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AG Opinions

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Index of TOMA

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Attorney General Opinions on the Texas Open Meetings Act
by Donald Ray Burger
Attorney at Law

An Attorney General opinion on the Texas Open Meetings Act (TOMA) is a letter from the AG to the individual asking a particular question on the meaning of the TOMA. Not just anyone can request an AG opinion. AG opinions are usually requested by state government officials worried that they may be violating the TOMA. Sometimes it is a district attorney requesting the opinion as information for the district attorney to consider in reaching a decision on whether to prosecute possible violators of the TOMA under the criminal laws of the State. More rarely, a member of the legislature may request an opinion on how the AG views the language of the statute.

Exactly who can request an AG opinion is set out in sections 402.042 and 402.043 of the Government Code. Also, the AG addresses this issue on the Attorney General website.

Unfortunately, non-governmental people cannot get AG opinions on the meaning of the TOMA.

There are a couple of things you need to know when reading AG opinions. First, the AG does not conduct any fact-finding when issuing an opinion. What does that mean? It means that the AG has to take as true the factual situation presented in the letter. For example, if a government official requests an opinion about a breakfast meeting where it is stated by the questioner that no policy decisions are discussed, the AG, in rendering his opinion, must assume that to be true. You can tell that bugs many AG's because the AG Opinions are full of warnings that the AG has not done any investigation of the truth of the "facts" supplied in the question, and has to issue his decision based on the assumption that those "facts" are true. For examples of where AG's have noted that they had to consider the facts in the question as true when issuing their opinion, see the following AG opinions:
H-772 (1976)
H-994 (1977)
MW-28 (1979)
MW-390 (1981)
JM-1127 (1989)
DM-95 (1992)

Another thing to keep in mind is that courts are not bound by AG opinions. Normally, they give serious weight to an AG opinion, but they are also free to rule the other way. As the Court said in Dallas Morning News v. Board of Trustees, 861 S.W.2d 533, 535 (Tex. App.-Dallas 1993, __________), "An Attorney General opinion does not bind a reviewing court. [citation omitted] However, when the meaning of a statutory provision is unclear, in doubt, or ambiguous, we must give weight to the interpretation placed upon the provision by the agency.[citation omitted]"

AG opinions are "coded" with the initial of the attorney general who issued the opinion and the number of the opinion from that particular AG. Sometimes the year of the decision will also appear. For example, an AG opinion cited as DM-191 (1991) is the 191st letter opinion from Dan Morales, and it was issued in 1991. Fortunately, the State of Texas has made all AG opinions easily available on the web.

For the exact wording of a particular AG opinion, click here.

Also, just as in court decisions, please keep in mind that the AG is issuing his opinion based on the version of the TOMA before him. The TOMA has been frequently amended, and an AG opinion under a particular version may not apply when the TOMA section involved is amended after the AG opinion.

I have collected many of the significant AG opinions on the TOMA and offer my analysis of the significance of each. My analysis is to aid you in understanding the meaning and importance of the AG opinion. If you have occasion to quote an AG Opinion, quote the language the AG used, not my analysis. Also, if you have questions about my analysis, the link to the exact language in the AG opinion is available at the link above.

The list of AG Opinions is designed to be thorough. I have intentionally included many opinions that address earlier versions of the TOMA because there is a risk in relying on such opinions to give guidance as to the meaning of the TOMA currently in effect. As I said earlier, the Attorney General issued his opinion based on the version of the TOMA before him. If a governmental official tells you the official can do something because there is an AG Opinion saying so, please check to make sure the language the AG considered has not been amended. If it has, the AG Opinion may no longer give the support the official thinks it offers. Just because an AG Opinion issued in the 70's says something is no reason to give up. Most amendments to the TOMA have strengthened its goal of encouraging open government.

Below, in chronological order, are many of the AG Opinions impacting the Texas Open Meetings Act. The single sentence summary gives a very short summary of the subject of the opinion letter. To read my analysis of the significance of the AG Opinion, click the letter/number designation of the AG Opinion.

M-1005 (1971): Discusses notice requirements under a very early version of the TOMA.

H-496 (1975): Holds that under the TOMA a governmental body may meet in closed session to discuss the salaries of individual employees, but not of a class of employees.

H-1047 (1977): Holds that while the TOMA permits govenmental bodies to meet in closed session to consider the selection of employees, the TOMA does not require a closed session.

MW-129 (1980): Holds that a governmental body cannot meet in closed session to discuss the employment of independent contractors.

JM-1071 (1989): Holds that nothing in the TOMA prohibits "persons who are present at the executive [i.e. "closed"] session from afterwards talking about the subject matter of the session."

JM-1191 (1990): Holds that although an employee who is the subject of the deliberation or hearing under what is currently Section 551.074 can compel an open session, such employee cannot compel a closed session.

Last Revised 2/15/03

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