Honorable David Wade 

Commlssloner 

Opinion No. Ii- 3 

Texas Department of Mental Health Re: Construction of 

and Mental Retardation 

P. 0. Box 12668, Capitol Station 

Article 6252-17, 

Vernon’s Civil 

Austin, Texas Statutes (the 

“Open Neet lnga 

Dear Dr. Wade: Act“). 

Your letter requesting an opinion of this office 

states: 

“In order for the Texas Board of Uental 

Health and Mental Retardation to more efflclently manage its affairs, It desires to 

dtvlde Its membership Into various committees. 

Those matter8 to be presented to the Texae 

Board of Mental Health and Mental Retardation 

would first be assigned to the appropriate 

committee. The various committees would at 

their discretion meet with members of the 

Texas Board of Mental Health and Mental 

Retardation staff to discuss and rtudy the 

matter before It and.would recommend a course 

of action to the Texas Board of Mental Health 

and Mental Retardation at Its open public 

meeting. Any member of the Texas Board of 

Mental Health and Mental Retardation could 

attend these committee meetings and dlecuss 

the matters under consideration but only 

co&nlttee members would be allowed to vote 

on what recommendation the committee was to 

make to the Texas Board of Mental Health and 

Mental Retardation. 

“These committee meetings would not be 

open to the public and no notice of euch meetlnge 

would be posted. 

-6- 
Dr. David Wade, page 2, (H-3) 

"Your opinion la reepectfully requested 

with respect to whether or not the procedure 

yAo;t;l?ed above violates Article 6252-17, 

. . . . 

Appropriate portions of Article 62 Vernon’s Texas 

Civil Statutes (the “Open Meetings Act" read a8 follows: 

“Section 1. (a) Except as otherwlae 

provided In thle Act, every regular, special, 

or called meeting or eeaslon of every governmental body ehall be open to the public. 

“(b) A ‘governmental body, ’ within the 

meaning of this Act, Is any board, commlsslon, 

department, or agency w,lthln the executive 

department of the etate, which Is under the 

direction of three or more-elected or appolntcd members. . .’ 

“Sec. 2. 

II 

. . . . 

“(d) The provisions of this Act shall not 

apply to periodic conferencee held among staff 

membere of the governmental body. Such staff 

meetings will be only for the purpose of 

Internal admlnlatratlon and no matters of 

public business or agency pollclee fihat affect 

public business will be acted upon. 

n 

. * . . 

“Sec. 3A. (a) Written notice of the 

date, place, and subject of each meeting held 

by a governukntal body shall be given before 

the meeting as described bg this Section.” 

The provlslone of Article 6252-17, V.T.C.S. are mandatory 

and are to be liberally construed to effect Its purpose. 

Toyah Ind. Sch. Met. 0. Pecoe - Ihretow Ind. Sch. Dizt ., 

66 s W 2d 371 (Tex.Clv.App. 1971 . The Coui33E 

that caee recited the leglelatlveJp~~p~~e for the enactment 
Dr. David Wade, page 3, (H-3) 

of the statute to be one”of aeIsurlng that the public has the 

opportunity to be Informed concerning the transactions of 

public bualness”, In determining whether a particular meeting 

of the School Board was to be declared voidable, the Court 

asked Itself: 

“IO fihe above .Btate legl8latlVe7 purpose 

effected 6y an Interpretation which declares 

that action taken at an Illegal meeting cannot 

be questioned?” (466 S.w.tiat 380) 

The Texas Board of Mental Health and Mental Retardation 

le a “governmental body” within the meaning of the statute. 

Texas Liquor Control &. v, Continental Dlitllllnn Salee 

199 S W 2 1009 1015 (Te Cl A 1947 I ) 

ii$‘meetl& ofdthe f;ll Board “fir ~t;eP~;rpoaeJo~d:rf~aelng 

and etudylng a matter and deciding upon a course of action 

Is required to be open to the public unless one of the 

etatutory exceptions applies, _ 

One of the exceptions provided by the Act Is: 

“(d) The provlolone of this Act shall 

not apply to periodic conferences held among 

staff members of the governmental body. 

Such staff meetings will be on1 for the 

purpose of Internal admlnlstrat --f on and no 

matters of public buslneee or agencycles 

that affect public buslnees will be acted 

upon. 

Tnls exception would be unnecessary unless the Act 

applies to meetings within the body other than formal board 

meetings. . 

Your letter Indicates an expectation that Board Members 

composing a committee created by the authority of the full 

Board would themselves periodically meet with the agency 

staff “to dlecuse and study the matter before It and. , , 

recommend a couree of action to the Texas! Board of Mental 

Health and Xental Retardation at Its open public meeting". 

Paraphrasing the qu%etlon posed In the Toyah case, 

supra, we ask: 

-8- 
Dr. David Wade, page 0, (H-3) 

“Is the leglrlatlve purpose effected 

by an Interpretation which declares that 

Board members acting aa an official committee 

of the Board may make decisions at private 

meetings clored to the public, that the full 

Board might lawfully accomplish Only at a 

meeting open to the public?” 

A committee, assuming that Its members did not compose 

a quorum of the full Board, would have no power to bind the 

Board on matters before It. Nevertheless a real danger 

exists that the full Board might become merely the ‘rubber 

etamp” of one or more of Its committees and thereby deprive 

the public of access to the effective decision-making 

process. Cf. Acord v. Booth, 35 Utah 279, 93 Pac. 734(1X)8). 

A holding that a committee, which maket recommendations 

only, Is governed by the Open Meetings Act la not without 

precedent. The duty of the State Textbook Committee, 

prescribed by statute, la to recommend to the State Commlealoner 

of Fducatlon a complete list of textbooks which It approves 

for adoption. Books not recommended by It cannot be adopted 

by the State Board of Education. In Attorney General’s 

Opinion M-136(1967) It was held that the exclusion of books 

from echoole Is an Important exercise of a governmental 

function, undertaken by an agency of the government, whatever 

Its name, within the spirit and Intent of the Act and that, 

therefore, the Act applied. 

In Attorney General’s Opinion M-220(1968), the term 

“meeting”, as used In the Open Meetings Act; was deflned 

as “one In which thr cembere of the governmental body 

transact official bus-with which such agency 1~s charged 

to perform”. lhe word “transact” was not defined. However, 

It connotes an Interchange of Ideas or actions and IE broader 

than the word “contract”. A “transaction” may Involve 

negotiations *or dealings only partly concluded. See Eozled 

;;,;~;$$n, 58 N.W.2d .313 (Mlnn., 1953); 

ommleelon v. Talley Induet;: 

Webster’s ‘Zhtzd 

Clr .l*); Kn pfl S k , 106 N W 

N~wv~nt~r~atlonal~Mctlona 

Black’s Law Mctlonary, 4th Ed ., P. ; 

335. 
Dr. David Wade, page 5, (H-3) 

Whatever are the llmltatlons placed on the aCtlVltleS 

of Board Membere meeting in private, It 18 clear that Staff 

members of the governmental body can meet and Confer pmely 

+ 

-Tar purpose8 of Internal admlnlstratlon and that no 

ma ter affecting public bualneac may be acted upon at Such 

meetings. Since Staff members themaelve~e no power to 

act for the Board In the formal sense, the LeglSlatUre muet 

have had In mind actions OS a leaa final nature when It 

prohibited staff members from privately meeting to act on 

public business. The obvious purpose was to avoid pro forma 

public approval by the agency of matters already privately 

determined by Its etaff, and to Insure that policy decisions 

and deliberations would not be made In bureaucratic laolatlon, 

but exposed to the view of the lntereeted public. A Staff 

meeting called for the purpoee of making recommendations to 

the bard for action In matters before the Board would seem 

to be within the prohibition. 

It would be strange If the Legislature Intended that 

staff members could act otherwlee at private staff meetings 

so long as one or more members of the Board, acting 85 a 

committee, were present, and It la the opinion of this 

I office that the Legislature had no @uch intention. It 

follows that a committee of Board members mey not meet 

privately and without complying with the provlslona of 

Article 6252-17 with staff membere for the purpose of 

formulating recommendations to be made to the full Board 

concerning the dlepoeltlon of matters before the Board. 

Therefore, our answer to the question posed by your letter 

as It applies to this particular eltuatlon, Is In the 

negative. 

This opinion must be.construed as limited to the 

question you asked. It Is our understanding that the Poard 

Is concerned primarily with formulating basic and general 

pollclee and not with particular, Individual casee or case 

histories. Art. 5547-202, Sec. 2.11(a), V.T.C.S. It Is 

not our Intent to hold that Information concerning Identified 

lndlvlduala should be made public, In violation of Sec. 

2.23(c) of Art. 5547-202, V.T.C.S. 

-!O- 
. 

. Dr. rbvld Wade, page 6, (H-3) 

-SUMFlARYOfficial commltteec compoced of members 

of governmental bodice regulated by Article 

6252-17, Vernon’8 Texas Civil Statutea, 

meeting to formulate recommendations for 

the disposition of matters pendlng before 

the parent body, must comply with the 

“notice” and “open meeting” provlalona of 

Article 6252-17, 

-Very truly youre, 

Attorney General of Texas 

APPROVED: 

OEN M BARRON 

krst ieelztant 

T-v 

h3Yzs++& 

DAVID M. KENDALL, Chairman 

Opinion Committee 

-II-