When can a Texas city council hold a two-hour-notice emergency meeting instead of giving the full 72 hours?

Texas AG Opinion JM-1037: When Is a Two-Hour "Emergency Meeting" Actually Legal?

Plain-English summary

Under the Texas Open Meetings Act, a governmental body normally has to post notice of a meeting 72 hours ahead of time so the public can show up. There is a narrow escape hatch for genuine emergencies: two hours' notice is enough. This opinion is about a city council that reached for that escape hatch when it should not have.

Here is what happened. In April 1988 the Alvin City Council, at a regular meeting, eliminated a city employee's job. As that meeting was wrapping up, the fired employee handed the council copies of a lawsuit he had filed that day. The council was not formally served until a few days later. Rather than wait and post the normal 72 hours' notice, the council posted a two-hour emergency-meeting notice to take up two topics: "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council." The Brazoria County District Attorney asked the Attorney General whether that emergency meeting was legal.

It was not, for two independent reasons. First, the notice did not say what the emergency was. The Legislature had recently amended the Open Meetings Act to require that an emergency-meeting notice clearly identify the emergency or urgent public necessity, and this notice simply listed the two topics without stating any reason for the rush. That amendment was a direct response to a 1986 court decision that had said notice did not need to describe the emergency; the Legislature disagreed and wrote the requirement into the statute.

Second, there was no real emergency in the first place. The same amendment limited emergencies to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action. Worrying about council members' legal exposure, however understandable, did not fit either category. Once the council was served, it had 20 days from the following Monday to answer the lawsuit, which left plenty of time to post the ordinary 72 hours' notice for decisions (indemnifying members and hiring outside counsel) that would spend public money. The Attorney General also flagged the stakes: action taken in violation of the Open Meetings Act can be voided in court.

Currency note

This opinion was issued in 1989. 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.

The Texas Open Meetings Act (former article 6252-17) was recodified into the Government Code after 1989, and its notice and emergency-meeting provisions have been amended since. Anyone dealing with a present-day open-meetings notice question should consult the current statute rather than rely on this 1989 analysis and the old article and section numbers used here.

Who this opinion affected (as of 1989)

City councils and other governmental bodies: The opinion warned them that a two-hour emergency meeting must both state the reason for the emergency in the notice and involve a real emergency, not just an inconvenient deadline.

Residents and open-government watchdogs: The opinion reinforced their right to the full 72 hours' notice except in genuine emergencies, and pointed out that improperly noticed action can be voided.

Council members facing lawsuits: The opinion made clear that concern about personal liability, without an imminent threat or truly unforeseeable need for immediate action, does not justify skipping the normal notice period.

Common questions

Can a Texas city council meet on just two hours' notice?
Only in a genuine emergency. The AG concluded section 3A(h) allows two hours' notice only for an emergency or urgent public necessity that is clearly identified in the notice.

What makes an "emergency" under the Open Meetings Act?
An imminent threat to public health and safety, or a reasonably unforeseeable situation requiring immediate action. The AG concluded neither existed where the council had more than 20 days to respond to a lawsuit.

Does the emergency notice have to say what the emergency is?
Yes. The AG concluded the notice must state the reason for the emergency, a requirement the Legislature added in 1987, and a notice that only lists topics does not comply.

What happens if a body meets without proper notice?
The action can be challenged. The AG noted that action taken in violation of the Open Meetings Act can be voided in a court action.

Background and statutory framework

The request concerned whether the Alvin City Council's emergency meeting complied with the Texas Open Meetings Act, article 6252-17, V.T.C.S. On April 25, 1988, during a regular meeting, the council eliminated a city employee's position; near the end of that meeting the terminated employee handed the council copies of the pleadings in a lawsuit filed that same day, though the council was not formally served until April 29. The council posted a two-hour emergency-meeting notice to discuss "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council."

Section 3A(h) of article 6252-17 requires that notice of a meeting be posted at least 72 hours before the scheduled time, but authorizes a shorter period in an emergency or urgent public necessity, which must be clearly identified in the notice, in which case posting two hours before the meeting is sufficient; the person posting notice takes at face value the reason for the emergency as stated by the governmental body. The AG identified two significant requirements: the notice must state the reason for the emergency, and an emergency within the meaning of section 3A(h) must actually exist. The notice here, listing only the two topics, stated no reason for the emergency and thus failed the first requirement.

The AG explained that the 70th Legislature added the requirement that the reason for an emergency meeting be stated in the notice. Acts 1987, 70th Leg., ch. 549, § 5, at 2213-14. In River Road Neighborhood Ass'n v. South Texas Sports, 720 S.W.2d 551, 554 (Tex. App.—San Antonio 1986, no writ), decided before that amendment, the court had held that notice need not describe the nature of the emergency warranting an emergency meeting; the amendment responded by expressly requiring that emergency-meeting notice state the reason for the emergency and that the emergency or urgent public necessity be clearly identified.

On the second requirement, the AG concluded no emergency existed on the facts presented. The same 1987 amendment limited cases of emergency and urgent public necessity to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action, and neither was present. Although council members' concern about their liability was understandable, the situation did not require immediate action: the council was not formally served until April 29, and then had 20 days from the following Monday to answer the initial pleadings, leaving ample time to post 72 hours' notice of a meeting to discuss indemnifying council members and hiring a law firm, both actions requiring the expenditure of public funds. The AG noted that action taken in violation of the Open Meetings Act can be voided in a court action. See Attorney General Opinion JM-985 (1988).

Citations

Cases:

• River Road Neighborhood Ass'n v. South Texas Sports, 720 S.W.2d 551 (Tex. App.—San Antonio 1986, no writ) (pre-amendment holding that notice need not describe the emergency)

Statutory authority:

• Open Meetings Act, V.T.C.S. art. 6252-17, § 3A(h) (72-hour notice; two-hour emergency notice; emergency defined)
• Acts 1987, 70th Leg., ch. 549, § 5, at 2213-14 (added the stated-reason and limited-emergency requirements)

Prior Attorney General opinion:

• Attorney General Opinion JM-985 (1988) (action taken in violation of the Open Meetings Act can be voided)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1037
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1037.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

April 6, 1989

Honorable Jim Mapel
Criminal District Attorney
Brazoria County
329 N. Arcola
Angleton, Texas 77515

Opinion No. JM-1037

Re: Whether the Texas open Meetings Act, article 6252-17, V.T.C.S., authorizes a city to hold an emergency meeting to discuss indemnifying council members in a lawsuit and hiring an outside law firm to represent the council (RQ-1545)

Dear Mr. Mapel:

You ask whether an "emergency meeting" held by the Alvin City Council complied with the Texas Open Meetings Act, article 6252-17, V.T.C.S. You advise that, on April 25, 1988, during a regularly scheduled meeting, the city council eliminated the position of a city employee. Near the conclusion of that regular meeting, the terminated employee handed the city council copies of the pleadings in a lawsuit the employee filed that same day. The city council was not served formally with the lawsuit until April 29. The city council posted notice to hold an emergency meeting, a meeting with only two hours notice, to discuss the lawsuit under the following topics: "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council."

Section 3A(h) of article 6252-17 provides, in part:

Notice of a meeting must be posted in a place readily accessible to the general public at all times for at least 72 hours preceding the scheduled time of the meeting . . . .

The act authorizes a shorter notice period for emergencies:

In case of emergency or urgent public necessity, which shall be clearly identified in the notice, it shall be sufficient if the notice is posted two hours before the meeting is convened. Any public official or person who is designated or authorized to post notices of meetings by a governmental body in accordance with Section 3A of this Act shall post the notice taking at face value the reason for the emergency as stated by the governmental body. (Emphasis added.)

Id.

Section 3A(h) contains two requirements that are significant to the case at hand: (1) that notice for emergency meetings must state the reason for the emergency and (2) that an "emergency," within the meaning of section 3A(h), must exist. The notice you describe, e.g., "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council," does not meet the first requirement of section 3A(h). The notice states no reason for the emergency.

The 70th Legislature added the requirement that the reason for an emergency meeting be stated in the notice. See Acts 1987, 70th Leg., ch. 549, § 5, at 2213-14. In River Road Neighborhood Ass'n v. South Texas Sports, 720 S.W.2d 551, 554 (Tex. App. - San Antonio 1986, no writ), decided prior to this amendment, the court held that notice need not describe the nature of the emergency warranting an emergency meeting. The amendment of section 3A(h) responded to that case by requiring expressly that emergency meeting notice state the reason for the emergency. Section 3A(h) requires that the emergency or urgent public necessity "be clearly identified." In addition, the person who posts notice shall take "at face value the reason for the emergency as stated by the governmental body." (Emphasis added.)

Further, on the facts you present, it does not appear that an "emergency," within the meaning of section 3A(h), existed. The 70th Legislature also added the language of section 3A(h) that limits expressly the situations that warrant emergency meetings:

Cases of emergency and urgent public necessity are limited to imminent threats to public health and safety or reasonably unforeseeable situations requiring immediate action by the governmental body. (Emphasis added.)

Section 3A(h) requires an imminent threat to the public health and safety or a reasonably unforeseeable situation requiring immediate action. Neither was present in the case at hand.

Although it is understandable that council members would be concerned about their liability, the situation presented was not one that required "immediate action." The council was not served formally with notice of the lawsuit until April 29. At that time, the council had 20 days from the Monday following service in which to answer plaintiff's initial pleadings. Ample time existed during this period to post 72 hours notice of a meeting to discuss indemnifying council members and hiring a law firm to represent the council members, both actions that would require the expenditure of public funds. For this reason, the notice for the emergency meeting did not comply with section 3A(h). See Attorney General Opinion JM-985 (1988) (action taken in violation of the Open Meetings Act can be voided in court action).

SUMMARY

An "emergency meeting," a meeting posted with only two hours notice, to discuss the topics "Indemnify the Alvin City Council" and "Hire a law firm to represent the Alvin City Council" does not comply with the notice requirements of section 3A(h) of article 6252-17, V.T.C.S., when the notice fails to state the reason for the emergency and when the city had more than 20 days in which to take action on the topics discussed.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General