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 of procedure for the City of Dallas violates 

the Texas Gpen Meetings Act, Government Code chapter 55 1: 

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 

a city council committee to be brought 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receipt of request, unless the request is withdrawn by any of the five city 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 

a city council committee. This rule has been 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, and 96-0713. 

‘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 of Dallas, 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 of the mayor, the city manager or three members of the council. Any 

such notice shall state the subject to be considered at the 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 a meeting of a governmental body, a member of the public or of 

the governmental body inquires about a subject for which notice has not been 

given as tequired 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) a recitation of existing policy in response to the inquiry. 

(b) Any deliberation of or 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 of the governmental body to bring up a subject of public 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 a meeting. The City of Dallas, 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 of the general laws enacted by the Legislature of this State.‘* An ordinance of a home-rule 

city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the 

‘Dallas, Tex., CIhartq ch. III, $7 (1993). 

‘Clov’t Code 0 551.042. 

‘Lkdkw Mmhant ‘s & cOacess&naire ‘sAss ‘II v. City of Dallas, 852 S.W.Zd 489.490-91 (Tex. 1993). 

p. 2673 
The Honorable Steven D. Wolens - Page 3 (DM-473) 

extent it wnflicts with the state statutes Thus, the Dallas City Council may adopt rules of procedure 

for its meetings as long as they 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 of the actual me&anics and procedures 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 a public 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 

a memorandum.‘* Acconlingly, rules on prep sring an agenda may not involve delibemtions among 

a quorum of members of a governmental body, unless they are conducted in wmpliance with the 

act.13 Moreover, if a member or group of members 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 at 490-91; see C&v of Sweehvaler v. Germ, 380 

S.W.2d 550,552 (Tex. 1964) (iflegislahue choosu to preempt subject matter usually encompassed by broad powers 

of h-rule city, it must do so with unmistakable clarity). 

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

‘Hough v. .%mbridge, 278 S&d 288,291 (Fla Disk CX App. 1973); see dw La. Att’y Gut. Ops. Nos. 94-152 

(1994) (WL 379277 (1994)), 90-541(1990) (WL 544987 1990)) (setting agenda is matter of internal procedure to be 

-cd by go” elmnental body). 

The written notice pcstod prior to the meeting is often desaibed as the “age&” because of the practice of 

posting the agenda as the notice or as an appendix to the notice. See Ciry of San Antonio v. Fourth Court ofAppeals, 

820 S.W.Zd 762,761 (Tex. 1991); Attorney General Opinion DM-228 (1993) at 2 n.2. 

“G&t cc-de pp 5s1.002, all. 

%x Attorney General Opiion DM-95 (1992). Attorney General Opinion Mw-32 upheld as not violating 

the act an agenda preparation procedure under which the members of Aii Ckmlrol Board n&tied the wxutive director 

to place a particular item on UK. ageada of a meeting. Attorney General Opinion MW-32 (1979). Prior to its abolition 

in 1991, see Act of July 30, 1991,72d Leg., 1st C.S., ch. 3, 0 1, 1991 Tex. Gen. Laws 4,46, the Air 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 gov cmmental body subject to tbe act. See Gov’t Code 0 551.001(3)(C). 

Whetbamyofthe commiti that may place items on the agenda are governmen talbodicsmustbccktemincdma 

casaby-case basis by nrsmining tbei authority in light of the deftitions in tbe act. 

p. 2674 
The Honorable Steven D. Wolens - Page 4 (DM-473) 

governmental bodies to be aware of this 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 of procedure 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 a writ of mandamus where he refused to rewgnixe a motion 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 if the 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 of procedure for its meetings. 

You state that the Dallas rule “has been utilii to severely circumscribe and restrict what 

mat&s of public 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 to be discussed or to 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.Zd 685 (Tex. Civ. App.-Beaumont 1935, no writ). 

“See Attomey t3ene-d Opinion JM-1087 (1989) (h ome-rule city may ovcrcomc ccmmon-law do&k of 

inwmpatiiiIity for city offims by chatter provision). 

p. 2675 
The 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 for being 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 of procedure. 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 to judicial 

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 Gov anmeat Code provisions make it applicable to 

tpe B and type C general-law cities. l%i.s provision illwhwes a method other than inclu.sion on the agenda of a city 

council meeting whereby matters of public interest may be presented to members of the city council. 

p. 2676 
The Honorable Steven D. Wolens - Page 6 (DM-473) 

SUMMARY 

A rule of Dallas City Council on preparing the agenda of a city council 

meeting requires five members (onethird) of the city council or a majority 

of a city council wmmittee to request the mayor to include an item on the 

agenda of a meeting. The City of Dallas, as a home-rule city, is author&d 

to adopt reasonable rules of 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 a particular 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 

p. 2677