                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  April15, 2013


The Honorable Jim Murphy                                   Opinion No. GA-0999
Chair, Partnership Advisory Commission
Texas House ofRepresentatives                              Re:     Whether the Partnership Advisory
Post Office Box 2910                                       Commission is subject to the requirements of
Austin, Texas 78768-2910                                   the Texas Open Meetings Act (RQ-1 093-GA)

Dear Representative Murphy:

        You ask whether the Partnership Advisory Commission (the "Commission") is subject to
the requirements of the Texas Open Meetings Act (the "Act"). 1

         The Commission is established under chapter 2268 of the Government Code as "an
advisory commission in the legislative branch that advises responsible governmental entities
described by Section 2267.001(5)(A) on proposals received under Chapter 2267." TEX. Gov'T
CODE ANN. § 2268.051 (West Supp. 2012). 2 The governmental entities described in section
2267.001(5)(A) are "a board, commission, department, or other agency of this state," and certain
institutions of higher education. !d. § 2267.001(5)(A). Chapter 2267 authorizes agreements
between public and private entities to develop or operate projects that qualify under that chapter.
!d. §§ 2267.001-.066.

        A state governmental entity that receives a proposal subject to chapter 2268 must submit
copies of the proposal to the Commission and to the House Appropriations Committee and
Senate Finance Committee. !d. § 2268.058(a). The Commission may decide whether to accept
or decline to review the proposal. !d. § 2268.058(d). When it accepts a proposal for review, the



         'Letter and Brief from Honorable Jim Murphy, Chair, P'ship Advisory Comm'n, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Oct. 18, 2012), http:// www.texasattorneygeneral.gov/opin (" Request Letter").
         2
          In 20 11 , the Legislature added two chapters to the Government Code that are both identified as "chapter
2267 ." Senate Bill I 048 added chapter 2267, entitled "Public and Private Facilities and Infrastructure," and chapter
2268, establishing the Commission. See Act of May 27, 2011, 82d Leg., R.S ., ch. 1334, § 1, sees. 2267.001-.066,
2011 Tex. Gen. Laws 3859, 3859-72. !d. House Bill 628 added another chapter 2267, "Contracting and Delivery
Procedures for Construction Projects." See Act of May 29, 2011 , 82d Leg., R.S ., ch. 1129, § 2.08, sees. 2267.001-
.452, 2011 Tex. Gen. Laws 2900, 2904-20. Section 2268.051 of the Government Code refers to the chapter 2267
that was added by Senate Bill 1048.
The Honorable Jim Murphy - Page 2                     (GA-0999)



Commission must "provide findings and recommendations to the responsible governmental
entity" including:

               ( 1) a determination on whether the terms of the proposal and
                    proposed qualifying project create state tax-supported debt,
                    taking into consideration the specific findings of the
                    comptroller with respect to the recommendation;

               (2) an analysis of the potential financial impact of the qualifying
                   project;

               (3) a review of the policy aspects of the detailed proposal and the
                   qualifying project; and

               (4) proposed general business terms.

!d. § 2268.058(g).

       You state your understanding of the Commission's authority under chapter 2268:

               [A] submitting governmental entity is not bound by any finding or
               recommendation of the commission. The commission has no
               actual or implied authority to approve or disapprove a proposed
               project or to place any condition on the approval of a proposed
               project. Each submitting entity is ultimately responsible for
               independently deciding whether to proceed with a proposed
               project. The [C]ommission acts in an advisory capacity only.

Request Letter at 1. Your understanding of the Commission's authority is consistent with the
plain language of chapter 2268. See TEX. Gov'T CODE ANN. § 2268.001-.059 (West Supp.
2012).

        The Act applies to a meeting of a governmental body that includes deliberations, other
exchanges of information, or formal action concerning "public business or public policy over
which the governmental body has supervision or control." !d. § 551.001(4)(A), (B)(iv) (West
2012); see also Willmann v. City of San Antonio, 123 S.W.3d 469, 479 (Tex. App.-San Antonio
2003, pet. denied) (stating that "the definition of a governmental body [under the Act] generally
comprehends an entity with the power to supervise or control public business"). Therefore,
courts have determined that an advisory body that does not have the authority to control or
supervise public business or policy generally does not hold "meetings" that are subject to the
Act. See Beasley v. Molett, 95 S.W.3d 590, 606-07 (Tex. App.-Beaumont 2002, pet. denied)
(holding that a statutorily created governmental body whose purpose is solely to make
recommendations to other governmental bodies does not hold meetings subject to the Act); City
ofAustin v. Evans, 794 S.W.2d 78, 83-84 (Tex. App.-Austin 1990, no writ) (determining that a
city grievance committee was not subject to the Act because the committee could only make
The Honorable Jim Murphy - Page 3                  (GA-0999)



recommendations). Chapter 2268 creates the Commission as an advisory body with the duty to
make certain findings and recommendations and does not vest the Commission with ultimate
control over public business or policy. Thus, given the limited scope of its statutorily defined
duties, the Partnership Advisory Commission is generally not the kind of entity that courts would
deem subject to the Texas Open Meetings Act.

        Nevertheless, under particular facts, a body designated as "advisory" may be deemed
subject to the Act when the body's recommendations about public bn .iness or policy are
routinely "rubberstamped" by a governing body receiving the recommendations. Willmann, 123
S.W.3d at 479-80. Whether the Commission's recommendation ar routinely rubberstamped
by the ntities receiving them is a fact question that cannot be resolved in an attorney general
opinion. See Tex. Att'y Gen. Op. No. GA-0957 (2012) at 1 (noting that "whether conduct is a
meeting under th Act wW sometimes involve questions of fact that we cannot definitively
resolve through the opinion pr cess"). Thus, while we conclude that the Commission's
statutorHy defined duties do not make it subject to the Act, whether in practice the Commission
effectively exercises the kind of policymaking power that renders it subject to the Act is not a
question we can address here.
The Honorable Jim Murphy - Page 4                 (GA-0999)



                                    SUMMARY

                      While the Partnership Advisory Commission's statutorily
              defined duties do not make it subject to the Open Meetings Act,
              whether in practice the Comrnis i n effectively exercises the kind
              of policymaking power that renders it subjecl lo the Act is not a
              question that can be addres ·ed in an attorney general opinion.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
