DAN MORALES 

ATTORNEY GENERAL 

QBffice of t@ Bttornep QBeneral 

%tate of Z!Lexae 

March 4,1992 

Honorable Gary Watkins 

Committee on Higher Education 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-95 

Re: Whether a city council violates the 

Qpen Meetings Act when a majority of 

the council signs a letter that has not been 

authorized in an open meeting (RQ-252) 

Dear Representative Watkins: 

You ask whether members of a city council violate the Qpen Meetings Act, 

article 6252-17, V.T.C.S. (hereinafter the “act”), when the members, constituting a 

majority of the council, sign a letter expressing an opinion on matters relevant to the 

city government. You enclose as an example a letter signed by a majority of 

members of a city council, expressing the support of the “undersigned majority” of 

the city council for an attached resolution. While we can discuss relevant provisions 

of the act and case law with respect to questions of law raised by your inquiry, a 

determination of whether a violation of the act has actually occurred in a specific 

situation requires factual determinations, which we cumot make in an attorney 

general opinion. Your question is therefore considered hypothetically, without 

reference to any particular incident. For purposes of this~discussion, we will assume 

that (1) the letter in question concerns public business or public policy over which 

the governmental body has control or supervision, and (2) the letter has not been 

considered and approved in a meeting held in compliance with the act. 

We realize that a dispute may occur over whether a letter signed by a 

majority of a governmental body represents an “official” action or merely an action 

of each of a group of individuals who all happen to serve on the same governmental 

body. Every person has a First Amendment right to express an opinion. However, 

when a governmental body acts, the law requires that the action taken complies with 

its terms. It is a well established rule, predating the Qpen Meetings Act, that a 

governmental body must act as a body. Webster v. Tam & Paci$c Motor Transpoti 

Co., 166 S.W.2d 75 (Tex. 1942). The purpose of this rule 

p. 478 
Honorable Gary Watkins - Page 2 (DM-95) 

is to afford each member of the body an opportunity to be 

present and to impart to his associates the benefit of his 

experience, counsel, and judgment, and to bring to bear upon 

them the weight of his argument on the matter to be decided by 

the Board, in order that the decision, when finally promulgated, 

may be the composite judgment of the body as a whole. 

Id at 77. Presumably, when a group of people act in concert, some meeting of the 

minds has occurred to make that action possible. With respect to actions taken by 

governmental bodies, it is the process by which this meeting of the minds occurs that 

the act is intended to open to public scrutiny. Car Enters. Inc. v. Board of Ttzutees of 

Austin Zrufep. School D&., 706 S.W.2d 956, 960 (Tex. 1986) (the act is intended to 

safeguard the public’s interest in knowing the workings of its governmental bodies). 

While we are unable to anticipate every possible fact situation that might 

occur, we think an action taken by a quorum of a governmental body on a matter of 

public policy of concern to that governmental entity is not merely the action of each 

member of a group of individuals, but is an action of the governmental body. When 

a majority of a governmental body acts on a matter of public policy under its 

jurisdiction, even in a way that is not binding upon the governmental entity served 

by the body, the policy enunciated by the Texas Supreme Court in Webster suggests 

that such action must be taken by the governmental body as a whole, subject to the 

laws, including the Gpen Meetings Act, governing the behavior of the governmental 

body. Therefore, for purposes of this discussion, a letter signed by a quorum of a 

governmental body, concerning public business or public policy over which the 

governmental body has control or supervision, would normally be an official action 

of the signatory members subject to the requirements of the act. 

To accomplish its end, the act requires that every meeting of a governmental 

body, with certain narrowly drawn exceptions, be open to the public and that the 

public be given notice of meetings. V.T.C.S. art. 6252-17, $0 2,3k “Meeting,” for 

purposes of the act, is defined as 

any deliberation between a quorum of members of a 

governmental body, or between a quorum of members of a 

governmental body and any other person, at which any public 

business or public policy over which the governmental body has 

supervision or control is discussed or considered, or at which any 

formal action is taken. . . . 

P. 479 
Honorable Gary Watkins - Page 3 (DM-95) 

V.T.C.S. art 6252-17,s l(a). “Deliberation” is defined as 

a verbal exchange during a meeting between a quorum of 

members of a governmental body, or between a quorum of 

members of a governmental body and any other person, 

concerning any issue within the jurisdiction of the governmental 

body or any public business. 

Id g l(b). The act provides criminal penalties for a member of a governing body 

who knowingly calls or aids in calling an improper closed meeting. Id 3 4(a). The 

act also criminally sanctions a member of a governing body who knowingly conspires 

to circumvent the act by meeting with other members in numbers less than a 

quorum for secret deliberations. Za! 9 4(b). The act provides mandamus or 

injunction as civil remedies to stop, prevent, or reverse violations of the act. Id 

5 3(a). Actions taken by a governmental body in violation of the act are voidable. 

Id 

If it were established as a matter of fact that members of a governmental 

body had gathered together in numbers sufficient for a quorum to discuss the 

wording of a letter concerning public business or public policy over which the 

governmental body had control or supervision, and if such gathering were not open 

to the public or preceded by notice in compliance with the act, it would follow from 

the definitions quoted above that a violation of the act had occurred. 

A more problematic fact situation occurs when one or more members, but 

less than a quorum, drafts a letter, and then presents the material (or has the 

material presented) to the other signatories, always meeting in numbers less than a 

quorum In this way a “meeting” and a “deliberation” as defined in the act are 

arguably avoided because even though the verbal exchange among the council 

members may at any one time engage less than a quorum of the council, the verbal 

exchanges do not occur during a meeting where a quorum of members is 

simultaneously in each other’s physical presence.1 

IThe possibiity of fmdiog that deliberations ia violation of the act have occurred would be 

much less likely ia the situation where a letter was circulated among a quorum of the council, but 

where no two members of the council at any time discussed the contents of the letter. Agaia, however, 

the totality of circums~ would have to bc coasidcred if the governmental pody’s aetioas were 

chaUcnged under the ad. See Attorney General Opinions MW-32 (1979) (a procedure permitting 

individual members of a governmental body to write to the executive director suggesting items to place 

p. 480 
Honorable Gary Watkins - Page 4 (DM- 95 1 

In Hitt v. Mabv, 687 S.W.2d 791. (Tex. App.--San Antonio 1985, no writ), the 

court of appeals considered an appeal from a permanent injunction, issued by the 

district court, enjoining the San Antonio Independent School District from, among 

other things, conducting informal meetings or telephone conferences to discuss or 

decide on matters of public policy. The district court had found that such 

discussions or decisions were in violation of sections 2(a) and 3A of the act. Id at 

794. The event that caused the litigation in M&y was the discovery by the plaintiff 

that the San Antonio Independent School District intended to mail a letter to all 

parents in the district, “advising recipients of their voting rights and stating the 

message was a service of the school district’s Board of Trustees.” The plaintiff 

complained, among other things, that there had been no discussion of the letter in 

an open meeting of the board. Id. at 793. 

The court of appeals modified certain aspects of the injunction, but let stand 

a permanent injunction against the board enjoining them from: 

Arriving at a decision involving public business or public 

policy affecting SAISD by way of private informal meetings or 

conferences, including telephone polls of the members of the 

Board . . . . 

Id at 796. 

The argument set forth in the dissenting~ opinion in M&y is helpful in 

understanding the significance of the majority holding in that case. In dissenting 

from the majority holding, Chief Justice Cadena stated: 

There is another diffkuhy with the injunction as modified. 

Plaintiffs alleged that the use of telephone polls was a 

conspiracy to circumvent the provisions of the Open Meeting 

Act . . . . As applicable to this case, the “governmental body” 

which is required to meet publicly is the Board of Trustees, and 

the requirement that meetings of that body be public applies 

(footnote contimlcd) 

oa the. agenda of a future meeting does not violate the Open Meetings Act); H-1163 (1978) 

(prohibiting the use of secret ballots by governmental bodies). 

P- 481 
Honorable Gary Watkins - Page 5 (DM-95 1 

only when a quorum is present, since in the absence of a quorum 

there is no “meeting.” 

Id at 798 

With respect to polling the members of the govemmental’body individually, 

the dissent appears to take the view that the simultaneous physical presence of a 

quorum in one place is necessary for a violation of the act’s requirement that 

meetings be open to the public. Though the majority opinion doesnot expressly 

discuss this point, it is clear that it takes the opposite view, i.e., a view consistent 

with the district court’s finding that the practice constitutes a violation of sections 2 

and 3A of the act. This view is the basis for the district court’s issuance of the 

injunction, which the majority opinion upheld. 

Though polling members of a governmental body by telephone was 

specifically at issue in Mubry, it seems immaterial to the applicatipn of the law 

whether such polling was done by telephone or otherwise. Following Mabry, it 

appears that the physical presence of a quorum in a single place at the same time is 

not always necessary for a violation of sections 2 and 3A to occur. Avoiding the 

technical definition of “meeting” or “deliberation” is not, therefore, a foolproof 

insulator from the effect of the act. Indeed, it would appear that the legislature 

intended expressly to reach deliberate evasions of these definitions in enacting 

section 4(b) of the act. See also Attorney General Opinion JM-584 (1986) (in the 

absence of specific legislative authority, a governmental body that meets by 

telephone conference call will not comply with then act). 

Whether any specific behavior or pattern of behavior constitutes a violation 

of the act must ultimately be determined by a trier of fact. There is a continuum of 

behavior from that which clearly complies with the act to that which clearly violates 

it. We think, however, that a governing body that deliberates through a series of 

closed meetings of members of less than a quorum risks a finding by a trier of fact 

that either a violation of sections 2 or 3A has occurred, or worse, that members have 

conspired to circumvent the act in violation of section 4(b). 

The Open Meetings Act is intended to open to public scrutiny the process by 

which governmental bodies reach decisions affecting public policy or business over 

which the governmental bodies have supervision or control. Cox Enterpties, supru. 

If a quorum of a governmental body agrees on a joint statement on a matter of such 

business or policy, the deliberation by which that agreement is reached is subject to 

P. 482 
Honorable Gary Watkins - Page 6 (m-l-951 

the requirements of the act, and those requirements are not necessarily avoided by 

avoiding the physical gathering of a quorum in one place at one time. Hitt v. Mubry, 

SUpltZ. 

SUMMARY 

If a quorum of a governmental body agrees on a joint 

statement on a matter of governmental business or policy, the 

deliberation by which that agreement is reached is subject to the 

requirements of the Open Meetings Act, and those requirements 

are not necessarily avoided by avoiding the physical gathering of 

a quorum in one place at one time. Whether any specific 

behavior or pattern of behavior constitutes a violation of the act 

must ultimately be determined by a trier of fact. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by John Steiner 

Assistant Attorney General 

p. 483