Can a Texas government board meet with its staff to get a briefing without posting an open-meetings notice?

Texas AG Opinion JM-1058: Can a Board Get a Staff Briefing Without an Open-Meetings Notice?

Plain-English summary

The Texas Open Meetings Act is the state's "government in the sunshine" law. When a quorum of a public board gets together to deliberate on public business, the Act generally requires advance public notice of the time, place, and subject, and requires a record. The Acting Commissioner of the Department of Human Services asked a narrower question that agencies run into constantly: what about a plain briefing, where the board members sit down with their own staff to hear information and ask questions, but do not debate anything among themselves? Does that need a posted notice too?

The answer, as of 1989, was no, so long as the members keep it to listening and asking, not deliberating with each other. Getting there took some work, because the Legislature had recently amended the Act in a way that pointed in two directions at once.

The starting point was two earlier opinions, JM-248 (1984) and JM-640 (1987), which had said that receiving information from staff is not a "meeting" at all. The logic came from a court decision, The Pea Picker, Inc. v. Reagan, which held that a commissioners court hearing reports from its agents and employees was not holding a "meeting," because a meeting required a "deliberation," an exchange among the members, and simply absorbing a staff report involved no such exchange.

Then came Senate Bill 168 in 1987. It rewrote the definitions of "meeting" and "deliberation" so they now reach a verbal exchange between a quorum and "any other person," not just among the members themselves. On its face, that change looks aimed squarely at overturning JM-248 and pulling staff briefings into the Act. The bill analysis confirmed that was part of the intent. But the very same bill, in a committee substitute, also added subsection 2(r), which says nothing in the Act requires a quorum to confer with its employees in an open meeting when the conference is for the sole purpose of receiving information or asking questions, as long as the members do not discuss public business or agency policy among themselves during the conference. So one part of the bill seemed to sweep briefings in, and another part seemed to carve them out.

The Attorney General resolved the conflict in favor of the carve-out, for a few reasons. Subsection 2(r) deliberately uses the words "confer" and "conference" rather than the statutorily defined terms "meeting" and "deliberation," which suggests the Legislature was describing something different that sits outside those definitions. Subsection 2(r) also bars exactly the thing that defines a "meeting," namely members discussing public business among themselves, which reads as drawing a line between a permitted information-only conference and a regulated meeting. The placement of 2(r) in section 2 did not settle the question, because section 2 is a grab bag: some of its provisions authorize closed executive sessions during a covered meeting, but others take certain bodies out of the Act entirely, and the legislative history was genuinely conflicting.

What tipped the balance was the criminal penalty. A knowing violation of the Open Meetings Act is a crime. When a statute threatens people with criminal punishment, the Constitution requires it to give fair warning, in language a person of common intelligence can understand, of what conduct is forbidden. The AG concluded that the amended Act did not clearly warn a board member that a subsection 2(r) information-only conference counts as a "meeting" whose omission of notice could send him to jail. Because the Act was, at best, ambiguous on that point, and because a criminal statute demands a higher degree of certainty, the AG construed 2(r) to remove information-only staff conferences from the Act rather than to expose officials to criminal liability under a rule they could not clearly discern.

The practical result: a Texas board may hold a staff briefing to receive information and ask questions without posting an open-meetings notice or keeping the Act's record, provided it stays a briefing. If the members begin discussing public business or agency policy among themselves, they have crossed into a "meeting," and the Act's requirements apply.

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 was recodified after 1989 from V.T.C.S. article 6252-17 into chapter 551 of the Government Code, and the staff-briefing provision discussed here as subsection 2(r) now lives in that chapter with different section numbers. The definitions of "meeting" and "deliberation," the notice periods, and the criminal-penalty provisions have all been amended and interpreted by later courts. Anyone deciding today whether a particular staff briefing needs an open-meetings notice should work from the current Government Code chapter 551 and current case law, not the 1987 article numbers used here.

Who this opinion affected (as of 1989)

State and local boards and their staff: The opinion gave them a workable rule for routine briefings. They could gather to be informed by staff without the delay of posting notice (three or seven days, or two hours in an emergency), as long as the board members did not turn the briefing into a discussion among themselves.

Open-government advocates, journalists, and the public: The opinion drew the line that keeps the exception narrow. A briefing stays outside the Act only if it is purely informational; any member-to-member deliberation on public business converts it into a meeting the public is entitled to notice of.

Board members personally: Because violations of the Open Meetings Act are criminal, the opinion mattered to members individually. Its reading protected them from prosecution over a briefing the statute did not clearly define as a punishable meeting.

Common questions

Can a Texas board be briefed by staff without posting an open-meetings notice?
Yes. The Attorney General concluded that a conference where a quorum receives information from or asks questions of its employees, and nothing more, is not a "meeting" or "deliberation" under the Open Meetings Act, so subsection 2(r) removes it from the Act's notice and record requirements.

What is the condition that keeps a briefing outside the Act?
The board members must not discuss public business or agency policy among themselves during the conference. Once they deliberate with each other, the gathering becomes a "meeting" and the Act applies.

Why did the criminal penalty matter to the answer?
Because a knowing violation of the Act is a crime, and a criminal statute must give fair, clear warning of what it forbids. The AG found the Act did not clearly warn that an information-only conference was a punishable meeting, so it read the exception to protect officials rather than expose them to vague criminal liability.

Didn't the 1987 amendments try to bring briefings into the Act?
The amendments to the definitions of "meeting" and "deliberation" pointed that way, but the same bill added subsection 2(r) pointing the other way. Faced with that conflict and a criminal penalty, the AG read the statute to place information-only conferences outside the Act.

Background and statutory framework

The Acting Commissioner of the Department of Human Services asked whether the Texas Open Meetings Act, V.T.C.S. article 6252-17, applies to orientation or briefing sessions of the Board of Human Services at which board members receive information and ask questions of staff but do not engage in discussion among themselves. Two prior opinions had concluded such sessions were not subject to the Act. Attorney General Opinions JM-640 (1987); JM-248 (1984). JM-248 relied on the trial court's construction in The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App. - Tyler 1982, writ ref'd n.r.e.), which found that a commissioners court meeting to hear reports from agents and employees was not a "meeting" under article 6252-17, because the Act then defined a "meeting" as "any deliberation between a quorum of members of a governmental body at which any public business . . . is discussed." Acts 1973, 63d Leg., ch. 31, § 1, at 45. If no deliberations occurred between members, no meeting took place. See also Attorney General Opinion JM-640 (1987) (oral examination of an applicant by a licensing board was not a meeting).

Senate Bill 168 of the 70th Legislature amended the Act. S.B. 168, Acts 1987, 70th Leg., ch. 549, at 2211. It added language to the definition of "meeting" so that it reached a deliberation "between a quorum of members of a governmental body, or between a quorum of members of a governmental body and any other person," at which public business is discussed or considered, and it added the same "any other person" language to the definition of "deliberation." V.T.C.S. art. 6252-17, § 1(a), (b). Read alone, that change could have been meant simply to make explicit the Act's application to a quorum meeting with outsiders, as the office had already found in Attorney General Opinions MW-390 (1981), MW-417 (1981), and MW-28 (1979). But the bill analysis for S.B. 168 indicated the amendments were designed to overturn JM-248, which had relied on the definitions of "meeting" and "deliberation" to hold that receiving information from employees was not a meeting because no exchange between the members occurred. Bill Analysis, S.B. 168, 70th Leg. (1987).

The committee substitute that passed, however, added a provision not in the introduced bill, subsection 2(r):

Nothing in this Act shall be construed to require a quorum of the members of a governmental body to confer with an employee or employees of the governmental body in an open meeting where such conference is for the sole purpose of receiving information from the employee or employees or to ask questions of the employee or employees; provided, however, that no discussion of public business or agency policy that affects public business shall take place between the members of the governmental body during the conference.

V.T.C.S. art. 6252-17, § 2(r). (A separate provision on telephone conference calls, also codified as section 2(r), was added by S.B. 560, Acts 1987, 70th Leg., ch. 964, § 4, at 3283.)

The opinion found the statute ambiguous but ultimately read 2(r) to remove information-only conferences from the Act. Subsection 2(r) uses the terms "confer" and "conference" rather than the defined terms "meeting" and "deliberation," and while most section 2 exceptions use the statutory terms, some do not. See id. §§ 2(e), 2(p). The Legislature could have used this different language to distinguish such conferences from meetings and remove them from the Act entirely, including its notice and record requirements. The placement of 2(r) in section 2 did not resolve the ambiguity, because section 2 mixes provisions that authorize executive sessions during covered meetings with provisions that remove some entities from the Act entirely, along with various procedural provisions. A recent decision reconciling the Administrative Procedure and Texas Register Act with the Open Meetings Act had listed the executive-session provisions and did not include 2(r). Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. - Austin, May 17, 1989); see Attorney General Opinion JM-645 (1987); cf. Attorney General Opinion H-1269 (1978).

Legislative intent must ultimately be found in the statute's language. See, e.g., Government Personnel Mutual Life Ins. Co. v. Wear, 251 S.W.2d 525 (Tex. 1952). The Legislature's use of different language in 2(r) than in the amended definitions suggested that 2(r) and those definitions do not refer to the same thing. Moreover, subsection 2(r)'s prohibition on any discussion of public business among the members during the conference closely tracks the defining characteristic of a "meeting," so a reasonable person could read 2(r) to exclude a "conference" from the definition of "meeting." Whatever the Legislature may have intended, the relevant provisions did not communicate an intent to subject briefing sessions to the Act with the option of holding them in executive session. Weighing the competing interests, the opinion noted that treating briefings as meetings would give the public notice (though it could be excluded from the actual briefing) and require a record under section 2A, but would force a body to wait three or seven days, or two hours in an emergency, before hearing information at a session where it neither deliberates nor acts, potentially interfering with or even paralyzing public business.

Finally, because members are subject to criminal penalties for certain knowing violations of the Act, V.T.C.S. art. 6252-17, § 4, a contrary interpretation would raise a constitutional vagueness question. The Fifth and Fourteenth Amendments prohibit enforcing a law that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385 (1926); see also Baker v. State, 478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute threatens punishment of people with no fair warning of what to avoid, United States v. Cardiff, 344 U.S. 174 (1952), and a higher standard of certainty is required of criminal statutes than of civil ones. Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983); see Winters v. New York, 333 U.S. 507 (1948). Because the statute did not fairly warn persons of common intelligence that a subsection 2(r) conference is a "meeting" subject to criminal penalties, the opinion construed 2(r) to remove such conferences from the Act.

Citations

Statutory and constitutional authority:

• V.T.C.S. art. 6252-17 (Texas Open Meetings Act), §§ 1(a), 1(b), 2(r), 3A, 4
• V.T.C.S. art. 6252-13a (Administrative Procedure and Texas Register Act), § 17
• S.B. 168, Acts 1987, 70th Leg., ch. 549, at 2211
• S.B. 560, Acts 1987, 70th Leg., ch. 964, § 4, at 3283
• Acts 1973, 63d Leg., ch. 31, § 1, at 45 (prior definition of "meeting")
• U.S. Const. amends. V, XIV

Cases cited:

• The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App. - Tyler 1982, writ ref'd n.r.e.)
• Government Personnel Mutual Life Ins. Co. v. Wear, 251 S.W.2d 525 (Tex. 1952)
• Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. - Austin, May 17, 1989)
• Connally v. General Constr. Co., 269 U.S. 385 (1926)
• Baker v. State, 478 S.W.2d 445 (Tex. Crim. App. 1972)
• United States v. Cardiff, 344 U.S. 174 (1952)
• Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)
• Winters v. New York, 333 U.S. 507 (1948)

Attorney General materials referenced:

• JM-248 (1984); JM-640 (1987); MW-390 (1981); MW-417 (1981); MW-28 (1979); JM-645 (1987); H-1269 (1978); JM-985 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1058
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1058.pdf

Original opinion text

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

June 14, 1989

Mr. Charles Stevenson
Acting Commissioner
Texas Department of Human Services
P. O. Box 2960
Austin, Texas 78769

Opinion No. JM-1058

Re: Whether the Texas Open Meetings Act authorizes a governmental body to hold "briefing sessions" to receive information from staff members without providing notice (RQ-1686)

Dear Mr. Stevenson:

You ask whether the Texas Open Meetings Act, article 6252-17, V.T.C.S., applies to orientation or briefing sessions of the Board of Human Services, at which board members receive information and ask questions of staff members but do not engage in discussion between themselves. This office has issued two opinions concluding that such sessions were not subject to the requirements of the Open Meetings Act. Attorney General Opinions JM-640 (1987); JM-248 (1984).

Attorney General Opinion JM-248 relied on the trial court's construction of the Open Meetings Act in The Pea Picker, Inc. v. Reagan, 632 S.W.2d 674 (Tex. App. - Tyler 1982, writ ref'd n.r.e.). The court found that a meeting held by a commissioners court to hear reports from agents and employees was not a "meeting" within article 6252-17, V.T.C.S. The act then defined a "meeting" as "any deliberation between a quorum of members of a governmental body at which any public business . . . is discussed." (Emphasis added.) See Acts 1973, 63d Leg., ch. 31, § 1, at 45. If no deliberations were held between members of the governmental body, then no "meeting" took place and the requirements of the Open Meetings Act did not apply. See also Attorney General Opinion JM-640 (1987) (oral exam of applicant by licensing board was not a "meeting").

Senate Bill 168 of the 70th Legislature adopted a number of amendments to the Open Meetings Act. S.B. 168, Acts 1987, 70th Leg., ch. 549, at 2211. The bill added language to the definition of "meeting" so that it now reads in part:

(4) "Meeting" means any deliberation between a quorum of members of a governmental body, or between a quorum of members of a governmental body and any other person, at which any public business . . . is discussed or considered . . . . (Emphasis added.)

V.T.C.S. art. 6252-17, § 1(a). The same language was added to the definition of "deliberation" so that it now reads as follows:

(b) "Deliberation" means a verbal exchange during a meeting between a quorum of members of a governmental body, or between a quorum of members of a governmental body and any other person, concerning any issue within the jurisdiction of the governmental body or any public business. (Emphasis added.)

Id. § 1(b).

A facial reading of the amended sections 1(a) and 1(b) yields more than one interpretation. This office has found the Open Meetings Act applicable to a meeting called by a district judge and attended by a quorum of members of a county commissioners court if the commissioners engaged in deliberations. Attorney General Opinion MW-390 (1981). The Act has also been held to apply to a joint meeting of representatives of two or more governmental bodies if a quorum of members of one governmental body attends and engages in deliberations. Attorney General Opinion MW-417 (1981); see Attorney General Opinion MW-28 (1979). The amendments could have been adopted to make explicit this application of the Open Meetings Act. However, the bill analysis prepared for Senate Bill 168 indicates that the amendments were designed to overturn the conclusion of Attorney General Opinion JM-248. The following language appeared in the bill analysis prepared for the introduced version of the bill, but was not updated as the bill underwent substantive changes:

The Texas Open Meetings Act (TOMA) . . . was enacted in 1967 to ensure that important governmental decisions are made in public meetings. Several problems under TOMA currently are frustrating this purpose of 'government in the sunshine.' Courts and the attorney general have ruled that members of a public body may meet without complying with TOMA to receive information and ask questions of a third party. [The analysis then mentions Attorney General Opinion JM-248 and its reliance on an appellate court case]. . . . In The Pea Picker, Inc. v. Reagan, . . . the court held that receiving information from employees was not a 'meeting' because no 'deliberation' had occurred in that there was no exchange between the members. (Emphasis in original.)

Bill Analysis, S.B. 168, 70th Leg. (1987). Since Attorney General Opinion JM-248 relied on the definitions of "meeting" and "deliberation," Senate Bill 168 sought to bring such briefing sessions within the coverage of the Open Meetings Act by amending those definitions.

These amendments to subsections 1(a) and 1(b) of the Open Meetings Act appeared in Senate Bill 168 as introduced and in the bill as adopted by the legislature. The introduced bill was reported adversely by the Senate Committee on State Affairs and a committee substitute was reported favorably. The committee substitute included the following provision, not found in the introduced bill:

(r) Nothing in this Act shall be construed to require a quorum of the members of a governmental body to confer with an employee or employees of the governmental body in an open meeting where such conference is for the sole purpose of receiving information from the employee or employees or to ask questions of the employee or employees; provided, however, that no discussion of public business or agency policy that affects public business shall take place between the members of the governmental body during the conference. (Emphasis added.)

V.T.C.S. art. 6252-17, § 2(r).1

Section 2(r) uses the terms "confer" and "conference" instead of the statutorily defined terms "meeting" and "deliberation" to describe a briefing session. Nearly all of the section 2 exceptions use one or both of the statutory terms. But see id. §§ 2(e) ("consultations" with attorney), 2(p) ("interviews and counseling sessions" between members of Board of Pardons and Paroles and inmates of Department of Corrections). The legislature could have chosen its language to distinguish such conferences from meetings and to remove them completely from the Open Meetings Act, including its notice and record-keeping requirements. On the other hand, the legislature may have thought that the section 2(r) "conference" would involve "a verbal exchange . . . between a quorum of members of a governmental body and any other person" and that it would therefore be a "meeting" at which "deliberations" take place.

The placement of subsection (r) in section 2 does not resolve this ambiguity, since section 2 includes various types of provisions and not merely provisions authorizing a closed session during a meeting subject to the Open Meetings Act.2 Although several of these provisions authorize executive sessions for governmental bodies subject to the act, others appear to remove some entities completely from the act. Various other procedural provisions are also included in section 2.

The legislative intent must ultimately be found in the language of the statute. See, e.g., Government Personnel Mutual Life Ins. Co. v. Wear, 251 S.W.2d 525 (Tex. 1952). The answer to your question depends on what the language adopted as Senate Bill 168 communicates to the persons who read it.3 As already pointed out, subsection 2(r) uses the terms "confer" and "conference." The same bill that adopted this provision used very different language in the amendments to subsections 1(a) and 1(b). The legislature's use of language in subsection 2(r) that differs from the language added to the definitions suggests that 2(r) and those definitions do not refer to the same thing.

Moreover, subsection 2(r) provides that "no discussion of public business or agency policy that affects public business shall take place between the members of the governmental body during the conference." "Meeting" is defined as "any deliberation" between certain described persons "at which any public business or public policy over which the governmental body has supervision or control is discussed or considered . . . ." V.T.C.S. art. 6252-17, § 1(a). The quoted phrases are not identical, but their differences are subtle. The phrases are sufficiently similar that a reasonable person could read subsection 2(r) to prohibit the kind of discussion which is a defining characteristic of a "meeting" and therefore to exclude a "conference" from the definition of "meeting." In our opinion, whatever the legislature may have intended, the relevant provisions do not communicate an intent to subject briefing sessions to the Open Meetings Act with the option of holding them in executive session.

The adoption of Senate Bill 168 involved negotiation and compromise between competing interests. If briefing sessions were subject to the Open Meetings Act, the public would receive notice of the time, place, and subject of such sessions, although they could be excluded from the actual briefing. Id. § 3A. Members of the public would thus have access to a minimal amount of additional information about government. The governmental body would have to keep a record of the briefing session as required by section 2A, and this requirement presumably would help enforce the prohibition against board members discussing among themselves "public business or agency policy that affects public business" when involved in a conference under subsection 2(r).

On the other hand, if a governmental body had to comply with the notice requirements prior to briefings by employees, it would have to wait three days or seven days to hear the information, depending on which notice period applies to it. Id. § 3A(h). In the event of an emergency or urgent public necessity, it would have to wait for two hours before the briefing. Id.; see also Attorney General Opinion JM-985 (1988) (discussing meaning of emergency). This delay would occur before a session in which the governmental body would neither deliberate nor take action, but would only receive some information relevant to its public duties. Delays in the board members' receipt of information needed for their work could interfere with the efficient conduct of public business and might even paralyze the governmental body in matters of great urgency. In weighing these competing interests, the legislature might reasonably have concluded that briefing sessions should be taken completely out of the Open Meetings Act.

Finally, since members of a governmental body are subject to criminal penalties for certain knowing violations of the Open Meetings Act, see V.T.C.S. art. 6252-17, § 4, a contrary interpretation of subsections 1(a) and (b) and 2(r) would raise a constitutional question. The Fifth and Fourteenth Amendments of the United States Constitution prohibit the enforcement of any law that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385 (1926); see also Baker v. State, 478 S.W.2d 445 (Tex. Crim. App. 1972). A vague statute threatens punishment of people who had no fair warning of what conduct to avoid. See United States v. Cardiff, 344 U.S. 174 (1952). A higher standard of certainty is required of a statute imposing criminal penalties than of one relying on civil enforcement. Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983); see Winters v. New York, 333 U.S. 507 (1948).

We believe that the language of the statute does not fairly warn persons of common intelligence that a subsection 2(r) conference is a "meeting" within the Open Meetings Act and that they will be subject to criminal penalties for participation in a conference that is not conducted according to the requirements of the act. Our construction of the statute is thus necessary because of the inclusion of criminal penalties to enforce its procedural provisions.

1. A provision on meeting by telephone conference call also codified as section 2(r) was added to the Open Meetings Act by another bill during the same session. S.B. 560, Acts 1987, 70th Leg., ch. 964, § 4, at 3283.

2. The Austin Court of Appeals recently issued a decision reconciling the provisions of the Administrative Procedure and Texas Register Act on ex parte communications between agency members in contested cases, V.T.C.S. art. 6252-13a, § 17, with the Open Meetings Act provisions requiring governmental bodies to deliberate in public. Texas Water Comm'n v. Acker, No. 3-87-244-CV (Tex. App. - Austin, May 17, 1989) (motion for rehearing filed May 31, 1989); see Attorney General Opinion JM-645 (1987) (Administrative Procedure and Texas Register Act creates an exception to Open Meetings Act permitting commission decisions on claims of privilege to be made in a closed meeting); cf. Attorney General Opinion H-1269 (1978) (decision-making process under article 6252-13a, V.T.C.S., is not exempt from requirements of Open Meetings Act). The court's list of provisions authorizing executive sessions did not include section 2(r) of the Open Meetings Act.

3. A review of the testimony on this bill shows conflicting statements by the senate sponsor. See Hearing on S.B. 168 before the Senate Comm. on State Affairs, 70th Leg. (March 23, 1987) (tape recording available from Senate Staff Services Office); Debate on S.B. 168 on the Floor of the Senate, 70th Leg. (April 15, 1987) (tape recording available from Senate Staff Services Office).

SUMMARY

Conferences between members of a governmental body and an employee or employees for the sole purpose of receiving information or asking questions are not "meetings" or "deliberations" subject to any requirements of the Open Meetings Act, article 6252-17, V.T.C.S. Subsection 2(r) of the act, adopted by Senate Bill 168 of the 70th Legislative Session, removes the conferences it describes from the coverage of the act.

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

Prepared by Susan L. Garrison
Assistant Attorney General