V.Vm A-m-0-y GENERAL 

OF TEXAS 

&Jfflw.N W37ll 

JOHN Ia. IalLL 

A-R- o-Ax. 

August 31, 1977 

Honorable J. C. Martin, Jr., 

President 

Opinion No. H-1045 

Board of Directors 

Texas A & I University 

Kingsville, Texas 78363 

Dear Mr. Martin: 

Re: Selection of a 

chancellor and president 

at Texas A & I University. 

You request our opinion concerning the procedure bywhich certain appointments to administrative positions were 

made by the Board of Directors of the Texas A & I University. 

Texas A C I University has campuses at Kingsville, 

Laredo, and Corpus Christi. The Legislature recently enacted House Bill 944 which establishes and designates these 

institutions the University System of South Texas, consisting of Texas A & I University, the renamed Laredo State 

University, and Corpus Christi State University. The name 

of the Board of Directors of Texas A & I University is changed 

to the Board of Directors of the University System of South 

Texas, and its governing authority over the component institutions is continued. The bill becomes effective September 

1, 1977. 

At its meeting held July 7, 1977, the Board named the 

acting chancellor as chancellor of the University System of 

South Texas and named the executive vice president of Texas 

A & I University at Corpus Christi as president of Corpus 

Christi State University. Each of the persons appointed 

had served in an acting capacity in the position to which he 

was appointed for more than a year. You ask the following 

questions about these appointments: 

1. May the Board promote from within 

without advertising the vacancy and 

without conducting a search? 

\ 

2. If the answer to the above is affirmative, may the Board make such a decision 

under the agenda item "Executive Session, 

Discussion of Personnel Changes," without 

announcing the pending action? 

p. 4303 
Honorable J. C. Martin, Jr. - Page 2 

The Board has broad authority to manage and control 

Texas A & I University. Ed. Code 98 95.21; 104.11; 104.41 - 

-43; 104.91 - .92. Texas A & I University has operated 

since 1972 as a system with the position of chancellor as 

chief executive officer with the approval of the Coordinating 

Board and with operating funds appropriated by the Legislature. General Appropriations Act, Acts 1975, 64th Leg., ch. 

743 at 2763. The Board's authority to operate as a system 

with an executive officer of the system is made express by 

House Bill 944. A prospective appointment to a position made 

by a body empowered to fill that position is valid. See - 

Attorney General Opinion V-927 (1949). 

The governing body of a State University has considerable 

discretion in exercising its powers, including its power to 

appoint administrators. The courts will not interfere with 

the exercise of discretion by school directors in matters 

confided by law to their judgment unless there is a clear 

abuse of the discretion or a violation of the law. Foley 

v. Benedict, 55 S.W.Zd 805, 808, 810 (Tex. 1932); Cornette 

v. Aldridge, 408 S.W.2d 935 (Tex. Civ. App. -- Amarillo 

1966, mand. overr.). See Faro v. New York University, 502 F.2d 

1229 (2d Cir. 1974); GGn v. Board of Regents of Texas Tech 

University, 474 F.2d 594 (5th Cir. 1973) reh. den. 

We have found no law that requires the Board to 

advertise vacancies in administrative positions, conduct 

a search for applicants, or otherwise engage in particular 

recruitment practices. However, we note that recruitment 

practices have been challenged as discriminatory under the 

1964 Civil Rights Act. 42 U.S.C.A. 9 2000e - 2(a)(l), (21, 

which orohibits discrimination in employment on the basis Of 

race, color, religion, sex, or national-origin. See United 

States v. Inspiration Consolidated Copper Co., [lml 6 mpl. 

Prac. Dec. (CCH) (18918; Strain v. Philpott, 119711 4 Empl. 

se also V.T.C.S. art. 6252-16. 

XKoritv to select and appoint 

Prac. Dec. (CCH) 117521. 5 

Thus. the Board has the ai 

administrative officers by any procedure it determines, as 

long as its action is not unreasonable, arbitrary, capricious, or discriminatory. 

Your second question is whether the notice for the 

action taken complied with the Open Meetings Law, section 

3A, article 6252-17, V.T.C.S. Notice posted by the Board 

for its July 7, 1977, meeting included a copy'of the agenda 

for the meeting, which contained the following item: 
Honorable J. C. Martin, Jr. - Page 3 

Executive Session 

18. Discussion of personnel changes 

(pp. 21-26). 

The action taken by the Board was the approval in 

open meeting of the following motion: 

The Board may meet in executive session to consider the 

appointment, employment, evaluation, reassignment, duties 

discipline or dismissal of officers and employees, providing 

it first convenes in an open session for which the requisite 

notice has been given and publicly announces that a closed 

session will be held under a specified section which authorises the holding of the closed session. V.T.C.S. art. 

6252-17, 5 2(a), (9). See Attorney General Opinion H-496 

(1975). Written noticeof the "date, hour, place, and 

subject of each meeting held by a governmental body" must 

be given as prescribed by section 3A of the Open Meetings 

Act. The notice must be "sufficiently specific to apprise 

the public in general terms of each subject to be discussed." 

Attorney General Opinion B-662 (1975) at 3. The notice 

should set out any special matters to be considered or any 

matter in which the public has a particular interest. Attorney 

General Opinion M-494 (1969). 

"In view of the official creation of 

our System and in order to be consistent 

with the printed University System of 

South Texas budget, that Dr. D. Whitney 

Balladay be named Chancellor of the 

University System of South Texas and that 

Dr. B. Alan Sugg be named President of 

Corpus Christi State University and that 

his name be inserted in that budget." 

The adeauacv of notice concerning the subject matter 

at a meeting-was-at issue in Lower Colorado River Authority 

v. City of San Marco?., 523 S.W.2d 641 (Tex. 1975). LCRA 

attempted to increase electric rates in the city of San 

Marco6 at a meeting held October 19, 1972. The notice of 

that meeting made no reference to rates. At another meeting on May 24, 1973, notice of the meeting included a statement that the Board would consider other matters concerning 

the Authority's operations 

including the ratification of the prior 

action of the Board taken on October 19, 

1972, in response [sic] to changes in 
. ’ 

, , 

Honorable J. C. Martin, Jr, - Page 4 (H-1045) 

electric power rates for electric power 

sold within the boundaries of the City 

of San Marcos, Texas. 

The Texas Supreme Court considered this notice and held: 

The notice of the 1973 meeting is not 

as clear as it might be, but it would alert 

a reader to the fact that some action would 

be considered with respect to charges for 

electric power sold in San Marcos. In our 

opinion the notice was sufficient to comply 

with the statute. 

Id. at 646. See also Texas Turnpike Authority v. City of Fort -- 

Worth, 20 Tex. Sup. Ct.~ J. 492 ( JULY 27, 1977) . 

In Open Records Decision No. 103 (19751, we held that 

information which would disclose the identity of an employee 

evaluated and discussed in a properly closed session, and 

on which the board took no official action, is excepted 

from required public disclosure by section 3(a) (1) and 

3(a) (2) of the Open Records Act, article 6252-17a, V.T.C.S. 

Information reflecting discussion of personnel matters 

properly held in closed session is excepted from required 

disclosure under sections 3(a) (1) and 3(a) (2) of that Act. 

Open Records Decision Nos. 93, 82, 81, 68 (1975); 60 (1974). 

The primary interest protected by section 2(g) permitting personnel matters to be discussed privately is that in 

avoiding possible unjustified harm to the reputation of the 

individual officer or employee under consideration. See 

Attorney General Opinion H-246 (1974). While this isan 

important interest, it cannot be permitted to completely 

eliminate the public's right to be notified with reasonable 

specificity of the subject matter to be considered at a 

meeting of a governmental body, particularly when the 

subject is one in which the public can reasonably be expected 

to have a special interest, such as the appointment of 

the chief executive officers of a university system and a 

state university. While the public is not entitled to observe or participate in the Board's closed discussion of 

the qualifications of individuals under consideration for 

appointment to such a position, we believe that the public 

is entitled to reasonable notice that the Board will consider filling such positions at its meeting. In addition, any 

vote or other final action on a matter discussed in closed 

session must be taken in an open meeting properly noticed in 

p. 4306 
. 

Honorable J. C. Martin, Jr. - Page 5 

accord with section 3A. V.T.C.S. art. 6252-17, 9 2 (1). 

Thus, the legislature has decided that the governing body 

must inform the public of the fact of its action, even though 

it may deliberate in private. 

In our view, an item stating only that the Board 

would meet in executive session on "Discussion of personnel 

changes" did not provide adequate public notice that the 

Board would consider acting to fill the positions of chancellor and university president at that meeting. The term 

"personnel" is so general that it could apply to a large 

number of subjects that might come before the Board. Consequently, we do not believe the notice given complied with 

the Act's subject matter notice requirement in this instance. 

It is possible that the appointments will not be judicially challenged, but if it is properly challenged action 

taken at a meeting not held in compliance with the Open 

Meetings Law is voidable by the courts. Lower Colorado River 

Authority v. City of San Marcos, supra; Attorney General 

Opinions H-662, H-594 (1975). If the Board decides to consider ratifying the appointments at a future meeting, it 

must post adequate notice of such proposal. See Attorney - 

General Opinion H-419 (1974). 

SUMMARY 

The Board of Directors of the Texas 

A & I University system has authority 

to select and appoint administrative 

officers by any procedure it chooses, 

as long as its action is not unreasonable, 

arbitrary, capricious, or discriminatory. 

Notice of an executive SeSSiOn on 

"Discussion of personnel changes" is not 

sufficiently specific as to subject matter 

to comply with the Open Meetings Act 

notice requirement in regard to the appointment of a university system chancellor and a 

university president, since the positions 

are ones in which the public can reasonably 

be expected to have a special interest. 
- 

Honorable J. C. Martin, Jr. - Page 6 (R-1045) 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

jst 

p. 4308