Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Decemli,er 3, 1984
JIM MATTOX
Utorney General
iuprrme court Building Honorable Mike Driscol.1 Opinion No. J&238
‘. 0. Box 12540 Barr16 County Attornc!)
51214752501
4urun. TX. 78711. 2545 1001 Preston, Suite O:i4 Re: Whether staff members of
Houston. Texas 7700:1 the Harris County Commissioners
isiex BlW074-1387
Telecopier 5121475-0266
Court and other county officers
and employees are authorized to
attend executive sessions of
714 Jackson. Suite 700 the commissioners court
Jailae. TX. 75202-4505
2111742-8944
Dear Mr. Driscoll:
4S24 Alhla Ave., Suite 160 You ask the fol:.owing questions:
El Paso, TX. 79905.2793
31Y53M404
1. W the commissioners court permit or
authorize one or more county officers or employees
100. ,exas. Suils 700 to attend o closed or executive meeting or session
Ho~slon. TX. 77002-3111 of commissioners court held for the purpose of
713t223.5888 consulting with its attorney or attorneys
regarding IBending or contemplated litigation?
000 Broadway. Suite 312
Lubbock, TX. 79401.3479 2. (a) Would the conclusion to the first
8oM47-5238 question al>ply to such officer or employee who Is
a party t(l the litigation and is represented by
the same al:toraey?
43C4 N. Tenth. Suite B
MCAllwl, TX. 79501.1885
512@92-4547 (b) WorlZd the conclusion be the same if said
officer or employee were represented by a
different clttorney?
200 Main PI=*. Suite 400
San Antonlo. TX. 78205.2797
51212254191
Your request letter contains the following facts. In 1973, both
the Harris County Commissioners Court and the Harris County Sheriff
were named as defendants in a lawsuit concerning conditions in the
An Equal Opporlunltyl county jail. The :)arties agreed that the Harris County Attorney
AIfltmative Action Employer should represent the commissioners court and that the Harris County
District Attorney shculd represent the sherfff. During the last 11
years the commissioners court has met several times in executive
session to discuss this litigation. These sessions have been attended
by the members of thl? commissioners court and their staffs, by various
elected and appoint&l county officials, by the sheriff, and by the
district attorney, the county attorney, and their assistants. A
p. 1068
-
Honorable John Pi. Bolaca, Jr. -. Page 2 (JM-238)
dispute over whether some of these individuala were authorized to
attend these executive sessions prompted your questions.
Attorney General Opinion .I&6 (1983) established that the members
of a governmental body ma)’ exclude non-members from its closed
meetings. You wish to knov whether persons who have no right to
attend executive sessions may be admitted by the governmental body.
The Open Meetings Act, article 6252-17. V.T.C.S.. provides in
relevant part:
Sec. 2. (a) Except as otherwise provided in
this Act or spc!c if ically permitted in the
Constitution. every . . . meeting or session of
every governmental body shall be open to the
public; and no closed or executive meeting or
session of any governmental body for any of the
purposes for which closed or executive meetings or
sessions are hercsinafter authorized shall be
held. . . .
. . . .
(e) Private coasultations between a govern-
mental body and Its attorney are not permitted
except in those inf:tances in which the body seeks
the attorney’s advice with respect to pending or
contemplated litigation, settlement offers, and
matters where the duty of a public body’s counsel
to his client, pursuant to the Code of
Professional Responsibility of the State Bar of
Texas, clearly conflicts with this Act.
This act requires governmental bodies to open their meetings to
the general. public, except for limited circumstances under which
executive sessions are al Lowed. Your questions require us to
determine whether the admiss:lon of some public officers and employees
to an executive session conveined under section 2(e) is consistent with
the policy of openness underlying the act. Since your question is
limited to sessions convenl!tl under section 2(e), the “litigation
exception.” our conclusions ~I.11 also be limited to that issue.
Section 2(e) could be interpreted to authorize only the members
of a governmental body and its attorney to attend executive sessions
held thereunder. The 3wovislon refers to “[nlrivate
-.- `` consultations
``~
between a governmental both and Its attorney.” The underlined
language could be read to pcrrmit attendance at the executive session
onl; by members of the go&:nmental body and a single attorney to
advise them. Under such ;a construction, neither party would be
p. 1069
Ronorable John B. Eolmsa, Jr. - Page 3 (a-238)
allowed to bring an asent or essociate to the session. lIowevers the
dominent consid&atlon In cormtruing a atatute lo the intent of the
legislature. Calvert v. Texi!) Pi e Line Co.. 517 S.U.2d 777 (Tex.
1974); City of San Uarcor .l> Lower Colorado River Authority, 308
S.W.Zd 403 (Tex. Clv. App. . . Austin 1974). modified 523 S.W.Zd 641
(Tex. 1975).
As originally enacted, the open Meetings Act provided that
“[nlothing in this Act shall b,e construed to prevent a governing body
from consulting vith Its attorney.” Acts 1967, 60th Leg., ch. 271, at
597 * In 1969, however, the! legislature amended the act; in the
process, it deleted this prov:ision. Acts 1969, 61st Leg., ch. 227, at
674. Shortly thereafter, ::he same legislature passed Senate
Concurrent Resolution No. 83, Acts 1969, 61st Leg., at 3082, which
noted the deletion and stated:
WHEREAS, the privileged nature of comounica-
tions between attorney and client are recognized
by the common law, by Article 38.10, Code of
Criminal Procedure of Texas, 1965, and by the
rules of the State 13er of Texas; and
WHEREAS,It was the intent of the legislature,
in repealing the TAoted portion of Section 2,
Chapter 271. Acts o,E the 60th Legislature, Regular
Session, 1967 (Article 6252-17, Vernon’s Texas
Civil Statutes), the open meetings law. to
eliminate from that law surplus matter already
covered elsewhere in the law; now, therefore, be
it
RESOLVED,By the Senate of the State of Texas,
the Rouse of Repreclentatives concurring, that the
Legislature declarr! that it did not Intend. in
passing Senate Bill No. 260 [amending the act], to
abridge or in any wa:f affect the privileged nature
of communications between attorney and client.
A 1972 Attorney General >pinion determined that Senate Concurrent
Resolution No. 83 did not r’wtore the deleted language to the Open
Meetings Act. Attorney General Opinion M-1261 (1972). It surveyed
out-of-state cases which relied on the attorney-client privilege to
find an imulled exceotion fcbr attorney-client conferences in public
meetings acts that weke silent on that-subject. Sacramento Newspaper
Guild v. Sacramento County Board of Supervisors. 69 Cal. Rptr. 480
(Cal. App. 1968); Times Pubzlshlng Co. v. Wllliams. 222 So.Zd 470
@la. App. 1969). Contra Lama-nv. McCord. 432 S.U.Zd 753 (Ark. 1968).
See generally Annot. 38 A.m; 3d 1070 et seq. (1971).
p. 1070
Honorable John B. Holmer, Jr. -n Page 4 (3)3-238)
Attorney General Opinion M-1261 (1972) reasoned that the act must
be construed harmoniously with Senate Concurrent Resolution No. 83 and
statutory and common law rule13 on the confidentiality of the attorney-
client relationship. It conc:luded that a governmental body may hold a
closed session to discuss lqial matters with its attorney when it
desires
advice in regards to pending or contemplated
litigation, settlem,sut offers, and similar matters
where the duty of ,I public body’s counsel to his
client, pursuant to the Rules and Canons of the
State Bar of Texas, clearly conflicts with that
Article.
A 1973 amendment to article 6252-17, V.T.C.S., enacted the present
section 2(e), incorporating almost verbatim the foregoing language.
Acts 1973, 63d Leg., ch. 31, 52, at 46.
Thus, Senate Concurrent Resolution No. 83 and Attorney General
Opinion M-1261 provide si~;nificant evidence of the legislative
policies underlying section 2(e). This provision enables governmental
bodies and their attorneys t,> secure the protection of the attorney-
client privilege for delibe:rstlons it covers. The purpose of the
privilege is to promote !:be unrestrained communication between
attorney and client, withou: fear that the attorney will disclose
confidential communications. West v. Solito, 563 S.W.2d 240 (Tex.
1978); 8 Wigmore, Evidence 1:!;:91 (McNaughton rev. 1961). A provision
like section 2(e) gives a governmental body the opportunity for full
communication with its attorney without disclosing its side in litiga-
tion to its oooonents. See E,acramento NeWSDaDer Guild v. Sacramento
---
County Board 0; Supervisors, .supra; Minneapolis Star and Tribune Co.
v. Rousing and Redevelopment Authority, 251 I’ %’** L1A I”‘-- ‘,,,) ;
Oklahoma Association of Municipal Attorneys v. State, 577 P.2d 1310
(Okla. 1978); cf. Laman v. li&Zord. supra, (Pogleman, J., concurring)
(city attorney= prepare cs;ehout detailed discussions with city
council). ‘See also City of San Antonio V. Aguilar. 670 S.W.2d 681
(Tex. ADP. - San Antonio -1984. writ dism’d w.0.1.) (dicta on
impracticality of open meetiq decision to appeal); Attorney General
Opinion MW-417 (1981).
Attorney-client coramunicatlons are not confidential in the
“presence of s third person ,tiho is not the agent of either client or
attorney.” 8 Wigmore, x~, S2311. Thus, section 2(e) does not
permit an executive session held to discuss potential litigation with
the opposing party. Attorney General Opinion MI-417 (1981). Texas
law, however, has recognized that the privilege may extend to persons
who are the media of communication between the attorney snd client.
Burnett v. State, 642 S.W.21 765 (Tex. Crim. App. 1982) (hypnotist
hired by attorneys to refresh defendant’s memory). Moreover, rule 503
Ronorablc John 1). Rolmes, Jr. .- Psge 5 (m-238)
of the Texas Rules of Evidence defines the rttornev-client urivilene
to cover c~nications between the client or his ;epresent;tive aid
his lawyer. Tex. R. Rvid. 503(a) and (b). Rule 503 defines “client”
to in&de a public officer or a p&ic entity. Tex. R. Rvid.
503(a)(l).
Where the presence of (I third party agent or representative of
the commissioners court Is necessary to the court’s full and un-
restrained cmnication witt, its attorney , we believe that party may
attend an executive session validly held under section 2(e) of the
Open Meetings Act. See
- Sacramento
-- Newspaper Guild v. Sacramento
County Board of Supervisors,. suprcl, (attorney-client conferences
permitted in executive sess:lon under circumstances defined by Cal.
Rvid. Code which permitted presence of some third parties), In some
cases, the officers and employees of a governmental body will possess
information relevant to the litigation or to evaluating a settlement
offer. The litigation may te based on the actions of such persons,
carrying out policy of the commissioners court under its supervision
and control. Their presence and contribution at the executive session
may be essential to effective, communication between the government’al
body and its attorney.
We therefore conclude that governmental bodies may admit to
executive sessions held under section 2(e) those officers and
employees who are their representatives or agents with respect to the
particular litigation in question and whose presence Is necessary to
effective cosununication with the attorney. Furthermore, the govern-
mental body may not admit to its closed discussion of litigation those
third parties who are adversaries or whose presence would otherwise
prevent privileged communical:ion from taking place. We do not believe
that governmental bodies may simply admit anyone they wish regardless
of whether that nerson is likelv to make a lenitimate contribution to
the discussion. See generally-Johnson V. Sta&m~i7~4 S.W. 1047 (Tex.
Crim. App. 1915); Attorney G~?neral Opinion MW-417 (1981).
We do not have sufficient information to determine whether the
sheriff could legally be admitted to the executive session. The fact
that he is represented by a different attorney is one factor which is
relevant to determining whel:her he is sufficiently aligned with the
commissioners court in th,Ls litigation to participate In their
discussions. The sheriff :is directly involved in the litigation,
however, and undoubtedly pt’ssesses important information concerning
the litigation. The commissioners court must determine whether he la
sufficiently aligned with 11:s position here to justify his presence.
The alignment of the parties suggests that the sheriff and his
attorney could properly be aknitted to the executive session. A case-
by-case analysis of all reltvant facts will be necessary to determine
whether a particular third party may be admitted to consultations held
p. 1072
. 1
Honorable John B. Holmes, Jr. - Pa8e 6 (JR-238)
under section 2(e) between an sttorney and the client 8overnmental
body.
The commissioners court may admit its agents or
representatives to e:recutive session meetings held
under section 2(eIl of the Open Meetings Act,
article 6252-17, V.T.C.S., where the third party's
interest Is aliened ,with the court's and where his
presence is necessary to the court's full communi-
cation with its attorney. Whether a particular
person may be admitted must be decided by a case-
by-case analysis of all relevant fscts.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney Central
DAVID R. RICRARDS
Executive Assistant Attorney Ceneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTRE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer RI886
Nancy Sutton
p. 1073