DAN MORALES 

ATTORNEY GENERAL 

@ffice of the Efttornep @eneral 

&ate of UJexas 

May 17,1996 

The Honorable John B. Holmes, Jr. 

Harris County Diict Attorney 

201 Fatmin, Suite 200 

Houston, Texas 77002-1901 

Opinion No. DM-395 

Re: Whether the meetings of judges to 

pedolm statutory h2tions.with respect to 

themanagementofac.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 Supervision and Corrections Department? 

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 additionally provides 

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 Criminal FVocedure, and recodi6ed 

in 1995 without substantive change as chap&r 76, Government Code, provide for the 

establishment of a Community Supervision and 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 district judge1 or judges trying criminal cases in 

‘You ssk ahout a oommittcc ofjudgcs. We do not addmss hue situations whcrc OIX district judge 

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

each judicial district shall establish a CSCD and “employ”s district 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 district judges 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 limitations in section 76.010. 

The question here is whether the meetings of the judges you ask about in 

connection with the CSCD are “meetings” of “governmental bodies” 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 expenditures of timds for CSCD purposes they sre 

either taking formal action or debiting over public business within the deSnition of 

“meeting.” But do the judges meeting in such context constitute a “govemmentrd body’ 

under the act? 

“Govemmental body” 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 municipal governing body 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& appointed hy the district judges, to “empl~ depbenl 

persoonel. Attorney General Opinion DM-208 (1993) at 5. 

3See supm note 2. 

p. 2164 
The Honorable John B. Holmes, Jr. - Page 3 (DM-395) 

(D) a deliberative body that has rulemaldng or qussijudicial power and that is clsssified as a department, agency, or 

political subdivision of 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 governing body of a special district 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 “governmental body” under any of the deSnitions in the act. Attorney General Gpinion 

JM-740 (1987) at 4. The conclusion of Attorney Genersl Opinion JM-740 suggests that 

the meetings of judges you ash about in connection with 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) definition of governmental body as the governing 

body of a “special district” in Sierra Club v. At&i> TransporMon St+ Policy Advisoty 

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-member committee consistmg of state, 

county, regional, and municipal public 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 ‘e Law Dictkmaty: 

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 accomplish a primarily local benefit or improvement, e.g., 

parks and planning, mosquito control, sewage removal. 

BLACK’S LAW DETIONARY 1253 (5th ed. 1979). 

p. 2165 
The Honorable John B. Holmes, Jr. - Page 4 (DM-395) 

Emphasbdng the importance of the decision-making function of ATSPAC in 

determining highway development in the central Texas area and tinding that ATSPAC was 

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.Zd at 301. 

It concluded that ATSPAC should be consideted as the governing body of a “special 

district” within the defmition of “governmental bodies” 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 include the committee of 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 this juncture 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 implying that a committee within 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 district judges’ 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 administration of the juvenile probation system, not a judicial 

act by a judicisl 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). 

p. 2166 
The Honorable John B. Holmes, Jr. - Page 5 W-395) 

We believe, in light of Bermides’ treatment of the group of judges making up the 

juvenile board under the analogous provisions of the Open Records Act, that a court 

would probably characterize the statutory tbnctions of the committee of judges here with 

respect to the CSCD-the appointment of the CSCD director and approval of CSCD 

expenditures-as administrative rather thsn judicial. 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 “judicial branch 

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 implicitly excluded from the coverage of the act. 

In conclusion, we believe that the broad construction given the “special district” 

component of the act’s definition of a “governmental body” subject to the act in the Sierra 

CIub opinion, discussed above, indicates that a court would fmd the committee of judges 

you ask about witbin that detinition and thus subject to the act when it meets to perform 

its statutory tImctions in connection with 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, Government Code. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLBY 

chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 2167