January 10, 1989
Honorable Carl A. Parker Opinion No. JM-1004
Chairman
Education Committee Re: Whether member of school
Texas State Senate district board of trustees who
P. 0. Box 12068 has sued the other six members
Austin, Texas 78711 may be excluded from an execu-
tive session held to discuss
the litigation (RQ-1493)
Dear. Senator Parker:
you inform us that a member of the board of trustees of
a school district has sued the other six board members in
federal court. The claim was denied by a three member panel
of federal judges but an appeal has been filed. You ask the
following question:
Can the member which has filed the lawsuit
against other members be excluded from an
executive session during which the only
agenda topic is the defense of the lawsuit?
Your question refers to an executive session for
discussion of the lawsuit, thereby indicating that the six
board members are meeting in their capacity as a governing
body subject to the Open Meetings Act. .We assume that they
have determined that the litigation was brought against them
in their capacity as representatives of the school district.
See aeneralle Attorney General Opinion JR-824 (1987) (suit
by member of commissioners court against district attorney
and sheriff). Executive session meetings to discuss litiga-
tion are permitted by the following provision of the Open
Meetings Act:
Private consultations between a governmental
body and its attorney are not permitted
except in those instances in which the body
seeks the attorney's advice with respect to
pending . . . litigation . . . and matters
where the duty of a public body's counsel to
his client, pursuant to the Code of Profes-
sional Responsibility of the State Bar of
Texas, clearly conflicts with this Act.
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Honorable Carl A. Parker - Page 2 (JM-1004)
V.T.C.S. art. 6252-17, 5 2(e).
This provision allows the governmental body to exclude
the general public from its discussions of litigation but it
does not address the exclusion of a board member from an
executive session on litigation brought against the board
by that board member. A board which exercises authority
delegated to it by the legislature "must act thereon as a
body at a stated meeting, or one properly called, and of
which all the members of such board have notice, or of which
they are given an opportunity to attend:" Webst r v. Texas
6 Pacific Motor TrgIlggort Co, 166 S.W.Zd 75; 76 (Tex.
1942). The purpose of this r-111;is
to afford each member of the body
opportunity to be present and to impart z::
his associates the benefit of his experience,
counsel, and judgment, and to bring to bear
upon them the weight of his argument on the
matter to be decided by the Board, in order
that the decision . . . may be the composite
judgment of the body as a whole.
& at 77.
This is a common law rule which applies to the board of
. .
trustees of a school district. &S Garcia v. AnaelirU 412
S.W.Zd 949 (Tex. Civ. App. - Eastland 1967, no 'writ)
(trustees of school district could not remove other trustees
from office nor bar them from participation in meetings and
proceedings of school board): see alsp Attorney General
Opinion JW-119 (1983); Birdville UdeD. School Dist.
Q9-g~~ 141 S.W.Zd 680 (Tex. Civ. App. - Fort Worth ,940';
aff'd, 159 S.W.Zd 111 (Tex. 1942). Each board member would
ordinarily be entitled to attend all board meetings.
However, under the circumstances you inquire about, we
believe that the board of trustees may exclude the trustee
who has sued it from executive session meetings held to
consult with its attorney about this lawsuit.
The board of trustees may sue and be sued in the name
of the school district. Educ. Code 5 23.26(a). The
trustees of an independent school district may employ an
attorney where the district's interests require assertion or
defense in court. maves h Houtchens v. Dwond Hill Inden,
School Dist., 243 S.W. 638 (Tex. Civ. App. - Fort Worth
1922, no writ). The right to the advice and assistance of
retained counsel in civil litigation is inherent in the idea
of an adversarial system of justice. Woslev v. St. Louis
S uthwem, 634 F.2d 942 (5th Cir.), cert. denied, 452
lJ:S. 906 (1981) (right to assistance of counsel in civil
litigation and administrative proceedings).
p. 5158
Honorable Carl A. Parker - Page 3 (JM-1004)
It is well established in the common law that confi-
dential communications between an attorney and his client
are privileged in civil cases. Cochran v. Cochran, 333
S.W.Zd 635 (Tex. Civ. App. - Houston [lst Dist.] 1960, writ
ref'd n.r.e.); M Attorney General Opinion M-1261 (1972).
Rule 503 of the Texas Rules of Civil Evidence expressly
provides a lawyer-client privilege and defines client as 'Ia
person, public officer, or corporation, association, or
other organization or entity, either public or private" who
consults a lawyer or receives legal services from a lawyer.
Tex. R. Evid. 503. The privilege exists for the benefit of
the client. Ex carte Li~scomb 239 S.W. 1101 (Tex. 1922);
Bearden v. Boone, 693 S.W.Zd 2; (Tex. App. - Amarillo 1985,
no writ).
The attorney-client privilege is a barrier to the
attorney's testimony about confidential communications.
Tex. R. Evid. 503: sc!s Ex, 2+iuua. ;z,,;t;
also been held to authorize private consultations
attorney and client. Attorney General Opinion M-1261 (1972)
held that the policy underlying this privilege permits
governmentai bodies to consult privately with their attorney
even though the Open Meetings Act did not at that time
expressly allow such private consultations. A California
case relied upon by Attorney General Opinion M-1261 states
as follows:
Plaintiffs do not dispute the availability
of the lawyer-client privilege to public
officials and their attorneys. They view it
as a barrier to testimonial compulsion, not a
procedural rule for the conduct of public
affairs. The view is too narrow. The priv-
ilege against disclosure is essentially a
means for achieving a policy objective of the
law. The objective is to enhance the value
which society places upon legal representa-
tion by assuring the client full disclosure
to the attorney unfettered by fear that
others will be informed. . . . [Citations
omitted.] The privilege serves a policy
assuring private consultation. If client
and counsel must confer in public view and
hearing, both privilege and policy are
stripped of value.
Sacramento Newsnaner Guild v. Sacramento Co. Bd. of Suver-
visors, 69 Cal. Rptr. 480, 489 (Cal. App. 1968). See also
Citv of San Antonio v. Acuilar, 670 S.W.Zd 681 (Tex. App. -
San Antonio 1984, writ dism'd n.r.e.) (stating that public
meeting on cityIs decision to appeal case would have
p. 5159
Honorable Carl A. Parker - Page 4 (JM-1004)
violated attorney-client privilege as discussed in
Sacramento Wewsnaoer Guj,U).
The policy assuring private consultation also applies
to the six members of the school board who have been sued
by an individual school trustee. They have a right to
communicate privately with their attorney outside of the
presence of the opposing party in the lawsuit. This policy,
in our opinion, justifies an exception from the usual rule
that each board member must have an opportunity to attend
all board meetings. The purpose of this rule, as already
pointed out, is to allow each member of the board to
contribute his ideas, arguments, and judgment to his
associates, so that the board's decision may be the judgment
of the whole. When one member's disagreement with the board
leads him to invoke the adversary system of justice against
the rest of the board, there is little likelihood that a
composite judgment on the matter can be reached through
discussion. Thus, no injury is done to the policy entitling
all board members to attend all board meetings if the
plaintiff board member is excluded from the board's private
consultations with its attorney. Admitting the plaintiff
board member to such attorney-client conferences would
moreover undermine the common law and statutory protection
given attorney-client communications and compromise the
efficacy of the adversary system of justice. We conclude
that the board member who has filed the lawsuit against
other members may be excluded from an executive session
during which the only agenda topic is the defense of the
lawsuit. We caution that this result is limited to the
specific facts presented here.
SUMMARY
The attorney-client privilege permits
the six members of a school board who have
been sued by another board member to exclude
the plaintiff board member from their execu-
tive session meetings held to consult with
the board's attorney about this lawsuit.
JIM MATTOX
Attorney General of Texas
WARYXEUER
First Assistant Attorney General
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Honorable Carl A. Parker - Page 5 (JM-1004)
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STE%KLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5161