Does the Texas Open Meetings Act forbid a city charter from letting a majority of the council call a special meeting?

TX AG Opinion GA-0717: Can a council majority call a special meeting without violating the Open Meetings Act?

Plain-English summary

The Rockwall County Criminal District Attorney asked whether section 3.08 of the City of Rockwall charter violates the Open Meetings Act. That section says special meetings of the city council are held at the call of the mayor or a majority of the council members, with public notice in accordance with state law. The question was whether a majority of council members may call a special meeting, without deliberating at a publicly noticed meeting, without violating the Act. Because no specific factual scenario was presented, the opinion analyzed only whether the charter provision is facially invalid.

The Act does not specifically address the procedures for calling a special meeting, but any procedures a council adopts must be consistent with the Act. Every regular, special, or called meeting of a governmental body must be open to the public, a "meeting" includes a deliberation between a quorum, and a "deliberation" is a verbal exchange during a meeting between a quorum concerning public business or an issue within the body's jurisdiction. The Rockwall council is a mayor plus six members, so a majority of the council is also a quorum.

An earlier opinion said agenda-preparation procedures may not involve deliberations among a quorum except in a posted public meeting. The opinion did not need a global rule, though, because the question was narrower. It explained that the procedures for calling a special meeting may not involve deliberations among a quorum outside a posted public meeting. While the charter provision appears to invite a quorum to engage in a prohibited exchange, it does not necessarily mandate any deliberation among a quorum, and the request expressly assumed a call made without deliberating. So the opinion could not conclude that every conceivable procedure to implement section 3.08 would facially violate the Act, and therefore could not determine as a matter of law that the charter provision contravenes the Act.

The opinion cautioned that if members of a governmental body knowingly conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations, they commit a criminal offense. It also noted that the Fifth Circuit had recently treated the Act's criminal provision (section 551.144) as a content-based speech regulation subject to strict scrutiny and remanded for further proceedings, without invalidating the provision.

Currency note

This opinion was issued in 2009. 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, including the criminal provision discussed here, has seen later amendments and litigation since 2009. Do not rely on the specific rules or the cited pending case without checking current law.

Who this opinion affected (as of 2009)

Home-rule cities and their councils: The opinion explained that a charter letting a council majority call a special meeting is not facially invalid under the Open Meetings Act, as long as calling the meeting does not involve a quorum deliberating outside a posted public meeting.

Council members: The opinion warned that conspiring to circumvent the Act by deliberating secretly in numbers less than a quorum is a criminal offense, so the manner of calling a meeting matters.

Journalists and the public: The opinion described the line between a permissible call of a special meeting and a prohibited quorum deliberation, which bears on open-government compliance.

Common questions

Is it illegal for a majority to call a special meeting?
Not on its face, according to the opinion. The Open Meetings Act does not bar a charter from letting a majority call a special meeting, so long as the call does not involve a quorum deliberating outside a posted public meeting.

What is the catch?
A majority of the council is also a quorum, and a quorum may not deliberate public business outside a posted public meeting. The opinion's point was that calling a meeting does not necessarily require such deliberation.

Can members talk it over privately in small groups first?
The opinion warned that knowingly conspiring to circumvent the Act by meeting in numbers less than a quorum for secret deliberations is a criminal offense.

Did the AG strike down the charter provision?
No. The opinion could not conclude the provision was facially invalid, because not every way of implementing it would violate the Act.

Background and statutory framework

The Open Meetings Act does not set procedures for calling a special meeting, but any procedure must be consistent with it: every regular, special, or called meeting must be open (Tex. Gov't Code Ann. § 551.002 (Vernon 2004)), a "meeting" includes a deliberation between a quorum (id. § 551.001(4) (Vernon Supp. 2008)), a "deliberation" is a quorum's verbal exchange on public business (id. § 551.001(2)), and a "quorum" is generally a majority of the body (id. § 551.001(6)). With a mayor and six members, a council majority is a quorum. An earlier opinion barred quorum deliberations in agenda preparation outside a posted meeting, but the opinion did not adopt a global rule, reasoning that the charter provision does not necessarily mandate quorum deliberation and the request assumed a call without deliberation (see Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433). It cautioned that conspiring to circumvent the Act in numbers less than a quorum is a criminal offense (Tex. Gov't Code Ann. § 551.144), noting the Fifth Circuit's remand applying strict scrutiny to that provision (Rangra v. Brown, No. 06-51587, 2009 WL 1100611 (5th Cir. Apr. 24, 2009)). It did not need to reach Local Government Code section 22.038(b), which applies to Type A general-law cities, because Rockwall is a home-rule municipality (Tex. Loc. Gov't Code Ann. §§ 22.038(b), 22.001 (Vernon 2008)).

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 551.002 (Vernon 2004), 551.001(2), (4), (6) (Vernon Supp. 2008), 551.144
• Tex. Loc. Gov't Code Ann. §§ 22.038(b), 22.001 (Vernon 2008)

Cases:

• Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433
• Rangra v. Brown, No. 06-51587, 2009 WL 1100611 (5th Cir. Apr. 24, 2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0717
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0717.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 1, 2009

The Honorable Kenda Culpepper
Rockwall County Criminal District Attorney
Rockwall Government Center
1101 Ridge Road, Suite 105
Rockwall, Texas 75087

Opinion No. GA-0717

Re: Validity of a city charter provision that permits a majority of council members to call a special meeting (RQ-0763-GA)

Dear Ms. Culpepper:

You indicate that section 3.08 of the charter of the City of Rockwall declares that "[s]pecial meetings of the City Council shall be held at the call of the Mayor or a majority of the Council members ... upon provision of public notice in accordance with state law."[1] You inquire as to whether section 3.08 violates the Open Meetings Act, chapter 551 of the Government Code (the "Act") either facially or as it may be applied. Specifically, you ask whether "a majority of council members [may] call, without deliberating at a publicly noticed meeting ... a special meeting of the city council without violating the Open Meetings Act." Request Letter at 1. As we have not been presented with a specific factual scenario, our analysis is necessarily limited to whether the charter provision violates the Act on its face.

The Act does not specifically address the procedures for calling a special meeting of a governmental body. However, any procedures adopted by the city council must be consistent with the Act's requirements. Under the terms of the Act, "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." TEX. GOV'T CODE ANN. § 551.002 (Vernon 2004). The Act defines "meeting" to include a "deliberation between a quorum of a governmental body." Id. § 551.001(4) (Vernon Supp. 2008). A "deliberation" is a "verbal exchange during a meeting between a quorum of a governmental body ... concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2).[2] Because the Rockwall City Council consists of a mayor and six council members, a majority of the Council, as called for by the charter provision, also constitutes a quorum of the governmental body (Council plus Mayor) under the Act. The word "quorum" generally means "a majority of a governmental body." Id. § 551.001(6).

In a prior opinion, this office stated that "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." Tex. Att'y Gen. Op. No. DM-473 (1998) at 3. We need not, however, adopt any global statement about agenda preparation procedures, because the question before us is more narrow than that.[3] We are asked only to determine whether a majority of the city council may call a "special meeting" under the referenced charter provision without violating the Act.

As was the case with agenda preparation, the procedures for calling a special meeting under the charter provision may not involve deliberations among a quorum of the city council outside of a public meeting for which notice has been posted. While the charter provision appears to invite a quorum of the governmental body to engage in a prohibited exchange "concerning an issue within the jurisdiction of the governmental body or any public business," the charter provision does not necessarily mandate any deliberation among a quorum of city council members. TEX. GOV'T CODE ANN. § 551.001(2) (Vernon Supp. 2008). In addition, your request to us expressly assumes a call made "without deliberating at a publicly noticed meeting." Request Letter at 1. In other words, your question asks us to assume the call at issue is made without deliberation. Thus, we cannot conclude that every conceivable procedure put into place by the city council to implement section 3.08 of the charter would on its face violate the Act. As a result, we cannot determine as a matter of law that the charter provision at issue would contravene the Act.

We caution, however, that "if a member or group of members of a governmental body knowingly conspires to circumvent the [A]ct by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the [A]ct, the person or persons commit a criminal offense."[4] Tex. Att'y Gen. Op. No. DM-0473 (1998) at 3.

SUMMARY

We cannot conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: In a prior opinion, we said that the Act "does not require that governmental body members be in each others' physical presence to constitute a quorum." Tex. Att'y Gen. Op. No. GA-0326 (2005) at 3. Relying, inter alia, on Esperanza Peace & Justice Center v. City of San Antonio, the opinion found that the Act is applicable to a governmental body that takes action without conducting a public meeting, even though that action avoids the technical definitions of "meeting" and "deliberation." Id. at 5 (citing Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472, 478).]

[Footnote 3: We also need not address section 22.038(b) of the Local Government Code, which provides that "[t]he mayor may call a special meeting on the mayor's own motion or on the application of three aldermen." TEX. LOC. GOV'T CODE ANN. § 22.038(b) (Vernon 2008). That chapter of the Local Government Code is applicable only to a Type A general-law municipality. Id. § 22.001. The City of Rockwall is on the other hand, by virtue of its charter, a home-rule municipality.]

[Footnote 4: In considering a claim by two elected officials that section 551.144 of the Act violates the First Amendment, the Fifth Circuit concluded that this provision is a content-based speech regulation that is subject to strict scrutiny review, and remanded the case for further proceedings in the district court. Rangra v. Brown, No. 06-51587, 2009 WL 1100611, at **1, 3 (5th Cir. Apr. 24, 2009). Although the court directed the district court to apply strict scrutiny in evaluating the elected officials' First Amendment claim, it did not invalidate section 551.144. See id.]