Open Meetings - Texasattorneygeneral.gov

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OPEN MEETINGS ACT Handbook 2022

Dear Fellow Texans:Founding Father James Madison once wrote that democracy without information was “butprologue to a farce or a tragedy,” and he regarded the diffusion of knowledge as “the only guardianof true liberty.” Texas law has long agreed the inherent right of Texans to govern themselvesdepends on their ability to observe how public officials are conducting the people’sbusiness. Thatis why the Texas Open Meetings Act was enacted, to ensure that Texas government is transparent,open, and accountable to all Texans.At its core, the Texas Open Meetings Act simply requires government entities to keep publicbusiness, well, open to the public. This Open Meetings Act Handbook is intended to help publicofficials comply with the various provisions of the Texas Open Meetings Act and to familiarizethe public with using the Open Meetings Act as a resource for obtaining information about theirgovernment. The handbook is available online and as a printable document atwww.texasattorneygeneral.gov/openmeetings hb.pdf.As attorney general, I am proud of my office’s efforts to promote open government. We’veestablished an Open Government Hotline for anyone seeking a better understanding of their rightsand responsibilities under the law. The toll-free number is 877-OPEN TEX (877-673-6839).Public access to the proceedings and decision-making processes of government is essential to aproperly functioning and free state. It is my sincere hope that this handbook will make it easierforpublic officials and citizens to understand and comply with the Texas Open Meetings Act.Best regards,Ken PaxtonAttorney General of Texas

Table of ContentsI. Introduction . 1A.B.C.D.Open Meetings Act . 1A Governmental Body Must Hold a Meeting to Exercise its Powers . 1Quorum and Majority Vote . 2Other Procedures . 3II. Recent Amendments . 4A. Section 551.091. Commissioners Courts: Deliberation Regarding Disaster orEmergency . 4B. Section 551.001. Governmental Body. 4C. Section 551.1283. Governing Body of Certain Water Districts: Internet Posting ofMeeting Materials; Recording of Certain Hearings . 5III. Noteworthy Orders and Decisions Since 2020 Handbook. 6A. Governor Abbott Suspends Certain Provisions of the Open Meetings Act . 6B. Judicial Decisions . 6C. Attorney General Opinions. 10IV. Training for Members of Governmental Bodies .11V. Governmental Bodies . 13A.B.C.D.E.F.G.Definition . 13State-Level Governmental Bodies . 14Local Governmental Bodies . 15Committees and Subcommittees of Governmental Bodies . 17Advisory Bodies . 18Public and Private Entities That Are Not Governmental Bodies. 19Legislature . 19VI. Meetings. 21A. Definitions . 21B. Deliberations Among a Quorum of a Governmental Body or Between a Quorumand a Third Party . 21C. Gathering at Which a Quorum Receives Information from or Provides Informationto a Third Party . 22D. Informal or Social Meetings . 23E. Discussions Among a Quorum through a Series of Communications . 24F. Meetings Using Telephone, Videoconference, and the Internet . 25VII. Notice Requirements . 30A. Content . 30

B.C.D.E.F.G.H.I.Sufficiency . 30Generalized Terms . 33Time of Posting . 34Place of Posting . 37Internet Posting of Notice and Meeting Materials . 40Emergency Meetings: Providing and Supplementing Notice. 41Recess in a Meeting: Postponement in Case of a Catastrophe . 44County Clerk May Charge a Fee for Posting Notice . 44VIII. Open Meetings . 45A.B.C.D.Convening the Meeting . 45Location of the Meeting . 45Rights of the Public . 45Final Actions . 47IX. Closed Meetings . 51A.B.C.D.E.Overview of Subchapter D of the Open Meetings Act . 51Provisions Authorizing Deliberations in Closed Meeting . 52Closed Meetings Authorized by Other Statutes. 63No Implied Authority for Closed Meetings . 63Who May Attend a Closed Meeting . 64X. Records of Meetings . 66A.B.C.D.Minutes or Recordings of Open Meeting . 66Special Recording Requirements . 66Certified Agenda or Recording of Closed Meeting . 67Additional Recording Requirements for Certain Districts . 69XI. Penalties and Remedies . 70A. Introduction . 70B. Mandamus or Injunction. 70C. Voidability of a Governmental Body’s Action in Violation of the Act; Ratificationof Actions. 72D. Criminal Provisions . 74XII. Open Meetings Act and Other Statutes . 78A.B.C.D.E.F.Other Statutes May Apply to a Public Meeting . 78Administrative Procedure Act . 79The Americans with Disabilities Act . 79The Open Meetings Act and the Whistleblower Act . 80The Open Meetings Act Distinguished from the Public Information Act . 81Records Retention . 82Appendix A: Text of the Open Meetings Act . 84

Appendix B: Table of Authorities . 120Cases . 120Statutes . 126Appendix C: Text of Governor Abbott’s 2020 Suspension Letter . 135

IntroductionI. IntroductionA. Open Meetings ActThe Open Meetings Act (the “Act”) was adopted to help make governmental decision-makingaccessible to the public. It requires meetings of governmental bodies to be open to the public,except for expressly authorized closed sessions, 1 and to be preceded by public notice of the time,place, and subject matter of the meeting. “The provisions of [the Act] are mandatory and are to beliberally construed in favor of open government.” 2The Act was adopted in 1967 3 as article 6252-17 of the Revised Civil Statutes, substantially revisedin 1973, 4 and codified without substantive change in 1993 as Government Code chapter 551. 5 Ithas been amended many times since its enactment.Before addressing the Act itself, we will briefly mention certain other issues relevant to conductingpublic meetings.B. A Governmental Body Must Hold a Meeting to Exercise its PowersPredating the Act is the common-law rule that decisions entrusted to governmental bodies must bemade by the body as a whole at a properly called meeting. 6 This requirement gives each memberof the body an opportunity to state his or her views to other board members and to give them thebenefit of his or her judgment, so that the decision “may be the composite judgment of the bodyas a whole.” 7 This rule may be changed by the Legislature. 812345678The term “executive session” is often used to mean “closed meeting,” even though the Act uses the latter term.See TEX. GOV’T CODE § 551.101; Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 957 (Tex. 1986) (stating thatan executive session is a meeting or part of a meeting that is closed to the public).See City of Laredo v. Escamilla, 219 S.W.3d 14, 19 (Tex. App.—San Antonio 2006, pet. denied); Willmann v.City of San Antonio, 123 S.W.3d 469, 473 (Tex. App.—San Antonio 2003, pet. denied); Toyah Indep. Sch. Dist.v. Pecos-Barstow Indep. Sch. Dist., 466 S.W.2d 377, 380 (Tex. App.—San Antonio 1971, no writ).Act of May 8, 1967, 60th Leg., R.S., ch. 271, § 1, 1967 Tex. Gen. Laws 597, 597–98.Act of Mar. 28, 1973, 63d Leg., R.S., ch. 31, § 1, 1973 Tex. Gen. Laws 45, 45–48.Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 583–89.See Webster v. Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75, 76–77 (Tex. 1942); Fielding v. Anderson, 911S.W.2d 858, 864 (Tex. App.—Eastland 1995, writ denied).Webster, 166 S.W.2d at 76–77.See Faulder v. Tex. Bd. of Pardons & Paroles, 990 S.W.2d 944, 946 (Tex. App.—Austin 1999, pet. ref’d)(concluding that board was authorized by statute to perform duties in clemency matters without meeting faceto-face as a body).2022 Open Meetings Handbook Office of the Attorney General1

IntroductionC. Quorum and Majority VoteThe authority vested in a governmental body may generally be exercised only at a meeting of aquorum of its members. 9 The Code Construction Act 10 states as follows:(a)A grant of authority to three or more persons as a public body confers the authority ona majority of the number of members fixed by statute. 11(b)A quorum of a public body is a majority of the number of members fixed by statute. 12The Act defines “quorum” as a majority of the governing body, unless otherwise defined byapplicable law or the governing body’s charter. 13 For example, three members of the five-membercommissioners court constitute a quorum for conducting county business, except for levying acounty tax, which requires the presence of at least four members of the court. 14 Ex officio,nonvoting members of a governmental body are counted for purposes of determining the presenceof a quorum. 15 A person who has been elected to serve as a member of a governmental body butwhose election has not been certified and who has not yet taken the oath of office is not yet amember of the governmental body. 16 Thus, a meeting between two newly elected persons whohave not yet taken the oath of office and two serving directors is not subject to the Act because noquorum is present. 17 A board member may not delegate his or her authority to deliberate or voteto another person, absent express statutory authority to do so. 18Absent an express provision to the contrary, a proposition is carried in a deliberative body by amajority of the legal votes cast, a quorum being present. 19 Thus, if a body is “composed of twelvemembers, a quorum of seven could act, and a majority of that quorum, four, could bind the body.”2091011121314151617181920But see TEX. GOV’T CODE § 418.1102(b) (providing that a quorum is not required of local governmental entitiesif the entity’s “jurisdiction is wholly or partly located in the area of a disaster declared by the president . . . orgovernor; and . . . a majority of the members of the governing body are unable to be present at a meeting of thegoverning body as a result of the disaster”).Id. §§ 311.001–.034 (chapter 311).A statute may expressly provide a different rule. See TEX. LOC. GOV’T CODE § 363.105 (providing that twothirds majority vote required of a board of crime control and prevention district to reject application for funding).TEX. GOV’T CODE § 311.013; see id. § 312.004 (“A joint authority given to any number of officers or otherpersons may be executed by a majority of them unless expressly provided otherwise.”); see also Tex. State Bd.of Dental Exam’rs v. Silagi, 766 S.W.2d 280, 284 (Tex. App.—El Paso 1989, writ denied) (stating that absent astatutory provision, the common-law rule that a majority of all members of a board constitutes a quorum applies).TEX. GOV’T CODE § 551.001(6).TEX. LOC. GOV’T CODE § 81.006.Tex. Att’y Gen. Op. No. JC-0580 (2002) at 2–3 (overruling Tex. Att’y Gen. Op. No. DM-160 (1992) in part).Tex. Att’y Gen. Op. No. GA-0355 (2005) at 3.Id. at 4.Tex. Att’y Gen. Op. No. JM-903 (1988) at 4–5.Comm’rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. [Comm’n Op.] 1922); Tex. Att’y Gen. Op.Nos. GA-0554 (2007) at 2, GA-0412 (2006) at 3.Webster, 166 S.W.2d at 77.2022 Open Meetings Handbook Office of the Attorney General2

IntroductionD. Other Procedures1. In GeneralGovernmental bodies should consult their governing statutes for procedures applicable to theirmeetings. Home-rule cities should also consult their charter provisions. 21Governmental bodies may draw on a treatise such as Robert’s Rules of Order to assist them inconducting their meetings, as long as the provisions they adopt are consistent with the TexasConstitution, statutes, and common law. 22 A governmental body subject to the Act may notconduct its meetings according to procedures inconsistent with the Act. 232. Preparing the AgendaAn agenda is “[a] list of things to be done, as items to be considered at a meeting.” 24 The terms“agenda” and “notice” are often used interchangeably in discussing the Act because of the practiceof posting the agenda as the notice of a meeting or as an appendix to the notice. 25Some governmental entities are subject to statutes that expressly address agenda preparation. 26Other entities may adopt their own procedures for preparing the agenda of a meeting. 27 Officersand employees of the governmental body must avoid deliberations subject to the Act whilepreparing the agenda. 282122232425262728See Shackelford v. City of Abilene, 585 S.W.2d 665, 667 (Tex. 1979) (considering home-rule city charter thatrequired all city meetings to be open to the public).See Tex. Att’y Gen. Op. No. GA-0412 (2006) at 2; see also generally Tex. Att’y Gen. Op. No. GA-0554 (2007).See Tex. Att’y Gen. Op. Nos. GA-0412 (2006) at 2; DM-228 (1993) at 3 (addressing governmental body’sadoption of provisions of Robert’s Rules of Order to govern conduct of meetings).BLACK’S LAW DICTIONARY 72 (9th ed. 2009).See, e.g., City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 764 (Tex. 1991).See TEX. TRANSP. CODE § 201.054 (providing that Chair of Transportation Commission shall oversee thepreparation of an agenda for each meeting).See Tex. Att’y Gen. Op. No. DM-473 (1998) at 3 (discussing home-rule city’s procedure for agenda preparation).Id.2022 Open Meetings Handbook Office of the Attorney General3

Recent AmendmentsII. Recent AmendmentsThough comprehensive discussions of these amendments are also included throughout the relevantparts of this Handbook, below is a brief discussion of the amendments to the Act adopted by the87th Legislature:A. Section 551.091. Commissioners Courts: Deliberation Regarding Disasteror EmergencyAdded by Senate Bill 1343, section 551.091 authorizes certain commissioners courts to hold anopen or closed meeting, including a telephone conference call, “solely to deliberate about disasteror emergency conditions and related public safety matters” requiring an immediate response“without complying with the requirements of [the Act], including the requirement to provide noticebefore the meeting or to first convene in an open meeting.” 29 However, the new section requiresthe commissioners court to provide reasonable public notice “[t]o the extent practicable under thecircumstances” and to allow members of the public and press to observe the meeting “if themeeting is an open meeting.” 30 Section 551.091 states that the commissioners court may not voteor take final action in the meeting and requires the commissioners court to prepare and keepminutes or a recording and make the minutes or recording available to the public as soon aspracticable. 31 New section 551.091 only applies to a county “for which the governor has issuedan executive order or proclamation declaring a state of disaster or a state of emergency” and “inwhich transportation to the meeting location is dangerous or difficult as a result of the disaster oremergency.” 32 The section expires on September 1, 2027. 33 Senate Bill 1343 takes effect onSeptember 1, 2021. 34B. Section 551.001. Governmental BodySenate Bill 244 amends the Act’s definition of governmental body to include “a board of directorsof a reinvestment zone created under Chapter 311, Tax Code.” 35 Senate Bill 244 takes effect onSeptember 1, 2021. 362930313233343536See Act of May 8, 2021, 87th Leg., R.S., ch. 104, § 1, 2021 Tex. Sess. Law Serv. 193, 193–194 (to be codifiedat TEX. GOV’T CODE § 551.091(b)).Id. (to be codified at TEX. GOV’T CODE § 551.091(c)).Id. (to be codified at TEX. GOV’T CODE § 551.091(d)).Id. (to be codified at TEX. GOV’T CODE § 551.091(a)(1)–(2)).See id. (to be codified at TEX. GOV’T CODE § 551.091(e)).See id. § 2.See Act of May 23, 2021, 87th Leg.,R.S., ch. 361, § 1, 2021 Tex. Sess. Law Serv. 743, 744 (to be codified atTEX. GOV’T CODE § 551.001(3)(M)).See id. § 2.2022 Open Meetings Handbook Office of the Attorney General4

Recent AmendmentsC. Section 551.1283. Governing Body of Certain Water Districts: InternetPosting of Meeting Materials; Recording of Certain HearingsHouse Bill 1154 amends section 551.1283 to add additional Internet posting requirements tocertain special purpose districts. 37 Section 551.1283 contains recording and posting requirementsfor certain meetings of special purpose districts subject to Water Code chapters 51, 53, 54, or 55and that have a population of 500 or more. 38 House Bill 1154 adds a requirement that such districtsmust post on an Internet website the district maintains “links to any other Internet website orwebsites the district uses to comply with Section 2051.202 of this code and Section 26.18, TaxCode.” 39House Bill 1154 also adds section 551.1283(e), which provides that “[n]othing in this chapter shallprohibit a district from allowing a person to watch or listen to a board meeting by video ortelephone conference call.” 40House Bill 1154 takes effect on September 1, 2021. 413738394041See Act of May 26, 2021, 87th Leg., R.S., ch. 647, § 2, 2021 Tex. Sess. Law Serv. 1310, 1310–1311 (to becodified at TEX. GOV’T CODE § 551.1283(d)–(e)).See TEX. GOV’T CODE § 551.1283(a)–(c).See Act of May 26, 2021, 87th Leg., R.S., ch. 647, § 2, 2021 Tex. Sess. Law Serv. 1310, 1310–1311 (to becodified at TEX. GOV’T CODE § 551.1283(d). Section 2051.202(d) of the Government Code requires a districtto post on its website, among other items, the location and schedule for meetings, as well as meeting notices,minutes, and instructions for requesting certain meeting locations. See id. § 3, 2021 Tex. Sess. Law Serv. 1311(to be codified at TEX. GOV’T CODE § 2051.202(d)(11), (13), (14)). Generally, section 26.18 of the Tax Coderequires taxing units to post information relating to their tax rate and budget information on a website. See TEX.TAX CODE § 26.18.See Act of May 26, 2021, 87th Leg., R.S., ch. 647, § 2, 2021 Tex. Sess. Law Serv. 1310, 1310–1311 (to becodified at TEX. GOV’T CODE § 551.1283(e)).See id. § 8, 2021 Tex. Sess. Law Serv. 1313.2022 Open Meetings Handbook Office of the Attorney General5

Noteworthy Decisions Since 2020 HandbookIII. Noteworthy Orders and Decisions Since 2020 HandbookA. Governor Abbott Suspends Certain Provisions of the Open Meetings ActIn March of 2020, as the COVID-19 pandemic was recognized in the United States and Texas,Governor Abbott declared a statewide disaster and then suspended certain provisions of the Actvia a letter to the Attorney General. 42 In his letter, Governor Abbott indicated the purpose of thesuspension was to provide flexibility to governmental bodies to conduct business while workingto slow the spread of COVID-19 and at the same time maintaining transparency and public accessto open government. 43 Governor Abbott divided the suspensions into four distinct categories:those pertaining to the requirement of physical presence of a quorum at a location to conduct ameeting by telephone or videoconference; those pertaining to the physical posting of a notice;those pertaining to the requirement that the telephone or videoconference meeting be audible tothe members of the public; and those pertaining to face-to-face interaction between members ofthe public and public officials. Governor Abbott’s letter stated that the suspensions would remainin effect until they were terminated by his office or until the state’s disaster declaration was liftedor expired. Each month thereafter Governor Abbott extended the disaster declaration therebykeeping the suspensions in place.For the following year and a half, many governmental bodies conducted meetings by Zoom andother electronic meeting platforms. The Office of the Attorney General created a dedicatedtelephone hotline and email address to answer governmental bodies’ questions regarding theoperation of the Act under the suspensions. In 2021, the 87th Legislature convened and consideredmany bills that incorporated aspects of the suspension letter into the Act’s telephone andvideoconference provisions but adopted none of the considered bills. 44On June 30, 2021, Governor Abbott’s office communicated to the Attorney General’s Office thatthe Governor would be lifting the suspensions effective September 1, 2021, thereby reinstating allprovisions of the Act as written. 45B. Judicial DecisionsThe 2020 OMA Handbook included a discussion about the conflict between two courts of appealson the issue of the viability of an action brought by plaintiffs seeking declarations of violations ofthe Act under the Uniform Declaratory Judgment Act against a governmental body’s assertion ofgovernmental immunity. The Texas Supreme Court has since resolved that conflict.As background, the Austin Court of Appeals, in City of New Braunfels v. Carowest Land, Ltd.,determined that section 551.142 of the Act, which authorizes any interested person to bring anaction by mandamus or injunction, limited the Act’s waiver of governmental immunity to only42434445See ASuspension-Letter.pdf. Though the suspensions have been lifted, the text of the Governor’s letter is reproducedin Appendix C for reference. As of September 1, 2021, the Act is applicable in its entirety.Id.See e.g., Tex. S.B. 861, 87th Leg., R.S. (2021) and Tex. H.B. 2683, 87th Leg., R.S. (2021).See nt/open-meetings-act-suspension-updates.2022 Open Meetings Handbook Office of the Attorney General6

Noteworthy Decisions Since 2020 Handbookinjunctive and mandamus relief but not declaratory. 46 The Fort Worth Court of Appeals, in Townof Shady Shores v. Swanson, disagreed with the Austin Court of Appeals. 47 While it agreed thatsection 551.142 contained a limited waiver involving only mandamus or injunction, it raisedsection 551.141, which provides that an action taken in violation of the Act is voidable, and saidthat the section’s purpose “is to allow courts to declare void actions taken in violation of [theAct].” 48 The court stated that “although [the Act] does not broadly waive immunity for alldeclaratory judgment actions, it does waive immunity for a declaration that an action taken inviolation of [the Act] is void.” 49The Texas Supreme Court, in Town of Shady Shores v. Swanson, agreed with the Austin Court ofAppeals and resolved the issue by holding that section 551.142 set the boundaries of agovernmental body’s immunity waiver to the express relief provided therein—that of an injunctionor mandamus. 50 The court acknowledged the Act provides that an action taken in violation of theAct is voidable, but the court pointed out that the Act “goes on to state very clearly the authorizedmechanism to obtain that result” was a suit by mandamus or injunction. 51 It held the Act’s “clearand unambiguous waiver of immunity does not extend to suits for declaratory relief.” 52In Stratta v. Roe, the United States Court of Appeals for the Fifth Circuit gave some meaning tothe phase “member of the public” as it appears in the Act. 53 Stratta was a member of the BrazosValley Groundwater Conservation District but attended a meeting as a member of the public andsigned up to speak as such during the period reserved for public comment on a matter not includedon the agenda. 54 The District prohibited him from speaking on the matter claiming that becausehe was a director he could not discuss subjects that were not on the agenda even though the agendaincluded a public comment section on non-agenda items. 55 Stratta sued the District alleging thatit deprived him of his First Amendment rights by preventing him from speaking. 56The Fifth Circuit considered section 551.042, which allows a governmental body to address in alimited manner a subject raised by a member of the public that was not included on the meetingnotice. 57 In addressing Stratta’s contention that he had a right to address the board of directors asa member of the public during a period reserved for public comment on open agenda items, thecourt recognized that the Act does not define “member of the public.” 58 Looking to its common46474849505152535455565758See City of New Braunfels v. Carowest Land, Ltd., 549 S.W.3d 163, 173 (Tex. App.—Austin 2017, pet. granted,judgm’t vacated w.r.m.).See Town of Shady Shores v. Swanson, 544 S.W.3d 426, 437 n.1 (Tex. App.—Fort Worth 2018), rev’d in part,590 S.W.3d 5

2022 Open Meetings Handbook Office of the Attorney General 1 . I. Introduction A. Open Meetings Act The Open Meetings Act (the “Act”) was adopted to help make governmental decisionmaking - accessible to the public. It requires meetings of governmental bodies to be open to the public, except for expressly authorized closed sessions, 1

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