’ OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS JOHN CORNYN

March 27,2002

Mr. Charles Miller Chair, Board of Regents University of Texas System 201 West Seventh Street Austin, Texas 78701-2981 Opinion No. JC-0487

Re: Whether the Board of Regents of the University of Texas System may hold a public meeting in Mexico (RQ-0448-JC)

Dear Mr. Miller:

You have requested our opinion as to whether the Board of Regents of the University of Texas System [hereinafter “the Board”] may hold apublic meeting in Mexico. For the reasons explained below, we conclude that it may not do so under current Texas law.

You indicate:
The Chairman ofthe Board ofRegents ofThe University of Texas System would like to schedule ameeting in Mexico between representatives of an institution of higher education in Mexico and representatives of the Board of Regents. It is anticipated that a quorum ofthe Board ofRegents will attend the meeting. The purpose ofthe meeting will be to discuss the best practices related to distance education; to observe firsthand the technology and newest methods being used at institutions in Mexico; and to consider methods to enhance ongoing cooperative educational efforts between institutions in the UT. System and institutions of higher education in Mexico. Such cooperative efforts have the potential for expanding the educational experiences available in Texas and in Mexico. These purposes can be best achieved ifthe meeting isheld atan appropriate place in Mexico so that the members of the Board of Regents may evidence the Board’s desire to enhance cross-Border relationships by scheduling the first meeting ofthis type in Mexico.*

‘Letter submitted on behalf ofthe University ofTexas System Board ofRegents, Charles Miller, Chair, from W. 0. Schultz II, Office of the General Counsel, The University of Texas System, to Honorable John Cornyn, Texas Attorney General, at 1(Oct. 10,200l) (on file with Opinion Committee) [hereinafter Request Letter].Mr. Charles Miller - Page 2 (JC-0487)

The Open Meetings Act, chapter 551 of the Government Code, (the “Act”), applies to meetings of every “board, cornmission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members.” TEX.GOV’TCODE ANN.8 551.001(3)(A) (Vemon Supp. 2002). The Board ofRegents of the University of Texas System is a “governmental body” within this definition. “The Act is intended to safeguard the public’s interest in knowing the workings of its governmental bodies.” Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 960 (Tex. 1986). Section 551.002 of the Government Code provides that every meeting of agovernmental body must be open to the public except asprovided elsewhere inthe Act. See TEX.GOV’TCODE ANN.8551.002 (Vernon 1994). We first consider whether a meeting of a quorum of a governmental body may be held in a foreign country.
As this office recently concluded inAttorney General Opinion JC-0053, the Act presupposes that ameeting isphysically accessible to the public. See Tex. Att’y Gen. Op. No. JC-0053 (1999). Indeed, we specifically concluded that section 551.002 ofthe Government Code, which provides that every meeting of agovernmental body must be open to the public except asprovided elsewhere in the Act, see TEX.GOV’TCODE ANN. 8 55 1.002 (Vernon 1994), requires that a meeting must be physically accessible to the public. This construction of the statute was based on a number of provisions ofthe Act that clearly contemplate that meetings are and must be physically accessible to the public. For example, while a governmental body may conduct closed sessions regarding certain matters, see id. $5 551.071-.085 (Vernon 1994 & Supp. 2002) (bases for executive sessions), it may do so only ifthe governmental body first meets in open session, see id. 5 551.101 (Vernon 1994). The announcement that a governmental body will meet in executive session must be physically accessible to the public. Additionally, the provision authorizing agovernmental body to conduct ameeting by videoconference call assumes that members ofthe public will have physical
access to each location ofthe meeting where amember ofthe governmental body will be physically present. See id. 5 551.127(e) (Vernon Supp. 2002). (“Each of the locations shall be open to the public during the open portions ofthe meeting.“). Furthermore, section 551.OO l(4) ofthe Act, which provides that the term “meeting” does not include the attendance of a quorum of a governmental body at aregional, state or national convention or workshop “if formal action is not taken and any discussion ofpublic business is incidental to the

.. .convention[] orworkshop,” see id. 8 551.001(4), allows members of a governmental body to participate in certain types of conventions or workshops held outside the governmental body’s jurisdiction, but only if the members do not take final action or deliberate regarding public business. In other words, a governmental body may not hold a meeting at a location inaccessible to the public. All of these provisions assume or require that the public will have physical access to meetings under the Act, as do many other ofthe Act’s provisions. See, e.g., id. 85551.023 (providing person in attendance with right to record meeting); .042 (procedure for handling inquiries from members of the public at meetings) (Vernon 1994). Thus, we must determine whether ameeting held in Mexico would be physically accessible to the public.Mr. Charles Miller - Page 3 (JC-0487)

You do not indicate the location in Mexico where the proposed meeting would be held. In
our opinion, however, the holding of ameeting atany location outside the geographical boundaries of the United States would contravene the Open Meetings Act. We have previously said that “section 551.002 requires that a meeting be physically accessible to the public. While a governmental body may conduct closed sessions regarding certain matters, itmay do so only ifthe governmental body first meets in open session.” Tex. Att’y Gen. Op. No. JC-0053 (1999) at 5 (citations omitted). In Attorney General Opinion JC-0053, we considered whether a pricing committee of the Texas Public Financing Authority Board of Directors was permitted to hold a meeting at the offices of an underwriter inNew York City. In finding that the Open Meetings Act would preclude holding ameeting at such location, the Attorney General stated the following:

[Allthough no provision ofthe Act mandates where meetings must be held or expressly prohibits a governmental body from holding a meeting at an inaccessible location, the Act’s provisions assume that meetings will be held in locations accessible to the public. Ameeting held in an inaccessible location would violate the Act. Whether a meeting location is accessible to the public forpurposes ofthe Open Meetings Act is ultimately a question of fact

. . . . Although this office is not a trier of fact and may not be able to resolve this factbound issue in other instances, we find it highly unlikely that a meeting of aTexas governmental body in an underwriter’s office in New York City, half a continent’s distance from the state, is accessible tothe public forpurposes ofthe Texas Open Meetings Act.
Id. at 6 (citations and footnote omitted).

Two ofthe opinions cited inAttorney General Opinion JC-0053 arerelevant to the question you pose. In Kansas Attorney General Opinion 82-133, the issue was “whether.

..ameeting ofthe Lawrence City Commission in the Colorado mountains would be so inaccessible to the public as to not be ‘open’ to the public within the meaning of the [Kansas Open Meetings] Act.” Kan. Att’y Gen. Op. No. 82-l 33, 1982 WL 187622, at *1. The Attorney General of Kansas said that:

[wlithout question, itwould be inconvenient and expensive for those wishing to attend the meetings ofthe Lawrence City Commission to be forced to travel hundreds ofmiles to the Colorado mountains to attend such meetings. Such expense and inconvenience is an effective bar to attendance by most, ifnot all, Lawrence residents, the only class of citizens ofthe “public” at large keenly interested in the business and affairs of the city commission.
Id. at *2.Mr. Charles Miller - Page 4 (JC-0487)

InRhea v.School Board ofAlachua County, 636 So. 2d 1383 (Fla. Dist. Ct. App. 1984, rev. denied), the school board ofAlachua County, Florida, sought to hold its meeting in Orlando, more than 100 miles from the board’s headquarters. Inholding that ameeting held atthat location would violate the Florida version of the Open Meetings Act, the court said that, “[flor a meeting to be

‘public,’ it is essential that the public be given advance notice and a reasonable opportunity to attend.” Rhea, 636 So. 2d at 1384-85. “[Tlhe relevant ‘public,’ the community that would be affected by the Board’s official actions, is Alachua County.” Id. at 1385.

In 1996, the Attorney General ofFlorida considered whether acity’s police pension board
was authorized to hold ameeting in a facility to which the public had limited access. The Florida Attorney General declared:
This office has advised public boards orcommissions to avoid holding meetings in places not easily accessible to the public.
[PIersons who wish to attend the pension board meeting may be reluctant to attend ameeting at aplace not normally open to the public at which they must provide identification to enter and must leave such identification while in the building. In addition, before entering the meeting room, according to your letter, persons must obtain the permission of the receptionist before being allowed “to enter the inner offices where the conference room is located.” Such conditions would appear to have a chilling effect on the public’s willingness to attend.

Fla. Att’y Gen. Op. No. 96-55, 1996 WL 562019, *2. Applying these principles tothe question you pose, we areconvinced that abody ofstatewide jurisdiction, such as the University of Texas System Board of Regents, may not lawfully hold a public meeting in Mexico. As several of the authorities cited have noted, distance is one major factor in determining whether ameeting is accessible tothe public. Although you have not indicated
aparticular location in Mexico where the proposed meeting might be held, it is clear that distance cannot be the controlling factor. After all, the Board is abody with statewide jurisdiction, one with
a campus in El Paso, and it is not distance that would preclude the Board from holding ameeting in Ciudad Juarez, Mexico, just across the border from El Paso.
Rather, it is accessibility andjurisdiction. A resident of El Paso traveling to a meeting in Juarez is obliged to cross an international border, with the necessity of presenting identification, answering questions, and quite possibly, submitting to a search ofhis or her person and/or vehicle, both upon entering Mexico and upon re-entering the United States. Like the identifications and permissions addressed in Florida Attorney General Opinion 96-55, these requirements “would appear to have achilling effect on the public’s willingness to attend.” Id. at *2. Ifthe meeting wereMr. Charles Miller - Page 5 (JC-0487)

held in alocation other than aborder city, there would be the additional expense and inconvenience of traveling.

Nor is public accessibility the only difficulty. An individual who crosses into Mexico subjects himself to the laws, customs, and language of a foreign jurisdiction. Ifhe drives, he may need to obtain special insurance to cover his person and his vehicle. Furthermore, the actions ofthe Board itself in Mexico may be problematical. If the Board, in a meeting held in Mexico, were alleged to have violated that portion ofthe Open Meetings Act that regulates executive sessions, it is unclear whether any Texas-based prosecutor would have jurisdiction to bring criminal charges. In addition, any civil action brought against the Board for alleged violations would be greatly complicated by the fact that the conduct took place in aforeign jurisdiction. In sum, we believe it is highly likely that a court would conclude, as amatter of law, that a Texas public body may not hold apublic meeting outside the geographical boundaries ofthe United States. As aresult, we find that aquorum ofthe Board ofRegents ofthe University ofTexas System isprohibited from holding
ameeting in Mexico.

You suggest that the problem ofaccessibility may be cured by certain ameliorative measures. In particular, you propose the following:

l The proposed meeting would be posted and held at alocation open and accessible to the public.
The meeting would be broadcast by two-way videoconferencing technology to an appropriate U.T. campus site in all geographic areas in Texas where component institutions ofthe U.T. system are located.

If the selected meeting site in Mexico allows Internet broadcast of the meeting, it will be broadcast.
The posted notice ofthe meeting will advise the public ofthe location of the broadcast site at each component institution and how to access the meeting via personal computer if Internet broadcast can be made. Request Letter, supra note 1, at 2.

As to the first ofthese proposals, we have already found that ameeting held in Mexico isper se not physically accessible to the public. The second, third and fourth proposals require amore detailed analysis. Subsection 55l.l25(b)( 1)ofthe Government Code permits agovernmental body to hold
a meeting by telephone conference call if “an emergency or public necessity exists within the meaning of Section 551.045.” TEX.GOV’TCODE ANN. 5 551.125(b)(l) (Vernon Supp. 2002).Mr. Charles Miller - Page 6 (JC-0487)

Section 551.045 provides that an emergency or urgent public necessity exists “only if immediate action is required of a governmental body because of

. . . an irnrninent threat to public health and safety[,] or
. . . areasonably unforeseeable situation.” Id. 9 551.045(b) (Vernon 1994). You do not suggest that ameeting held under the circumstances you describe would constitute a valid “emergency” meeting. This office has followed the legislature in narrowly construing these provisions ofthe Act. See Tex. Att’y Gen. Op. Nos. JC-0194 (2000) at4(“No governmental body subject to the Open Meetings Act may hold ameeting by telephone orvideoconference except asexpressly authorized by the Act.“); DM-478 (1998) (institution of higher education was not authorized to conduct aregular meeting by telephone conference call).
Section 551.127 permits a governmental body, in limited situations, to hold ameeting by videoconference call. Subsection (b), enacted prior to 200 1,provides that “[a] meeting may be held by videoconference call only if a quorum of the governmental body is physically present at one location of the meeting.” Act of May 30, 1997, 75th Leg., R.S., ch. 1038, 1997 Tex. Gen. Laws 3896. In House Bill 35, the Seventy-seventh Legislature added subsection (c), which states:

A meeting ofastate governmental body or agovernmental body that extends into three ormore counties may be held by videoconference call only if a majority of the quorum of the governmental body is physically present at one location ofthe meeting.

TEX.GOV’TCODE

ANN.9551.127(c) (Vernon Supp. 2002). Thus, prior to 2001, any governmental body could hold a meeting by videoconference call if a quorum was physically present at one location. Under the terms of subsection (c), astate governmental body needs tohave only amajority of the quorum physically present at one location. Thus, under the latter scenario, if aboard has fifteen members, only five members need to be physically present at a single location.

Neither subsection (b) nor subsection (c) specifically place any limitation on the location at which aquorum, or amajority of aquorum, must be physically present. Nothing in the legislative history of House Bill 35, which amended section 551.127, suggests, however, that such physical location may be outside the boundaries ofthe State ofTexas. See Act of May 23,2001,77th Leg., R-S., ch. 630, 2001 Tex. Gen. Laws 1190-91. According to the bill analysis accompanying the enrolled bill, the purpose of House Bill 35 was to change, in certain instances, the number of members whose physical presence is required from aquorum to amajority of aquorum, with the intent of “lowering the costs associated with traveling to the meetings and

. . . increasing participation in the meetings.” HOUSE COMM.ONSTATE

AFFAIRS,

BILLANALYSIS,

Tex. H.B. 35, 77th Leg., R.S. (2001). Even ifsome members might participate from alocation outside the state, a matter which we do not address here, the statute surely does not contemplate that a quorum of board members might be physically present at such location. Furthermore, if the intent of the amendment to section 551.127 is to lower the costs associated with traveling, that intent could not be furthered by permitting aquorum, or amajority ofaquorum ofboard members to incur the costs associated with traveling to a foreign country. In our view, subsection (c)‘s requirement that “aMr. Charles Miller - Page 7 (JC-0487)

majority ofthe quorum” be physically present at one location refers to alocation that is accessible to the public, and hence, as we have previously noted, at least within the State of Texas. See Tex. Att’y Gen. Op. No. JC-0053 (1999) at6. (Former section 551.126, renumbered by the Seventy-sixth Legislature as section 551.127,* assumes that the public will have physical access to each location ofthe meeting where amember ofthe governmental body will be physically present.) In short, the provision of the Open Meetings Act which would permit a governmental body to use videoconferencing prescribes very limited circumstances under which such a meeting may take place.
Furthermore, ifvideoconferencing is an acceptable substitute for meetings physically held in aforeign country, itnecessarily follows that itis an adequate substitute for meetings held within the geographical jurisdiction ofthe particular governmental body. A city council could, under this scenario, bar public entry to its meetings so long as it provided for television monitors to accommodate members of the public at a different location. As we have said, the legislature has permitted videoconferencing as a substitute for in-person meetings only under very limited circumstances. The ameliorative measures you propose would require an extensive broadening of the Act. Such expansion is atask for the legislature.

Your third and fourth proposals suggest that the meeting site inMexico might allow Internet broadcast of the Board’s meeting with Mexican officials. Although section 551.128 of the Government Code perrnits a governmental body to broadcast a meeting via the Internet, such a broadcast in no way substitutes for conducting an in-person meeting. See TEX. GOV’T CODE ANN. 5551.028 (Vemon Supp. 2002). Rather, it merely provides an additional means of disseminating the meeting. In sum, it is our opinion that the Board ofRegents ofthe University ofTexas System would fail to comply with the Open Meetings Act ifitheld ameeting of aquorum of its members in Mexico. We note, however, that nothing in the Act would prohibit the Board of Regents from sending less than a quorum of its members to Mexico “to observe firsthand the technology and newest methods being used atinstitutions inMexico,” and “toconsider methods to enhance ongoing cooperative educational efforts between institutions in the UT System and institutions of higher education in Mexico.” Request Letter, supra note 1,at 1.

2SeeAct ofApr. 23, 1999,76th Leg., R.S., ch. 62, art. 19,s 19.01(50), 1999 Tex. Gen. Laws 127,414.Mr. Charles Miller - Page 8 (JC-0487)

SUMMARY

Under current Texas law, the Open Meetings Act prohibits the Board ofRegents ofthe University of Texas System from holding a meeting ofaquorum ofitsmembers inMexico, regardless ofwhether the Board broadcasts the meeting by videoconferencing technology to all geographic areas in Texas where component institutions ofthe University ofTexas System are located.

Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee
Rick Gilpin Assistant Attorney General, Opinion Committee