OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

May 24,2002 

The Honorable Jack Skeen, Jr. 

Smith County Criminal District Attorney 

Smith County Courthouse 

100 North Broadway 

Tyler, Texas 75702 

Opinion No. JC-0506 

Re: Whether the Smith County Commissioners 

Court violates the Open Meetings Act, chapter 

551 of the Government Code, if it permits the 

Smith County Auditor to attend a meeting closed 

to consult with the county’s attorney regarding 

pending litigation or settlement options, and 

related questions (RQ-0470-JC) 

Dear Mr. Skeen: 

On behalf of the Smith County Commissioners Court, you ask whether including the county 

auditor in a meeting that the commissioners court has closed to consult with its attorney, under 

section 55 1.071 of the Government Code, to discuss “pending or contemplated litigation or 

settlement offers” either violates the Open Meetings Act (the Act), chapter 55 1 of the Government 

Code, or “negate[s] the attorney-client privilege.“’ See TEX. GOV’TCODEANN. ch. 55 1 (Vernon 1994 

& Supp. 2002); TEX. R. EVID. 503. Although a governmental body generally is required to meet in 

public, see TEX. GOV’T CODE ANN. 8 55 1.002 (Vernon 1994), it may consult with its attorney about 

“litigation and settlement offers or to seek or receive the attorney’s advice with regard to legal 

matters” in a closed meeting. Tex. Att’y Gen. LO-97-017, at 9; see TEX. GOV’T CODE ANN. 

8 55 1.07 1 (Vernon 1994). This office concluded in 1984 that a governmental body may include in 

a meeting closed to consult with its attorney an officer or employee who is the governmental body’s 

representative or agent “with respect to the particular litigation in question[,] whose presence is 

necessary to” effectively communicate with the attorney, and who is not an adversary of the 

governmental body or whose presence would not “prevent privileged communication from taking 

place.” Tex. Att’y Gen. Op. No. JM-238 (1984) at 5. But a court may find that the presence of a 

person who is neither a member of the commissioners court nor the court’s attorney indicates that 

communications occurring in the person’s presence are not within the attorney-client privilege. See 

TEX. R. EVID. 503; Cameron County v. Hinojosa, 760 S.W.2d 742,746 (Tex. App.-Corpus Christi 

1988, no writ) (fact that correspondence had been disclosed to county auditor and other county 

offices “is some evidence either that the communications were never intended to be confidential, or 

that the privilege was waived by disclosure to third parties”). 

‘Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, to Honorable John Comyn, 

Attorney General of Texas (Nov. 28,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Jack Skeen, Jr. - Page 2 (JC-0506) 

We conclude, consistently with our 1984 opinion, that the commissioners court may include 

the county auditor in a closed discussion of litigation or settlement offers if it determines that the 

auditor is necessary to the discussion, that the auditor’s interests are not adverse to the county’s, and 

that the auditor’s presence is consistent with the attorney-client privilege. If, however, a court . 

subsequently finds that, because of the auditor’s presence, the communications are not privileged, 

then the commissioners court may also be found to have violated section 55 1.07 1 of the Government 

Code. To the extent Attorney General Opinion JM-238 did not fully discuss the rule of evidence 

providing for the attorney-client privilege, we modify it. See Tex. Att’y Gen. Op. No. JM-238 

(1984) at 2. 

You also ask whether the commissioners court may include the county auditor or other 

persons in meetings closed “to deliberate on real property or personnel” under sections 55 1.072 and 

55 1.074 of the Government Code. Request Letter, supra note 1, at 2. In general, this office has 

stated that a governmental body may include a person whose interests are not adverse to the 

governmental body’s interests and “whose participation is necessary to the matter under 

consideration.” Tex. Att’y Gen. Op. No. JC-0375 (2001) at 2 (citation omitted). Consequently, we 

conclude that a commissioners court may include the county auditor in a meeting closed under 

section 551.072 or 551.074 if the court deter-i-nines that the county’s auditor’s interests are not 

adverse to the court’s interests and that the auditor’s participation is necessary to the matter that will 

be considered. Of course, if a discussion convened under an exception other than section 55 1.071 

also involves an attorney-client communication, the commissioners may wish to evaluate the 

auditor’s presence in light of the attorney-client privilege. 

Finally, you ask whether, “[i]f the County Auditor is present at an open session of the 

Commissioners Court when an executive session is announced and the Commissioners know that 

the Auditor is present at the request of the County Judge and will remain for the executive session,” 

the commissioners court has “in fact” included the auditor in the closed meeting “by not excluding 

her.” Request Letter, supra note 1, at 2. We conclude that it has. 

The Act generally requires a governmental body to open every meeting to the public, 

although the Act lists several narrowly drawn exceptions to this rule. See Tex. Att’y Gen. Op. No. 

JC-0233 (2000) at 4; TEX. GOV’T CODE ANN. 8 551.002 (Vernon 1994). YOU are particularly 

concerned with three of these exceptions: sections 55 1.071, 55 1.072, and 55 1.074. See Request 

Letter, supra note 1, at 1; TEX. GOV’T CODE ANN. @j 55 1.071,55 1.072,55 1.074. Section 55 1.071 

prohibits a governmental body from privately consulting with its attorney except in certain 

circumstances: 

A governmental body may not conduct a private consultation with 

its attorney except: 

(1) when the governmental body seeks the advice of its 

attorney about: 
The Honorable Jack Skeen, Jr. - Page 3 (JC-0506) 

(A) pending or contemplated litigation; or 

09 a settlement offer; or 

(2) on a matter in which the duty of the attorney to the 

governmental body under the Texas Disciplinary Rules of 

Professional Conduct of the State Bar of Texas clearly conflicts with 

this chapter. 

TEX. GOV’T CODE ANN. 4 55 1.071 (Vernon 1994). Section 55 1.072 permits a governmental body 

to “deliberate the purchase, exchange, lease, or value of real property” in a closed meeting if public 

deliberation would harm the governmental body’s position “in negotiations with a third person.” 

Id. 9 551.072. Section 551.074 provides that a governmental body generally is not required “to 

conduct an open meeting” to deliberate a public officer’s or employee’s “appointment, employment, 

evaluation, reassignment, duties, discipline, or dismissal” or “to hear a complaint or charge against 

an officer or employee.” Id. tj 55 1.074. 

This office has construed the Act to provide a governmental body with limited discretion to 

determine which, if any, nonmembers may attend. See Tex. Att’y Gen. Op. No. JC-0375 (2001) at 

2. The Act does not specify whether a person other than a member may attend a closed meeting. See 

id. at 1. Under the Act, only a member of a governmental body has a right to attend a closed meeting 

of the governmental body. See also id. at 2; Tex. Att’y Gen. Op. Nos. JM-238 (1984) at 2, JM-6 

(1983) at l-2. 

In an early opinion on this issue, this office concluded that a governmental body may admit 

to a meeting closed to consult with its attorney “regarding pending or contemplated litigation” a 

third person who is an agent or representative of the governmental body, but only if the 

person’s “presence is necessary to effective communication with the attorney.” Tex. Att’y Gen. Op. 

No, JM-238 (1984) at 5. At that time, the substance of what is now section 55 1.071 was codified 

as section 2(e), article 6252-17 of the Revised Civil Statutes. See Tex. Att’y Gen. Op. No. JM-238 

(1984) at 2 (quoting TEX. REV. CIV. STAT. ANN. art. 6252-17, 0 2(e)); TEX. REV. CIV. STAT. ANN. 

art. 625247, fj 2(e), repealed by Act of May 4, 1993,73d Leg., R.S., ch. 268, 9 46(l), 1993 Tex. 

Gen. Laws 583,986. At that time, the substance ofwhat is now found in subsections (1) and (2) of 

section 551.071 was not subdivided. See Tex. Att’y Gen. Op. No. JM-238 (1984) at 2 (quoting 

article 6252-l 7, section 2(e) of Revised Civil Statutes). After examining the genesis of section 2(e), 

the opinion suggested that the attorney-client privilege is part and parcel of the entire exception: 

“This provision enables” a governmental body and its attorney to protect “the attorney-client 

privilege for deliberations it covers. The purpose of the privilege is to promote the unrestrained 

communication between attorney and client, without fear that the attorney will disclose confidential 

communications.” Id. at 4. An attorney-client communication is not privileged “in the ‘presence 

of a third person who is not the agent of either client or attorney.“’ Id. (quoting 8 WIGMORE, 

EVIDENCE 8 23 11 (McNaughton rev. 1961)). Thus, a governmental body may not include an 

adversary or a person “whose presence would . . . prevent privileged connnunication from taking 
The Honorable Jack Skeen, Jr. - Page 4 (JC-0506) 

place.” Tex. Att’y Gen. Op. No. JM-238 (1984) at 5; accord Tex. Att’y Gen. LO-97-01 7, at 9 (citing 

Attorney General Opinion JM-238); cf: Tex. Att’y Gen. LO-88-92, at 2 (stating that governmental 

body “may have to restrict the persons who attend” an executive session, particularly one “to obtain 

legal advice”). 

Recently, Attorney General Opinion JC-0375 extended Attorney General Opinion JM-238’s 

analysis to other exceptions. See Tex. Att’y Gen. Op. No. JC-0375 (2001) at 2. There, this office 

had the opportunity to address “whether the . . . Act permits a governmental body to routinely 

include an officer or employee of the governmental body, . . . , in its executive sessions.” Id. The 

opinion concludes that, consistently with previous opinions considering the inclusion of 

nonmembers under section 55 1.07 1, “a governmental body has discretion” to decide who may attend 

its closed meetings. Id. “While those whose attendance is contrary to the legal basis for the 

executive session may not be included, . . . , a governmental body may include officers and 

employees of the governmental body whose participation is necessary to the matter under 

consideration.” Id. 

We consider first the auditor’s presence at a meeting closed for attorney-client communications. In our opinion, either subsection (1) or (2) of section 55 1.071 applies only if a governmental 

body conducts privileged attorney-client communications. As Attorney General Opinion JM-238 

states, the exception permits a governmental body to conduct privileged communications with its 

attorney. See Tex. Att’y Gen. Op. No. JM-238 (1984) at 4. Since that opinion was issued, the 

substance of subsections (1) and (2) was separated when the statute was codified in 1993. See Act 

of May 4, 1993, 73d Leg., R.S., ch. 268, 0 1, sec. 55 1.071, 1993 Tex. Gen. Laws 583, 589. 

Nevertheless, the codification was intended to be nonsubstantive, see id. 8 47’1993 Tex. Gen. Laws 

at 986, and we know of no reason why the separation of subsections (1) and (2) should be considered 

substantive. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999) 

(suggesting that codification should be construed consistently with statutory predecessor unless 

codification’s plain language cannot be reconciled with prior law). But see Tex. Att’y Gen. Op. No. 

JC-0233 (2000) at 3 (distinguishing between subsections (1) and (2)’ and observing that subsection 

(2) “incorporates the attorney-client privilege”). 

Conversely, neither subsection (a) nor subsection (b) of 55 1.071 applies if the governmental 

body’s communications with its attorney are not privileged. None of our opinions specifically 

address how the evident&y rule governing the attorney-client privilege, currently Texas Rules of 

Evidence 503, applies to a meeting closed under section 55 1.071 of the Government Code. CJ: 

Markowski v. City ofMarlin, 940 S. W.2d 720,726 (Tex. App.-Waco 1997, writ denied) (stating that 

when legislature enacted section 55 1.071, it “obviously” intended to permit governmental body to 

consult with its attorney without risking disclosure of “important confidential information”). Rule 

503 generally provides a client with a privilege to refuse to disclose and to prevent another person 

from disclosing “confidential communications” made to facilitate rendering “professional legal 

services to the client”: 
The Honorable Jack Skeen, Jr. - Page 5 (JC-0506) 

A client has a privilege to refuse to disclose and to prevent 

any other person from disclosing confidential communications made 

for the purpose of facilitating the rendition of professional legal 

services to the client: 

(A) between the client or a representative of the client and 

the client’s lawyer or a representative of the lawyer; 

(B) between the lawyer and the lawyer’s representative; 

(C) by the client or a representative of the client, or by the 

client’s lawyer or a representative of the lawyer, to a lawyer or a 

representative of a lawyer representing another party in a pending 

action and concerning a matter of common interest therein; 

(D) between representatives of the client or between the 

client and a representative of the client; or 

(E) among lawyers and their representatives representing 

the same client. 

TEX. R. EVID. 503(b)(l). For the purposes of rule 503, a “client” is “a person, public officer, or 

corporation, association, or other organization or entity, either public or private,” who receives 

“professional legal services” from a lawyer or who consults a lawyer “with a view to obtaining 

professional legal services from that lawyer.” Id. 503(a)( 1). A “representative of the client” is “a 

person” authorized “to obtain professional legal services” on the client’s behalf; a person authorized 

to act on an attorney’s advice on the client’s behalf; or a person who, to effect “legal representation 

for the client, makes or receives a confidential communication while acting in the scope of 

employment for the client.” Id. 503(a)(2). Finally, “[a] communication is ‘confidential’ if’ the 

client does not intend to disclose it to a third person, other than a person to whom the client 

communicates to further “the rendition of professional legal services to the client” or a person 

“reasonably necessary” to transmit the communication. Id. 503(a)(5). 

To a court reviewing whether information shared in a closed meeting is privileged under rule 

503 of the Texas Rules of Evidence, the county auditor’s presence in a meeting that was closed 

under section 55 1.07 1 of the Government Code may indicate, in some circumstances, that the county 

commissioners court did not intend its attorney-client communications to be confidential. See TEX. 

R. EVID. 503(a)(5) (defining “confidential” communication). For example, a Texas Court of Appeals 

determined in Cameron County v. Hinojosa that the attorney-client privilege did not apply to letters 

between the Cameron County computer department and the county attorney, even though the letters 

appeared to solicit or give legal advice, because the parties “routinely sent” copies of the letters “to 

the county personnel office, the county auditor’s office, and the county judge’s office.” Hinojosa, 

760 S.W.2d at 746. The Hinojosa plaintiff alleged that the computer department had wrongfully 
The Honorable Jack Skeen, Jr. - Page 6 (JC-0506) 

terminated her and sought to discover the letters. See id. According to the court, the county’s 

routine disclosure of copies of the letters to various county offices, including the county auditor, 

indicated that the letters were not privileged from discovery: 

The outside disclosure apparent on the face of the documents 

in the present case is some evidence either that the communications 

were never intended to be confidential, or that the privilege was 

waived by disclosure to third parties, and it tends to rebut the 

presumption of privilege that the documents themselves might 

otherwise create. . . . If anything in the documents themselves raises 

a question as to whether the privilege applies, we can no longer 

presume the documents to be privileged, but the existence of the 

privilege becomes a question of fact for the trial court, based on the 

documents and the circumstances under which the communications 

were made. 

Id. 

Consequently, with respect to including a nonmember such as the county auditor in a meeting 

closed to discuss pending litigation or a settlement offer under section 55 1.071 of the Government 

Code, we conclude that a commissioners court must consider three things: (1) whether the auditor’s 

interests are adverse to the county’s; (2) whether the county auditor’s presence is necessary to the 

issues to be discussed; and (3) whether the court effectively may waive the attorney-client privilege 

by including the nonmember. Each of these three considerations requires the resolution of fact 

questions and cannot, therefore, be determined in the opinion process. See, e.g., Tex. Att’y Gen. Op. 

Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 

(1999) at 3 (same); JC-0020 (1999) at 2 (same). Rather, the commissioners court, together with its 

attorney, must determine these questions in the first instance, subject to judicial review. We modify 

Attorney General Opinion JIM-238 to the extent that it fails to consider the attorney-client privilege 

currently provided by rule 503 of the Texas Rules of Evidence. 

We caution that a reviewing court may find that a commissioners court violated the Act if 

the court finds that communications that occurred in a meeting closed under section 55 1.07 1 were 

not privileged. 

With respect to a meeting closed under either of the other exceptions you raise, section 

55 1.072 or section 55 1.074, we conclude that a commissioners court may include a county auditor 

if the court finds that her interests are not adverse to the county’s and that her participation is 

necessary to the specific issues to be deliberated. Cf: Finlan v. City of Dallas, 888 F. Supp. 779, 

787 (N.D. Tex. 1995) (determining that governmental body could not permit person to attend 

meeting closed under section 551.072 to discuss real-estate transaction if person’s interests are 

adverse to governmental body’s). These issues are questions of fact that this office cannot resolve. 

See Tex. Att’y Gen. Op. No. JC-0434 (2001) at 7 (stating that this office cannot determine whether 
The Honorable Jack Skeen, Jr. - Page 7 (JC-0506) 

medical care services are necessary because it is fact question); Tex. Att’y Gen. LO-98-l 20, at 1 n. 1 

(stating that whether gate is necessary for purposes of Transportation Code section 25 1 .OlO is 

question of fact). The commissioners court must determine both of these questions in the first 

instance, subject to judicial review. SeeMarkowski, 940 S.W.2d at 727 (concluding that court may 

examine tape of closed meeting in camera to determine applicability of privilege). And, if a 

discussion convened under an exception other than section 55 1.07 1 also involves an attorney-client 

communication, the commissioners may wish to evaluate the auditor’s presence in light of the 

attorney-client privilege. 

We further consider how a commissioners court should decide whether a particular officer 

should be included in a closed meeting. We understand that the Smith County Judge believes the 

auditor’s presence is necessary and does not violate the Act because the auditor is “the county’s 

financial officer” and has “information and knowledge” about issues that may impact the county’s 

budget. Request Letter, supra note 1, at 1. A county auditor has a duty to examine each claim, bill, 

or account for the county and to withhold payment until and unless he or she has approved the item, 

see TEX. LOC. GOV’T CODE ANN. 8 113.064 (Vernon 1999); Crider v. Cox, 960 S.W.2d 703,706 

(Tex. App.-Tyler 1997, writ denied), and a county auditor has a duty to inform the commissioners 

court about the county’s affairs. See Comm ‘rs Court ofHarris County v. Fullerton, 596 S.W.2d 572, 

578 (Tex. Civ. App.-Houston [ 1 st Dist.] 1980, writ ref d n.r.e.) (quoting Navarro County v. Tulles, 

237 S.W. 982,986) (Tex. Civ. App.-Dallas 1922, writ ref d)). Other members of the commissioners 

court, by contrast, believe that the auditor’s presence is unnecessary to closed meetings and may 

violate the Act2 They contend that a commissioner who wishes the auditor’s opinion on a particular 

issue should seek the auditor’s opinion at another time: 

The Auditor’s presence is not required to relay information to 

the Commissioners Court regarding insurance or budget allocations. 

That information is available to us at all times; it is our duty and 

obligation as elected officials to be informed and to evaluate the 

financial implications of any litigation or settlement offers. 

Commissioner Emmert’s Letter, supra note 2, at 2. 

The court must determine the issue consistently with the Act. The commissioners court may 

take final action or vote on a matter “only . . . in an open meeting” and must deliberate in an open 

meeting, although it may discuss in a closed meeting a matter that is excepted from section 

55 1.002’s open-meetings requirement. TEX. GOV’T CODE ANN. 5 55 1.102 (Vernon 1994); see id. 

ch. 55 1, subch. D (listing exceptions). We further believe that the commissioners court must 

evaluate the auditor’s presence vis-a-vis each issue to be discussed in the closed meeting. 

2See Letter from Honorable Sharon Emmert, Smith County Commissioner, to Honorable John Comyn, 

Attorney General of Texas (Jan. 9, 200[2]) ( on f 1 1 e with Opinion Committee) [hereinafter Commissioner Emmert’s 

Letter]. 
The Honorable Jack Skeen, Jr. - Page 8 (JC-0506) 

Finally, you question whether a commissioners court, by not excluding the auditor from a 

closed meeting, has “in fact included,’ her. Request Letter, supra note 1, at 2. Common sense leads 

us to conclude that if the auditor has not been excluded, she has been included. 

SUMMARY 

With respect to a meeting of a county commissioners court 

closed under section 55 1.07 1 of the Government Code to consult with 

the county’s attorney regarding pending litigation or a settlement 

offer, the commissioners court may include the county auditor if 

the court determines that (1) the county auditor’s interests are not 

adverse to the county’s; (2) the county auditor’s presence is necessary 

to the issues to be discussed; and (3) the county auditor’s presence 

will not, in effect, waive the attorney-client privilege. See TEX. 

GOV’T CODE ANN. 8 551.071 (Vernon 1994); TEX. R. EVID. 503. If 

a reviewing court concludes that the attorney-client privilege does not 

apply to an attorney-client consultation closed under section 55 1.07 1, 

it may also find that the commissioners court violated the Open 

Meetings Act. We modify Attorney General Opinion JM-238 to the 

extent that it does not consider the attorney-client privilege currently 

provided by rule 503 of the Texas Rules of Evidence. See Tex. Att’y 

Gen. Op. No. JM-238 (1984) at 2. 

With respect to a meeting closed under an exception other 

than section 55 1.07 1, see, e.g., TEX. GOV’T CODE ANN. 5 8 55 1.072, 

55 1.074 (Vernon 1994)’ a county commissioners court may include 

the county auditor if the court finds that the auditor’s interests are not 

adverse to the county’s and that her participation is necessary to the 

anticipated deliberation. If a discussion convened under an exception 

other than section 55 1.07 1 also involves an attorney-client communication, the commissioners may wish to evaluate the auditor’s 

presence in light of the attorney-client privilege. All of these determinations require the commissioners court to resolve a number of fact 

issues, subject to review by a court. 

The commissioners court should weigh the propriety of 

including the county auditor in a closed meeting consistently with the 

Open Meetings Act’s open-meetings requirement and exceptions 

thereto. 
The Honorable Jack Skeen, Jr. - Page 9 (JC-0506) 

If the county auditor is present during the open portion of a 

commissioners court meeting when the court announces that it will 

proceed into a closed meeting and the commissioners do not exclude 

the auditor, the court has included the auditor in its closed meeting. 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN DENMON GUSKY 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee