Honorable  Roy Blake                     Opinion   No.   JR-995
Chairman
Committee  on Administration             Re: Liability   of an appraisal
Texas State Senate                       district and its officers    for
P. 0. Box 12068                          damages awarded in a    federal
Austin, Texas    78711                   court judgment,    and  related
                                         questions   (RQ-1569)

Dear   Senator   Blake:

      On behalf of the Newton County Appraisal            District,     YOU
ask us two questions.       First, you inform us that the           Newton
County    Appraisal    District       and  three      members    of     the
district's    board   of directors      lost   a lawsuit      in  federal
district    court    alleging     employment     discrimination.        The
judgment requires      the    district's     board    of   directors     to
reinstate   the plaintiff     in the lawsuit as chief appraiser          of
the district,     as well as to pay damages and attorney's           fees.

      The  judgment    orders    that   the    plaintiff    recover   a
certain   sum   for   attorney's     fees    from   the   defendants,
"jointly and    severally.lq     you   ask about     the  meaning    of
"jointly and    severally."    Specifically,       you ask:    "Is  the
Newton Central Appraisal     District     wholly liable or are      all
of the listed defendants     liable and if so, to what extent?"

      Black's Law Dictionary  defines "joint and several"              for
purposes   of liability in the following fashion:

          A liability  is said  to be joint and             several
          when the creditor may sue one or more             of   the
          parties to such liability  separately,            or   all
          of them together at his option.

Black's Law Dictionary      972    (4th ed. 1968).    See   oenerally
74 Am.    Jur.2d Torts     5 66 (1974);    Restatement    (Second)    ok
Torts 55 875, 876 (1979).        Thus, absent any language      in  the
courtgs judgment     to the     contrary,   each defendant      in  the
situation   you describe    is equally liable, and the       plaintiff
may proceed     to collect    against all    of the    defendants     or
against any one or more of        the defendants.     You do not    ask




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Honorable     Roy   Blake   - Page   2   (Jn-995)




about,    and  therefore  we  do   not  address,   whether     any
defendant   may recover  by virtue of   a right of    subrogation
against any other defendant    in the event that the    plaintiff
recovers wholly against the first defendant.

      Second, you inform us that the Newton County        Appraisal
District held a closed meeting      in early August of this year,
purportedly   under the   authority   of subsection    2(g) of   the
Open   Meetings    Act,  article    6252-17,   V.T.C.S.,   for   the
purpose of discussing    the   salary to be    paid to the    former
chief appraiser    whom the district was required to reinstate.
Subsection   2(g) of the Open Meetings     Act provides:

                Nothing    in this Act shall be construed        to
            require governmental      bodies to hold      meetings
            open to     the public     in cases    involving    the
            appointment,      employment,     evaluation,     reas-
            signment,    duties, discipline,     or dismissal     of
            a public officer or employee or to hear            com-
            plaints or      charges against     such officer      or
            employee,    unless    such   officer    or   employee
            requests    a public hearing.

      The chief appraiser     verbally   requested     that the meeting
be open to the public,       but the board rejected her          request.
It did so because the board had adopted earlier an operating
policy providing      that requests     under subsection       2(g)     for
open meetings    relating to personnel       matters be submitted        to
the board in writing.        Pursuant to section         2A of the    Open
Meetings   Act, the board chose to tape the executive             session
rather than prepare       a certified   agenda.       See Open    Records
Decision No. 495 (1988).        You inform us that, subsequent           to
the   meeting,    the   board    concluded     that    it was     without
authority    to   require    requests    for     open   meetings     under
subsection    2(g) to be in writing and that, consequently,            the
meeting that     was   held in    executive      session was     so   held
improperly.1     We   express no    opinion regarding        the    actual
impropriety    of the meeting.




       1.     Article       6252-17,   section       4,    sets   forth   the
following     penalties      for violating   the    act:

                (a) Any  member of a governing    body  who
            knowingly   calls  or  aids   in   calling   or
            organizing  a special  or called    meeting  or
            session which is closed to the public, or who
                                              (Footnote Continued)




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Honorable     Roy   Blake   - Page   3    (JIG995)




      The board has received a request under the Open Records
Act for a copy      of the tape of     the meeting alleged to        have
been held.      Article    6252-17a,     section 3(a),     of   the   act
states:    "All    information    collected,    assembled,    or    main-
tained by governmental      bodies    pursuant   to law or    ordinance
or in connection     with   the transaction     of official    business
is public information.       . . .I' This office already has         held
that tape recordings      of executive    sessions   in the custody of
governing   bodies    are   '*information11 under     the   act.     Open
Records Decision No.       495 (1988).      You do not     ask about     a
tape of a properly held executive         session.    Instead, you ask
whether   the tape of     an allegedly    improperly   closed    meeting
is excepted    from required     public disclosure     under the     Open
Records Act.

      Section 2A     of article   6252-17, V.T.C.S.,   the   Open
Meetings   Act, which requires a governing   body to keep either
a certified    agenda or a tape of every meeting that is closed
to the public, sets forth the following    at subsection   (e):

               The certified    agenda        or   tape  shall    be
            available  for   in  camera       inspection   by    the


(Footnote      Continued)
            knowingly    closes or aids in closing a regular
            meeting or      session    to the   public,     or   who
            knowingly    participates     in a regular,   special,
            or called meeting or session which is            closed
            to the public where        a closed meeting     is   not
            permitted    by   the   provisions    of    this    Act,
            shall be     guilty    of    a misdemeanor      and   on
            conviction    is punishable      by  a fine     of   not
            less    than    $100   nor     more  than    $500
            imprisonment     in the county jail for not         leI2
            than one month nor        more than six months,       or
            both.

                (b) Any member     or group of    members of    a
            governing   body   who   knowingly    conspires   to
            circumvent   the   provisions    of   this   Act  by
            meeting   in numbers less than a quorum for the
            purpose     of     secret      deliberations       *
            contravention    of this Act shall be guilty      i:
            a misdemeanor    and on conviction    is punishable
            by a fine of not less than $100 nor more than
            $500 or imprisonment     in   the county jail    for
            not less    than one    month nor    more than   six
            months or both.




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Honorable     Roy   Blake   - Page   4   (Jn-995)


                                                                             -,


            judge of a district       court if litigation      has
            been initiated    involving    an alleged violation
            of this Act.     The court upon entry of a final
            judgment may     admit the     certified  agenda    or
            tape into evidence     in whole or in part.        The
            court may grant equitable       or legal relief     it
            considers    appropriate,      includinu   an   order
            that the aovernmental      bodv make available      to
            the nublic the     certified    aaenda   or taoe    of
            any D rt    f a meetina that was not authorized
            to   bt   closed   un der   this    Act.    (Emphasis
            added.)

      Subsection   (h) prohibits the release of a certified
agenda or tape of a meeting that is closed to the public and
provides   the following:

                No individual,   corporation,     or partnership
            shall, without     lawful    authority,     knowingly
            make public    the   certified      agenda    or   tape
            recording   of a meeting     or that portion of        a
            meeting that     was closed     under authority       of
            this   Act.    A    person    who    violates      this
            subsection   shall   be    liable    to   any    person
            injured or damaged thereby for:

                (1)   actual   damages     including   but    not
            limited    to   lost    wages,    damages   due     to
            defamation    of character,     or mental or    other
            emotional   distress   or   other personal     injury
            or damages;

                (2) costs    of court:

                (3) reasonable       attorney's     fees;   and

                (4) exemplary  or  punitive damages               in   the
            discretion   of the trier of fact.2



       2. We note    that  subsection   (i) provides   that   an
offense under   subsection    (h)  is a Class   B misdemeanor.
Subsection  (j) provides:

                It shall    be a defense to prosecution       under
            Subsection      (h) of     this    section    and     an
            affirmative     defense   to   prosecution     in   any
                                                    (Footnote Continued)




                                         p. 5092
,

    Honorable     Roy   Blake   - Page   5    (Jn-995)




    V.T.C.S.     art.   6252-17,   gZA(h).

          It is suggested     that section 2A provides         the only means
    whereby a certified     agenda     or tape of       a meeting closed       to
    the public    may   be    released      to   the   public.      We    agree.
    Generally,    where    the    legislature       confers    a power.       and
    prescribes   a definite,     certain       method of    procedure     for    a
    city or    county   or    others to      follow,     other    methods     are
    impliedly   excluded.     Foster v. Citv        of Wacc, 255 S.W.        1104
    (Tex. 1923); Citizens'      Bank v. Citv of Terre11           14 S.W. 1003
    (Tex. 1890); see      also   Wilde      v. Buchanan,      363 S.W.2d      518
    (Tex. Civ. App. - Austin), writ refrd n.r.e               D r      1      305
    S.W.2d 778 (Tex. 1957): Steaklev            v. Braden: 3:2 s"ui.;i' 363
    (Tex. Civ. App. - Austin        1959, writ ref'd n.r.e.);            Lubbock
    Countv School Trustees v.        Harral     Countv L ine Ind D.       School
    lXi&,   95 S.W.2d     204 (Tex.     Civ. App. - Amarillz          1936,    no
          . Sutherland     on Statutory      Construction     declares:

                    As the maxim [mressio          unius est exclusio
                alterius.    -- 'The expression       of one thing      is
                exclusive     of    another.']      is     applied      to
                statutory    interpretation,       where    a    form   of
                conduct,   the    manner of     its performance        and
                operation,    and   the    persons     and    things    to
                which it refers are        designated,     there is     an
                inference     that    all     omissions     should      be
                understood     as   exclusions.        'When    what    is
                expressed    in a statute      is creative,     and    not
                in a proceeding       according    to   the course      of
                the common     law,    it is    exclusive,      and    the
                power    exists    only    to   the    extent     plainly
                granted.      Where     a   statute       creates      and
                regulates,    and prescribes     the mode and       names
                the   parties     granted     right    to    invoke    its
                provisions,    that    mode must      be followed      and
                none other, and such parties only may act.#

    2A N.J.  Singer, Sutherland  Statutory  Construction                     S 47.23
    (C. Sands 4th ed. 1984). (Footnotes omitted.)


    (Footnote     Continued)
                civil action     arising    under  Subsection     (h)
                that   the   person    releasing   the     certified
                agenda or    tape thereof     had good    reason   to
                believe the release      was lawful    or that    the
                release was the result       of a mistake of     fact
                concerning    the   nature    or  content     of  the
                certified  agenda or tape.




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Honorable     Roy   Blake   - Page   6    (Jn-995)




      Section 2A    provides   a procedure      whereby a    court    is
empowered   both to   determine    whether any    public meeting      is
improperly    closed    and   to   order   the   disclosure     of   the
certified   agenda   or tape     of any   such meeting.      Moreover,
section 2A specifically      prohibits   the release to the      public
of any certified     agenda or tape      without lawful     authority.
&8   Open Records Decision No. 495 (1988).

      We conclude     that    the legislature     intended    that    any
disclosure   to the public      of a certified     agenda or tape      of
any meeting   closed to the      public must be accomplished        only
through the    procedures      set   forth in    the   act.    See    id.
Accordingly,   we    conclude that,      in the   situation   that   you
describe,   the. board     of   directors    of   the   Newton    County
Appraisal   District   is without authority       to   release to     the
public the    tape of     the meeting     assumed to    be   improperly
closed.

                               SUMMARY

                  When   a   judgment       provides     that     the
            defendants     are     "jointly      and     severally"
            liable, absent      any   other     language     in   the
            court's order to the contrary,         each defendant              -
            is equally liable: the plaintiff          may    proceed
            to collect     against    all    of   the    defendants
            together   or against     any one or      more of     the
            defendants   separately,     at his option.

                  In an instance in which a governing      body
            holds a meeting closed      to the  public,     the
            certified  agenda or tape    of the meeting     may
            be released to    the public   only pursuant     to
            the procedures    set forth   at section    2A   of
            article 6252-17, V.T.C.S.,    the Open   Meetings
            Act.




                                               JIM      MATTOX
                                               Attorney  General    of Texas

MARY KELLER
First Assistant       Attorney   General

LOU MCCREARY
Executive  Assistant        Attorney     General




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Honorable   Roy   Blake   - Page   7   (Jn-995)




JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney        General

RICK GILPIN
Chairman,  Opinion    Committee

JENNIFER S. RIGGS
Chief, Open Government   Section
of the Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney  General




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