DAN MORALES

ATTORNEY GENERAL 

# QBffice

oftip!Wornep

QBeneral .$Mate of ‘Qexae
June lo,1998
Mr. Dehnar L. Cain General Counsel Opinion No. DM-478 The Texas A&M University System 301 Tarmw, 6th Floor College Station, Texas 77843-1230 Re: Whether recently enacted Government Code section 551.126,an Open Meetings Act provision authorizing governmental bodies tohold meetings by videoconference call, applies to a governing board of an institution of higher education, and related questions (RQ-1040)
Dear Mr. Cain: On behalf ofthe board ofregents ofThe Texas A&M University System, you ask about the relationship between two sections ofthe Open Meetings Act - Government Code section 551.126,’ arecently enacted provision authorizing governmental bodies to hold meetings by videoconference call, and Government Code section 551.121, aten-year-old provision authorizing agoverning board of an institution of higher education to hold a meeting by telephone conference call in certain situations. You suggest that section 551.126 doesnot apply to any meeting of agoverning board of an institution of higher education and that any meeting of a goveming body of an institution of higher education conducted by videoconference call is governed only by section 551.121. We conclude that both sections apply to a governing body of an institution ofhigher education. Chapter 551ofthe Government Code, the codification ofthe OpenMeetings Act, subchapter F, contains several provisions permitting meetings by teleconference and videoconference. Section 551.121, which was enacted in 1987: authorizes the governing board of an institution of higher education to conduct a meeting by telephone conference call under certain conditions. Itprovides in pertinent part as follows:

(II)This chapter does not prohibit the governing board of an institution of higher education from holding an open or closed meeting by telephone conference call.

‘The Seventy-ffi Legislature

nacted two pmvisions currently codified asGovernmen

t Code section 551.126. Throughout thisoption, WC

addnssonlysection

551.126 asenacted

by Act ofMay30,1997,75tb Leg., RS., cb. 1038, 1991 Tex. Gen. Laws 3896,3896 (eff. Sept. I, 1997).

=SeeAct of June 1,1987,7Oth Leg., RS., ch. 964.5 4,1987 Tex. Gem. Laws 3282.3283.Mr. Dehmr L. Cam - Page 2 (DM-478)

(c) A meeting held by telephone conference call may be held only iE (1) the meeting is a special called meeting and hmnediate action is required, and (2) the convening at one location of a quorum of the governing board is diffkult or impossible. (d) The telephone conference call meeting is subject to the notice requirements applicable to other meetings. (e) The notice ofthe telephone conference call meeting must specify as the location of the meeting the location where meetings of the governing board areusually held. For ameeting ofthe governing board of auniversity system, the notice must specify as the location of the meeting the board’s conference room at the university system office. (t) Each part ofthe telephone conference call meeting that is required to be open to the public shall be audible to the public at the location specified in the notice of tbe meeting as the location of the meeting and shall be tape recorded. The tape recording shall be made available to the public. Gov’t Code § 551.121. Recently enacted section 551.126,which authorizes videoconference call meetings, to govemmental bodies generally, providing in pertinent part:

- (a) Except as otherwise provided by this section, this chapter does not

prohibit a governmental body from holding an open or closed meeting by videoconference call. (b) A meeting may be held by videoconference call only if a quorum of the governmental body is physically present at one location of the meeting. (c) A meeting held by videoconference call is subject to the notice requirements applicable to other meetings in addition to the notice requirements prescribed by this section. (d) The notice of the meeting to be held by videoconference call must specify as a location of the meeting the location where a quorum of the governmental body will be physically present and specify the intent to have aquorum present at that location. In addition the notice,of the meeting must specify as a location ofthe meeting each other location where amember of

p. 2706Mr. Dehnar L. Cain - Page 3 (~~-478)

the governmental body who will participate in the meeting will bephysically present during the meeting. Each ofthe locations shah be open to the public during the open portions ofthe meeting. (e) Each portion of a meeting held by videoconference call that is required to be open to thepublic shall be visible and audible to the public at each location specified under Subsection (d). (t) The governmental body shall make at least an audio recording ofthe meeting. The recording shall be made available to the public. (g) Each location specified under Subsection (d) shall have two-way communication with each other location during the entire meeting. Each participant in the ‘videoconference call, while speaking, shall be clearly visible and audible to each other participant and, during tbe open portion of the meeting, to the members ofthe public in attendance atthe location ofthe meeting. Id. §551.126. Subsections (h) and (i) govern the quality of audio and video signals. Subsection (j) permits agovernmental body to allow amember ofthe public to testify at ameeting kom aremote location by videoconference call, without regard to whether amember ofthe governmental body is participating from aremote location. To summarize the pertinent highlights of these provisions, section 551.121 anthorizes the governing board of an institution ofhigher education tohold ameeting.by telephone czmfemncecall only ifthe meeting is a special called meeting regarding a matter requiring immediate action and it is difficult or impossible to convene a quorum of the governing board inone location. The open portions ofthe telephone conference call meeting must be audible to the public atthe location the governing board usually meets. Section 551.121 contemplates that aquorum ofthe governing board isnot present in one location Section 551.126,on tbeother hand, authorizes any governmental body to hold any meeting, notjust a special called meeting, by videoconference call ifa quorum of the governmental body ispresent atone location. Any open portion ofthe meeting must be open to the public, not only at the location of the quorum, but also at every remote location from which a member participates. There must betwo-way video communication between all locations. The Texas A&M University System suggests that section 551.126 is inapplicable to governing boards of institutions of higher education because section 551.121 is specific to such bodies and predates section 551.126. We seeno reason to exclude governing boards of institutions ofhigher education from the scope of section 551.126. First, a governing board of an institution of higher education is a “governmental body” within the meaning of section 551.126.’ Furthermore, sections551.121and551.126innowayconflict. Section551.121allowsagovemingboardofan

‘See Gov’t Code 5 551.001(3)(A) (defhition of “govmunental body”).

p. 2707Mr. Dehnar L. Cain - Page 4 (DM-478)

institution of higher education to conduct a meeting by telephone conference call in certain very liited circumstances - when aquorum cannot be present for a special called meeting regarding a matter requiring immediate action. Section 551.126 is broader, applying to governmental bodies generally, and authorizing any meeting by videoconference call if a quorum of the governmental body ispresent in one location andthe governmental body adheres to various special requirements. Govermnent Code section 551.125,which alsopredates4section 551.126,is quite similar to section 551.121, authorizing governmental bodies to hold emergency meetings by telephone conference call when itis difficult orimpossible to convene aquorum in one location. The availability oftelephone conference call meetings to all governmental bodies further supports our conclusion that the legislature intended the telephone conference call statutes and section 551.126to be read together to apply to different types ofmeetings - a special oremergency meeting where aquorum cannot be present in one location in the case ofthe telephone conference call statutes and aregular meeting where a quorum is present in one location in the case of section 551.126. The Texas A&M University System asksifitmay hold aregular meeting, atwhich aquorum is present but at which other members are unable to personally attend, with participation of the nonpresent members by telephone. We conclude that it may not. The Open Meetings Act contemplates that members of a governmental body participating in ameeting must be physically present unless expressly authorized to participate by other means. See Attorney General Opinions DM-207 (1993), JM-584 (1986). Thus, this office has concluded that in the absence of specific legislative authorization, a member may not participate in ameeting via telephone conference call orvideo transmission. See id We believe such legislative authorixations must be strictly construed and may not be expanded to allow exceptions not expressly contemplated and authorized by the legislature. Section 551.121 permits The Texas A&M University System board of regents to conduct a meeting by telephone conference call only if the meeting is a special called meeting regarding amatter requiring immediate action anditis difficult or impossible to convene a quorum ofthe board atone location. Section 551.121did not apply to regular meetings ofthe board regents before the enactment of section 551.126 and it doesnot apply to regular meetings now. Ifthe board of regents wishes to allow nonpresent members to participate in aregular meeting from a remote location, it must do so by videoconference call under section 551.126. A quormn ofthe board of regents must bepresent in one location andmembers ofthepublic must have accessto all locations. We have also been asked if the governing board of an institution ofhigher education may
“continue to use real-time videoconferencing as a means of holding board meetings under the authority gmnted to such boards to hold telephonic meetings” under section 551.121. This question requires us to addrtxs two issues:first,whether videoconference call tedmo~ogy may be used fora section 551.12 1meeting,and,ifso, whether avideuconference callmeeting under section 551.121 must adhere to section 551.126 requirements, such as public access to remote locations or transmission quality standards, which section 551.121does not impose

‘Government Code .ection 551.125 was enacted in 1995. See Act of May 29,1995,74thLeg., R.S., ch 1046, 1995 Tex. Gen. Laws 5193.5193.

p. 2708Mr. Delmar L. Cain - Page 5 (~~-478)

With respect to the first issue, section 551.121 authorizes a special called meeting by a specific technology --telephone conference call. Asnoted above, webelieve section 551.121 must be strictly construed. Thus, we conclude that a section 551.121meeting must be conducted by the technology specified by the legislature - telephone conference call. Whether a specific technology con&itutes atelephone conference call isaquestion offactbeyond the purview ofthis office. Itmay be the case that The Texas A&M University System video network uses the same technology as a telephone conference call, transmitting both an audio and avideo signal. In that case, we believe section 551.121would be satisfied by use ofthe video network. If the technologies are different, we see no reason why The Texas A&M University System board of regents could not use both technologies intandem. Useoftelephone conference call technology would satisfy section 551.121, and section 551.121 certainly does not preclude the use of additional technologies that provide additional access to the public. We donot believe, however, that the video network may be used in lieu of atelephone conference call ifthe technologies are different.’ With respect to the second issue, assuming that the video network may be used to conduct asection551.121meetin&wedonotbelievethemeetingissubjecttosection551.126requirements not applicable to ameeting under section 551.121. Thus, forexample, thepublic need not be granted access to the remote locations nor must the transmission quality comport with section 551.126 standards. We stress, however, that section 551.121 only applies to a special called meeting regarding amatter requiring immediate action and forwhich itisdifficult or impossible foraquorum ofthe board ofregents to convene at one location.
In sum, section 551.121 permits a special called meeting of a governing board of an institution of higher education to be conducted by telephone conference call only if the meeting pertains to a matter requiring immediate action and it is difficult or impossible for a quorum to convene at one location. Section 551.126permits any govermnental body, including a governing board of an institution ofhigher education, to hold ameeting by videoconference call if aquorum ispresent in one location. A governing body ofan institution ofhigher education may not conduct aregular meeting by telephone conference call. A section 551.121 special called meeting may be transmitted by video ifthe video transmission usestelephone conference call technology or is used in addition to telephone conference call technology.

‘We have received a letter from your office describing the video network at issue, the Trans-Texas Videoconference Network The letter states that the network “provides for real time audio and video hansmission for mukiple users. It operates using cmnpd video techdogy and telephone lines.” Letter tinm Genevieve G. Stubbs, Associate General Couascl, The Texas A&M University System, Office of General Counsel (Jan. 9, 1998). This description suggests that the network uses telephone conference call tccbnology. As noted above, however, whether a pattieular network uses telephone conference call technology is ultimately a fact detcrminatioa and is thaefore beyond the purview of an attorney general opinion. Tbia determination must be made by ‘TheTexas ABrM University System in the fmt instance.

P. 2709Mr. Delmar L. Cain - Page 6 (DM-478)

SUMMARY Govermnent Code section 551.126 permits any governmental body, including a governing board of an institution of higher education, to hold a meeting by videoconference call if a quorum is present in one location. Section 551.121permits a special called meeting of a governing board of an institution ofhigher education to be conducted by telephone conference call only ifthe meeting pertains to amatter requiring immediate action and it is difficult orimpossible for aquorum to convene atone location. A goveming body of an institution ofhigher education may not conduct aregular meeting by telephone conference call. A section 551.121 special called meeting may be tmnsmitted by video ifthe video transmission uses telephone conference call te&nology orisusedin addition totelephone conference call technology.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHJRLEY Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General

p. 2710