Honorable Michael J. Guarino

Criminal District Attorney Galveston **County** 405 County Courthouse Galveston, Texas 77550 Opinion No. JM-1185

Re: Whether a community justice council created pursuant to article 42.13, Texas Code of Criminal Procedure, is subject to the Open Meetings Act, V.T.C.S. art. 6252-17 (RQ-1879)

DearMr. Guarino:

You state that House Bill 2335 of the 71st regular session of the Legislature has created community justice councils for counties wishing to establish a community corrections facility. See Acts 1989, 71st Leg., ch. 785, art. 1, at 3471. You ask whether a community justice council is subject to the Texas Open Meetings Act, article 6252-17, V.T.C.S.

Some background about the structure of the criminal justice system and the state-local relationships established by House Bill 2335 is necessary to understand what a community justice council does and whether it isa governmental body subject to the Open Meetings Act. House Bill 2335made many changes inthe structure of the criminal justice system at the state and local level, some of which give the counties financial incentives for supervising felony probationers and taking othermeasures to reduce the number ofpersons sent fromthe counties tobe incarcerated instate prisons. Acts 1989, 71st Leg., ch. 785, art. 3,at 3482. Itcreated the Texas Department ofCriminal Justice
as the state agency with primary responsibility for confining felons, developing a system of state and local punishment, supervision, and rehabilitation programs, and reintegrating felons into society after release from confinement. V.T.C.S. art. 4413(401). The community justice assistance division (the division) is establii:;d within the Department of Criminal Justice. V.T.C.S. . 4413(401), !j1.11; see Code Crim. Proc. art. 43.13. The division isresponsible forestablishing minimum standards forprograms, facilities, and services provided at a local

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level by a community supervision and corrections department, and for certifying and funding theprograms, facilities, and services provided by such departments. V.T.C.S. art. 4413(401), 5 1.12.
Community supervision and corrections departments are tobe established by the district judge 

### or judges trying criminal cases ineach judicial district inthe state. Code Crim. Proc. art. 42.131. These departments serve the courts by conducting presentence investigations and risk assessments, supervising and rehabilitating probationers, enforcing the terms ofprobation, and operating community corrections facilities. Id. 52. The judge or judges appoint adepartment director, who employs other persons to do thework of thedepartment. The district judge or judges may establish a community justice council to serve the department. The judges must do so before the department, county, or city may establish a community corrections facility under article 42.131 of the Code of Criminal Procedure, and before a county may establish a county correctional center under subchapter Ii, chapter 352 of the Local Government Code. Code Crim. Proc. art. 42.131, 5 3(b). The council's primary responsibility isto prepare a criminal justice plan for submission to the division in fulfillment of areporting requirement and as a condition of the department's receipt of state aid. Code Crim. Proc. art. 42.13, §S 3, 6. When the division has made funds available to adepartment toprovide facilities, equipment, and utilities for community corrections facilities, the council has a role inrecommending expenditures. Finally, the council %hall provide continuing policy guidance and direction for the development of criminal justice plans and community corrections facilities and programs." Id. art. 42.131, r,3.

The council is composed ofvarious officers from the county or counties wherein it isestablished. Each officer ischosen by the other persons who hold the same kind of office he does in the county or counties served by the council. For example, acouncil includes "a sheriff of a county tobe served by the [community corrections] facility, chosen by the sheriffs of the counties tobe served by the facility.* Code Crim. Proc. art. 42.131, S3(b)(l). The following officers ofpolitical subdivisions to be served by the community corrections facility are also represented on the council: a county commissioner or a county judge: a city council member ofthe most populous municfpality in a county to be served by the facility; nomore than two state legislators; thepresiding judge ofa judicial district, the judge of a statutory county court exercising criminal jurisdiction; a county attorney with criminal jurisdiction:

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adistrict attorney or criminal district attorney: and an elected member of theboard of trustees of an independent school district inacounty tobe served by the facility.

Both the composition and the function of the community justice council are relevant todetermining whether it is a governmental body subject to the OpenMeetings Act. The act defines "governmental body" inpart as

anyboard, commission, department, committee,
or agencywithin the executive or legislative department of the state, which isunder the direction ofone ormore elected or appointed members
. . . .

V.T.C.S. art. 6252-17, 5 l(c).

Since the council isestablished and operates only at a local level, it isnot "within the executive or legislative department of the state." Se , Opinions JM-596 (1986); JM-340 (T98:;..I Attorney General The definition of *qgovernmentalbody" applicable to local entities is as follows:

every Commissioners Court and city council in

the state, and every deliberative body having rule-making or quasi-judicial power and classified as a department, agencyI or political subdivision ofa county or city; and the board of trustees of every school district, and every county board of school trustees and county board of education: and the governing board of every special district heretofore orhereafter created by law.

V.T.C.S. art. 6252-17, 5 l(c).

The criminal justice council isnot agoverning body of
acity or county. As abody established by the district judges and composed of elected officers ofvarious jurisdictions, it cannot be considered aaepartment, agency, or political subdivision ofa county or city. See Attorney General Opinions JM-740 (1987);JM-183 (1984);MW-28 (1979). Nor is it one of the education entities named in the statute.

A more detailed analysis of the council's functions is necessary todetermine whether or not it is "the governing board of
. . . [a]special district
. . .created by law." The decision in Sierra Club v.Austin TranSD. Studv Policy Advisorv Comm., 746 S.W.2d 298 (Tex.App. -Austin 1988,

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writ denied), determined that the Austin Transportation Study Policy Advisory Committee (ATSPAC), a seventeenmember committee consisting of state, county, regional, and municipal public officials, was a special district subject to the Open Meetings Act.1 TheATSPAC had been designated a "Metropolitan Planning Organization" pursuant to aprovision of the Federal-aid highway law directed at enabling the Secretary of Transportation to cooperate with state and local officials in developing transportation plans and programs based on transportation needs. 23U.S.C. § 134. A metropolitan planning organization is "the forum for cooperative transportation decision making." 23 C.F.R. 5450.104(b)(3).

The opinion in Sierra Club said that theATSPAC was charged with developing various transportation plans for the
use of federal agencies indetermining funding for the local projects. 746 S.W.2d at 300. "Asaresult, ATSPAC plays a vital role indeciding which highway projects are planned, built and funded in theAustin area." Id. at 300-01. "Its decisions affect highway planning inTravis, Hays, Caldwell, Bastrop, andWilliamson counties." ;EeLat 300. The court thus emphasized thedecision-making function of theATSPAC.

The court also ,pointed out that committees like the ATSPAC did not existwhen the OpenMeetings Act was adopted in 1967,but thatwhen its functions are compared to those of the governmental bodies defined inthe act, **itis clear that the committee is just the sort of body the Open Meetings Act was designed to govern." Id. at 301. It quoted the following dictionary definition of "special district":

A limited governmental structure created to bypass normal borrowing limitations, to insulate certain activities from traditional political influence, to allocate functions to entities reflecting particular expertise, to provide services inotherwise unincorporated areas, or t0 aCCOmDliSh a orimarilv lOCal benefit or imorovement, U, parks and planning, mosquito control, sewage removal.

1. Attorney General Opinion JM-183 (1984)held that a library council consisting of representatives chosen by governing bodies of political subdivisions was a "hybrid" body that did not fitanydefinition of "governmental body" inthe Open Meetings Act.

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Black's Law Dictionary (5thed. 1986) (emphasis added).
Relying particularly on the underlined language, the court found that theATSPAC was a special district, in that itwas designed to accomplish the primarily local benefit or improvement of bringing federal highway funds into the Austin urban area for highway planning and construction. 746 S.W.2d at 301.

Indeciding that the ATSPAC was agovernmental body subject to the Open Meetings Act, the court first considered thepowers itexercised and applied a test similar to that applied by the courts and byprior opinions of this office todecide whether an entity inthe executive branch must comply with the act. Among other prerequisites for establishing that a committee, board, or other entity in the executive branch of government is subject to the Open Meetings Act, itmust deliberate oract on a matter of public business orpolicy over which ithas supervision or control. See, e.a Affiliates v.Unive&tv Gulf Reaional Educ. Television ofHouston, 746 S.W.2d 803 (Tex. APP- - Houston [14th Dist.] 1988, writ denied); Attorney General Opinions H-772 (1976);H-438 (1974). An advisory body, with nopower to supervise or control public business, isnot subject to the Open Meetings Act. Attorney General Opinion JM-331 (1985) (citizens advisory panel of Office of Public Utility Counsel); H-994 (1977) (advisory committee studying selection process foruniversity president).

Adepartment or agency ofacity or county isagovernmental bodywithin the act if ithas rule-making or guasijudicial powers. V.T.C.S. art. 6252-17, 5 l(c). In determiningwhether an entity isagovernmental body within this provision, this office also considers whether it has authority to exercise governmental power, orwhether it has only an advisory role. Attorney General Opinion MW-506 (1982)determined that theboard of trustees of a city firemen's retirement fundwas anagency of the city subject to the Open Meetings Act. Theboard had power to receive, manage, and disburse the retirement fund: moreover, it exercised quasi-judicial powers inhearing and determining applications forbenefits. Attorney General Opinion R-467 (1974)Iincontrast, dealtwith a city library board that
was authorized to act inanadvisory capacity only and held that insofar as ittruly acted only inanadvisory capacity, itwas not required to complywith the Open Meetings Act.

. The responsibilities of the criminal justice council, and itsplace inthe criminal justice hierarchy, persuade us that it isproperly characterized asan advisory body, and not agovernmental bodywithin the Open Meetings Act. Aswe

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have already said, itsmost important function isto prepare the community justice plan that acommunity supervision and corrections department must submit to the community justice assistance division before the city, county, or the department may establish certain correctional facilities. Code Crim. Proc. arts. 42.13, 5 3; 42.131, 5 3. As of September 1, 1990, adepartment must submit aplan to the division as a condition of receiving state aid. & art. 42.131, §S 6, 11.

The division determines the format for community justice plans. Id. 5 2(a)(3). Section 6of article 42.13 sets out the information thatmust be included ina plan. Itmust give adetailed description of the services provided by the department andnew facilities orprograms proposed for the department, such as electronic monitoring programs and community corrections facilities. Italsomust include
adescription of services needed within the area, information about contracts necessary to achieve programs and facilities, and 'lastatement of commitment by the community justice council and the department to achieve a targeted level of alternative sanctions." Id. 5 6(b)(5). The plan may include other information, such as information about personnel training orprogram evaluation, aswell as "other details or options that the community justice council wishes to include."

The plan isthus primarily descriptive of corrections facilities that are established or may be established by a community supervision and corrections department, a county,
amunicipality, oracombination of these. See Code Crim. Proc. a*. 42.131, 93. It appears that the council's responsibility istogather and report information about the facilities operated by these entities but not todecide how the facilities are tobe operated orwhich facilities are to beproposed. Decisions on these matters aremade by the division, the district judges, the department, and the political subdivisions operating correctional facilities. Moreover, acommunity justice council may not submit a plan to the division as acondition ofpayment of state aid to a department unless theplan is first approved by the district judges who manage thedepartment served by the council. Id. art. 42.13, § 6.

The council alsohas the following responsibility over expenditures:

.The district judge or judges may authorize expenditures of funds provided by the division to the department for thepurposes of

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providing facilities, equipment, and utilities for community corrections facilities if:

(1) the communitv iustice council recommends the exnenditures; and

(2) the division provides funds for the purpose of assisting inthe establishment or improvement of the facilities.

Code Crim. Proc. art. 42.131, 5 10 (emphasis added).

In this case, the council makes recommendations, but the judge or judges make thedecisions about expenditures. InGulf Reaional Educ. Television Affiliates v. University ofHouston, sunra, at 809, the court found that anauxiliary enterprise of a state university was subject to the Open Meetings Act because itspent public funds and operated with little control or supervision by the university board of regents. In contrast, the community justice council recommends expenditures, but does not expend public funds on its own authority. In Attorney General Opinion H-467 (1974)Ithis office decided that a city library board was not subject to the Open Meetings Act because it was empowered to act inanadvisory capacity only. The library board was authorized to recommend the adoption of rules to administer the library, tomake recommendations for library facilities, and to submit itsproposed expenditures for the approval of the city council.

Inour opinion, a criminal justice council acts in an advisory capacity only, like the library board at issue in Attorney General Opinion H-467. Itdoes nothave the power tomake decisions that the courts found theATSPAC to have in Sierra Club and the auxiliary enterprise inGulf Reaional Educ. Television Affiliates. It isnot "the sort of body the OpenMeetings Actwas designed togovern." Sierra Club, sunra, at 301. Although itassists thedepartment's efforts to secure state funding for community corrections facilities, the council does not V~accomnlish a primarily local benefit or improvement." Id. (emphasis added). Thus, it isnot a "special district" within the Sierra Club
case. Accordingly, a criminal justice council is not subject to the Open Meetings Act.

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SUMMARY

A criminal justice council established by the district judge or judges under section 3of article 42.131 of the Code of Criminal Procedure isnot subject to the Open Meetings Act.

JIM MATTOX Attorney General of Texas

MARYKHLLKR First Assistant Attorney General

IOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STKAKLSY Special Assistant Attorney General

RENHA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Susan L.Garrison Assistant Attorney General

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