### DAN MORALES

ATTORNEY CNERAL 

### QMfice of the Igttornep QBeneral 

## &ate of QCexae

The Honorable Steven D. Wolens Chair, Committee on State Affairs Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 April 13,1998 Opinion No. DM-473 Re: Validity of Dallas City Council rule that requires request by five council members or majority of a city council committee to place items on agenda for council meeting (RQ-952) Dear Representative Wolens: You ask whether the following city council rule ofprocedure for the City of Dallas violates the Texas Gpen Meetings Act, Government Code chapter 551:

Presentations by Members of Council The mayor shall include on an agenda any item requested by five city council members or by a majority of acity council committee to bebrought before the city council. The item must be placed on the tirst voting agenda scheduled at least 30 calendar days after receipt of request, unless the request is withdrawn by any of the five city council members or by a majority of the city council committee, whichever applies.’ Five city council members constitute one-third of the till city council membership.2 You further state: As applied by the Dallas City Council, this rule has been utilized to prohibit placement of an item on the council’s agenda unless request for placement has been made by five city council members, or by a majority of acity council committee. This rule hasbeen utilized to severely circumscribe and restrict what matters of public interest come before the council for consideration.

‘City of Dallas, Texas, City Council Rules of Procedure, Rule 6.2, as adopted 8/l l/93 and amended by Resolution Nos. 94-0297,94-2571,94-3328,94-3675,95-1545,95-2450,95-2451,95-2760, 954204, and96-0713.

‘Letter from Sam Lindsay, City Attorney, City of Dallas, to The Honorable Dan Moraks, Office of Texas Attorney Ciencral(Oct. 1, 1997). See Texas State Directory 475 (38th cd. 1995); Ciq ofDallas, Mayor and City Council, (Sept. 6, 1997)<hnp:Nwebster.ci.dallas.tx.usmhnVmay (listing mayor and city council members).The Honorable Steven D. Wolens - Page 2 (DM-473)

The rule you cite is not the only provision for raising a matter of public interest at a city council meeting. The Dallas city chatter provides that

Special meetings shall be called by the city secretary upon the written request ofthe mayor, the city manager or three members of the council. Any such notice shall state the subject tobe considered atthe special meeting and may provide for the taking up of any other matters presented at such meeting.3 The Open Meetings Act (the “‘act”)includes the following provision:

(a) If, at ameeting of agovernmental body, amember ofthe public or of the governmental body inquires about a subject for which notice has not been given astequired by this subchapter, the notice provisions of this subchapter do not apply to: (1) a statement of specific factual information given in response to the inquiry; or (2) arecitation of existing policy in response to the inquiry. (b) Any deliberation ofor decision about the subject of the inquiry shall be limited to a proposal to place the subject on the agenda for a subsequent meeting.’ While this provision does not mandate that the item be placed on the agenda of a &me meeting, it does allow an individual member ofthe governmental body to bring up a subject ofpublic interest and to request consideration of it in the future. We turn to your question as to the validity under the act of the rule requiring the agreement of five council members to place an item on the agenda of ameeting. The City ofDallas, like other home-rule cities: has broad discretionary powers to legislate on its own behalf, provided that no charter provision or ordinance “shah contain any provision inconsistent with the Constitution of the State, or ofthe general laws enacted by the Legislature of this State.‘* An ordinance of ahome-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the

‘Dallas, Tex., CIhartqch. III,$7 (1993).

‘Clov’tCode 0 551.042.

‘Lkdkw Mmhant‘s&cOacess&naire ‘s Ass ‘II v.City ofDallas,

852 S.W.Zd489.490-91 (Tex. 1993).

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extent it wnflicts with the state statutes Thus, the Dallas City Council may adopt rules ofprocedure for its meetings as long asthey are not inwnsistent with the constitution, legislation, or city charter provisions.* The Texas Open Meetings Act does not cover the details of agenda preparation. “Although the drawing up of an agenda is a matter related to a noticed public meeting, it essentially is an inkgal part ofthe actual me&anics andprocedures for conducting that meeting and, therefore, aptly relegated to local practice and procedure as prescribed by city charters and ordinances.‘* Any procedures for agenda preparation adopted by the city council must nonetheless be consistent with the act’s requirements that each meeting of a govermnental body be open to the public, subject to certain exceptions, and that written noticeto of the “‘date,hour, place, and subject of each meeting” be posted prior to the meeting.” Thus, agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in apublic meeting for which notice has been posted in accordance with the act. As noted in Attorney General Opinion DM-95 deliberations among a quorum of members of a govermnental body may be subject to the act even if a quorum never gathers in one place at one time, but wmmunicates by telephone or by circulating amemorandum.‘* Acconlingly, rules on prepsring an agenda may not involve delibemtions among a quorum of members of a governmental body, unless they are conducted in wmpliance with the act.13Moreover, if amember or group ofmembers of a governmental body knowingly conspires to circumvent the act by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the act, the person or persons commit a criminal offense. We caution members of

‘ Dallas Merchant ‘

s& ConcessioMire ‘

s Ass ‘ II, 852 S.W.2d at490-91; see C&v ofSweehvaler

v.Germ, 380 S.W.2d 550,552 (Tex. 1964) (iflegislahue choosu to preemptsubject matterusually encompassed by broadpowers ofh-rule city, itmust do so with unmistakableclarity).

‘Seegenerally 56 Ahi. JUR. **20** Municipal Gwporatiom 5 156 (1971).

‘ Houghv..%mbridge, 278 S&d 288,291 (Fla DiskCXApp. 1973);see dw La.Att’y Gut. Ops.Nos. 94-152 (1994) (WL 379277 (1994)), 90-541(1990) (WL 544987 1990)) (setting agenda is matterof internalprocedureto be -cd by go”elmnental body). The writtennoticepcstodpriorto the meeting is often desaibed asthe “age&” because ofthe practiceof posting theagenda

asthe notice orasanappendix

tothe notice.SeeCiryofSan

Antonio v.Fourth Court

ofAppeals, 820 S.W.Zd762,761 (Tex. 1991); Attorney GeneralOpinion DM-228 (1993) at2 n.2. “G&t cc-depp 5s1.002, all. %x Attorney GeneralOpiion DM-95 (1992). Attorney General Opinion Mw-32 upheld asnot violating theactanagendapreparation procedureunderwhich the membersofAii Ckmlrol Boardn&tied thewxutive director toplace aparticularitemon UK. ageadaof ameeting. Attorney General Opinion MW-32 (1979). Priorto its abolition in 1991, see Act of July 30, 1991,72d Leg., 1stC.S., ch. 3, 0 1, 1991 Tex. Gen. Laws 4,46, theAir control Board consisted of nine members. Act ofMay 24,1967,6Otb kg., R.S., ch. 727.5 3.1967 Tex. Gen. Laws 1941.1942. “The Dallas City Council is a govcmmental body subject to tbe act. See Gov’t Code 0 551.001(3)(C). Whetbamyofthe commiti thatmay place itemson the agenda aregovernmentalbodicsmustbccktemincdma casaby-case basis by nrsmining tbei authorityin light of the deftitions in tbeact.

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governmental bodies to be aware ofthis provision when proposing items for inclusion on the agenda of a meeting. You do not ask us to evahtate any other statute in connection with this rule ofprocedure nor have we found any provision that governs the preparation of the agenda for council meetings of a home-rule city. Attorney General Opinions JhI-63 and DM-228, which determine that each member of a county wmmiss’toners court may place items on the agenda, relied on statutes applicable to wwties, not cities. Attorney General Opinions DM-228 (1993), JM-63 (1983). A case styled Hansbro v.Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ), which Attorney General Gpinion DM-228 relied upon, can also be distinguished The wurt held that a county judge, as presiding officer of the commissioners court, ‘has no discretion in receiving motions offered in the regular discharge of the court’s business, and submitting said motions to a vote of the members of the court for their decision.“” Thus, the county judge was subject to awrit ofmandamus where he refused to rewgnixe amotion duly proposed and seconded at a commissioners court meeting. Hansbro indicates that a single member of the commissioners court may raise a subject before the court by proposing a motion. That right can only be implemented under present law ifthe individual member may place subjects on the agenda posted as notice of a commissioners court meeting. Thus, the result in Hunsbro is consistent with our wnclusions in Attorney General Opinions JM-63 and DM-228, that individual members of the commissioners court may place items on the agenda. However, the rule of procedure stated in Hansbro does not wntrol the city council of a home-rule city. If this case is based on statutes applicable only to the commissioners court, it does not apply to the governing body of a city. If it is based on a common-law rule of meeting procedure, a home-rule city may change the rule by exercise of its legislative power. IJ Accordingly, Hansbro does not prevent the city council of a home-rule city t?om adopting reasonable mles ofprocedure for its meetings. You state that the Dallas rule “has been utilii to severely circumscribe and restrict what mat&s ofpublic interest wme before the wuncil for consideration,” but you do not identify any city charter provision or wnstitutional provision that may limit the city council’s authority to adopt this rule. In Attorney General Opinion H-188, this office determined that the Open Meetings Act does not authorixe the public to choose the items tobe discussed orto discuss subjects on the agenda The opinion stated as follows:

So long as the requirements of.
. . [the Open Meetings Act] are met and the right of citizens to apply to their government for redress of grievance by

“Hansbm v.Neiderhofw, 83 S.W.Zd685 (Tex. Civ. App.-Beaumont 1935, no writ). “See Attomey t3ene-d Opinion JM-1087 (1989) (home-rule city may ovcrcomc ccmmon-law do&k of inwmpatiiiIity forcity offims by chatterprovision).

p. 2675The Honorable Steven D. Wolens - Page 5 @M-473)

“petition, addms or remonstranw’*16 is not abridged.
. .,it is our opinion that a Commissioners Court need not provide a public forum for every citizen wishing to express an opinion on a matter. Attorney General Opinion H-188 (1973) (footnote added).” We find no basis for concluding that the city council rule in question is invalid forbeing inwnsistent with the wnstitution, general laws, or city charter provisions. We cannot determine in the opinion process whether the rule you inquire about is a reasonable exercise of the city council’s power to establish its rules ofprocedure. In addressing the reasonableness of this rule, however, we believe it is appropriate to consider it together with other procedures for placing items on the agenda of a meeting. The reasonableness of the city’s rules of procedure is in the first instance a matter for the discretion of the city council, subject tojudicial review for abuse of discretion.

‘qex. Comt. art.I.5 27. “The legislature has stated in section 22.043 of the Local Gov-ent Code, that “~]etitions and remonstrancea may be pnsented to the governing body of the municipality and must be.in witing.” While section 22.043 expressly &ies to type A gcneml-law cities, other Local Govanmeat Code provisions makeit applicable to tpe B andtype C general-law cities. l%i.s provision illwhwes amethod otherthan inclu.sionon the agenda of acity council meeting whereby mattersofpublic interestmay be presentedto membersof the city council.

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### SUMMARY A rule ofDallas City Council on preparing the agenda of a city council meeting requires five members (onethird) of the city council or amajority of a city council wmmittee to request the mayor to include an item on the agenda of a meeting. The City of Dallas, as ahome-rule city, is author&d to adopt reasonable rulesof procedure for its meetings as long as they are not inconsistent with the wnstitution, statutes, or city charter provisions. We see no basis for tinding the rule invalid under the Open Meetings Act or inwnsistent with the wnstitution, general laws, or city charter provisions. Whether aparticular rule is reasonable cannot be determined in the opinion process. It is a matter for the discretion of the city council, subject to judicial review for abuse of discretion.

DAN MORALES Attorney General of Texas JORGE VEGA Fii Assistant Attorney General SARAH J. SHIRLEY Chair, Opiion Committee Prepared by Susan L. Garrison Assistant Attorney General

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