# TheAttorney General ofTexas

JIMMATTOX Utorney General Decemli,er 3, 1984

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.0.Box12540 4urun. TX. 78711.2545 51214752501
isiex BlW074-1387 Telecopier 5121475-0266 Honorable MikeDriscol.1 Barr16 County Attornc!) 1001 Preston, Suite O:i4 Houston. Texas 7700:1

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AnEqualOpporlunltyl AIfltmative Action Employer Opinion No. J&238

Re: Whether staff members of the Harris County Commissioners Court andother county officers andemployees are authorized to attend executive sessions of the commissioners court

Youask the fol:.owing questions:

1. W the commissioners court permit or authorize one or more county officers or employees to attend oclosed or executive meeting or session of commissioners court held for the purpose of consulting with its attorney or attorneys regarding IBendingor contemplated litigation?

2. (a) Would the conclusion to the first question al>ply to such officer or employee whoIs
a party t(l the litigation and is represented by the sameal:toraey? (b) WorlZdthe conclusion be the same if said officer or employee were represented by a different clttorney?

Your request letter contains the following facts. In 1973, both the Harris County Commissioners Court and the Harris County Sheriff
were namedas defendants in a lawsuit concerning conditions in the county jail. The :)arties agreed that the Harris County Attorney 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 membersof thl?commissioners court andtheir staffs, byvarious elected and appoint&l county officials, by the sheriff, and by the district attorney, the county attorney, and their assistants. A

p. 1068-

Honorable JohnPi.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 maybe 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!cifically 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 governmental 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 alLowed. Your questions require us to determine whether the admiss:lon of somepublic officers and employees to anexecutive session conveinedunder 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.11also 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. 1069Ronorable 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,econstrued 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 andstated:

WHEREAS,the privileged nature of comounications 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 13erof Texas; and
WHEREAS,

It was the intent of the legislature, in repealing the TAoted portion of Section 2, Chapter 271. Acts o,Ethe 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,

Bythe 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 anywa:faffect the privileged nature of communications between attorney andclient.

A 1972Attorney 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 fcbrattorney-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-n v. McCord. 432 S.U.Zd 753 (Ark. 1968). See generally Annot. 38A.m; 3d 1070et seq. (1971).

p. 1070Honorable JohnB. Holmer, Jr. -nPage4 (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 andcommonlawrule13onthe confidentiality of the attorneyclient relationship. It conc:luded that agovernmental body mayhold a closed session to discuss lqial matters with its attorney when it desires
advice in regards to pending or contemplated

litigation, settlem,sut offers, andsimilar matters where the duty of ,Ipublic 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 amendmentto article 6252-17, V.T.C.S., enacted the present section 2(e), incorporating almost verbatim the foregoing language. Acts 1973, 63dLeg., 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 attorneyclient 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); 8Wigmore, Evidence 1:!;:91 (McNaughtonrev. 1961). A provision like section 2(e) gives a governmental body the opportunity for full communication with its attorney without disclosing its side in litigation to its oooonents. See E,acramentoNeWSDaDer Guild v. Sacramento
--- County Board 0; Supervisors, .supra; Minneapolis Star and Tribune Co.
v. Rousing and Redevelopment Authority, 251 I’%’** L1AI”‘-- ‘,,,) ; OklahomaAssociation of Municipal Attorneys v. State, 577 P.2d 1310 (Okla. 1978); cf. Lamanv. li&Zord. supra, (Pogleman, J., concurring) (city attorney= prepare cs;ehout detailed discussions with city council). ‘See also City of SanAntonio 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 ,tihois 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 mayextend to persons whoare the media of communication between the attorney snd client. Burnett v. State, 642 S.W.21 765 (Tex. Crim. App. 1982) (hypnotist hired byattorneys to refresh defendant’s memory). Moreover, rule 503Ronorablc 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 503defines “client” to in&de a public officer or a p&ic entity. Tex. R. Rvid. 503(a)(l).
Where the presence of (Ithird party agent or representative of the commissioners court Is necessary to the court’s full and unrestrained cmnication witt, its attorney , webelieve 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. Codewhich permitted presence of some third parties), In some cases, the officers andemployees of agovernmental body will possess information relevant to the litigation or to evaluating a settlement offer. The litigation mayte based on the actions of such persons, carrying out policy of the commissioners court under its supervision andcontrol. Their presence andcontribution at the executive session maybe essential to effective, communication between the government’al body andits attorney.

We therefore conclude that governmental bodies may admit to executive sessions held under section 2(e) those officers and employees whoare their representatives or agents with respect to the particular litigation in question andwhose presence Is necessary to effective cosununication with the attorney. Furthermore, the governmental body maynot admit to its closed discussion of litigation those third parties whoare adversaries or whose presence would otherwise prevent privileged communical:ion from taking place. Wedonot believe that governmental bodies maysimply admit anyone they wish regardless of whether that nerson is likelv to makea lenitimate contribution to the discussion. See generally-Johnson V. Sta&m~i7~4 S.W. 1047 (Tex. Crim. App. 1915); Attorney G~?neralOpinion MW-417(1981).

Wedo 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 mustdetermine whether he la sufficiently aligned with 11:sposition here tojustify his presence. The alignment of the parties suggests that the sheriff and his attorney could properly be aknitted to the executive session. Acaseby-case analysis of all reltvant facts will be necessary to determine whether aparticular third party maybe admitted to consultations held

p. 1072. 1

Honorable JohnB. Holmes, Jr. - Pa8e 6 (JR-238)

under section 2(e) between an sttorney and the client 8overnmental body.

Thecommissioners court mayadmit 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 ,withthe court's andwhere his presence is necessary to the court's full communication with its attorney. Whether a particular person maybe admitted mustbe decided by a caseby-case analysis of all relevant fscts.

JIM MATTOX Attorney General of Texas

TOMGREEN First Assistant Attorney Central

DAVIDR. RICRARDS Executive Assistant Attorney Ceneral

RICKGILPIN Chairman, Opinion Committee Prepared by SusanL. Garrison Assistant Attorney General

APPROVED: OPINIONCOMMITTRE
Rick Gilpin. Chairman Colin Carl SusanGarrison TonyGuillory JimMoellinger Jennifer RI886 NancySutton

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