DAN MORALES ATTORNEY GENEMI. 

GXfict of tfie IBlttotnq diW1era1 

%btatt of QCtxas 

April 16,199l 

Honorable John Whitmire 

chaitman 

Intergovernmental Relations Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. DM-17 

Re: Whether the Houston Metropolitan Transit Authority may meet 

in closed session to review bids for a 

proposed rail system (RQ-32) 

Dear Senator Whitmire: 

You inquire about the application of the Open Meetings Act, article 6252-17, 

V.T.C.S., to the Houston Metropolitan Transit Authority (METRO). You ask 

whether METRO has authority to meet in private to review bids for a proposed rail 

system. 

A metropolitan rapid transit authority is required to hold its meetings 

pursuant to the Open Meetings Act. V.T.C.S. art. 1118x, 8 4(g). The Open 

Meetings Act provides in part: 

Except as otherwise provided in this Act or specifically 

permitted in the Constitution, every regular, special, or called 

meeting or session of every governmental body shall be open to 

the public. 

V.T.C.S. art. 6252-17,s 2(a). 

A meeting is defined as 

any deliberation between a quorum of members of a 

governmental body, or between a quorum of members of a 

governmental body and any other person, at which any public 

business or public policy over which the governmental body has 

p. 76 
Honorable John Whitmire - Page 2 ( DM- 17 ) 

supervision or control is discussed or considered, or at which any 

formal action is taken. 

Id 5 l(a) (emphasis added). “Deliberation,” including deliberation leading to 

formal action, is thus a key element of a meeting that is subject to the Open 

Meetings Act. See Attorney General Opinions H-772 (1976); H-438 (1974); H-238 

(1974). This term is defined as 

a verbal exchange during a meeting between a quorum of 

members of a governmental body, or between a quorum of 

members of a governmental body and any other person, 

concerning any issue within the jurisdiction of the governmental 

body or any public business. 

Thus, if a quorum of members of the METRO board engages in 

deliberations as defined by the above provision, it will be subject to the Open 

Meetings Act, A board may not deliberate in private about an issue within its 

jurisdiction, or any public business, unless a closed session or meeting is authorized 

by section 2 of the Open Meetings Act. In addition, the board must first convene in 

an open meeting for which notice has been given as provided by section 3A of the 

act, and the presiding officer must publicly announce that a closed session will be 

held and must identify the section or sections of the act authorizing the closed 

session. See also V.T.C.S. art. 1118x, 9 4(g). 

The requirements of the Open Meetings Act do not apply when a quorum of 

a governmental body merely assembles in the same room without engaging in 

deliberations. See, e.g, Attorney General Opinion JM-1127 (1989). Thus, a quorum 

of a governmental body may assemble as an audience at the meeting of another 

entity without being subject to the requirements of the act. See id A quorum of 

board members may receive information from and ask questions of staff members at 

an orientation or briefing session without being subject to the Open Meetings Act, 

as long as board members do not engage in discussion among themselves. Attorney 

General Opinion JM-1058 (1989); see UZSO Attorney General Opinions JM-640 

(1987) (licensing board may conduct oral examinations of applicants, asking 

questions and listening to answers, without being subject to requirements of act); 

p. 77 
Honorable John Whitmire - Page 3 ( DM- 17 ) 

JM-248 (1984) (trustees of Employees Retirement System receiving information 

from “particular individuals”); cf: Attorney General Opinion H-785 (1976) 

(breakfast meetings of commissioners court are subject to Open Meetings Act 

unless they are purely social in nature and involve no discussion of public business). 

In asking questions of the persons who address the board in a briefing session, board 

members must avoid engaging in dehtirations by means of addressing remarks 

intended for one another to the persons providing the briefing. See Attorney 

General Opinion JM-1127. 

A letter from the general counsel of METRO, which you submitted with your 

request letter, describes an executive session meeting of the METRO board on 

proposals submitted in response to its Request for Proposals for a Pied Guideway 

Transit System. The letter states that the meeting was conducted pursuant to 

section 2(r)’ of the Open Meetings Act, which provides as follows: 

Nothing in this Act shall be construed to require a quorum 

of the members of a governmental body to confer with an 

employee or employees of the governmental body in an open 

meeting where such conference is for the sole purpose of 

receiving information from the employee or employees or to ask 

questions of the employee or employees; provided, however, 

that no discussion of public business or agency policy that affects 

public business shall take place between the members of the 

governmental body during the conference. 

A prior opinion of this office has interpreted this provision as removing the 

conferences it describes from the coverage of the act. Attorney General Opinion 

JM-1058. Thus, a briefing session as described by section 2(r) is not subject to the 

notice or other procedural requirements of the Open Meetings Act. Section 2(r) 

codifies in part the decisions of this office holding that deliberation among the 

members of a governmental body is an essential element in the definition of 

“meeting” under the Open Meetings Act, and that if deliberations do not occur, 

there is no meeting subject to the requirements of the act. 

‘AS added by Acts 1987,7Oth Leg., ch. 549,s z 

p. 78 
Honorable John Whitmire - Page 4 ( DM-17 1 

The letter from METRO’s general counsel describes section 2(r) as 

authorizing a public body to confer witb staff for the purpose of receiving 

information, provided that no discussion of public business or agency policy that 

affects public business takes place between the members of the governmental body 

during the conference. The letter continues as follows: 

mhe contents of the meeting were in fact strictly 

‘informational.’ No decisions of any kind were made by the 

Board in the meeting, nor were there any proposed decisions 

even discussed. The presentations by tbe RPP proposers were 

part of this information gathering process and were designed to 

provide each proposer the opportunity to present information 

which it claimed to be proprietary to all Board members at once. 

This office cannot investigate fact questions or resolve disputed questions of 

fact in the opinion process. See, e.g., Attorney General Opinions M-307 (1968); 

O-3382 (1941). We can state the legal consequences that will flow from certain 

events. If the METRO board members did no more than receive information from 

proposers and staff members, ask questions and listen to the answers, and did not 

discuss the information or other matters of public business among themselves, then 

they were not participating in a meeting subject to the Open Meetings Act. On the 

other hand, if the board members actually discussed the proposals among 

themselves, section 2(r) did not authorize the board to hold a closed session for such 

deliberations. See uLro Attorney General Opinions JM-595 (1986) (governmental 

body is not authorized by section 3(a)( 11) of Open Records Act to discuss selection 

of competitive bidders in closed session); MW-129 (1980) (governmental body must 

meet in open session to hire independent contractors). 

SUMMARX 

The board of Houston Metropolitan Transit Authority was 

not participating in a meeting subject to the Open Meetings Act, 

article 6252-17, V.T.C.S., if it met in a closed session to receive 

information and ask questions of staff and companies that 

responded to its request for proposals for a proposed rail system 

and did not engage in any discussion of any matter of public 

business among board members. Section 2(r) of the Open 

p. 79 
Honorable John Whitmire - Page 5 ( DM- 17 1 

Meetings Act does not authorize the board to hold a closed 

meeting to engage in a discussion among the board members 

about the proposals. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOIUE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEAHIcIcs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Susan Garrison 

Assistant Attorney General 

p. 80