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.
p. 5582