Untitled Texas Attorney General Opinion ( 1972 )

November 14, 1972
Hon. Tom Uanna Opinion NO. ~-1261
Criminal District Attorney
P. 0. Box 2553 Re: Questions relating to
1149 Pearl Street construction of Art-
Beaumont, Texas 17701 icle 6252-17, Vernon’sS
Civil Statutes (the
Dear Mr. Hanna: "open meeting8 law")
Your recent letter requesting the opinion of this
office concerning the referenced matter poses the following
questions:
"1. May the Commissionerr' Court, without
violating Article 6252-17, meet in private to
discuss legal matters with their attorney7
"2 . Hay the Commissioners' Court meet and ’
have conferences with staff members of the govern-
mental bodies for the purpose of internal ad&n-
istration where no matters of public business or
agency policies that affect public business, will
be acted upon?
"3. Is there a limitation on subjects covered
with the attorney or rtaff members as long &s there
is no action taken?
"4 . Assuming that quertionr one and two are
answered in the affirmative, then would notice of
such meetings have to be pornted?’
Section 2(c) of Article'6252-17 (the "op)n meeting8
law”), am originally enacted in 1967 (Acts 60th Ug., R.8.
1967; ch. 271, p. 5971, provided tht
. . .
Hon. Tom Hanna, page 2, (M-1261)
“Nothing in this Act shall be construed t0
prevent a governing body from consulting with ita
attorney.”
When, however,Article 6252-17 was amended in 1969
by Senate Bill No. 260 (Acts 61st Leg., R.S. 1969, ch. 227,
p. 6741, Section 2(c), as written in 1367, was deleted in its
entirety.
Thereaft’er, the Senate paesed.Senate Concurrent
Resolution No. 83 (Acts 61st kg., R.S. 1969, p. 3062). whiob
provided as follows:
WRERRAS, Senate Bill 260 has passed the
House and the Senate: and
“WHEREAS, Senate Bill 260 was amended to
delete provisions in the present open meetings
law stated that ‘Nothing in this Act ehall be
construed to prevent a governing body from con-
sulting with its attorney’; and
“WHEREAS, The privileged nature of com-
munications between attorney and client are
recognized by the commonlaw, by Article 38.10,
Code of Criminal Procedure of Texas, 1965, and
by the rules of the State Bar of Texas; and
“WH!SRBAS,It was the intent of the lcgis-
lature, in repealing the quoted portion of Section
2, Chapter 271, Acts of the 60th Legislature,
Regular Session, 1967 (Article 6252-17, Vernon’s
Texas Civil Statutes), the open meeting0 law, to
eliminate from that law surplus matter already
covered llmewhere in the law! now, therefore, be it
‘%WSOLVRDby the Senate of the State of Texas,
the House of Representative8 concurring, That the
legislature declare that it did not intend, in’-
pasrinu Senate Bill No. 260. to abridqe or in any
-6179.
.
. .
Hon. Tom nanna. page 3, (~-1261)
way affect the privileqed nature of communications
between at tornev. and client . * (emphasis added. 1
Article 38.10, Texas code of Criminal Procedure,
referred to in the preceding Concurrent Resolution, provides
as follows:
“All other persons . . ., whatever may be
the relationship between the defendant and wit-
ness, are competent to testify, except that an
attorney at law shall not disclose a communication
made to him by his client durinq the existence of
that relationshin, nor disclose anv other fact
which came to the knwledqe of such attorney bv
reason of such relationship.” (emphasis added. 1
See, also, Canon 34 of Article XIII of the Rules of the State
Bar of Texas.
It is also well established that confidential communi-
cations between an attorney and his client are privileged in
civil cases, though there is no statute expressly so providing.
61 Tex.Jur.Zd 669-70, Witnesses, Sec. 106 (and ‘authorities
therein cited): Williams v. Williams, 108 S.W.Zd 297 (Test.Civ.
App. 1937, no writ); Cochran v. Cochran, 333 S.W.2d 635
(Tex.Civ.App. 1960, error ref. n.r.e.).
It is apposite to note that the 62nd Legislature,
convening in regular session in 1971, and presumably aware of
Senate Concurrent Resolution No. 83, did not see fit to restore,
by legislative act, the deleted language of Section 2(c) to
Article 6252-17.
Although Senate Concurrent Resolution No. 83, quoted
supra, is a form of expression by which the Legislature stated
its opinion or will in respect to allowing a governing body to
consult in private with its attorney, and although the ‘Coneti-
tution of Texas (Article IV, Section 15) recognizes the right
of the Legislature to express itself by resolutions, it is
also manifestly clear that a statute cannot be amended, repealed,
. .
. .
Ron. Tom iianna, page 4, (M-1261)
or otherwise modified by a resolution. Humble Oil 6 Ref. Co.
v. State, 104 S.W.Zd 174 (Tex.Civ.App. 1936, no writ): Terre11
Wells Swirmninq Pool v. Rodriguez, 182 S.W.2d 824 (Tex.Civ.App.
1944, error ref.); Mosheim v. Rollins, 79 S.W.2d 672 (Tex.Civ.
App. 1935, error dism; w.0.j.); Attorney General's Opinions
Nos. WW-345 (1958) and M-1234 (1972).
Thus, Senate Concurrent Resolution NO. 83 could have
no amendatory legal effect whereby the deleted original word-
ing of Section 2(c) of Article 6252-17 could be reinstated.
This is not to say, however, that the deletion of Section
Z(c), in and of itself, has the effect of denying the attorney-
client privilege to governing bodies. This question is one
of first impression in this State, and we must turn to deci-
sions from other jurisdictions in an effort to find precedent
whereby we can correctly answer your first question.
In Laman v. McCord, 432 S.W.Zd 753 (Ark.Sup. 1968),
e city council meeting in closed session with the city attor-
ney to discuss a proceeding to which the city was a party was
found violative of the Arkansas open meetings statute which
provided that “(e)xcept as otherwise specifically provided by
law (emphasis added.)", all meetings of public entities were
to be public meetinga. In so holding, the Court stated that
"The attorney-client privilege, originally a
common-law ifmnunity, now rests upon a section of
the Civil Code, adopted in 1869, which provides
that an attorney is incompetent to testify about
his client's communications without the client's
consent. . . . Por us to say that the section just
cited, dealing only with a testimonial disqualifi-
cation, 'specifically' provides that the city coun-
cil may consult its attorney in secret would simply
amount to striking the word 'specifically' from
the Freedom of Information Act.” 432 S.W.Zd at
756. (emphaeis added. )
-6181-
Hon. Tom Xanna, page 5, (M-1261)
In Times Publishing Co. v. Wi.lliame, 222 So. 2d 470
(Pla.App. 1969), having held that the provisions of the Florida
open meetings law were applicable to every assemblage of a
board or commission governed by the law at which any diecus-
eion, deliberation, decision, or formal action was to be had,
made, or taken relating to, or within the scope of, the offi-
cial duties or affairs of such body, the court answered the
query of whether there were any exceptions to the mandate of
the law by finding that there was a narrow attorney-client
exception where public consultation by a public body with its
attorney regarding pending or impending litigation would force
him to violate the canons of ethic6 as promulgated by the state
rupreme court. In Williams, the court declared that
I,. . . The clear import of the ‘All meetings'
provisions of this statute is that the public,
acting through the legislature, has waived the
(attorney-client) privilege with regard to the
enumerated public bodies.
"There is one aspect of the attorney-client
relationship, however, in which there are obliga-
tione which bind the attorney; and the aspect
involves his duties in the conduct of pending or
impending litigation. . . .
"The legislature therefore, ir without any
authority to directly or indirectly interfere
with or impair an attorney in the exercise of his
ethical duties as an attorney and officer of the
court. . . . This is not to say, of course, 'that
it may not condemn unethical or criminal condu&,
but the attorney ham the right and duty to prac-
tice hie profession in the manner required by the
Canons unfettered by clearly conflicting legiela-
tion which renderm the performance of him ethical
dutiem impossible. He cannot be put in the unten-
able poeition’of choice between a violation of a
statute or a violation of a specific Canon insofar
ar they clearly conflict (emphasis by the court).
-6102-
. .
Hon. Tom Hanna, page 6, (M-1261)
We can perceive of the possibility of instances
when there may be conflict between the two E
thev may relate to Privacy and confidentielitv
in the handling of wndins or anticiwted liti-
gation.* (emphasis added.)
“* l l
*. . also, however,
. We hold that . . . the
act does not permit private consultation between
its agency and the attorney in any other circum-
stances except those narrowly outlined above.”
222 So. 2d at 475-76.
In the case of Sacramento Newspaper Guild v. Sacra-
mento Co. Bd. of Super., 69 Cal. Rptr. 480 (Cal.App. 1968),
hwever, it was held that, notwithstanding the language of
the California open meetings law that “(a)11 meetings of the
legislative body of a local agency shall ba open and public;
the statutory opportunity of boards of euparvieore to confer
privately with their attorneys on oocaeione properly squiring
confidentiality was not abolished. The Sacramanto court stated
that
“The Brwn Act (the open meetings law), epac-
ifically section 54953, broadly encompasses ‘all
meetings. ’ Viewed as a statutory microcosm, its
demand is forthright, offering no internal inter-
stice for private lawyer-client coneultatione. It
is not a microcorm, however, but one element in a
structure of constitutional and statutory policies
covering the powers, duties and procedures of local
agencies of government. Another part of this lagal
structure in the privilege attaching to confiden-
tial lawyer-client communications.
** c *
-6183-
Hon. Tom Hanna. page 7, (M-1261)
"Plaintiffs do not dispute the availability
of the lawyer-client privilege to public officials
and their attorneys. They view it as a barrier to
testimonial compulsion, not a procedural rule for
the conduct of public affairs. The view is too
narrow . . . The privilege serves a policy asstir-
ing private consultation. If client and counsel
must confer in public view and hearing, both
privilege and policy are stripped of value. . . .
"Thus the structure of laws governing local
public boards includes two separate substructures,
one in the Government Code demanding open meet-
ings, the other in the Evidence Code assuring
confidential lawyer-client,conferences. Each
'expresses a separate policy objective, but neither
refers expressly to the other in terms of dominance
or reconciliation. . . .' 69 Cal. Rptr. at 488-89.
(emphasis added.)
The Sacramento court continued~as follaws:
"The two enactments (Government Code and
Evidence Code) are capable of conc'urrent opera-
tion if the lawyer-client privilege is not wer-
blown beyond its true dimensions. As a barrier
to testimonial disclosure, the privilege tends
to suppress relevant facts, hence is strictly
construed. . . As a barrier against public access
to public affairs, it has precisely the same
suppressing effect, hence here too must be strictly
construed. As noted earlier, the assurance of
private legal consultation is restricted to com-
munications 'in confidence.' Private clients,
relatively free of regulation, may set relatively
wide limits on confidentiality. Public board
members, sworn to uphold the law, may not arbi-
trarily or unnecessarily inflate confidentiality
for the Durpose of deflating the spread of the
-6184-
Hon. Tom Hanna, page 8, (M-1261)
public meeting law. Neither the attorney's
presence nor the happenstance of some kind of
lawsuit may serve as the pretext for secret
consultations whose revelations will not injure
the public interest. To attempt a generaliza-
tion embracing the occasions for genuine confi-
dentiality would be rash. The Evidence Code
lawyer-client provisions may operate concurrently
with the Brown Act, neither superseding the other
by implication.
"Because the Brown Act did not abolish the
statutory opportunity of boards of supervisors
to confer privately with their attorney on occa-
sions properly requiring confidentiality, the
preliminary injunction is too broad. . . ."
69 Cal. Rptr. at 492. (emphasis added.)
A recent Opinion of the Attorney General of the State
of Washington held as follows concerning the applicability of
the attorney-client privilege to that State's open meetings
law:
IS. . . (W)e would conclude that there remaina
a modified attorney-client privilege for the gov-
erning body of a public agency in thir state.
This privilege cannot be asserted by the body for
all legal advice which it receives, particularly
that which fits within the concept of deliberations
of the body. However, those sensitive areas of
legal advice, particularly with reference to pend-
ing or contemplated litigation, settlement offers
and similar matters, can, in our opinion, be dis-
cussed between the governing body and its attorney
in a closed session." Wash. Att'y. Gen. Op. No.
33 (1972).
-6lSS-
.
.
. .
.
Hon. Tom nanna. iwe 9, (M-1261)
See, generally, 38 A.L.R. 3d 1070, et %.. "Validity,
Construction, and Application of Statutes Uazng Public Pro-
ceedings Open to the Public" (19711, and Note, "Administrative
La'4---Freedom of Information ---Texas Open Heetings Act Has
Potentially Broad Coverage but Suffers from Inadequate Enforce-
ment Provisions", 49 Texas L. Rev. 764 (1971).
In view of the foregoing, we are of the opinion
that, although Article 6252-17 no longer contains an express
exception regarding closed meetings for attorney-client con-
ferences. the Article must be read in consonance, and construed
harmoniously, with Senate Concurrent Resolution No. 83, Arti-
cle 38.10, Texas Code of Criminal Procedure, the Canons and
Rules of the State Bar of Texas, and the long tradition of the
common law regarding the confidentiality of the attorney-client
relationship. While it is true that Article 38.10 is but a
testimonial bar to disclosure of attorney-client confidences,
we believe its underlying purpose and policy would be vitiated
by holding it totally inapplicable to meetings of public bodies.
We do not believe the Legislature, in enacting Article 6252-17,
as amended, intended that public bodies, in certain sensitive ``
legal areae, were any leer entitled to privileged communica-
tions with their counrel.than are private litigants.
We also stress, however, that the absence of an
express exception for the attorney-client privilege in Arti-
cle 6252-17 has had the effect of modifying the common law
and the degree to which's public body may claim the attorney-
client privilege. On the other hand, we find that the legis-
lative intent of the statute would allow discussions or con-
ferences of certain confidential preliminary legal matter8
incidental to the development of a public ultimate legal issue
to be decided at the "open meeting,*' since such conferences
would not rine to the dignity of the type "meeting" intended
to be open to the public. In our view, a public body governed
by Article 6252-17 may only validly claim the attorney-client
privilege and ho1d.a closed ression to discuss legal matters
with its attorney when it derires legal advice with regard to
pending or contemplated litigation, lettlement offera, and
-6186-
.
Ron. Tom Henna, page 10, (M-1261) ``~-
aimilar matters where an attorney’s duty to his client, pursuant
to the Rules and Canons of the State Bar of Texas, would clearly
conflict with that Article. It is also our opinion that mere
conferences which discuss such matters that only form the basis
for further consideration at an ‘open meeting” as contemplated
by Article 6252-17 do not contravene the provisions of that
statute. However, a public body may not invoke the attorney-
client privilege when it only seeks legal advice in regards
to matters of administrative procedure or public deliberation
without the purview of the examples set out above.
Therefore, your first question, as qualified in the
preceding paragraph, is answered in the affirmative.
Your second question is also answered in the affirm-
at ive, inasmuch as Section 2(d) of Article 6252-17 provides
that:
“The provisions of this Act shall not apply
to periodic conferences held among staff members
of the governmental body. Such ltaff meetings
will be only for the purpose of internal adminia-
tration and no matttra of public business or
agency policies that affect public business will
be acted upon. *
Leaving out the provisions of Section 2(d), the meeting of
staff members of a governmental body is not required to be
open to the public. Therefore, to render Section 2(d) mean-
ingful and fo give effect to its intent and purpose. we con-
strue it to mean that as an exception to the requirement
that every meeting of the governmental body be open to the
public, such requirement was inapplicable when the members
of the body met with or among staff members for the limited
purpose of internal administration and in which matters of
public business or board policies afftcting public business.
were not to be discussed and acted upon.
-6187-
Ron. Tom Iianna. page 11. (M-1261)
As for that portion ‘of your third question dealing
with whether there is a limitation on subjects covered with
a public body's attorneys, you are advised that, in open
meetings of a public body, said body may confer publicly
with its attorney on any legal point germane to its admin-
istrative procedure or to matters included on the agenda of
its meeting. In closed sessions with its attorney, you are
advised that a public body may discuss with its attorney only
those matters set forth as within the attorney-client privi-
lege in our answer to your question one, aupra: those matters
are, to wit, legal matters pertaining to pending or contem-
plated litigation, settlement offers; or aimilar matters.
wherein the duty of a public body’s counsel to his client,
pursuant to the Rules and Canons of the State Bar of Texas;
clearly conflicts with Article 6252-17.
In closed conferences with its staff members,
pursuant to Section 2(d) of Article 6252-17, you are advised
that the only subject matter limitation'ia that the matters
discussed pertain solely to internal administration, and ,that
they in no way concern public business or agency policies that
affect public business. lketinga held with staff members,
subject to Section 2(d) of Article 6252-17, are clearly not
governed by that Article. See Attorney General’s Opinion No.
W-220 (19681, which held that
“A meeting or session is one in which the
members of a governmental body transact official
business which such agency is chargtd to perform."
Hence, a conference held pursuant to Section 2(d) is not such
a "meeting or aesaionH that Article 6252-17 requires be open
to the public.
Your fourth question inquires whether a public body
is required to post a notice in advance of any closed meeting
with its attorney or its staff members. Subsection (a) of
Section 3A of Article 625247 provides that
*., .I
Non. ToahNanna, page 12, (M-1261)
“Written notict of the date, place, and aub-
ject of each meetinq held by a governmental body ’
shall be given before the meeting as prescribed
by this section.*
Pursuant to the reasoning of Attorney General’s
Opinion No. M-220 (1968), quoted aupra, you art advised that
a public body must post notice of an open or closed meeting
with its attorney. when matters of either official buaineaa,
public business, or agency policies affecting public business
will be discussed with him. If no such matters are to be
discussed with a public body’s attorney, no notict of a
meeting with him need be posted.
You are further adviatd that no notice of a public
body’s closed meeting with staff membtra, pursuant to Sec-
tion 2(d) of Article 6252-17; need be posted, inasmuch as that
Section specifically prohibits the diacuaaion of public buaineaa
in such meetings.
(1) Despite the fact that Article 6252-17,
Vernon’s Civil Statutes (the *open meetings law”),
grants no such specific exemption, a public body
is entitled to hold closed meetings with its
attorney when such body attka the attorney’s
advice in regards to pending or contemplated
litigation, settlement offers, and similar matters
where the duty of a public body's counsel to his
client, pursuant to tht Rules and Canons of the
Btate Bar of Ttxaa, clearly conflicts with that
Article.
(2) The privilege
of confidtntial communica-
tions bttween 8ttorney and client, as codified in
Article 38.10, Texas Codt of Criminal Proctdure,
and enunciated in the conmaonlaw and the Rulta and
Canons of the State 0ar of Texas, is applicable to
-61899
Hon. Tom Hanna, page 13, (M-1261)
public bodies governed by Article 6252-17, to the
extent set forth in paragraph (l), aupra. A public
body may not invoke the privilege in regards to any
other matters of public deliberation or parliamentary
procedure.
(3) A resolution passed by the Legislature
cannot amend, repeal, or otherwise modify an Act
earlier passed by it, though the intent expressed
in such resolution may validly be considered when
endeavoring to harmonize one legislative act with
another.
(4) Pursuant to Section 2(d) of Article 6252-17,
a public body may have conferences with its staff
members for the purpose of internal administration
where no matters of official or public business, or
agency policies that affect public business, will be
acted upon.
(5) In open meetings, A pubiic body may confer
publicly with its attorney on any legal point germane
to its administrative procedure or to matters included
on its agenda. In closed meetings with its attorney,
a public body may discuss only those items enumerated
in paragraph (1). aupra.
(6) In closed conferences with its staff members,
a public body may discuss only matters of internal
administration, and may not discuss matters of offi-
cial or public business, or agency policies that
affect public buaineaa.
(7) A public body must post notice, pursuant to
Subsection (a) of Section 3A of Article 6252-17, of
an open or closed weting with its attorney, if mat-
ters of official or public business, or agency policies
affecting. public buaineaa, art to be discussed with him.
-6lgO-
. : . : .
.. . ..
Non. Tom Hanna, page 14, (M-1261)
(8) No notice of a public body'8 meeting with
ita etaff members, for internal'adminintration
purpoeee putwant to Section 2(d) of .Article
6252-17, need be poeted.
Prepared by Austin C. Bray, Jr.
Aeeietant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. All$n,~Co-Chiinnan
Bill Planary
~JimSwearin$en
Lynn Taylor
Roland Carbon
SAJ4UELD. WCDANIEL
Staff Legal Aerietant
ALPRED WAIXER
Executive Aeri8tant
NOIA WHITE
Piret Asrirtant
.
.
-6lgl-.,