    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

    JOHN CORNYN




                                                   May 24,2002



The Honorable Jack Skeen, Jr.                               Opinion No. JC-0506
Smith County Criminal District Attorney
Smith County Courthouse                                    Re: Whether the Smith County Commissioners
100 North Broadway                                         Court violates the Open Meetings Act, chapter
Tyler, Texas 75702                                         551 of the Government Code, if it permits the
                                                           Smith County Auditor to attend a meeting closed
                                                           to consult with the county’s attorney regarding
                                                           pending litigation or settlement options, and
                                                           related questions (RQ-0470-JC)


Dear Mr. Skeen:

          On behalf of the Smith County Commissioners Court, you ask whether including the county
auditor in a meeting that the commissioners court has closed to consult with its attorney, under
section 55 1.071 of the Government Code, to discuss “pending or contemplated litigation or
settlement offers” either violates the Open Meetings Act (the Act), chapter 55 1 of the Government
Code, or “negate[s] the attorney-client privilege.“’ See TEX. GOV’TCODEANN. ch. 55 1 (Vernon 1994
& Supp. 2002); TEX. R. EVID. 503. Although a governmental body generally is required to meet in
public, see TEX. GOV’T CODEANN. 8 55 1.002 (Vernon 1994), it may consult with its attorney about
“litigation and settlement offers or to seek or receive the attorney’s advice with regard to legal
matters” in a closed meeting.       Tex. Att’y Gen. LO-97-017, at 9; see TEX. GOV’T CODE ANN.
8 55 1.07 1 (Vernon 1994). This office concluded in 1984 that a governmental body may include in
a meeting closed to consult with its attorney an officer or employee who is the governmental body’s
representative or agent “with respect to the particular litigation in question[,] whose presence is
necessary to” effectively communicate with the attorney, and who is not an adversary of the
governmental body or whose presence would not “prevent privileged communication from taking
place.” Tex. Att’y Gen. Op. No. JM-238 (1984) at 5. But a court may find that the presence of a
person who is neither a member of the commissioners court nor the court’s attorney indicates that
communications occurring in the person’s presence are not within the attorney-client privilege. See
TEX. R. EVID. 503; Cameron County v. Hinojosa, 760 S.W.2d 742,746 (Tex. App.-Corpus Christi
1988, no writ) (fact that correspondence had been disclosed to county auditor and other county
offices “is some evidence either that the communications were never intended to be confidential, or
that the privilege was waived by disclosure to third parties”).



           ‘Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, to Honorable John Comyn,
Attorney    General of Texas (Nov. 28,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Jack Skeen, Jr. - Page 2           (JC-0506)




        We conclude, consistently with our 1984 opinion, that the commissioners court may include
the county auditor in a closed discussion of litigation or settlement offers if it determines that the
auditor is necessary to the discussion, that the auditor’s interests are not adverse to the county’s, and
that the auditor’s presence is consistent with the attorney-client privilege. If, however, a court           .
subsequently finds that, because of the auditor’s presence, the communications are not privileged,
then the commissioners court may also be found to have violated section 55 1.07 1 of the Government
Code. To the extent Attorney General Opinion JM-238 did not fully discuss the rule of evidence
providing for the attorney-client privilege, we modify it. See Tex. Att’y Gen. Op. No. JM-238
(1984) at 2.

         You also ask whether the commissioners court may include the county auditor or other
persons in meetings closed “to deliberate on real property or personnel” under sections 55 1.072 and
55 1.074 of the Government Code. Request Letter, supra note 1, at 2. In general, this office has
stated that a governmental body may include a person whose interests are not adverse to the
governmental    body’s interests and “whose participation is necessary to the matter under
consideration.” Tex. Att’y Gen. Op. No. JC-0375 (2001) at 2 (citation omitted). Consequently, we
conclude that a commissioners court may include the county auditor in a meeting closed under
section 551.072 or 551.074 if the court deter-i-nines that the county’s auditor’s interests are not
adverse to the court’s interests and that the auditor’s participation is necessary to the matter that will
be considered. Of course, if a discussion convened under an exception other than section 55 1.071
also involves an attorney-client communication,         the commissioners may wish to evaluate the
auditor’s presence in light of the attorney-client privilege.

        Finally, you ask whether, “[i]f the County Auditor is present        at an open session of the
Commissioners Court when an executive session is announced and the           Commissioners know that
the Auditor is present at the request of the County Judge and will remain    for the executive session,”
the commissioners court has “in fact” included the auditor in the closed     meeting “by not excluding
her.” Request Letter, supra note 1, at 2. We conclude that it has.

         The Act generally requires a governmental body to open every meeting to the public,
although the Act lists several narrowly drawn exceptions to this rule. See Tex. Att’y Gen. Op. No.
JC-0233 (2000) at 4; TEX. GOV’T CODE ANN. 8 551.002 (Vernon 1994). YOU are particularly
concerned with three of these exceptions: sections 55 1.071, 55 1.072, and 55 1.074. See Request
Letter, supra note 1, at 1; TEX. GOV’T CODEANN. @j 55 1.071,55 1.072,55 1.074. Section 55 1.071
prohibits a governmental body from privately consulting with its attorney except in certain
circumstances:

                     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:
The Honorable    Jack Skeen, Jr. - Page 3      (JC-0506)




                            (A)   pending or contemplated   litigation; or

                            09    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
                Professional Conduct of the State Bar of Texas clearly conflicts with
                this chapter.

TEX. GOV’T CODE ANN. 4 55 1.071 (Vernon 1994). Section 55 1.072 permits a governmental body
to “deliberate the purchase, exchange, lease, or value of real property” in a closed meeting if public
deliberation would harm the governmental body’s position “in negotiations with a third person.”
Id. 9 551.072. Section 551.074 provides that a governmental body generally is not required “to
conduct an open meeting” to deliberate a public officer’s or employee’s “appointment, employment,
evaluation, reassignment, duties, discipline, or dismissal” or “to hear a complaint or charge against
an officer or employee.” Id. tj 55 1.074.

         This office has construed the Act to provide a governmental body with limited discretion to
determine which, if any, nonmembers may attend. See Tex. Att’y Gen. Op. No. JC-0375 (2001) at
2. The Act does not specify whether a person other than a member may attend a closed meeting. See
id. at 1. Under the Act, only a member of a governmental body has a right to attend a closed meeting
of the governmental body. See also id. at 2; Tex. Att’y Gen. Op. Nos. JM-238 (1984) at 2, JM-6
(1983) at l-2.

         In an early opinion on this issue, this office concluded that a governmental body may admit
to a meeting closed to consult with its attorney “regarding pending or contemplated litigation” a
third person who is an agent or representative of the governmental body, but only if the
person’s “presence is necessary to effective communication with the attorney.” Tex. Att’y Gen. Op.
No, JM-238 (1984) at 5. At that time, the substance of what is now section 55 1.071 was codified
as section 2(e), article 6252-17 of the Revised Civil Statutes. See Tex. Att’y Gen. Op. No. JM-238
(1984) at 2 (quoting TEX. REV. CIV. STAT. ANN. art. 6252-17, 0 2(e)); TEX. REV. CIV. STAT. ANN.
art. 625247, fj 2(e), repealed by Act of May 4, 1993,73d Leg., R.S., ch. 268, 9 46(l), 1993 Tex.
Gen. Laws 583,986. At that time, the substance ofwhat is now found in subsections (1) and (2) of
section 551.071 was not subdivided. See Tex. Att’y Gen. Op. No. JM-238 (1984) at 2 (quoting
article 6252-l 7, section 2(e) of Revised Civil Statutes). After examining the genesis of section 2(e),
the opinion suggested that the attorney-client privilege is part and parcel of the entire exception:
“This provision enables” a governmental body and its attorney to protect “the attorney-client
privilege for deliberations it covers. The purpose of the privilege is to promote the unrestrained
communication between attorney and client, without fear that the attorney will disclose confidential
communications.”      Id. at 4. An attorney-client communication is not privileged “in the ‘presence
of a third person who is not the agent of either client or attorney.“’ Id. (quoting 8 WIGMORE,
EVIDENCE 8 23 11 (McNaughton rev. 1961)). Thus, a governmental body may not include an
adversary or a person “whose presence would . . . prevent privileged connnunication from taking
The Honorable   Jack Skeen, Jr. - Page 4       (JC-0506)




place.” Tex. Att’y Gen. Op. No. JM-238 (1984) at 5; accord Tex. Att’y Gen. LO-97-01 7, at 9 (citing
Attorney General Opinion JM-238); cf: Tex. Att’y Gen. LO-88-92, at 2 (stating that governmental
body “may have to restrict the persons who attend” an executive session, particularly one “to obtain
legal advice”).

         Recently, Attorney General Opinion JC-0375 extended Attorney General Opinion JM-238’s
analysis to other exceptions. See Tex. Att’y Gen. Op. No. JC-0375 (2001) at 2. There, this office
had the opportunity to address “whether the . . . Act permits a governmental body to routinely
include an officer or employee of the governmental body, . . . , in its executive sessions.” Id. The
opinion concludes that, consistently with previous opinions considering             the inclusion of
nonmembers under section 55 1.07 1, “a governmental body has discretion” to decide who may attend
its closed meetings.    Id. “While those whose attendance is contrary to the legal basis for the
executive session may not be included, . . . , a governmental body may include officers and
employees of the governmental body whose participation is necessary to the matter under
consideration.” Id.

         We consider first the auditor’s presence at a meeting closed for attorney-client communica-
tions. In our opinion, either subsection (1) or (2) of section 55 1.071 applies only if a governmental
body conducts privileged attorney-client communications.        As Attorney General Opinion JM-238
states, the exception permits a governmental body to conduct privileged communications with its
attorney. See Tex. Att’y Gen. Op. No. JM-238 (1984) at 4. Since that opinion was issued, the
substance of subsections (1) and (2) was separated when the statute was codified in 1993. See Act
of May 4, 1993, 73d Leg., R.S., ch. 268, 0 1, sec. 55 1.071, 1993 Tex. Gen. Laws 583, 589.
Nevertheless, the codification was intended to be nonsubstantive, see id. 8 47’1993 Tex. Gen. Laws
at 986, and we know of no reason why the separation of subsections (1) and (2) should be considered
substantive.   See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 286-87 (Tex. 1999)
(suggesting that codification should be construed consistently with statutory predecessor unless
codification’s plain language cannot be reconciled with prior law). But see Tex. Att’y Gen. Op. No.
JC-0233 (2000) at 3 (distinguishing between subsections (1) and (2)’ and observing that subsection
(2) “incorporates the attorney-client privilege”).

        Conversely, neither subsection (a) nor subsection (b) of 55 1.071 applies if the governmental
body’s communications     with its attorney are not privileged. None of our opinions specifically
address how the evident&y rule governing the attorney-client privilege, currently Texas Rules of
Evidence 503, applies to a meeting closed under section 55 1.071 of the Government Code. CJ:
Markowski v. City ofMarlin, 940 S. W.2d 720,726 (Tex. App.-Waco 1997, writ denied) (stating that
when legislature enacted section 55 1.071, it “obviously” intended to permit governmental body to
consult with its attorney without risking disclosure of “important confidential information”). Rule
503 generally provides a client with a privilege to refuse to disclose and to prevent another person
from disclosing “confidential communications” made to facilitate rendering “professional legal
services to the client”:
The Honorable Jack Skeen, Jr. - Page 5            (JC-0506)




                        A client has a privilege to refuse to disclose and to prevent
                any other person from disclosing confidential communications made
                for the purpose of facilitating the rendition of professional legal
                services to the client:

                         (A)    between the client or a representative of the client and
                the client’s lawyer or a representative of the lawyer;

                        (B)        between the lawyer and the lawyer’s representative;

                         (C)   by the client or a representative of the client, or by the
                client’s lawyer or a representative of the lawyer, to a lawyer or a
                representative of a lawyer representing another party in a pending
                action and concerning a matter of common interest therein;

                        (D)     between representatives of the client or between the
                client and a representative of the client; or

                        (E)        among lawyers and their representatives   representing
                the same client.

TEX. R. EVID. 503(b)(l).    For the purposes of rule 503, a “client” is “a person, public officer, or
corporation, association, or other organization or entity, either public or private,” who receives
“professional legal services” from a lawyer or who consults a lawyer “with a view to obtaining
professional legal services from that lawyer.” Id. 503(a)( 1). A “representative of the client” is “a
person” authorized “to obtain professional legal services” on the client’s behalf; a person authorized
to act on an attorney’s advice on the client’s behalf; or a person who, to effect “legal representation
for the client, makes or receives a confidential communication           while acting in the scope of
employment for the client.” Id. 503(a)(2). Finally, “[a] communication is ‘confidential’ if’ the
client does not intend to disclose it to a third person, other than a person to whom the client
communicates to further “the rendition of professional legal services to the client” or a person
“reasonably necessary” to transmit the communication.        Id. 503(a)(5).

        To a court reviewing whether information shared in a closed meeting is privileged under rule
503 of the Texas Rules of Evidence, the county auditor’s presence in a meeting that was closed
under section 55 1.07 1 of the Government Code may indicate, in some circumstances, that the county
commissioners court did not intend its attorney-client communications to be confidential. See TEX.
R. EVID. 503(a)(5) (defining “confidential” communication).    For example, a Texas Court of Appeals
determined in Cameron County v. Hinojosa that the attorney-client privilege did not apply to letters
between the Cameron County computer department and the county attorney, even though the letters
appeared to solicit or give legal advice, because the parties “routinely sent” copies of the letters “to
the county personnel office, the county auditor’s office, and the county judge’s office.” Hinojosa,
760 S.W.2d at 746. The Hinojosa plaintiff alleged that the computer department had wrongfully
The Honorable Jack Skeen, Jr. - Page 6          (JC-0506)




terminated her and sought to discover the letters. See id. According to the court, the county’s
routine disclosure of copies of the letters to various county offices, including the county auditor,
indicated that the letters were not privileged from discovery:

                        The outside disclosure apparent on the face of the documents
               in the present case is some evidence either that the communications
               were never intended to be confidential, or that the privilege was
               waived by disclosure to third parties, and it tends to rebut the
               presumption    of privilege that the documents themselves might
               otherwise create. . . . If anything in the documents themselves raises
               a question as to whether the privilege applies, we can no longer
               presume the documents to be privileged, but the existence of the
               privilege becomes a question of fact for the trial court, based on the
               documents and the circumstances under which the communications
               were made.

Id.

         Consequently, with respect to including a nonmember such as the county auditor in a meeting
closed to discuss pending litigation or a settlement offer under section 55 1.071 of the Government
Code, we conclude that a commissioners court must consider three things: (1) whether the auditor’s
interests are adverse to the county’s; (2) whether the county auditor’s presence is necessary to the
issues to be discussed; and (3) whether the court effectively may waive the attorney-client privilege
by including the nonmember.       Each of these three considerations requires the resolution of fact
questions and cannot, therefore, be determined in the opinion process. See, e.g., Tex. Att’y Gen. Op.
Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027
(1999) at 3 (same); JC-0020 (1999) at 2 (same). Rather, the commissioners court, together with its
attorney, must determine these questions in the first instance, subject to judicial review. We modify
Attorney General Opinion JIM-238 to the extent that it fails to consider the attorney-client privilege
currently provided by rule 503 of the Texas Rules of Evidence.

         We caution that a reviewing   court may find that a commissioners court violated the Act if
the court finds that communications    that occurred in a meeting closed under section 55 1.07 1 were
not privileged.

        With respect to a meeting closed under either of the other exceptions you raise, section
55 1.072 or section 55 1.074, we conclude that a commissioners court may include a county auditor
if the court finds that her interests are not adverse to the county’s and that her participation is
necessary to the specific issues to be deliberated. Cf: Finlan v. City of Dallas, 888 F. Supp. 779,
787 (N.D. Tex. 1995) (determining that governmental body could not permit person to attend
meeting closed under section 551.072 to discuss real-estate transaction if person’s interests are
adverse to governmental body’s). These issues are questions of fact that this office cannot resolve.
See Tex. Att’y Gen. Op. No. JC-0434 (2001) at 7 (stating that this office cannot determine whether
The Honorable        Jack Skeen, Jr. - Page 7           (JC-0506)




medical care services are necessary because it is fact question); Tex. Att’y Gen. LO-98-l 20, at 1 n. 1
(stating that whether gate is necessary for purposes of Transportation Code section 25 1.OlO is
question of fact). The commissioners court must determine both of these questions in the first
instance, subject to judicial review. SeeMarkowski, 940 S.W.2d at 727 (concluding that court may
examine tape of closed meeting in camera to determine applicability of privilege).         And, if a
discussion convened under an exception other than section 55 1.07 1 also involves an attorney-client
communication,    the commissioners may wish to evaluate the auditor’s presence in light of the
attorney-client privilege.

         We further consider how a commissioners court should decide whether a particular officer
should be included in a closed meeting. We understand that the Smith County Judge believes the
auditor’s presence is necessary and does not violate the Act because the auditor is “the county’s
financial officer” and has “information and knowledge” about issues that may impact the county’s
budget. Request Letter, supra note 1, at 1. A county auditor has a duty to examine each claim, bill,
or account for the county and to withhold payment until and unless he or she has approved the item,
see TEX. LOC. GOV’T CODE ANN. 8 113.064 (Vernon 1999); Crider v. Cox, 960 S.W.2d 703,706
(Tex. App.-Tyler 1997, writ denied), and a county auditor has a duty to inform the commissioners
court about the county’s affairs. See Comm ‘rs Court ofHarris County v. Fullerton, 596 S.W.2d 572,
578 (Tex. Civ. App.-Houston      [ 1st Dist.] 1980, writ ref d n.r.e.) (quoting Navarro County v. Tulles,
237 S.W. 982,986) (Tex. Civ. App.-Dallas 1922, writ ref d)). Other members of the commissioners
court, by contrast, believe that the auditor’s presence is unnecessary to closed meetings and may
violate the Act2 They contend that a commissioner who wishes the auditor’s opinion on a particular
issue should seek the auditor’s opinion at another time:

                             The Auditor’s presence is not required to relay information to
                    the Commissioners Court regarding insurance or budget allocations.
                    That information is available to us at all times; it is our duty and
                    obligation as elected officials to be informed and to evaluate the
                    financial implications of any litigation or settlement offers.

Commissioner        Emmert’s Letter, supra note 2, at 2.

        The court must determine the issue consistently with the Act. The commissioners court may
take final action or vote on a matter “only . . . in an open meeting” and must deliberate in an open
meeting, although it may discuss in a closed meeting a matter that is excepted from section
55 1.002’s open-meetings requirement. TEX. GOV’T CODEANN. 5 55 1.102 (Vernon 1994); see id.
ch. 55 1, subch. D (listing exceptions).   We further believe that the commissioners      court must
evaluate the auditor’s presence vis-a-vis each issue to be discussed in the closed meeting.




           2See Letter from Honorable Sharon Emmert, Smith County Commissioner,             to Honorable John Comyn,
Attorney    General of Texas (Jan. 9, 200[2]) ( on f 11e with Opinion Committee) [hereinafter Commissioner   Emmert’s
Letter].
The Honorable    Jack Skeen, Jr. - Page 8        (JC-0506)




        Finally, you question whether a commissioners court, by not excluding the auditor from a
closed meeting, has “in fact included,’ her. Request Letter, supra note 1, at 2. Common sense leads
us to conclude that if the auditor has not been excluded, she has been included.



                                          SUMMARY

                         With respect to a meeting of a county commissioners court
                closed under section 55 1.07 1 of the Government Code to consult with
                the county’s attorney regarding pending litigation or a settlement
                offer, the commissioners court may include the county auditor if
                the court determines that (1) the county auditor’s interests are not
                adverse to the county’s; (2) the county auditor’s presence is necessary
                to the issues to be discussed; and (3) the county auditor’s presence
                will not, in effect, waive the attorney-client privilege.      See TEX.
                GOV’T CODE ANN. 8 551.071 (Vernon 1994); TEX. R. EVID. 503. If
                a reviewing court concludes that the attorney-client privilege does not
                apply to an attorney-client consultation closed under section 55 1.07 1,
                it may also find that the commissioners court violated the Open
                Meetings Act. We modify Attorney General Opinion JM-238 to the
                extent that it does not consider the attorney-client privilege currently
                provided by rule 503 of the Texas Rules of Evidence. See Tex. Att’y
                Gen. Op. No. JM-238 (1984) at 2.

                         With respect to a meeting closed under an exception other
                than section 55 1.07 1, see, e.g., TEX. GOV’T CODEANN. 58 55 1.072,
                55 1.074 (Vernon 1994)’ a county commissioners court may include
                the county auditor if the court finds that the auditor’s interests are not
                adverse to the county’s and that her participation is necessary to the
                anticipated deliberation. If a discussion convened under an exception
                other than section 55 1.07 1 also involves an attorney-client commun-
                ication, the commissioners       may wish to evaluate the auditor’s
                presence in light of the attorney-client privilege. All of these deter-
                minations require the commissioners court to resolve a number of fact
                issues, subject to review by a court.

                         The commissioners    court should weigh the propriety of
                including the county auditor in a closed meeting consistently with the
                Open Meetings Act’s open-meetings requirement and exceptions
                thereto.
The Honorable Jack Skeen, Jr. - Page 9          (JC-0506)




                       If the county    auditor is present during the open portion of a
               commissioners court      meeting when the court announces that it will
               proceed into a closed    meeting and the commissioners do not exclude
               the auditor, the court   has included the auditor in its closed meeting.




                                                 Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
