Honorable Roy Blake Opinion No. JR-995 

Chairman 

Committee on Administration Re: Liability of an appraisal 

Texas State Senate district and its officers for 

P. 0. Box 12068 damages awarded in a federal 

Austin, Texas 78711 court judgment, and related 

questions (RQ-1569) 

Dear Senator Blake: 

On behalf of the 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 of directors lost a lawsuit in federal 

district court alleging employment discrimination. The 

judgment requires the district's board of directors to 

reinstate the plaintiff in the lawsuit as chief appraiser of 

the district, as well as to pay 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 or are all 

of the listed defendants liable and if so, to what extent?" 

Black's Law Dictionary defines "joint and several" for 

purposes of liability in the following fashion: 

A liability is said to be joint and several 

when the creditor may sue one or more of the 

parties to such liability separately, or all 

of them together at his option. 

Black's 

74 Am. 

Torts 

Law Dictionary 972 (4th ed. 1968). See oenerally 

Jur.2d Torts 5 66 (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 is equally liable, and the plaintiff 

may proceed to collect against all of the defendants or 

against any one or more of the defendants. You do not ask 

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Honorable Roy Blake - Page 2 (Jn-995) 

about, and therefore we do not address, whether any 

defendant may recover by virtue of a right of subrogation 

against any other defendant in the event that the plaintiff 

recovers wholly against the first defendant. 

Second, you inform us that the Newton County Appraisal 

District held a closed meeting in early 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 of discussing the salary to be paid to the former 

chief appraiser whom the district was required to reinstate. 

Subsection 2(g) of the Open Meetings Act provides: 

Nothing in this Act shall be construed to 

require governmental bodies to hold meetings 

open to the public in cases involving the 

appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of 

a public officer or employee or to hear complaints or charges against such officer or 

employee, unless such officer or employee 

requests a public hearing. 

The chief appraiser verbally requested that the meeting 

be open to the public, but the board rejected her request. 

It did so because the board had adopted earlier an operating 

policy providing that requests under subsection 2(g) for 

open meetings relating to personnel matters be submitted to 

the board in writing. Pursuant to section 2A of the Open 

Meetings Act, the board chose to tape the executive session 

rather than prepare a certified 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) to be in writing 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 for violating the act: 

(a) Any member of a governing body who 

knowingly calls or aids in calling or 

organizing a special or called meeting or 

session which is closed to the public, or who 

(Footnote Continued) 

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Honorable Roy Blake - Page 3 (JIG995) 

The board has received a request under the Open Records 

Act for a copy of the tape of the meeting alleged to have 

been held. Article 6252-17a, section 3(a), of the act 

states: "All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance 

or in connection with the transaction of official business 

is public information. . . .I' This office already has held 

that tape recordings of executive sessions in the custody of 

governing bodies are '*information11 under the act. 

Records Decision No. 

Open 

495 (1988). You do not ask about a 

tape of a properly held executive session. Instead, you ask 

whether the tape of an allegedly improperly closed meeting 

is excepted 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 a governing body to keep either 

a certified agenda or a tape of every meeting that is closed 

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 in closing a regular 

meeting or session to the public, or who 

knowingly participates in a regular, special, 

or called meeting or session which is closed 

to the public where a closed meeting is not 

permitted by the provisions of this Act, 

shall be guilty of a misdemeanor and on 

conviction is punishable by a fine of not 

less than $100 nor more than $500 

imprisonment in the county jail for not leI2 

than one month nor more than six months, or 

both. 

(b) Any member or group of members of a 

governing body who knowingly conspires to 

circumvent the provisions of this Act by 

meeting in numbers less than a quorum for the 

purpose of secret deliberations * 

contravention of this Act shall be guilty i: 

a misdemeanor and on conviction is punishable 

by a fine of not less than $100 nor more than 

$500 or imprisonment in the county jail for 

not less than one month nor more than six 

months or both. 

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Honorable Roy Blake - Page 4 (Jn-995) 

-, 

judge of a district court if litigation has 

been initiated involving an alleged violation 

of this Act. The court upon entry of a final 

judgment may admit the certified agenda or 

tape into evidence in whole or in part. 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 f a meetina that was not authorized 

to bt closed un der this Act. (Emphasis 

added.) 

Subsection (h) prohibits the release of a certified 

agenda or tape of a meeting that is closed to the public and 

provides the following: 

No individual, corporation, or partnership 

shall, without lawful authority, knowingly 

make public the certified agenda or tape 

recording of a meeting or that 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 or damaged thereby for: 

(1) actual damages including but not 

limited to lost wages, damages due to 

defamation of character, or mental or other 

emotional distress or other personal injury 

or damages; 

(2) costs of court: 

(3) reasonable attorney's fees; and 

(4) exemplary or punitive damages in the 

discretion of the trier of fact.2 

2. We note that subsection (i) provides that an 

offense under subsection (h) is a Class B misdemeanor. 

Subsection (j) provides: 

It shall be a defense to prosecution under 

Subsection (h) of this section and an 

affirmative defense to prosecution in any 

(Footnote Continued) 

p. 5092 
, 

Honorable Roy Blake - Page 5 (Jn-995) 

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

It is suggested that section 2A provides the only means 

whereby a certified agenda or tape of a meeting 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 of Wacc, 255 S.W. 1104 

(Tex. 1923); Citizens' Bank v. Citv of Terre11 14 S.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 L ine Ind D. School 

lXi&, 95 S.W.2d 204 (Tex. Civ. App. - Amarillz 1936, no 

. Sutherland on Statutory Construction declares: 

As the maxim [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 its performance and 

operation, and the persons and things to 

which it refers are designated, there is an 

inference that all omissions should be 

understood as exclusions. 'When what is 

expressed in a statute is creative, and not 

in a proceeding 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 the mode and names 

the parties granted right to invoke its 

provisions, that mode must be followed and 

none other, and such parties only may act.# 

2A N.J. Singer, Sutherland Statutory Construction S 47.23 

(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 a mistake of fact 

concerning the nature or content of the 

certified agenda or tape. 

p. 5093 
Honorable Roy Blake - Page 6 (Jn-995) 

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 or tape of any such meeting. Moreover, 

section 2A specifically prohibits the release to the public 

of any certified agenda or tape without lawful authority. 

&8 Open Records Decision No. 495 (1988). 

We conclude that the legislature intended that any 

disclosure to the public of a certified agenda or tape of 

any meeting closed to the public must be accomplished only 

through the procedures set forth in the act. See id. 

Accordingly, we conclude that, in the 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 

is equally liable: the plaintiff may proceed 

to collect against all of the defendants 

together or against any one or more of the 

defendants separately, at his option. 

In an instance in which a governing body 

holds a meeting closed to the public, the 

certified agenda or tape of the 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 of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

- 

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Honorable Roy Blake - Page 7 (Jn-995) 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

JENNIFER S. RIGGS 

Chief, Open Government Section 

of the Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 5095