November 14, 1972

Hon. TomUanna Opinion NO. ~-1261 Criminal District Attorney P. 0. Box 2553 Re: Questions relating to 1149Pearl Street construction of ArtBeaumont, 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. Maythe Commissionerr' Court, without violating Article 6252-17, meet in private to discuss legal matters with their attorney7 "2

. Hay the Commissioners' Court meetand ’ have conferences with staff **members**

### of the governmental bodies for the purpose 

### of internal ad&nistration where nomatters 

### of public business or agency policies that be acted upon? "3. Is there a with the attorney or is noaction taken? affect public business, will

limitation onsubjects covered rtaff membersas long &s there

"4

. Assuming that quertionr one and two **are** answered in **the** affirmative, thenwould **notice** 

### of such meetings have to be **pornted? ’**  Section 2(c) of Article'6252-17 (the "op)n **meeting8** law”), amoriginally 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 agoverning **body** from consulting with ita attorney.” **When,** however, Article 6252-17 was amendedin 1969 bySenate 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 260has passed the House andthe **Senate: and**  “WHEREAS,Senate Bill 260was amendedto delete provisions in the present open meetings law stated **that** ‘Nothing in this **Act** ehall be construed to prevent agoverning 

### body from consulting with its attorney’; and “WHEREAS,Theprivileged nature of **com** munications between attorney andclient are recognized by the common law, byArticle 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 lcgislature, 

### 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 l**lmewhere in**  **the** law! **now, therefore,**  be it

‘%WSOLVRD

by **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. Tomnanna. page 3, (~-1261)

wayaffect the privileqed nature of communications between attornev. 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 andwit**ness,** are competent to testify, except that an attorney at law shall not disclose a communication madeto himby 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 34of Article XIII of **the** Rules of **the** State Bar of Texas.

It is also well established that confidential communications between anattorney andhis **client are**  privileged in civil cases, though there is no statute expressly so providing. 61Tex.Jur.Zd 669-70, Witnesses, Sec. 106 (and‘authorities therein cited): Williams v. Williams, 108S.W.Zd 297 (Test.Civ. App. 1937, **no** writ); Cochran v. Cochran, 333S.W.2d 635 (Tex.Civ.App. 1960, error **ref.** n.r.e.).

It is apposite **to note**  **that the**  62ndLegislature, convening in regular session in 1971, andpresumably 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 agoverning body to consult in private **with its**  attorney, and although the ‘Conetitution **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. Tomiianna, page 4, (M-1261)

or otherwise modified by a resolution. HumbleOil 6Ref. Co. v. State, 104S.W.Zd 174 (Tex.Civ.App. 1936, nowrit): 

### Terre11 Wells SwirmninqPool v. Rodriguez, 182S.W.2d 824 (Tex.Civ.App. 1944, error ref.); Mosheimv. Rollins, 79S.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. 83could have noamendatory legal 

### effect whereby the deleted original wording 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 attorneyclient privilege to governing bodies. This question is one **of** first impression in this State, andwemust turn to decisions from other jurisdictions in aneffort to find precedent whereby wecan correctly answer your first question.

In Lamanv. McCord, 432S.W.Zd 753 (Ark.Sup. 1968), e city council meeting in closed session with the city attorney to discuss aproceeding to which the city was a party was found violative of the Arkansas openmeetings 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

"Theattorney-client privilege, originally a common-lawifmnunity, nowrests upona 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 disqualification, 'specifically' provides that the city council mayconsult its attorney in secret would simply amountto striking the word 'specifically' from the Freedom

### of Information **Act. ”**  432S.W.Zd at 756. (emphae

is added.)

-6181-Hon. TomXanna, page 5, (M-1261)

In Times Publishing Co. v. Wi.lliame, 222So.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 diecuseion, deliberation, decision, or formal action was to be had, made, or taken relating to, or within the scope of, the official 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 apublic 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, haswaived 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 obligatione 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 andofficer 

### of the court.
. . . This is not to say, of course, 'that it maynot condemnunethical 

### or criminal condu&, but the attorney ham**the** right and duty to practice **hie** profession in **the** manner required by the **Canons** unfettered by clearly conflicting legielation which renderm the performance 

### of himethical dutiem impossible. Hecannot be put in the untenable 

### poeition’of choice between aviolation of **a** statute or a violation of **a** specific Canoninsofar ar they clearly conflict **(emphasis by**  **the** court).

-6102-. .

**Hon.** 

### Tom**Hanna, page**  **6,** (M-1261)

Wecanperceive of the possibility 

### of instances whenthere maybe conflict between the twoE thev **may**relate to Privacy andconfidentielitv in the handling 

### of wndins 

### or anticiwted litigation.* (emphasis added.)

ì* l l *****

**. .**  **. We** hold also, 

### however, that

. . . **the** act does not permit private consultation between its agency andthe attorney in any other circumstances 

### except those narrowly outlined above.” 222 So.2d at 475-76. In the case 

### of Sacramento Newspaper Guild v. SacramentoCo. Bd. of Super., 69Cal.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 openandpublic; **the** statutory opportunity 

### of boards 

### of euparvieore to 

### confer privately **with** their attorneys onoocaeione properly squiring confidentiality was not abolished. TheSacramanto court stated that “TheBrwn **Act** (the open meetings law), epacifically section 54953, broadly encompasses ‘all meetings. ’ Viewed as a statutory microcosm, its demandis 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 andstatutory policies covering the powers, duties andprocedures of local agencies 

### of government. Another **part** of **this** lagal structure in the privilege attaching to confidential 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. Theyview it as a barrier to testimonial compulsion, not a procedural rule for the conduct of public affairs. The view is too narrow . . . Theprivilege serves a policy **asstir** ing private consultation. If client andcounsel must confer in public view andhearing, both privilege andpolicy are stripped of value.

. . . "Thus the structure of laws governing local public boards includes two separate substructures, one in **the** GovernmentCode demanding openmeetings, 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 twoenactments (Government Codeand Evidence Code) are capable of conc'urrent operation if the lawyer-client privilege is not werblown 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 communications 'in confidence.' **Private** clients, relatively 

### free **of** regulation, mayset relatively wide limits onconfidentiality. 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. 

### TomHanna, page 8, (M-1261)

public meeting law. Neither the attorney's presence nor the happenstance of somekind of lawsuit mayserve as the pretext for secret consultations whose revelations will not injure the public interest. Toattempt a generalization embracing the occasions for genuine confidentiality would be rash. TheEvidence Code lawyer-client provisions mayoperate concurrently with the BrownAct, neither superseding the other by implication. "Because the BrownAct did not abolish the statutory opportunity of boards of supervisors to confer privately with their attorney on occasions properly requiring confidentiality, the preliminary injunction is too broad.

. . ." 69Cal.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 governing 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 pending or contemplated litigation, settlement offers andsimilar matters, can, in our opinion, be discussed 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, 38A.L.R.3d 1070, et %.. "Validity, Construction, andApplication of Statutes Uazng Public Proceedings Open to the Public" (19711, andNote, "Administrative La'4 ---Freedom of Information ---Texas OpenHeetings Act Has Potentially Broad Coverage but Suffers from Inadequate EnforcementProvisions", 49Texas L. Rev. 764 (1971).

**In** view of **the foregoing,**  weare of the opinion **that,** although Article 6252-17 **no** longer contains anexpress exception regarding closed meetings for attorney-client conferences. the Article mustbe read in consonance, and construed harmoniously, with Senate Concurrent Resolution No. 83, Article 38.10, Texas Code of Criminal Procedure, the Canonsand 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, webelieve its underlying purpose andpolicy would be vitiated **by** holding it totally inapplicable to meetings **of** public bodies. Wedo 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 communications with their counrel.than are private litigants.

Wealso stress, however, that the absence of **an** express exception for the attorney-client privilege in Article 6252-17 has had the effect of modifying the commonlaw and the degree to which's public body mayclaim the attorneyclient privilege. Onthe other hand, we find that the legislative intent of the statute would allow discussions or conferences 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 byArticle 6252-17 mayonly validly claim the attorney-client privilege andho1d.a closed ression to 

### discuss legal matters with its attorney whenit **derires** legal advice with regard to pending or contemplated litigation, l ettlement offera, and

-6186-.

Ron. 

### TomHenna, page 10, (M-1261) ~~~-

aimilar matters where anattorney’s duty to his client, pursuant to the Rules and Canonsof the State Bar of Texas, would clearly conflict with that Article. It is also our opinion **that** 

### mere conferences which discuss suchmatters that only form **the** basis for further consideration at an ‘open meeting” as contemplated byArticle 6252-17 donot 

### contravene the provisions of that statute. However, a public body maynot invoke **the** attorneyclient privilege whenit 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** affirmative, inasmuchas Section 2(d) 

### ofArticle 6252-17 provides **that:** “Theprovisions 

### of this Act shall not apply to periodic conferences held amongstaff 

### members of the governmental 

### body. **Such** l 

### taff meetings will be only 

### for **the** purpose 

### of internal adminiatration andnomatttra 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 membersof agovernmental 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 andpurpose. weconstrue it to meanthat as **an** exception to **the** requirement that every 

### meeting of the governmental 

### body be open to the public, such requirement was inapplicable whenthe members of the body metwith or among

### staff **members**

### for the limited purpose **of** internal administration and inwhich matters 

### of public business or board policies afftcting public business. were not to be discussed andacted upon.

-6187-Ron. TomIianna. page 11. (M-1261)

**As** for **that** portion 

### ‘ofyour 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 mayconfer publicly with its attorney onany legal point germane to its administrative procedure or to matters included onthe 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 privilege in our answer to your question one, aupra: **those** matters are, to wit, legal matters pertaining to pending or contemplated 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 noway 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 membersof agovernmental 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 3Aof Article 625247 provides that*., .I

Non. Toah

Nanna, 

### page 12, (M-1261)

“Written notict 

### of the date, place, **and** aubject of each meetinq held by agovernmental 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 mustpost 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 nosuch matters are to be discussed with a public body’s attorney, nonotict 

### of a meeting with himneed be posted.

You are further adviatd that no notice 

### of a public body’s closed meeting with staff **membtra,** pursuant to Section 2(d) of Article 6252-17; needbe posted, inasmuchas 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 nosuch specific exemption, a public body is entitled to hold closed meetings with its attorney whensuch 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 andCanons of the Btate Bar 

### of Ttxaa, clearly conflicts with that Article. (2) Theprivilege of confidtntial communications **bttween 8ttorney**  andclient, as codified in Article 38.10, Texas **Codt of**  Criminal **Proctdure,** and enunciated in the conmaon law and the Rulta and Canons of the State 0ar **of** Texas, is applicable **to**

-61899Hon. TomHanna, page 13, (M-1261)

public bodies governed by Article 6252-17, to **the** extent set forth in paragraph (l), aupra. **A**public body maynot 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 membersfor the purpose **of** internal administration where nomatters of official 

### or public business, or **agency** policies **that affect**  public business, will be acted upon. **(5)** In open meetings, Apubiic 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, andmaynot discuss matters of 

### official 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, 

### artto be discussed with him.

-6lgO-.:
. :
.

... ..



### Non.TomHanna,page14, **(M-1261)**



### (8)Nonoticeofa

### publicbody'8meeting**with** 

### itaetaffmembers,forinternal' adminintration purpoeeeputwant toSection2(d)of.Article 6252-17,needbepoeted.

PreparedbyAustinC.Bray,Jr. AeeietantAttorneyGeneral 

### APPROVED: OPINIONCOMMITTEE KernsTaylor,Chairman W.E.All$n,~Co-Chiinnan BillPlanary ~JimSwearin$en LynnTaylor RolandCarbon 

### SAJ4UEL D.WCDANIEL StaffLegalAerietant ALPREDWAIXER 

### ExecutiveAeri8tant NOIAWHITE 

### PiretAsrirtant

.

.

### -6lgl-.,