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) 

Dear Mr. 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 is a governmental body subject to the Open Meetings Act. House Bill 

2335 made many changes in the 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 other measures to reduce the 

number of persons sent from the counties to be incarcerated 

in state prisons. Acts 1989, 71st Leg., ch. 785, art. 3, at 

3482. It created the Texas Department of Criminal 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), !j 1.11; see Code Crim. Proc. art. 43.13. The 

division is responsible for establishing minimum standards 

for programs, facilities, and services provided at a local 

P. 6246 
Honorable Michael J. Guarino - Page 2 (JM-1185) 

level by a community supervision and corrections department, 

and for certifying and funding the programs, facilities, and 

services provided by such departments. V.T.C.S. art. 

4413(401), 5 1.12. 

Community supervision and corrections departments are 

to be established by the district judge or judges trying 

criminal cases in each judicial district in the 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 of probation, and operating community 

corrections facilities. Id. 52. The judge or judges 

appoint a department director, who employs other persons to 

do the work of the department. 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 is to prepare 

a criminal justice plan for submission to the division in 

fulfillment of a reporting 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 a department to provide facilities, equipment, 

and utilities for community corrections facilities, the 

council has a role in recommending 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 of various officers from the 

county or counties wherein it is established. Each officer 

is chosen by the other persons who hold the same kind of 

office he does in the county or counties served by the 

council. For example, a council includes "a sheriff of a 

county to be served by the [community corrections] facility, 

chosen by the sheriffs of the counties to be served by the 

facility.* Code Crim. Proc. art. 42.131, S 3(b)(l). The 

following officers of political 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 of the most populous municfpality in a 

county to be served by the facility; no more than two state 

legislators; the presiding judge of a judicial district, the 

judge of a statutory county court exercising criminal 

jurisdiction; a county attorney with criminal jurisdiction: 

P. 6247 
Honorable Michael J. Guarino - Page 3 (JM-1185) 

a district attorney or criminal district attorney: and an 

elected member of the board of trustees of an independent 

school district in a county to be served by the facility. 

Both the composition and the function of the community 

justice council are relevant to determining whether it is a 

governmental body subject to the Open Meetings Act. The act 

defines "governmental body" in part as 

any board, commission, department, committee, 

or agency within the executive or legislative 

department of the state, which is under the 

direction of one or more elected or appointed 

members . . . . 

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

Since the council is established and operates only at a 

local level, it is not "within the executive or legislative 

department of the state." Se , 

Opinions JM-596 (1986); JM-340 (T98:;. 

.I Attorney General 

The definition of 

*qgovernmental body" 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, agency I or 

political subdivision of a 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 or hereafter created by law. 

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

The criminal justice council is not a governing body of 

a city or county. As a body established by the district 

judges and composed of elected officers of various jurisdictions, it cannot be considered a aepartment, agency, or 

political subdivision of a 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 to determine 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, 

P. 6248 
Honorable Michael J. Guarino - Page 4 (JM-1185) 

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 The ATSPAC had been designated a 

"Metropolitan Planning Organization" pursuant to a provision 

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. 23 U.S.C. § 134. A 

metropolitan planning organization is "the forum for cooperative transportation decision making." 23 C.F.R. 

5 450.104(b)(3). 

The opinion in Sierra Club said that the ATSPAC was 

charged with developing various transportation plans for the 

use of federal agencies in determining funding for the local 

projects. 746 S.W.2d at 300. "As a result, ATSPAC plays a 

vital role in deciding which highway projects are planned, 

built and funded in the Austin area." Id. at 300-01. "Its 

decisions affect highway planning in Travis, Hays, Caldwell, 

Bastrop, and Williamson counties." ;EeL at 300. The court 

thus emphasized the decision-making function of the ATSPAC. 

The court also ,pointed out that committees like the 

ATSPAC did not exist when the Open Meetings Act was adopted 

in 1967, but that when its functions are compared to those 

of the governmental bodies defined in the act, **it is 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 in otherwise 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 fit any definition of "governmental body" 

in the Open Meetings Act. 

P. 6249 
Honorable Michael J. Guarino - Page 5 (JM-1185) 

Black's Law Dictionary (5th ed. 1986) (emphasis added). 

Relying particularly on the underlined language, the 

court found that the ATSPAC was a special district, in that 

it was 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. 

In deciding that the ATSPAC was a governmental body 

subject to the Open Meetings Act, the court first considered 

the powers it exercised and applied a test similar to that 

applied by the courts and by prior opinions of this office 

to decide whether an entity in the 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, it must deliberate or act on a matter of 

public business or policy over which it has supervision or 

control. See, e.a 

Affiliates v. Unive&tv 

Gulf Reaional Educ. Television 

of Houston, 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 no power to supervise or control public business, 

is not 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 for university president). 

A department or agency of a city or county is a governmental body within the act if it has rule-making or guasijudicial powers. V.T.C.S. art. 6252-17, 5 l(c). In determining whether an entity is a governmental body within this 

provision, this office also considers whether it has 

authority to exercise governmental power, or whether it has 

only an advisory role. Attorney General Opinion MW-506 

(1982) determined that the board of trustees of a city 

firemen's retirement fund was an agency of the city subject 

to the Open Meetings Act. The board had power to receive, 

manage, and disburse the retirement fund: moreover, it 

exercised quasi-judicial powers in hearing and determining 

applications for benefits. Attorney General Opinion R-467 

(1974) I in contrast, dealt with a city library board that 

was authorized to act in an advisory capacity only and held 

that insofar as it truly acted only in an advisory capacity, 

it was not required to comply with the Open Meetings Act. 

. 

The responsibilities of the criminal justice council, 

and its place in the criminal justice hierarchy, persuade us 

that it is properly characterized as an advisory body, and 

not a governmental body within the Open Meetings Act. As we 

p. 6250 
Honorable Michael J. Guarino - Page 6 (JM-1185) 

have already said, its most important function is to prepare 

the community justice plan that a community 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, a department must submit a plan 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 6 of article 42.13 

sets out the information that must be included in a plan. 

It must give a detailed description of the services provided 

by the department and new facilities or programs proposed 

for the department, such as electronic monitoring programs 

and community corrections facilities. It also must include 

a description of services needed within the area, information about contracts necessary to achieve programs and 

facilities, and 'la statement 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 or program evaluation, as well as "other 

details or options that the community justice council wishes 

to include." 

The plan is thus primarily descriptive of corrections 

facilities that are established or may be established by a 

community supervision and corrections department, a county, 

a municipality, or a combination of these. See Code Crim. 

Proc. a*. 42.131, 9 3. It appears that the council's 

responsibility is to gather and report information about the 

facilities operated by these entities but not to decide how 

the facilities are to be operated or which facilities are to 

be proposed. Decisions on these matters are made by the 

division, the district judges, the department, and the 

political subdivisions operating correctional facilities. 

Moreover, a community justice council may not submit a plan 

to the division as a condition of payment of state aid to a 

department unless the plan is first approved by the district 

judges who manage the department served by the council. Id. 

art. 42.13, § 6. 

The council also has the following responsibility over 

expenditures: 

. 

The district judge or judges may authorize 

expenditures of funds provided by the division to the department for the purposes of 

P. 6251 
Honorable Michael J. Guarino - Page 7 (JM-1185) 

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 in the 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 the decisions about expenditures. 

In Gulf Reaional Educ. Television Affiliates v. University 

of Houston, sunra, at 809, the court found that an auxiliary 

enterprise of a state university was subject to the Open 

Meetings Act because it spent 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) I this office decided that a city library board was 

not subject to the Open Meetings Act because it was 

empowered to act in an advisory capacity only. The library 

board was authorized to recommend the adoption of rules to 

administer the library, to make recommendations for library 

facilities, and to submit its proposed expenditures for the 

approval of the city council. 

In our opinion, a criminal justice council acts in an 

advisory capacity only, like the library board at issue in 

Attorney General Opinion H-467. It does not have the power 

to make decisions that the courts found the ATSPAC to have 

in Sierra Club and the auxiliary enterprise in Gulf Reaional 

Educ. Television Affiliates. It is not "the sort of body 

the OpenMeetings Act was designed to govern." Sierra Club, 

sunra, at 301. Although it assists the department'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 is not a "special district" within the Sierra Club 

case. Accordingly, a criminal justice council is not 

subject to the Open Meetings Act. 

P. 6252 
Honorable Michael J. Guarino - Page 8 (JM-1185) 

SUMMARY 

A criminal justice council established 

by the district judge or judges under section 

3 of article 42.131 of the Code of Criminal 

Procedure is not subject to the Open Meetings 

Act. 

JIM MATTOX 

Attorney General of Texas 

MARYKHLLKR 

First Assistant Attorney General 

IOU MCCREARY 

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 

P. 6253