Does the Texas Open Meetings Act apply when a quorum of a state board attends another organization's meeting?

Texas AG Opinion JM-1127: When Does a Quorum Attending Another Body's Meeting Trigger the Open Meetings Act?

Plain-English summary

The Credit Union Commission set up the Texas Share Guaranty Credit Union (TSGCU) to provide share and deposit insurance for Texas-chartered credit unions. TSGCU has its own board of directors, and the commission's rules let each commission member attend TSGCU board meetings. The Commissioner of the Credit Union Department asked the Attorney General what happens under the Open Meetings Act when enough commission members (a quorum) show up at a TSGCU board meeting: does the commission itself hold an open meeting just by being there?

The Attorney General's answer turned on the difference between presence and deliberation. The Open Meetings Act defines a "meeting" as a deliberation among a quorum of a governmental body about public business over which the body has supervision or control, and it defines "deliberation" as a verbal exchange. So a quorum of commissioners can sit in the same room at a TSGCU meeting without triggering the Act, as long as they do not engage in a verbal exchange about commission business. If they do talk about an issue within the commission's jurisdiction, they are deliberating and the Act applies. The opinion also flagged section 4(b) of the Act, which makes it a misdemeanor to conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations.

On the second question, the Attorney General explained that the commission has nine members and that a majority (five) is a quorum. A vacancy does not shrink the quorum: the quorum stays a majority of the authorized positions, and a member serving in a holdover capacity under the Texas Constitution still counts toward it. On the third question, the opinion said silent commissioners are not deliberating, and a single member asking a question or making a statement to the TSGCU board (including a follow-up) is not deliberation. But if other commission members then direct their own questions or statements to the TSGCU board, there is a possibility of indirect deliberation among the commissioners, which the Attorney General said is a fact question that cannot be resolved as a matter of law in an opinion.

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 Open Meetings Act analyzed here as article 6252-17, V.T.C.S., has since been recodified into chapter 551 of the Government Code, and the credit union statutes have been revised as well. Anyone applying these principles today should consult the current Government Code and Finance Code rather than the 1989 statutes cited in this opinion.

Who this opinion affected (as of 1989)

The Credit Union Commission and its members: The opinion told the commission that a quorum attending a TSGCU board meeting did not, by mere presence, hold a meeting under the Open Meetings Act, but that a verbal exchange among the members about commission business would be a deliberation subject to the Act.

Members of any multi-member governmental body: The reasoning applied generally. Attending another organization's meeting was not itself an open meeting; deliberating there was. The opinion also reminded officials of the section 4(b) misdemeanor for conspiring to circumvent the Act by splitting into sub-quorum groups for secret deliberations.

Boards facing vacancies: The opinion confirmed that a vacancy did not reduce a board's quorum. The quorum remained a majority of the authorized positions, and a holdover member under article XVI, section 17 of the Texas Constitution still counted toward it.

Common questions

Does a quorum of a board automatically hold an "open meeting" just by attending another body's meeting?
No. The Attorney General concluded that mere physical presence of a quorum in the same room, without deliberation, does not establish a meeting under the Open Meetings Act. The Act is triggered by a verbal exchange (deliberation) about the body's business.

What counts as "deliberation"?
A verbal exchange during a meeting, between a quorum of members (or between a quorum and any other person), concerning an issue within the body's jurisdiction or any public business. If the commissioners sit silently and exchange no words, they are not deliberating.

Can one member ask the host board questions without triggering the Act?
Yes. A single commission member asking a question or making a statement to the TSGCU board, including a follow-up question, is not by itself deliberation among the commissioners. The concern arises if other members then add their own questions or statements to the host board, which raises the possibility of indirect deliberation, a fact question the opinion did not resolve.

If a commission seat is vacant, does the quorum get smaller?
No. The commission has nine members and five constitute a quorum. The quorum remains a majority of the authorized positions even when seats are vacant, and a member holding over until a successor qualifies still counts toward the quorum.

Background and statutory framework

Under V.T.C.S. article 2461-11.10(e), the Credit Union Commission is required to promulgate rules requiring credit unions to provide share and deposit insurance, including authorizing and establishing a share and deposit guaranty corporation or credit union under the department's exclusive regulation. The commission established TSGCU for that purpose, with operating rules codified at 7 Texas Administrative Code sections 95.1 through 95.507. TSGCU is managed by its own board of directors, though certain powers require the credit union commissioner's approval (7 T.A.C. §§ 95.5, 95.201, 95.310), and commission members may attend TSGCU board meetings (7 T.A.C. § 95.204). TSGCU board meetings themselves are held under the law applicable to credit unions, not the Open Meetings Act (7 T.A.C. §§ 95.203, 95.204).

The Open Meetings Act, V.T.C.S. article 6252-17, defines "meeting" in section 1(a) as a deliberation between a quorum of a governmental body (or between a quorum and any other person) at which public business or public policy over which the body has supervision or control is discussed or considered. Section 1(b) defines "deliberation" as a verbal exchange during a meeting concerning any issue within the body's jurisdiction or any public business. Reading those definitions together, the opinion concluded that a quorum of commissioners deliberating at a TSGCU meeting would be holding a meeting under the Act, while mere presence without deliberation would not (see generally Attorney General Opinion H-785 (1976)). The opinion also pointed to section 4(b), which makes it a misdemeanor for members who knowingly conspire to circumvent the Act by meeting in numbers less than a quorum for secret deliberations.

On the quorum question, the Credit Union Commission consists of nine members (V.T.C.S. art. 2461-11.01(a)), and a majority of the membership constitutes a quorum for transacting business (id. art. 2461-11.06(b)). The quorum of a board remains a majority of the authorized positions even when there are vacancies (Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. 1927); Walker v. Walter, 241 S.W. 524, 528 (Tex. Civ. App. - Fort Worth, no writ); Attorney General Opinion O-761 (1939); Letter Opinion LO-88-45 (1988); see Ramirez v. Zapata County Indep. School Dist., 273 S.W.2d 903 (Tex. Civ. App. - San Antonio 1954, no writ)). Article XVI, section 17 of the Texas Constitution continues officers in office until their successors qualify, so a holdover member still has the powers and duties of a board member and counts toward a quorum (Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886); Plains Common Consol. School Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1938, no writ)). Five members therefore constitute a quorum whether or not some positions are vacant.

On what counts as deliberation, the opinion relied on the dictionary meaning of "verbal" as relating to words (Webster's 3d New International Dictionary 2542 (1961)) and prior opinions (Attorney General Opinions JM-1058 (1989); JM-248 (1984); MW-417 (1981); MW-28 (1979); compare MW-390 (1981) with JM-640 (1987)). Silent commissioners do not deliberate. A single member's question or statement to the host board, or a follow-up, is not deliberation among the commissioners. But sequential remarks by different commission members to the TSGCU board raise the possibility of indirect deliberation, that is, deliberation by addressing to the host board remarks intended for one another, which is a fact question that cannot be answered as a matter of law.

Citations

Statutory and constitutional authorities:

• V.T.C.S. art. 6252-17 (Open Meetings Act); § 1(a) (definition of "meeting"); § 1(b) (definition of "deliberation"); § 4(b) (misdemeanor for conspiring to circumvent the Act)
• V.T.C.S. art. 2461-11.10(e) (commission rules requiring deposit insurance and a guaranty entity)
• V.T.C.S. art. 2461-11.01(a) (nine-member commission); art. 2461-11.06(b) (majority is a quorum)
• Tex. Const. art. XVI, § 17 (officers continue until successors qualify)
• 7 Texas Administrative Code §§ 95.1 through 95.507 (TSGCU rules); §§ 95.5, 95.201, 95.310 (commissioner approval); § 95.204 (attendance); §§ 95.203, 95.204 (TSGCU meetings)

Cases:

• Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886) (officer continues in office until successor qualifies)
• Plains Common Consol. School Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1938, no writ) (same)
• Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. 1927) (quorum is a majority of authorized positions despite vacancies)
• Walker v. Walter, 241 S.W. 524, 528 (Tex. Civ. App. - Fort Worth, no writ) (same)
• Ramirez v. Zapata County Indep. School Dist., 273 S.W.2d 903 (Tex. Civ. App. - San Antonio 1954, no writ) (same)

Attorney General opinions referenced:

• H-785 (1976); O-761 (1939); JM-1058 (1989); JM-248 (1984); MW-417 (1981); MW-28 (1979); MW-390 (1981); JM-640 (1987); Letter Opinion LO-88-45 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1127
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1127.pdf

Original opinion text

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

THE ATTORNEY GENERAL OF TEXAS

December 28, 1989

Mr. John R. Hale
Commissioner
Credit Union Department
914 East Anderson Lane
Austin, Texas 78752-1699

Opinion No. JM-1127

Re: Whether attendance of a quorum of members of the Texas Credit Union Commission at a board meeting of the Texas Share Guaranty Credit Union is a "meeting" under article 6252-17, V.T.C.S. (RQ-1763)

Dear Mr. Hale:

The Credit Union Commission is required to promulgate reasonable rules requiring credit unions to provide share and deposit insurance protection for their members and depositors, "including the authorization and establishment of a share and deposit guaranty corporation or credit union under the exclusive regulation of the department. . . ." V.T.C.S. art. 2461-11.10(e). Pursuant to this authority, the commission has established Texas Share Guaranty Credit Union (TSGCU) to provide share and deposit insurance protection for Texas-chartered credit unions. Rules governing its operation are codified at 7 Texas Administrative Code sections 95.1 through 95.507.

The TSGCU is managed by a board of directors, although certain of its powers may be exercised only subject to the approval of the credit union commissioner. 7 T.A.C. §§ 95.5, 95.201, 95.310. Each member of the Credit Union Commission, as well as the commissioner, his representative, or the deputy commissioner, is permitted to attend any meeting of the board of directors of the TSGCU. Id. § 95.204. You are concerned about the effect of the Open Meetings Act when members of the Credit Union Commission attend meetings of the board of directors of TSGCU, a separate body. You inquire whether the Credit Union Commission would hold a meeting subject to the Open Meetings Act if a quorum of commissioners were to attend a TSGCU board meeting.[Footnote 1]

You first ask:

Would attendance of a quorum of commissioners at TSGCU's board meeting constitute a 'meeting' under the Texas Open Meetings Act?

The definition of "meeting" in the Open Meetings Act states in part:

'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 or public policy over which the governmental body has supervision or control is discussed or considered . . . . (Emphasis added.)

V.T.C.S. art. 6252-17, § 1(a).

"Deliberation," a key term in the definition of "meeting," is defined as follows:

'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.

Id. § 1(b).

If a quorum of members of the Credit Union Commission engages in deliberations as defined above, it will be holding a meeting within the Open Meetings Act. Mere physical presence of a quorum of Credit Union Commissioners in the same room without such deliberations does not establish a meeting within the Open Meetings Act. See generally Attorney General Opinion H-785 (1976).

Although you inquire only about the attendance at TSGCU meetings by a quorum of board members, we believe you should also be aware of section 4(b) of the Open Meetings Act, which provides in part:

Any member or group of members of a governing body who knowingly conspires to circumvent the provisions of this Act by meeting in numbers less than a quorum for the purpose of secret deliberations in contravention of this Act shall be guilty of a misdemeanor . . . . (Emphasis added.)

V.T.C.S. art. 6252-17, § 4(b).

You next ask:

If the commission has a vacancy, could attendance of a majority of the commission members constitute a quorum? For example if there are at some time only 7 commission members, would attendance of 4 at a TSGCU meeting be a 'meeting'?

As an initial matter, we direct your attention to article XVI, section 17, of the Texas Constitution, which provides as follows:

All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.

When deciding whether a vacancy exists, it is necessary to consider the effect of this provision. For example, when an officer resigns and his resignation is accepted, the law operates to continue him in office until his successor qualifies. Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886); Plains Common Consol. School Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App. - Amarillo 1938, no writ). Thus, an individual serving on the board in a holdover capacity under article XVI, section 17, of the Texas Constitution will still have the powers and duties of a board member, and his presence will count toward making up a quorum of the board.

The Credit Union Commission consists of nine members. V.T.C.S. art. 2461-11.01(a). A majority of the membership of the commission constitutes a quorum for the purpose of transacting any business. Id. art. 2461-11.06(b). The quorum of a board remains a majority of the positions authorized for the board, even though there are vacancies. Thomas v. Abernathy County Line Indep. School Dist., 290 S.W. 152 (Tex. 1927); Walker v. Walter, 241 S.W. 524, 528 (Tex. Civ. App. - Fort Worth, no writ); Attorney General Opinion O-761 (1939); Letter Opinion LO-88-45 (1988); see Ramirez v. Zapata County Indep. School Dist., 273 S.W.2d 903 (Tex. Civ. App. - San Antonio 1954, no writ). Thus, five members of the commission constitute a quorum whether or not some positions on the commission are vacant.

Your third question is as follows:

Would a 'meeting' be avoided if no 'deliberation' occurred?

a. If commission members sit silently, does that avoid 'deliberation'?

b. May the commission members ask questions without that constituting 'deliberation'? If so, could a member ask a follow-up question, or would that constitute a 'deliberation'?

c. May a commission member make a statement at the meeting without constituting 'deliberation'?

"Deliberation" is defined in section 1(b) of the act as

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.

V.T.C.S. art. 6252-17, § 1(b).

"Verbal" is defined as "of or relating to words." Webster's 3d New International Dictionary 2542 (1961). If members of the Credit Union Commission in attendance at a meeting of the TSGCU engage in a verbal exchange "concerning any issue within the jurisdiction of the governmental body or any public business" they will be conducting deliberations. See Attorney General Opinions JM-1058 (1989); JM-248 (1984); MW-417 (1981); MW-28 (1979). Compare Attorney General Opinion MW-390 (1981) with Attorney General Opinion JM-640 (1987). If the credit union commissioners sit silently and engage in no exchanges of words whatsoever, they will not be holding deliberations.

In the other hypothetical situations you pose, one member of the Credit Union Commission addresses a question or statement to the TSGCU board of directors. If other members of the Credit Union Commission follow with their questions or statements to the TSGCU board, the possibility of indirect deliberations between credit union commissioners arises -- that is, deliberations by means of addressing remarks intended for one another to the TSGCU board. Whether sequential questions or statements addressed to the TSGCU board by different commission members constitute deliberations is a fact question that cannot be answered as a matter of law in an attorney general opinion. Nor can we predict when a statement by one credit union commissioner to the TSGCU will elicit an answering statement by another commissioner, so that the commissioners find themselves involved in deliberations without having consciously formed the intent to deliberate.

In considering your hypothetical cases we are mindful of this possibility for indirect deliberations. If a commission member asks a question or makes a statement to the TSGCU board of directors, that alone will not constitute deliberation between or among members of the Credit Union Commission. Nor will there be deliberations because the same commission member asks a follow-up question. If, however, other members of the Credit Union Commission then address their statements or questions to the TSGCU board, a possibility arises that deliberations have taken place.

SUMMARY

If a quorum of members of the Credit Union Commission attends a meeting of the board of directors of the Texas Share Guaranty Credit Union (TSGCU) but does not engage in deliberations as defined by the Open Meetings Act, it will not be holding a meeting subject to the Open Meetings Act.

A majority of the membership of the Credit Union Commission constitutes a quorum for the purpose of transacting any business. In the event of a vacancy on the commission, the quorum still consists of a majority of the positions authorized for the board.

If members of the Credit Union Commission present at a meeting of the TSGCU engage directly or indirectly in a verbal exchange "concerning any issue within the jurisdiction of the governmental body or any public business" they will be conducting deliberations as defined by the Open Meetings Act. Indirect deliberations would occur when credit union commissioners speak to the TSGCU board in turn, addressing to it remarks intended for the other commissioners. Whether the commissioners have engaged in deliberations in a given case is a fact question.

Very truly yours,

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

Footnote 1: Meetings of the TSGCU board of directors are apparently held in accordance with the law applicable to credit unions, and not the Open Meetings Act. 7 T.A.C. §§ 95.203, 95.204. Any questions about the establishment and operation of TSGCU are beyond the scope of this opinion.