Can a Texas city council require several members to agree before an item goes on the meeting agenda?

TX AG Opinion DM-0473: Can a city council require several members to agree before an item goes on the agenda?

Plain-English summary

State Representative Steven Wolens, who chaired the House Committee on State Affairs, asked whether a Dallas City Council rule of procedure violated the Texas Open Meetings Act (Government Code chapter 551). The rule (Council Rule 6.2) provided that the mayor would include on an agenda any item requested by five city council members or by a majority of a council committee, with the item placed on the first voting agenda at least 30 days after the request. Five members make up one-third of the full Dallas council. The representative said the rule had been used to restrict what matters of public interest reached the council.

The Attorney General concluded there was no basis to find the rule invalid. The Open Meetings Act does not cover the details of agenda preparation. Drawing up an agenda is part of the mechanics of running a meeting, and courts and earlier opinions have treated it as a matter for local practice and procedure set by city charters and ordinances. As a home-rule city, Dallas has broad power to legislate for itself, limited only by the requirement that its charter and ordinances not conflict with the constitution or general state law. So the council may adopt rules of procedure for its meetings as long as they are not inconsistent with the constitution, statutes, or the city charter, and the opinion found nothing inconsistent about this one.

The opinion put an important limit on that conclusion. Agenda-preparation procedures still have to comply with the Open Meetings Act's core requirements: that meetings be open and that written notice of the date, hour, place, and subject of each meeting be posted in advance. So a procedure for assembling an agenda cannot be used to let a quorum deliberate outside a properly noticed public meeting, whether they gather in one room or communicate by telephone or by passing a memorandum around. The opinion cautioned that members who knowingly conspire to circumvent the Act by meeting in numbers smaller than a quorum to deliberate in secret commit a criminal offense.

The opinion also distinguished its earlier conclusions that each member of a county commissioners court may place items on that court's agenda (Attorney General Opinions JM-63 and DM-228), because those rested on statutes specific to counties, not cities, and on a 1935 case (Hansbro v. Neiderhofer) about a county judge's duty to recognize motions. Those authorities do not control a home-rule city, which may set its own reasonable meeting procedures. Finally, the Attorney General said he could not decide in the opinion process whether this specific five-member rule was a reasonable exercise of the council's power. That question, viewed alongside the other ways a matter can reach the council (special meetings and member inquiries), is for the council's discretion in the first instance and is subject to judicial review for abuse of discretion.

Currency note

This opinion was issued in 1998. 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 (Government Code chapter 551) has been amended many times since 1998, and the City of Dallas has revised its charter and council rules of procedure. Confirm the current statute, the current Dallas charter and rules, and any later case law before relying on any specific rule here.

Who this opinion affected (as of 1998)

Home-rule city councils: The opinion confirmed that the Open Meetings Act leaves agenda-preparation rules to local procedure, so a council could require a threshold number of members to place an item on the agenda, subject to the charter and to a reasonableness limit enforceable in court.

Individual council members: The opinion meant a single member could not force an item onto a Dallas agenda under the Act alone, though the member retained other routes, such as joining in a request for a special meeting or raising a subject as an inquiry to be considered for a future agenda.

Residents, journalists, and others seeking to raise issues: The opinion reiterated that the Open Meetings Act does not give the public the right to choose agenda items, and pointed to separate avenues like petitions and remonstrances to the governing body.

Common questions

Does the Open Meetings Act control how a city builds its meeting agenda?
No. The opinion concluded the Act does not cover the details of agenda preparation, which is treated as internal procedure set by the city's charter and ordinances, subject to the Act's open-meeting and notice requirements.

Could Dallas require five council members to agree before an item went on the agenda?
The opinion found no basis to call the rule invalid. As a home-rule city, Dallas could adopt reasonable rules of procedure as long as they did not conflict with the constitution, state law, or the city charter.

Could one council member still raise an issue without four others?
Yes, through other channels. The opinion noted a member could join in calling a special meeting (the Dallas charter allowed three members to request one) and could raise a subject as an inquiry under Government Code section 551.042, with any deliberation limited to proposing the subject for a future agenda.

Could this kind of rule be used to hold secret deliberations?
No. The opinion warned that agenda procedures must comply with the Act, that a quorum cannot deliberate outside a noticed public meeting even by phone or memo, and that conspiring to circumvent the Act by meeting in less-than-quorum numbers is a criminal offense.

Background and statutory framework

The Dallas rule at issue (Council Rule 6.2) required the mayor to place an item on the agenda when five council members, or a majority of a council committee, asked for it, with placement on the first voting agenda at least 30 days later. The opinion observed that this was not the only route to raise a matter. The Dallas charter (ch. III, § 7) let the city secretary call a special meeting on the written request of the mayor, the city manager, or three council members. And Government Code section 551.042 lets a member of the public or of a governmental body inquire at a meeting about a subject not on the notice, with any deliberation limited to a proposal to place the subject on a future agenda.

On home-rule authority, the opinion relied on Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993), and City of Sweetwater v. Geron, 380 S.W.2d 550 (Tex. 1964), for the rule that a home-rule city has broad power to legislate unless the Legislature preempts a subject with unmistakable clarity, and that a city ordinance is unenforceable to the extent it conflicts with state law. Agenda preparation, the opinion explained (quoting Hough v. Stembridge, 278 So.2d 288 (Fla. Dist. Ct. App. 1973)), is aptly left to local practice. But any agenda procedure must respect the Act's requirements that meetings be open and that notice of the date, hour, place, and subject be posted in advance (Gov't Code §§ 551.002, 551.042), and may not be used to allow quorum deliberations outside a noticed meeting (citing Attorney General Opinion DM-95 (1992), on deliberations by telephone or circulated memorandum). The Dallas council is a governmental body subject to the Act (Gov't Code § 551.001(3)(C)).

The opinion distinguished the county-commissioners-court line of authority. Attorney General Opinions JM-63 (1983) and DM-228 (1993) had concluded each member of a commissioners court may place items on the agenda, but those relied on statutes applicable to counties. Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ), on which DM-228 relied, held a county judge had no discretion to refuse a motion duly proposed and seconded; the opinion read it as consistent with the commissioners-court conclusions but inapplicable to a home-rule city, which may change a common-law procedural rule by exercising its legislative power (citing Attorney General Opinion JM-1087 (1989)). The opinion also cited Attorney General Opinion H-188 (1973) for the point that the Open Meetings Act does not authorize the public to choose agenda items, and noted Local Government Code section 22.043 (petitions and remonstrances to the governing body) as another avenue, tied to the right to petition under Texas Constitution article I, section 27. Whether the rule was reasonable, the opinion concluded, was for the council's discretion subject to judicial review for abuse of discretion.

Citations

Statutes and constitution:

• Tex. Gov't Code ch. 551, §§ 551.001(3)(C), 551.002, 551.042 (Open Meetings Act)
• Tex. Loc. Gov't Code § 22.043
• Tex. Const. art. I, § 27
• Dallas, Tex., Charter ch. III, § 7; City Council Rules of Procedure, Rule 6.2

Cases:

• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)
• City of Sweetwater v. Geron, 380 S.W.2d 550 (Tex. 1964)
• Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ)
• Hough v. Stembridge, 278 So.2d 288 (Fla. Dist. Ct. App. 1973)

Related opinions:

• Tex. Att'y Gen. Op. H-188 (1973); MW-32 (1979); JM-63 (1983); JM-1087 (1989); DM-95 (1992); DM-228 (1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0473
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0473.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 13, 1998

The Honorable Steven D. Wolens
Chair, Committee on State Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-473

Re: Validity of Dallas City Council rule that requires request by five council members or majority of a city council committee to place items on agenda for council meeting (RQ-952)

Dear Representative Wolens:

You ask whether the following city council rule of procedure for the City of Dallas violates the Texas Open Meetings Act, Government Code chapter 551:

Presentations by Members of Council. The mayor shall include on an agenda any item requested by five city council members or by a majority of a city council committee to be brought before the city council. The item must be placed on the first voting agenda scheduled at least 30 calendar days after receipt of request, unless the request is withdrawn by any of the five city council members or by a majority of the city council committee, whichever applies.

Five city council members constitute one-third of the full city council membership.

You further state:

As applied by the Dallas City Council, this rule has been utilized to prohibit placement of an item on the council's agenda unless request for placement has been made by five city council members, or by a majority of a city council committee. This rule has been utilized to severely circumscribe and restrict what matters of public interest come before the council for consideration.

The rule you cite is not the only provision for raising a matter of public interest at a city council meeting. The Dallas city charter provides that

Special meetings shall be called by the city secretary upon the written request of the mayor, the city manager or three members of the council. Any such notice shall state the subject to be considered at the special meeting and may provide for the taking up of any other matters presented at such meeting.

The Open Meetings Act (the "act") includes the following provision:

(a) If, at a meeting of a governmental body, a member of the public or of the governmental body inquires about a subject for which notice has not been given as required by this subchapter, the notice provisions of this subchapter do not apply to:

(1) a statement of specific factual information given in response to the inquiry; or

(2) a recitation of existing policy in response to the inquiry.

(b) Any deliberation of or decision about the subject of the inquiry shall be limited to a proposal to place the subject on the agenda for a subsequent meeting.

While this provision does not mandate that the item be placed on the agenda of a future meeting, it does allow an individual member of the governmental body to bring up a subject of public interest and to request consideration of it in the future.

We turn to your question as to the validity under the act of the rule requiring the agreement of five council members to place an item on the agenda of a meeting. The City of Dallas, like other home-rule cities, has broad discretionary powers to legislate on its own behalf, provided that no charter provision or ordinance "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." An ordinance of a home-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute. Thus, the Dallas City Council may adopt rules of procedure for its meetings as long as they are not inconsistent with the constitution, legislation, or city charter provisions.

The Texas Open Meetings Act does not cover the details of agenda preparation. "Although the drawing up of an agenda is a matter related to a noticed public meeting, it essentially is an integral part of the actual mechanics and procedures for conducting that meeting and, therefore, aptly relegated to local practice and procedure as prescribed by city charters and ordinances." Any procedures for agenda preparation adopted by the city council must nonetheless be consistent with the act's requirements that each meeting of a governmental body be open to the public, subject to certain exceptions, and that written notice of the "date, hour, place, and subject of each meeting" be posted prior to the meeting. Thus, agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in a public meeting for which notice has been posted in accordance with the act. As noted in Attorney General Opinion DM-95, deliberations among a quorum of members of a governmental body may be subject to the act even if a quorum never gathers in one place at one time, but communicates by telephone or by circulating a memorandum. Accordingly, rules on preparing an agenda may not involve deliberations among a quorum of members of a governmental body, unless they are conducted in compliance with the act. Moreover, if a member or group of members of a governmental body knowingly conspires to circumvent the act by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the act, the person or persons commit a criminal offense. We caution members of governmental bodies to be aware of this provision when proposing items for inclusion on the agenda of a meeting.

You do not ask us to evaluate any other statute in connection with this rule of procedure nor have we found any provision that governs the preparation of the agenda for council meetings of a home-rule city. Attorney General Opinions JM-63 and DM-228, which determine that each member of a county commissioners court may place items on the agenda, relied on statutes applicable to counties, not cities. Attorney General Opinions DM-228 (1993), JM-63 (1983).

A case styled Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ), which Attorney General Opinion DM-228 relied upon, can also be distinguished. The court held that a county judge, as presiding officer of the commissioners court, "has no discretion in receiving motions offered in the regular discharge of the court's business, and submitting said motions to a vote of the members of the court for their decision." Thus, the county judge was subject to a writ of mandamus where he refused to recognize a motion duly proposed and seconded at a commissioners court meeting. Hansbro indicates that a single member of the commissioners court may raise a subject before the court by proposing a motion. That right can only be implemented under present law if the individual member may place subjects on the agenda posted as notice of a commissioners court meeting. Thus, the result in Hansbro is consistent with our conclusions in Attorney General Opinions JM-63 and DM-228, that individual members of the commissioners court may place items on the agenda. However, the rule of procedure stated in Hansbro does not control the city council of a home-rule city. If this case is based on statutes applicable only to the commissioners court, it does not apply to the governing body of a city. If it is based on a common-law rule of meeting procedure, a home-rule city may change the rule by exercise of its legislative power. Accordingly, Hansbro does not prevent the city council of a home-rule city from adopting reasonable rules of procedure for its meetings.

You state that the Dallas rule "has been utilized to severely circumscribe and restrict what matters of public interest come before the council for consideration," but you do not identify any city charter provision or constitutional provision that may limit the city council's authority to adopt this rule. In Attorney General Opinion H-188, this office determined that the Open Meetings Act does not authorize the public to choose the items to be discussed or to discuss subjects on the agenda. The opinion stated as follows:

So long as the requirements of . . . [the Open Meetings Act] are met and the right of citizens to apply to their government for redress of grievance by "petition, address or remonstrance" is not abridged . . ., it is our opinion that a Commissioners Court need not provide a public forum for every citizen wishing to express an opinion on a matter.

Attorney General Opinion H-188 (1973) (footnote added). We find no basis for concluding that the city council rule in question is invalid for being inconsistent with the constitution, general laws, or city charter provisions.

We cannot determine in the opinion process whether the rule you inquire about is a reasonable exercise of the city council's power to establish its rules of procedure. In addressing the reasonableness of this rule, however, we believe it is appropriate to consider it together with other procedures for placing items on the agenda of a meeting. The reasonableness of the city's rules of procedure is in the first instance a matter for the discretion of the city council, subject to judicial review for abuse of discretion.

SUMMARY

A rule of Dallas City Council on preparing the agenda of a city council meeting requires five members (one-third) of the city council or a majority of a city council committee to request the mayor to include an item on the agenda of a meeting. The City of Dallas, as a home-rule city, is authorized to adopt reasonable rules of procedure for its meetings as long as they are not inconsistent with the constitution, statutes, or city charter provisions. We see no basis for finding the rule invalid under the Open Meetings Act or inconsistent with the constitution, general laws, or city charter provisions. Whether a particular rule is reasonable cannot be determined in the opinion process. It is a matter for the discretion of the city council, subject to judicial review for abuse of discretion.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General