Honorable Roy Blake Opinion No. JR-995

Chairman Committee onAdministration Re: Liability ofan appraisal Texas State Senate district and its officers for P. 0. Box 12068 damages awarded ina federal Austin, Texas 78711 court judgment, and related questions (RQ-1569)

Dear Senator Blake:

Onbehalf ofthe Newton County Appraisal District, YOU ask us two questions. First, you inform us that the Newton County Appraisal District and three members of the district's board ofdirectors lost alawsuit in federal district court alleging employment discrimination. The judgment requires the district's board of directors to reinstate the plaintiff inthe lawsuit as chief appraiser of the district, aswell as topay damages and attorney's fees.

The judgment orders that the plaintiff recover a certain sum for attorney's fees from the defendants, "jointly and severally.lq you ask about the meaning of "jointly and severally." Specifically, you ask: "Is the Newton Central Appraisal District wholly liable orare all of the listed defendants liable and if so, towhat extent?"

Black's Law Dictionary defines "joint and several" for purposes of liability inthe following fashion:

A liability is said tobe joint and several when the creditor may sue one ormore of the parties to such liability separately, or all of them together athis option.

Black's 74Am. Torts Law Dictionary 972 (4th ed. 1968). See oenerally

Jur.2d Torts 566 (1974); Restatement (Second) ok 55 875, 876 (1979). Thus, absent any language in the courtgs judgment to the contrary, each defendant in the situation you describe isequally liable, and the plaintiff may proceed to collect against all ofthe defendants or against any one ormore of the defendants. You do not ask

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about, and therefore we do not address, whether any defendant may recover byvirtue of aright of subrogation against any other defendant inthe event that the plaintiff
recovers wholly against the first defendant.
Second, you inform us that the Newton County Appraisal District held aclosed meeting inearly August of this year, purportedly under the authority of subsection 2(g) of the Open Meetings Act, article 6252-17, V.T.C.S., for the purpose ofdiscussing the salary tobe paid to the former chief appraiser whom the district was required to reinstate. Subsection 2(g) of the Open Meetings Act provides:

Nothing inthis Act shall be construed to require governmental bodies tohold meetings open to the public incases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of
apublic officer or employee or tohear complaints or charges against such officer or employee, unless such officer or employee requests apublic hearing.

The chief appraiser verbally requested that the meeting be open tothe public, but the board rejected her request. Itdid sobecause the board had adopted earlier anoperating policy providing that requests under subsection 2(g) for open meetings relating topersonnel matters be submitted to the board inwriting. Pursuant to section 2Aof the Open Meetings Act, the board chose to tape the executive session rather than prepare acertified agenda. See Open Records Decision No. 495 (1988). You inform us that, subsequent to the meeting, the board concluded that it was without authority to require requests for open meetings under subsection 2(g) tobe inwriting and that, consequently, the meeting that was held in executive session was so held improperly.1 We express no opinion regarding the actual impropriety of the meeting.

1. Article 6252-17, section 4, sets forth the following penalties forviolating the act:

(a)Any member of agoverning body who knowingly calls or aids in calling or organizing a special or called meeting or session which isclosed to the public, orwho (Footnote Continued)

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The board has received arequest under the Open Records Act for acopy ofthe tape of themeeting alleged to have been held. Article 6252-17a, section 3(a), of the act states: "All information collected, assembled, or maintained bygovernmental bodies pursuant to law or ordinance
or inconnection with the transaction ofofficial business ispublic information. . . .I'This office already has held that tape recordings ofexecutive sessions inthe custody of governing bodies are '*information11under the act. Records Decision No. Open 495 (1988). You donot ask about a tape ofaproperly held executive session. Instead, you ask whether the tape of anallegedly improperly closed meeting isexcepted from required public disclosure under the Open Records Act.
Section 2A of article 6252-17, V.T.C.S., the Open Meetings Act, which requires agoverning body to keep either
acertified agenda oratape of every meeting that isclosed to the public, sets forth the following at subsection (e):

The certified agenda or tape shall be available for in camera inspection by the

(Footnote Continued)

knowingly closes or aids inclosing aregular meeting or session to the public, or who knowingly participates inaregular, special, or called meeting or session which is closed to the public where aclosed meeting is not permitted by the provisions of this Act, shall be guilty of a misdemeanor and on conviction is punishable by afine of not less than $100 nor more than $500 imprisonment inthe county jail for not leI2 than onemonth nor more than sixmonths, or both.
(b)Any member orgroup of members of a governing body who knowingly conspires to circumvent the provisions of this Act by meeting innumbers less than aquorum for the purpose of secret deliberations * contravention ofthis Act shall beguilty i:
amisdemeanor and on conviction ispunishable by afine ofnot less than $100 nor more than $500 or imprisonment in the county jail for not less than one month nor more than six months orboth.

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-,
judge ofadistrict court if litigation has been initiated involving analleged violation ofthis Act. The court upon entry ofa final judgment may admit the certified agenda or tape into evidence inwhole or inpart. The court may grant equitable or legal relief it considers appropriate, includinu an order that the aovernmental bodv make available to the nublic the certified aaenda or taoe of any D rt fameetina that was not authorized to bt closed under this Act. (Emphasis added.)
Subsection (h) prohibits the release of a certified agenda or tape of ameeting that isclosed to the public and provides the following:

No individual, corporation, orpartnership shall, without lawful authority, knowingly make public the certified agenda or tape recording ofameeting orthat portion of a meeting that was closed under authority of this Act. A person who violates this subsection shall be liable to any person injured ordamaged thereby for:
(1) actual damages including but not limited to lost wages, damages due to defamation ofcharacter, ormental or other emotional distress or other personal injury
ordamages;
(2)costs ofcourt:
(3)reasonable attorney's fees; and
(4)exemplary or punitive damages in the discretion ofthe trier of fact.2

2. We note that subsection (i) provides that an offense under subsection (h) isa Class B misdemeanor. Subsection (j)provides:

It shall be adefense toprosecution under Subsection (h) of this section and an affirmative defense to prosecution in any (Footnote Continued)

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V.T.C.S. art. 6252-17, gZA(h).

It is suggested that section 2Aprovides the only means whereby acertified agenda ortape of ameeting closed to the public may be released to the public. We agree. Generally, where the legislature confers a power. and prescribes a definite, certain method of procedure for a city or county or others to follow, other methods are impliedly excluded. Foster v. Citv ofWacc, 255 S.W. 1104 (Tex. 1923); Citizens' Bank v. Citv ofTerre11 14S.W. 1003 (Tex. 1890); see also Wilde v. Buchanan, 363 S.W.2d 518 (Tex. Civ. App. -Austin), writ refrd n.r.e D r 1 305 S.W.2d 778 (Tex. 1957): Steaklev v. Braden: 3:2 s"ui.;i' 363 (Tex. Civ. App. -Austin 1959, writ ref'd n.r.e.); Lubbock Countv School Trustees v. Harral Countv Line Ind D. School lXi&, 95 S.W.2d 204 (Tex. Civ. App. - Amarillz 1936, no

. Sutherland on Statutory Construction declares:

As themaxim [mressio unius est exclusio alterius. -- 'The expression of one thing is exclusive of another.'] is applied to statutory interpretation, where a form of conduct, the manner of itsperformance and operation, and the persons and things to which itrefers are designated, there is an inference that all omissions should be understood as exclusions. 'When what is expressed inastatute iscreative, and not inaproceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes themode and names the parties granted right to invoke its provisions, that mode must be followed and none other, and such parties only may act.#

2AN.J. Singer, Sutherland Statutory Construction S47.23 (C.Sands 4th ed. 1984). (Footnotes omitted.)

(Footnote Continued)

civil action arising under Subsection (h) that the person releasing the certified agenda or tape thereof had good reason to believe the release was lawful or that the release was the result of amistake of fact concerning the nature or content of the certified agenda ortape.

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Section 2A provides a procedure whereby a court is empowered both to determine whether any public meeting is improperly closed and to order the disclosure of the certified agenda ortape of any such meeting. Moreover, section 2A specifically prohibits the release to the public of any certified agenda ortape without lawful authority. &8 Open Records Decision No. 495 (1988).

We conclude that the legislature intended that any disclosure to the public ofacertified agenda or tape of anymeeting closed tothe public must be accomplished only through the procedures set forth in the act. See id. Accordingly, we conclude that, inthe situation that you describe, the. board of directors of the Newton County Appraisal District is without authority to release to the public the tape of the meeting assumed to be improperly closed.

SUMMARY

When a judgment provides that the defendants are "jointly and severally" liable, absent any other language in the court's order to the contrary, each defendant isequally liable: the plaintiff may proceed to collect against all of the defendants together oragainst any one or more of the defendants separately, athis option.

In an instance inwhich agoverning body holds a meeting closed to the public, the certified agenda ortape ofthe meeting may be released to the public only pursuant to the procedures set forth at section 2A of article 6252-17, V.T.C.S., the Open Meetings Act.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LOU MCCREARY Executive Assistant Attorney General -

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JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

JENNIFER S.RIGGS Chief, Open Government Section of the Opinion Committee
Prepared byJim Moellinger Assistant Attorney General

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