DAN MORALES

ATTORNEY GENERAL 

## @ffice of the Efttornep @eneral &ate of UJexas May 17,1996

The HonorableJohn B. Holmes, Jr. Harris County Diict Attorney 201 Fatmin, Suite 200 Houston, Texas 77002-1901 OpinionNo. DM-395

Re: Whether the meetings of judges to pedolm statutory h2tions.with respect tothemanagementofac.Qmmunitysupervision and correctiotis department are subject to the Open Meetings Act, chapter 551, Oovemment Code (RQ-840)

Dear Mr. Holmes:

You ask:
Is the Harris County Committee of District and Statutory Judges [t]fying [c]riminal [c]ase.s owseeing the Community Supervision and Corrections Department subject to the Open Meetings Act when it n&s to participate in the management of the Harris County Community Supervisionand CorrectionsDepartment?
The Open Meetings Act (the “act”), chapter 55 1, Government Code, quires that, except as provided therein, “[e]very regular, special, or called meeting of a governmental body shall be open to the public.” Gov’ t Code 0 551.002. The act additionallyprovides for notice of meetings subject to the act and exceptions to the requirement that meetings be open to the public. Id. $5 551.041, .071- .104.
Provisions formerly in article 42.13 1, Code of CriminalFVocedure, and recodi6ed in 1995 without substantive change as chap&r 76, Government Code, provide for the establishmentof a Community Supervisionand Corrections Department (a “CSCD”). Act of April 25, 1995, 74th Leg., RS., ch. 76, F, 7.11, 1995 Tex. Sess. Law Serv. 458, 580-84. Section 76.002 provides that the districtjudge1 orjudges trying criminalcases in

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district judge pe-rfonns cbaptcr 76 dubs.The Honorable John B. Holmes.Jr. - Page 2 (DM-395)

eachjudicial district shall establish a CSCD and “employ”sdistrict personnel as necessary to conduct presentence investigations, supervise and rehabilitate defendants placed on community supervision (formerly known as “probation”), enforce the conditions of cmmmmity supervision, and stsE community corrections facilities. The sbction also authorizes both district judges trying crimintd cases and the judges of statutory county courts trying crimind cases that are served by a CSCD “to participate in the management” of the CSCD. Section 76.004 directs the district judges to appoint a director of the CSCD, who in turn “employs”s other CSCD officers and stafX In addition to county support-Gov’ t Code $76.008-&e districtjudges may expend district timds to provide CSCD facilities under the conditions set out in section 76.00!9. The district judges may additionally authorize the expenditure of funds provided the CSCD by the Community Justice Assistance Division of the Texas Board of Criminal Justice for community corrections facilities subject to the limitationsin section 76.010.

The question here is whether the meetings of the judges you ask about in connection with the CSCD are “meetings”of “governmentalbodies” within the terms of and subject to the act. “Meeting” is de&ted in section 551.001(4) of the act as deliberation of a governmental body in which public business or policy over which the govemmentsl body has supervision or control is discussed or in which formal action is taken. We think it clear that when the judges you ask about meet to establish a CSCD, appoint a CSCD director, or consider expendituresof timds for CSCD purposes they sre either taking formal action or debiting over public business within the deSnition of “meeting.” But do thejudges meeting in such context constitute a “govemmentrdbody’ under the act? “Govemmentalbody” under section 551.001(3) of the act means:

(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members; (B) a county commissioners court in the state; (C) a municipalgoverningbody in the state;

2Attomey amaal opinion DM-208 concluded that the provisions now in section 76.002 exopomdthcdistriujudgcsto “compmsatc”but not to hire such pmminel, since section 76.004 euthorizca

the deperhmt dhwtor, him& appointedhy the district judges, to “empl~ depbenl persoonel. Attorney

General OpinionDM-208(1993) at 5.

3Seesupm note2.

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(D) a deliberative body that has rulemaldng or qussijudicial power and that is clsssified as a department, agency, or political subdivisionof a county or municipality; Q a school district board of trustees; (F) a county board of school trustees; (G) a county board of education; (I-I).the governingbody of a specialdistrict created by law; (I) [certaht nonprofit water supply and wastewater companies].
In 1987, Attorney Genersl Opinion JM-740 concluded that a meeting of district judges under provisions now in Local Government Code section 84.005 to appoint a county auditor was not subject to the act because the appointing judges did not constitute
a “governmentalbody” under any of the deSnitionsin the act. Attorney General Gpinion JM-740 (1987) at 4. The conclusion of Attorney Genersl Opinion JM-740 suggests that the meetings ofjudges you ash about in connectionwith the CSCD may not be subject to the act.

You argue that the committee ofjudges here, under the reading the Austin court of appeals gave the section 55 1.001(3)(H) definitionof governmentalbody as the governing body of a “special district” in Sierra Club v. At&i> TransporMon St+ PolicyAdvisoty Committee, 746 S.W.2d 298 (Tex. App.-Austin 1988, writ denied), is a governmental body under that provision and that their meetings are therefore subject to the ms of the act. The Sierra Club court ruled that the Austin Transportation Study Policy Advisory Committee (“ATSPAC”), a seventeen-membercommittee consistmg of state, county, regional, and municipalpublic officials,created pursuant to federal law to enable federal, state, and local cooperation in highway planning, was a governhrg body of a

“special district” under the definition of “governmental body” now set out in section 55l.O01(3)0 of the act. The court quoted the following broad definition of “special district” in B&k ‘ eLawDictkmaty:

A limited governmental stmctum created to bypass normal borrowing limitationa to insulate certain activities t+om traditional political influence. to allocate timctions to entities reflecting particular expertise, to provide services in othetwise unincorporated areas, or to accomplisha primarilylocal benefit or improvement, e.g., parks and planning,mosquito control,sewageremoval.
BLACK ’ S

LAW DETIONARY1253 (5thed. 1979).

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Emphasbdng the importance of the decision-making function of ATSPAC in determininghighwaydevelopmentin the central Texas area and tinding that ATSPACwas designed to %ccomplish a primarily local benefit or improvement,” in the words of the Black’s detinition of “special district,” the court stated that ATSPAC was “ just the sort of body the Open Meetings Act was designed to govem.” Sierra Club, 746 S.W.Zdat 301. It concluded that ATSPAC should be consideted as the governing body of a “special district” within the defmition of “governmentalbodies” subject to the act. See gcnemf~ Attorney Cenerrd Opinion Jh4-1185 (1990) at 7. We agree that the reading the Sierra Club court gave the “special district” component of the act’ s definition of “govemmemal body” is broad enough to includethe committeeof judges you ask about here. The CSCD it manages is territorially limited to the judicial district, thus of a local nature, per the Black’s definition of “special district” retied on in Sjerm Club, and its control over the CSCD directorship and CSCD thumces, as well as its general managerial tunction with respect to the CSCD. makes it, we think, a “ ‘ governing body” of such special district within the act’ s definition.

We note at thisjuncture that it could be argued that the judges’ meetings here are “within the judicial branch of state government” and therefore not covered by the act. Again, section 551.001(3)(A) provides that a committee “within the executive or legislative branch of state government” is a “governmental body” subject to the act, arguably implyingthat a committeewithin the&a?cial branch of state government was not intended to be covered. This result would be consistent with Attorney General Opiion JM-740, which dealt with districtjudges’ meetings to appoint a county auditor, although the rationale that. such judges’ meetings were ones within the judicial branch of state govermnent and therefore excluded from the act’ s coverage was not expressly given in that opinion. However, a 1984 San Antonio court of appeals case in the analogous area of open records law, Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-San Antonio 1983, no writ), suggests to us that a court would probably not tind such argument persuasive.
Benavkh dealt with the question whether the specific exclusion of the “ judiciary” from govemmentsl bodies subject to the Open Records Act, now in section 552.003(1)(b), Government Code, excepted resumes of applicants for the position of juvenile probation officer in the hands of a juvenile board composed of members of the judiciary and the county judge. The Open Records Act, which provides, with certain exceptions, for public access to records of “govemmentsj bodies” is codified as chapter 552, Government Code. Finding that the board’ s selection of a probation officer “is simply part of the Board’ s administrationof the juvenile probation system, not a judicial act by ajudicisl body,” and stating that the ujudiciary exception” under the act “must not be extended to every governmental entity having any connection with the judiciary,” the Benavides court held the board a governmental body subject to the act, thus requiring public release of the requested record. Id. at 152; see also, e.g., Open Records Decisions Nos. 417.(1984) at 1, 527 (1989) at 3 (relying on Bemzvkzh).

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We believe, in light of Bermides’ treatment of the group ofjudges makingup the juvenile board under the analogous provisions of the Open Records Act, that a court would probably characterize the statutory tbnctions of the committee ofjudges here with respect to the CSCD-the appointment of the CSCD director and approval of CSCD expenditures-as administrativerather thsnjudicial. Therefore, even if the committee you asked about could be considered one ‘within , . . state government”-and we do not reach this issue here-we do not believe it should be considered one within the “ judicialbranch of state government.” Thus, we do not think that a court would be persuaded by the argument that the committee here is one within the judicial branch of state government and is implicitlyexcludedfrom the coverage of the act.

In conclusion, we believe that the broad construction given the “special district” component of the act’ s definitionof a “governmentalbody” subject to the act in the Sierra CIub opinion, discussed above, indicates that a court would fmd the committee ofjudges you ask about witbin that detinition and thus subject to the act when it meets to perform its statutory tImctionsin connectionwith the CSCD.

SUMMARY

The meetings of judges to perform statutory functions with respect to the management of a Community Supervision and Corrections Department are subject to the Open Meetings Act, chapter 551, GovernmentCode.

DAN MORALES Attorney General of Texas

JORGE VEGA Fii Assistant Attorney General

SARAHJ. SHIRLBY chair, OpinionCommittee Prepared by William

Walker Assistant Attorney General

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