THE ATTORXEP GENERML OF TEXAS

Honorable Ernestine V.Glossbrenner Opinion No. JM-1072 Chairman Public Education Committee Re: Whether certain Texas House ofRepresentatives subcommittees of the P.O..Box 2910 board of trustees of Austin, Texas 78768-2910 school districts are subject to the Texas Open Meetings Act, article 6252-17, V.T.C.S. (RQ-1702)

**Dear** Representative Glossbrenner:

As chair of the House Public Education Committee, YOU ,inquireabout the extent towhich the Texas Open Meetings Act, article 6252-17, V.T.C.S., applies to committees of the board of trustees ofaschool district. In specific, YOU ask about a committee ofmembers of theboard of trustees that comprises less than a quorum of the board. YOU indicate that the committee at issue "performs functions regarding matters affecting the school district." We presume that your question is limited to those functions that such acommittee may lawfully perform. See Webster v. Texas & Pac.Motor TransD. Co., 166S.W.2d 75, 76 (Tex. 1942).

The Open Meetings Act requires that each "governmental body" inthis statepost notice foranddeliberate at meetings that are open to thepublic unless aclosed session is expressly permitted. V.T.C.S. art. 6252-17, §Z(a); see Cox Enterprises, Inc. v. Board of Trustees of Austin Indeo. School Dist., 706 S.W.2d 956, 960 (Tex. 1986); see also Attorney General Ooinion H-3 (1973) (actooens decision-makingprocess); but see Citv of San Antonio v.Aquilar, 670 S.W.2d 681, 686 (Tex. APP.'- San Antonio 1984,writ ref'd n.r.e.) (attorney-client privilege may form separate basis forclosed meeting). The act encompasses each "meeting," which isdefined, inpart, as !'anydeliberation between a quorum ofmembers ofagovernmental body." V.T.C.S. art. 6252-17, 5 l(a) (emphasisadded). A "quorum" isa majority of the governing body. & 5 l(d). Many governmental bodies believe that the actdoes not apply when a quorum is

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Honorable Ernestine V.Glossbrenner -Page 2 (JM-1072)

notpresent. Whether such subcommittees are themselves subject to the actdepends, inpart, on the act's definition of "governmental body."

Section l(c) ofthe OpenMeetings Act provides:

'Governmental body' means any board, commission, department, committee, or agency within the executive or legislative department of the state, which is under the direction of one ormore elected orappointed members: and every Commissioners Court and city council inthe state, and every deliberative body. having rule-making or quasijudicial power and classified as a department, agency, or political subdivision of a county or city: and theboard of trustees of
everv school district. and everv countv board of school trustees and countv board of educat&z$J; and the governing board of every special district heretofore or hereafter created by law.

V.T.C.S. art. 6252-17, 5 l(c). For a local-level entity to constitute a "governmental body" under section l(c), as a general rule, the entity must fall within one of the section's three specific descriptions. Attorney General Opinions JM-794 (1987); JM-340 (1985). Subcommittees of school districts arenot listed expressly.

The first category includes "every deliberative body having rule-making orquasi-judicial power and classified as adepartment, agency, or political subdivision of a county
or city." V.T.C.S. art. 6252-17, 5 l(c). Subcommittees or agencies of a .cityor county therefore fall.within the definition of "governmental body" when theyhave rule-making
or quasi-judicial power. See, cl Opinions JM-1007 (1989), H-1281 (t978j Attorney General (salary grievance committees); MW-506 (1982) (board of trustees of firemen's retirement fundhas quasi-judicial powers and isagency of city): MW-177 (1980) (highereducation authority created by city or cities); H-554 (1975) (hospital authority that performs governmental function and that iscreated by city). The act does not cover apurely "advisory" agency of a county or city that is not composed of members of the governmental body. See Attorney General Opinion H-467 (1974) (city's library'board).

The definition of "governmental body" also lists two other categories of local-level entities: school districts and special districts. The definition does not list

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agencies or committees subordinate to school districts and special districts. Attorney General Opinion JM-340 (1985). This omission implies that subcommittees of school districts and other special districts arenot covered by the act. This does not, however, prevent a subcommittee of a special district covered by the act from fallingwithin the scope of theOpen Meetings Act. This istrue particularly in regard to subcommittees comprising members of theparent governmental body.

When a subcommittee includes members of a parent governmental body, the subcommittee itselfmay be covered by the Open Meetings Act. In 1973, the attorney general considered whether a state-level entity, the Texas Board of Mental Health and Mental Retardation, could institute, a practice ofdividing boardmembers into several specialized committees. Attorney General Opinion H-3 (1973). The committees were tomeet with the board's staff to study specific matters and recommend actions at openmeetings of thewhole board. Reasoning that theboard might simply "rubber-stamp" the committees' recommendations and that this would deprive the public of access to theboard's actual decision-making process, the attorney general concluded that committees composed of members of the board, even if less than a quorum,,must comply with theOpenMeetings Act. Id. at 10; see also Attorney General Opinion H-823 (1976). A similar approach applies to analysis of special d'istricts' subcommittees. For example, standing committees of special districts that are composed of members of the governing board of the special districts must comply with the Open Meetings Act when the standing subcommittees discuss public business orpolicy. Attorney General Opinion H-238 (1974) (standing committee of board of managers of hospital district).

You indicate that the school district subcommittee at issue "performs functions regarding matters affecting the school district." Ifthe committee at issue iscomposed of
one or more members of the school board, the committee itself issubject to the OpenMeetings Act.1 Moreover, as

1. The criminal sanctions of the actmay alsobe of
concern when the members of an entity covered by the act divide into or participate in subcommittees. See, e.q Attorney General Opinions MW-390 (1981); MW-28. (1979;: Proving acriminal offense depends onproof of the requisite culpable state of mind. Violation of the criminal provi- (FootnoteContinued)

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indicated, it is not clear that theboard lawfully may delegate toa subcommittee thepower to act onbehalf of the board. See Webster v. Texas & Pac.Motor TranSD. Co.,
m.

SUMMARY

Ifa committee comprising one or more members of theboard of trustees of a school district meets todiscuss public business or policy, the committee itself is subject to the Texas OpenMeetings Act, article 6252-17, V.T.C.S.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

JENNIFER S.RIGGS Chief, Open Government Section of theOpinion Committee
Prepared byJennifer S.Riggs Assistant Attorney General

(FootnoteContinued) sions of the actdepends onwhat constitutes "meeting in numbers less than aquorum forthepurpose of secret deliberations" to "knowingly conspire to circumvent" the Open Meetings Act. V.T.C.S. art. 6252-17, 54(b).

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