                        November 14, 1972



Hon. Tom Uanna                      Opinion    NO. ~-1261
Criminal District  Attorney
P. 0. Box 2553                      Re:     Questions relating     to
1149 Pearl Street                           construction   of Art-
Beaumont, Texas   17701                     icle 6252-17, Vernon’sS
                                            Civil Statutes    (the
Dear Mr. Hanna:                             "open meeting8 law")

           Your recent letter  requesting the opinion of this
office  concerning the referenced  matter poses the following
questions:

            "1. May the Commissionerr' Court, without
     violating  Article 6252-17, meet in private to
     discuss legal matters with their attorney7

            "2 . Hay the Commissioners' Court meet and    ’
     have conferences   with staff members of the govern-
     mental bodies for the purpose of internal    ad&n-
     istration   where no matters of public business or
     agency policies   that affect public business,  will
     be acted upon?

          "3.   Is there a limitation  on subjects covered
     with the attorney or rtaff    members as long &s there
     is no action taken?

           "4 . Assuming that quertionr  one and two are
      answered in the affirmative,  then would notice of
      such meetings have to be pornted?’

          Section 2(c) of Article'6252-17   (the "op)n      meeting8
law”), am originally  enacted in 1967 (Acts 60th Ug.,        R.8.
1967; ch. 271, p. 5971, provided   tht
                                                                     .   .   .




Hon. Tom Hanna,   page 2,         (M-1261)



           “Nothing in this Act shall be construed t0
     prevent a governing body from consulting   with ita
     attorney.”

           When, however,Article 6252-17 was amended in 1969
by Senate Bill No. 260 (Acts 61st Leg., R.S. 1969, ch. 227,
p. 6741, Section 2(c), as written in 1367, was deleted in its
entirety.

           Thereaft’er, the Senate paesed.Senate Concurrent
Resolution No. 83 (Acts 61st kg.,    R.S. 1969, p. 3062). whiob
provided as follows:

          WRERRAS, Senate Bill       260 has passed    the
     House and the Senate: and

            “WHEREAS, Senate Bill 260 was amended to
     delete provisions   in the present open meetings
     law stated that ‘Nothing in this Act ehall be
     construed to prevent a governing body from con-
     sulting  with its attorney’;   and

           “WHEREAS, The privileged nature of com-
     munications between attorney and client  are
     recognized by the commonlaw, by Article    38.10,
     Code of Criminal Procedure of Texas,  1965, and
     by the rules of the State Bar of Texas; and

             “WH!SRBAS,It was the intent       of the lcgis-
      lature,   in   repealing    the quoted  portion of Section
      2, Chapter 271, Acts of the 60th Legislature,
      Regular Session,        1967 (Article  6252-17, Vernon’s
      Texas Civil Statutes),        the open meeting0 law, to
      eliminate    from that law surplus matter already
      covered llmewhere in the law! now, therefore,          be it

             ‘%WSOLVRDby the Senate of the State of Texas,
      the House of Representative8  concurring, That the
      legislature  declare that it did not intend, in’-
      pasrinu Senate Bill No. 260. to abridqe or in any


                                 -6179.
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        Hon. Tom nanna.   page 3,        (~-1261)




             way affect  the privileqed   nature of communications
             between at tornev. and client . *  (emphasis added. 1

                    Article 38.10, Texas code of Criminal Procedure,
        referred   to in the preceding Concurrent Resolution, provides
        as follows:

                   “All other persons . . ., whatever may be
             the relationship   between the defendant and wit-
             ness, are competent to testify,     except that an
             attorney at law shall not disclose     a communication
             made to him by his client    durinq the existence of
             that relationshin,   nor disclose   anv other fact
             which came to the knwledqe     of such attorney bv
             reason of such relationship.”      (emphasis added. 1

        See, also, Canon 34 of Article    XIII    of the Rules of   the State
        Bar of Texas.

                     It is also well established    that confidential   communi-
        cations between an attorney and his client       are privileged   in
        civil   cases, though there is no statute expressly      so providing.
        61 Tex.Jur.Zd     669-70, Witnesses,  Sec. 106 (and ‘authorities
        therein cited):     Williams v. Williams,   108 S.W.Zd 297 (Test.Civ.
        App. 1937, no writ);      Cochran v. Cochran, 333 S.W.2d 635
         (Tex.Civ.App.    1960, error ref. n.r.e.).

                     It is apposite to note     that the 62nd Legislature,
        convening in regular     session in    1971, and presumably aware of
        Senate Concurrent Resolution     No.    83, did not see fit to restore,
        by legislative    act, the deleted     language of Section 2(c) to
        Article   6252-17.

                   Although Senate Concurrent Resolution No. 83, quoted
        supra, is a form of expression      by which the Legislature    stated
        its opinion or will     in respect to allowing   a governing body to
        consult in private with its attorney,      and although the ‘Coneti-
        tution of Texas (Article      IV, Section 15) recognizes the right
        of the Legislature     to express itself  by resolutions,    it is
        also manifestly    clear that a statute cannot be amended, repealed,
.       .

    .       .




            Ron. Tom iianna, page 4,             (M-1261)



            or otherwise modified by a resolution.      Humble Oil    6 Ref. Co.
            v. State, 104 S.W.Zd 174 (Tex.Civ.App.     1936, no writ):   Terre11
            Wells Swirmninq Pool v. Rodriguez,   182 S.W.2d 824 (Tex.Civ.App.
            1944, error ref.);  Mosheim v. Rollins,    79 S.W.2d 672 (Tex.Civ.
            App. 1935, error dism; w.0.j.);    Attorney General's   Opinions
            Nos. WW-345 (1958) and M-1234 (1972).

                       Thus, Senate Concurrent Resolution NO. 83 could have
            no amendatory legal effect    whereby the deleted original   word-
            ing of Section 2(c) of Article    6252-17 could be reinstated.
            This is not to say, however, that the deletion of Section
            Z(c),  in and of itself,   has the effect of denying the attorney-
            client privilege   to governing bodies.    This question is one
            of first  impression in this State, and we must turn to deci-
            sions from other jurisdictions     in an effort  to find precedent
            whereby we can correctly    answer your first   question.

                       In Laman v. McCord, 432 S.W.Zd 753 (Ark.Sup.   1968),
            e city council meeting in closed session with the city attor-
            ney to discuss a proceeding to which the city was a party was
            found violative  of the Arkansas open meetings statute which
            provided that “(e)xcept  as otherwise specifically  provided by
            law (emphasis added.)",  all meetings of public entities   were
            to be public meetinga.   In so holding,  the Court stated that

                        "The attorney-client      privilege,    originally     a
                  common-law ifmnunity, now rests upon a section of
                  the Civil Code, adopted in 1869, which provides
                  that  an attorney is incompetent to testify           about
                  his client's    communications without the client's
                  consent. . . . Por us to say that the section just
                  cited, dealing only with a testimonial           disqualifi-
                  cation,   'specifically'     provides that the city coun-
                  cil may consult its attorney in secret would simply
                  amount to striking       the word 'specifically'      from
                  the Freedom of Information Act.”           432 S.W.Zd at
                  756.    (emphaeis added. )




                                              -6181-
Hon. Tom Xanna, page    5,          (M-1261)



           In Times Publishing    Co. v. Wi.lliame, 222 So.2d 470
(Pla.App.  1969), having held that the provisions      of the Florida
open meetings law were applicable      to every assemblage of a
board or commission governed by the law at which any diecus-
eion, deliberation,    decision,  or formal action was to be had,
made, or taken relating     to, or within the scope of, the offi-
cial duties or affairs     of such body, the court answered the
query of whether there were any exceptions       to the mandate of
the law by finding that there was a narrow attorney-client
exception where public consultation      by a public body with its
attorney regarding pending or impending litigation       would force
him to violate   the canons of ethic6 as promulgated by the state
rupreme court.     In Williams,  the court declared that

            I,. . . The clear import of the ‘All meetings'
     provisions    of this statute   is that the public,
     acting through the legislature,      has waived the
     (attorney-client)     privilege  with regard to the
     enumerated public bodies.

             "There is one aspect of the attorney-client
      relationship,   however, in which there are obliga-
      tione which bind the attorney;   and the aspect
      involves his duties in the conduct of pending or
      impending litigation.    . . .

             "The legislature     therefore,    ir without any
      authority to directly       or indirectly     interfere
      with or impair an attorney in the exercise of his
      ethical duties as an attorney and officer            of the
      court.   . . . This is not to say, of course, 'that
      it may not condemn unethical         or criminal condu&,
      but the attorney ham the right and duty to prac-
      tice hie profession      in the manner required by the
      Canons unfettered     by clearly     conflicting    legiela-
      tion which renderm the performance of him ethical
      dutiem impossible.       He cannot be put in the unten-
      able poeition’of     choice between a violation         of a
      statute or a violation       of a specific     Canon insofar
      ar they clearly     conflict    (emphasis by the court).



                                 -6102-
.   .




        Hon. Tom Hanna,     page 6,         (M-1261)



             We can perceive of the possibility   of instances
             when there may be conflict   between the two E
             thev may relate  to Privacy and confidentielitv
             in the handling of wndins or anticiwted       liti-
             gation.*   (emphasis added.)

                   “* l     l


                   *.   .         also, however,
                            . We hold             that . . . the
             act does not permit private  consultation  between
             its agency and the attorney in any other circum-
             stances except those narrowly outlined above.”
             222 So.2d at 475-76.

                     In the case of Sacramento Newspaper Guild v. Sacra-
        mento Co. Bd. of Super., 69 Cal.Rptr.     480 (Cal.App.  1968),
        hwever,     it was held that, notwithstanding  the language of
        the California    open meetings law that “(a)11 meetings of the
        legislative    body of a local agency shall ba open and public;
        the statutory    opportunity  of boards of euparvieore to confer
        privately    with their attorneys  on oocaeione properly squiring
        confidentiality    was not abolished.   The Sacramanto court stated
        that

                    “The Brwn Act (the open meetings law), epac-
             ifically   section 54953, broadly encompasses ‘all
             meetings. ’ Viewed as a statutory        microcosm, its
             demand is forthright,     offering    no internal   inter-
             stice for private    lawyer-client     coneultatione.      It
             is not a microcorm, however, but one element in a
             structure   of constitutional      and statutory   policies
             covering the powers, duties and procedures of local
             agencies of government.       Another part of this lagal
             structure   in the privilege     attaching to confiden-
             tial lawyer-client    communications.

                   ** c *




                                         -6183-
Hon. Tom Hanna.   page 7,            (M-1261)




            "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 privilege         serves a policy asstir-
     ing private      consultation.     If client   and counsel
     must confer in public view and hearing,           both
     privilege     and policy are stripped      of value.   . . .

             "Thus the structure of laws governing local
     public boards includes two separate         substructures,
     one in the Government Code demanding open meet-
      ings, the other in the Evidence Code assuring
     confidential     lawyer-client,conferences.       Each
     'expresses a separate policy objective,        but neither
      refers   expressly  to the other in terms of dominance
      or reconciliation.     . . .'    69 Cal.Rptr.   at 488-89.
       (emphasis added.)

The Sacramento court      continued~as      follaws:

              "The two enactments (Government Code and
      Evidence Code) are capable of conc'urrent opera-
      tion if the lawyer-client         privilege     is not wer-
      blown beyond its true dimensions.             As a barrier
      to testimonial       disclosure,   the privilege       tends
      to suppress relevant facts,          hence is strictly
      construed.      . . As a barrier     against public access
      to public affairs,        it has precisely      the same
      suppressing      effect,   hence here too must be strictly
      construed.       As noted earlier,      the assurance of
      private     legal consultation      is restricted      to com-
      munications       'in confidence.'      Private    clients,
      relatively      free of regulation,      may set relatively
      wide limits on confidentiality.             Public board
      members, sworn to uphold the law, may not arbi-
       trarily   or unnecessarily      inflate    confidentiality
       for the Durpose of deflating          the spread of the


                                   -6184-
Hon.   Tom Hanna,   page 8,         (M-1261)



       public meeting law.      Neither the attorney's
       presence nor the happenstance of some kind of
       lawsuit may serve as the pretext for secret
       consultations    whose revelations   will not injure
       the public interest.      To attempt a generaliza-
       tion embracing the occasions for genuine confi-
       dentiality    would be rash.    The Evidence Code
       lawyer-client    provisions   may operate concurrently
       with the Brown Act,     neither superseding the other
       by implication.

             "Because the Brown Act did not abolish the
       statutory   opportunity   of boards of supervisors
       to confer privately     with their attorney on occa-
       sions properly    requiring   confidentiality, the
       preliminary   injunction    is too broad. . . ."
       69 Cal.Rptr.   at 492.     (emphasis added.)

           A recent    Opinion of the Attorney General of the State
of Washington held     as follows concerning  the applicability  of
the attorney-client     privilege to that State's  open meetings
law:

             IS. . . (W)e would conclude that there remaina
       a modified attorney-client     privilege    for the gov-
       erning body of a public agency in thir state.
       This privilege     cannot be asserted by the body for
       all legal advice which it receives,        particularly
       that which fits within the concept of deliberations
       of the body.     However, those sensitive      areas of
       legal advice, particularly     with reference to pend-
       ing or contemplated litigation,       settlement offers
       and similar    matters,  can, in our opinion, be dis-
       cussed between the governing body and its attorney
       in a closed session."      Wash. Att'y.    Gen. Op. No.
       33 (1972).




                                 -6lSS-
.
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            Hon. Tom nanna.    iwe   9,          (M-1261)



                         See, generally,   38 A.L.R.3d 1070, et %..     "Validity,
            Construction,    and Application   of Statutes Uazng Public Pro-
            ceedings Open to the Public"        (19711, and Note, "Administrative
            La'4---Freedom of Information ---Texas     Open Heetings Act Has
            Potentially    Broad Coverage but Suffers    from Inadequate Enforce-
            ment Provisions",    49 Texas L. Rev. 764 (1971).

                        In view of the foregoing,       we are of the opinion
            that,  although Article      6252-17 no longer contains an express
            exception regarding      closed meetings for attorney-client         con-
            ferences.   the Article     must be read in consonance, and construed
            harmoniously,    with Senate Concurrent Resolution No. 83, Arti-
            cle 38.10, Texas Code of Criminal Procedure,            the Canons and
            Rules of the State Bar of Texas, and the long tradition              of the
            common law regarding      the confidentiality     of the attorney-client
            relationship.     While it is true that Article          38.10 is but a
            testimonial    bar to disclosure     of attorney-client      confidences,
            we believe    its underlying    purpose and policy would be vitiated
            by holding    it totally    inapplicable   to meetings of public bodies.
            We do not believe     the Legislature,     in enacting Article      6252-17,
            as amended, intended that public bodies,          in certain sensitive      ~~
            legal areae, were any leer entitled         to privileged      communica-
            tions with their counrel.than         are private   litigants.

                         We also stress,    however, that the absence of an
            express exception for the attorney-client          privilege  in Arti-
            cle 6252-17 has had the effect of modifying the common law
            and the degree to which's public body may claim the attorney-
            client privilege.       On the other hand, we find that the legis-
            lative    intent of the statute would allow discussions        or con-
            ferences of certain      confidential   preliminary    legal matter8
            incidental     to the development of a public ultimate legal         issue
            to be decided at the "open meeting,*' since such conferences
            would not rine to the dignity of the type "meeting" intended
            to be open to the public.          In our view, a public body governed
            by Article     6252-17 may only validly     claim the attorney-client
            privilege     and ho1d.a closed ression to discuss legal matters
            with its attorney when it derires        legal advice with regard to
            pending or contemplated litigation,         lettlement offera,    and


                                               -6186-
                                                                       .




Ron. Tom Henna,      page   10,        (M-1261)   ~~~-



aimilar matters where an attorney’s        duty to his client,  pursuant
to the Rules and Canons of the State Bar of Texas, would clearly
conflict   with that Article.      It is also our opinion that mere
conferences which discuss such matters that only form the basis
for further     consideration   at an ‘open meeting” as contemplated
by Article     6252-17 do not contravene    the provisions  of that
statute.     However, a public body may not invoke the attorney-
client   privilege    when it only seeks legal advice in regards
to matters     of administrative   procedure or public deliberation
without the purview of the examples set out above.

               Therefore,   your first question,  as qualified      in the
preceding      paragraph,   is answered in the affirmative.

               Your second question is also answered in the affirm-
at ive,     inasmuch as Section 2(d) of Article 6252-17 provides
that:

                 “The provisions   of this Act shall not apply
          to periodic   conferences held among staff     members
          of the governmental body.       Such ltaff meetings
          will be only for the purpose of internal       adminia-
          tration   and no matttra of public business or
          agency policies     that affect  public business will
          be acted upon. *

Leaving out the provisions     of Section 2(d), the meeting of
staff   members of a governmental body is not required to be
open to the public.     Therefore,   to render Section 2(d) mean-
ingful and fo give effect to its intent and purpose. we con-
strue it to mean that as an exception to the requirement
that every meeting    of the governmental body be open to the
public,   such requirement was inapplicable      when the members
of the body met with or among staff       members for the limited
purpose of internal    administration   and in which matters of
public business or board policies      afftcting   public business.
were not to be discussed and acted upon.




                                     -6187-
Ron. Tom Iianna. page   11.        (M-1261)



            As for that portion ‘of your third question dealing
with whether there is a limitation       on subjects covered with
a public body's attorneys,       you are advised that,  in open
meetings of a public body, said body may confer publicly
with its attorney on any legal point germane to its admin-
istrative   procedure or to matters included on the agenda of
its meeting.      In closed sessions with its attorney,    you are
advised that a public body may discuss with its attorney          only
those matters set forth as within the attorney-client         privi-
lege in our answer to your question one, aupra: those matters
are, to wit, legal matters pertaining        to pending or contem-
plated litigation,      settlement offers;   or aimilar matters.
wherein the duty of a public body’s counsel to his client,
pursuant to the Rules and Canons of the State Bar of Texas;
clearly   conflicts   with Article   6252-17.

           In closed conferences with its staff members,
pursuant to Section 2(d) of Article     6252-17, you are advised
that the only subject matter limitation'ia      that the matters
discussed  pertain  solely to internal    administration,    and ,that
they in no way concern public business or agency policies          that
affect  public business.   lketinga   held with staff     members,
subject to Section 2(d) of Article     6252-17, are clearly      not
governed by that Article.     See Attorney   General’s    Opinion No.
W-220 (19681, which held that

            “A meeting or session is one in which the
      members of a governmental body transact official
      business which such agency is chargtd to perform."

Hence, a conference held pursuant to Section 2(d) is         not such
a "meeting or aesaionH that Article 6252-17 requires         be open
to the public.

           Your fourth question inquires whether a public body
is required to post a notice in advance of any closed meeting
with its attorney   or its staff members. Subsection  (a) of
Section 3A of Article   625247 provides that
*.,   .I




      Non. ToahNanna, page     12,        (M-1261)



                 “Written notict of the date, place, and aub-
           ject of each meetinq held by a governmental body           ’
           shall be given before the meeting as prescribed
           by this section.*

                Pursuant to the reasoning of Attorney General’s
      Opinion No. M-220 (1968), quoted aupra, you art advised that
      a public body must post notice of an open or closed meeting
      with its attorney.   when matters of either   official   buaineaa,
      public business,   or agency policies affecting    public business
      will be discussed with him.    If no such matters are to be
      discussed with a public body’s attorney,     no notict of a
      meeting with him need be posted.

                 You are further adviatd that no notice of a public
      body’s closed meeting with staff membtra, pursuant to Sec-
      tion 2(d) of Article   6252-17; need be posted, inasmuch as that
      Section specifically   prohibits the diacuaaion of public buaineaa
      in such meetings.



                  (1) Despite the fact that Article      6252-17,
           Vernon’s Civil      Statutes (the *open meetings law”),
           grants no such specific      exemption, a public body
           is entitled    to hold closed meetings with its
           attorney when such body attka the attorney’s
           advice in regards to pending or contemplated
           litigation,     settlement offers,   and similar matters
           where the duty of a public body's counsel to his
           client,    pursuant to tht Rules and Canons of the
           Btate Bar of Ttxaa, clearly       conflicts with that
           Article.

                  (2)   The privilege
                                    of confidtntial   communica-
            tions bttween 8ttorney  and client,   as codified in
            Article  38.10, Texas Codt of Criminal Proctdure,
            and enunciated in the conmaonlaw and the Rulta and
            Canons of the State 0ar of Texas, is applicable    to



                                        -61899
Hon. Tom Hanna, page 13,         (M-1261)



     public bodies governed by Article    6252-17, to the
     extent set forth in paragraph   (l),  aupra.   A public
     body may not invoke the privilege    in regards to any
     other matters of public deliberation    or parliamentary
     procedure.

           (3) A resolution   passed by the Legislature
     cannot amend, repeal,    or otherwise modify an Act
     earlier  passed by it, though the intent expressed
     in such resolution    may validly  be considered when
     endeavoring to harmonize one legislative      act with
     another.

           (4) Pursuant to Section 2(d) of Article   6252-17,
     a public body may have conferences with its staff
     members for the purpose of internal administration
     where no matters of official   or public business,   or
     agency policies   that affect public business,  will be
     acted upon.

            (5) In open meetings,    A pubiic body may confer
     publicly   with its attorney on any legal point germane
     to its administrative     procedure or to matters included
     on its agenda.     In closed meetings with its attorney,
     a public body may discuss only those items enumerated
     in paragraph (1). aupra.

            (6) In closed conferences with its staff members,
      a public body may discuss only matters of internal
      administration,   and may not discuss matters of offi-
      cial or public business,   or agency policies that
      affect public buaineaa.

             (7) A public body must post notice, pursuant to
      Subsection   (a) of Section 3A of Article    6252-17, of
      an open or closed weting      with its attorney,  if mat-
      ters of official    or public business, or agency policies
      affecting.  public buaineaa,   art to be discussed with him.



                               -6lgO-
. : . : .
   .. .   ..




       Non. Tom Hanna, page 14,            (M-1261)



                    (8) No notice of a public body'8 meeting with
               ita etaff members, for internal'adminintration
               purpoeee putwant to Section 2(d) of .Article
               6252-17, need be poeted.




        Prepared by Austin C. Bray, Jr.
        Aeeietant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor, Chairman
        W. E. All$n,~Co-Chiinnan

        Bill Planary
        ~JimSwearin$en
        Lynn Taylor
        Roland Carbon

         SAJ4UELD. WCDANIEL
         Staff Legal Aerietant

         ALPRED WAIXER
         Executive Aeri8tant

         NOIA WHITE
         Piret Asrirtant



                            .



                                       .


                                       -6lgl-.,
