3, 1985 Tex. Gen. Laws 3798. Its enabling
legislation declares that it is “a governmental agency and a body politic and corporate.” Id. 8 1. It
is governed by a board of directors composed of six members. See id. 4 6, at 3799. “The members
of the board shall be appointed by the governor with the advice and consent of the senate.” Id. Two
members of the board must be appointed from each of three named regions. See id.

         Section 55 1.002 of the Government Code provides that “[elvery regular, special, or called
meeting of a governmental body shall be open to the public, except as provided by this chapter.”
TEX. GOV’T CODEANN. 5 55 1.002 (Vernon 1994). “Governmental body” is defined to include, inter
alia, “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.” Id.
5 55 1 .001(3)(A) (V emon Supp. 2003). It is clear from its enabling legislation that the Authority is
an “agency within the executive branch of government that is directed by one or more elected or
appointed members.” Id. Texas courts have long acknowledged that river authorities are subject to
the Open Meetings Act. See Lower Cola. River Auth. v. City of San Marcos, 523 S.W.2d 64 1,646
(Tex. 1975). See also Friends of Canyon Lake, Inc. v. Guadalupe-Blanc0 River Auth., 96 S.W.3d
5 19, 524 (Tex. App.-Austin 2002, pet. denied).

         The Open Meetings Act’s two definitions of the term “meeting” include as an element either
(i) a deliberation involving a quorum of the governmental body, or (ii) the physical presence of a
quorum:

                   (A) a deliberation between a quorum of a governmental body, or
                 between a quorum of a governmental body and another person,
                 during which public business or public policy over which the
                 governmental    body has supervision or control is discussed or
                 considered or during which the governmental body takes formal
                 action; or

                   (B) except as otherwise provided by this subdivision,            a gathering:

                          (i) that is conducted by the governmental body, or for
                          which the governmental body is responsible;

                          (ii) at which a quorum of               members      of     the
                          governmental body is present;



         *Letter from Honorable Robert R. Puente, Chair, House Committee on Natural Resources, to Honorable   Greg
Abbott, Texas Attorney General (Apr. 11,2003) (attached notice) (on file with Opinion Committee).
The Honorable Robert R. Puente             - Page 3    (GA-0098)




                            (iii) that has been called by the governmental   body;
                            and

                            (iv) at which the members receive information from,
                            give information to, ask questions of, or receive
                            questions    from any third person, including an
                            employee of the governmental body, about the public
                            business     or public      policy   over which     the
                            governmental body has supervision or control. The
                            term does not include the gathering of a quorum of a
                            governmental body at a social function unrelated to
                            the public business that is conducted by the body, or
                            the attendance by a quorum of a governmental body at
                            a regional, state, or national convention or workshop,
                            if formal action is not taken and any discussion of
                            public business is incidental to the social function,
                            convention, or workshop. The term includes a session
                            of a governmental body.

TEX. GOV’T CODE ANN. 8 55 l-001(4) (V emon Supp. 2003) (emphasis added). “Quorum” means
“a majority of a governmental body, unless defined differently by applicable law or rule or the
charter of the governmental body.” Id. 9 551.001(6).

        The meeting notice you have furnished indicates, by its terms, that the Authority intended
to hold a meeting during which the Authority would, at a minimum, “give information to” third
persons about “public business or public policy over which the governmental body has supervision
or control.” See id. 8 55 1.001(4)(B). If a quorum of the Authority was physically present on one
of the occasions at which such a meeting was held, that meeting would have been a meeting under
section 55 1.001(4)(B). Moreover, if, at such meeting, any deliberation occurred between a quorum
of the members of the Authority’s governing board, or between a quorum of the governing board and
another person, that meeting would have constituted a meeting under the terms of section
55 1.001(4)(A). In either event, the meeting should have, under section 55 1.002 of the Government
Code, been “open to the public.” See id. 8 55 1.002 (Vernon 1994). The notice specifically indicates,
however, that the meeting was not open to the public.

        The Authority informs us that “a quorum of the governmental body was not present” at the
informational meeting described in your letter or involved in the deliberations.3 If a quorum was not
present or involved in deliberations under the definition of meeting in section 55 1.001(4), the
informational meeting was not a meeting subject to the Open Meetings Act.

      We caution, however, that the Open Meetings Act also provides that “[a] member or group
of members of a governmental body commits an offense if the member or group of members



       ‘Authority   Brief, supra note 1, at 1.
The Honorable Robert R. Puente      - Page 4       (GA-0098)




knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the
purpose of secret deliberations in violation of this chapter.” Id. 5 55 1.143(a). An offense under this
provision is “a misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (2)
confinement in the county jail for not less than one month or more than six months; or (3) both the
fine and confinement.”     Id. 8 55 1.143(b). Although this provision has not been construed by the
courts, there could be circumstances in which the holding of serial, closed, quorumless meetings
could give rise to a prosecution under section 55 1.143(a). We cannot here anticipate the, numerous
variety of instances in which this might occur.
The Honorable   Robert R. Puente    - Page 5          (GA-0098)




                                        SUMMARY

                         An informational    meeting of the Sulphur River Basin
                Authority (the “Authority”) that is open only to the Authority’s
                invitees, including members of the press and community leaders,
                contravenes the Open Meetings Act if a quorum of members of the
                Authority is present or otherwise participates in the deliberations. If
                a quorum is not present and does not otherwise participate in the
                deliberations, the informational meeting is not subject to the Act.

                                               Yours very truly,




                                               Atto           era1 of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
