                                    The Attorney         General of Texas
                                                     December 30, 1983
   JIM MATTOX
   Attorney General



   Supreme Court Building         Honorable Stan Schlueter                Opinion No. JM-122
   P. 0. Box 12546                Chairman
   Austin. TX. 7671% 2546         Cormaitteeon Ways & Means               lb?: Effectiveness of House
   512/47kn-2501
   Telex 910/674.1367
                                  Texas House of Representatives          committee rules relating to
   Telecopier 512/475-0266        P. 0. Box 2910                          confidentiality of information
                                  Austin, Texas   78769                   considered by subcommittee
   714 Jackson, Suite 700
                                  Dear   Representative Schlueter:
   Dallas, TX. 75202.4506
   2141742.6944
                                       You have requested our opinion regarding the validity of certain
                                  provisions of House Resolution No. 1~14,adopted by the House on April
   4624 Alberta Ave., Suite 160   27. 1983. Certain provisions of those rules attempt to contravene
   El Paso, TX. 799052793
                                  portions of the Open Records Act, article 6252-17a. V.T.C.S., so as to
   915/5333464
                                  except from disclosure information not presently excepted by that
                                  statute. You first ask:
pKu      Texas, Sub 700
   rlouston, TX. 77002.3111                     1. Are the applicable provisions of. . . House
   7131223-5666                              Resolution No. 114 effective despite the Open
                                             Records Act. . . because of the provision in
   606 Broadway. Suite 312
                                             article III, section 11 of the Texas Constitution
   Lubbock, TX. 79401.3479                   that each house determines the rules of its own
   6061747-5236                              proceedings?

                                       Article III, section 11 of the Texas Constitution provides, in
   4309 N. Tenth, Suite B
   McAllen. TX. 76501-1665        pertinent part:
   512/662-4547
                                             Each house may determine the rules of its own
                                             proceedings. . .
   200 Main Plaza. Suite 400
   San Antonio, TX. 76205.2797
   5121225-4191                   In our opinion, the term "rules of its own proceedings" must be
                                  construed narrowly to apply only to matters of procedure. Legislation
                                  governing the dissemination of information in the custody of members
   An Equal Opportunity/          of the House of Representatives, or by committees or subcommittees
   Affirmative Action Employer
                                  thereof may not properly be so characterized. In Pickus v. United
                                  States Board of Parole, 507 F.2d 1107 (D.C. Cir. 1974), a federal
                                  appellate court said that the term "rules of agency organization,
                                  practice or procedure" means technical regulations of the form of
                                  agency action and proceedings and does not include action which goes
                                  beyond formality and substantially affects substantive rights. -Id. at
                                  1108.




                                                               p. 515
Honorable Stan Schlueter - Page 2   (JM-122)




     Furthermore, article 6252-17a, enacted in 1973 by the Sixty-third
Legislature, specifically includes the legislature within the scope of
the act. Section 2(A). We do not believe that one house of the
legislature, under the guise of its rule-making authority, may remove
itself from the coverage of a specific substantive law that has been
enacted by both houses of the legislature and signed by the governor,
nursuant to article III. section 1 of the Texas Constitution. which
;ests the "legislative power of this State. . . in a Senate and House
of Representatives . . . ." In Heiskell v. City of Baltimore, 4A. 116
(Md. 1886), the court of appeals of Maryland said:

          When the constitution of the United States gave to
          each house of congress, 2nd the constitution of
          the state of Maryland the right to each house of
          the general assembly, to determine its rules of
          proceeding, it was never held for a moment that
          such a right included the power to change any
          existing statute or common law.

4A.. at 118-19.   Accord, Heyker v. Herbst, 50 S.W. 859, 860 (Ky.
1899).

     In Senate Select Committee on Presidential Campaign Activities v.
Nixon, 366 F.Supp. 51 (D.C. 1923). the federal court held that a
statute enacted by both houses of Congress controls over a resolution
adopted by one house. Id. at 56, n. 8. Doyle v. Hofstader, 177 N.E.
489, 494 (N.Y. 1931). theNew York court said that a resolution of one
House of the Legislature is invalid and of no effect if it is in
conflict with general law. To the extent that House Resolution No.
114 is in conflict with article 6252-17a, we believe it is invalid.
We emphasize that, if the legislature wishes to adopt a resolution
similar to House Resolution No. 114, the proper procedure for doing so
is by amending the Open Records Act.

     Your second question is:

             2. If the Open Records Act does govern the
          subcommittee proceedings, is a rule of the House
          of Representatives considered a 'law' for the
          purposes of section 3(a)(l) of the act so that
          information deemed confidential under. . . House
          Resolution No. 114 would be excepted under section
          3(a)(l)?

As we have noted, for purposes of the Open Records Act, the House of
Representatives is a "public body" subject to that statute's
provisions. In Industrial Foundation of the South v. Texas Industrial
Accident Board, 540 S.W.2d 668 (Tex. 1976), the Supreme Court of Texas
said that, while a rule enacted by a public body may have the force




                                p. 516
Honorable Stan Schlueter - Page 3       (JM-122)




and effect of statute in other contexts, a governmental agency is not
permitted to bring its records within the ambit of the exception of
section 3(a)(l) merely by the promulgation of a rule. The court
declared:

         To imply such authority merely from general
         rule-making powers would be to allow the agency to
         circumvent the very purpose of the Open Records
         Act.

540 S.W.2d, at 677.   See also Open Records Decision Nos. 173, 152
(1977).

    Your final question is:

            3. Would 'subcommittee sensitive information
         or material' as defined by rule 9, section l(a) of
         House Resolution No. 114 be covered by any other
         exception under section 3(a) of the Open Records
         Act?

Section l(a) of rule 8 of the proposed rules defined "subcommittee
sensitive information or material" as:

         information or material in the possession of the
         subcommittee that pertains to illegal or improper
         conduct by a present or former member, officer, or
         employee of     the house;    to allegations or
         accusations of such conduct; to any resulting
         preliminary    inquiry,    initial   review,    or
         investigation by    the subconrmittee into     the
         allegations or conduct; or to the investigative
         techniques and procedures of the subcommittee.

Such information might    possibly be withheld under a number of
exceptions in section 3(a) of the Open Records Act: under section
3(a)(l). as information within the scope of common law privacy or the
informer's privilege; under section 3(a)(2), as information within the
scope of employee privacy; under section 3(a)(3), as information
contained in interagency or intraagency memoranda or documents.
Neither do these examples necessarily exhaust the list of potential
exceptions. We can determine the applicabi~lityof specific exceptions
only when presented with particular documents for which exceptions are
claimed.

                              SUMMARY

            Article   III,  section   11   of  the   Texas
         Constitution, authorizing each house to determine




                                    p. 517
Honorable Stan Schlueter - Page 4      (JM-122)




         the rules of its own proceedings, applies to
         matters of procedure. House Resolution No. 114 is
         invalid to the extent it conflicts with article
         6252-17a, V.T.C.S. However, certain "committee
         sensitive information" may possibly be withheld
         under a number of exceptions in section 3(a) of
         the Open Records Act.




                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairnan
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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