JIM MAlTOX 

Attorney General!, 

Supreme Court BUM&~ 

P. 0. BOX 1254a 

Au.siIn, TX. 7571% 2549 

512/475-2501 

Telex 9101874-1357 

T.&lecopler 512l475.0266 

714 Jackson, Suite 700 

Dallas, TX. 752024506 

214i742-8944 

4824 Alberta Ave.. Su!l. 160 

El Paw, TX. 799052793 

91~3484 

r 

..A01 Texas. Suite 700. 

H~~slbn. TX. 77002-3111 

71Y2295555 

808 Broadway, Suite 312 

Lubbock. TX. 794Olti79 

KWi’47-5238 

4309 N. Tenth. Sulte 8, 

McAllen. TX. 75501-1585 ~ 

51m.4547 ,. C’.,~.. : ‘~ 

;. 1.‘>> 

200 MaIn Plaza: suite 4&l .:, 

San Antonlo, T~:,7~?707 

5121225.4191 ~‘:-. 

An Equal Opportunlty($;,,‘~ ‘,.$ 

Affirmative Actlon Employer 

P 

Thp Attorney General of Texas 

December 19. 1983 

Honorable W. C. McDonald 

Pecos County Attorney 

Courthouse 

Fort -Stockton. Texas 79735 

Opinion No.JM-100 

Re: Construction of 

of the Open Meetings 

6252-17. V.T.C.S. 

Dear Mr. &Donald: 

section 2(e) 

Act, article 

,You have requested our opinion regarding the proper construction 

of ,section .2(e) .of article 6252-17. V.T.C.S., the Open Meetings Act. 

That section provides: 

Clearly.: 

.attomey 

Private consultations between a governmental 

body ,and its attorney are not permitted except in 

those instances, in which the body seeks the 

attorney's advice with respect to pending or 

contemplated litigation, settlemeot~ offers, and 

matters where the duty of a public body's counsel 

to his clients, pursuant to the Code of 

Professional Responsibility .of the State Bar of 

Texas, clearly conflicts with this Act. 

a ~governmental body may meet imexecutive session with its 

in any .instance Pn which it.seeks the attorney's advice "with 

respect-:'to-peadiag,or contemplated litigation [or] settlement offers." 

:We ~miet~detemine; however , the scope of the:following: 

:i ,). I 1.;~. :i: &I I.,. 

, ,,i..i:'>.~ MY Matters where the ~duty of a'public body's~counsel 

,.c ,xo :~ _s his client, pursuant to -the Code of 

i:-?Profeaaional .Responsibility ,of ~.the ,State Bar of 

+,>+I : .lT&aa, clearly conflicts.with this Act.' 

.~ c,:- ‘ ,;, < 3‘ i $. ., 

~~+:-Canon'4 of:.chelTexas Code of-~Professional~:Responsibility. article 

320a-1, V.T.C.S.. Title 14. Appendix A. atticle 12, section 8. 

provides that “[al lawyer should preserve the confidences and secrets 

of a client." Frofeasor Wigmore's definition of the attorney-client 

privilege is perhaps the most frequently quoted: 

I. '~-I.~. t (11.: where ,legal advice of any kind is sought 

‘. ‘.2i ;.'(2) ~~~from a: professional legal adviser in his 

capacity as such (3) the conuuunications relating 

p. 421 
Honorable W. C. McDonald - Page 2 (JM-100) 

to that purpose, (4) made in confidence (5) by 

the client, (6) are at [the client's] instance 

permanently protected (7) from disclosure by 

himself or by the legal adviser, (8) except the 

protection be waived. 

8 Wigmore, hridence 12292. at 554. The classic case law definition of 

the privilege is that articulated by the court in United States v. 

United Shoe Machinery Corp.. 89 F.Supp. 357. 358-59 (D. Mass. 1950): 

The privilege applies only if (1) tbe asserted 

holder of the privilege is or sought to become a 

client; (2) the person to whom the communication 

was made (a) is a member of the bar of a court, or 

his subordinate and (b) in connection with this 

communication is acting as a lawyer; (3) the 

communication relates to a fact of which the 

attorney was informed (a) by his client (b) 

without the presence of strangers (c) for the 

purpose of securing primarily either (1) an. 

opinion on law or (ii) legal services or (ill) 

assistance in some legal proceeding, and not (d) 

for the purpose of committing a crime or tort; and 

(4) the privilege has been (a) claimed and (b) not 

waived by the client. 

This definition, as well as the Wigmore formulation of the privilege, 

was cited with approval by the Fifth Circuit in In re Grand Jury 

Proceedings, 517 F.2d 666, 670 (5th Cir. 1975). 

The crux of these requirements for purposes of section 2(e) is 

that the ~communlcation must be related to an opinion on law or legal 

services or assistance in some legal proceeding. Thus, a governmental 

body may hold an executive session to seek-or receive.the advice of 

its attorney only with regard to matters in which it seeks the 

attorney's w:advice, or with regard to matters which relate to a 

specific pending or contemplated legal proceeding. If the discussion 

does not relate to a specific legal proceeding, the closed door 

discussion ~with lithe ,attorney must :be limited to legal matters. 

General discussion of policy, unrelated to legal matters, is not 

permitted under the language of section,. 2(e) ~merely because an 

attorney ie ,preeent. 

SUM&f A RY 

Pursuant to section 2(e) of article 6252-17, 

V.T.C.S., the Open Meetings Act, a governmental 

body may meet with its attorney in executive 

session only with respect to pending or 

? 

? 

p. 422 
Honorable W. C. McDonald - Page 3 (JM-100) 

contemplated litigation or settlement offers, or 

to seek or receive the attorney's advice with 

regard to legal matters. General discussion of 

policy. unrelated to legal matters. is not 

permitted merely because an attorney is present. 

JIM HATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Hoellinger 

Nancy Sutton 

p. 423