Can emails between Texas government board members violate the Open Meetings Act?

Plain-English summary

Don Sloan, president of the Bandera County River Authority and Groundwater District, asked the Attorney General when email and other electronic messages among board members can run afoul of the Texas Open Meetings Act, and in particular when they can add up to a "walking quorum." The District was worried about three kinds of messages: email passed among a quorum of the board, email sent to fewer than a quorum but copied to the general manager who could not tell whether others were also copied, and messages a board member posted to an internet group whose members the District did not know.

The opinion started by laying out the Act. Every regular, special, or called meeting of a governmental body must be open to the public, and the District's board is a governmental body. A "meeting" turns on a "deliberation," which the Act defines as a verbal exchange between a quorum about public business. The Act does not define "walking quorum," but a Texas appeals court has described it as serial meetings of less than a quorum. The opinion reasoned that the Act's reference to a "verbal exchange" is not limited to spoken words, and that board members do not have to be in the same room to make up a quorum. Reading the Act to cover only spoken words would let members dodge it by using email. So the opinion concluded that electronic communications can, depending on the facts, be a deliberation and a meeting that the Act governs.

What the opinion would not do is apply that rule to the District's actual messages. The Attorney General's office said it cannot resolve fact questions in the opinion process, and deciding whether any particular email was a deliberation, or whether a member "knowingly" tried to circumvent the Act, would require weighing facts and the members' states of mind. So the opinion gave general legal guidance and stopped there, holding only that being electronic does not by itself put a communication outside the Act.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The river authority and its board (as the opinion held for them): The opinion told the District the general rule, that email and other electronic communications among a quorum can be a deliberation and a meeting under the Act, but it expressly declined to judge the specific messages the District attached, because that would require resolving fact questions.

On the specific emails the District asked about (where the opinion stopped): The Attorney General declined to say whether any of the three categories of messages actually violated the Act. The opinion explained that whether a given exchange is a deliberation, and whether a member knowingly tried to circumvent the Act, are fact questions and questions of intent that the opinion process cannot resolve. Readers should not treat this page as a ruling that any particular email did or did not break the law.

Other Texas governmental bodies (as the opinion described the rule): The opinion described electronic communications as capable of triggering the Act's requirements; the fact that members are not in the same room, or are communicating in writing rather than out loud, does not by itself take the exchange outside the Act.

Common questions

Do emails between board members count as a meeting under the Texas Open Meetings Act?
According to the opinion, they can. The Attorney General concluded that electronic communications among a quorum can be a deliberation and a meeting subject to the Act, depending on the facts.

Does it matter that the members were not in the same room?
No. The opinion explained that members of a governmental body do not have to be in each other's physical presence to make up a quorum, and the Act's reference to a "verbal exchange" is not limited to spoken words.

What is a "walking quorum"?
The Act does not define the term, but the opinion cited a Texas appeals court describing it as serial meetings of less than a quorum, an overlapping series of meetings or calls where a full quorum is never in one room at once.

Did the Attorney General rule that these specific emails were illegal?
No. The opinion said it could not resolve the fact questions and questions of intent involved, so it gave only general guidance and did not decide whether any particular message violated the Act.

Background and statutory framework

The Open Meetings Act is chapter 551 of the Government Code. Every regular, special, or called meeting of a governmental body must be open to the public. Tex. Gov't Code Ann. § 551.002 (West 2004). The governing board of a special district created by law is a governmental body, id. § 551.001(3)(H) (West Supp. 2011), so the Act applied to the District's board. A "meeting" depends on a "deliberation" between a quorum, id. § 551.001(4)(A) (West Supp. 2011), defined as a verbal exchange between a quorum about public business, id. § 551.001(2). The Act permits telephone and video meetings under the usual notice rules. Id. §§ 551.125, .127 (West 2004). It separately prohibits members from "knowingly" conspiring to circumvent the Act by meeting in numbers less than a quorum for secret deliberations, id. § 551.143(a) (West 2004), and from "knowingly" calling or participating in an unauthorized closed meeting, id. § 551.144(a). The opinion presumed the Act constitutional, id. § 311.021(1).

The opinion drew on Texas cases describing quorums and walking quorums: Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996); Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.-San Antonio 2003, pet. denied); Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 474 (W.D. Tex. 2001); and Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex. App.-San Antonio, no writ).

Citations

Cases:

• Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996)
• Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.-San Antonio 2003, pet. denied)
• Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 474 (W.D. Tex. 2001)
• Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex. App.-San Antonio, no writ)

Statutes:

• Tex. Gov't Code Ann. § 551.002 (West 2004)
• Tex. Gov't Code Ann. § 551.001(3)(H) (West Supp. 2011)
• Tex. Gov't Code Ann. § 551.001(4)(A) (West Supp. 2011)
• Tex. Gov't Code Ann. § 551.001(2)
• Tex. Gov't Code Ann. §§ 551.125, .127 (West 2004)
• Tex. Gov't Code Ann. § 551.143(a) (West 2004)
• Tex. Gov't Code Ann. § 551.144(a)
• Tex. Gov't Code Ann. § 311.021(1)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0896
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0896.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 13, 2011

Mr. Don Sloan, President Opinion No. GA-0896
Bandera County River Authority
and Groundwater District Re: Whether certain kinds of electronic communication
Post Office Box 177 among members of the board of directors of a river
Bandera, Texas 78003 authority constitute a violation of the Open Meetings
Act, chapter 551 of the Government Code
(RQ-0977-GA)

Dear Mr. Sloan:

You ask "when, and to what extent, might e-mail or other electronic communications rise to the potential of a violation of the Texas Open Meetings Act, or in particular, constitute a 'walking quorum.'"[1] You explain that the Bandera County River Authority and Groundwater District (the "District") is "concerned about three categories of electronic communications": First, e-mail disseminated among a quorum of the District's Board of Directors (the "Board"); second, e-mail sent to less than a quorum of the Board and copied to the District's general manager, who does not know whether the e-mail was sent to other Board members; and third, messages sent by a Board member to an internet-based group whose members are unknown to the District. Request Letter at 1. Your letter includes copies of many messages that might fall within one or more of the three categories you describe. Id. at 1 (tabs 3-12). You write that the District is concerned that some of the Board members' electronic communications might violate the Act, and you want our "opinion as to the appropriateness" of the communications. Id. at 2. However, the "District recognizes that this may be [a] very difficult issue [on which] to render opinions based upon the number of unknowns." Id. at 2. Indeed, this office cannot resolve questions of fact. Tex. Att'y Gen. Op. No. GA-0751 (2009) at 1. Therefore, we cannot resolve the many factual questions surrounding the messages you ask about in your letter. Id. Instead, we will give you general legal guidance on your questions.[1]

We begin by reviewing the Act. "Every 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 (West 2004). The Board is a "governmental body." See id. § 551.001(3)(H) (West Supp. 2011) (providing that the governing board of a special district created by law is a governmental body). See also Act of May 31, 1971, 62d Leg., R.S., ch. 629, § 1, 1971 Tex. Gen. Laws 2045, 2045 (creating the District). Therefore, the Act applies to the Board. The Act defines a "meeting" as

a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; ...

TEX. GOV'T CODE ANN. § 551.001(4)(A) (West Supp. 2011). A "deliberation" is a "verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2). The Act does not define a "walking quorum." See generally id. § 551.001. However, a Texas appellate court has defined the term to mean "serial meetings of less than a quorum." Willmann v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.-San Antonio 2003, pet. denied). See also Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 474 (W.D. Tex. 2001) (describing the term as "an overlapping series of meetings or telephone conferences [when] a quorum of members was not in the same room at the same time").

Although the Act applies to a "verbal exchange" involving a quorum of the governmental body, the Act does not provide that the words exchanged must be spoken in person. TEX. GOV'T CODE ANN. § 551.001(4) (West Supp. 2011). See also Tex. Att'y Gen. Op. No. JC-0307 (2000) at 5-6 (explaining that the word "verbally" usually describes the expression of something in words generally rather than the expression of something in spoken words only). Indeed, members of a governmental body need not be in each other's physical presence to constitute a quorum. Tex. Att'y Gen. Op. Nos. GA-0326 (2005) at 3, JC-0307 (2000) at 4, DM-95 (1992) at 5. See also Esperanza Peace & Justice Ctr., 316 F. Supp. 2d at 473 (indicating that the court of appeals in Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex. App.-San Antonio, no writ), found that members of a governmental body need not be in each other's physical presence to constitute a quorum), Willmann, 123 S.W.3d at 476-77 (same). See also TEX. GOV'T CODE ANN. §§ 551.125, .127 (West 2004) (providing that a governmental body is not prohibited from holding a "meeting" by telephone and video, respectively, and that such a meeting must comply with the "notice requirements applicable to other meetings"). Therefore, based on the plain language of the Act, Texas court opinions, and prior opinions of this office, we conclude that electronic communications could, depending on the facts of a particular case, constitute a deliberation and a meeting that must comply with the Act. See Tex. Att'y Gen. Op. No. JC-0307 (2000) at 5-6 (declining to opine that the word "deliberation" in section 551.001(2) refers only to spoken words because, if it did, members of a governmental body could avoid the Act's requirements by using e-mail).

We have not determined whether the electronic communications you include in your request constitute a deliberation for purposes of the Act. Attempting to make that determination would require the consideration of fact questions, which we cannot do in the opinion process. Tex. Att'y Gen. Op. No. GA-0751 (2009) at 1. Nor have we determined whether the members who disseminated the electronic communications violated the Act. Attempting to make that determination would require an inquiry into their respective states of mind. See TEX. GOV'T CODE ANN. § 551.143(a) (West 2004) (prohibiting members of a governmental body from "knowingly" conspiring to circumvent the Act by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the Act); id. § 551.144(a) (prohibiting a member of a governmental body from "knowingly" calling or participating in a closed meeting that is not permitted under the Act). Instead, we conclude that the fact that communications are electronic does not render them free from the Act's requirements.

SUMMARY

Electronic communications could, depending on the facts of a particular case, constitute a deliberation and a meeting for purposes of the Texas Open Meetings Act.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. Don Sloan, President, Bandera County River Authority and Groundwater District, to Honorable Greg Abbott, Attorney General of Texas at 1 (June 9, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter") (with attachments, tabs 3 through 12). We limit this opinion to the question you ask about the Open Meetings Act (the "Act") and presume, as a Texas court would, that the Act is constitutional. See Tex. Att'y Gen. Op. No. GA-0890 (2011) at 1, n.1 (citing section 311.021(1) of the Government Code, providing that it is presumed that laws are constitutional); Nootsie Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (presuming that a statute is constitutional)).