**--RR C.**  **XARTIS AURTIN.**  =rRxAR rsr11 October20, 1969

HonorableF. B. Lloyd, Jr. DistrictAttorney 79thJudicialDistrict P-0. Box 965 Alice, Texas 78332 Opinion NO. M-494.
BE?: Constructionof Art. 6252-17, V.C.S., 

### as amendedby S.B. 260, Ch. 227, Acts 61st Leg., requiringgovernmental agencies to give notice of DearMr. 

### Lloyd: theirmeetings.

In your request for an,opinionyou state the f0110wing: "TheJim Wells County Judge has requested my opinion concerning the effect of .SenateBill 260, Ch. 227, 61st Legislature, requiring governmental agencies to give public notice of their meetings. "Section 3A (a)requires 'writtennotice of the date,place and subject of each meeting.' "The specific questions I have been requested to answer are as follows:
"1

. With~regardko &y meeting of the Commissioners'Court, either regular or special,is it sufficient for the notice to state: 'Theregularmonthly meeting of the Jim Wells County Commissioners' Court will be held at 10:00 a.m. on the 

### -day of in the County Courtroom of the Courthouse in Alice, Texas, at which time the Commissioners' Courtwill consider such matters pertaining to the Jim Wells County business as may come before it.' Or.must an itemized agenda for eachmeeting be prepared and set out in the notice.

-2358-Hon. F. B. Lloyd, Page 2 (M-494)
"2. After the notice of a particularmeeting has alreadybeen posted, if some matter that should be taken up at the meeting, comes to the attention of the County Judge or a County Commissioner,is it necessary for a new notice to be posted, or can thematter be consideredwithout notice?

“3. If some new item of business should come up at themeeting, even though thematter was not on the agenda, and not contemplatedby the Conunissioners'

Courtprior to themeeting, and if suchmatter is not urgent but shouldbe acted upon at that meeting in order to keep fromhaving to call a specialmeeting, can the Commissioners' Court act on suchmatter at mat time or must they delay consideration

### aa call a specialmeeting so that notice can be posted?

“4. If the Commissioners' Court should fail, #rough oversight or for any reason, to post the requirednotice, would the action taken at such meetingwhere no notice has.been given be void, voidable,or valid and effective?
"5. Who has the responsibilityof post,ing the notices?

‘6. What, if any- penalty would be imposed upon all or any persons who

(a) fail to post the notice, or (b) participate in a meeting where no noticewas posted?" The 1969 amendment to said Article 6252-17,in part, reads as follows, to-wit:

"Sec. 3A. (a)Written notice of the date, place, and subject of each meeting held by a governmentalbody shall be given before the meeting as prescribed by this section... "(cl) A County governmental body shall have a notice posted on a bulletin board located at a place convenient to the public in the county courthouse...

- 2359 -Hon. F. B. Lloyd, Page 3 "(f)Notice of themeeting must be posted

(M-494)

for at least the three days preceding the day of the meeting. However, in case of emergency or urgent public necessity,which shall be expressed in the notice, it is sufficientthat the notice is posted before the meeting is convened or called to order." 1. Where a right is conferred or obligation imposedon the Commissioners'Court, it has implied authority to exercise a broad discretion to accomplish the purpose intended. Anderson

### v. w00a, 137 Tex. 201, 152 S.W.2d 1084 (1941). The notice should specifically set out any special or unusualmatters to be considered or anymatter in which the public has a~ particular interest, as well as general statements concerning routine matters. Of course, an itemized agenda of all matters to be consideredwould be in strict compliance with the requirementsof the statutes. 2.

If somematter to be considered by the Commissioners' Court comes to its attention after the notice has been posted, a supplementalnotice shouldbe posted before the meeting is convened or called to order, as required by Paragraph (f)of Section 3A i& said Article 6252-17. 3.

If a routinematter of.business comes up at the meeting, the Commissioners'Courtmay consider it even though it was not included in the notice. However, if an unusual matter or one in which the public has a particular interest comes up eatthe meeting, the Commissioners'Court should delay an action thereon and should not consider suchmatter until after a proper notice has been posted. 4.

Where the Commissioners' Court has considered a matter without the required notice, the law presumes that the actionwas legal and that the Commissioners' Court acted in accordancewith the law;.suchpresumption prevails in the absence of and not againstproof and may be overcome by evidence to the contrary. Bollin v. Brazoria County, 381 S.u.2d 206 (Tex.Civ.App.,1964, no 47 Tex.Jur.2d 153 Public Officers, Section 118. The statute provides that notice "shallbe given." The use of the word "shall" is ordinarily mandatory. Moyer v. Kelley, 93 S.W.Zd 502 (Tex.Civ.,1936, error dismissed); 53 Tex.Jur.2d 30, Statutes, Section 16.

-2360-Hon. F. B. Lloyd, Page 4 (M-494)

Statutes regulating the general subject of notice should be strictly compliedwith. Realty Trust Co. v. Lindsey, 129 Tex. 516, 105 S.W.Zd 210 (1937);. 41 Tex.Jur.2d 526, Notice, Sec. 8.
It will be presumed that the Commissioners' Court acted legally,but the action of said court would be voidableupon proof that the requirednotice was not given. 5. It is the duty of the Commissioners' Court to have the proper notice posted on the bulletin board. Sec. 3A (d)of Article 6252-17,Vernon's Civil Statutes. 6. While Section 4 of said Article 6252-17 imposespenalties upon any **member** of the Commissioners'Court who willfully calls a meeting which is closed to the~public, the statute does not contain any provision imposingpenalties for failure to post notices. However, Section 3 of the statute provides that any interestedperson may commence an action for the purpose of stopping or preventing violation or threatened violations of the act.

SUMMARY ----_-- Notice of a meeting should include any matter other than routine to be considered by the Commissioners'Court. If **a matter**  **comes** up after notice has been posted, a supplemental **notice** concerning suchmatter should be placed on the bulletin board before the meeting of the Commissioners'Court is .convened. Routine matters **may** be consideredby the Commissioners' Court without notice, but unusual **matters or**  one in which the public has.a particular interest should not be consideredby.the court until the required notice has been given. The act of the Commissioners'Court will be presumed to be valid but will be voidable upon proof that proper notice.wasnot given., The Commissioners' Court has the responsibility to have the notice posted, but the statute does not impose any penalty upon the **members** of the court for failing to post the notice or participating in a meeting where no notice was given.

- 2361’-Hon. F. B. Lloyd, Page 5 (M-494)

C. MARTIN General of Texas Preparedby Jack Sparks AssistantAttorney General
APPROVED: OPINION COMNITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman
James Cowden Houghton Brownlee Alfred Walker Roy W. Mouer
MEADE F. GRIFFIN Staff Legal Assistant
HAWTHORNE PHILLIPS ExecutiveAssistant
NOLA WHITE First Assistant

- 2362-