    OFFICE OF THE ATTORNE”   GENERAL.   STATE OF TEXAS

    JOHN     CORNYN




                                                   June 22,200O



The Honorable Ron Lewis                                   Opinion No. JC-0233
Chair, Energy Resources Committee
Texas House of Representatives                            Re: Whether a governmental body may meet in
P.O. Box 2910                                             executive session to discuss a proposed contract
Austin, Texas 78768.2910                                  (RQ-016%JC)

Dear Representative     Lewis:

        You ask whether a govemmental body may meet with its attorney in executive session to
discuss a contract that it proposes to enter. Section 551.071 of the Government Code permits a
governmental body to consult with its attorney in executive session to receive advice on the legal
issues raised by a proposed contract, but it does not authorize discussion of other matters related to
the contract. See TEX. GOV’T CODE ANN. 5 55 1.07 1 (Vernon 1994).

        Your question relates to an executive session held by the Commissioners of the Port of
Beaumont Navigation District of Jefferson County [“the Port”], a governmental body established
pursuant to article XVI, section 59 of the Texas Constitution and governed by a board of Port
Commissioners.     See Act ofMay 4, 1949, 51st Leg., R.S., ch. 147, $5 1,6, 1949 Tex. Gen. Laws
270,272,275.     As a district organized under article XVI, section 59 of the Texas Constitution, it is
subject to the provisions ofWater Code, chapter 60. See TEX. WATERCODE ANN. 5 60.001 (Vernon
1988); see also Tex. Att’y Gen. LO-97-03 1.’ In 1999, the Port requested proposals from stevedoring
companies for a contract for loading and unloading services. See Brief from Guy N. Goodson,
Attorney at Law, Bemsen, Goodson, Mann & Rothman, on behalf of the Port of Beaumont
Navigation District of Jefferson County, to Honorable John Comyn, Attorney General of Texas
(Mar. 1, 2000) [hereinafter “Port Brief’]. The Port of Beaumont Commission gave notice of a
meeting to be held on August 23, 1999, to consider and act upon various items, including the
following:

                  9. Executive session in accordance with Texas Government Code,
                     Chapter 551, Subchapter D, (551.071), which provides that the



         ‘This office concluded in Letter Opinion 97-031 that the Port of Beaumont Navigation District must
competitively bid a contract for the loading and unloading of cargo. See Tex. Att’y Gen. LO-97-031, at 3. The Port
does not concur with the letter opinion but arguesthat the loading and unloading servicesmust comply with competitive
bidding requirements OIproposal procedures, and therefore it sought proposals pursuant to section 60.405 of the Water
Code instead of competitive bids under section 60.404. See Port Brief at 4. Whether the contract was entered under
the appropriate provisions, 01, if not, the consequences of such action is not germane to your question, and we do not
address these issues.
The Honorable Ron Lewis - Page 2                 (X-0233)




                   public may be excluded from the portion of a meeting to consult
                   with attorney on Loading and Unloading Contract.

               10. Consider bids received and award contract for port’s Loading and
                   Unloading Contract.

See Port Brief enclosures (“Notice of Meeting” dated Aug. 17, 1999).

        During the August 23 meeting, the Port Commission adjourned to executive session to
evaluate four proposals for loading and unloading services. See Port Brief at 1; see also Letter from
Honorable Ron Lewis, Texas State Representative, to Honorable John Comyn, Texas Attorney
General, at 1 (Dec. 13,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. After
the closed session ended, the commissioners returned to open session and unanimously approved
one of the proposals for the contract, without discussion in the open session. See Request Letter at
 1. You ask whether the Open Meetings Act permits the Port Commission to meet with its attorney
in executive session to discuss proposals for a contract. See id.

        The Port Commission and an interested party give different descriptions of the discussion
during the executive session. See Port Brief at 7-8; see also Request Letter enclosure (Letter from
Joseph R. Larsen, Attorney at Law, on behalf of the Beaumont Enterprise, to Mr. Tom Rugg, First
Assistant District Attorney of Jefferson County (Sept. 27, 1999)). We cannot determine in an
attorney general opinion what was discussed during a closed meeting, but we can discuss the legal
issues raised by this matter. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0152 (1999) at 12-13, JC-0032
(1999) at 4; DM-95 (1992) at 1.

        The Open Meetings Act (the “Act”), chapter 551 of the Government Code, provides that
meetings of governmental bodies must be open to the public, except for expressly authorized
executive sessions. See TEX. GOV’T CODE ANN. § 55 1.002 (Vernon 1994). Among the provisions
expressly authorizing an executive session is section 551.071 of the Government Code, which
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
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                Professional Conduct of the State Bar of Texas clearly conflicts with
                this chapter.

TEX. GOV’TCODEANN. § 551.071 (Vernon 1994).

         Section 55 1.07 1 allows a governmental body to meet in executive session with its attorney
when it seeks the attorney’s advice with respect to pending or contemplated litigation or settlement
offers. See Lone Star Greyhound Pork, Inc. v. Texas Racing Comm ‘n, 863 S.W.2d 742, 748 (Tex.
App.-Austin     1993, writ denied). In addition, subsection 551.071(2) of the Government Code
permits a governmental body to consult in executive session with its attorney “on a matter in which
the duty ofthe attorney to the governmental body under the Texas Disciplinary Rules of Professional
Conduct of the State Bar of Texas clearly conf7icfs with this chapter.” TEX. GOV’T CODE ANN.
5 55 1.071(2) (Vernon 1994) (emphasis added). This provision incorporates the attorney-client
privilege, an attorney’s duty to preserve the confidences of a client. See TEX. DISCIPLINARYR.
PROF’L CONDUCT 1.05, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G. app. A (Vernon
 1998) (TEx. STATEBAR R. art. X, 5 9); see also Tex. Att’y Gen. Op. Nos. m-238 (1984); JM-100
(1983); M-1261 (1972).

        In Attorney General Opinion JM-100 (1983), this office construed the predecessor of
Government Code section 551.071, at that time codified as section 2(e) of article 6252-17 of the
Revised Civil Statutes. See Act ofMay 4,1993,73rd Leg., R.S., ch. 268,§§ 1,46, 1993 Tex. Gen.
Laws 583,589,986 (repealing numerous statutes and adopting titles 5,6, and 10 ofthe Government
Code). Attorney General Opinion JM-100 concluded that the predecessor of Government Code
section 55 1.071 incorporated the attorney-client privilege, stating as follows:

                        The crux of these requirements for purposes of section 2(e)
                [(now Government Code section 55 1.07 l)] is that the communication
                must be related to an opinion on law or legal services or assistance in
                some legal proceeding.     Thus, a governmental body may hold an
                executive session to seek or receive the advice of its attorney only
                with regard to matters in which it seeks the attorney’s u     advice or
                with regard to matters which relate to a specific pending or
                contemplated legal proceeding. If the discussion does not relate to a
                specific legal proceeding, the closed door discussion with the attorney
                must be limited to legal matters.      General discussion of policy,
                unrelated to legal matters, is not permitted under the language of
                section 2(e) merely because an attorney is present.

Tex. Att’y Gen. Op. No. JM-100 (1983) at 2 (emphasis added). According to this opinion, a
governmental body may consult with its attorney in executive session to discuss the legal issues
raised in connection with awarding a contract, but it may not discuss the merits of a proposed
contract, financial considerations, or other nonlegal matters in an executive session held under
section 551.071 of the Government Code. See Finlan Y. City ofDallas, 888 F. Supp. 779,782 n. 9
(N.D. Tex. 1995) (citing Tex. Att’y Gen. Op. No. JM-100 (1983)).
The Honorable   Ron Lewis - Page 4                (JC-0233)




         The Port argues that rules 1.03, 1.05, and 2.01 of the Disciplinary Rules of Professional
Conduct together provide “clear authority for the provision ofthe legal right ofan attorney to private
consultation with his client [(here the entire Port Commission)] in a negotiated contract.” Port Brief
at 8. It continues that “to do otherwise would force an attorney to conflict with Rule 2.02 by
attempting to negotiate an arm’s length contract on behalfof his client by disclosing information to
third parties.” Id. Thus, the Port suggests that section 55 1.07 l(2) permits a governmental body to
discuss nonlegal matters with its attorney in executive session, if the attorney is negotiating a
contract on the body’s behalf. We disagree with this expansive reading of section 55 1.071(2).

         Rule 1.03 requires a lawyer to keep a client reasonably informed about the status of a matter
and to “promptly comply with reasonable requests for information.” TEX. DISCIPLINARYR. PROF’L
CONDUCT 1.03, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G. app. A (Vernon 1998) (TEx.
STATE BAR R. art. X, 5 9). Rule 1.05, as already noted, sets out an attorney’s duty to preserve the
confidences of a client. See id. 1.05. Rule 2.01 requires a lawyer to “exercise independent
professional judgment and render candid advice” in advising a client. Id. 2.01. Rule 2.02 provides
as follows:

                         A lawyer shall not undertake an evaluation of a matter
                affecting a client for the use of someone other than the client unless:

                                (4     the lawyer reasonably believes that
                        making the evaluation is compatible with other
                        aspects of the lawyer’s relationship with the client;
                        and

                                (b)     the client consents after consultation.



Id. 2.02. The Port brief also cites the following comment to rule 2.02:

                         Lawyers for the government may be called upon to serve as
                advisors or as evaluators. A lawyer for the government serves as
                advisor when the lawyer is an advocate for a government agency or
                is a counselor for a government agency. When serving as an advisor
                the rule of confidentiality of information applies.

Id. 2.02 cmt. 2; see also Port Brief at 8.

         The Port does not explain how Rules 1.03, 1.05, 2.01, and 2.02 require the attorney for a
governmental body to advise it in confidence about the financial advantages of a proposed contract,
a strategy for negotiating it, or any issue other than the legal questions raised by the contract. Nor
are we are aware of any basis for this conclusion.            Furthermore, we reject the expansive
interpretation of the exception urged by the Port. The exceptions in the Act are narrowly drawn.
The Honorable Ron Lewis - Page 5                  (JC-0233)




See Acker v. Texas Water Comm’n, 790 S.W.2d 299,300 (Tex. 1990); Cox Enterprises v. Board of
Trustees, 706 S.W.2d 956,958 (Tex. 1986). Attorney General Opinion JM-100 has concluded that
the executive session discussion authorized by section 55 1.071(2) is limited to strictly legal matters,
and the courts of other states have reached similar conclusions in construing the “attorney client”
provision oftheir public meetings statute. See Tex. Att’y Gen. Op. No. JM-100 (1983) at 2; see also
City of Prescott v. Town of Chino Valley, 803 P.2d 891, 896 (Ariz. 1990) (“legal advice”
encompasses advice given the public body “regarding the legal ramifications of the facts and
information given to him and the legality of the proposed legislation,” but does not include
discussion ofmerits ofenacting the legislation); Fisher v. Maricopa County Stadium Dist., 912 P.2d
 1345, 1353 (Ariz. App. 1995) (executive session to receive “legal advice” from attorney may not
include discussion ofwhat action to take based on attorney’s advice); Underwood v. City ofPresque
Isle, 715 A.2d 148 (Me. 1998) (zoning board could hold executive session with attorney to discuss
its legal rights and duties as to imposing conditions ofpermit, but could not deliberate on the merits
of the application); People v. Whitney, 578 N.W.2d 329, 337 (Mich. App. 1998) (discussion of
written legal opinion at closed meeting is limited to the meaning of strictly legal advice presented
in opinion and does not authorize discussion of matters of public policy).

         It is the governmental body that must comply with the Open Meetings Act in carrying out
its responsibility to decide whether to enter into a particular contract. If it wishes to involve its
attorneys, employees, or other agents in its deliberations leading toward this decision, it must do so
consistently with the Act.
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                                       SUMMARY

                        Section 55 1.071(2) of the Government Code incorporates the
               attorney-client privilege. Under section 55 1.071(2), a governmental
               body may consult with its attorney in executive session to receive
               advice on the legal issues raised by a proposed contract, but under
               this provision the governmental body may not discuss the merits of
               a proposed contract, financial considerations,     or other nonlegal
               matters related to the contract merely because its attorney is present,




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Assistant Attorney General - Opinion Committee
Susan L. Garrison
