Can a Texas transit board review bids in a closed session without violating the Open Meetings Act?

Texas AG Opinion DM-0017: A Transit Board's Closed-Door Bid Briefing Is Not a "Meeting" Unless Members Deliberate

Plain-English summary

A state senator asked whether the Houston Metropolitan Transit Authority (METRO) could meet in private to review bids for a proposed rail system. METRO had held an executive session to hear presentations from the companies that responded to its request for proposals, and its general counsel said the session was purely informational.

The Attorney General drew the line at deliberation. A metropolitan transit authority must hold its meetings under the Open Meetings Act, and a "meeting" turns on deliberation, a verbal exchange among a quorum of board members about public business. If the board members did nothing more than listen to proposers and staff, ask questions, and hear answers, without discussing the proposals or other public business among themselves, then there was no "meeting" and the act's notice and open-session rules did not apply. Section 2(r) of the act backs this up: it says a board may confer with its employees solely to receive information or ask questions, as long as the members do not discuss public business among themselves during the conference.

But the Attorney General was careful about the limit. Section 2(r) removes only the information-gathering conference from the act. It does not authorize a closed session for the board members to actually deliberate among themselves about the proposals. If the METRO members crossed from receiving information into discussing the bids with each other, section 2(r) did not shield that, and a board generally must meet in open session to discuss the selection of competitive bidders. The Attorney General also noted he could not resolve the underlying fact dispute about what actually happened in the room; he could only state the legal consequences of each version of events.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Open Meetings Act (then article 6252-17, V.T.C.S.) has since been recodified into Chapter 551 of the Government Code, and its closed-session provisions have been amended. Verify current law before relying on any specific rule or section number mentioned here.

Common questions

Could a Texas transit board review rail bids behind closed doors?
Under this opinion, only to receive information. If the board members merely listened to proposers and staff and asked questions without discussing the bids among themselves, that was not a "meeting" under the Open Meetings Act. Actual deliberation among the members had to happen in open session.

What does section 2(r) of the Open Meetings Act allow?
It lets a board confer with its own employees solely to receive information or ask questions, provided the members do not discuss public business or agency policy among themselves during the conference.

Did the Attorney General decide whether METRO broke the law?
No. The opinion said the office cannot resolve disputed fact questions in the opinion process. It set out the legal result for each scenario but left the factual question of what happened in the executive session unresolved.

Background and statutory framework

A metropolitan rapid transit authority is required by V.T.C.S. article 1118x, section 4(g), to hold its meetings under the Open Meetings Act, then codified at article 6252-17. The act made every regular, special, or called meeting of a governmental body open to the public unless a closed session was specifically authorized. The definitional key was "deliberation," a verbal exchange among a quorum about an issue within the body's jurisdiction or any public business; without deliberation there was no "meeting." Prior opinions established that a quorum may assemble as an audience or receive a staff briefing without triggering the act, so long as the members do not discuss matters among themselves. Section 2(r), added in 1987, codified part of that line by exempting an information-only conference between the body and its employees. The opinion read these provisions together: information-gathering is outside the act, but deliberation among members about competitive proposals must occur in an open meeting, and section 2(r) does not authorize a closed session for that purpose.

Citations

Statutory provisions:

• V.T.C.S. art. 6252-17, §§ 1(a), 2(a), 2(r), 3, 3A (Open Meetings Act; definitions, open-meeting requirement, information-gathering exception, notice)
• V.T.C.S. art. 1118x, § 4(g) (metropolitan rapid transit authority subject to Open Meetings Act)

Prior opinions referenced: Attorney General Opinions H-772 (1976), H-438 (1974), H-238 (1974), H-785 (1976), JM-1127 (1989), JM-1058 (1989), JM-640 (1987), JM-248 (1984), JM-595 (1986), MW-129 (1980), M-307 (1968), O-3382 (1941).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0017
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0017.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 16, 1991

Honorable John Whitmire
Chairman
Intergovernmental Relations Committee
Texas State Senate
P. O. 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, § 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, § 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 supervision or control is discussed or considered, or at which any formal action is taken.

Id. § 1(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, § 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 also 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); 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 deliberations 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 Fixed Guideway Transit System. The letter states that the meeting was conducted pursuant to section 2(r)[1] 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.

The letter from METRO's general counsel describes section 2(r) as authorizing a public body to confer with 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:

[T]he 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 the RFP 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 also 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).

SUMMARY

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 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 ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan Garrison
Assistant Attorney General

[1] As added by Acts 1987, 70th Leg., ch. 549, § 2.