December 11, 1986 

Mr. Karl.E:Bishop 

Executive Director 

Texas Board of Licensure far 

Nursing Home Administrators 

4800 N. Lamar 

Austin, Texas 78756 

Dear Mr. Bishop: 

Opinion No. JM-584 

Re: Whether the Texas Board of 

Licensure for Nursing HOl!X 

Administrators may hold meetings 

by teleconference call 

You ask whether the Texas Board ‘of Licensure for Nursing Home 

Administrators may occasionally meet and votes on cases by teleconference call. You in essence ask whether a meeting by teleconference 

call would comply with the Texas Open Meetings Act, article 6252-17, 

V.T.C.S. 

The Open Meetings Act provides in part: 

Section 1. As used in this Act: 

(a) " Meeting' means any deliberation between a 

quorum of memberr; of a governmental body at which 

any public business or public policy over which 

the governmental body has supervision or control 

is discussed or considered, or at which any formal 

action is taken. It shall not be construed that 

the intent of this definition is to prohibit the 

gathering of mem',ars of the governmental body in 

numbers of a quorum or more for social functions 

unrelated to the: public business which is conducted by the holly or for attendance of regional, 

state, or national conventions or workshops as 

long as no forma:. action is taken and there is no 

deliberation of public business which will appear 

on the agenda of the respective body. 

. . . . 

Sec. 2. (a) Bxcept as otherwise provided in 

this Act or rpecifically permitted in the 

Constitution, every regular, special, or called 

meeting or sass& of every governmental body 

shall be open t: the public; and no closed or 

p. 2613 
Mr. Karl E. Bishop - Page 2 (JM-584) 

executive meeting or session of any governmental 

body for any of the purposes for which closed or 

executive meetin(Zs or sessions are hereinafter 

authorized shall'.be held unless the governmental 

body has first been convened in open meeting or 

session for which notice has been given as 

hereinafter proviiad and during which open meeting 

or session the presiding officer hai publicl; 

announced that a closed or executive meeting or 

session will be held and identified the section or 

sections under this Act authorizing the holding of 

such closed or executive session. 

. . . . 

Sec. 3A. (a'l Written notice of the date, 

.hour, place, and subject of each meeting held by a 

governmental body shall be given before the 

meeting as prescribed by this section, and any 

action taken by 3 governmental body at a meeting 

on a subject which was not stated on the agenda in 

the notice nested for such meetina is voidable. 

is made by a member of the general public or~by a 

member of the gov%mental body. Any deliberation, 

discussion, or decision with respect to the 

subject about which inquiry was made shall be 

limited to a proFosa1 to place such subject on the 

agenda for a suhs;equent meeting of such governmental body for which notice has been provided in 

compliance with this Act. 

Sec. 4. (a) Any member of a governing body 

who wilfully calls or aids in calling or 

organizing a specj_al or called meeting or session 

which is closed ‘to the public, or who wilfully 

closes or aids Ln closing a regular meeting or 

session to the lntblic, or who wilfully participates in a regula:?, special, or called meeting or 

session which 11% closed to the public where a 

closed meeting 1;~ not permitted by the provisions 

of this Act. . . . 

(b) Any memhcr or group of members of a 

governing body who conspire to circumvent the 

provisions of thLs Act by meeting in numbers less 

than a quorum for the purpose of secret 

p. 2614 
Mr. Karl E. Bishop - Page 3 (J-M-584) 

deliberations in contravention of this Act shall 

be guilty of 6. misdemeanor. . . . (Emphasis 

added). 

V.T.C.S. art. 6252-17. 

The Open Meetings Act tioes not expressly address the conduct of a 

meeting by telephone conference call. You ask only about occasional 

teleconference call meetini;s by the Board of Licensure for Nursing 

Home Administrators, but cur answer cannot be so limited and will 

apply to all meetings of a:.1 governmental bodies subject to the act. 

In construinr! the Ouen Meetings Act, we are mindful that its intended 

purpose is & open'governmenial decision-making to the public. See 

Cox Enterprises, Inc. v. Board of Trustees of the Austin Independ= 

School District, 706 S.W.2d?#56 (Tex. 1986). 

The act defines a "meeting" as "any deliberation between a quorum 

of members of a government;J body" at which certain matters are discussed or at which any formsI action is taken. V.T.C.S. art. 6252-17, 

§l(a). Deliberations by tcilephone call would fit this definition; a 

Texas court has in fact ind,icated that members of a governmental body 

would.violate the Open Meetings Act by holding secret deliberations by 

telephone. See Bitt v. Mab,;L, 687 S.W.2d 791 (Tex. App. - San Antonio 

1985, no wriq Elizondo v. 'Williams, 643 S.W.2d 765 (Tex. App. - San 

Antonio 1982, no writ) (schGo1 board members enjoined from conducting 

telephone conferences to discuss public business or .public policy). 

See also Stockton Newspapers, Inc. v. Members of the Redevelopment 

.Agency of the City of Stcce, 214 Cal. Rptr. 561 (Cal. App. 3d 

1985); Minnesota Education Association v. Bennett, 321 N.W.Zd 395 

(Minn. 1982); Board of Trurzees, Huntley Project School District No. 

24, Worden v. Board of Coul":y Commissioners of the County of Yellowstone, 606 P.2d 1069 (Mont. 1980); State v. Vermont Emergency Board, 

394 A.2d 1360 (Vt. 1978:l (cases discussing whether meeting by 

telephone was permitted by open meeting laws in other states). 

The determination that deliberations by telephone could fall 

within the definition of %?etiag" does not end our inquiry. Meetings 

subject to the act must "be open to the public," and must comply with 

statutory requirements for notice and procedure. Some of the procedural provisions indicate that the legislature assumed that members of 

a governmental body would appear personally at the meeting. Section 

l(a) provides that members of a governmental body are not prohibited 

from gathering for social occasions or attendance at national conventions and workshops, gathe,rings that necessarily involve personal 

attendance. Section 3A exempts from the notice requirement of article 

6252-17, V.T.C.S., limited answers to "an inquiry made at such 

meeting . . . made by a mem',er of the general public or by a member of 

the governmental body." V.T.C.S. art. 6252-17. §3A. The public has 

no right under the act l:o speak at meetings; that is a matter 

controlled by the discreti,on of the governmental body or, in some 

cases, by a particular statute. Attorney General Opinion H-188 

p. 2615 
Mr. Karl E. Bishop - Page 4 (~~-584) 

(1973); see, e.g., V.T.C.S. art. 1269k. §13a(a); Tax Code art. 26.06. 

Nonetheless, the section 3A ,procedure for handling inquiries from the 

public rests on the assumpt:Lon that board members will be able to hear 

people attending the meet1r.g. Section 3A also contemplates that the 

meeting shall be held in 6. "place" specified in the notice. These 

provisions at least suggesl: that the legislature assumed that board 

members would be physically present at meetings subject to the Open 

Meetings Act. 

The Texas Supreme Court has determined that an open meeting may 

not be convened without a qnorum present in the meeting room, and has 

stated as follows: 

The newspaper argues that the Act clearly contemplates that a quorum be present at the meeting 

place, that section 2(a) requires an open meeting 

to be convened before the Board may go into 

executive session, and that there is no 'meeting' 

unless a quorum is present and physically able to 

'deliberate.' Tcr:. Rev. Civ. Stat. Ann. art. 

6252-17. 981(a) and (b). 

We agree with the newspaper. By all appearantes. only two members may have. been present. 

The public*is entitled to know which membeis are 

present for the cs.osed session and whether there 

is a quorum. We hold that the School Board failed 

to comply with the Act's requirements. (Emphasis 

added); 

Cox Enterprises, Inc. v. BaElrd of Trustees of the Austin Independent 

School District, 706 S.W.2d at 959. The court did not address the 

question of telephone deliocrations, but its language suggests that 

the public interest requirss board members to attend meetings in 

person. 

The legislature's silence on telephone meetings for governmental 

bodies can be contrasted with its express authorization of such 

meetings for the directors, shareholders, and committees of a corporation. Bus. Corp. Act art. !,.lO(C). An examination of this legislative authorization and the underlying legislative policy leads us to 

believe that telephone conference calls do not comply with the Texas 

Open Meetings Act and that the legislature would expressly authorize 

governmental bodies to meet by telephone conference if it wished them 

to have that power. 

Article 9.10 of the Texas Business Corporation Act states in 

part: 

C. Subject to the provisions required or 

permitted by th:.r; Act for notice of meetings, 

? 

p. 2616 

? 
Mr. Karl E. Bishop - Page 5 (JM-584) 

unless otherwise-restricted by the articles of 

incorporation or by-laws, shareholders, members of 

the board of directors, or members of any committee designatei. by such board, may participate 

in and hold a meeting of such shareholders, board, 

or committee by neans of conference telephone or 

similar communications equipment by means of which 

all persons partj.cipating in the meeting can hear 

each other, and participation in a meeting 

pursuant to this Section shall constitute presence 

in person at suc'z meeting, except where a person 

participates in the meeting for the express 

purpose of objecting to the transaction of any 

business on the ground that the meeting is not 

lawfully called or convened. (Emphasis added), 

Bus. Corp. Act art. 9.10(C). The authorization for telephone meetings 

was added in 1973. Acts 1973, 63rd Leg., ch. 545 at 1486, 1511. A 

&mment to article 9.10(C) states that 

[t]he convenience of meetings by conference telephone should encourage and. permit more frequent 

and timely meetings and savings of time and 

expenses. 

Bus. Corp. Act art. 9.10(C), Comment of Bar Committee -- 1967 to 1973 

(Vernon 1980). The commentary to section 8.20(b) of the Model 

Business Corporation Act, which also authorizes meetings by telephone, 

enlarges on the reasons fcr enacting such a law. The comment notes 

that the common law concerning directors' meetings has traditionally 

required that the directors attend in .person. Model Bus. Corp. Act 

Ann. 58.20(b), Official I:omment (3d ed. 1986). The traditional 

meeting provided the opportunity for interchange that is possible when 

directors are physically pr'esent in the same room, but the authors of 

the model act concluded i:hat modem technology could provide this 

advantage even though the members of the board are physically 

dispersed. 

Article 9.10(C) of th,e Texas Business Corporation Act allows 

conference calls "unless cltherwise restricted by the articles of 

incorporation or by-laws. . . ." Bus. Corp. Act art. 9.10(C); see - 

also Model Bus. Corp. Act Ann. 88.20(b). 

The corporation itself determines whether conference calls are 

permitted. Meetings of shareholders and directors are not open to the 

public. See generally Bus. Corp. Act arts. 2.24, 2.25, 2.37 (place 

and notice of shareholders' and directors' meetings). Thus, a corporation need not consider any public interest when it decides to conduct 

a meeting by telephone conierence. The policies supporting article 

9.10 of the Business Corporation Act accordingly do not address the 

interests of an audience. 

p. 2617 
Mr. Karl E. Bishop - Page 6 (JM-584) 

In contrast, the Open 'Meetings Act is intended to further the 

public interest in access to the decision making processes of governmental bodies. See Cox Enterprises, Inc. v. Board of Trustees of the 

Austin Independ ant School '2 , s; Toyah Independent School 

District v. Pecos-Barstow I?- Ident School District, 466 S.W.2d 377 

(Tex. Civ. Ann. - San Antonio 1971, n .o writ): Acts 1967, 60th Leg., 

ch. 271, S?,'& 597 (emergency clause of Open-Meetings Act). Members 

of the public have an interest in observing the demeanor as well as 

hearing the voices of the participants in an open meeting, and we 

believe the Open Meetings Act protects that interest. In a case 

Involving participation in a meeting by telephone conference call, the 

Supreme Court of Vermont stated as follows: 

We are directed to no authority, by either 

party, dealing with the subject of attendance at 

a 'meeting' thror.gh the medium of a telephone 

conference call. However useful its role in 

formulating policy, it has serious drawbacks as 

a means of putting that policy into effect. 

Questions of identity of a claimed participant 

could easily aris;. The personal contact that is 

so often an effecTive ingredient of a meeting is 

absent. Whatever, may be the future status of 

such participatior~ if and when specifically 

authorized, we cannot countenance it now, in. 

the absence of &me clear provision for it. 

Immediately suggested is the rhetorical question 

of how public parl:i.cipation in such a meeting, the 

goal of the legislation here under consideration, 

could ever be achieved, even with the advance 

notice contemplated by the statute. Not only the 

'right-to-know' is protected by the statute, but 

also the right to 'be present, to be heard, and to 

participate. (Emphasis added). 

State v. Vermont Emergency Board, -- 394 A.2d 1360 (Vt. 1978). 

The Texas Open Meetings Act does not authorize the public to 

participate in meetings b? speaking to the persons attending the 

meeting. The other remarks of the Vermont court are relevant to the 

Texas Open Meetings Act. Mlzrtbers of the public who can only hear what 

a board member says will no': know whether the silent board members are 

paying attention. 

1. The Vermont Open Yeetings Law does not expressly authorize 

members of the public to speak out at public meetings. See Vt. Stat. 

Ann. title 1, 95311-314. The law does require the minutes of a 

meeting to identify all members of the public body present and all 

"other active participants in the meeting." Id. 6312(b)(l)(A). - 

p. 2618 
L Mr. Karl E. Bishop - Page 7 (JM-584) 

A meeting conducted br teleconference call among geographically 

dispersed board members is 'oat "open to the public" as required by the 

Open Meetings Act. It is :Eor the legislature to determine whether 

governmental bodies should have authority to meet on occasion by 

teleconference call. It 113 for the legislature to establish limitations on and guidance for such meetings. Until the legislature has 

granted it that power, the Texas Board of Licensure for Nursing Home 

Administrators may not meet and vote on cases by telephone conference 

call. 

SUMMARY 

In the absence #of spec.ific legislative authorisation, a governmernal body that meets by telephone 

conference call wi:L:L not comply with the Texas Open 

Meetings Act, articl~e 6252-17, V.T.C.S. 

JACK HIGHTOWER 

JIM MATTOX 

Attorney General of Texas 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2619