Texas Attorney General Opinion: JC-57 Page: 4 of 6
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The Honorable Joe F. Grubbs - Page 4
below, whether a particular notice item complies with the Open Meetings Act is a question of fact.
See Tex. Att'y Gen. Op. No. JM-985 (1988) at 3.
If a governmental body truly needs to consult with its attorney on an emergency basis, the
Open Meetings Act permits it to do so. In the event of an emergency or urgent public necessity, a
governmental body may hold a meeting by posting two hours notice, which clearly identifies the
emergency or urgent public necessity. The Open Meetings Act provides that an emergency or
urgent public necessity exists only "if immediate action is required of a governmental body because
of: (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation."
TEX. Gov'T CODE ANN. 551.045(b) (Vernon 1994).
Even if an actual emergency exists, the governmental body must "clearly identify" the reason
for the emergency in the notice. Id. 551.045(c); Markowski v. City of Marlin, 940 S.W.2d 720,
724 (Tex. App.-Waco 1997, writ denied); Piazza v. City of Granger, 909 S.W.2d 529, 533 (Tex.
App.-Austin 1995, no writ). Attorney General Opinion JM-1037 determined that the two-hour
notice given of an "emergency meeting" to discuss litigation filed against a city did not comply with
the Open Meetings Act, based on the fact that the notice stated no reason for the emergency. The
opinion also pointed out that the situation did not require "immediate action," because the city had
more than 20 days in which to take action. Tex. Att'y Gen. Op. No. JM-1037 (1989) at 2-3; see also
Markowski, 940 S.W.2d at 725 (facts justified emergency meeting to seek attorney's advice about
litigation filed against the city; distinguishing Attorney General Opinion JM-1037).
Having concluded that an attorney consultation is a "meeting" subject to notice under the
Open Meetings Act, we next address the notice requirement. You specifically ask whether the
governing body must post "notice of an executive session, stating that the governing body will be
consulting with their attorney," when it wants to consult in private with the attorney about an issue
posted on the "regular agenda." Request Letter of 10/7/98 supra, at 1.
Whether a particular notice item complies with the Act generally requires the resolution of
fact questions. River Rd. Neighborhood Ass '"n v. South Tex. Sports, 720 S.W.2d 551, 557 (Tex.
App.-San Antonio 1986, writ dism'd w.o.j.). Accordingly, we cannot advise you in an attorney
general opinion whether or not the notice item in question complied with the Act. See Tex. Att'y
Gen. Op. Nos. 0-2911 (1940); DM-98 (1992) at 3. We can advise you of the standards stated by
the courts and of the kinds of facts that may be relevant to the validity of a notice item.
The Act requires the notice to fully disclose the subject matter of a meeting to the members
of the interested public. City ofSan Antonio v. Fourth Court ofAppeals, 820 S.W.2d 762, 765 (Tex.
1991); Cox Enterprises, 706 S.W.2d at 960. More specific notice is required for subjects of special
interest to the public than for routine matters. Id. at 959; see also Port Isabel Indep. Sch. Dist. v.
Hinojosa, 797 S.W.2d 176 (Tex. App.-Corpus Christi 1990, writ denied). For example, in the case
you inquire about, the degree of public interest in the proposed fireworks ordinance would be
relevant to determining whether notice was adequate. The governmental body's usual practice in
formulating notice may also be relevant to its adequacy in a particular case, depending on whether(JC-0057)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-57, text, May 26, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274366/m1/4/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.