                                The Attorney            General            of Texas
                                                 Decemli,er 3,    1984
JIM MATTOX
Utorney General


iuprrme court Building         Honorable Mike Driscol.1                        Opinion No. J&238
‘. 0.   Box 12540              Barr16 County Attornc!)
51214752501
4urun. TX. 78711. 2545         1001 Preston,  Suite O:i4                       Re:    Whether staff   members of
                               Houston. Texas     7700:1                       the Harris County Commissioners
isiex BlW074-1387
Telecopier 5121475-0266
                                                                               Court and other county officers
                                                                               and employees are authorized    to
                                                                               attend   executive   sessions   of
714 Jackson. Suite 700                                                         the commissioners court
Jailae. TX. 75202-4505
2111742-8944
                               Dear Mr. Driscoll:

4S24 Alhla   Ave., Suite 160         You ask the fol:.owing       questions:
El Paso, TX. 79905.2793
31Y53M404
                                               1. W    the   commissioners     court    permit   or
                                           authorize one or more county officers      or employees
100. ,exas. Suils 700                      to attend o closed or executive meeting or session
Ho~slon. TX. 77002-3111                    of commissioners   court held for the purpose of
713t223.5888                               consulting   with    its   attorney     or    attorneys
                                           regarding IBending or contemplated litigation?
000 Broadway. Suite 312
Lubbock, TX. 79401.3479                       2.   (a) Would the conclusion     to the first
8oM47-5238                                 question al>ply to such officer  or employee who Is
                                           a party t(l the litigation    and is represented by
                                           the same al:toraey?
43C4 N. Tenth. Suite B
MCAllwl, TX. 79501.1885
512@92-4547                                     (b)  WorlZd the conclusion  be the same if said
                                           officer    or     employee  were  represented  by   a
                                           different   clttorney?
200 Main PI=*. Suite 400
San Antonlo. TX. 78205.2797
51212254191
                                      Your request letter     contains the following      facts.     In 1973, both
                               the Harris County Commissioners Court and the Harris County Sheriff
                               were named as defendants         in a lawsuit concerning        conditions     in the
An Equal Opporlunltyl          county jail.       The :)arties    agreed that the Harris County Attorney
AIfltmative Action Employer    should represent      the commissioners      court and that the Harris County
                               District    Attorney shculd represent        the sherfff.      During the last 11
                               years the commissioners         court has met several         times in executive
                               session to discuss this litigation.           These sessions have been attended
                               by the members of thl? commissioners court and their staffs,              by various
                               elected    and appoint&l county officials,         by the sheriff,       and by the
                               district    attorney,    the   county   attorney,    and their      assistants.      A




                                                                 p. 1068
                                                                                           -


Honorable   John Pi. Bolaca,    Jr.   -. Page 2      (JM-238)




dispute  over whether      some of      these individuala   were         authorized   to
attend these executive     sessions     prompted your questions.

      Attorney General Opinion .I&6 (1983) established   that the members
of a governmental       body ma)’ exclude  non-members from its    closed
meetings.     You wish to knov whether persons who have no right        to
attend executive   sessions may be admitted by the governmental body.

      The Open Meetings        Act,   article     6252-17.   V.T.C.S..     provides   in
relevant  part:

                Sec. 2.     (a) Except as otherwise          provided  in
            this    Act    or    spc!c if ically   permitted      in  the
            Constitution.      every . . . meeting        or session   of
            every governmental         body shall     be open to the
            public;    and no closed         or executive     meeting or
            session   of any governmental body for any of the
            purposes for which closed or executive           meetings or
            sessions     are hercsinafter        authorized     shall  be
            held. . . .

                . . . .

                (e)   Private     coasultations      between a govern-
            mental body and Its attorney              are not permitted
            except in those inf:tances 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 act requires governmental bodies to open their meetings to
the general. public,       except    for limited    circumstances     under which
executive    sessions     are al Lowed.      Your questions       require  us to
determine whether the admiss:lon of some public officers            and employees
to an executive    session conveined under section 2(e) is consistent         with
the policy    of openness underlying       the act.      Since your question     is
limited    to sessions     convenl!tl under section       2(e), the “litigation
exception.”   our conclusions ~I.11 also be limited to that issue.

        Section 2(e) could be interpreted     to authorize     only the members
 of a governmental body and its attorney        to attend executive       sessions
 held thereunder.     The 3wovislon   refers     to “[nlrivate
                                                       -.-    ~~ consultations
                                                                   ~~~
 between     a governmental  both and Its        attorney.”      The underlined
 language could be read to pcrrmit attendance at the executive             session
 onl;   by members of the go&:nmental       body and a single        attorney     to
 advise    them.   Under such ;a construction,        neither   party would be




                                          p. 1069
Ronorable   John B. Eolmsa, Jr.   - Page 3   (a-238)




allowed to bring an asent or essociate     to the session.    lIowevers the
dominent consid&atlon     In cormtruing a atatute  lo the intent of the
legislature.     Calvert v. Texi!) Pi e Line Co.. 517 S.U.2d 777 (Tex.
1974);    City of San Uarcor .l> Lower Colorado    River Authority,     308
S.W.Zd 403 (Tex. Clv. App. . . Austin 1974). modified      523 S.W.Zd 641
(Tex. 1975).

       As originally      enacted,    the open Meetings     Act provided    that
“[nlothing    in this Act shall b,e construed to prevent a governing body
from consulting     vith Its attorney.”      Acts 1967, 60th Leg., ch. 271, at
597 *    In 1969, however,       the! legislature   amended the act;     in the
process,    it deleted this prov:ision.      Acts 1969, 61st Leg., ch. 227, at
674.      Shortly    thereafter,     ::he same legislature      passed    Senate
Concurrent Resolution       No. 83, Acts 1969, 61st Leg.,       at 3082, which
noted the deletion      and stated:

                WHEREAS, the privileged   nature of comounica-
            tions between attorney and client     are recognized
            by the common law, by Article        38.10,  Code of
            Criminal  Procedure  of Texas,    1965, and by the
            rules of the State 13er of Texas; and

                WHEREAS,It was the intent of the legislature,
            in repealing      the TAoted portion   of Section     2,
            Chapter 271. Acts o,E the 60th Legislature,      Regular
            Session,    1967 (Article     6252-17, Vernon’s    Texas
            Civil    Statutes),    the   open meetings     law.    to
            eliminate    from that    law surplus matter already
            covered elsewhere in the law; now, therefore,         be
            it

                RESOLVED,By the Senate of the State of Texas,
            the Rouse of Repreclentatives  concurring,   that the
            Legislature  declarr! that it did not Intend.       in
            passing Senate Bill No. 260 [amending the act], to
            abridge or in any wa:f affect the privileged   nature
            of communications between attorney and client.

        A 1972 Attorney General >pinion determined that Senate Concurrent
 Resolution   No. 83 did not r’wtore     the deleted   language to the Open
 Meetings Act.     Attorney General Opinion M-1261 (1972).         It surveyed
 out-of-state   cases which relied    on the attorney-client      privilege   to
 find an imulled exceotion     fcbr attorney-client   conferences     in public
 meetings acts that weke silent on that-subject.        Sacramento Newspaper
 Guild v. Sacramento County Board of Supervisors.          69 Cal. Rptr. 480
 (Cal. App. 1968);      Times Pubzlshlng Co. v. Wllliams.      222 So.Zd 470
 @la.    App. 1969).   Contra Lama-nv. McCord. 432 S.U.Zd 753 (Ark. 1968).
 See generally   Annot. 38 A.m;     3d 1070 et seq. (1971).




                                       p. 1070
Honorable   John B. Holmer,       Jr.   -n Page 4    (3)3-238)




       Attorney General Opinion M-1261 (1972) reasoned that the act must
be construed harmoniously with Senate Concurrent Resolution No. 83 and
statutory    and common law rule13 on the confidentiality  of the attorney-
client   relationship.    It conc:luded that a governmental body may hold a
closed    session   to discuss   lqial  matters with its attorney   when it
desires

             advice      in   regards    to  pending or contemplated
             litigation,      settlem,sut offers,   and similar matters
             where the duty of ,I public body’s counsel to his
             client,      pursuant to the Rules and Canons of the
             State Bar of Texas, clearly           conflicts   with that
             Article.

A 1973 amendment to article              6252-17,  V.T.C.S., enacted the present
section  2(e), incorporating            almost verbatim the foregoing   language.
Acts 1973, 63d Leg., ch. 31,            52, at 46.

       Thus, Senate Concurrent Resolution             No. 83 and Attorney           General
Opinion     M-1261 provide         si~;nificant     evidence    of    the     legislative
policies    underlying section 2(e).          This provision    enables governmental
bodies and their attorneys           t,> secure the protection        of the attorney-
client    privilege     for  delibe:rstlons       it covers.     The    purpose of the
privilege      is    to promote       !:be unrestrained       communication         between
attorney     and client,     withou:      fear that the attorney          will     disclose
confidential       communications.        West v. Solito,      563 S.W.2d 240 (Tex.
1978); 8 Wigmore, Evidence 1:!;:91 (McNaughton rev. 1961).                   A provision
like section       2(e) gives a governmental body the opportunity                 for full
communication with its attorney without disclosing                 its side in litiga-
tion to its oooonents.          See E,acramento NeWSDaDer Guild v. Sacramento
                                ---
County Board 0; Supervisors,            .supra; Minneapolis Star and Tribune Co.
v. Rousing and Redevelopment Authority,               251 I’ %’** L1A I”‘--           ‘,,,)  ;
Oklahoma Association        of Municipal Attorneys          v. State,     577 P.2d 1310
 (Okla. 1978); cf. Laman v. li&Zord. supra, (Pogleman, J., concurring)
(city attorney=          prepare cs;ehout            detailed discussions        with city
council).      ‘See also City of San Antonio V. Aguilar.                 670 S.W.2d 681
(Tex.     ADP.    - San Antonio -1984.           writ   dism’d    w.0.1.)       (dicta      on
impracticality       of open meetiq        decision   to appeal);     Attorney General
Opinion MW-417 (1981).

      Attorney-client   coramunicatlons    are not   confidential       in   the
“presence of s third person ,tiho is not the agent of either client           or
attorney.”     8 Wigmore, x~,       S2311.    Thus, section    2(e) does not
permit an executive session held to discuss potential        litigation     with
the opposing party.     Attorney General Opinion MI-417 (1981).            Texas
law, however, has recognized    that the privilege   may extend to persons
who are the media of communication between the attorney            snd client.
Burnett v. State, 642 S.W.21 765 (Tex. Crim. App. 1982) (hypnotist
hired by attorneys to refresh defendant’s      memory). Moreover, rule 503
Ronorablc   John 1). Rolmes,     Jr.   .- Psge 5    (m-238)




of  the Texas Rules of Evidence defines   the rttornev-client    urivilene
to cover c~nications     between the client   or his ;epresent;tive      aid
his lawyer.   Tex. R. Rvid. 503(a) and (b).    Rule 503 defines “client”
to in&de     a public  officer   or a p&ic      entity.     Tex. R. Rvid.
503(a)(l).

       Where the presence of (I third party agent or representative                       of
the commissioners        court Is necessary         to the court’s         full   and un-
restrained    cmnication         witt, its attorney , we believe         that party may
attend an executive         session    validly   held under section          2(e) of the
Open Meetings Act.            See
                              -     Sacramento
                                   --              Newspaper    Guild     v.    Sacramento
County Board of         Supervisors,.      suprcl,    (attorney-client        conferences
permitted    in executive       sess:lon under circumstances           defined     by Cal.
Rvid. Code which permitted presence of some third parties),                        In some
cases, the officers        and employees of a governmental body will possess
information    relevant      to the litigation       or to evaluating        a settlement
offer.     The litigation       may te based on the actions of such persons,
carrying out policy         of the commissioners court under its supervision
and control.     Their presence and contribution            at the executive        session
may be essential       to effective,     communication between the government’al
body and its attorney.

       We therefore     conclude   that governmental bodies          may admit to
executive    sessions     held   under   section    2(e)    those    officers     and
employees who are their representatives          or agents with respect to the
particular   litigation    in question and whose presence Is necessary              to
effective   cosununication with the attorney.          Furthermore, the govern-
mental body may not admit to its closed discussion            of litigation     those
third parties     who are adversaries      or whose presence would otherwise
prevent privileged      communical:ion from taking place.       We do not believe
that governmental bodies may simply admit anyone they wish regardless
of whether that nerson is likelv        to make a lenitimate       contribution     to
the discussion.       See generally-Johnson      V. Sta&m~i7~4    S.W. 1047 (Tex.
Crim. App. 1915); Attorney G~?neral Opinion MW-417 (1981).

        We do not have sufficient       information      to determine whether the
 sheriff    could legally   be admitted to the executive session.          The fact
 that he is represented by a different           attorney is one factor which is
 relevant     to determining whel:her he is sufficiently         aligned with the
 commissioners      court   in th,Ls litigation        to participate     In their
 discussions.       The sheriff   :is directly      involved   in the litigation,
 however, and undoubtedly pt’ssesses           important information     concerning
 the litigation.       The commissioners court must determine whether he la
 sufficiently     aligned with 11:s position       here to justify    his presence.
 The alignment       of the parties      suggests     that the sheriff      and his
 attorney could properly be aknitted to the executive session.               A case-
 by-case analysis of all reltvant         facts will be necessary to determine
 whether a particular      third party may be admitted to consultations         held



                                         p. 1072
                                                                                       .   1




Honorable   John B. Holmes, Jr.       - Pa8e 6      (JR-238)




under   section   2(e)    between    an sttorney     and the   client   8overnmental
body.



                The commissioners court may admit its agents or
            representatives    to e:recutive session meetings held
            under section      2(eIl of the Open Meetings        Act,
            article   6252-17, V.T.C.S.,    where the third party's
            interest   Is aliened ,with the court's     and where his
            presence is necessary to the court's        full communi-
            cation with its attorney.         Whether a particular
            person may be admitted must be decided by a case-
            by-case analysis     of all relevant fscts.




                                                   JIM     MATTOX
                                                   Attorney General of Texas

TOMGREEN
First Assistant    Attorney     Central

DAVID R. RICRARDS
Executive Assistant       Attorney   Ceneral

RICK GILPIN
Chairman, Opinion        Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTRE

Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer RI886
Nancy Sutton




                                       p. 1073
