                           January    10, 1989




Honorable  Carl A. Parker            Opinion   No. JM-1004
Chairman
Education  Committee                 Re:    Whether member of school
Texas State Senate                   district board of trustees who
P. 0. Box 12068                      has sued the other six members
Austin, Texas    78711               may be excluded   from an execu-
                                     tive session    held to    discuss
                                     the litigation     (RQ-1493)

Dear. Senator   Parker:

      you inform us that a member of the board of trustees   of
a school district has     sued the other six board members   in
federal court.    The claim was denied by a three member panel
of federal judges but an appeal has been filed.    You ask the
following  question:

         Can the member    which has    filed the    lawsuit
         against other    members    be excluded   from    an
         executive   session    during   which   the    only
         agenda topic is the defense of the lawsuit?

      Your    question    refers    to   an   executive    session    for
discussion    of the lawsuit,      thereby indicating     that the    six
board members are meeting in         their capacity     as a governing
body subject to the Open Meetings Act. .We assume that               they
have determined     that the litigation      was brought against them
in their capacity      as representatives     of the school district.
See aeneralle    Attorney    General    Opinion JR-824    (1987)    (suit
by member of commissioners         court against district       attorney
and sheriff).      Executive   session meetings     to discuss litiga-
tion are permitted       by the following      provision   of the    Open
Meetings   Act:

         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    . . . litigation     . . . and    matters
         where the duty of a public body's counsel          to
         his client, pursuant    to    the Code of    Profes-
         sional Responsibility      of    the State   Bar   of
         Texas, clearly conflicts      with this Act.



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Honorable     Carl   A. Parker     - Page   2    (JM-1004)




V.T.C.S.     art.    6252-17,    5 2(e).

      This provision     allows the governmental       body to    exclude
the general public from its discussions           of litigation    but it
does not address      the exclusion      of a board     member from     an
executive   session on      litigation   brought    against the     board
by that board     member.      A  board which     exercises    authority
delegated   to it by     the legislature     "must    act thereon as      a
body at a stated meeting,          or one properly      called, and     of
which all the members of such board have notice, or of which
they are given an opportunity         to attend:"     Webst r v.    Texas
6 Pacific    Motor    TrgIlggort   Co,    166    S.W.Zd 75;    76    (Tex.
1942).    The purpose of this r-111;is

            to   afford   each   member     of  the    body
            opportunity   to be    present and   to impart     z::
            his associates    the benefit of his experience,
            counsel,   and judgment,    and  to bring to     bear
            upon them the weight       of his argument   on   the
            matter to be decided       by the Board, in     order
            that the decision     . . . may be the     composite
            judgment   of the body as a whole.

&    at 77.

      This is a common law rule which applies to the board of
                                                               . .
trustees   of a school district.       &S   Garcia v. AnaelirU         412
S.W.Zd 949     (Tex.   Civ.    App.   - Eastland      1967,    no 'writ)
(trustees of school district could not remove other trustees
from office nor bar them from participation           in meetings      and
proceedings    of  school    board): see     alsp    Attorney    General
Opinion JW-119      (1983);    Birdville   UdeD.     School    Dist.
Q9-g~~ 141 S.W.Zd     680 (Tex.     Civ. App. -     Fort Worth     ,940';
aff'd, 159 S.W.Zd 111 (Tex. 1942).          Each board member       would
ordinarily     be  entitled     to   attend    all   board     meetings.
However,   under   the    circumstances     you    inquire    about,    we
believe that the board of        trustees may exclude the         trustee
who has    sued it    from executive      session meetings      held    to
consult with its attorney about this lawsuit.

      The board of trustees may sue        and be sued in the      name
of   the   school   district.     Educ.    Code   5 23.26(a).       The
trustees   of   an independent    school district      may employ     an
attorney where the district's       interests   require assertion     or
defense   in court.    maves   h Houtchens    v. Dwond     Hill Inden,
School Dist.,     243 S.W.    638 (Tex.    Civ. App.     - Fort   Worth
1922, no writ).     The right    to the advice and assistance         of
retained counsel    in civil litigation     is inherent     in the idea
of an adversarial      system of justice.       Woslev v.     St. Louis
S uthwem,             634 F.2d 942 (5th Cir.), cert. denied, 452
lJ:S. 906 (1981)     (right to   assistance    of   counsel   in  civil
litigation    and administrative   proceedings).



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Honorable     Carl   A. Parker   - Page   3     (JM-1004)




      It is well   established     in the   common law that      confi-
dential communications     between    an attorney     and his    client
are privileged    in civil     cases.     Cochran v.    Cochran,     333
S.W.Zd 635 (Tex. Civ. App. - Houston         [lst Dist.] 1960,     writ
ref'd n.r.e.); M     Attorney      General Opinion M-1261       (1972).
Rule 503   of the   Texas Rules      of Civil    Evidence    expressly
provides  a lawyer-client    privilege    and defines client as       'Ia
person, public    officer,     or   corporation,     association,     or
other organization    or entity, either public or private"           who
consults  a lawyer or receives      legal services    from a    lawyer.
Tex. R. Evid. 503.     The privilege     exists for the benefit       of
the client.    Ex carte Li~scomb        239 S.W. 1101 (Tex.      1922);
Bearden v. Boone, 693 S.W.Zd 2; (Tex. App. - Amarillo             1985,
no writ).

      The attorney-client      privilege    is   a barrier     to    the
attorney's    testimony    about    confidential      communications.
Tex. R. Evid.     503: sc!s Ex,                      2+iuua. ;z,,;t;
also been held     to authorize     private consultations
attorney   and client.    Attorney   General Opinion M-1261      (1972)
held that    the   policy    underlying    this   privilege    permits
governmentai   bodies to consult privately       with their attorney
even though    the Open    Meetings     Act did   not at    that    time
expressly   allow   such private     consultations.     A   California
case relied upon by      Attorney   General Opinion M-1261       states
as follows:

                Plaintiffs   do not dispute the availability
            of   the   lawyer-client      privilege     to    public
            officials   and their attorneys.        They view      it
            as a barrier to testimonial        compulsion,     not a
            procedural   rule    for    the conduct     of    public
            affairs.    The view is too narrow.         The    priv-
            ilege against      disclosure     is   essentially       a
            means for achieving      a policy objective       of the
            law.    The objective    is   to enhance the       value
            which society places        upon legal     representa-
            tion by assuring       the client full      disclosure
            to   the   attorney     unfettered     by    fear   that
            others will     be    informed.   . . .      [Citations
            omitted.]      The   privilege     serves     a policy
            assuring    private     consultation.       If    client
            and counsel must       confer in public view          and
            hearing,    both    privilege      and    policy      are
            stripped of value.

Sacramento    Newsnaner  Guild v.    Sacramento   Co. Bd. of    Suver-
visors,  69 Cal. Rptr. 480,       489 (Cal. App. 1968).     See   also
Citv of San Antonio v. Acuilar,       670 S.W.Zd 681 (Tex. App.        -
San Antonio    1984, writ    dism'd n.r.e.)    (stating that    public
meeting    on   cityIs   decision    to   appeal   case  would    have




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Honorable    Carl   A. Parker    - Page    4    (JM-1004)




violated      attorney-client         privilege        as    discussed        in
Sacramento    Wewsnaoer   Guj,U).

      The policy assuring          private consultation        also    applies
to the six members         of the school board         who have been       sued
by an individual        school     trustee.      They have      a   right     to
communicate     privately      with their      attorney    outside     of   the
presence   of the opposing party in the lawsuit.                This policy,
in our opinion,       justifies    an   exception     from  the   usual    rule
that each board        member must have        an opportunity      to    attend
all board meetings.           The purpose of       this rule, as       already
pointed out,       is   to    allow    each member      of    the   board     to
contribute      his    ideas,     arguments,      and   judgment      to    his
associates,     so that the board's decision may be the judgment
of the whole.       When one member's       disagreement      with the board
leads him to invoke the adversary             system of justice        against
the rest of the        board, there is        little likelihood       that     a
composite    judgment      on the     matter    can be     reached     through
discussion.      Thus, no injury is done to the policy entitling
all board     members      to   attend all      board     meetings     if   the
plaintiff    board member is excluded          from the board's        private
consultations     with     its attorney.        Admitting     the   plaintiff
board    member     to    such    attorney-client       conferences       would
moreover   undermine      the common      law and statutory        protection
given    attorney-client        communications        and   compromise       the
efficacy   of the      adversary    system of      justice.     We    conclude
that the     board member       who has      filed the     lawsuit     against
other members       may be     excluded      from an    executive      session
during which the        only agenda       topic is the      defense of       the
lawsuit.     We    caution that       this result      is limited      to    the
specific    facts presented       here.

                                SUMMARY

                   The attorney-client     privilege  permits
              the six members of    a school board who    have
              been sued by another board member to exclude
              the plaintiff  board member from their execu-
              tive session meetings    held to consult   with
              the board's attorney about this lawsuit.




                                               JIM      MATTOX
                                               Attorney  General   of Texas

WARYXEUER
First Assistant      Attorney    General




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Honorable   Carl   A. Parker    - Page    5      (JM-1004)




Lou   MCCREARY
Executive   Assistant     Attorney     General

JUDGE ZOLLIE STE%KLEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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