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 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. 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 governmental bodies for the purpose of internal ad&nistration where no matters of public business or 

agency policies that 

be acted upon? 

"3. Is there a 

with the attorney or 

is no action taken? 

affect public business, will 

limitation on subjects covered 

rtaff members as long &s there 

"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law”), am originally enacted in 1967 (Acts 60th Ug., R.8. 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 consulting with its attorney’; and 

“WHEREAS, The privileged nature of communications 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 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. 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 witness, 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 communications 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 ‘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. 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 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, and we must turn to decisions 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 attorney 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 disqualification, 'specifically' provides that the city council 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. (emphae is 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 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 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 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 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 practice hie profession in the manner required by the 

Canons unfettered by clearly conflicting legielation which renderm the performance of him ethical 

dutiem impossible. He cannot be put in the untenable 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 litigation.* (emphasis added.) 

ì* l l 

* 

. . . We hold also, however, that . . . the 

act does not permit private consultation between 

its agency and the attorney in any other circumstances except those narrowly outlined above.” 

222 So.2d at 475-76. 

In the case of Sacramento Newspaper Guild v. Sacramento 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), epacifically section 54953, broadly encompasses ‘all 

meetings. ’ Viewed as a statutory microcosm, its 

demand is forthright, offering no internal interstice 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 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. 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 asstiring 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 meetings, 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 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, may set relatively 

wide limits on confidentiality. Public board 

members, sworn to uphold the law, may not arbitrarily 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 generalization embracing the occasions for genuine confidentiality 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 occasions 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 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 

and similar 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, 38 A.L.R.3d 1070, et %.. "Validity, 

Construction, and Application of Statutes Uazng Public Proceedings 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 Enforcement 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 conferences. the Article must be read in consonance, and construed 

harmoniously, with Senate Concurrent Resolution No. 83, Article 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 communications with their counrel.than are private litigants. 

We also 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 common law 

and the degree to which's public body may claim the attorneyclient privilege. On the 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 

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, l ettlement 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 attorneyclient 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 affirmat 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 l taff meetings 

will be only for the purpose of internal adminiatration 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) meaningful and fo give effect to its intent and purpose. we construe 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 administrative 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 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 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. Toah Nanna, page 12, (M-1261) 

“Written notict of the date, place, and aubject 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 Section 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 communications bttween 8ttorney and client, 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 

-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 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 matters 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 

~Jim Swearin$en 

Lynn Taylor 

Roland Carbon 

SAJ4UEL D. WCDANIEL 

Staff Legal Aerietant 

ALPRED WAIXER 

Executive Aeri8tant 

NOIA WHITE 

Piret Asrirtant 

. 

. 

-6lgl-.,