OFFlCE OF THE ATTORNEV GENERAL. STATE OF TEXAS 

JOHN CORNYN 

November 20,ZOOO 

Mr. Thomas A. Davis, Jr. 

Director 

Texas Department of Public Safety 

P.O. Box 4087 

Austin, Texas 78773-0001 

Opinion No. JC-0308 

Re: Whether attendance at a legislative hearing 

by a quorum of members of a state 

governmental body is subject to the Open 

Meetings Act (RQ-0243-K) 

Dear Mr. Davis: 

You have requested our opinion as to whether attendance by a quorum of members of the 

board of a state governmental body at a legislative hearing is subject to the Open Meetings Act 

(“Act”), chapter 55 1, Government Code. For the reasons set forth below, we conclude that such 

attendance constitutes a public meeting of the board under the Act, if one or more members 

participates in a discussion of matters within the board’s jurisdiction. 

You explain that the Public Safety Commission (“Commission”), composed of three 

members, frequently attends the hearings of certain legislative committees that “concern matters 

within the purview of the Commission’s duties and powers.“’ You note that legislators often 

“recognize the presence ofthe commissioners, encourage statements or comments, or make inquiries 

of them regarding Department business.” Request Letter, note 1, at 1. You ask whether the 

Commission must itself post notice of these hearings when a quorum of its members attends. See 

id. at 2. 

The Act defines “meeting,” inter alia, as: 

a deliberation between a quorum of a governmental body, or between 

a quorum of a governmental body and another person, during which 

public business or public policy over which the governmental body 

has supervision or control is discussed or considered or during which 

the governmental body takes formal action. 

‘Letter from Mr. Thomas A. Davis, Jr., Director, Texas Depatment of Public Safety, to Honorable John 

Comyn, Texas Attorney General at 1 (June 6,200O) (on tile with Opinion Committee) [hereinafter Request Letter]. 
Mr. Thomas A. Davis, Jr. - Page 2 (X-0308) 

TEX. GOV’T CODE ANN. 3 551.001(4)(A) (V emon 1994). A “deliberation” is “a verbal exchange 

during a meeting between a quorum of a governmental body, or between a quorum of a 

governmental body and another person, concerning an issue within the jurisdiction of the 

governmental body or any public business.” Id. 5 551.001(2). Thus, in the circumstances you 

describe, if a quorum of members ofthe Commission engages in a verbal exchange with legislators 

or members of their staff, those remarks constitute a deliberation. See id, see also Bexar Medina 

Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n, 2 S.W.3d 459,461~62 (Tex. 

App.San Antonio 1999, pet. denied) (verbal exchange at informational gathering of water district 

board with landowners where one board member asked questions and another board member 

answered questions was a “‘meeting’ for purposes of the Open Meetings Act,” even though board 

members did not discuss business among themselves). Ifthe deliberation relates to “public business 

or public policy over which the [Commission] has supervision or control,” the legislative hearing 

becomes a“meeting”oftheCommission. TEX.GOV’TCODEANN. 5 551,001(4)(A) (Vernon 1994). 

In Attorney General Opinion JC-0248, we said that when a quorum of the members of a 

governing body of a state agency attends a public hearing held by the Sunset Advisory Commission, 

and one or more of the members of the governing body testifies, answers questions, or in any other 

manner furnishes information to the Sunset Advisory Commission, the agency itself is deemed to 

have held a meeting under the Act, and is, as a result, required to post the requisite notice in 

accordance with the Act’s provisions. See Tex. Att’y Gen. Op. No. JC-0248 (2000) at 2. Attorney 

General Opinion JC-0248 relied in large part on an earlier opinion, Attorney General Opinion JC0203, which held that “[wlhen a quorum ofmembers of a standing committee of the Harris County 

Hospital District attends a speaking engagement or meeting conducted by another entity and a 

member participates in a discussion of matters of public business or public policy within the 

committee’s supervision, the committee will be subject to the OpenMeetings Act.” Tex. Att’y Gen. 

Op. No. JC-0203 (2000) at 5. The circumstance you describe is entirely analogous to those 

addressed in Attorney General Opinions JC-0203 and JC-0248. As a result, when a quorum of the 

members of a board of a state agency attends a legislative committee hearing, the board is itself 

subject to the provisions ofthe Act if one or more members of the board participates in a discussion 

on matters within the board’s jurisdiction. 

Unlike the situation in each of those prior opinions, however, the matter of notice in the 

present instance is more problematic. Agencies with statewide jurisdiction are required to post 

notice of their meetings “for at least seven days before the day of the meeting.” TEX. GOV’T CODE 

ANN. § 55 1.044(a) (Vernon Supp. 2000). Presumably, an agency with statewide jurisdiction is able 

to furnish more than seven days notice to the state agencies that it summons to appear before it. See 

id. The legislature, on the other hand, is not compelled to do so. Section 55 1.046 provides that 

“[tlhe notice of a legislative committee meeting shall be as provided by the rules of the house of 

representatives or ofthe senate.” Id. 5 55 1.046 (Vernon 1994). As you indicate, “legislative posting 

time requirements are generally shorter than the seven-day posting required for state agencies.” 

Request Letter, supra note 1, at 2. A state agency that appears before a legislative committee may 

thus find it impossible to comply with the posting requirements of the Act. 
Mr. Thomas A. Davis, Jr. - Page 3 (X-0308) 

Section 55 1.045 permits a governmental body to hold an “emergency” meeting under certain 

circumstances. See TEX. GOV’T CODE ANN. § 551.045 (Vernon 1994). In such an instance, notice 

is sufficient if it is posted for at least two hours before the meeting begins. See id. 5 55 1.045(a). But 

the requirements for an emergency meeting are quite strict. Such a meeting may be held only when 

“immediate action is required of a governmental body” in response to either “( 1) an imminent threat 

to public health and safety; or (2) a reasonably unforeseeable situation.” Id. 5 55 1.045(b). The 

nature of the emergency must be clearly identified in the notice. See id. § 55 1.045(c). As the court 

said in River Road Neighborhood Association v. South Texas Sports, 720 S.W.2d 55 1, 557 (Tex. 

App.-San Antonio 1986, writ dism’d w.0.j.): 

[T]he term generally refers to an unforeseen combination of 

circumstances that calls for immediate action; a sudden orunexpected 

occasion for action. The mere necessity for quick action does not 

constitute an emergency where the situation calling for such action is 

one which reasonably should have been anticipated. The Texas 

Supreme Court has said that an emergency is a condition arising 

suddenly and unexpectedly, not caused by any neglect or omission of 

the person in question, which calls for immediate action, 

Id. (citations omitted) 

In our opinion, an emergency based on a reasonably unforeseeable situation may arise when 

a state agency is unexpectedly summoned with less than seven days notice to appear before a 

legislative committee. The circumstances arise suddenly, are not caused by any neglect or omission 

of the agency and call for immediate action. When a quorum of the board of a state agency appears 

voluntarily before a legislative committee, however, we do not believe that immediate action can 

reasonably be said to be required. In such case, the agency has two options available. It may 

determine that a quorum of the board should not attend the hearing. In the alternative, it may 

endeavor to determine, at least seven days in advance of any potential hearing, a range of dates 

during which the committee may consider matters relevant to the concerns of the agency. Then it 

may post notice announcing ameeting ofthe agency’s board on the first ofthose dates. The meeting 

may then be continued from day to day, without the need for reposting notice, until the legislative 

committeereaches the issue ofinterest to the agency. SeeRivera v. Cityoflaredo, 948 S.W.2d 787, 

793 (Tex. App.San Antonio 1997, writ denied); Tex. Att’y Gen. Op. No. DM-482 (1998); see also 

Tex. Att’y Gen. Op. No. JC-0285 (2000). 

You also ask whether, when a quorum of the board of a state agency attends a legislative 

hearing, “minutes must be kept in accordance with section 551.021 of the Act.” Request Letter, 

supra note 1, at 2. Section 551.021 requires that “[a] governmental body shall prepare and keep 

minutes or make a tape recording of each open meeting of the body.” TEX. GOV’T CODE ANN. 

5 551.021(a) (Vernon 1994). Because, as we have concluded, the attendance of a quorum of 

members ofthe board of a state agency at a legislative committee hearing itselfconstitutes ameeting 
Mr. Thomas A. Davis, Jr. - Page 4 (X-0308) 

for purposes of the Act, it follows that the board is required to prepare and keep minutes or make a 

tape recording of that meeting in accordance with section 55 1.02 1. 

We are aware that the solution offered to the problem you pose is an inelegant one. We are 

mindful ofthe difficulties involved in reconciling the legislature’s need to receive information from 

state agencies with the agencies’ duty to provide notice under the Act, and we have addressed this 

issue within the bounds of the laws as enacted by the legislature. The legislature is the proper body 

to resolve these matters as it deems appropriate. 
Mr. Thomas A. Davis, Jr. Page 5 c JC-0308) 

SUMMARY 

Attendance by a quorum of the members of the board of a 

state governmental body at a legislative hearing is subject to the Open 

Meetings Act if one or more members participates in a discussion of 

matters within the board’s jurisdiction. If the board is summoned 

with less than seven days notice by the legislative committee, it may 

invoke the emergency notice provisions of the Act. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General - Opinion Committee