THE ATTORNEY GENERAL 

OF TEXAS 

December 29, 1986 

Honorable Henry Wade 

Criminal District Attorney 

Condemnation Section 

Services Building 

Dallas, Texas 75202 

Opinion No. JM-595 

Re: Whether the governing body 

of the Dallas Area Rapid Transit 

Authority may meet in executive 

session to discuss documents 

excepted from public disclosure 

by section 3(a)(ll) of the Texas 

Open Records Act 

Dear Mr. Wade: 

On behalf of the Dallas Area Rapid Transit Authority you request 

an opinion on the following question: 

Does the Open Meetings Act authorize the DART 

governing body and/or its official committees to 

discuss in closed executive sessions written evaluations and recommendations of staff personnel 

(exempt from disclosure under section 3(a)(ll) of 

the Open Records Act) with regard to the selection 

of professional consultants and the selection of 

competitive bidders, and the awarding of contracts 

to professional consultants and to competitive 

bidders? 

The Dallas Area Rapid Transit Authority is a regional 

transportation authority established .pursuant to article lllSy, 

V.T.C.S. The authority is a "public body corporate and politic, 

exercising public and essential governmental functions. . . .m 

V.T.C.S. art. IllSy, 510(a). It has power to acquire, hold, and 

dispose of real and personal property, to acquire, operate and 

maintain a transportation system. to exercise the right of eminent 

domain. to issue revenue bonds, and to charge fares to redeem the 

bonds and pay costs of operating its facilities. - Id. §§lO(d), (e), 

(g), (3); 15. 

The authority acknowledges that meetings of its board of 

directors are subject to the Open Meetings Act, and we agree. A 

"meeting" subject to the act consists of 

any deliberation between a quorum of members of a 

governmental body at which any public business or 

p. 2656 
Honorable Henry Wade - Page 2 (JM-595) 

public policy over which the governmental body has 

supervision or control is discussed or considered, 

or at which any formal action is taken. . . . 

V.T.C.S. art. 6252-17, 51(a). The Dallas Area Rapid Transit Authority 

is a special district. See Black's Law Dictionary, 5th Ed. (special 

district is a limited government structure created to accomplish a 

primarily local improvement); see also Attorney General Opinion H-238 

(1974). It is therefore a governmental body within the Open Meetings 

Act. V.T.C.S. art. 6252-17, §l(c). 

Even a partial listing of the authority's powers evidences its 

control over important public business and public policy. See, e.g., 

art. 1118~. 5510(a), (d), (e), (g), (j); 15. Its meetings are therefore subject to the Texas Open Meetings Act. Standing subcommittees 

which deliberate on matters within the authority's jurisdiction are 

also subject to the act. See Attorney General Opinions H-823 (1976); 

H-238 (1974); B-3 (1973). - 

The Open Meetings Act provides in part: 

Except as otherwise provided in this Act or 

specifically permitted in the Constitution, every 

regular, special, or called meeting or session 

of every governmental body shall be open to the 

public. (Emphasis added). 

Sec. 2(a). The underlined language was added in 1973. Acts 1973, 

63rd Leg., ch. 31, at 45. In 1972, this office found in the attorneyclient relationship the basis for an implied exception to the requirement of open sessions. Attorney General Opinion M-1261 (1972). This 

exception has been codified as section 2(e) of the Open Meetings Act. 

- Id. 

This office has issued opinions considering whether a governmental body may discuss in closed session information made confidential by statutes other than the Open Meetings Act. Attorney General 

Opinions MW-578 (1982); H-1154 (1978); R-780 (1976); H-484 (1974). 

See also Gillies V. Schmidt, 556 P.Zd 82 (Cola. Ct. App. 1976) (cited 

in Attorney General Opinion H-1154). 

Your question does not raise this issue, since section 3(a)(ll) 

of the Open Records Act does not impose a duty on any governmental 

body to withhold the records it covers. The Open Records Act provides 

in part: 

Sec. 3. . . . 

(a) All information collected, assembled, or 

maintained by governmental bodies pursuant to law 

or ordinance or in connection with the transaction 

p. 2657 
Honorable Henry Wade - Page 3 (JM-595) 

of official business is public information and 

available to the public during normal business 

hours of any governmental body, with the following 

exceptions only: 

(1) information deemed confidential by law, 

either Constitutional, statutory, or by judicial 

decision; 

. . . . 

(11) inter-agency or intra-agency memorandums 

or letters which would not be available by law to 

a party other than one in litigation with the 

agency; 

. . . . 

Sec. 14. (a) This Act does not prohibit any 

governmental body from voluntarily making part or 

all of its records available to the public, unless 

expressly prohibited by law; provided that such 

records shall then be available to any person. 

The Open Records Act does not in itself make any information 

secret or confidential. Open Records Decision Nos. 216 (1978); 177 

(1977); 22 (1973). The governmental body may waive exceptions to 

public disclosure in the Open Records Act by failing to raise them or 

by refusing to comply with the requirements for requesting an Open 

Records Decision from the Attorney General's Office. Open Records 

Decision Nos. 363 (1983); 150 (1977). Certain statutory, conrmon law 

and constitutional orovisions do make particular information 

confidential and prohibit a governmental body from disclosing it. See 

Industrial Foundation of the South v. Texas Industrial Accident Board, 

540 S.W.2d 668, 677, 683 (Tex. 1976). cert. denied, 430 U.S. 931 

(1977). Records covered by these provisions are within the exception 

in section 3(a)(l) for records made confidential by law. 540 S.W.Zd 

at 677. Section 3(a)(ll), however, does not impose upon governmental 

bodies a duty to withhold intra-agency memoranda; it merely permits 

them to do so. Open Records Decision No. 363 (1983); see also Open 

Records Decision No. 120 (1976) (student's right of access to his 

education records prevails over section 3(a)(ll) exception). 

The Dallas Area Rapid Transit Authority does not violate the Open 

Records Act when it holds public meetings to deliberate on the choice 

of consultants and bidders. Attorney General Opinion MW-129 (1979) 

(discussion of hiring professional consultants must be in open 

session); see also A & A Construction Company, Inc. V. City of Corpus 

Christi, 527 S.W.2d 833 (Tex. Civ. App. - Corpus Christ1 1975, no 

writ) (bids opened and read at public meeting); Attorney General 

P. 2658 
Honorable Henry Wade - Page 4 (JM-595) 

Opinion MW-254 (1980) (staff analysis of bids presented and discussed 

in open session of Board of Human Resources). 

The brief submitted along with your request letter suggests that 

a constitutionaf~ executive privilege authorizes the Dallas Area Rapid 

Transit Authority to discuss intra-agency memoranda in executive 

sessions. The constitutional executive privilege does not, in our 

opinion, apply to the authority. In United States V. Nixon, 418 U.S. 

683 (1974), the United States Supreme Court recognized a constitutionally based privilege protecting from discovery confidential 

communications between high government officials, in particular the 

president, and their immediate advisors. It is an open question 

whether the Texas Constitution provides such a privilege for high 

executive officers in Texas. A legislatively created special district 

is. however, subject to discovery proceeding to the same extent as 

private litigants. See Lowe V. Texas Tech University, 540 S.W.2d 297 

(Tex. 1976); Texas Department of Corrections V. Herring, 513 S.W.2d 6 

(Tex. 1974). 

Section 3(a)(ll) of the Open Records Act also has an "executive 

privilege" aspect, see Open Records Decision No. 308 (1982), but this 

differs from the constitutionally based executive privilege of United 

States v. Nixon. Section 3(a)(ll) was intended to parallel the 

similar exception to the federal Freedom of Information Act, found at 

5 U.S.C. section 552(b)(5). Attorney General Opinion H-436 (1974); 

Open Records Decision No. 251 (1980). Section 3(a)(ll) and the 

corresponding federal provision except from disclosure memoranda or 

letters which could not be obtained through discovery by a private 

party in litigation with the agency. Open Records Decision No. 251 

(1980). Federal cases have identified this privilege against 

discovery of intra-agency advice as an "executive privilege." This 

"executive privilege" is an evidentiary privilege based primarily on 

the common law, although recent federal cases suggest that the 

constitutional separation of powers doctrine may also support it. See 

generally, Environmental Protection Agency V. Mink, 410 U.S. 73 

(1973). See also Federal Open Market Committee V. Merrill, 443 U.S. 

340' (1979); Black V. Sheraton Corp. of America, 371 F. Supp. 97 (D. 

D.C. 1974); Carl Zeiss Stiftung V. V.E.B. Carl Zeiss, Jena. 40 F.R.D. 

318 (D. D.C. 1966); United States V. Gates, 35 F.R. D. 524 (D.C. Colo. 

1964); Kaiser Aluminum and Chemical Corporation V. United States, 

157 F. Supp. 939 (U.S. Ct. Cl. 1958); Larkin, Federal Testimonial 

Privileges, g5.01 (1984); McCormick, Evidence, 5108 (3d e d. 1984). As 

incorporated into section 3(a)(ll) of the Onen Records Act. the 

executive privilege protects from disclosure opinion, advice, and 

recommendation of subordinates to superiors. It does not create a 

testimonial privilege or provide a constitutionally based exception to 

the Open Meetings Act for the Dallas Area Rapid Transit Authority. 

In answer to your question, we conclude that the Dallas Area 

Rapid Transit Authority is not authorized by section 3(a)(ll) of the 

Open Records Act to discuss in executive session written evaluations 

p. 2659 
Honorable Henry Wade - Page 5 (JM-59 3 

and recommendations about the selection of professional consultants 

and competitive bidders. 

SUMMARY 

The Dallas Area Rapid Transit Authority is a 

governmental body subject to the Open Meetings 

Act, V.T.C.S. art. 6252-17. It is not authorized 

by either section 3(a)(ll) of the Open Records 

Act, article 6252-17a, V.T.C.S., or a constitutionally based "executive privilege" to discuss in 

executive session written evaluations and recommendations about the selection of professional 

consultants and competitive bidders. 

Very truly yours J 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General' 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2660