ATTORNEYGENERAL OF TEXAS 

GREG ABBOTT 

January 3 1,2007 

The Honorable Kurt Sistrunk Opinion No. GA-05 11 

Galveston County Criminal District Attorney 

600 59th Street, Suite 1001 Re: Whether the Open Meetings Act, Government 

Galveston, Texas 77551-4137 Code chapter 55 1, permits a governmental body to 

admit selected members of the public into a closed 

meeting (RQ-0496-GA) 

Dear Mr. Sistrunk: 

You ask whether a meeting of a school district board of trustees complied with the Texas 

OpenMeetings Act, chapter 551 ofthe Government Code (the “Act”).’ See TEX. GOV'TCODEANN. 

ch. 55 1 (Vernon 2004 & Supp. 2006). Your questions relate to Government Code section 551.074, 

which authorizes a governmental body to conduct certain deliberations about its officers and 

employees in a closed meeting. See id. 5 551.074 (Vernon 2004). 

1. Background 

You describe a school board meeting at which the board met in a closed session to evaluate 

the school superintendent and to consider whether to renew his contract, a matter of significant local 

interest. See Brief, supra note 1, at 1. The board convened in an open meeting with a quorum 

present, announced a meeting closed pursuant to section, 551.074, and adjourned into the closed 

meeting. The superintendent did not object to the closed meeting or participate in it, nor did he 

request an open meeting. See id. 

It has been alleged that the board brought members of the public into and out of the closed 

meeting in the following manner: A board member would come out to where the public was sitting, 

ask who wanted to “give input (i.e., say something),” and choose a person from those who raised 

their hands to go into the closed meeting. See id. A member of the news media attending the public 

meeting asked to go into the closed meeting but was denied entry. See id. After concluding the 

closed meeting, the board reconvened in open meeting but took no action on the item posted 

for deliberation in the closed ,meeting. See id. At a later meeting the board renewed the 

superintendent’s contract. See id. 

‘LetterfromHonorable Kurt Sistrunk, Galveston County CriminalDistrict Attorney, toHonorable GregAbbott, 

Attorney General of Texas (May 23, 2006) (on tile with the Opinion Committee, also available af 

http://wwwoag.state.tx.us) [hereinakr Request Letter], Brief attached to Request Letter [hereinafter Brie& 
The Honorable Kurt Sistrunk - Page 2 (GA-051 1) 

Your request “is precipitated by an assertion that such conduct is permissible under [section] 

55 1.074(a)(2), since a governmental body may conduct a closed session to hear a complaint.” Id. ; 

see TEX. GOV’T CODE ANN. 5 551.074(a)(2) (V ernon 2004). You seek advice on the following 

issues: 

1.) the adequacy of notice under Texas Government Code Section 

551.074 to authorize an executive session* consistent with [the Act] 

when the notice does not specify which subsection the governmental 

body is relying upon and listed items pertain only to one subsection; 

2.) the permissibility of selectively including members of the public 

(to the exclusion of other members of the public and the exclusion of 

news media) in a session closed pursuant to [Section] 55 1.074; and 

3.) the construction of Texas Government Code Section 551.144 

[criminal penalty for unauthorized closed meeting] and whether 

inadequacy of notice and/or the selective inclusion of members of the 

public into a session closed under [Section] 551.074 defeats the 

exception such that the closed session is not permitted under [the Act] 

for purposes of the criminal offense provision. 

Request Letter, supra note 1, at 1 (footnote added). 

II. Analysis 

The Act requires meetings of governmental bodies to be open to the public, except for 

expressly authorized closed meetings, and to be preceded by written notice of the time, place, and 

subject matter of the meeting. See TEX. GOV’T CODE ANN. 53 55 1.002, ,041 (Vernon 2004). Your 

questions pertain to section 55 1.074 of the Act, which provides as follows: 

(a) This chapter does not require a governmental body to 

conduct an open meeting: 

(1) to deliberate the appointment, employment, 

evaluation, reassignment, duties, discipline, or dismissal of a public 

officer or employee; or 

2The term “executive session” is sometimes used to mean “closed meeting,” even though the latter is the 

statutory language. See TEX. GOV’T CODE ANN 3 551.101 (Vernon 2004). Before the Act was recodified as 

Government Code chapter 55 1 in 1993, both “executive session” and “closed meeting” appeared in it. See Act of Apr. 

3, 1973,63d Leg., RX, ch. 3 I, 5 2, 1973 Tex. Gen. Laws 45,45-46, as amended by Act of May 31, 1987,7Oth Leg., 

R.S., ch. 549, $5 l-6, 1987 Tex. Gen. Laws2211,2211-14, repealedbyActofMay4, 1993,73dLeg., R.S., ch. 268, 

$5 1,.46, 1993 Tex. Gen. Laws 583,591,9X6 (nonsubstantive revisionofstatutesrelatingto state and localgovernment). 
The Honorable Kurt Sistrunk - Page 3 (GA-05 11) 

(2) to hear a complaint or charge against an officer or 

employee. 

(b) Subsection (a) does not apply if the officer or employee 

who is the subject of the deliberation or hearing requests a public 

hearing. 

Id. 5 551.074. 

A. Sufficiency of notice 

The notice posted for the school board meeting included the following: 

Section 551.074 - For purposes of considering the appointment, 

employment, evaluation, reassignment, duties, discipline, or dismissal 

of a public officer or employee or to hear complaints or charges 

against a public officer or employee 

(a.) Contract extensions of Administrative Staff - Assistant 

Superintendents, Directors, Principals and Assistant Principals 

(b.) Deliberation regarding evaluation of the Superintendent 

(c.) Consider approval of the Superintendent’s contract 

(d.) Discuss duties and responsibilities of the Superintendent and 

Board members 

Brief, s~pra note 1, at 1. 

The notice of a meeting must include all subjects that a governmental body will discuss, 

including those that may be discussed in a closed meeting. See Cox Enters., Inc. v. Bd. ofTm., 706 

S.W.2d 956,958 (Tex. 1986). It must inform the public of action taken at the meeting, and an action 

is subject to judicial invalidation if the notice is inadequate. Point Isabel Indep. Sch. Dist. v. 

Hinojosa, 797 S.W.2d 176, 180 (Tex. App.-Corpus Christi 1990, writ denied); see TEX. GOV’T 

CODE ANN. § 55 1.14 1 (Vernon 2004) (an action taken by a governmental body in violation of the 

Open Meetings Act is voidable). The notice requirement is intended to benefit members of the 

interested public, rather than individuals affected by a governmental body’s decisions. See Rettberg 

v. TeX. Dep’t ofHealth, 873 S.W.2d 408,411 (Tex. App.-Austin 1994, no writ). Notice must be 

sufficiently specific to inform the general public of the subjects to be considered during the meeting, 

and more specificity is required when the subject slated for discussion is of special interest to the 

public, See Cox Enters., Inc., 706 S.W.2d at 958; Rettberg, 873 S.W.2d at 41 l-12; Point Isabel 

Indep. Sch. Dist., 797 S.W.2d at 1 SO-8 1. While the notice must state the topic of discussion, it need 

not state all of the possible consequences resulting from consideration of the topic. See Tex. Tpk. 

Auth. v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977). 
The Honorable Kurt Sistrunk - Page 4 (GA-051 1) 

Neither the Act nor judicial decisions require the notice to state the section number of the 

provision authorizing the closed meeting. In Rettberg, the State Board of Examiners of Professional 

Counselors voted at a meeting to recommend termination of its executive secretary. See Rettberg, 

873 S.W.2d at 411-12. The notice of this meeting read in part: 

[T]he board will meet in executive session3 to discuss the evaluation, 

designation and duties of the board’s executive secretary; and the 

board will meet in open session to discuss and possibly act on the 

evaluation, designation and duties of the board’s executive secretary. 

Id. at 410 (footnote added). This notice item did not refer to section 551.074, the provision 

authorizing a closed meeting in cases involving the appointment, employment, evaluation, 

reassignment, and other matters concerning a public officer or public employee. The Rettberg court 

held that the notice complied with the Act. See id. at 412. 

In Weatherford v. City of&n Marcos, the city council held a meeting to discuss a property 

owner’s application to rezone his land for commercial development. Weatherford v. City ofSun 

Marcos, 157 S.W.3d 473,478 (Tex. App.-Austin 2004, pet. denied). The city council went into 

a closed meeting pursuant to section 551.071 of the Government Code to seek the city attorney’s 

advice about “the Weatherford future land use plan amendment.” Id. at 48 1. The notice of the 

meeting listed consideration of adopting a specific amendment to the city’s land use plan and noted 

that the city council might adjourn into executive session to consider items appropriate for executive 

session discussion. See id. at 486. The notice did not, however, refer to Government Code section 

55 1.071. See id. The court found the published notice sufficient to comply with the Act. See id. 

Thus, the notice of a closed meeting~need not cite the section number or numbers of the Open 

Meetings Act provisions authorizing the closed meeting. Accordingly, the notice does not need to 

refer by number to specific subsections of the Act. 

We need not consider whether the notice was sufficient to inform the public that the school 

board would hear complaints pursuant to section 551.074(a)(2) because, as discussed infra, we 

observe that the board did not in fact adjourn into the closed meeting to hear complaints. 

B. Admission of selected members of the public into a closed meeting 

You next ask whether a governmental body may selectively include members of the public 

in a meeting closed pursuant to section 55 1.074, while excluding other members of the public and 

members of the news media. See Request Letter, supra note 1, at 1: This office has not considered 

whether a governmental body may admit members of the public to a meeting closed under section 

55 1.074 or any other provision authorizing a closed meeting. We look to the Open Meetings Act 

to address this issue. A~court will ordinarily look first at the statute’s plain and common meaning. 

See Meritor Auto., Inc. V. Rum Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001). It may also consider 

‘The notice need not state that a particular agenda item may be discussed in closed session, although many 

governmental bodies post a notice that includes this information. See Tex. Att’y Gen. Op. No. K-0057 (1999) at 6. 
The Honorable Kurt Sistrunk - Page 5 (GA-05 11) 

the purposes for which the statute was enacted. See TEX. GOV’T CODE ANN. 5 3 11.023(l) (Vernon 

2005). The Act’s purposes are “to enable public access to and to increase public knowledge of 

government decisiomnaking.” City ofsan Antonio v. Fourth CouriofAppeals, 820 S.W.2d 762,765 

(Tex. 1991); see Finlan v. C@ ofDallas, 888 F. Supp. 779,783 (N.D. Tex. 1995) (the public policy 

embodied in the Act is that, “absent compelling reasons to the contrary, the public business should 

be conducted in public”). We also keep in mind that the Open Meetings Act is to be liberally 

construed in favor of open government. See Willmann v. City ofSan Antonio, 123 S.W.3d 469,473 

(Tex. App.-San Antonio 2003, pet denied); Toyah Indep. Sch. Dist. v. Pecos- Barstow Indep. Sch. 

Di& 466 S.W.2d 377, 380 (Tex. Civ. App.-San Antonio 1971, no writ). 

The Act provides that “[e]very regular, special, or called meeting of a governmental body 

shall be open to the public, except as provided by this chapter.” TEX. GOV’T CODE ANN. 5 55 1.002 

(Vernon 2004). “Open” is defined as “open to the public.” Id. 5 55 1.001(5). The Legislature has 

moreover defined “[cllosed meeting” as “a meeting to which the public does not have access.” Id. 

5 551.001(l). The courts have reiterated this definition. See Cox Enters., Inc., 706 S.W.2d at,958 

(an executive session is a meeting, “even if properly convened and closed to the public”); Rivera v. 

City oflaredo, 948 S.W.2d 787,789 n.1 (Tex. App.-San Antonio 1997, writ denied) (an executive 

session “is a meeting or part of a meeting closed to the public”) (citing Cox Enters., Inc., 796 S.W.2d 

at 957). We rely on the Act’s definitions of “open” and “closed meeting” to construe the Act. See 

TEX. GOV’T CODE ANN. 5 311.01 l(b) (Vernon 2005) ( words and phrases that have acquired a 

particular meaning by legislative definition shall be construed accordingly). 

The school board asserts that its conduct was permitted by section 551.074(a)(2), which 

provides that a governmental body is not required to conduct an open meeting “to hear a complaint 

or charge against an officer or employee.” TEX. GOV’T CODE ANN. $55 1.074(a)(2) (Vernon 2004). 

We need not address this provision, because you informed us that the school board did not invite 

selected members of the public into the closed meeting so that it could “hear complaints or charges 

against an officer or employee.” It invited members of the audience into the closed meeting to “give 

input” about the superintendent. However defined, the terms “complaint” and “charge” are narrower 

in scope than “input.” See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 269 (9th ed. 1983) 

(defining “complaint” to include (1) an expression of grief, pain, or dissatisfaction, (2) the cause or 

subject of protest or outcry, and (3) a formal allegation against a party); id. at 227 (defining “charge” 

to include “accusation,” “ statement of complaint or hostile criticism”); id. at 624 (defining “input” 

to include advice, opinion, comment). In the situation you describe, the board in effect attempted 

to hold a “public comment” session about the superintendent in a closed meeting, and thereby failed 

to comply with the Act. See Tex. Att’y Gen. Op. No. JC-0169 (2000) (public comment session). 

We note that this office has concluded that a governmental body may, in the exercise of 

reasonable discretion, include in a closed meeting any of its officers4 and employees whose 

participation is necessary to the matter under consideration and whose interests are not adverse to 

“Two opinions of this office consider whether a commissioners court may adlnit independent county officers 

into a closed meeting. See Tex. Att’y Gen. Op. Nos. JC-0506 (2002), JM-238 (1984). This office has not considered 

whether an entity other than a commissioners court might admit independent public officers into its closed sessions. 
The Honorable Kurt Sistrunk - Page 6 (GA-051 1) 

the governmental body’s interests that the closed meeting protects. See Tex. Att’y Gen. Op. No. 

JC-0375 (2001) at 2 (school board may require its superintendent to attend all of its closed~ 

meetings); see also Tex. Att’y Gen. Op. Nos. JC-0506 (2002) at 6 (commissioners court may include 

county auditor in closed meeting), JM-238 (1984) at 5 (commissioners court, meeting in closed 

session to discuss pending litigation with its attorney, may admit to closed session those county 

officers and employees within the attorney-client privilege of commissioners court). While a 

governmental body’s officers and employees are not board members entitled to attend closed 

meetings, they are not “members of the public” in relation to their board. See Tex. Att’y Gen. Op. 

No. JC-0375 (2001) at 2 (school superintendent). It is our understanding, however, that in the case 

you describe the persons admitted to the closed meeting were not limited to officers and employees 

whose presence was necessary. 

Having found no provision of the Open Meetings Act authorizing the school board’s 

inclusion of members of the public in its closed~ meeting, we finally note that a law other than the 

Open Meetings Act may permit a third party to participate in a closed meeting. For example, a third 

party might be admitted to a closed meeting as an employee’s representative or as a witness. See, 

e.g., TEX. EDUC. CODE ANN. 5 21.207 (Vernon 2006) (hearing under term contract). In the case you 

describe, however, the members of the public admitted into the closed meeting were not authorized 

by a law other than the Act to be admitted to a closed meeting. Accordingly, in answer to your 

second question, it was improper under the Open Meetings Act for the board to have admitted the 

selected members of the public into the meeting closed under section 551.074. 

C. Whether the board’s closed meeting was “not permitted” under section 551.144 

Your third question relates to section 551.144, which provides as follows: 

(a) A member of a governmental body commits an offense 

if a closed meeting is not permitted under this chapter and the 

member knowingly: 

(1) calls or aids in calling or organizing the closed 

meeting, whether it is a special or called closed meeting; 

(2) closes or aids in closing the meeting to the public, if 

it is a regular meeting; or 

(3) participates in the closed meeting, whether it is a 

regular, special, or called meeting. 

(b) [punishment]. 

(c) It is~ an affirmative defense to prosecution under 

Subsection (a) that the member of the governmental body acted in 

reasonable reliance on a court order or a written interpretation of this 
The Honorable Kurt Sistrunk - Page 7 (GA-051 1) 

chapter contained in an opinion of a~ court of record, the attorney 

general, or the attorney for the governmental body. 

TEX. GOV’T CODE ANN. 5 551.144(a)-(c) (Vernon 2004). 

You ask whether inadequacy of notice or the selective inclusion of members of the public 

in a closed meeting held under section 55 1.074 defeats the exception so that it is “not permitted” for 

purposes of section 551.144. See Request Letter, supru note 1, at 1. Because of our conclusions as 

to notice, we will consider only the effect of including members of the public in a closed meeting. 

Tovur v. State addressed a former school board president’s conviction for two offenses in 

violation of section 551.144. See To.var v. State, 978 S.W.2d 584 (Tex. Crim.,App. ‘1998). The 

defendant “knowingly participated in a special closed meeting ofthe school board in violation of the 

Act [and] knowingly called and aided in calling and organizing a special closed meeting of the 

school board in violation of the Act.” Id. The court upheld the convictions under section 55 1.144 

against defendant’s claims as to the mental state required by that section. See id. at 587. Implicit 

in the court’s decision is that the unauthorized closed meetings were “not permitted” within section 

55 1 ,144. A “[cllosed meeting’? is “a meeting to which the public does not have access.” TEX. 

GOV’T CODE ANN. § 551.001(l) (Vernon 2004). By allowing members of the public to attend 

portions of ‘a “closed” meeting, the board in effect acknowledged that confidentiality was not 

necessary for that part of the deliberations. Thus, the meeting it conducted in closed session should 

have been open to the public. Baaed on the facts you have provided, we conclude that the portions 

of the “closed” meeting attended by selected members of the public were “not permitted” within 

section 551.144(a). 

Our construction of section 551.144(a) does not indicate that any member of the 

governmental body committed an offense under section 55 1.144. We address only one element of 

section 55 1,144-whether the meeting in question was permitted. Moreover, whether an individual 

has violated a criminal law raises questions of fact for determination by a jury. See Tex. Att’y Gen. 

Op. No. JC-0053 (1999) at 6 n.3. 
The Honorable Kurt Sistrunk - Page 8 (GA-051 1) 

SUMMARY 

Notice of a meeting subject to the Open Meetings Act must be 

sufficiently specific to inform the general public of the subjects to be 

considered during the meeting, with more specificity for a subject that 

is of special interest to the public. The Act does not require the notice 

of a~ closed meeting to cite the section or subsection numbers of 

provisions authorizing the closed meeting. 

The Open Meetings Act, Government Code chapter 55 1, does 

not permit a governmental body to admit members of the public to a 

closed meeting to give input regarding a public officer or employee. 

Based on the facts provided, the portions of a “closed” meeting 

attended by members of the public were “not permitted” within 

section 55 1.144(a). 

Very truly yours, 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee