Does the Open Meetings Act apply when a quorum of a Texas public board committee attends an outside speech?

Plain-English summary

The Harris County Attorney asked a practical question that any multi-committee public board runs into: when members of a board committee sit in the audience at someone else's speech or meeting where the board's business comes up, does the Open Meetings Act kick in? The Harris County Hospital District Board of Managers had eight standing committees, most board members served on several, and six committees had only three members, so two members in the same room formed a quorum without anyone planning it.

The Attorney General drew the line based on subject matter, not on who happened to be present. If a quorum of a standing committee attends an outside event and a member takes part in a verbal exchange about public business that falls within that committee's own area of supervision, the committee is holding a "meeting" under the Act and has to follow the notice and public-access rules. If the discussion is about the hospital district's business generally but not about anything that particular committee oversees, the committee is not subject to the Act, because the deliberation does not concern business within its supervision.

The opinion gave committees a practical out: a member invited to comment on a topic within his or her committee's jurisdiction, at an event where Open Meetings Act compliance is not possible (no public notice, not open to the public), should decline to address that subject and explain why. The opinion also noted a separate statutory exception: attendance by a quorum at a regional, state, or national convention or workshop is not a "meeting" as long as no formal action is taken and any discussion of public business is incidental to the convention or workshop.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

The Open Meetings Act, chapter 551 of the Texas Government Code, requires governmental bodies to give public notice of, and keep open, meetings where they deliberate public business. The Act's reach turns on two definitions. A "meeting" under section 551.001(4)(A) is a deliberation between a quorum of a governmental body (or between a quorum and another person) about public business or public policy over which the body has supervision or control. A "deliberation" under section 551.001(2) is a verbal exchange during a meeting between a quorum, or between a quorum and another person, about an issue within the body's jurisdiction or any public business.

A 1974 opinion (H-238) had already established that the hospital district's standing committees were themselves governmental bodies that had to comply with the Act, and the county attorney confirmed the committees followed the notice and accessibility rules. The wrinkle was the small committee size: under section 551.001(6), two members of a three-member committee are a quorum, so two committee members showing up at the same speech could form an "inadvertent quorum."

The opinion keyed its answer to whether the discussed topic was within that committee's supervision. It relied on the appellate decision in Bexar Medina Atascosa Water Dist., which held that deliberations can occur even at an informational gathering where board members answer questions from non-members, without the members talking among themselves. The opinion also flagged a newer definition added by the 76th Legislature in 1999, section 551.001(4)(B), which can make a gathering a "meeting" even when members only receive information, but set it aside because the county attorney asked only about "deliberations."

Common questions

What made a committee's attendance at an outside speech a "meeting"?
A quorum of the committee being present plus a member actually deliberating (a verbal exchange) about public business or public policy within that committee's supervision. Both pieces had to be present for the Act to apply.

What if the topic was about the hospital district generally but not that committee's area?
Then the committee was not subject to the Act for that discussion, because the deliberation did not concern business over which that particular committee had supervision. The opinion noted that if a quorum of the full Board of Managers had been present, any deliberation it engaged in would be subject to the Act.

Could a committee member just stay quiet to avoid a violation?
Effectively, yes. The opinion advised that where Open Meetings Act compliance was not possible (for example, the event was not open to the public or no notice was posted), committee members in attendance should not deliberate on matters within the committee's supervision. A member asked to comment on such a topic should decline and explain that the remarks would otherwise be subject to the Act.

Did the Act apply at conventions and workshops?
The opinion pointed to a statutory exception: a quorum attending a regional, state, or national convention or workshop is not holding a "meeting" as long as no formal action is taken and any discussion of public business is incidental to the convention or workshop. A "workshop" in this sense meant a meeting for discussion or study, not an event the body itself organized to conduct public business.

Was this a fact-specific answer?
Yes. The opinion stressed that whether any specific behavior violates the Open Meetings Act is generally a question of fact, and that it relied on the facts the county attorney supplied. Different facts could change the result.

Citations

Statutes: Tex. Gov't Code Ann. ch. 551, §§ 551.001-.146 (Vernon 1994 & Supp. 2000), the Open Meetings Act, including § 551.001(2) (deliberation), § 551.001(4)(A) and (4)(B) (meeting), § 551.001(4)(B)(iv) (convention/workshop exception), and § 551.001(6) (quorum); Act of May 22, 1999, 76th Leg., R.S., ch. 647, § 1, 1999 Tex. Gen. Laws 3218.

Case: Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459 (Tex. App.-San Antonio 1999, pet. denied).

Prior Attorney General opinions referenced: H-238 (1974), JC-0169 (2000).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0203
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0203.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

JOHN CORNYN

April 4, 2000

The Honorable Michael P. Fleming
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002-1700

Opinion No. JC-0203

Re: Attendance at meetings and speaking engagements by members of the Board of Managers of the Harris County Hospital District (RQ-0133-JC)

Dear Mr. Fleming:

You inquire about the circumstances under which a quorum of a standing committee of the Harris County Hospital District Board of Managers (the "HCHD Board of Managers" or "Board") may attend as members of the audience speaking engagements and meetings relevant to the hospital district's public business without violating the Open Meetings Act (the "Act"). See TEX. GOV'T CODE ANN. ch. 551, §§ 551.001-.146 (Vernon 1994 & Supp. 2000). When a quorum of a standing committee of the HCHD Board of Managers attends a speaking engagement or meeting conducted by another entity and participates in a discussion of matters of public business or public policy within the supervision of that standing committee, it will be subject to the Open Meetings Act. If the committee participates in a discussion of matters of public business or public policy within the supervision of the hospital district but not of that particular standing committee, it will not be subject to the Open Meetings Act.

You inform us that the HCHD Board of Managers has eight standing committees, such as the Building and Properties Committee, the Clinic Committee, the Fiscal Affairs Committee, the Joint Conference Committee, and the Personnel Committee. The HCHD Board of Managers has delegated to each of these committees authority to deliberate and make recommendations in a particular area of hospital district business. This office concluded in Attorney General Opinion H-238 (1974) that standing committees composed of members of the HCHD's Board of Managers must comply with the notice and accessibility provisions of the Open Meetings Act, and you state that committees comply with these requirements. See Brief from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Cornyn, Attorney General of Texas, at 1-3 (Oct. 21, 1999) (on file with Opinion Committee) [hereinafter "Brief of 10/21/99"].

All but the Joint Conference Committee are composed entirely of members of the Board, and six of the standing committees are composed of three members. See id. at 1. The Fiscal Affairs Committee consists of four members, and the Joint Conference Committee consists of seven members, three of whom are members of the HCHD Board of Managers. See id. Most Board members serve on more than one standing committee, and in some cases, on as many as four. See id. at 2, 4.

Two members of a three-member committee make up a quorum. See TEX. GOV'T CODE ANN. § 551.001(6) (Vernon Supp. 2000). Thus, a problem arises "when two members of a three-Board-member committee desire to attend the same speaking engagement at which matters involving the Harris County Hospital District will be discussed and the attending Board members may be called upon to participate in that discussion." Brief of 10/21/99, at 3-4. You present a hypothetical case where a Board member who sits on four standing committees wishes to attend a speech on issues relevant to the hospital district and anticipates being called upon to comment on issues raised at the speech. See id. at 4. Must this individual contact each other member of his committees to determine whether any of them will attend the same speech, thereby forming an "inadvertent quorum of an HCHD standing committee" at the speech? See id. You furthermore note that some of the standing committees, for example, the Personnel Committee, have such a limited scope that topics under their review would probably not be raised at a speech on more global matters about the hospital district. See id.

With this background in mind, you ask the following question:

If two members of a three-Board-member standing committee desire to attend a meeting or speaking engagement and there is likely to be a deliberation between the two standing-committee members, or between them and another person, during which public business or public policy over which the HCHD Board of Managers - but not that particular standing committee - has supervision or control, must the meeting comply with the notice and other provisions of the Open Meetings Act?

Id. (emphasis in original). You also ask whether the meeting must comply with the Open Meetings Act if the deliberation relates to public business or public policy over which the standing committee in attendance has supervision or control.

Whether any specific behavior violates the Open Meetings Act is generally a question of fact. See Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 461 n.2 (Tex. App.-San Antonio 1999, pet. denied). In addressing your questions, we rely on the facts you have provided and note that additional or different facts may result in a different conclusion in a given case.

You point out that the Open Meetings Act defines "meeting" to mean:

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) (Vernon Supp. 2000). "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). See Bexar Medina Atascosa Water Dist., 2 S.W.3d at 462 (deliberations took place at informational gathering of water district board with landowners, where one board member asked question and another board member answered questions, even though board members did not discuss business among themselves).

Although you are concerned about "deliberations" that might occur when members of the same standing committee are in the audience at a speaking engagement, we point out another definition of "meeting" that is not based on the governmental body's participation in deliberations. Section 551.001(4)(B) of the Government Code, adopted by the 76th Legislature, defines "meeting" to include:

except as otherwise provided by this subdivision, a gathering:

(i) that is conducted by the governmental body or for which the governmental body is responsible;

(ii) at which a quorum of members of the governmental body is present;

(iii) that has been called by the governmental body; and

(iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.

TEX. GOV'T CODE ANN. § 551.001(4)(B) (Vernon Supp. 2000), adopted by Act of May 22, 1999, 76th Leg., R.S., ch. 647, § 1, 1999 Tex. Gen. Laws 3218 (emphasis added). This definition applies if a governmental body conducts or is responsible for holding the lecture or meeting, if a quorum is present, if the governmental body has called the gathering, and if the subject of the lecture is the "public business or public policy over which the governmental body has supervision or control." Id. § 551.001(4)(A). Under section 551.001(4) of the Government Code, a governmental body is subject to the Open Meetings Act even if the members merely receive information and do not engage in deliberations among themselves or with a third party. See Tex. Att'y Gen. Op. No. JC-0169 (2000). Because you inquire only about "deliberations" at speaking engagements, we assume that you are concerned only about "meetings" as defined by Government Code section 551.001(4)(A) and not the gatherings defined as "meetings" by section 551.001(4)(B).

We also note that a meeting "does not include the ... attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, if formal action is not taken and any discussion of public business is incidental to the ... convention, or workshop." TEX. GOV'T CODE ANN. § 551.001(4)(B)(iv) (Vernon Supp. 2000). If a quorum of the HCHD Board of Managers, or of a standing committee of the Board, attends a speech at a regional, state, or national convention or workshop, it is not subject to the Open Meetings Act as long as no formal action is taken and any discussion of public business is incidental to the convention or workshop. A "workshop" in the context of this provision is "[a] meeting for discussion, study, experiment, etc., orig. in education or the arts, but now in any field." XX OXFORD ENGLISH DICTIONARY 554 (2d ed. 1989). It does not include a meeting organized by the governmental body for the purpose of discussing and/or conducting public business. If a speech is given as part of a regional, state, or national convention or workshop, a quorum of a governmental body may attend without being subject to the Act, as long as their discussion remains within the limits stated in section 551.001(4)(B)(iv) of the Government Code.

You first ask about attendance at a lecture by a quorum of a standing committee, where members of the committee are likely to be called upon to comment upon a matter of public business or public policy within the supervision or control of the HCHD Board of Managers but not of the particular standing committee. Under these circumstances, the committee need not comply with the notice and other requirements of the Open Meetings Act, because its deliberations would not address "public business or public policy" over which the committee has supervision. Of course, if a quorum of the HCHD Board of Managers itself were present at the lecture, any deliberations it engaged in would be subject to the Act.

You also ask about attendance at a lecture by a quorum of a standing committee, where committee members are likely to be called upon to comment upon matters of public business or public policy within the supervision of their particular standing committee. If a quorum of the committee is present and a member in fact engages in a verbal exchange with another member or with another person on public business or public policy within the committee's supervision, the committee will be subject to the Open Meetings Act. The committees or the HCHD Board of Managers should consider establishing procedures for determining whether a quorum of a committee or of the Board will attend a public lecture and for giving public notice of that meeting. If compliance with the Open Meetings Act is not possible, for example, because the lecture is not accessible to the public or notice has not been posted, the members of the committee in attendance may not deliberate on subject matter that is within the committee's supervision. If a committee member is invited to comment on issues raised by the speaker, he or she should decline to address subjects within the jurisdiction of his or her committee, explaining that under the circumstances his or her remarks would be subject to the Open Meetings Act.

SUMMARY

When a quorum of members of a standing committee of the Harris County Hospital District Board of Managers attends a speaking engagement or meeting conducted by another entity and a member participates in a discussion of matters of public business or public policy within the committee's supervision, the committee will be subject to the Open Meetings Act. If a member of the standing committee participates in a discussion of matters of public business or public policy within the Harris County Hospital District's supervision but not of that particular committee's supervision, it will not be subject to the Open Meetings Act.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee