# OF TEXAS AUFWX-IN. **TEXAS** 78711

April 28, 1975 TheHonorable Eddie Bernice Johnson Chairperson, Labor Committee House of Representatives P. 0. Box 2910 **Aystin,** Texas 78767 Opinion No. H- 594 Re: Effect ofa commissioners court’s failure to ratify action ofa prior commissioners court creating a civil service system when it is alleged that the original action was taken in a proceeding which violated the Open Meetings Act. Dear Representative Johnson:

You have requested our opinion regarding the effect ofa commirsionerr court’s failure to ratify a prior commissioners court action that created a county civil service, when it is alleged thatthe original action was taken in a proceeding thatviolated the Open Meetings Act.

You state thatthe Tarrant County Commissioners Court adopted the provisions ofthe County Civil Service Act, article 237211-6, V. T. C. S., thereby creating a civil service system in Tarrant County. See Green v. Stewart, 516S. W. 2d 133 (Tex. Sup. 1974). A subsequently elected Commissioners Court was advised thatprior proceedings of the Court had not been held in strict compliance with the terms ofthe Open Meetings Act, article 6252-17, V. T. C. S. Itvoted to validate all prior proceedings of the Court since 1971, and to except from such validation the proceedings at which county civil service had been adopted. Following such action, the Court pronounced civil service tobe no longer in effect in Tarrant County,. The alleged defe,ct in the earlier meetings involved the posting ofnotice, andwe have been informed that there is a dispute regarding the facts. Although the Open Meetings Act does not explicitly provide for invalidation ofactions taken in violation of its requirements, three court decisions since 1971have recognized that:

p. 2645The Honorable Eddie Bernice Johnson, page 2 (H-594)
[t]he terms of article 6252-17 are mandatory so as to require at least substantial compliance with its provisions in order touphold proceedings to which the statute is applicable. Lipscomb Independent,School District v. County School Trustees of Lipscomb County, 498 S.W. 2d 364, 366 (Tex. Civ. App. --Amarillo 1973, writ ref’d., n. r. e. ). See also Hall v. Thomas, 474 S.W. 2d 276 (Tex. Civ. App. --Texarkana 1971, writ diam’d.‘); Torah Indeuendent School District v. Pecos-Barstow Indeuendent School District, 466 S. W:2d 377 (Tex. Civ. App. --San Antonio 1971, nowrit). Since an entity towhich theAct applies is authorized by its terms “to act only at a meeting which [is] open to the public, ” then

“[it] is an anomaly to say that a meeting, theholding ofwhich is forbidden by law, is a legal meeting. ” Togh, supra at 380. Action taken at a meeting which is notheld in compliance with the Gpen Meetings Law has been held to be voidable. Tovah, sunra. Attorney General Opinions H-419 (1974); M-494 (1969). Also see, La 18Tex.Sup. Ct. Journal No. 11, p1 125 (Dec. 11, 1974). The cases suggest that compliance with the provisions of the Act need be only “substantial. I’ m, s- at 380. The question of substantial~mmpliance, which necessarily involves determinations of fact, must be resolved eventually “in subsequent court proceedings initiated bypersons adversely affected by such action. ‘I B,
..‘itip’,r’%.a-t: p’
. : 378. In each of the three decisions we have mentioned, the validity ofthe proceeding had been challenged by an aggrieved party in an original court action. In the present instance, however, the Commissioners Court itself purported to render its.prior action void merely by failing to ratify it. We do notbelieve that such action was sufficient to abolish civil service in Tarrant County, in the absence of an adversary proceeding initiated by an aggrieved party. If such a proceeding ensues,. the factual issue of “substantial compliance” with thetermsof the Open Meetings Act can be appropriately resolved.

p. 2646The Honorable Eddie Bernice Johnson page 3 (H- 594)

SUMMARY A commissioners court’s mere refusal to ratify a prior action allegedly takenfinviolation of the Open Meetings Act does notin and, of itself have the effect ofinvalidating the prior action. Such invalidation can finally occur only after a finding of a lack of substantial compliance with the provisions of the Open Meetings Act arising from an adversary proceeding initiated byan aggrieved party. Very A truly yours;

// Attorney General of Texas APPROVED: 

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# hQ-av-w& DAVID M. KENDALL, First Assistant

Opinion Committee

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