Could Texas force a state agency to keep written minutes of its open meetings instead of just a tape recording?

TX AG Opinion GA-0727: Can the state require written minutes instead of a meeting tape?

Plain-English summary

The Executive Director of the Texas Residential Construction Commission asked whether the Texas State Library and Archives Commission (TSLAC) could require a state agency to create and keep written minutes of its open meetings, when (in his view) the requirement did not merely implement the statute but effectively negated it. The TSLAC rule in question sat in the state records retention schedule. It set a 90-day retention period for audio and video tapes of open meetings, running from official approval of the written minutes, and a comment warned that minutes are permanent records, that tapes are not permanent media, and that agencies may not keep tapes in lieu of written minutes.

The statute said to be negated was Open Meetings Act section 551.021. At the time, subsection (a) said a governmental body "shall prepare and keep minutes or make a tape recording of each open meeting of the body." The director argued the TSLAC rule contravened that section by stripping a body of its discretion to make a tape recording instead of written minutes. He did not challenge the rule under its own enabling statute; he asked only whether it conflicted with section 551.021.

The opinion explained that, even if a rule is valid under its own enabling legislation, it may not be inconsistent with the lawmakers' intent expressed in other statutes. Reading section 551.021, the opinion treated "or" as disjunctive, indicating a choice between alternatives: a body could keep written minutes or make a tape recording to satisfy its duty to keep a record of open meetings. Because the TSLAC rule required written minutes, it effectively negated one of those alternatives and was inconsistent with section 551.021. On that basis, the opinion concluded a court would likely find the rule invalid.

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.

This opinion is a clear example of why the currency rule matters. The Open Meetings Act recordkeeping requirements in section 551.021 have been amended since 2009, and the records-retention rule may have changed too. Do not treat the "minutes or a tape" choice described here as the current rule. Verify the present text of section 551.021 before relying on anything below.

Who this opinion affected (as of 2009)

State agencies and their governing bodies: The opinion explained that, under section 551.021 as it then read, a body could satisfy its open-meeting recordkeeping duty by keeping written minutes or by making a tape recording, and that a rule forcing written minutes was inconsistent with that choice.

The Texas State Library and Archives Commission: The opinion concluded a court would likely find its rule requiring written minutes invalid to the extent it conflicted with section 551.021, even if the rule was otherwise valid under TSLAC's own enabling statute.

People relying on meeting records: The opinion described the statutory framework for how open-meeting records had to be kept, which bears on what record a member of the public could expect to exist.

Common questions

Did the AG strike down the TSLAC rule?
An AG opinion does not strike down a rule. The opinion concluded that a court would likely find the rule invalid because it conflicted with section 551.021 by requiring written minutes where the statute allowed a choice.

Why did the word 'or' matter so much?
The opinion read "or" in "minutes or make a tape recording" as disjunctive, meaning the body had two real alternatives. A rule that eliminated the tape-recording option clashed with that statutory choice.

Can a rule be valid under its own statute but still fail?
Yes. The opinion explained that even a rule valid under its enabling legislation may not be inconsistent with the lawmakers' intent expressed in other statutes, citing State v. Jackson.

Background and statutory framework

The TSLAC rule sat in the state records retention schedule (13 Tex. Admin. Code § 6.10 (2009)), setting a 90-day retention period for audio and video tapes of open meetings after official approval of written minutes and cautioning that agencies may not keep tapes in lieu of written minutes. The statute at issue, Open Meetings Act section 551.021(a), then provided that a governmental body "shall prepare and keep minutes or make a tape recording of each open meeting" (Tex. Gov't Code Ann. § 551.021(a) (Vernon 2004)).

The opinion applied the rule that an administrative rule, even if valid under its enabling legislation, may not be inconsistent with lawmakers' intent in other statutes (State v. Jackson, 376 S.W.2d 341, 345 (Tex. 1964)). Reading "or" as disjunctive and indicating a choice between alternatives (Jones v. State, 175 S.W.3d 927, 932 (Tex. App.-Dallas 2005, no pet.); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000); Perez v. State, 11 S.W.3d 218, 225 (Tex. Crim. App. 2000); see also Tex. Gov't Code Ann. § 311.011 (Vernon 2005)), the opinion concluded the TSLAC rule negated the tape-recording alternative and was inconsistent with section 551.021, so a court would likely find it invalid (cf. id. § 441.189(a) (Vernon 2004) (authorizing electronic records); id. § 441.194(a)-(c) (Vernon Supp. 2008)).

Citations

Statutes:

• 13 Tex. Admin. Code § 6.10 (2009)
• Tex. Gov't Code Ann. § 551.021(a) (Vernon 2004); 441.194(a)-(c) (Vernon Supp. 2008); 441.189(a) (Vernon 2004); 311.011 (Vernon 2005)

Cases:

• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)
• Jones v. State, 175 S.W.3d 927 (Tex. App.-Dallas 2005, no pet.)
• Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000)
• Perez v. State, 11 S.W.3d 218 (Tex. Crim. App. 2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0727
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0727.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

July 16, 2009

Mr. Duane Waddill
Executive Director
Texas Residential Construction Commission
Post Office Box 13509
Austin, Texas 78711-3509

Opinion No. GA-0727

Re: Whether the Texas State Library and Archives Commission may require a state agency to create and maintain written minutes of the agency's public meetings (RQ-0781-GA)

Dear Mr. Waddill:

You ask whether the Texas State Library and Archives Commission ("TSLAC") may "require a state agency to create and maintain written minutes of the agency's open meetings, when the requirement does not merely implement nor reasonably construe the statute, but effectively negates the statutory provisions."[1]

The TSLAC rule at issue in your request is contained within the Texas State Records Retention Schedule and provides for the retention period of state government records.[2] See 13 TEX. ADMIN. CODE § 6.10 (2009) (Tex. State Library & Archives Comm'n) (record series item number 1.1.060). With respect to audio and videotapes of an agency's open meetings, the rule sets out a retention period of ninety days after the "[o]fficial approval of written minutes of the meeting by the governing body of an agency." Id. The comment accompanying the stated retention period for audio and videotapes of open meetings cautions:

Minutes of state agencies are permanent records. Audio and videotapes are not permanent media. State agencies may not retain audio and videotapes of the meetings of governing bodies in lieu of written minutes. The proceedings of all meetings of state boards, committees, commissions, and councils must be reduced to writing.

Id.

The statute you characterize as effectively negated by the TSLAC rule is section 551.021 of the Open Meetings Act, which authorizes a governmental body to "prepare and keep minutes or make a tape recording of each open meeting of the body." Request Letter at 2 (quoting section 551.021(a) of the Government Code). See TEX. GOV'T CODE ANN. § 551.021(a) (Vernon 2004). You argue that the TSLAC rule and its cautionary statement contravene section 551.021 by negating a governmental body's discretion to make a tape recording of its open meetings in lieu of preparing and keeping written minutes. See Request Letter at 6. You do not ask about the validity of the TSLAC rule under its enabling statute and we need not reach that question here. See id. at 1. Instead, you inquire whether the rule is invalid because it conflicts with section 551.021. See id. at 2, 4, 6.

The Texas Supreme Court has said that even if valid under its own enabling legislation, an administrative rule may not be "inconsistent with the expression of the lawmakers' intent in statutes other than those under which the regulations are issued." State v. Jackson, 376 S.W.2d 341, 345 (Tex. 1964) (emphasis added). Pursuant to the court's statement in State v. Jackson, we must determine the lawmakers' intent in section 551.021. Section 551.021 provides that a "governmental body shall prepare and keep minutes or make a tape recording of each open meeting of the body." TEX. GOV'T CODE ANN. § 551.021(a) (Vernon 2004) (emphasis added). In its ordinary use, the term "or" is disjunctive and indicates a choice between alternatives. Jones v. State, 175 S.W.3d 927, 932 (Tex. App.-Dallas 2005, no pet.) (citing Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000)); see also TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). "The use of the disjunctive usually indicates alternatives and requires that those alternatives be treated separately." Jones, 175 S.W.3d at 932 (citing Perez v. State, 11 S.W.3d 218, 225 (Tex. Crim. App. 2000)). The Legislature's use of the disjunctive here indicates its intent to give a governmental body two alternatives — keeping written minutes or making a tape recording — for complying with the obligation to keep a record of the governmental body's open meetings. By requiring written minutes of a governmental body's open meetings, the TSLAC rule at issue here effectively negates one of the alternatives and is thus inconsistent with section 551.021. Cf. TEX. GOV'T CODE ANN. § 441.189(a) (Vernon 2004) (authorizing electronic records). Because it is inconsistent with section 551.021, we conclude that a court would likely determine that the TSLAC rule is invalid.

SUMMARY

Because the Texas State Library and Archives Commission's rule requiring a state agency to create and maintain written minutes of the agency's open meetings is inconsistent with section 551.021 of the Open Meetings Act, we believe a court would likely find it invalid.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

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

[Footnote 2: But see TEX. GOV'T CODE ANN. § 441.194(a)-(c) (Vernon Supp. 2008) (providing for records of abolished state agencies).]