MARK WHITE Attorney General

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# The Attorney General of Texas

December 22, 1981

Honorable Jim Mapel CriminalDistrictAttorney Brazoria County Courthouse Angleton, Texas 77515 OpinionNo. m-417
Re: Application of open Meetings Law to joint executive session of two political subdivisions
Dear Mr. Mapel:
You have requestedour opinion regarding the applicabilityof the Open Meetings Act, article 6252-17, V.T.C.S., to a joint executive session of two political subdivisions. You state that in May and June 1981, the governing bodies of the Brazes River Harbor Navigation District and the city of Quintanamet jointly to discuss the formation of an industrial district, and, in connection therewith, the annexation and deannexation of certain land. The respective bodies each posted notice of their individualmeetings and then retired to a joint executive session. A quorum of each body was present at the jointmeeting. You ask:

1. Can the governingbodies of twopolitical subdivisions discuss the formation of an industrial district which would involve the deannexation of lands owned by one of the subdivisionsin a joint executive session?
2. Can the governingbodies of two political subdivisions discuss the annexation by one subdivision of land owned by or under the control of the other?
3. Does the annexation or deannexation of land amount to a 'land acquisition' and therefore qualify as an exemption under the Tqxas Open Meetings Law?
From the factsyou have described, itwould appear that the Open Meetings Act was applicable to the joint meetings, since a quorum of each body was present. See Attorney General Opinion MW-28 (1979). Section 2(a) of the statutemakes every "regular, special, or called meeting or session" open to the public "except as otherwise provided

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in thisAct or specificallypermitted in the Constitution." The only exception listed in section 2 which might be applicable to the situationyou have described is section 2(f),which provides:

The public may be excluded from thatportion of a meeting during which a discussion is had with respect to thepurchase,exchange, lease,orvalue of real property, negotiated contracts for prospectivegifts or donations to the stateor the governmentalbody,when such discussionwould have a detrimental effect on the negotiating position of the governmentalbody as between suchbody and a thirdperson, firm or corporation.
It does not appear that a discussion of the formation of an industrial district or the annexation or deannexation of land could reasonablybe construed to constitute a discussion of "the purchase, exchange, lease, or value of real property." We need not decide this issue, however, because you have not indicatedhow public discussion of the described matters would have a detrimental effect on either governmental body's negotiating position with respect to a third party. As a result, the Brazes River Harbor Navigation District and the city of Quintanawere not authorized to meet jointly in executive session, under the circumstancesyou have indicated, on the basis of section 2(f).
A brief from the city of Quintana suggests that the litigation exception authorized the district and town to meet in executive session, since the discussions were intended to avoid litigation between them. Section 2(e) of article 6252-17,V.T.C.S., provides as follo"s: consultations

gover~~~ntalPr~~ad:eand between a 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, settlement offers, and matters where the duty of a public body's counsel to his client,pursuant to the Code of ProfessionalResponsibilityof the State Bar of Texas, clearly conflictswith thisAct. Thisprovisiongivespublicbodies, a right toprivileged communication on litigationwith their counsel and it also recognizes that the Code of ProfessionalResponsibilitywould under some circumstancesprohibit an attorney from consulting publicly with his client. Attorney General Opinion M-1261 (1972). see Code of Professional - Responsibility,Canon 4.
In the present case, the two political subdivisions contemplated suing one another. Neither party consulted privately with its attorney but did so in the presence of its potential adversary, the

p. 1423HonorableJim Mapel - Page 3 &W-417)

party fromwhom itwould normally conceal We do not believe section 2(e) applies to

. . . its intentionsand strategy. thisdiscussion. Itmay not be invokedon these facts to exclude thepublic from the discussion.
SUMMARY The Brasos River Harbor Navigation District and the city of Quintana were not authorized to meet jointly in executive session, under the circumstances described, on the basis of section 2(e), 2(f) t or any other exception to the Open Meetings Act, article 6252-17, V.T.C.S., for the purpose of discussing the formation of an industrialdistrict,and, in connectiontherewith, the annexationand deannexationof certain land. w+?xg

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin Jim Moellinger BruceYoungblood

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