Attorney General Opinion KP-0300

KE PAXTO ATTORNEY GENERAL OF TEXA April 22, 2020 The Honorable Deborah Earley Blanco County Attorney Post Office Box 471 Johnson City, Texas 78636 Opinion No. KP-0300 Re: Authority of a governmental body subject to section 551.007 of the Government Code to regulate public comment sessions during open meetings (RQ-0313-KP) Dear Ms. Earley: The Texas Legislature recently added section 551.007 to the Government Code, requiring certain governmental bodies—including a county commissioners court—to permit public comment on an item on the agenda for an open meeting. TEX. GOV’T CODE § 551.007. You ask whether section 551.007 permits a county to hold one public comment period at the beginning of an open meeting to address all agenda items, or instead, whether section 551.007 requires a county to hold separate public comment periods immediately before each agenda item.1 Subsection 551.007(b) provides: A governmental body shall allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item. Id. § 551.007(b) (emphasis added). The statute’s plain text allows the county to determine whether the opportunity for public comment will occur either before or during the body’s discussion of an agenda item. Id.; see Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) (“A statute’s plain language is the most reliable guide to the Legislature’s intent.”); Jones v. State, 175 S.W.3d 927, 932 (Tex. App.—Dallas 2005, no pet.) (“Typically, the term ‘or’ is disjunctive and . . . separates words or phrases in the alternate relationship, indicating that either of the separated words or phrases may be employed without the other.”). Moreover, if the county determines the opportunity will occur prior to the consideration of an agenda item, the text does not require that the public comment occur immediately adjacent to the discussion of the item or that it occur 1See Letter from Honorable Deborah Earley, Blanco Cty. Att’y, to Office of the Att’y Gen. at 2–3 (Oct. 25, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs (“Request Letter”). The Honorable Deborah Earley - Page 2 separate from public comment on other agenda items. See TEX. GOV’T CODE § 551.007(b); see also PHI, Inc. v. Tex. Juv. Justice Dep’t, No. 18-0099, 2019 WL 1873431, at *6 (Tex. Apr. 26, 2019) (“But no court has the authority, under the guise of interpreting a statute, to engraft extra- statutory requirements not found in a statute’s text.”); see also WEBSTER’S THIRD NEW INT’L DICTIONARY 197 (2002) (defining “before” as “preceding: earlier than”). Rather, the only requirement is that the opportunity occur at the public meeting before or during the body’s consideration of the agenda item. TEX. GOV’T CODE § 551.007(b). Accordingly, a county may satisfy subsection 551.007(b)’s requirements by having a single public comment period at the beginning of an open meeting to address all items on the agenda. You also ask whether section 551.007 permits a county to limit the total amount of time it gives a speaker to address all desired agenda items. See Request Letter at 2–3. Subsection 551.007(b) vests the public with the right to address certain governmental bodies on “an item on an agenda for an open meeting.” TEX. GOV’T CODE § 551.007(a), (b). But subsection (c) of that statute recognizes that the governmental body may adopt reasonable rules regarding this right, including time limitations: A governmental body may adopt reasonable rules regarding the public’s right to address the body under this section, including rules that limit the total amount of time that a member of the public may address the body on a given item.2 Id. § 551.007(c) (emphasis and footnote added); see id. § 311.005(13) (“‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.”). Subsection (c) mandates a requirement of any rule affecting the public’s right to address an agenda item: reasonableness. Id. § 551.007(c); see also id. § 551.007(e) (generally prohibiting governmental body from prohibiting public criticism); Tex. Att’y Gen. Op. No. H-188 (1973) at 2 (providing, in part, that commissioners court may not unfairly discriminate among views seeking expression). Thus, a rule capping the total amount of time a speaker has to address all agenda items is permissible only if the rule is reasonable. See TEX. GOV’T CODE § 551.007(c). Whether a particular period of time is reasonable to address all desired agenda items at an open meeting will depend on many factors, including the number of agenda items and their complexity, and is a fact question for the county to determine in the first instance subject to judicial review. See generally Tex. Att’y Gen. Op. Nos. KP-0178 (2018) at 3 (noting that this office does not resolve questions of fact in the opinion process), LO-96-111, at 1. 2The statute specifically addresses time for translation, providing: A rule adopted under Subsection (c) that limits the amount of time that a member of the public may address the governmental body must provide that a member of the public who addresses the body through a translator must be given at least twice the amount of time as a member of the public who does not require the assistance of a translator in order to ensure that non-English speakers receive the same opportunity to address the body. TEX. GOV’T CODE § 551.007(d). The Honorable Deborah Earley - Page 3 S U M M A R Y Government Code subsection 551.007(b) requires certain governmental bodies to permit public comment on an item on the agenda for an open meeting either before or during the body’s consideration of the item. A governmental body may satisfy subsection 551.007(b)’s requirements by holding a single public comment period at the beginning of an open meeting to address all items on the agenda. Government Code subsection 551.007(c) authorizes a governmental body subject to its provisions to adopt reasonable rules regarding the public’s right to address the body, including time limitations. Pursuant to subsection 551.007(c), a governmental body may adopt a rule capping the total amount of time a member of the public has to address all items on the agenda if the rule is reasonable. Very truly yours, K E N P A X T O N Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General RYAN L. BANGERT Deputy First Assistant Attorney General RYAN M. VASSAR Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee