                                             The Attorney          General of Texas
                                                             December 22, 1981
MARK WHITE
Attorney General



Supreme      Court Building
                                           Honorable Jim Mapel                    Opinion No. m-417
P. 0. Box 12546                            Criminal District Attorney
Austin.    TX. 76711                       Brazoria County Courthouse             Re:    Application  of   open
5121475-2501                               Angleton, Texas 77515                  Meetings Law to joint execu-
Telex    9101674-1367                                                             tive session of two political
Telecopier     51214750266
                                                                                  subdivisions

1607 Main St., Suite          1400         Dear Mr. Mapel:
Dallas.  TX. 75201
21417428944
                                                You have requested our opinion regarding the applicability of the
                                           Open Meetings Act, article 6252-17, V.T.C.S., to a joint executive
4624 Alberta       Ave.. Suite       160   session of two political subdivisions. You state that in May and June
El Paso, TX.       79905                   1981, the governing bodies of the Brazes River Harbor Navigation
9151533-3464                               District and the city of Quintana met jointly to discuss the formation
                                           of an industrial district, and, in connection therewith, the
1220 Dallas Ave., Suite             202
                                           annexation and deannexation of certain land. The respective bodies
Houston,     TX. 77002                     each posted notice of their individual meetings and then retired to a
713/650-0666                               joint executive session. A quorum of each body was present at the
                                           joint meeting. You ask:
606 Broadway,         Suite   312
Lubbock,     TX.    79401
                                                         1. Can the governing bodies of two political
6061747-5236                                        subdivisions discuss     the   formation   of  an
                                                    industrial district which would involve the
                                                    deannexation of lands owned by one of the
4309 N. Tenth, Suite          B                     subdivisions in a joint executive session?
McAllen,     TX. 76501
5121062-4547
                                                         2.  Can the governing bodies of two political
                                                    subdivisions discuss the annexation by         one
200 Main Plaza, Suite 400                           subdivision of land owned by or under the control
San Antonio,  TX. 76205                             of the other?
5121225.4191

                                                         3.  Does the annexation or deannexation of
An Equal      Opportunity/                          land amount to a 'land acquisition' and therefore
Affirmative     Action     Employer                 qualify as an exemption under the Tqxas Open
                                                    Meetings Law?

                                                From the facts you have described, it would 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 statute makes every "regular, special, or called
                                           meeting or session" open to the public "except as otherwise provided




                                                                p. 1422
Honorable Jim Mapel - Page 2   (MW-417)



in this Act or specifically permitted in the Constitution." The only
exception listed in section 2 which might be applicable to the
situation you have described is section 2(f), which provides:

         The public may be excluded from that portion of a
         meeting during which a discussion is had with
         respect to the purchase, exchange, lease, or value
         of real property, negotiated contracts for
         prospective gifts or donations to the state or the
         governmental body, when such discussion would have
         a detrimental effect on the negotiating position
         of the governmental body as between such body and
         a third person, 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
reasonably be 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 indicated how 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 Quintana were not authorized to meet jointly in executive
session, under the circumstances you 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    between   a
          gover~~~ntalPr~~ad:eand 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 Professional Responsibility of the State Bar of
          Texas, clearly conflicts with this Act.

This provision gives public bodies,a right to privileged communication
on litigation with their counsel and it also recognizes that the Code
of Professional Responsibility would under some circumstances prohibit
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. 1423
Honorable Jim Mapel - Page 3    &W-417)



party from whom it would normally conceal its intentions and strategy.
We do not believe section 2(e) applies to this discussion. It may not
.      . .
be invoked on these facts to exclude the public 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
          industrial district, and, in connection therewith,
          the annexation and deannexation of certain land.

                                         w+?xg



                                          MARK      WHITE
                                          Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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