Can a Texas government board meet privately with outside companies to hear presentations without giving public notice?

Plain-English summary

The Open Meetings Act (V.T.C.S. article 6252-17) keeps government business in public view by requiring boards, councils, and commissions to meet openly with advance notice. A recurring question is how far that reaches: if a board just sits and listens to a presentation without debating anything, is that a "meeting" that has to be open?

In 1991, in Opinion DM-17, this office had said no for a particular situation. The Houston Metropolitan Transit Authority (METRO) wanted to hear competing pitches for a fixed guideway (rail) transit system in private, so the companies could share proprietary details with the whole board at once. The board would only listen, not discuss or decide. DM-17 concluded that this kind of "briefing session" was not a meeting under the act and could be held privately. A state representative asked the Attorney General to take another look. This opinion does, and it overrules DM-17.

The turning point is a set of 1987 amendments. Before 1987, the act defined a "meeting" as a quorum taking formal action or talking among themselves about public business, so a board could quietly gather to be briefed by staff or outsiders as long as the members did not discuss the matter with each other. In 1987 the legislature widened the definitions of "meeting" and "deliberation" to include a verbal exchange "between a quorum of members of a governmental body and any other person." DM-17 had read those new words so narrowly that they added nothing, since the old definitions already covered member-to-member talk. A court interpreting a statute presumes the legislature meant to change something, so the Attorney General concluded the 1987 language must mean what it says: a meeting now also happens when a quorum is present and meets with a third party about public business, even if the members never talk among themselves.

The opinion found a second clue in another 1987 addition, section 2(r), which expressly allows a quorum to meet privately with the body's own employees just to receive information or ask questions, provided the members do not discuss public business with each other. That carve-out would have been pointless unless briefing sessions had become "meetings" in the first place. So the Attorney General reaffirmed a 1989 opinion (JM-1058) that employee-only briefings stay outside the act, while holding that briefings with outside third parties are now covered. The bottom line: a board may confer privately with its own staff, but a quorum cannot meet privately with outside parties about public business.

The opinion closed with a practical reassurance. Because the act's criminal penalties require a knowing violation, and officials act in good faith when they follow the attorney general's advice, board members who had relied on DM-17 before this opinion came out would not be punished for having done so.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Open Meetings Act has since been recodified from V.T.C.S. article 6252-17 into Government Code chapter 551, and its definitions and exceptions have been amended, so confirm the current statute before relying on anything described here. This opinion itself overruled the earlier DM-17 (1991).

Background and statutory framework

The request, from the Chairman of the House Transportation Committee, asked the Attorney General to withdraw and reconsider Attorney General Opinion DM-17 (1991). DM-17 had addressed whether the Open Meetings Act, V.T.C.S. article 6252-17, permitted METRO to hold a closed session to review proposals submitted in response to METRO's "Request for Proposals for a Fixed Guideway Transit System." In that session, the board reviewed proposals by listening to presentations by the proposers; the members did not discuss the proposals among themselves and made no decisions. The board met in private to let the proposers present proprietary information to all the members at once. DM-17 concluded that such briefing sessions were not meetings within the meaning of the act and could be held privately without public notice. This opinion overruled that conclusion.

Before the 1987 amendments, a meeting subject to the act occurred when a quorum of a governmental body was present and the members took formal action or engaged in a verbal exchange among themselves about public business or policy over which the body had jurisdiction (Acts 1973, 63d Leg., ch. 31, § 1; V.T.C.S. art. 6252-17, § 1(a), (b)). Under that definition, members could meet privately to receive information from and ask questions of their employees or other third parties so long as they did not discuss public business among themselves; such a briefing session was not a "meeting" (Attorney General Opinion JM-248 (1984); The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.—Tyler 1982, writ ref'd n.r.e.)).

In 1987, the legislature amended the definitions of "meeting" and "deliberation." The amended definition of "meeting" reads, in relevant part, "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" (§ 1(a)). The amended definition of "deliberation" includes "a verbal exchange . . . between a quorum of members of a governmental body and any other person," as well as a verbal exchange between a quorum of members of a governmental body (§ 1(b)).

DM-17 had essentially read these amendments out of the statute. Because both new definitions include the phrase "between a quorum of members of the governmental body," DM-17 concluded that a covered meeting still had to involve deliberations among the members. But the previous definitions were already broad enough to cover briefing sessions in which members discuss business among themselves and with third parties, so that reading rendered the 1987 amendments meaningless. To give the amendments meaning, the opinion presumed (as a court must) that the legislature intended to change the existing law (Travenol Laboratories, Inc. v. Bandy Laboratories, Inc., 608 S.W.2d 308, 314 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.)). It therefore concluded that after 1987 a covered meeting no longer must involve deliberations among the members when a quorum is present; a governmental body also holds a meeting when a quorum is present and meets with a third party about public business or policy within the body's jurisdiction.

The 1987 addition of section 2(r) supplied further evidence of that intent. Section 2(r) provides that nothing in the act requires a quorum to confer with an employee or employees in an open meeting where the conference is for the sole purpose of receiving information from, or asking questions of, the employees, provided no discussion of public business takes place among the members during the conference (§ 2(r), added by Acts 1987, 70th Leg., ch. 549, § 2). That section creates a specific exception for briefing sessions between members and their own employees (Attorney General Opinion JM-1058 (1989)); it would have been unnecessary unless the section 1(a) and 1(b) amendments made the definition of "meeting" encompass briefing sessions. The opinion reaffirmed JM-1058's holding that briefing sessions in which members receive information from and ask questions of employees without discussing matters among themselves are not meetings, because that conclusion rests on section 2(r) and survives the reinterpretation of sections 1(a) and 1(b).

Finally, the opinion concluded that members who had acted in accordance with DM-17 before this opinion issued would not be subject to the act's criminal penalties. The penalties in section 4 require a knowing violation; "knowing" conduct occurs when a person is aware the conduct is reasonably certain to cause the unlawful result (Penal Code § 6.03(b)). Absent other facts, a member acting in accordance with an attorney general opinion would not knowingly violate the act, and the Texas Supreme Court has held that government officials act in good faith when they rely on the advice of the attorney general (Wichita County v. Robinson, 276 S.W.2d 509, 516 (Tex. 1954)).

Common questions

Can a Texas board hear private pitches from outside vendors without public notice?
Under this opinion, no. After overruling DM-17, the Attorney General concluded that a quorum meeting with outside third parties about public business is a "meeting" that must be open and noticed, even if the members only listen.

What changed from the earlier DM-17 opinion?
DM-17 (1991) had treated listen-only briefing sessions as outside the act. This opinion overruled that, holding that the 1987 amendments expanded "meeting" to cover a quorum's exchanges with any other person, not just discussions among the members themselves.

Can a board still meet privately with its own staff?
Yes. The opinion kept the section 2(r) exception: a quorum may confer privately with the body's own employees solely to receive information or ask questions, as long as the members do not discuss public business among themselves.

Were officials who relied on the old opinion in trouble?
The opinion said no. The act's criminal penalties require a knowing violation, and officials act in good faith when they follow attorney general advice, so members who relied on DM-17 before this opinion issued would not be penalized.

Citations

• V.T.C.S. art. 6252-17 (Open Meetings Act): § 1(a) (definition of "meeting"); § 1(b) (definition of "deliberation"); § 2(r) (employee briefing exception); § 4 (criminal penalties; knowing violation)
• Acts 1987, 70th Leg., ch. 549, § 2 (1987 amendments adding § 2(r))
• Acts 1973, 63d Leg., ch. 31, § 1 (pre-1987 definitions)
• Penal Code § 6.03(b) (definition of "knowing" conduct)
• The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.—Tyler 1982, writ ref'd n.r.e.)
• Travenol Laboratories, Inc. v. Bandy Laboratories, Inc., 608 S.W.2d 308 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.)
• Wichita County v. Robinson, 276 S.W.2d 509 (Tex. 1954)
• Attorney General Opinions DM-17 (1991) (overruled in part), JM-248 (1984), JM-1058 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0191
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0191.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 16, 1992

Honorable David Cain
Chairman
Transportation Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. DM-191

Re: The withdrawal and reconsideration of Attorney General Opinion DM-17 (1991)

Dear Representative Cain:

You have asked this office to withdraw and reconsider Attorney General Opinion DM-17 (1991). In that opinion, we addressed whether the Open Meetings Act, V.T.C.S. article 6252-17, permitted the Houston Metropolitan Transit Authority (METRO) to hold a closed session to review proposals submitted in response to METRO's "Request for Proposals for a Fixed Guideway Transit System." During this session, the board reviewed the proposals by listening to presentations by the proposers. The board members did not discuss the proposals among themselves and did not make any decisions. The board held the meeting in private to permit the proposers to present proprietary information to the board members all at once. We concluded that briefing sessions, such as this one, did not constitute meetings within the meaning of the Open Meetings Act and, thus, could be held in private without giving public notice. We now overrule that decision.

Before the 1987 amendments to the Open Meetings Act, a meeting subject to the act was held when a quorum of members of a governmental body was present and the members took any formal action or engaged in a verbal exchange among themselves about the public business or policy over which the body had jurisdiction. Acts 1973, 63d Leg., ch. 31, § 1, at 45 (V.T.C.S. art. 6252-17, § 1(a), (b)).[1] Thus, the members of a governmental body could meet privately to receive information from and ask questions of their employees or other third parties so long as they did not discuss any public business among themselves. See Attorney General Opinion JM-248 (1984); see also The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App.—Tyler 1982, writ ref'd n.r.e.). This type of briefing session was not a "meeting" covered by the Open Meetings Act, and therefore, a governmental body could convene without admitting the general public. Attorney General Opinion JM-248 at 2.

[1] Before the 1987 amendments, article 6252-17, section 1(a) stated, in relevant part: "'Meeting' means any deliberation between a quorum of members of a governmental body 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." Acts 1973, 63d Leg., ch. 31, § 1, at 45. "Deliberation" was defined as "a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business." Id.

In 1987, however, the legislature amended the definitions of "meeting" and "deliberation." The definition of "meeting" now reads, in relevant part:

"Meeting" means 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.

V.T.C.S. art. 6252-17, § 1(a) (emphasis added). The definition of "deliberation" now includes "a verbal exchange . . . between a quorum of members of a governmental body and any other person," as well as "a verbal exchange . . . between a quorum of members of a governmental body." Id. § 1(b).

Our decision in Attorney General Opinion DM-17 essentially read these amendments out of the statute. Because the new language in both definitions includes the phrase "between a quorum of members of the governmental body," we concluded that a meeting covered by the Open Meetings Act still had to involve deliberations among the members of the governmental body.[2] However, the previous definitions of "meeting" and "deliberation" were broad enough to encompass briefing sessions at which the members of a governmental body discuss business among themselves and with third parties. Therefore, this reading of the amendments rendered them meaningless.

[2] Before the 1987 amendments, the phrase "between a quorum of members of a governmental body" referred to deliberations or verbal exchanges among the members of a governmental body when a quorum was present. Therefore, in Attorney General Opinion DM-17, we interpreted the phrase "between a quorum of members of a governmental body and any other person" to require a three-way conversation: the members of the governmental body must deliberate among themselves and with at least one third party.

We overrule Attorney General Opinion DM-17, in part, to give the 1987 amendments to sections 1(a) and 1(b) of the Open Meetings Act some meaning. We must presume that the legislature intends to make some change in the existing law when it adopts an amendment, and we must give effect to that change. Travenol Lab., Inc. v. Bandy Lab., Inc., 608 S.W.2d 308, 314 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.). Therefore, we now conclude that after the 1987 amendments, a meeting covered by the Open Meetings Act no longer must involve deliberations between the members of a governmental body when a quorum of members is present. Rather, a governmental body also holds a meeting covered by the Open Meetings Act when a quorum of members is present and meets with a third party about the public business or policy over which the body has jurisdiction.

The addition of section 2(r) to the act in 1987 provides further evidence that the legislature intended to include briefing sessions in the definition of "meeting." This section 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 members of the governmental body during the conference.

Id. § 2(r) (as added by Acts 1987, 70th Leg., ch. 549, § 2). This section creates a specific exception for briefing sessions between the members of a governmental body and their employees. See Attorney General Opinion JM-1058 (1989). If the amendments to sections 1(a) and 1(b) were not intended to make the definition of "meeting" encompass briefing sessions, then the addition of section 2(r) to the act was unnecessary.

Although we now interpret the Open Meetings Act to encompass briefing sessions between the members of a governmental body and third parties other than employees, we also reaffirm the decision in Attorney General Opinion JM-1058. In that opinion, we concluded that briefing sessions in which the members of a governmental body receive information from and ask questions of an employee or employees without engaging in any discussion among themselves do not constitute meetings under the Open Meetings Act. This conclusion is based on our reading of section 2(r), rather than our reading of sections 1(a) and 1(b). Therefore, it survives our reinterpretation of sections 1(a) and 1(b).

Although this opinion changes the result reached under Attorney General Opinion DM-17, we do not believe that members of governmental bodies will be subject to the penalties contained in the Open Meetings Act for acting in accordance with Attorney General Opinion DM-17 prior to issuance of this opinion. To be subject to the criminal penalties contained in section 4 of the act, a member of a governmental body has to engage in a knowing violation of the act. V.T.C.S. art. 6252-17, § 4. Knowing conduct occurs when a person is aware that the conduct is reasonably certain to cause the unlawful result. Searcy & Patterson, Practice Commentary, Penal Code § 6.03(b) (Vernon 1974). Absent other facts, we do not believe a member of a governmental body would violate the Open Meetings Act when that member was acting in accordance with an opinion of the attorney general. In addition, the Texas Supreme Court has held that government officials act in good faith when they rely on the advice of the attorney general. Wichita County v. Robinson, 276 S.W.2d 509, 516 (Tex. 1954) (opinion on motion for rehearing).

SUMMARY

This opinion overrules Attorney General Opinion DM-17 (1991). After the 1987 amendments to the Open Meetings Act, a "meeting" subject to the act includes a briefing session in which a quorum of members of the governmental body is present and meets with a third party, other than an employee, about the public business or policy over which the body has jurisdiction. However, section 2(r) of V.T.C.S. article 6252-17, as added by Acts 1987, 70th Leg., ch. 549, § 2, continues to exclude from the definition of meeting briefing sessions between the members of a governmental body and that body's employees. Therefore, the members of a governmental body may consult with their employees in private, but may not consult with other third parties in private.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Margaret A. Roll
Assistant Attorney General