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**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~**  **SlW** l4r. Julio Garcia District Attoraey DimIt. Zapat* LWebbCountica 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 

### OpenMeetinga **idol till8** **Sl, sune** **1400 oenm.Tx.**  **78201 214w42as44**  

## Act**Dear l4r.**  **Garcia:**

**4824 AlBolt** **Ave.. suite** **180** You **ask**whether aparticular 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 WebbCounty.

**Uoo N.** **T.n(h. bllo**  **a hlcAllm.** **TX. 78801**  **51-7** Section 3Aof 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** OpenMeetings **Act** are relevant to 

### your question: Section 1. Asused 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....** 

# TheAttorneyGerm-alofTexas

Novahor 13, 1981

held in violation of The essential factsMr.Julio Garcia - Page 2 olw-390)



### (b) ‘Deliberation

’ means Averbal exchange between **A**quorum of members of Agovernmental 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** ameeting onasubject which vaa not stated onthe 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 OTsession 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 ofthis Act. shall be guilty ofamisdemeanor.... -(b) Anymember or group of members of sgoverning body who conspire to circumvent the provisions of this Act by meeting in nutiers leas than aquorum for the purpose of secret deliberations in contravention of this **Act** shall be guilty of A misdemeanor.... (Emphasis added). Yousuggest that this conference was not held inviolation 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)

Wemust first determine whether this gathering constituted a “maeting” As defined in section I(A). 

### As noted. a quorum. &. majority, of the 

### membersof **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) Anythree 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 WASclearly 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 OpenMeetings 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” nomcontained in the Gpen Meetings 

### Act **WAS** not in effeet. 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 onJanuAry 1. 1974. See

### Acts 1973. 63rd Leg., ch. 31.At 45. The Coraissioners

’ Court case istherefore. of nohelp 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 16conference, wenote 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 anillegally-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 Inviolation of the OpenMeetings Act, however, ‘Yewould 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). Onthe facts given WCcannot 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 AfACt **qUeStiOn** vhich la beyond the scope of the opinion process.

**MARK** WHITE **Attorney CenerAl**  of **TeXAS** JOHNW.**FAINTER,** JR. First Assistant Attorney **GenecAl** RICHARDE.GRAYIII Executive Assistant **Attorney** GeneralMr.Julio Garcia - Page 5 (mJ-nG)

Prepared byJon Bible Assistant Attorney **GenerAl** APPROVED: OPINIONCOnnITTEE Susm L. Garrison. ChAirPan Jon Bible Rick Gilpin JimWoellinger Bruce Youngblood