Does a Texas agency post its own meeting notice when its board attends a Sunset hearing?

Plain-English summary

Texas reviews its state agencies on a schedule through the Sunset Advisory Commission, which holds public hearings to decide whether each agency should continue. At those hearings, the agency's staff and board members are called to testify. The Sunset Commission's director asked whether an agency under review has to post its own Open Meetings Act notice when its board members show up at the hearing. The Attorney General concluded the agency must post notice when a quorum of its board attends and participates.

The reason comes from how the Open Meetings Act defines a "meeting." A meeting happens when a quorum of a governmental body deliberates, which includes a verbal exchange between a quorum and another person about business within the body's jurisdiction. A board does not have to gather on its own or talk among themselves to trigger the Act. The opinion relied on a recent ruling and a prior AG opinion holding that when a quorum of a body attends an event run by someone else and a member joins in discussing the body's business, the body is subject to the Act.

A Sunset hearing fits that pattern. The hearing exists to evaluate the agency and decide whether it survives, so there will be discussion of public business within the agency's supervision. The opinion drew the line at participation by a quorum. If a quorum of the agency's governing body attends and any of them testifies, answers questions, or otherwise supplies information, the agency itself has held a meeting and must post the required notice. If only staff attend, or fewer than a quorum of the board attend, or a quorum attends but none of them says anything or furnishes information, there is no meeting and no separate notice is required.

Currency note

This opinion was issued in 2000. 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 Sunset Commission director who asked (what the opinion held): The opinion answered that an agency under review must post its own Open Meetings Act notice when a quorum of its governing body attends a Sunset hearing and at least one member participates by testifying or furnishing information.

State agencies under Sunset review (what the opinion held for them): At the time, the opinion treated a quorum's participation at the hearing as the agency's own "meeting," so the agency, not just the Commission, had to post notice in those circumstances.

Agency staff (what the opinion held for them): The opinion made clear that attendance and testimony by staff, or by fewer than a quorum of the board, did not create an agency meeting requiring notice.

Common questions

Does an agency have to post notice just because its board members attend a Sunset hearing?
Only if a quorum attends and at least one of them participates. The opinion concluded that a quorum attending plus testimony or supplying information makes the agency hold its own "meeting" requiring notice.

What if only staff go to the hearing?
Then no agency meeting occurs. The opinion concluded that attendance by staff, or by fewer than a quorum of the governing body, does not trigger the Open Meetings Act notice requirement.

What if a quorum attends but nobody from the board speaks?
The opinion concluded that if a quorum attends but none of them testifies, answers questions, or furnishes information, the agency has not held a meeting and need not post notice.

Why is the agency's notice separate from the Sunset Commission's?
The Commission posts notice for its own hearing, but the opinion treated the agency board's participation as a distinct "meeting" of that board, which carries its own notice obligation under the Act.

Background and statutory framework

Each Texas statutory agency has a fixed life and is abolished unless the legislature continues it (Tex. Gov't Code § 325.015). The Sunset Advisory Commission recommends whether agencies should continue, be reorganized, or be abolished (§§ 325.010, .012) and conducts public hearings before an agency's scheduled abolition (§ 325.009). The Open Meetings Act (chapter 551) defines a "meeting" as a deliberation among a quorum of a governmental body, or between a quorum and another person, about public business within the body's control (§ 551.001(4)(A)), and a "deliberation" as a verbal exchange during a meeting between a quorum and another person about an issue within the body's jurisdiction (§ 551.001(2)). Relying on Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n and Attorney General Opinion JC-0203, the opinion concluded that a quorum of an agency board participating at a Sunset hearing holds a meeting subject to the Act's notice requirement.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 325.009 (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 325.010 (Vernon 1998)
• Tex. Gov't Code Ann. § 325.011 (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 325.012 (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 325.015 (Vernon 1998)
• Tex. Gov't Code Ann. § 551.001(2) (Vernon Supp. 2000)
• Tex. Gov't Code Ann. § 551.001(4)(A) (Vernon Supp. 2000)

Cases:

• Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 462 (Tex. App.-San Antonio 1999, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0248
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0248.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

July 10, 2000

Mr. Joey Longley
Director, Sunset Advisory Commission
P.O. Box 13066
Austin, Texas 78711-3066

Opinion No. JC-0248

Re: Whether a state agency that is the subject of a public hearing before the Sunset Advisory Commission must post notice under the Open Meetings Act when its members attend the hearing (RQ-0193-JC)

Dear Mr. Longley:

You have requested our opinion as to whether a state board or commission that is the subject of a public hearing before the Sunset Advisory Commission must itself post notice under the Open Meetings Act when its members attend the hearing. For the reasons indicated below, we conclude that such a board or commission must do so when a quorum of its members attend the hearing.

Each statutory agency, in its enabling legislation, is granted a fixed life, not to exceed twelve years. TEX. GOV'T CODE ANN. § 325.015 (Vernon 1998). Unless continued by the legislative session immediately before its scheduled extinction, an agency will be terminated. Id. The Sunset Advisory Commission (the "Commission") is a state agency charged with recommending to the legislature "whether a public need exists for the continuation of a state agency or its advisory committees or for the performance of the functions of the agency or its advisory committees." Id. § 325.011 (Vernon Supp. 2000). The Commission makes recommendations, inter alia, for "the abolition, continuation, or reorganization" of state agencies, and for "the consolidation, transfer, or reorganization of programs within state agencies." Id. § 325.012; see also id. § 325.010 (Vernon 1998) (at each session commission shall present the legislature and governor a report on agencies and advisory committees scheduled to be abolished). In preparation therefor, the Commission is directed "between September 1 and December 1 of the calendar year before the year a state agency [is] abolished," to "conduct public hearings." Id. § 325.009.

You indicate that, at such a public hearing, "agency staff and members of the agency's policymaking body are called to testify." Letter from Mr. Joey Longley, Director, Sunset Advisory Commission, to Honorable John Cornyn, Attorney General (Feb. 22, 2000) (on file with Opinion Committee) [hereinafter "Request Letter"]. You further advise that the Commission itself "conducts its hearings in accordance with the Open Meetings Act and posts notice according to the rules of the House and Senate." Id. You ask whether the agency under review must "post a separate notice by virtue of the fact that a quorum of its policymaking body might attend and/or testify at a Sunset Commission hearing on matters relating to that agency." Id.

The Open Meetings Act, chapter 551 of the Government Code, defines "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) (Vernon Supp. 2000). 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). See Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 462 (Tex. App.-San Antonio 1999, pet. denied) (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). In a recent opinion, we concluded that "[w]hen a quorum of members of a standing committee of the Harris County Hospital District . . . 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." Tex. Att'y Gen. Op. No. JC-0203 (2000) at 5.

The public hearings of the Sunset Advisory Commission that you describe fall squarely within the principle of Attorney General Opinion JC-0203. Members of the board of a state agency that appear before the Commission "attend a meeting conducted by another entity." Because the hearing is held for the purpose of evaluating the agency's performance and determining whether its existence should be continued, it seems obvious that there will be "a discussion of matters of public business or public policy within the [agency's] supervision." Thus, if a quorum of the members of the governing body of an agency attends the public hearing, and one or more of them testifies before the Commission, answers questions, or in any manner supplies information, the agency will itself be found to have held a "meeting" under the Open Meetings Act, and thus be required to post the requisite notice in accordance with the Act's provisions. If, on the other hand, only staff members, or any number less than a quorum of the governing body, attend the public hearing, the agency will not have held a "meeting." Similarly, even if a quorum of members of the governing body attends, but no one among them testifies, answers questions, or in any manner furnishes information to the Commission, the agency will not have held a "meeting," and thus, will not be required to post the requisite notice.

SUMMARY

If a quorum of the members of a governing body of a state agency attends a public hearing held by the Sunset Advisory Commission under the authority of section 325.009, Government Code, and one or more of such members testifies, answers questions, or in any other manner furnishes information to the Commission, the agency will itself be found to have held a "meeting" under the Open Meetings Act, and thus be required to post the requisite notice in accordance with the Act's provisions.

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

Rick Gilpin
Assistant Attorney General - Opinion Committee