                  THE     ATTORNEY           GENERAL
                             OF TEXAS

                              April    6, 1989




Honorable  Jim Mapel                   Opinion    No.    JM-1937
Criminal  District Attorney
Brazoria County                        Re:    Whether    the   Texas    open
329 N. Arcola                          Meetings Act, article       6252-17,
Angleton,  Texas   77515               V.T.C.S.,   authorizes   a city    to
                                       hold an    emergency    meeting    to
                                       discuss    indemnifying      council
                                       members in a lawsuit and hiring
                                       an outside law     firm to    repre-
                                       sent the council      (RQ-1545)

Dear   Mr. Mapel:

      You ask   whether an      "emergency    meeting"    held   by    the
Alvin City    Council complied       with the    Texas Open     Meetings
Act, article 6252-17,       V.T.C.S.     You advise     that, on    April
25, 1988,   during a     regularly    scheduled     meeting,   the   city
council eliminated     the   position of a city employee.            Near
the conclusion     of   that    regular    meeting,     the   terminated
employee handed the city council copies of the pleadings                in
a lawsuit   the    employee     filed that     same   day.     The    city
council was not served formally with the lawsuit until April
29.   The city    council posted      notice to     hold an    emergency
meeting,  a meeting     with only two      hours notice, to       discuss
the lawsuit    under    the following      topics:      "Indemnify     the
Alvin City Council" and        "Hire a law     firm to represent       the
Alvin City Council."

       Section    3A(h)   of article    6252-17    provides,       in part:

             Notice of a meeting must be         posted in     a
          place   readily   accessible     to   the    general
          public at    all times    for at    least 72   hours
          preceding     the    scheduled      time    of    the
          meeting   . . . .

      The   act     authorizes    a      shorter        notice     period     for
emergencies:




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Honorable     Jim   Mapel   - Page   2   (JM-1037)




            In case of emergency      or urgent public       neces-
            sity, which     shall be     clearly identified       in
            the notice,     it shall     be sufficient     if    the
            notice is posted two hours before the meeting
            is convened.     Any   public official     or    person
            who   is   designated     or   authorized     to   post
            notices of meetings     by a governmental      body in
            accordance   with Section 3A of this Act          shall
            post the    notice    taking at     face   value    the
            reason for     the emeruencv      as stated    bv    the
            aovernmental    body.    (Emphasis added.)

Id.
      Section 3A(h) contains two requirements          that are signi-
ficant to the case at        hand:    (1) that notice for       emergency
meetings     must   state    the   reason   for   the    emergency      and
(2) that an      lVemergency,'q within     the   meaning     of   section
3A(W,    must exist.     The   notice you describe,      e,       "Indem-
nify the Alvin City Council" and "Hire a law firm to                repre-
sent the     Alvin    City   Council,1' does    not   meet    the    first
requirement    of section 3A(h).       The  notice states no        reason
for the emergency.

      The 70th   Legislature    added    the requirement     that    the
reason for an    emergency    meeting    be stated    in the    notice.
See Acts   1987. 70th     Leq.. ch.     549. 5 5.    at 2213-14.      In
River Road   Neishborhood-Ass*n        v. South .Texas Soorts,       720
S.W.2d 551. 554     (Tex. Am.      - San Antonio     1986. no    writ).
decided prior to this amendment,        the court held that      notice
need not describe    the nature of the emergency       warranting     an
emergency  meeting.    The amendment     of section 3A(h) responded
to that case by     requiring   expressly    that emergency     meeting
notice state the     reason for the      emergency.    Section     3A(h)
requires that the emergency       or   urgent public necessity       "be
clearly identified."       In   addition,    the  person    who   posts
notice shall take "at      face value the      reason for the     emer-
aencv   as  stated    bv   the    aovernmental    body."      (Emphasis
added.)

      Further, on the facts you      present,   it does not    appear
that an "emergency,"      within the meaning      of section   3A(h),
existed.    The 70th   Legislature   also added     the language    of
section 3A(h)    that    limits expressly     the   situations   that
warrant emergency    meetings:

            Cases of emergency    and urgent public   neces-
            sity are limited to imminent threats to      pub-
            lic health and   safety or reasonably    unfore-
            seeable situations   requiring immediate  action




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Honorable     Jim Mapel   - Page     3     (JM-1037)




            by the   governmental        body.     (Emphasis   added.)

Section 3A(h)   requires an   imminent   threat to                    the  public
health and safety    or a reasonably   unforeseeable                    situation
requiring immediate   action.  Neither was present                    in the case
at hand.

      Although   it   is understandable        that    council    members
would be    concerned     about their     liability,     the    situation
presented   was not one.that required        "immediate    action."     The
council was not served formally          with notice of the        lawsuit
until April 29.      At that time, the council had 20 days             from
the Monday following      service in which to answer         plaintiff's
initial pleadings.       Ample time existed during this period to
post 72 hours     notice of a meeting to discuss            indemnifying
council members      and   hiring a     law   firm to    represent      the
council    members,    both    actions    that    would    require      the
expenditure    of public     funds.    For this    reason, the      notice
for the emergency     meeting did not comply with section 3A(h).
&g   Attorney   General Opinion JM-985       (1988) (action taken        in
violation   of the Open      Meetings Act can      be voided in      court
action).

                                 SUMMARY

                An "emergency   meeting,"    a meeting      posted
            with only two     hours notice,     to discuss      the
            topics l'Indemnify the Alvin City Council"          and
            "Hire a law firm to represent       the Alvin     City
            Council" does     not   comply   with    the    notice
            requirements    of    section   3A(h)    of   article
            6252-17, V.T.C.S.,     when   the notice fails       to
            state the reason for       the emergency    and   when
            the city had    more than 20     days in which       to
            take action on the topics discussed.




                                                 Attorney   General    of Texas

MARY KELLER
First Assistant       Attorney      General

LOU MCCREARY
Executive  Assistant       Attorney        General




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Honorable   Jim Mapel   - Page   4   (JM-1037)




JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney      General

RICK GILPIN
Chairman,  Opinion   Committee

JENNIFER S. RIGGS
Chief, Open Government   Section
of the Opinion Committee

Prepared by Jennifer   S. Riggs
Assistant Attorney   General




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