The Attorney General of Texas 

JIM MATTOX 

Utorney General 

Decemli,er 3, 1984 

iuprrme court Building 

‘. 0. Box 12540 

51214752501 4urun. TX. 78711. 2545 

isiex BlW074-1387 

Telecopier 5121475-0266 

Honorable Mike Driscol.1 

Barr16 County Attornc!) 

1001 Preston, Suite O:i4 

Houston. Texas 7700:1 

714 Jackson. Suite 700 

Jailae. TX. 75202-4505 

2111742-8944 Dear Mr. Driscoll: 

4S24 Alhla Ave., Suite 160 

El Paso, TX. 79905.2793 

31Y53M404 

100. ,exas. Suils 700 

Ho~slon. TX. 77002-3111 

713t223.5888 

000 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8oM47-5238 

43C4 N. Tenth. Suite B 

MCAllwl, TX. 79501.1885 

512@92-4547 

200 Main PI=*. Suite 400 

San Antonlo. TX. 78205.2797 

51212254191 

An Equal Opporlunltyl 

AIfltmative Action Employer 

Opinion No. J&238 

Re: Whether staff members of 

the Harris County Commissioners 

Court and other county officers 

and employees are authorized to 

attend executive sessions of 

the commissioners court 

You ask the fol:.owing questions: 

1. W the commissioners court permit or 

authorize one or more county officers or employees 

to attend o closed or executive meeting or session 

of commissioners court held for the purpose of 

consulting with its attorney or attorneys 

regarding IBending or contemplated litigation? 

2. (a) Would the conclusion to the first 

question al>ply to such officer or employee who Is 

a party t(l the litigation and is represented by 

the same al:toraey? 

(b) WorlZd the 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 named as 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 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 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 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 comounications 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-n v. 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 attorneyclient 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 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); 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 litigation 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 unrestrained 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 governmental 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 caseby-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 communication with its attorney. Whether a particular 

person may be admitted must be decided by a caseby-case analysis of all relevant fscts. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

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