ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### The Honorable John E. Davis Chair, Committee 

### on Economic and Small Business Development Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910 Dear Representative Davis: January 23, 2012
Opinion No. GA-0908 Re: Whetherthe members ofthe board oftrustees of the Clear Lake City Community Association may hold a meeting by means of a telephone conference call (RQ-0989-GA)

You ask whether members of the board of trustees of the Clear Lake City Community Association (the "Association") may hold a meeting by means ofa telephone conference call.I As you indicate, since 2007, aproperty owners' association in a county with apopulation of 2.8 million or more, like the Association at issue here, has been, under particular circumstances, subject to the Open Meetings Act (the "Act") "in the same manner as the governing body of a governmental body." TEX. GOv'T CODE ANN. § 

### 551.0015(b) (West Supp. 2011). The Act authorizes a governmental body to conduct a meeting by telephone conference call only under specified, limited conditions. Most governmental bodies may hold a meeting by telephone conference call only if "(1) an emergency or public necessity exists within the meaning of Section 551.045 ofthis chapter; and (2) the convening at one location ofaquorum ofthe governmental body is difficult or impossible; or (3) the meeting is held by an advisory board." Id. § 

### 551.125(a) (West 2004). You do not suggest that any ofthese circumstances are relevant to your question. You first ask whether the attendance by one member ofthe Association's board by means of a telephone conference call would implicate the Act. In a prior opinion that relied on previous attorney general opinions, this office declared that "ifa quorum ofa commissioners court appears at the meeting location, section 551.125 does not authorize other members to participate from other locations by telephone conference call." Tex. Att'y Gen. Op. No. JC-0352 (2001) at 4. See also 

### Tex. Att'y Gen. Op. Nos. JC-0194 (2000) at 2 (concluding that Act does not permit a governmental body to allow a board member to participate in a regular meeting by telephone); DM-207 (1993)

ILetterfromHonorableJohnE. Davis, Chair, HouseCommitteeonEconomic and SmallBusinessDevelopment, to Honorable GregAbbott, Attorney General ofTexas (July 22, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").The Honorable John E. Davis

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at 3 (notingthatthe Act assumes that "members will bephysicallypresent at the location designated in the notice"); JM-584 (1986) at 7 (concluding that a meeting conducted by teleconference call among geographically dispersed board members is not "opento the public" as requiredby the Act). We conclude that the Association would violate section 551.125 of the Act by permitting one member ofits board to participate in a meeting by telephone conference call. Certain statutes outside the Act authorize specific entities subject to the Act to hold their meetings by telephone conferencecall or similartelecommunications device. Forexample, section 322.003 ofthe Government Code declares that "[a]s an exception to Chapter 551 and other law, if a meeting is located in Austin and thejoint chairs ofthe [Legislative Budget Board] are physically present at a meeting, then any number ofthe other members ofthe board may attend the meeting by use oftelephone conferencecall, video conference call, orother similartelecommunication device." TEX. GOV'T CODEANN. § 322.003(d) (West Supp. 2011). Other statutes specificallypermitvarious governmental bodies to hold their meetings by telephone conference call ifcertain conditions are met. See, e.g., TEX. AGRIc. CODE ANN. § 62.0021(a) (West 2004) (State Seed and Plant Board); TEX. FIN. CODE ANN. § 11.106(c) (West 1998) (Finance Commission); TEX. GOV'T CODE ANN. § 501.139(b) (West 2004) (Correctional Managed Health Care Committee). Thus, the Legislature knows how to authorize a telephone conference call under particular circumstances. You point to no statute, and we are aware ofnone, authorizing an entity such as the Association to hold its board meetings by telephone conference call. You ask, however, whether twoprovisions oftheBusinessOrganizationsCode (the "Code") furnish authority for the Association's board members to hold their meetings via telephone conference call. Request Letter at 2. You note that the Association is a nonprofit corporation "originally formed under the Texas Corporation Act, now re-codified as the Texas Business Organizations Code." Id. The statutes provide, in relevant part: (a) Subject to this code and the governing documents of a domestic entity, the owners, members, or governing persons of the entity, or acommittee ofthe owners, members, orgoverningpersons, may hold meetings by using a conference telephone or similar communications equipment, or another suitable electronic communications system, including videoconferencingtechnology or the Internet, or any combination, ifthe telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting. TEX. Bus. ORGS. CODE ANN. § 6.002(a) (West 2010). Subject to the provisions of this code and the certificate of formation and bylaws ofa corporation, a meeting ofthe members of a corporation, the board of directors of a corporation, or any committee designated by the board ofdirectors ofa corporation mayThe Honorable John E. Davis

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[d. § 22.002. be held by means of a remote electronic communications system, including videoconferencing technology or the Internet, only if: (1) eachpersonentitledto participatein the meetingconsents to the meeting being held by means ofthat system; and (2) the systemprovides access to the meeting in amanneror using amethodbywhich eachpersonparticipatinginthe meetingcan communicate concurrently with each other participant.

Section 6.002 of the Code is applicable generally to any "domestic entity" subject to this Code. See TEX. Bus. ORGS
.CODEANN. § 6.002 (West 2010). Likewise, section 22.002 ofthe Code applies to any meeting of the members or board of directors of a "corporation," defined as "a domestic nonprofit corporation subject to this chapter." [d. §§ 22.001 (defining "corporation"); 22.002 (allowing meetings by remote communications technology). These provisions ofthe Code are globally applicable to an entity like the Association, irrespective ofthe applicability ofthe Act. On the other hand, section 551.0015 of the Act specifically declares a "property owners' association," like the one that is the subject ofyour request, to be subject to the Act "in the same manner as ... a governmental body." See TEX. GOV'T CODE ANN. § 551.0015 (West Supp. 2011). Moreover, section 551.125 imposes strictlimitations upon any telephone conferencecall conducted by a governmental body. As a result, the general provisions ofthe Code that allow the Association, as a domestic entity or corporation, to hold a meetingby telephone conference call conflictwith the specific provisions ofchapter 551 that restrict the authority ofthe Association, as a governmental body, to hold a meeting by telephone conference call. The Code Construction Actprovides that, in theeventofconflictbetween a general and a specialprovision, the specialprovisionprevails, "unless the general provision is the later enactment and the manifest intent is that the general provision prevail." [d. § 311.026(b) (West 2005). City o/Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008) ("In determining legislative intent, we are . . . guided by the principle that a specific statute will ordinarily prevail over a general statute when the two cannot be reconciled."). Because, in this instance, sections 551.0015 and 551.125 ofthe Act are more specific provisions than either section 6.002 or section 22.002 of the Code, sections 551.0015 and 551.125 prevail. It follows that members ofthe boardoftrustees ofthe Association may not hold ameeting by means ofatelephone conferencecall, exceptin the limitedcircumstances describedin section 551.125 oftheGovernment Code.The Honorable John E. Davis

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### SUMMARY The members ofthe board oftrustees ofthe Clear Lake City CommunityAssociation, a "propertyowners' association" as defined in the OpenMeetings Act, chapter 551 oftheGovernmentCode, may not hold a meeting by means of a telephone conference call, even if only one member so participates, exceptin the limited circumstances described in section 551.125, Government Code.

DANIEL

### T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Very truly yours,

Assistant Attorney General, Opinion Committee