                         July 11, 1989




Honorable Kent A. Caperton      OpiniOn   No.   JM-1071
Chairman
Finance Committee               Re:   Whether  the "certified
Texas State Senate              agenda" provision of the Open
P. 0. Box 12068                 Meetings Act, article 6252-17,
Austin, Texas   78711           V.T.C.S.,   unduly   restricts
                                speech rights of members    of
                                governmental bodies  (RQ-1681)

Dear Senator Caperton:

     You request an opinion interpreting     a provision   of
section 2A of the Texas Open Meetings Act, article   6252-17,
V.T.C.S.  Section   2A was added to the Open Meetings     Act
in 1987. Acts 1987, 70th Leg., ch. 549, § 3, at 2212.      It
requires governmental bodies to maintain a certified   agenda
or tape recording    of executive  sessions.   *     Attorney
General Opinion JM-840 (1988). Subsection 2A(h) of the act
provides in part:

           No individual, corporation, or partnership
        shall, without   lawful authority,   knowinulv
        make uublic the certified     asenda or taoe
        recordins of a meetinq   or that portion of a
        meeting that was closed under authority     of
        this Act.   (Emphasis added.)

V.T.C.S. art. 6252-17, § 2A(h).

     You state that some local authorities have interpreted
the quoted language to mean that persons present      in an
executive session cannot make any statements regarding   the
subject matter  of the session, even to voice their own
opinion about that subject.      You point out that this
interpretation raises a serious question of interference
with the freedom of speech guaranteed by the First Amendment
of the United  States Constitution.  U.S. Const. amend. I.
See Attorney General Opinion MW-563 (1982) at 5, 6.

     We interpret subsection 2A(h) as applying only to the
records of executive sessions which governmental bodies are
required to keep pursuant to section 2A of the act. It does
not prohibit  persons who are present at the executive
session from afterwards talking about the subject matter of
Honorable Kent A. Caperton - Page 2     (JM-1071)




the session.   Accordingly,   we   need not   reach   the   first
amendment issue.

     The meaning of the language in subsection 2A(h) can be
determined by looking at section 2A as a whole.   Subsection
2A(c) describes a certified agenda:

        The certified agenda shall state the subject
        matter of each deliberation and shall include
        a record of any further action taken.     The
        certified   agenda of closed or     executive
        sessions 9shall be
        insuection   and couvina   onlv uoon    court
        order in an action brought under this Act.
        (Emphasis added.)

Id. 5 2A(c).

      The language on inspection and copying   in the above
provision shows that the certified agenda is a record.    A
tape recording of the executive session,   like a certified
agenda, is a record. See oenerallv V.T.C.S. art. 6252-17a,
§ 2(2) (definition of "public records" under Open Records
Act).

     Section 2A of the Open Meetings Act repeatedly uses the
terms "certified agenda" and "tape recording"    to refer to
the tangible documents  that record the executive    session.
For example, the certified agenda or tape is available    for
in camera inspection by the judge in a lawsuit involving   an
alleged violation of the act. Id. g 2A(e). The certified
agenda or tape must be preserved for a least two years after
the date of the meeting.      Id. § ZA(f).     Members  of a
governmental body may not participate in a closed meeting
knowing that a certified agenda is not being kept or a tape
recording   is   not being   made.   Id.    5 =(g).     These
requirements   cannot  be rationally     applied to    speech
occurring after the meeting.

     The l'certified agenda" and "tape recording"   mentioned
in the provisions  we have cited record the proceedings    of
the executive  session.    The legislature   presumably  used
these two terms consistently    throughout section 2A.    See
Paddock v. Siemoneit, 218 S.W.2d 428, 435 (Tex. 1949).      In
our opinion,  subsection   2A(h) bars the release of such
records, and does not prevent members of the governmental
body from talking about their recollections of the subject
matter of the executive session.

     The purpose of enacting section 2A was to ensure that a
record of executive sessions would be available in the event
of a lawsuit alleging an Open Meetings       Act violation.


                              P. 5581
Honorable Kent A. Caperton - Page 3 (JM-1071)




Subsection 2A(h) ensures that the record will be used only
for that intended purpose.       The prohibition   is   thus
corollary to, and no broader than, the new record keeping
requirement.  Persons who attended an executive session are
not prohibited by section 2A(h) from discussing its subject
matter.1

                       SUMMARY

           Subsection   2A(h)   of article    6252-17,
        V.T.C.S.,  the Texas     Open Meetings    Act,
        applies to the certified      agenda or tape
        recording kept as a record of an executive
        session. It does not prohibit members of a
        governmental   body   or other    persons    *
        attendance   at an executive    session   *A
        making public statements about the subject
        matter of that session.




                                  J lh
                                    Very truly yo   ,


                                           &
                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First- Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICX GILPIN
Chairman, Opinion Committee

JENNIFER S. RIGGS
Chief, Open Government Section
Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




     1. Nothing in the Open Meetings Act requires members
of a governmental body to make statements about an executive
session.



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