Can a Texas charter school board meet by video call, with members joining from out of state?

Plain-English summary

Commissioner of Education Michael Williams asked the Attorney General how the governing board of an open-enrollment charter school may hold its meetings under the Open Meetings Act, in person and by videoconference call. Charter schools must designate the geographic area their programs serve, and the questions were about whether the board can meet, or have members participate, outside that area or even outside the state.

On in-person meetings, the AG declined to give a flat yes. School districts must hold board meetings within district boundaries, but that requirement comes from a chapter of the Education Code that does not apply to open-enrollment charter schools, because the Education Code reaches charter schools only where a statute specifically says so, and that chapter is not on the list. Charter schools must, however, comply with the Open Meetings Act. The Act does not expressly authorize a body to meet in person outside its territory, and because the Act requires meetings to be open and physically accessible to the public, the location matters. The AG explained that accessibility depends on the particular facts: a meeting place inside the body's boundaries will likely satisfy the requirement, while one outside may not. So the AG could not conclude as a matter of law that a charter board may hold an in-person open meeting beyond its geographic service area.

On videoconference meetings, the AG concluded a charter board may meet by videoconference call under section 551.127. The Act normally requires a quorum to be physically present at one meeting location, but subsection (c) is an exception. That subsection had been amended in 2013 by two separate bills that, on their face, covered different kinds of governmental bodies. House Bill 2414 applied to all governmental bodies and limited the public physical space to a location in or within a reasonable distance of the body's geographic jurisdiction, with the presiding member present there. Senate Bill 984 applied only to state bodies or bodies extending into three or more counties and required the presiding member to be physically present at a public location, without an express geographic limit.

Because the two bills did not refer to each other and a mere difference is not an irreconcilable conflict, the AG harmonized them: a state body or a body extending into three or more counties is still a "governmental body," so it is subject to House Bill 2414's location requirement as well as Senate Bill 984's. Applying the harmonized rule to the charter board, the AG concluded the board may meet by videoconference if the presiding member is physically present at a public location in or within a reasonable distance of the charter school's geographic territory; with that anchor in place, the other members may participate from remote locations outside the service area, including outside Texas.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. The Open Meetings Act's videoconference rules in particular have been revisited by the Legislature since 2014. 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

Commissioner Williams and the Texas Education Agency (as the opinion described it): The opinion declined to conclude as a matter of law that a charter board could hold an in-person open meeting outside its service area, treating accessibility as fact-dependent, and concluded the board could meet by videoconference under section 551.127, with members joining remotely (including from outside the state) so long as the presiding member stayed at a public location in or within a reasonable distance of the charter school's territory.

Open-enrollment charter school governing boards (as the opinion described it): The opinion described charter boards as required to comply with the Open Meetings Act but not bound by the school-district rule requiring meetings within district boundaries. It described the in-person out-of-area question as turning on public accessibility under the facts, and described the videoconference exception as available if the presiding member is physically present at a qualifying public location.

Other governmental bodies using videoconference meetings (as the opinion described it): The opinion described state bodies and bodies extending into three or more counties as subject to both 2013 amendments, so their videoconference meetings are limited to a location in or within a reasonable distance of their geographic territory, with the presiding member present there.

Common questions

Can an open-enrollment charter school board hold an in-person meeting outside its service area?
The AG could not say as a matter of law that it can. The Open Meetings Act requires meetings to be physically accessible to the public, accessibility depends on the facts, and a location outside the body's boundaries may not satisfy that requirement.

Does the rule that school boards meet within district lines apply to charter schools?
No. The AG explained that the Education Code chapter imposing that requirement applies to open-enrollment charter schools only if a statute specifically says so, and it does not.

Can a charter board meet by videoconference call?
Yes. The AG concluded the board may conduct an open meeting by videoconference call as provided by section 551.127 of the Government Code.

Can board members join the video meeting from outside the area or out of state?
Yes, with a condition. The AG concluded that as long as the board member presiding over the meeting is physically present at a public location in or within a reasonable distance of the charter school's geographic territory, other members may participate remotely from locations outside the service area, including outside Texas.

Why did the AG have to compare two different bills?
The AG explained that the 2013 Legislature amended the videoconference subsection with two bills (House Bill 2414 and Senate Bill 984) that covered different bodies, and the rules of statutory construction required harmonizing them so each is given effect rather than treating one as repealing the other.

Background and statutory framework

Open-enrollment charter schools must designate the geographic area their programs serve (Tex. Educ. Code Ann. § 12.111(a)(13) (West Supp. 2013)). A school district board must hold each public meeting within district boundaries (id. § 26.007(b) (West 2012)), but the Education Code applies to open-enrollment charter schools only to the extent specifically provided (id. § 12.103(b)), and the list of applicable provisions does not include that chapter (id. § 12.104(b) (West Supp. 2013)). Charter schools must comply with the Open Meetings Act (id. § 12.1051 (West 2012)), which does not expressly authorize a body to meet in person outside its territory (Tex. Gov't Code Ann. §§ 551.001-.146 (West 2012 & Supp. 2013)). Because the Act requires meetings to be open and physically accessible, and accessibility depends on the facts (Tex. Att'y Gen. Op. Nos. JC-0487 (2002) at 2-3, JC-0053 (1999) at 5-6), the AG could not conclude as a matter of law that a charter board may meet in person beyond its service area.

For videoconference meetings, the Act allows a meeting by videoconference call only if a quorum is physically present at one location, except as provided by subsection (c) (Tex. Gov't Code Ann. § 551.127(b) (West Supp. 2013); see also id. § 551.127(a-1) (remote participation by a member)), with subsection (c) being the exception to the physical-quorum rule (id. § 551.127(c) (West Supp. 2013)). The 2013 Legislature amended subsection (c) through House Bill 2414 and Senate Bill 984, which on their face applied to different bodies. Under the rule that same-session amendments to the same statute are harmonized so effect is given to each (id. § 311.025(b) (West 2013); Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946)), with repeal by implication disfavored absent an irreconcilable conflict (Wright, 196 S.W.2d at 85; Cain v. State, 20 Tex. 355, 1857 WL 5252, at *4 (Tex. 1857)), and recognizing that an irreconcilable conflict exists only when it is impossible to comply with both provisions (Tex. Att'y Gen. Op. Nos. GA-1035 (2014) at 2, GA-0369 (2005) at 4 (relying on State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964))), the AG concluded a mere difference between the bills was not an irreconcilable conflict (Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd)). Harmonizing them, state bodies and bodies extending into three or more counties remain "governmental bodies" subject to House Bill 2414's location requirement and Senate Bill 984's presiding-member requirement, so their videoconference meetings are limited to a location in or within a reasonable distance of their geographic territory. Applied to the charter board, members may join remotely (including from outside the state) if the presiding member is present at a qualifying public location.

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 12.111(a)(13) (West Supp. 2013) (designation of geographic service area)
• Tex. Educ. Code Ann. § 26.007(b) (West 2012) (school district meetings within boundaries)
• Tex. Educ. Code Ann. § 12.103(b) (Education Code applies to charter schools only as specifically provided)
• Tex. Educ. Code Ann. § 12.104(b) (West Supp. 2013) (list of applicable provisions)
• Tex. Educ. Code Ann. § 12.1051 (West 2012) (charter schools comply with Open Meetings Act)
• Tex. Gov't Code Ann. §§ 551.001-.146 (West 2012 & Supp. 2013) (Open Meetings Act)
• Tex. Gov't Code Ann. § 551.127(b) (West Supp. 2013) (physical quorum requirement)
• Tex. Gov't Code Ann. § 551.127(a-1) (remote participation by a member)
• Tex. Gov't Code Ann. § 551.127(c) (West Supp. 2013) (videoconference exception)
• Tex. Gov't Code Ann. § 311.025(b) (West 2013) (harmonizing same-session amendments)

Cases:

• Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946)
• Cain v. State, 20 Tex. 355, 1857 WL 5252, at *4 (Tex. 1857)
• State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)
• Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0487 (2002)
• Tex. Att'y Gen. Op. No. JC-0053 (1999)
• Tex. Att'y Gen. Op. No. GA-1035 (2014)
• Tex. Att'y Gen. Op. No. GA-0369 (2005)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1079
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1079.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

September 12, 2014

Mr. Michael Williams Opinion No. GA-1079
Commissioner of Education
Texas Education Agency Re: The authority of members of a
1701 North Congress Avenue governmental body to participate in a meeting
Austin, Texas 78701-1494 by videoconference call under section 551.127
of the Government Code (RQ-1191-GA)

Dear Commissioner Williams:

You ask about the meetings of an open-enrollment charter school's governing board, primarily about the board's authority to meet by videoconference call under the Open Meetings Act (the "Act").[1] However, you first ask about in-person meetings and whether "the governing board of an open-enrollment charter school [may] conduct a meeting outside of the geographic service area of the open-enrollment charter." Id. at 2; TEX. EDUC. CODE ANN. § 12.111(a)(13) (West Supp. 2013) (requiring an open-enrollment charter school to designate the geographic area its programs will serve).

Section 26.007 of the Education Code requires a school district's board of trustees to "hold each public meeting of the board within the boundaries of the district." TEX. EDUC. CODE ANN. § 26.007(b) (West 2012). The Education Code applies to open-enrollment charter schools, however, "only to the extent ... specifically provided" by statute. Id. § 12.103(b). It does not specifically provide that section 26.007 applies to open-enrollment charter schools. See id. § 12.104(b) (West Supp. 2013) (listing the specific applicable provisions of the Education Code, which does not include chapter 26). The Education Code does, however, require open-enrollment charter schools to comply with the Act. Id. § 12.1051 (West 2012). The Act does not expressly authorize a governmental body to conduct an in-person meeting outside of the governmental body's territory. See generally TEX. GOV'T CODE ANN. §§ 551.001-.146 (West 2012 & Supp. 2013). As this office has explained, the Act's requirements that meetings must be open to the public necessarily means that a governmental body's meetings must be held at a location that is physically accessible to the public. See Tex. Att'y Gen. Op. Nos. JC-0487 (2002) at 2-3, JC-0053 (1999) at 5-6. While accessibility will depend on particular facts, a meeting location within a governmental body's territorial boundaries will likely satisfy the Act's accessibility requirement, while one outside of the governmental body's boundaries may not. See Tex. Att'y Gen. Op. No. JC-0053 (1999) at 6 (recognizing the question is fact intensive but concluding in the opinion that the facts did not authorize an out-of-state meeting for a governmental body with statewide jurisdiction). Thus, we cannot conclude as a matter of law that an open-enrollment charter school's governing board may conduct an in-person open meeting in compliance with the Act beyond its geographic service area.

Your remaining questions involve videoconference call meetings conducted under section 551.127 of the Government Code. Request Letter at 2. Your second question is whether "the board of an open-enrollment charter school [may] conduct a meeting by videoconference under Subsection 551.127(c) if the geographic service area of the open-enrollment charter school does not extend into three or more counties." Id. Your third and fourth questions inquire whether members of the board may participate in a videoconference call meeting from "locations outside of the geographic service area" and from "locations outside of the state." Id.

The Act provides that a "meeting may be held by videoconference call only if a quorum of the governmental body is physically present at one location of the meeting, except as provided by Subsection (c)." TEX. GOV'T CODE ANN. § 551.127(b) (West Supp. 2013); see also id. § 551.127(a-1) (authorizing remote participation by a member of a governmental body); Tex. Att'y Gen. Op. No. JC-0487 (2002) at 7 (recognizing the limited extent that videoconferencing may "substitute for in-person meetings"). Subsection (c) is an express exception to the requirement that a quorum of a governmental body must be physically present at a meeting. See TEX. GOV'T CODE ANN. § 551.127(c) (West Supp. 2013). Subsection (c) was amended by two bills enacted by the Eighty-third Legislature. See Act of May 23, 2013, 83rd Leg., R.S., ch. 685, § 2, 2013 Tex. Gen. Laws 1782, 1782-83 ("House Bill 2414"); Act of May 8, 2013, 83rd Leg., R.S., ch. 159, § 1, 2013 Tex. Gen. Laws 598, 598 ("Senate Bill 984"). Subsection (c) in Senate Bill 984 provides that "[a] meeting of a state governmental body or a governmental body that extends into three or more counties may be held by videoconference call only if the member of the governmental body presiding over the meeting is physically present at one location of the meeting that is open to the public." Senate Bill 984, § 1 (emphasis added). Subsection (c) in House Bill 2414 provides that "[a] meeting of a governmental body may be held by videoconference call only if:

(1) the governmental body makes available to the public at least one suitable physical space located in or within a reasonable distance of the geographic jurisdiction, if any, of the governmental body ... ; [and]

(2) the member of the governmental body presiding over the meeting is present at that physical space ...."

House Bill 2414, § 2 (emphasis added). The two bills facially apply to different types of governmental bodies and your remaining questions implicate that difference.[2]

The rules of statutory construction provide that "[i]f amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each." TEX. GOV'T CODE ANN. § 311.025(b) (West 2013); see also Wright v. Broeter, 196 S.W.2d 82, 85 (Tex. 1946) (orig. proceeding). Repeal by implication is not favored, and will be found only if the conflict between the contemporaneous statutes is irreconcilable. Wright, 196 S.W.2d at 85; Cain v. State, 20 Tex. 355, 1857 WL 5252, at *4 (Tex. 1857) (noting limited circumstances justifying a presumption that the Legislature intended its acts passed at the same session to "abrogate and annul one another"). This office recognizes that an "irreconcilable conflict exists when it is impossible to comply with both provisions at the same time." Tex. Att'y Gen. Op. Nos. GA-1035 (2014) at 2, GA-0369 (2005) at 4 (relying on State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)). Mindful of these rules, we consider subsection (c) in the respective bills.

The two bills neither refer to each other nor contain language suggesting a repeal of the other. Subsection (c) from House Bill 2414 applies to all governmental bodies and limits the physical space for the videoconference call meeting to a "location in or within a reasonable distance" of the governmental body's geographic territory. House Bill 2414, § 2 ("A meeting of a governmental body may be held by videoconference call only if ....") (emphasis added). Senate Bill 984's subsection (c) contains no express geographic territory limitation and applies to the subset of all governmental bodies that are state governmental bodies or governmental bodies that extend into three or more counties. Senate Bill 984, § 1. A mere difference between the two bills is "insufficient to constitute an irreconcilable conflict." Garcia v. State, 669 S.W.2d 169, 171 (Tex. App.-Dallas 1984, pet. ref'd). Though treated separately by Senate Bill 984, those governmental bodies that are state governmental bodies or governmental bodies that extend into three or more counties are nonetheless "governmental bodies" under chapter 551. As such, they are also subject to House Bill 2414's subsection (c), which is generally applicable to all governmental bodies. The two bills can be harmonized under a construction that requires state governmental bodies or governmental bodies that extend into three or more counties to conform their videoconference call meetings to both subsection (c) from House Bill 2414 and subsection (c) from Senate Bill 984. Thus, videoconference call meetings of state governmental bodies or governmental bodies that extend into three or more counties are limited to a location in or within a reasonable distance of their geographic territory.

Having harmonized subsection (c) from the two bills, we can address your specific questions. The board of an open-enrollment charter school may conduct an open meeting by videoconference call as provided by section 551.127. And provided that the member of the board of the open-enrollment charter school presiding over the meeting is present at a physical location open to the public in or within a reasonable distance of the charter school's geographic territory, other members of the board may participate in a videoconference call meeting from remote locations outside of the open-enrollment charter school's geographic service area, including areas outside of the state.

SUMMARY

An in-person meeting of an open-enrollment charter school's governing board must be physically accessible to the public to comply with the Open Meetings Act. Because accessibility depends on particular facts, we cannot conclude that an open-enrollment charter school's governing board may conduct such a meeting in compliance with the Act beyond its geographic service area.

An open-enrollment charter school's governing board may conduct an open meeting by videoconference call as provided by section 551.127 of the Government Code. Provided that the member of the board of the open-enrollment charter school presiding over the meeting is present at a physical location open to the public in or within a reasonable distance of the charter school's geographic territory, other members of the board may participate in a videoconference call meeting from remote locations outside of the geographic service area, including areas outside of the state.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Letter from Michael Williams, Comm'r of Educ., Tex. Educ. Agency, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Mar. 12, 2014), https://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] You ask us to assume in this opinion that all requirements for public notice and technical standards have been met. See Request Letter at 2 n.9. Thus, we limit this opinion to a consideration of only subsection 551.127(c).