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)
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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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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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