                              ATTORNEYGENERAL OF TEXAS
                                           GREG        ABBOTT




                                                June 20,2005



The Honorable Troy Fraser                              Opinion No. GA-0334
Chair, Committee on Business and Commerce
Texas State Senate                                     Re: Application of conflict of interest law and the
Post Office Box 12068                                  Open Meetings Act to the governing board of a
Austin, Texas 7871 l-2068                              groundwater conservation district (RQ-0304-GA)


Dear Senator Fraser:

        You request a legal opinion on the following issues:

                        (1) conflicts of interest involving            the members         of a
                 groundwater conservation district board;

                        (2) the meaning   of “contemplated                litigation”    within
                 Government Code section 55 1.07 1(l)(A); and

                         (3) the exclusion of a board member who has threatened to
                 sue the groundwater conservation district from a district executive
                 session meeting to discuss the threat of litigation.’

You ask several questions in connection with each issue. Some of these involve questions of fact
that cannot be resolved in an attorney general opinion. See, e.g., Tex. Att’y Gen. Op. Nos. GA-01 39
(2004) at 5, JC-0328 (2000) at 4,0-2911 (1940) at 2. We will address the other questions in relation
to the applicable topic.

I.      Backmound

         You are specifically concerned about the Clear-water Underground Water Conservation
District (the “GCD” or “district”).2 The district, which has common boundaries with Bell County,
was created under Texas Constitution article XVI, section 59 pursuant to special law and is subject



            ‘Letter from Honorable Troy Fraser, Chair, Senate Business and Commerce Committee, to Honorable Greg
Abbott, Texas Attorney General (Dec. 2 1,2004) (on file with Opinion Committee, also available at http://www.oag
.state.tx.us) [hereinafter Request Letter].

           *Telephone Conversation with Daniel Womack, Legislative   Assistant   to Senator Fraser (Mar. 4, 2005)
[hereinafter Telephone Conversation with Daniel Womack].
 The Honorable Troy Fraser - Page 2              (GA-0334)




 to Water Code chapter 36. See Act of May 27, 1989,71st Leg., R.S., ch. 524, $0 1,3,6(a), 1989
 Tex. Gen. Laws 1728, 1729, amended by Act of Apr. 25,2001,77th           Leg., R.S., ch. 22,200l Tex.
 Gen. Laws 32,32-34 (relating to the election of district directors). See aZso TEX.WATERCODEANN.
 $36.001(l) (V emon Supp. 2004-05). Four of the district’s five directors are elected according to
 county commissioner precincts, and the other director is elected at large. See Act of Apr. 25,2001,
 77th Leg., R.S., ch. 22, $ 1,200l Tex. Gen. Laws 32-33. The directors serve four-year terms. See
 id. at 33.

         You summarize the events that caused the district to raise these issues. See Request Letter,
supru note 1, at l-2. You state that the general manager of a nonprofit water supply corporation
(“WSC” or “corporation”) served on the district’s board of directors (the “board “) at a time when
the water supply corporation applied to the district for a groundwater well permit. See id. The
district scheduled a permit hearing pursuant to chapter 36 of the Water Code and required the board
member who was also general manager of the corporation (“director/general manager”) to fill out
an affidavit stating his interest in the corporation pursuant to Local Government Code section
171.004. See id. at 2.

        Local Government Code chapter 17 1, which regulates conflicts of interest involving local
public officers, applies to the district’s directors. See TEX. WATERCODEANN. 0 36.058 (Vernon
2000) (director of district is subject to Local Government Code chapter 171); see also TEX. Lot.
GOV’T CODEANN. ch. 171 (Vernon 1999 & Supp. 2004-05). Section 171.004 sets out the duty of
a local public officer who has a substantial interest in a business entity or in real property:

                (a) If a local public official has a substantial interest in a business
                entity or in real property, the official shall file, before a vote or
                decision on any matter involving the business entity or the real
                property, an affidavit stating the nature and extent of the interest and
                shall abstain from further participation in the matter if:

                                 (1) in the case of a substantial interest in a
                        business entity the action on the matter will have a
                        special economic effect on the business entity that is
                        distinguishable from the effect on the public; or

                                 (2) in the case of a substantial interest in real
                        property, it is reasonably foreseeable that an action on
                        the matter will have a special economic effect on the
                        value of the property, distinguishable from its effect
                        on the public.

Id. 6 17 1.004(a) (Vernon 1999). See also id. 5 17 1.002 (defining “substantial interest” in a business
entity or real property).

        Pursuant to chapter 17 1, a board member with a substantial interest in a business entity shall
disclose his interest prior to a vote or decision on any matter involving the entity and “shall abstain
 The Honorable Troy Fraser - Page 3                    (GA-0334)




 from further participation in the matter if. . . the action on the matter will have a special economic
 effect on the business entity that is distinguishable        from the effect on the public.”      Id. 0
 171.004(a)(l).   A knowing violation of section 171.004 is a Class A misdemeanor.             See id. 3
 171.003(b).

         A person has a substantial interest in a business entity if “funds received by the person from
the business entity exceed 10 percent of the person’s gross income for the previous year.” Id. 0
 171.002(a)(2). See also Tex. Att’y Gen. Op. Nos. GA-0068 (2003) at 3-4, JM-424 (1986) at 2 (a
nonprofit corporation is a business entity within chapter 171). Thus, if the district board member’s
salary as general manager of the nonprofit water supply corporation exceeded ten percent ofhis gross
income for the previous year, he had a substantial interest in the corporation.        Presumably, the
director/general manager did have the requisite interest in the water supply corporation because, as
you inform us, he filed the affidavit stating the nature and extent of his interest in the water supply
corporation as required by Local Government Code section 17 1.004. See Request Letter, supra note
1, at 2.

         You state as follows:

                  After completing the required affidavit, the affected board member
                  made comments to the other GCD board members and the staff of the
                  GCD that his employer, the WSC, expected the GCD to grant the
                  WSC a permit that authorized a specific amount of groundwater
                  production. . . . The affected board member also stated that the WSC
                  intended to file suit against the GCD if the WSC was not granted a
                  well permit with the authorized groundwater production amounts it
                  desired.

Id.

         You further state that the district board of directors called an executive session as authorized
by the Texas Open Meetings Act, see TEX. GOV’T CODEANN. ch. 55 1 (Vernon 2004), id. tj 551.071,
“to discuss the.threat made by the WSC to file suit against the GCD.” Request Letter, supra note
1, at 2. “The affected board member informed the other GCD board members and the GCD staff that
he intended to attend the executive session in which his employer’s threat to file suit and the affected
board member’s conflict of interest would be discussed.“3 Id. The board’s concern about the
affected board member’s attending the executive session caused it to raise the questions at issue here.
See id.




         3The affected board member did not attend the executive session to discuss the threatened litigation, nor had
the WSC filed any litigation against the district as of March 4,2005. See Telephone Conversation with Daniel Womack,
supra note 2.
The Honorable Troy Fraser - Page 4                     (GA-0334)




II.      Meaniw of “Further ParticiDation” in a Matter

         We turn to your first inquiry. Section 171.004 prohibits an interested official from “further
participation” in a matter before the governmental body involving his business entity or real property
if board action on the matter will have a special economic effect on the business entity or value of
the real property. See TEX. Lot. GOV’T CODE ANN. $ 171.004(a) (Vernon 1999). You ask us to
define the phrase “further participation” as used in section 17 1.004(a).

         Chapter 171 does not define “participation,” but this office has defined the terms
“participates” and “participation” in former article 988b, Revised Civil Statutes: the predecessor of
Local Government Code chapter 171 .5 See Tex. Att’y Gen. Op. No. JM-379 (1985). Former article
988b, section 3 provided that a local public official commits an offense if he knowingly

                  participates in a vote or decision on a matter involving a business
                  entity in which the local public official has a substantial interest . . . .

Act of May 30, 1983,68th Leg., R.S., ch. 640, 6 3,1983 Tex. Gen. Laws 4079,408O (emphasis
added). See TEx. Lot. GOV’T CODE ANN. $ 171.003(a)(l) (V emon 1999) (violation of section
171.004 is a prohibited act). Former article 988b, section 4 provided that if a local public official
had “a substantial interest in a business entity that would be peculiarly affected by any official action
taken by the governing body” the official “before a vote or decision on the matter, shall file ‘an
affidavit . . . and shaZZabstainfiom furtherparticipation    in the matter.” Act of May 30,1983,68th
Leg., R.S., ch. 640, 5 4, 1983 Tex. Gen. Laws 4079,4080-81           (emphasis added). See TEX. tic.
GOV’T CODE ANN. $ 17 1.004 (Vernon 1999) (Affidavit and Abstention From Voting Required).


         Attorney General Opinion JM-379 considered the application of article 988b to a school
trustee who owned a substantial interest in a bank that was suing the school district over the property
tax valuation of its stock. The interested trustee abstained from voting for or against any matter
pertaining to the litigation but discussed the litigation with members of the board of trustees. See
Tex. Att’y Gen. Op. No. JM-379 (1985) at 1. This office determined that the interested trustee’s
discussions with other board members constituted “participation in the matter” within former article
988b, section 4 and concluded that “participation ‘in a vote or decision’ . . . [within former article
988bJ includes deliberating with the board about the matter.” See id. at 4-5. If the interested trustee
were able to discuss the matter with the other board members, he could influence the board’s final
action. See id. at 5.

        You ask what “objective activities or conduct” may be considered “further participation in,”
as that phrase is used in section 171.004(a). Request Letter, supra note 1, at 3. We cannot


        4Act of May 30,1983,68th     Leg., R.S., ch. 640, $0 l-8,1983   Tex. Gen. Laws 4079,4079-82   (adopting article
988b, Revised Civil Statutes).

          ‘See Act of May 1, 1987, 70th Leg., R.S., ch. 149, $0 1, 49, 1987 Tex. Gen. Laws 707, 949-950, 1306
(repealing former article 988b, Revised Civil Statutes and reenacting it as chapter 17 1 of the Local Government Code);
see also Act of Feb. 2 1,1989,71 st Leg., R.S., ch. 1, $0 40-41, 1989 Tex. Gen. Laws 1,45-47 (act conforming Local
Government Code to certain acts of the 70th Legislature).
 The Honorable Troy Fraser - Page 5                        (GA-0334)




 exhaustively describe all conduct that may constitute “further participation.” We point out, however,
 that board members must in any case avoid deliberating by exchanging written communications or
 communicating through a third party. SeegeneraZZy Tex. Att’y Gen. Op. No. JC-0307 (2000) at 5-6.

         You also ask whether an affected board member’s attendance at an executive session of the
governmental body constitutes “further participation in the matter” if the executive session is called
(1) to discuss possible litigation contemplated by the affected board member or his employer, or (2)
to discuss the board member’s conflict of interest. See Request Letter, supru note 1, at 3. Chapter
171 does not answer this question, and neither the courts nor this office has considered whether
“further participation in the matter” also includes attending an executive session called to discuss
a matter in which a board member has a substantial interest.6

         The language you ask us to construe helps define a penal offense. “A local public official
commits an offense if the official knowingly . . . violates Section 171.004,” which requires an
interested official to “abstain from further participation in the matter”under specified circumstances.
See TEX. Lot. GOV’T CODEANN. $0 171.003(a)(l), .004(a) (Vernon 1999). The offense is a Class
A misdemeanor. See id. 6 171.003(b).

          Due process requires that criminal statutes give fair notice of activity that is outlawed. See
 U.S. v. Lanier, 520 U.S. 259, 266 (1997). A criminal statute must give persons of ordinary
intelligence a reasonable opportunity to know what conduct is prohibited. See id.; Mm-graves v.
State, 34 S.W.3d 912, 920 (Tex. Crim. App. 2000). Moreover, “[plenal statutes are still strictly
construed.” Brown v. De La Cruz, 156 S.W.3d 560,565 (Tex. 2004); First Bank v. Tony’s TortiZZa
Fuctov, Inc., 877 S.W.2d 285, 287 (Tex. 1994). In “construing a criminal statute, we seek to
effectuate the intent of the Legislature, focusing on the statute’s literal text, and we attempt to discern
the fair, objective meaning ofthat text.” FaZZin v. State, 93 S.W.3d 394,395-96 (Tex. App.-Houston
[14th Dist.] 2002, pet. ref d) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.
 1991)). If the language of a criminal statute is not plain a court may consider, in arriving at a
sensible interpretation, extratextual factors such as executive or administrative interpretations ofthe
statute or legislative history. See Boykin v. State, 818 S.W.2d 782,785-86 (Tex. Crim. App. 1991).
Given the requirement that a criminal statute give fair notice and the rules of construction stated by
the Texas Supreme Court and Court of Criminal Appeals, we will not adopt an expansive
interpretation of “further participation.“7

           To determine whether “further participation” within section 17 1.004(a) includes “attendance
. . . at an executive session” on a matter in which a board member is substantially interested, we will
consider the meaning of the same word as used in other acts of a similar nature. See Brown v.
Darden, 50 S.W.2d261,263 (Tex. 1932); Tex. Bank& Trust Co. v. Austin, 280 S.W. 161,162 (Tex.


         6We assume, without deciding, that any such executive session would be held only as authorized          by the Open
Meetings Act.

           %e court in Hamilton v. Town ofLos Gatos, 261 Cal. Rptr. 888,891 (Cal. Ct. App. 6thDist. 1989), construing
a California conflict of interest statute, determined that “to participate[] in making . . . a governmental decision” included
silent attendance at an executive session meeting. This conclusion was based on policy arguments underlying the statute
and the state open meetings act. No criminal provision was at issue.
The Honorable Troy Fraser - Page 6             (GA-0334)




1926); L&MSurco Mfg.,      Inc. v. Winn Tile Co., 580 S.W.2d 920,926 (Tex. Civ. App.-Tyler 1979,
writ dism’d); Tex. Att’y Gen. Op. No. GA-0251 (2004) at 3. We note that legislation expressly
concerned with meetings uses the terms “participation” and “attend” in a way that helps us construe
“further participation” in section 171.004(a).

         The term “participate” has been defined as meaning “to take par-to share in common with
others.” Reardon v. State, 4 Tex. Ct. App. 602 (1878). See also XI OXFORDENGLISHDICTIONARY
268 (2d ed. 1989) (defining “participate” as “[t]o take or have a part or share of or in; to possess or
enjoy in common with others”); MERRIAM-WEBSTER’              COLLEGIATE
                                                             S             DICTIONARY847 (10th ed.
1993) (defining “participate” as “to take part [as] in class discussions”). “Attend” has, in contrast,
been defined as “to be present.” MERRIAM-WEBSTER’COLLEGIATE   S             DICTIONARY74 (10th ed.
1993). In the context of Texas statutes on meetings, “attend’ means mere passive presence, while
“participate” means active engagement in the subject matter at issue in the meeting.

         For example, the superintendent of a hospital district created under Health and Safety Code
chapter 282 “may attend board meetings and meetings of a board committee and may participate
in the discussion of matters within the superintendent’s functions, but . . . may not vote on matters
considered by the board.” TEX. HEALTH & SAFETY CODEANN. $ 282.027(d) (Vernon 2001)
(emphasis added). Under this provision, the superintendent may attend all meetings, that is, be
present at all meetings, but mayparticipate    only in the discussion of matters within his function.
In another statute, the administrator of the Agricultural Finance Authority may “attend all meetings
and participate, but not vote, in all proceedings of the authority.” TEx. AGRIC.CODEANN. 6
58.015(c) (Vernon 2004) (emphasis added). See aZso TEX.Lot. GOV’T CODEANN. 0 111.007(a)
(Vernon 1999) (any taxpayer of a county “may attend and may participate” in a public hearing on
the proposed county budget) (counties with a population of 225,000 or less); TEX. TRANSP.CODE
ANN. $ 22.0745(d) (Vernon Supp. 2004-05) (nonvoting member on a joint airport board is not
entitled to “attend orparticipate in” a closed meeting of the joint board) (emphasis added). See aZso
Tex. Att’y Gen. Op. No. JC-0308 (2000) at 1 (“attendance” by a quorum of a state agency board at
a legislative committee hearing is subject to the Open Meetings Act if a board member participates
in the discussion).

         We rely on the distinction between the terms “attend” and “participate in” a meeting as used
in Texas statutes to construe the phrase “further participation in the matter.” TEX. Lot. GOV’T CODE
ANN. 5 171.004(a) (Vernon 1999). Thus, the limit on “further participation” does not preclude the
interested public official from “attending’: meetings, including executive session meetings, relevant
to the matter in which he has a substantial interest.

         A member of a governmental body does not “participate” in a matter for purposes of Local
Government Code section 171.004 by merely attending an executive session on the matter and
remaining silent during the deliberations. However, it may be wise for the interested public officer
to refrain from attending open or closed meetings that address the matter in which he is interested.
See Graham v. McGraiZ, 345 N.E.2d 888,891-92 (Mass. 1976) (advising public officer with conflict
of interest under state law to leave meeting).
The Honorable Troy Fraser - Page 7              (GA-0334)




III.    “Pending or ContemDlated Litieation” in Government Code Section 551.071(1)(A)

       You ask us to define the phrase “contemplated litigation” in section 551.071(l)(A) of the
Government Code, which authorizes a governmental body to hold an executive session concerning
pending or contemplated litigation. The section provides as follows:

                A governmental body may not conduct a private consultation       with its
                attorney except:

                        (1) when the governmental       body seeks the advice of its
                attorney about:

                                (A) pending or contemplated     litigation; or

                                (B) a settlement offer; or

                         (2) on a matter in which the duty of the attorney to the
                governmental    body under the Texas Disciplinary          Rules of
                Professional Conduct of the State Bar of Texas clearly conflicts with
                this chapter.

TEX. GOV’T CODEANN. $55 1.071 (Vernon 2004). In particular, you ask whether “contemplated
litigation” within section 55 1.071(1)(A) may include a contested hearing before an administrative
agency or other governmental agency, including a groundwater conservation district. Request Letter,
supra note 1, at 3. Although you ask about governmental entities in general, we must limit our
answer to a contested hearing before the Clearwater Underground Water Conservation District
because this answer is based on provisions of chapter 36 and rules promulgated by this district. We
have found no provisions        generally applicable to contested hearings conducted by local
governmental entities.

        This office has concluded that a contested case under the Texas Administrative Procedure
Act, TEX. GOV’T CODEANN. ch. 2001 (Vernon 2000 & Supp. 2004-05), is “litigation” within the
context of the Public Information Act, id. ch. 552 (Vernon 2004), and the Open Meetings Act. See
Tex. Att’y Gen. LO-96-l 16, at 5-6; Tex. Att’y Gen. ORD-588 (1991) at 2. A “contested case”under
the Administrative Procedure Act is “a proceeding, including a ratemaking or licensing proceeding,
in which the legal rights, duties, or privileges of a party are to be determined by a state agency after
an opportunity for adjudicative hearing.” TEX. GOV’T CODEANN. $2001.003( 1) (Vernon 2000).

         Open Records Decision 588 addressed the exception from public disclosure for information
“relating to litigation . . . to which the state or a political subdivision is or may be a party.” Id. 0
552.103(a) (Vernon 2004). It concluded that the term “1itigation”includes a “contested case” under
the Texas Administrative Procedure Act, id. ch. 2001 (Vernon 2000 & Supp. 2004-05). See Tex.
The Honorable Troy Fraser - Page 8                   (GA-0334)




Att’y Gen. ORD-588 (1991) at 4.8 See also Tex. Att’y Gen. ORD-301 (1982) at l-2 (“‘litigation’
encompasses proceedings conducted in quasi-judicial forums as well as strictlyjudicial ones”) (cited
by Tex. Att’y Gen. ORD-588 (1991) at 2). “When a contested case is heard in a quasi-judicial
forum, discovery takes place and the evidence is presented at the administrative level, . . . [and] fact
questions are heard and resolved by the agency, regardless of whether the case reaches a court for
review under the substantial evidence rule.” Tex. Att’y Gen. ORD-588 (1991) at 4. Thus, “[slection
3(a)(3) [the predecessor of Government Code section 552.103(a)] can have its intended effect only
by applying it to information related to a contested case before an administrative agency “to which
the state . . . is, or may be, a party.” Id.

        Relying on Open Records Decision 588, this office construed the term “litigation” within
Government      Code section 551.071(1)(A) to include “contested cases” under the Texas
Administrative Procedure Act. See Tex. Att’y Gen. LO-96-l 16, at 5. Letter Opinion 96-l 16 noted
that “an adversary proceeding may encompass a proceeding conducted in a quasi-judicial forum as
well as in a judicial forum,” stating that

                  Government     Code section 551.071 is designed to protect a
                  governmental body’s interests in an adversary proceeding, where to
                  discuss a pending proceeding with the governmental body’s attorney
                  in an open meeting would permit the opposing party to learn the
                  governmental body’s strategy, evidence, and vumerabilities.

Id. at 5-6. See also TEX.GOV'T CODEANN. 0 2001.003(2) (Vernon 2000) (“license” includes state
agency permit). Thus, a governmental body that is subject to the Administrative Procedure Act may
meet in executive session under section 55 1.071(l)(A) to deliberate about a “contested case” before
it.

          We point out that Attorney General Letter Opinion 96-l 16 and Open Records Decision 588
conclude that a contested case under the Administrative Procedure Act is itself “litigation,” not
merely anticipated or contemplated litigation. We will also consider whether a contested permit
hearing before the Board of Directors of the Clear-water Underground Water Conservation District
is “litigation” within Government Code section 55 1.071(l)(A), not just “contemplated litigation.”

         The district is not a state agency and is therefore not subject to the Administrative Procedure
Act. See id. 0 2001.003( 1) (“contested case” is a proceeding, in which a state agency determines the
legal rights, duties, or privileges of a party). We will examine the provisions governing the district’s
permitting authority to determine whether a permit hearing before the board is “litigation” for
purposes of the Open Meetings Act exception.




          ‘Open Records Decision 588 (199 1) addressed the former Texas Gpen Records Act, article 6252-l 7a, Revised
Civil Statutes, which was recoditied as Government Code chapter 552 in 1993 and renamed the “Public Information Act”
in 1995.See Act of May 4,1993,73d Leg., R.S., ch. 268, $1,1993 Tex. Gen. Laws 583,594; see aIso Act of May 29,
1995,74thLeg.,    ch. 1035,§ 1, 1995 Tex. Gen. Laws 5127,5127-42.
The Honorable Troy Fraser - Page 9               (GA-0334)




         A groundwater conservation district “shall require permits for the drilling, equipping, or
completing of wells or for substantially altering the size of wells or well pumps.” TEX. WATER
CODEANN. 0 36.113(a) (Vernon Supp. 2004-05). See id. $0 36.113(c) (information that a district
may require to be included in a permit application); 36.113 1 (Vernon 2000) (elements of permit
application).   A district “shall promptly consider and act on each administratively       complete
application for a permit.” Id. $ 36.114 (Vernon Supp. 2004-05). See also id. (“administratively
complete” applications include information required under sections 36.113 and 36.113 1).

         The Clear-water Underground Water Conservation District conducts permit hearings in
accordance with procedural rules adopted under section 36.101. See id. $ 36.101(b) (the district
board shall adopt rules to implement chapter 36, including rules governing procedure before the
board). The district’s rules provide for notice of a permit hearing and authorize the presiding officer
to rule on motions and on the admissibility of evidence, administer oaths to persons presenting
testimony, and examine witnesses. See CLEARWATERUNDERGROUND                    WATER CONSERVATION
DISTRICT,   DISTRICT  RULES,Rules 8.10.2,8.10.3(c),     (e)-(f) (2004).9 See also id. $8.10.5 (authority
of presiding officer to admit and exclude evidence).

        Any interested person, including the district’s general manager, may appear at a hearing and
“present evidence, exhibits, or testimony, or make an oral presentation as determined by the Board.”
Id. Rule 8.10.4(a). See also id. Rule 3.1 (employment and duties of general manager of district).
A person who wishes to appear at a permit hearing must provide the district with specific
information, such as his name and address, whether he wishes to testify and whether he is contesting
the application. Id. Rule 8.10.4(a). The general manager of the district must state on the record
whether he “proposes denial, a partial grant, or full grant of the application.” Id.

        The rules provide for uncontested    and contested hearings. An uncontested hearing is defined
as follows:

                   Uncontested   Hearings:      If no interested persons contest the
                   application and the General Manager proposes to grant the
                   application, whether a partial or full grant, the application shall be
                   considered uncontested. . . . No Hearing Report shall be required for
                   an uncontested hearing.

Id. Rule 8.10.8.

        If an interested person has appeared to contest the application, the presiding officer must
submit to the board a hearing report, which must include a summary of the subject matter of the
hearing, the evidence or public comments received, and the presiding officer’s recommendations for
board action. See id. Rule 8.10.7. Any person who participated in the hearing may review the report
and submit written exceptions to the report to the board. See id. Within 35 days after the final
hearing, the board must decide whether or not to issue a permit or a permit amendment and set the



        9,4vuiZubZe
                athttp://www.cleanvaterdistrict.org
                                            (lastvisited
                                                       June17,2005).
The Honorable Troy Fraser - Page 10                      (GA-0334)




permitted volume and other terms of the permit.                 See id. Rule 8.10.9. See aZso id. Rule 8.10.10
(request for rehearing and appeal).

        After all administrative appeals to the district are final, a person or corporation “affected by
and dissatisfied with” a district order may file a suit against the district or its directors to challenge
the order’s validity. See TEX. WATERCODEANN. 6 36.25 1 (Vernon 2000). In trial of the suit, “[tlhe
burden of proof is on the petitioner, and the challenged law, rule, order, or act shall be deemed prima
facie valid.” Id. $ 36.253. “The review on appeal is governed by the substantial evidence rule as
defined by Section 2001.174, Government Code.” Id.

        Thus, the district board finds facts and the courts review its decisions on permit applications
according to the substantial evidence rule of the Administrative Procedure Act. Moreover, a
contested permit hearing before the district board, as defined by its rules, places the applicant in an
adversarial relation to the district’s general manager or other person who contests the application.
It may ultimately lead to a lawsuit against the district by a person who is “affected by and dissatisfied
with” the district’s order on the contested permit application. Id. $36.25 1.

         A contested permit hearing of the Clearwater Underground Water Conservation District
raises governmental interests like those at issue in Open Records Decision 588 and Attorney General
Letter Opinion 96-l 16. See Tex. Att’y Gen. LO-96- 116, at 5-6 (discussion of a pending proceeding
with the governmental body’s attorney in an open meeting would permit the opposing party to learn
the governmental body’s strategy, evidence, and vulnerabilities).     We conclude that a contested
permit hearing before the Board of Directors of the Clear-water Underground Water Conservation
District is “litigation” that the district board may discuss in executive session under section
55 1.07 1(l)(A) of the Government Code. An uncontested permit hearing, as defined by the district’s
rules, is not an adversary proceeding. Thus, an uncontested permit hearing is neither “litigation” nor
“contemplated litigation” within the Open Meetings Act,” and the district board may not discuss it
in executive session under Government Code section 55 1.071(l)(A).

IV.      Exclusion of a Board Member from an Executive Session and Related Ouestions

        You ask whether a governmental body may exclude a board member from an executive
session under,~Government Code section 55 1.071(l)(A) to discuss contemplated litigation when the
board member or his employer has threatened to bring the litigation that the board will discuss. We
note that the affected board member did not attend the executive session to discuss the threatened




            ‘@Inview of our conclusion, we need not consider your general questions about the meaning of “contemplated
litigation.” But see TEX. GOV’T CODE ANN. $552.103(a) (Vernon 2004) (excepting from required disclosure under the
Public Information Act information related to “litigation . . . to which the state or a political subdivision . . . may be a
party”)(emphasis added); Tex. Att’y Gen. ORD-677 (2002) at 3 (mere conjecture that litigation may ensue is insufficient
to invoke exception); Tex. Att’y Gen. ORD-183 (1978) at 2 (exception requires reasonable anticipation of litigation
relating to a specific matter). See also Tex. Att’y Gen. ORD-35 1 (1982) at 2 (litigation was not reasonably anticipated
when individual merely threatened litigation in telephone conversation and did not follow with meaningful action).
The Honorable Troy Fraser - Page 11                          (GA-0334)




litigation, nor has the Water Supply Corporation that employs him filed suit against the district.”
After this opinion was requested, the district board granted the permit over which the lawsuit was
threatened. See Clear-water Underground Water Conservation District Meeting Minutes (Jan. 25,
2005), Agenda Item 4.12 Thus, there is no need to answer this question at present. In addition, this
question raises important policy issues concerning the powers and duties of elected and appointed
board members and conflicts between their public responsibilities and their personal interests, issues
that cannot be satisfactorily addressed in the context of the district’s narrow hypothetical question.
Moreover, there is virtually no legal authority relevant to this inquiry.13 Given that question is moot,
and that it raises novel issues that cannot be resolved in the abstract, we will not address it.

         You also ask us to define “adverse party.” See Request Letter, supra note 1, at 4. An
“adverse party’ is a party whose interests are opposed to another party to a legal action. See
Highsmith v. TyZerStateBank& Trust Co., 194. S.W.2d 142,145 (Tex. Civ. App.-Texarkana     1946,
writ ref’d); BLACK'S LAW DICTIONARY 1144 (7th ed. 1999). This office has used “adverse” and
“adverse party” consistently with these definitions. See Tex. Att’y Gen. ORD-55 1 (1990) at 4-5;
Tex. Att’y Gen. LO-89-77, at 3.

         You ask whether a governmental body’s attorney-client privilege would be waived14 in
various circumstances.    For example, you wish to know whether waiver would occur if a board
member who threatened to sue the board attended an executive session to discuss the proposed suit,
or if the board’s attorney provided certain legal memoranda information to all board members,
including a board member who is adverse to the board or may become adverse to the board.
Whether the privilege is waived in a particular case depends upon the relevant facts. See TEX. R.
EVID. 503; RepublicIns. Co. v. Davis, 856 S.W.2d 158,164 (Tex. 1993). This office cannot answer
questions of fact and therefore cannot answer these questions. See, e.g., Tex. Att’y Gen. Op. Nos.
GA-0139 (2004) at 5, GA-0003 (2002) at 1, JC-0328 (2000) at 4, H-56 (1973) at 3,0-2911 (1940)
at2.

        We point out that a member of a governmental                       entity has a right of access to the entity’s
records when he requests them in his official capacity.                    As we stated in Attorney General Opinion
GA-0138:




          “See Telephone       Conversation   with Daniel Womack, supra note 2.

          ‘ZAvuiluble at http://www.clearwaterdistrict.org      (last visited June 17, 2005).

          13This office and a New Jersey Court have both concluded that a school board member who has sued the school
board may be excluded from an executive session to discuss the pending litigation brought by the school board member.
See Tex. Att’y Gen. Op. No. JM-1004 (1989); see also Scotch Plains-Fanwood         Bd. of Educ. v. Spertsen,  598 A.2d
1232, 1233 (N.J. Super. Ct. App. Div. 1991). We find no authority on excluding a board member who merely
contemplates litigation against his board.

          14You ask       about waiver of the attorney-client privilege under the Texas Rules of Evidence, not waiver of
Government Code          section 552.103, which protects from disclosure under the Public Information Act “information
relating to litigation    of a civil or criminal nature to which the state or a political subdivision is or may be a party.” TEX.
GOV’T CODE ANN.          p 552.103(a) (Vernon 2004).
The Honorable Troy Fraser - Page 12           (GA-0334)




                        A member of a governing body has a right to access the
               documents of that body. . . because of the member’s inherent powers
               of office. While there do not appear to be Texas court decisions
               directly concerning the issue, on several occasions this office has
               observed that a member of a governing body has an inherent right of
               access to the records of that body when requested in the member’s
               official capacity and for the member’s performance of official duties.
               See Tex. Att’y Gen. Op. Nos. JC-0283 (2000) at 3-4, JC-0120 (1999)
               at 3-5, JM-119 (1983) at 3; Tex. Att’y Gen. LO-93-069, at l-2.

Tex. Att’y Gen. Op. No. GA-0138 (2004) at 3. See also Gabrilson v. Flynn, 554 N.W.2d 267,274
(Iowa 1996) (school board members generally should be allowed access to both public and private
records necessary for the proper discharge of their duties). Whether a member requests records in
his official capacity is a fact question that cannot be resolved in an attorney general opinion. See
Tex. Att’y Gen. LO-93-069, at 3. However, the fact that a board member has filed suit against the
board would raise the question whether he requested records about the lawsuit in his official
capacity.

         We finally observe that a public officer holds a public trust, and he should discharge his
duties with honesty and integrity. See Alsup v. State, 238 S.W. 667,670 (Tex. Crim. App. 1922);
Jones v. State, 109 S.W.2d 244, 251 (Tex. Civ. App.-Texarkana             1937, no writ). Given these
responsibilities, a public officer who is suing or planning to sue his governmental body should avoid
using his public position to secure access to information related to the litigation, for example, by
voluntarily refraining from attending executive sessions regarding the litigation and from accepting
confidential documents related to the litigation.
The Honorable Troy Fraser - Page 13            (GA-0334)




                                        SUMMARY

                        The directors of an underground water conservation district
               are subject to chapter 171 of the Local Government Code, which
               regulates conflicts of interest involving local public officials. Chapter
               171 requires a local public official with a substantial interest in a
               business entity or real property on which board action will have a
               special economic effect to disclose his interest and abstain from
               further participation in the matter. A violation of this requirement is
               a Class A misdemeanor.       When section 17 1.004(a) requires a local
               public official to abstain from further participation in a matter, it does
               not prohibit him from attending an executive session of his
               governmental body held to discuss the matter.

                         A contested permit hearing before the Board of Directors of
               the Clearwater Underground          Water Conservation    District is
               “litigation” within Government Code section 55 1.07 1(l)(A).

                                               Very truly yours,




                                               GR&&i     ABBOTT
                                               Attorney General of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
