June 14, 1989 

Mr. Charles Stevenson Opinion No. JR-1858 

Acting Commissioner 

Texas Department of Human Re: Whether the Texas Open 

Services Meetings Act authorizes 

P. 0. Box 2960 governmental body to hoi: 

Austin, Texas 78769 "briefing sessions" to receive 

information from staff members 

without providing notice 

(RQ-1686) 

Dear Mr. Stevenson: 

You ask whether the Texas Open Meetings Act, article 

6252-17, V.T.C.S., applies to orientation or briefing 

sessions of the Board of Human Services, at which board 

members receive information and ask questions of staff 

members but do not engage in ~discussion between themselves. 

This office has issued two opinions concluding that such 

sessions were not subject to the requirements of the Open 

Meetings Act. Attorney General Opinions JM-640 (1987); 

JR-248 (1984). 

Attorney General Opinion JM-248 relied on the trial 

court's construction of the Open Meetings Act in Pea Picker, 

Inc.. v. Reaaan, 632 S.W.2d 674 (Tex. App. - Tyler 1982, 

writ ref'd n.r.e.). The court found that a meeting held by 

a commissioners court to hear reports from agents and 

employees was not a @'meetingl' within article 6252-17, 

V.T.C.S. The act then defined a l'meeting*l as "any deliberation between a quorum of members of a governmental body at 

which any public business . . . is discussed.1W (Emphasis 

added.) See Acts 1973, 63d Leg., ch. 31, 5 1, at 45. If no 

deliberations were held between members of the governmental 

body, then no *lmeetingN* took place and the requirements of 

the Open Meetings Act did not apply. See also Attorney 

General Opinion JM-640 (1987) (oral exam of applicant by 

licensing board was not a "meeting"). 

Senate Bill 168 of the 70th Legislature adopted a 

number of amendments to the Open Meetings Act. S.B. 168, 

Acts 1987, 70th Leg., ch. 549, at 2211. The bill added 

p. 5507 
Mr. Charles Stevenson - Page 2 (JM-1058) 

language to the definition of *'meetingl' so that it now reads 

in part: 

(4 'Meeting' means v an 

between a quorum of members of a governmental 

body, or between a Quorum of members of a 

a overnm en t a 1 bod v and anv other I) erson, at 

which any public business . . . is discussed 

or considered . . . . (Emphasis added.) 

V.T.C.S.. art. 6252-17, § l(a). The same language was added 

to the definition of 11deliberation*1 so that it now reads as 

follows: 

(b) 'Deliberation' means a verbal exchancre durina a meetinq between a quorum of 

members of a governmental body, or between a 

cue rum of members of a aovernmental bodv and 

a Y other D concerning any issue within 

t:e jurisdizETz:'of the governmental body or 

any public business. (Emphasis added.) 

Id. 5 l(b). 

A facial reading of the amended sections l(a) and 1 (b) 

yields more than one interpretation. This office has found 

the Open Meetings Act applicable to a meeting called by a 

district judge and attended by a quorum of members of a 

county commissioners court if the commissioners engaged in 

deliberations. Attorney General Opinion MW-390 (1981). The 

Act has also been held to apply to a joint meeting of 

representatives of two or more governmental bodies if a 

quorum of members of one governmental body attends and 

engages in deliberations. Attorney General Opinion MB-417 

(1981); see Attorney General Opinion MW-28 (1979). The 

amendments could have been adopted to make explicit this 

application of the Open Meetings Act. However, the bill 

analysis prepared for Senate Bill 168 indicates that the 

amendments were designed to overturn the conclusion of 

Attorney General Opinion JM-248. The following language 

appeared in the bill analysis prepared for the introduced 

version of the bill, but was not updated as the bill 

underwent substantive changes: 

The Texas Open Meetings Act (TOMA) . . . 

was enacted in 1967 to ensure that important 

governmental decisions are made in public 

meetings. Several problems under TOMA 

currently are frustrating this purpose of 

'government in the sunshine.' Courts and the 

p. 5508 
Mr. Charles Stevenson - Page 3 (JM-1058) 

attorney general have ruled that members of a 

public body may meet without complying with 

TOMA to receive information and ask questions 

of a third party. [The analysis then mentions Attorney General Opinion JR-248 and its 

reliance on an appellate court case]. . . . 

In The Pea Picker, Inc. v. Reaaan, . . . the 

court held that receiving information from 

employees was not a 'meeting' because no 

'deliberation' had occurred in that there was 

no exchange between the members. (Emphasis 

in original.) 

Bill Analysis, S.B. 168, 70th Leg. (1987). Since Attorney 

General Opinion JR-248 relied on the definitions of 

"meeting" and "deliberation," Senate Bill 168 sought to 

bring such briefing sessions within the coverage of the Open 

Meetings Act by amending those definitions. 

These amendments to subsections l(a) and l(b) of the 

Open Meetings Act appeared in Senate Bill 168 as introduced 

and in the bill as adopted by the legislature. The introduced bill was reported adversely by the Senate Committee on 

State Affairs and a committee substitute was reported 

favorably. The committee substitute included the following 

provision, not found in the introduced bill: 

(r) Nothing in this Act shall be construed to require a quorum of the members 

of a governmental body to confer with an 

employee or employees of the governmental 

body in an oven meetinq where such conference 

is for the sole purpose of receiving information from the employee or employees or to 

ask questions of the employee or employees: 

provided, however, that no discussion of 

public business or agency policy that affects 

public business shall take place between the 

members of the governmental body during the 

conference. (Emphasis added.) 

V.T.C.S. art. 6252-17, 5 z(r).1 

1. A provision on meeting by telephone conference call 

also codified as section 2(r) was added to the Open Meetings 

Act by another bill during the same session. S.B. 560, Acts 

1987, 70th Leg., ch. 964, 5 4, at 3283. 

p. 5509 
Mr. Charles Stevenson - Page 4 (JM-1058) 

Section 2(r) uses the terms "confer" and l*conference" 

instead of the statutorily defined terms "meeting" and 

"deliberation" to describe a briefing session. Nearly all 

of the section 2 exceptions use one or both of the statutory 

terms. But see id. 55 2(e) ("consultations" with attorney), 

2(p) ("interviews and counseling sessions" between members 

of Board of Pardons and Paroles and inmates of Department 

of Corrections). The legislature could have chosen its 

language to distinguish such conferences from meetings and 

to remove them completely from the Open Meetings Act, 

including its notice and record-keeping requirements. On 

the other hand, the legislature may have thought that the 

section 2(r) "conference" would involve *Ia verbal exchange 

. . . between a quorum of members of a governmental body and 

any other person" and that it would therefore be a "meeting" 

at which l'deliberationsl* take place. 

The placement of subsection (r) in section 2 does not 

resolve this ambiguity, since section 2 includes various 

types of provisions and not merely provisions authorizing a 

closed session during a meeting subject to the Open Meetings 

Act.2 Although several of these provisions authorize 

executive sessions for governmental bodies subject to the 

act, others appear to remove some entities completely from 

the act. Comvare V.T.C.S. art. 6252-17, 5 2(e), (f), (s), 

(h), (j), Cm), to), (P), (s) withid. 5 2(d), (n). Various 

other procedural provisions are also included in section 2. 

See id. 8 z(a), (b), (c), (i), (W, (l), (r) (telephone conference calls). 

2. The Austin Court of Appeals recently issued a 

decision reconciling the provisions of the Administrative 

Procedure and Texas Register Act on ex varte communications 

between agency members in contested cases, - V.T.C.S. 

art. 6252-13a, 5 17, with the Open Meetings Act provisions 

requiring governmental bodies to deliberate in public. 

Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. - 

Austin, May 17, 1989) (motion for rehearing filed May 31, 

1989); - Attorney General Opinion JM-645 (1987) (Administrative Procedure and Texas Register Act creates an 

exception to Open Meetings Act permitting commission 

decisions on claims of privilege to be made in a closed 

meeting); cf Attorney General Opinion H-1269 (1978) 

(decision-making process under article 6252-13a, V.T.C.S., 

is not exempt from requirements of Open Meetings Act). The 

court's list of provisions authorizing executive sessions 

did not include section 2(r) of the Open Meetings Act. 

P. 5510 
E 

Mr. Charles Stevenson - Page 5 (JM-1058) 

The legislative intent must ultimately be found in the 

language of the statute. See. e.a., Government Personnel 

Mutual Life Ins. Co. v. Wear, 251 S.W.Zd 525 (Tex. 1952). 

The answer to Your ouestion devends on what the lanauaae 

adopted as Senate Biil 168 

~~--a co-ed 

comm;nicates to the persons who 

read it.3 As already pointed out, subsection 2(r) uses the 

terms "conferl* and %onference." 

this provision used 

The same bill that adopted 

very different language in the amendments to subsections l(a) and l(b). The legislature's use 

of language in subsection 2(r) that differs from the 

language added to the definitions suggests that 2(r) and 

those definitions do not refer to the same thing. 

Moreover, subsection 2(r) provides that "no discussion 

of public business or agency policy that affects public 

business shall take place between the members of the 

governmental body during the conference." 

defined as 

"Meeting" is 

"any deliberation" between certain described 

persons "at which any public business or public policy over 

which the governmental body has supervision or control 

is discussed or considered . . . .*I V.T.C.S. art. 6252-17, 

§ l(a). The quoted phrases are not identical, but their 

differences are subtle. The phrases are sufficiently 

similar that a reasonable person could read subsection 

to prohibit 

2 (r) 

the kind of discussion which is 

characteristic of a "meeting" 

a defining 

and therefore to exclude a 

"conferencel' from the definition of 

opinion, 

l'meeting.lq In our 

whatever the legislature may have intended, the 

relevant provisions do not communicate an intent to subject 

briefing sessions to the Open Meetings Act with the option 

of holding them in executive session. 

The adoption of Senate Bill 168 involved negotiation 

and compromise between competing interests. 

sessions were subject to the 

If briefing 

Open Meetings Act, the public 

would receive notice of the time, place, and subject of such 

sessions, although they could be excluded from the actual 

briefing. Id. 5 3A. Members of the public would thus have 

3. A review of the testimony on this bill shows conflicting statements by the senate sponsor. See Hearing on 

S.B. 168 before the Senate Comm. on State Affairs, 70th Leg. 

(March 23, 1987) (tape recording available from Senate Staff 

Services Office); Debate on S.B. 168 on the Floor of the 

Senate, 70th Leg. (April 15, 1987) (tape recording available 

from Senate Staff Services Office). 

p. 5511 
Mr. Charles Stevenson - Page 6 (JM-1058) 

access to a minimal amount of additional information about 

government. The governmental body would have to keep a 

record of the briefing session as required by section 2A, 

and this requirement presumably would help enforce 

the prohibition against board members discussing among 

themselves "public business or agency policy that affects 

public business" when involved in a conference under 

subsection 2(r). 

On the other hand, if a governmental body had to comply 

with the notice requirements prior to briefings by 

employees, it would have to wait three days or seven days to 

hear the information, depending on which notice period 

applies to it. Id. S 3A(h). In the event of an emergency 

or urgent public necessity, it would have to wait for two 

hours before the briefing. a Y Attorney 

General Opinion JM-985 (198~'(d~&~?~~l~eaning of 

emergency). This delay would occur before a session in 

which the governmental body would neither deliberate nor 

take action, but would only receive some information 

relevant to its public duties. Delays in the board members1 

receipt of information needed for their work could interfere 

with the efficient conduct of public business and might even 

paralyze the governmental body in matters of great urgency. 

In weighing these competing interests, the legislature might 

reasonably have concluded that briefing sessions should be 

taken completely out of the Open Meetings Act. 

Finally, since members of a governmental body are 

subject to criminal penalties for certain knowing violations 

of the Open Meetings Act, - V.T.C.S. art. 6252-17, 5 4, a 

contrary interpretation of subsections l(a) and (b) and 2(r) 

would raise a constitutional question. The Fifth and 

Fourteenth Amendments of the United States Constitution 

prohibit the enforcement of any law that "either forbids or 

requires the doing of an act in terms so vague that men of 

common intelligence must necessarily guess at its meaning 

and differ as to its application." Connally v. General 

Constr. Co., 269 U.S. 385 (1926); see also Baker v. State, 

478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute 

threatens punishment of people who had no fair warning of 

what conduct to avoid. See United States v. Cardiff, 344 

U.S. 174 (1952). A higher standard of certainty is required 

of a statute imposing criminal penalties than of one relying 

on civil enforcement. Xolender v. Lawson, 461 U.S. 352, 

358 at n. 8 (1983); see Winters v. New York, 333 U.S. 507 

(1948). 

We believe that the language of the statute does not 

fairly warn persons of common intelligence that a subp. 5512 
Mr. Charles Stevenson - Page 7 (JM-1058) 

section 2(r) conference is a "meeting" within the Open 

Meetings Act and that they will be subject to criminal 

penalties for participation in a conference that is not 

conducted according to the requirements of the act. Our 

construction of the statute is thus necessary because of the 

inclusion of criminal penalties to enforce its procedural 

provisions. 

SUMMARY 

Conferences between members of a governmental body and an employee or employees for 

the sole purpose of receiving information or 

asking questions are not l'meetings*' or "deliberations" subject to any requirements of the 

Open Meetings Act, article 6252-17, V.T.C.S. 

Subsection 2(r) of the act, adopted by Senate 

Bill 168 of the 70th Legislative Session, 

removes the conferences it describes from the 

coverage of the act. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 5513