--. =-_ :_., 

MARK WHITE 

ht0+y c30m81 

supmlu cowl Eulldlng 

P. 0. Box 1284s 

Atiln. TX. m-f11 

s12i4m-2m1 

Telex 91011)7+1m7 

T.l.copl~ SlWl4r. Julio Garcia 

District Attoraey 

DimIt. Zapat* L Webb Countica 

P. 0. Box 1343 

Laredo, Texan. 78040 

opinion no. nu-390 

Rc: Whether acting called 

by district judge and 

attended by county judge and 

NO county cd~aionera la 

subject to the Open Meetinga 

idol till8 Sl, sune 1400 

oenm.Tx. 78201 

214w42as44 

ActDear l4r. Garcia: 

4824 AlBolt Ave.. suite 180 You ask whether a particular conference vaa 

El Pa&J. TX. 7waS the Open Meetings Act, article, 6252-17. V.T.C.S. 

01- are as follol?a: 

1220 Dan44 Ave, SUN4 2m 

Noua:on.Tx. 77002 

71- 

ass ema~ay. sun4 512 

Lubbok. TX. 7mol 

#M416231) 

On July 16. 1981, the dfstrict judge of the 49th Judicial 

District convanad a conference in his office. You state that the 

purpose of thla conference was to “present poaalble alternatives And 

suggaatlona to combat the economic crisis facing Webb County.” hw 

those in attendance were the county judge and tvo county comlaaion.era 

of Webb County. 

Uoo N. T.n(h. bllo a 

hlcAllm. TX. 78801 

51-7 

Section 3A of article 6252-17 requires public notlce of l.apendlng 

meetings of governmental bodies. Your latter is accqanied by copies 

of public notices of certain maetinge; there is. hovever. no 

Indication that public notice of the July 16 gathering vaa ever 

provided. 

200 MaIn Plaza. eulle 400 

San Anlonl~, TX. 7(uos 

s12t22b41e1 

The following provisions of the Open Meetings Act are relevant to 

your question: 

Section 1. As used in thia Act: 

All Eqpwl oppomnnyl 

Afflfln4liv4 ActIon EmploYu (a) ‘Uecting mana any dalibaration between 

a guonm of -bara of a govarnwntal body at 

which any public bualnaaa or public policy over 

vhich the governmental body hea auperviaion or 

control is discussed or considered. z at which 

any formal action la taken.... 

The Attorney Germ-al of Texas 

Novahor 13, 1981 

held in violation of 

The essential facts 
Mr. Julio Garcia - Page 2 olw-390) 

(b) ‘Deliberation’ means A verbal exchange 

between A quorum of members of A governmental body 

attempting to arrive at A decision on any public 

business. 

(4 ‘Governmental body’ mema. . . wary 

Comiaaionera Court... . 

(d) ‘Quorum’ unless othervise defined by 

constitution. ch8rter. rule or law applicable to 

such governing body, means A majority of the 

governing body. 

Sec. 2. (A) Except as otherwise provided in this 

Act or specifically permitted in the Constitution. 

every regular, special, or called meeting or 

session of every governmental body shall be open 

to the public; and no closed or executive meeting 

or session... shall be held unless..., 

Sec. 3A. (a) 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 a governmental body at a meeting 

on a subject which vaa not stated on the agenda in 

the notice posted for such meeting is voidable.... 

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

wilfully calls or aids in calling or organizing a 

special or called meeting or session which is 

closed to the public, or who vilfully closes or 

aids in closing a regular meeting OT session to 

the public, or who vllfully participates la a 

regular, special, or called meeting or session 

which is closed to the public where a closed 

meeting is not permitted by the provisions of this 

Act. shall be guilty of a misdemeanor.... 

- 

(b) Any member or group of members of s governing 

body who conspire to circumvent the provisions of 

this Act by meeting in nutiers leas than a quorum 

for the purpose of secret deliberations in 

contravention of this Act shall be guilty of A 

misdemeanor.... (Emphasis added). 

You suggest that this conference was not held in violation of the 

Open Meetings Act because the members of the co~issloners court did 

not psrticipste in calling it. see section 4(a), (b), or engage in 

“dellberotlons” es that term is defined in section l(b). 
I 

hr. Julio GAKCIA - Page 3 (MW-390) 

We must first determine whether this gathering constituted a 

“maeting” As defined in section I(A). As noted. a quorum. &. 

majority, of the members of A governing body must be present for there 

to be A “meeting” vithin the meaning of this section. 

Article V. section 18 of the Texas Conaticution provides in 

pertinent part that: 

Tbe County hlssionera so chosen, with the 

County Judge as presiding officer, shall compose 

the Cwnty Commissioners Court.... 

Article 2342, V.T.C.S.. provides that: 

The several commissioners, together with the 

county judge, Shall compoaa the ‘Co~iaaiorara 

Court.‘..., 

Article 2343. V.T.C.S.. states that: 

(A) Any three members of the court, including,the 

county judge, constitute A quorum for the 

tr8na8ction of any business except that of.... 

These provisions eateblish thAt the county judge la prrrt of the 

commissioners court. and that the presence of three or more mambers of 

said court, including the county judge, constitutes A “quorum” of the 

court. Inasmuch se the county judge and two comiasioners were 

present at the July 16 conference, A “quorum” of the cowAisa1oner.s 

court WAS clearly in attendance At that conference. 

With renard to the uortion of section l(a) vhich estsblishes the 

prerequisites of A “meeting,” Commiasionere.’ ‘Court of Rays County v. 

District Judge, 22nd Judicial District of DAya County. 506 S.W.Zd 630 

(Tex. Civ. ADD. - Austin 1974. writ ref’d n.r.e.1. is cited to us for 

the propositibn that the Open Meetings Act is not ViOlAfed where the 

commissioners court meets but does not tske any conclusive Action. It 

is true that this ceae stands for this proposition. When the 

particular meeting At issue in the COIIssiSSiOnerS’ Court CAse WAS held 

on August 4, 1972, however, the definition of “meeting” nom contained 

in the Gpen Meetings Act WAS not in ef feet. The present definition, 

vhich makes it clear that the Act la Violated If final Action is taken 

z if public business or policy ovet which the governmantA body in 

question h8s supervision or control is discussed or considered. becAme 

operAtive on JanuAry 1. 1974. See Acts 1973. 63rd Leg., ch. 31.At 45. 

The Coraissioners’ Court case istherefore. of no help hare. 

With respect to your argument that sections 4(a) And (b) were not 

ViOlAted because the commissioners Court did not PArtiCipAte in 

calling the July 16 conference, we note th.st pertlcipation in calling 

an illegal meeting is not necessarily determinative of whether those 

SeCtiOnS hew been violeted. SeCtiOn 4(a) also embrAce those who 
. 

Hr. Julio GARCIA - Page 4 olw-390) 

vilfully participate in an illegally-held closed meeting, whether they 

join in calling it or not. 

To a-rise: (1) A quorum of the COpmiSSiOnarS COUrt WAS 

present 8t the July 16 conference, And therefore “A quorum of A 

governmantal body” WAS present vithin section l(a) of the act; (2) 

whether final action is t8kan is not detarmin8tive of whether cm 

article 6252-17 “meeting” has taken place; and (3) one need not 

participate in calling an illegal maeting in order to be within 

section 4(A) of the Act. 

These conclusions are essential to the resolution of your 

question. In order to determine whether the July 16 conference WAS 

held In violation of the Open Meetings Act, however, ‘Ye would have to 

make several findinga of fact , and the resolution of fact questions is 

outside the scope of the opinion process. Under section l(a), A 

“deliberstlon” is an essential element of a “meeting”. See sec. l(b). 

On the facts given WC cannot determine whether any “deliberations” 

took place. Section b(8) provides that s viol8tion occurs when A 

member %ilfully” participates in an illegally closed meeting. 

Whether any of the co~IaaIonera’ Court mambera vilfully participated 

in an illegally closed meeting in this instsnce is A fact question. 

SUMMARY 

The presence of the county judge and two 

members of the collnniaaionera court at sn assembly 

constitutes A “quorum” of the court for purposes 

of article 6252-17. V.T.C.S. Whether final action 

is taken la not determinative of whether A 

“meeting” has occurred within that atstute. One 

need not participate in calling an illegally 

closed meeting to be subject to the penalty 

provisions of section 4(a) of the statute. The 

question of vhether the particular conference 8t 

iSSUe here ViolAted the Statute iS A fACt qUeStiOn 

vhich la beyond the scope of the opinion process. 

MARK WHITE 

Attorney CenerAl of TeXAS 

JOHN W. FAINTER, JR. 

First Assistant Attorney GenecAl 

RICHARD E. GRAY III 

Executive Assistant Attorney General 
Mr. Julio Garcia - Page 5 (mJ-nG) 

Prepared by Jon Bible 

Assistant Attorney GenerAl 

APPROVED: 

OPINION COnnITTEE 

Susm L. Garrison. ChAirPan 

Jon Bible 

Rick Gilpin 

Jim Woellinger 

Bruce Youngblood