The Texas Open Meetings Laws
Made Easy

Frequently Asked Open Meetings Questions/Answers
 

I. Application of the Open Meetings Act

When Does the Open Meetings Act Generally Apply
No Authority for Staff Briefings
Application of the Act to City-Appointed Committees
Application of the Act to Private or Non-Profit Entities That Receive City Funding
Relationship Between the Open Meetings Act and the Open Records Act
II. Notice Provisions Under the Open Meetings Act
General Requirements for Posting an Agenda
Cities Generally Not Required to Post Meeting Notice in Newspaper
Providing Reasonable Notice of Subject Matter
Very Limited Ability to Address Items Not on the Agenda
General Inability to Change Date of a Meeting Without Reposting
General Inability to Change Time of a Meeting Without Reposting
General Inability to Change Location of a Meeting Without Reposting
Limited Ability to Continue a Meeting to a Later Date
Procedure to Cancel a Posted Meeting
III. Effect of Quorum Provisions on Open Meetings Act Issues
General Quorum Provisions
What Constitutes a Quorum
Ability to Hold an Open Meeting Without a Quorum
Application of Open Meetings Act if Quorum of City Council Is Present
Application of Act to Informal Meetings Where There is a Quorum
Application of Act if Quorum of City Council Serve on a Board or Commission
Limited Ability of Quorum of City Council to Sign Correspondence
Application of Open Meetings Act to Gatherings of Less Than a Quorum of City Council
Limited Application of Act to Gatherings of Less Than a Quorum of the City Council
Limited Ability of Less Than a Quorum to Meet with Third Parties
Limited Ability of Less Than a Quorum to Visit by Phone
Limited Ability of Less Than A Quorum to Sign Correspondence
Adoption of Procedural Guidelines to Administer the Open Meetings Act
Ability to Adopt Procedural Rules
Limited Right of Individual Council Members to Place Items on Agenda
Mayor's Role During an Open or Closed Meeting
Ability of Mayor to Vote on Items or Second Motions
Inability for Council Members to Vote by Proxy
Limited Ability of City Council Quorum to Meet by Teleconference
Limited Ability of City Council Quorum to Meet by Videoconference
Rules for Broadcasting City Council Meetings over the Internet
Providing Accommodations for People with Disabilities
Managing Discussions at an Open Meeting
General Difference Between Open Meeting and Public Hearing
Ability to Regulate Public Comments
General Ability to Limit Number of Speakers
Ability to Remove a Citizen Who Disrupts the Meeting
Ability to Set Reasonable Time Limits on Council Members' Comments
Ability to Remove a Council Member Who Disrupts the Meeting
Keeping a Record of Open Meetings
Duty to Produce Minutes or Tape Recording of Open Meetings
Public Access to Minutes of Open Meetings
General Right of Public to Audiotape or Videotape Open Meetings



I. Application of the Open Meetings Act

When does the Open Meetings Act generally apply? The Open Meetings Act (OMA) generally applies when a quorum of a governmental body is present and discusses public business.(2) However, it does not apply to purely social gatherings or to the attendance of public officials at conferences or training if no formal actions are taken and if the discussion of public business is only incidental at such events.(3)

Can members of the city council receive a briefing from city staff without posting the briefing as an open meeting? State law no longer allows a quorum of the city council to receive a briefing from city staff without posting the briefing as an open meeting.(4) Instead, a city council is now required to post such a meeting and hold it in open session.(5)

If less than a quorum of city council members meet with city staff, in certain cases it may not be required to post the gathering as an open meeting.(6) For example, a mayor may meet informally with the city manager or certain council members will meet with city department heads on a particular issue. However, city officials should visit with the city attorney before holding such meetings if several members of the city council will be present. A city official faces potential criminal penalties if such meetings are used with the intent of circumventing an open discussion of public business at an open meeting.

Must city-appointed committees post their meetings under the Open Meetings Act? If a city-appointed committee is truly advisory in nature, it generally does not have to post its gatherings as open meetings. Accordingly, the city must first determine whether a committee is advisory or whether it in fact has certain powers that would make it subject to the Open Meetings Act requirements. To make this determination, the city needs to review the actual authority of the committee and how its actions are treated by the city council. For example, if the city-appointed committee has the power to make final decisions or the power to adopt rules regarding public business, it would need to post its gatherings as open meetings. Additionally, if the committee issues recommendations that are usually approved in full by the city council, such committee meetings should also be posted as open meetings. In other words, a committee may not be considered "advisory" if the committee has certain final powers or if the city council generally "rubber-stamps" the committee's recommendations into final policy.(7)

It should be noted that if a committee has several city council members on it, the committee may in certain cases become subject to the Open Meetings Act. For example, the Attorney General has concluded that an county appointed architect selection committee was subject to the Open Meetings Act.(8) The selection committee included the county judge and one county commissioner; the committee did not include a quorum of the county commissioners' court. However, because two county commissioners were already on the committee, they only needed to obtain the consent of one more county commissioner to have a majority vote in favor of any committee recommendation. Accordingly, the Attorney General concluded that the committee should be considered subject to the requirements of the Open Meetings Act as a governmental body. This conclusion was based on the fact that it would be too easy for the committee to obtain a "rubber stamp" of its decisions. The Attorney General also went on to indicate, however, that such a committee would be less likely to be found subject to the Open Meetings Act if the committee did not contain any members of the commissioners' court.

It is important to note that the bylaws of an organization or the provisions within a city charter may specifically require a city committee to post its meetings pursuant to the Open Meetings Act. If there is such a local requirement, it would apply even if the Open Meetings Act would not otherwise require compliance. Conversely, cities cannot, through their city charter or local ordinances, waive the application of the requirements of the Open Meeting Act.

Must private or non-profit entities that receive city funding post their meetings under the Open Meetings Act? The Open Meetings Act does not apply to an entity merely because that entity receives public funds.(9)For instance, the Attorney General has concluded that a local chamber of commerce was not subject to the Open Meetings Act even though it received and administered local hotel occupancy tax funds.(10)

Of course, a non-governmental entity may be made subject to the Open Meetings Act by the entity's own bylaws, by special state legislation pertaining to that entity, or by a contractual commitment by that entity to comply with the Open Meetings Act. Therefore, local private or nonprofit entities will want to consult with their local legal counsel on whether their bylaws, state law, or a particular contractual commitment make them subject to the Open Meetings Act.

What is the relationship between the Open Meetings Act and the Open Records Act? The Open Meetings Act and the Open Records Act are both intended to make government more accessible to the public.(11) However, the two are completely separate statutes, and each operates independently of the other. The mere fact that a city may be able to withhold a document from the public under the Open Records Act does not mean that the city council has authority to meet in executive session regarding the subject covered in that document.(12) Likewise, the fact that the Open Meetings Act allows a city council to have an executive session about a particular topic does not mean that documents reviewed in the executive session may be withheld from the public.(13)

II. Notice Provisions Under the Open Meetings Act

Where and for how long must an open meeting notice be posted? The Open Meetings Act requires that the notice for each city council meeting must be posted on a bulletin board at a place convenient to the public in city hall.(14) A Texas court has ruled that posting in a kiosk immediately outside city hall is also permissible.(15) Generally, this agenda must be posted and readily accessible to the public at all times for at least 72 hours preceding the meeting.(16)The city will want to be sure that the posted notice is in a well-lit place that is accessible to the public even when city hall is closed. The same rules apply to posting notice for a meeting to deal with an emergency, except that the notice only needs to be posted for two hours and the notice must give a reason for calling the emergency meeting.

Is a city required to publish notice of its open meetings in a newspaper? The Open Meetings Act does not require that a city publish notice of its meetings in a newspaper. However, for some subjects, there may be another state statute that would require newspaper notice. For example, Texas law requires that a city have two public hearings before annexing an area, and notice of each of those hearings must be published in a local newspaper.(17) Additionally, there are certain notices that a city must publish in the newspaper regarding the adoption of its annual city budget and tax rate. Finally, a home-rule city will want to review its city charter to see if the charter imposes stricter notice requirements on the city than does the Open Meetings Act.

How specific must the wording be for each agenda item posted for an open meeting? The Open Meetings Act requires that the posted notice of an open meeting contain the date, hour, place and a description of each subject to be discussed at the meeting.(18) Texas courts have interpreted this to mean that the notice must be sufficient to alert the public, in general terms, of the subjects that will be considered in the meeting.(19) Descriptions such as "old business," "new business," "personnel matters," and "litigation matters" are usually not sufficiently detailed to meet the requirements of the Act.(20)

The courts have also ruled that the more important a particular issue is to the community, the more specific the posted notice must be. Thus, the phrase "employment of personnel" was held to be a sufficient posting for hiring a school teacher.(21) However, the same court found that this phrase was not sufficient when the school was considering hiring a key supervisor such as a principal. Similarly, a Texas court ruled that a posting that said "personnel" was not specific enough to allow a city council to discuss the firing of a police chief.(22) Finally, a city must be sure that its postings are not misleading. For example, a Texas court has ruled that a notice calling for "discussion" of a certain item was not sufficient to allow a board to take action on that item when the board's previous notices had always explicitly stated when an action might be taken.(23)

What can city council members do if an unposted issue is raised at an open meeting? Members of the governmental body may not deliberate or make any decision about an unposted issue at a meeting of the governmental body. If an unposted item is raised, the city council has four options. A council member may respond with a statement of specific factual information or recite the governmental body's existing policy on that issue.(24)Second, a city official may direct the person making the inquiry to visit with city staff about the issue. Third, the city council may offer to place the item on the agenda for discussion at a future city council meeting. Finally, the city council may offer to post the matter as an emergency item if it meets the criteria for an emergency posting. It should be noted that members of the city council are limited in the same way from having unposted items discussed at a city council meeting.

Can a city council change the date of its meeting without posting a corrected notice for 72 hours? The Texas Open Meetings Act requires literal compliance.(25) For this reason, a city generally does not have authority to change the date of its meeting without posting the new date for at least 72 hours in advance of the meeting.(26) Of course, if the city is presented with an emergency, it could utilize its power to call an emergency meeting with two hours' notice.

Can a city council change the time of its meeting without posting a corrected notice for 72 hours? The Texas Open Meetings Act requires literal compliance.(27) For this reason, a city generally has no authority to change the time of its meeting without posting the new time for at least 72 hours in advance of the meeting.(28) Nonetheless, it is not necessarily a violation of the Open Meetings Act if a city council or city board starts its meeting a little later than the scheduled time. At what point the change in time would present a legal problem would be a fact issue. Cities should consult with local legal counsel if they decide to change a meeting time.

Can a city council change the location of its meeting without posting a corrected notice for 72 hours? The Texas Open Meetings Act requires literal compliance.(29) For this reason, a city generally has no authority to change the location of its meeting without posting the new location for at least 72 hours in advance of the meeting.(30) On the day of the meeting, a city will sometimes change a meeting location to a bigger room within the same building to accommodate a large crowd. It is not clear whether such a change would constitute literal compliance with the Act. Cities should consult with local legal counsel if they decide to change a meeting location.

Can a city continue a meeting the next day without reposting? It appears that a city may adjourn a meeting and reconvene within 24 hours if the city determines in good faith that such an action is necessary. A Texas court cited with approval an Attorney General opinion that allowed a county commissioners' court to adjourn a meeting and reconvene the very next day.(31) However, this same court ruled that a city council could not adjourn a meeting and reconvene two days later.(32)

Arguably, though, a safer practice for cities would be to note on the original agenda that the meeting might be continued to the following day and note when and where such a continued meeting would be held. In this way, the city can comply with the Open Meetings Act requirement that notice of the meeting be posted for at least 72 hours.

What is required of a city council to cancel a posted meeting? The Open Meetings Act does not set forth any particular requirements for canceling a posted meeting. The Act requires meetings to be properly posted, but it does not require that a meeting actually be held once the meeting has been posted. As a result, a city may arguably cancel a posted meeting at any time unless doing so would violate some other provision of law (e.g., a city charter requirement). It is important to note that once the meeting is canceled or the posted agenda is taken down, a city must re-post and follow all the requirements of the Open Meetings Act for the rescheduled meeting.

III. Effect of Quorum Provisions on Open Meetings Act Issues

General Quorum Provisions

What constitutes a quorum for purposes of the Open Meetings Act? A quorum is generally considered to be a majority of the members of the governmental body.(33) For example, if the governmental body has five members; a quorum would require the presence of three members. For home rule cities (cities that at one time had over 5,000 population and adopted a home rule charter), what constitutes a quorum is usually provided in the city charter. Sometimes, a city charter will require the presence of more than a mere majority in order to have a quorum.

For general law cities (cities that are usually under 5,000 population and that have not adopted a home rule charter), the requirements for acquiring a quorum vary depending on whether the city is organized as a Type A, a Type B, or a Type C general law city. Outlined below are the quorum requirements for each of the three types of general law cities.

For Type A cities, what constitutes a quorum depends on the type of meeting that is being conducted. For regular meetings, the presence of a majority of the number of aldermen is required for a quorum. Generally, a Type A city has five aldermen; accordingly, three aldermen would be needed to have a quorum at a regular meeting. However, if the gathering is a specially-called meeting or a meeting to consider the imposition of taxes, state law requires that at least two-thirds of the number of aldermen be present for a quorum (generally four members).(34) The presence of the mayor would not be counted in reaching the required number for a quorum.
For Type B cities, a quorum requires the presence of either the mayor and three aldermen, or, if the mayor is absent, the presence of four aldermen.(35) State law does not change the quorum requirements for Type B cities based on the type of meeting that is being held.
Type C cities do not have a special state statute that indicates what constitutes a quorum. Therefore, a simple majority of the governmental body would constitute a quorum (two of the three members).(36) The presence of the mayor would be counted to reach a quorum.
Can the city council hold a council meeting if, for any reason, there is not a quorum present? There does not appear to be any authority for beginning a city council meeting until a quorum is present.(37) In fact, the Texas Supreme Court has ruled that a school board of trustees may not convene its meeting until a quorum is physically present in the same room.(38) However, Texas case law and attorney general opinions have not addressed whether a properly convened city council meeting could continue if a quorum is lost due to the later departure or temporary absence of a council member. In any case, a city council could not take any action during a meeting if a quorum was not present at that time.

Application of Open Meetings Act if Quorum of City Council is Present

Does the Open Meetings Act apply if a quorum of city officials informally meets and no action or vote is taken on public business? The Open Meetings Act applies to a gathering of a quorum of city officials if they discuss public business, regardless of whether there is any action or vote taken. All requirements under the Open Meetings Act must be followed for such gatherings unless otherwise provided under state law. As noted earlier, state law provides a limited exception for gatherings at social events, training seminars, or conferences, if the discussion of public business is only incidental and no vote or action is taken.

May a quorum of the city council serve on a city board or commission? Nothing in the Open Meetings Act would prohibit a quorum of the city council from serving on a board or commission of the city. However, the meetings of such a board or commission would have to meet all the requirements of the Open Meetings Act. Additionally, under the common law doctrine of incompatibility, a city council is prohibited in most circumstances from appointing one of its own members to a city board position. In certain situations, however, Texas statutes or a city charter specifically allow city councils to appoint their own members to a board or commission. For example, the Development Corporation Act (Article 5190.6) indicates that the city council may appoint up to four city council members to serve as board members of a Section 4B development corporation board. A city council will want to discuss the issue with local legal counsel before making an appointment of one of its own members to a city board or commission.

Can a quorum of city council members sign a group letter or other document without violating the Open Meetings Act? It remains a fact issue whether the presence of signatures by council members on a group letter or within another document constitutes a violation of the open meetings laws. If the council members met in a quorum without following open meetings procedures to discuss and then create or sign the document, there would be a violation of the Act. Similarly, if the council members met in numbers less than a quorum regarding the document with the specific intent of circumventing the purposes of the Act, a violation of the Open Meetings Act would also have occurred.(39) Such communications are best considered at posted open meetings and any signatures executed in response to a vote at the meeting on the issue.

Application of Open Meetings Act to Gatherings of Less Than a Quorum of the City Council

Is a gathering of less than a quorum of city officials subject to the Open Meetings Act? A gathering of less than a quorum of city officials is not generally subject to the Open Meetings Act. However, if a standing committee or subgroup of the governmental body meets and the discussion of public business occurs, there is an argument that such gatherings should also be posted and conducted as open meetings.

State law also provides that if less than a quorum of city official gather with the intent of circumventing the purposes of the Open Meetings Act, criminal penalties can be imposed against the participating officials. In other words, if city council members are holding their discussion of public business in numbers less than a quorum in order to avoid having to meet the requirements of the Open Meetings Act, criminal prosecution can be pursued against such officials for such discussions.

Can less than a quorum of city council members meet with independent contractors, or with public or private groups without posting the gathering as an open meeting? It is not uncommon for several council members to be present at a private or public gathering that is put on by another entity. The Open Meetings Act does not require that the gathering be treated as an open meeting if less than a quorum of city council members are present. However, as noted above, a city official faces potential criminal penalties if such gatherings are used with the intent of circumventing a discussion of public business at an open meeting.

Can less than a quorum of city council members visit over the phone without violating the Open Meetings Act? The mere fact that two council members visit over the phone does not in itself constitute a violation of state law. However, if city council members are using individual telephone conversations to poll the members of the council on an issue or are making such telephone calls to conduct their deliberations about public business, there may be a potential criminal violation. Physical presence in one place is not necessary to violate the Open Meetings Act.(40) It would remain a fact issue whether certain phone conversations between less than a quorum of city council members would be a violation of the Open Meetings Act.(41) Such interactions could amount to meeting in numbers less than a quorum to circumvent the purposes of the Open Meetings Act.

Can less than a quorum of city council members sign a group letter or other document without violating the Open Meetings Act? It is a fact issue whether the presence of less than a quorum of city council member signatures on a group letter or other document constitutes a violation of the open meetings laws. For example, if the council members at some time met in numbers less than a quorum to discuss signing the document in order to circumvent the purposes of the Act, a violation of the Open Meetings Act would have occurred.(42)

Adoption of Procedural Guidelines to Administer the Open Meetings Act

Does state law set out procedural rules that apply to open meetings? Relatively few procedural rules are contained in the Open Meetings Act for meetings of a governmental body. All meetings must, of course, be properly posted, and a governmental body is limited in how it can respond to inquiries about issues that were not listed on the posted agenda. Additionally, during all meetings, minutes of the meeting must be kept, and certain rules must be followed when holding an executive session.

However, state law does not impose general rules of parliamentary procedure for open meetings. For example, the Open Meetings Act does not specify rules on how many readings of an ordinance are required, who may make a motion, or whether a motion must be seconded. In order to answer these questions, a local governmental body must consult any local rules of procedure that have been adopted by the city council. Home rule cities should also consult their city charters for applicable provisions. If a city has not adopted any such rules, a majority of the city council would determine how items would be considered procedurally. The Texas Attorney General has concluded that Texas cities are generally able to adopt reasonable rules of procedure that do not conflict with the state or federal constitution, a state statute, or a home rule city charter provision.(43)

Does the Open Meetings Act give individual city council members a right to place items on a meeting agenda? The Open Meetings Act does not specifically address the power of individual city council members to place items on the agenda for a council meeting. However, the Attorney General has ruled that a home rule city may adopt a local provision that requires the consensus of several council members to place an item on the agenda.(44) For example, the City of Dallas requires the consensus of five council members to place an item on the agenda. However, if a home-rule city has not adopted such a requirement, an argument could be made that individual council members could each place items on the agenda. In general law cities, individual council members could also arguably each place items on the agenda. This argument is supported by the reasoning in Attorney General Opinion DM-228 (1993) that concluded that individual county commissioners have a right to place items on the agenda for a county commissioner's court meeting. A city will want to consult with its local legal counsel regarding this issue.

What is the role or power of the mayor during an open or closed meeting? The mayor generally serves as the presiding officer for purposes of running an open meeting. If the mayor is absent, this duty usually falls to the mayor pro tem. However, the Open Meetings Act itself does not define more specific powers of the mayor regarding the open portion of a meeting. Accordingly, cities will often adopt local procedural rules that define the role of the mayor and the role of the city council during an open meeting.

The Open Meetings Act does note the role of the presiding officer (generally the mayor) regarding his duties during an executive session. For example, before a city council meets in closed session, the presiding officer must announce that a closed session is about to be held . The presiding officer must also identify the sections of the Open Meetings Act under which the closed session is authorized. Once in an executive session, the presiding officer must announce the date and time that the executive session began and the date and time that the session ended.(45) Finally, the presiding officer must certify that the certified agenda is a true and correct record of the proceedings.

With regard to the other powers and duties of the mayor during an open meeting, the city will want to consult state law for other provisions that may apply to the matter before the city council. Additionally, the city may be bound by its own procedural rules that provide a particular role for the city council and for the mayor. Finally, if the city is a home rule city, it will want to review the city charter for provisions regarding the powers of the mayor and of the city council.

Can a mayor vote on items or second motions that are made at an open meeting? The Texas Open Meetings Act does not address when a mayor can vote on an item during an open meeting. In a home rule city, the power of the mayor to cast a vote is generally addressed in the city charter. For Type A general law cities, state law specifies that the mayor may vote only in the case of a tie.(46) State statutes do not specifically address whether a mayor in a Type B or a Type C general law city may vote on items. Some legal analysts have concluded that the mayor of a Type B city and the mayor of a Type C city may vote on all items even when there is not a tie.(47)

As to who may second motions, the answer would depend on what local rules of parliamentary procedure have been adopted by the city council. Under most rules of parliamentary procedure, only a voting member of the city council could second a motion. Under such a rule, whether or not the mayor could second a motion would depend on whether or not the mayor had the power to vote on the matter that was before the city council.

Can council members enter their vote on an item without attending the meeting (e.g., vote by proxy)? A city council member must be present at a meeting in order to deliberate and to vote; the council member may not vote by proxy.(48)

Can a city council hold an open meeting by teleconference? A city council meeting may be held by teleconference call only if:

  1. An emergency or public necessity exists; and
  2. It is difficult or impossible to convene a quorum at one location.(49)
When holding such a meeting, there are several special procedural requirements that must be met. First, the meeting must be posted and open to the public in the same manner as a regular meeting. Second, the meeting must be held in the same place where city council meetings are usually held. Third, the identity of each speaker must be clearly stated prior to that person speaking. Fourth, the meeting must be set up so as to provide two-way communications throughout the entire meeting. Fifth, all portions of the meeting (other than executive sessions) must be audible to the public, including the entire conference call. Finally, the meeting must be recorded and a copy of the recording must be made available to the public.

Can a city council hold an open meeting by video conference? A city council may hold an open meeting by video conference if a quorum of the governmental body is physically present at one location for the meeting.(50) There is no requirement that an emergency exist in order to meet by video conference. As with a teleconference meeting, there are several specific procedural requirements that apply to such a meeting. For example, the notice of a video conference meeting must specify the location where a quorum of the city council will be physically present. Additionally, the notice must specify the physical location of each city council member who will be participating in the meeting from another location. All of the locations identified in the notice must be open to the public, and the entire video conference meeting (other than an executive session) must be visible and audible to the public at each of those locations. Each location identified in the notice must also have two-way communication with all the other locations during the entire meeting. The Act further requires that each participant be clearly audible and visible to all the other participants and to the public (except during an executive session). Additionally, the quality of the audio and video signals at a video conference meeting must meet the requirements set forth by the Texas Department of Information Resources and by section 551.126 of the Texas Government Code. Finally, the entire meeting must be recorded, and the tape must be made available to the public.

Can a city council broadcast its meetings over the Internet? The 1999 Texas Legislature has amended the Open Meetings Act to allow a city council to broadcast its open meetings over the Internet.(51) If a city council chooses to broadcast its meetings in this fashion, the city must establish an Internet site and provide access to the broadcast from that site. In addition, the Internet site must provide the same 72-hour notice of any open meeting as must be provided at city hall. This new law takes effect September 1, 1999.

What accommodations must a city provide at its open meetings for an attendee who has a disability? Generally, a city must make its meetings accessible to persons with disabilities. Title II of the Americans with Disabilities Act (ADA) provides that activities of state and local governing bodies, including meetings, are subject to the ADA. In most cases, such a requirement means that the facility holding the meeting must be physically accessible to individuals with disabilities. Cities may ask that individuals with disabilities provide the city with reasonable notice on any accommodations they may need to attend the meeting. Cities must also be ready to provide an accessible meeting site and provide alternative forms of communications that address the needs of individuals with disabilities. This may involve providing sign language interpreters, readers, large print or braille documents upon request.

Managing Discussions at an Open Meeting

What right does the public have to speak on a particular agenda item? The Open Meetings Act allows the public to observe the open portion of a city council meeting. However, the Texas Attorney General has concluded that the Open Meetings Act does not give members of the public a right to speak on items considered at an open meeting.(52) Such a right only exists if a specific state law requires a public hearing on that item or if state law requires that public comment be allowed on that issue. If a city allows members of the public to speak on an item at a council meeting, the council may adopt reasonable rules regulating the number of speakers on a particular subject and the length of time allowed for each presentation.(53) However, the city council must apply its rules equally to all members of the public.

What is the general distinction between a public hearing and an open meeting? A city council is generally not required by the Open Meetings Act to allow members of the public to speak on regular agenda items at an open meeting.(54) However, during a public hearing, members of the public must be given a reasonable opportunity to speak.

Another difference between public hearings and general open meetings is the type of notice that must be provided. Many statutes which require a public hearing also require that special notice of the hearing be given. For instance, when a city is going to have an annexation hearing under section 43.052 of the Texas Local Government Code, it must publish notice of the hearing in a newspaper at some time between ten and twenty days before the hearing. On the other hand, the only notice generally required for a regular open meeting is the 72-hour posted notice at city hall.

Can a city council require that a group select one of its members as a spokesperson? A city council may make reasonable rules regulating the number of speakers on a particular subject and the length of each presentation.(55) Arguably, such rules could include a requirement that a group select one of its members as a spokesperson. However, the city council should not discriminate between one group and another on a particular issue. Further, in no case may a city council adopt procedural rules that are inconsistent with the state or federal constitution, state or federal statutes, or city charter provisions (in a home-rule city).(56) A city should visit with its local legal counsel if it decides to impose such a requirement.

Can members of the public be removed from an open meeting for causing a disturbance? The presiding officer of the city or the city council as a body may ask that individual members of the public be removed if they are causing a disturbance at a public meeting. What constitutes conduct that rises to the level of disorderly conduct is a fact issue for the city council to consider. A city may want to visit with its local district or prosecuting county criminal attorney for guidance on what actions may constitute "disorderly conduct."

Can a city council limit city council members to a set amount of time for their testimony or remarks at an open meeting? The Open Meetings Act does not address whether a city council may set limits on the remarks of council members at an open meeting. However, the governing body of a city may adopt procedural rules for its meetings that are not inconsistent with the state or federal constitution, state or federal statutes, or with local city charter provisions.(57) Within these parameters, a city council may arguably set reasonable time limits for council member remarks in an open meeting.(58)

Can members of the city council be removed from an open meeting for causing a disturbance? The Open Meetings Act does not specifically address the ability to remove a member of the city council from an open meeting for causing a disturbance. Nonetheless, cities have the power to adopt rules and take actions to promote an orderly meeting. Accordingly, if a council member or other official's conduct rose to the level of disorderly conduct, the member could be warned and then if necessary, the presiding officer or the city council as a whole could ask that the council member be removed.

Keeping a Record of Open Meetings

What duty does a city have to produce minutes of open meetings? A city must either keep minutes or make a tape recording of every open meeting.(59) If the governmental body chooses to keep minutes rather than make a tape, state law requires that the minutes state the subject of each deliberation and indicate every action that is taken.

What access does the public have to the minutes of an open meeting? The minutes or tape recording of an open meeting are open to the public and must be available for inspection and for copying.(60) It should be noted that exceptions to required public disclosure in the Open Records Act do not apply to the minutes or recording of an open meeting. The city must permanently retain copies of its minutes for its meetings. However, the city is not required by state law to publicly post the minutes of an open meeting.

What right does the public have to record open meetings? The Open Meetings Act gives any member of the public a legal right to make a video or audio recording of an open meeting.(61) However, the Act also gives a governmental body a right to adopt reasonable rules that are necessary to maintain order at a meeting. Thus, a city council may regulate the location of recording equipment and the manner in which the recording is conducted. However, the city may not adopt any rule that would unreasonably impair a person's right to record an open meeting.

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ENDNOTES

1. This article was written by Scott Joslove, Robert Ray, and Carla Gay Dickson. Much of the material in the article is drawn from the Texas Attorney General's 1998 Open Meetings Handbook. In addition, the article was reviewed by Elizabeth Robinson, Peter Wassdorf, David Short, Susan Garrison, John Fuller, Heather Browne, and Ted Delisi, all of the Office of the Attorney General. Susan Horton and Frank Sturzl, both of the Texas Municipal League, also reviewed the article. Scott, Robert, and Carla would like to express their sincerest thanks for the invaluable assistance provided by these and other individuals in preparing this article for publication.

2. See Texas Government Code Section 551.001 (4) (1997).

3. See Texas Government Code Section 551.001 (4) (1997).

4. Texas Government Code Section 551.001 (1999) (as amended by Texas House Bill 156, 76th Legislature, Regular Session (1999)).

5. See Texas Government Code section 551.075 (1997).

6. See Texas Attorney General Opinion Nos. JM-1058 (1989)(governing body can meet with employees to receive information) and MW-28 (1979) (meeting of various public officials is not within scope of Open Meetings Act where there is not a quorum of city council or commissioners court members, where there is no purpose to circumvent the Act, and where the group does not have rule-making or quasi-judicial power).

7. See Texas Attorney General Opinion No. H-3 (1974) (committees whose decisions are "rubber stamped" by governing body may be subject to Open Meetings Act).

8. Texas Attorney General Opinion No. JC-0060 (1999).

9. See Texas Government Code section 551.001(3) (West 1998) (definition of "governmental body"); Texas Attorney General Opinion No. JM-1072 (1989) (local-level entity must fall within definition of "governmental body" to be covered by Open Meetings Act).

10. Texas Attorney General Opinion Nos. LO 93-55 (1993) and LO 96-113 (1996); see also Texas Attorney General Opinion No. DM-7 (1991) (committee on aging which receives public funds not subject to Open Meetings Act).

11. 1998 Open Meetings Act Handbook, published by the Office of the Attorney General of Texas, p. 57.

12. See e.g., Texas Attorney General Opinion No. JM-595 (1986) (Open Records Act does not authorize executive session where documents under discussion are confidential).

13. Texas Attorney General Opinion Nos. ORD-605 (1992) (names of applicants discussed in executive session are not confidential under Open Records Act) and ORD-485 (1987) (investigative report considered in executive session may not be withheld).

14. Texas Government Code section 551.050 (West 1998).

15. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 768 (Tex. 1991).

16. Texas Government Code section 551.043 (West 1998).

17. Texas Local Government Code section 43.052 (West 1998).

18. Texas Government Code section 551.041 (West 1998).

19. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 766 (Tex. 1991).

20. Texas Attorney General Opinion No. H-662 (1975).

21. Point Isabel Independent School District v. Hinojosa, 797 S.W.2d 176 (Tex. App. - Corpus Christi 1990, writ denied).

22. Mayes v. City of DeLeon, 922 S.W.2d 200 (Tex.App. - Eastland 1996, writ denied).

23. River Rd. Neighborhood Association v. South Tex. Sports, 720 S.W.2d 551 (Tex. App. - San Antonio 1986, writ dism'd w.o.j.).

24. Texas Government Code section 551.042 (West 1998).

25. Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990).

26. See Texas Government Code sections 551.043 (notice must be posted for 72 hours in advance of meeting) and 551.041 (notice must include place of meeting) (West 1998).

27. Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990).

28. See Texas Government Code sections 551.043 (notice must be posted for 72 hours in advance of meeting) and 551.041 (notice must include place of meeting) (West 1998).

29. Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990).

30. See Texas Government Code sections 551.043 (notice must be posted for 72 hours in advance of meeting) and 551.041 (notice must include place of meeting) (West 1998).

31. See Texas Attorney General Opinion No. H-1000 (1977) ("day-to-day" does not mean county commissioners court can recess meeting indefinitely, but court may recess until the following day).

32. Rivera v. City of Laredo, 948 S.W.2d 787 (Tex.App. - San Antonio 1989, writ denied).

33. See Texas Government Code section 551.001 (6) (1997).

34. See Texas Local Government Code section 22.039 (1997).

35. See Texas Local Government Code section 23.028 (1997).

36. See Texas Government Code sections 311.013 and 312.015 (West 1998).

37. See Texas Government Code sections 311.013 and 312.015 (West 1998).

38. Cox Enterprises, Inc., v. Board of Trustees of Austin I.S.D., 706 S.W.2d 956 (Tex. 1986).

39. See Texas Attorney General Opinion No. DM-95 (1991).

40. See Texas Attorney General Opinion No. DM-95(1992).

41. See Hitt v. Mabry, 687 S.W.2d 791 (Tex.App. - San Antonio 1985, no writ)(school trustees violated Open Meetings Act by telephone conferencing).

42. See Texas Attorney General Opinion No. DM-95 (1991).

43. Texas Attorney General Opinion Nos. DM-473 (1998) (governing body may adopt procedural rules not inconsistent with constitution, statutes, or charter provisions) and H-188 (1973) (governing body may adopt reasonable rules of procedure for open meetings, including Robert's Rules of Order); Texas Local Government Code § 22.038 (c) (1998) (governing body of type A city determines rules of procedure for its meetings).

44. Texas Attorney General Opinion No. DM-473 (1998).

45. Texas Government Code section 551.103 (West 1998).

46. Texas Local Government Code section 22.037 (West 1998).

47. Clark, Ronald H., Texas Municipal Law and Procedure Manual, 3rd edition, p. 4-3.

48. Texas Attorney General Opinion Nos. DM-207 (1993), JM-903 (1988), and JM-584 (1986).

49. Texas Government Code section 551.125 (West 1998).

50. Texas Government Code section 551.126 (West 1998).

51. Texas Government Code section 551.128 (as added by Texas Senate Bill 1252, 76th Legislature, Regular Session (1999)).

52. Texas Attorney General Opinion No. H-188 (1973).

53. See Texas Attorney General Opinion Nos. LO 96-111 (1996) and H-188 (1973).

54. Texas Attorney General Opinion No. H-188 (1973).

55. See Texas Attorney General Opinion Nos. LO 96-111 (1996) and H-188 (1973).

56. See Texas Attorney General Opinion Nos. DM-473 (1998) and H-188 (1973).

57. Texas Attorney General Opinion No. DM-473 (1998).

58. See Texas Attorney General Opinion Nos. LO 96-111 (1996) and H-188 (1973).

59. Texas Government Code section 551.021 (West 1998); see also Texas Attorney General Opinion No. H-1163 (1978) (minutes must record every action of governing body).

60. Texas Government Code section 551.022 (West 1998); see also Texas Attorney General Opinion No. ORD-225 (tapes of meetings used to assist in writing minutes are open records).

61. Texas Government Code section 551.023 (West 1998).
 

Revised: May 07 2010