The Attorney General of Texas
December 30, 1983
JIM MATTOX
Attorney General
Supreme Court Building Honorable Stan Schlueter Opinion No. JM-122
P. 0. Box 12546 Chairman
Austin. TX. 7671% 2546 Cormaitteeon Ways & Means lb?: Effectiveness of House
512/47kn-2501
Telex 910/674.1367
Texas House of Representatives committee rules relating to
Telecopier 512/475-0266 P. 0. Box 2910 confidentiality of information
Austin, Texas 78769 considered by subcommittee
714 Jackson, Suite 700
Dear Representative Schlueter:
Dallas, TX. 75202.4506
2141742.6944
You have requested our opinion regarding the validity of certain
provisions of House Resolution No. 1~14,adopted by the House on April
4624 Alberta Ave., Suite 160 27. 1983. Certain provisions of those rules attempt to contravene
El Paso, TX. 799052793
portions of the Open Records Act, article 6252-17a. V.T.C.S., so as to
915/5333464
except from disclosure information not presently excepted by that
statute. You first ask:
pKu Texas, Sub 700
rlouston, TX. 77002.3111 1. Are the applicable provisions of. . . House
7131223-5666 Resolution No. 114 effective despite the Open
Records Act. . . because of the provision in
606 Broadway. Suite 312
article III, section 11 of the Texas Constitution
Lubbock, TX. 79401.3479 that each house determines the rules of its own
6061747-5236 proceedings?
Article III, section 11 of the Texas Constitution provides, in
4309 N. Tenth, Suite B
McAllen. TX. 76501-1665 pertinent part:
512/662-4547
Each house may determine the rules of its own
proceedings. . .
200 Main Plaza. Suite 400
San Antonio, TX. 76205.2797
5121225-4191 In our opinion, the term "rules of its own proceedings" must be
construed narrowly to apply only to matters of procedure. Legislation
governing the dissemination of information in the custody of members
An Equal Opportunity/ of the House of Representatives, or by committees or subcommittees
Affirmative Action Employer
thereof may not properly be so characterized. In Pickus v. United
States Board of Parole, 507 F.2d 1107 (D.C. Cir. 1974), a federal
appellate court said that the term "rules of agency organization,
practice or procedure" means technical regulations of the form of
agency action and proceedings and does not include action which goes
beyond formality and substantially affects substantive rights. -Id. at
1108.
p. 515
Honorable Stan Schlueter - Page 2 (JM-122)
Furthermore, article 6252-17a, enacted in 1973 by the Sixty-third
Legislature, specifically includes the legislature within the scope of
the act. Section 2(A). We do not believe that one house of the
legislature, under the guise of its rule-making authority, may remove
itself from the coverage of a specific substantive law that has been
enacted by both houses of the legislature and signed by the governor,
nursuant to article III. section 1 of the Texas Constitution. which
;ests the "legislative power of this State. . . in a Senate and House
of Representatives . . . ." In Heiskell v. City of Baltimore, 4A. 116
(Md. 1886), the court of appeals of Maryland said:
When the constitution of the United States gave to
each house of congress, 2nd the constitution of
the state of Maryland the right to each house of
the general assembly, to determine its rules of
proceeding, it was never held for a moment that
such a right included the power to change any
existing statute or common law.
4A.. at 118-19. Accord, Heyker v. Herbst, 50 S.W. 859, 860 (Ky.
1899).
In Senate Select Committee on Presidential Campaign Activities v.
Nixon, 366 F.Supp. 51 (D.C. 1923). the federal court held that a
statute enacted by both houses of Congress controls over a resolution
adopted by one house. Id. at 56, n. 8. Doyle v. Hofstader, 177 N.E.
489, 494 (N.Y. 1931). theNew York court said that a resolution of one
House of the Legislature is invalid and of no effect if it is in
conflict with general law. To the extent that House Resolution No.
114 is in conflict with article 6252-17a, we believe it is invalid.
We emphasize that, if the legislature wishes to adopt a resolution
similar to House Resolution No. 114, the proper procedure for doing so
is by amending the Open Records Act.
Your second question is:
2. If the Open Records Act does govern the
subcommittee proceedings, is a rule of the House
of Representatives considered a 'law' for the
purposes of section 3(a)(l) of the act so that
information deemed confidential under. . . House
Resolution No. 114 would be excepted under section
3(a)(l)?
As we have noted, for purposes of the Open Records Act, the House of
Representatives is a "public body" subject to that statute's
provisions. In Industrial Foundation of the South v. Texas Industrial
Accident Board, 540 S.W.2d 668 (Tex. 1976), the Supreme Court of Texas
said that, while a rule enacted by a public body may have the force
p. 516
Honorable Stan Schlueter - Page 3 (JM-122)
and effect of statute in other contexts, a governmental agency is not
permitted to bring its records within the ambit of the exception of
section 3(a)(l) merely by the promulgation of a rule. The court
declared:
To imply such authority merely from general
rule-making powers would be to allow the agency to
circumvent the very purpose of the Open Records
Act.
540 S.W.2d, at 677. See also Open Records Decision Nos. 173, 152
(1977).
Your final question is:
3. Would 'subcommittee sensitive information
or material' as defined by rule 9, section l(a) of
House Resolution No. 114 be covered by any other
exception under section 3(a) of the Open Records
Act?
Section l(a) of rule 8 of the proposed rules defined "subcommittee
sensitive information or material" as:
information or material in the possession of the
subcommittee that pertains to illegal or improper
conduct by a present or former member, officer, or
employee of the house; to allegations or
accusations of such conduct; to any resulting
preliminary inquiry, initial review, or
investigation by the subconrmittee into the
allegations or conduct; or to the investigative
techniques and procedures of the subcommittee.
Such information might possibly be withheld under a number of
exceptions in section 3(a) of the Open Records Act: under section
3(a)(l). as information within the scope of common law privacy or the
informer's privilege; under section 3(a)(2), as information within the
scope of employee privacy; under section 3(a)(3), as information
contained in interagency or intraagency memoranda or documents.
Neither do these examples necessarily exhaust the list of potential
exceptions. We can determine the applicabi~lityof specific exceptions
only when presented with particular documents for which exceptions are
claimed.
SUMMARY
Article III, section 11 of the Texas
Constitution, authorizing each house to determine
p. 517
Honorable Stan Schlueter - Page 4 (JM-122)
the rules of its own proceedings, applies to
matters of procedure. House Resolution No. 114 is
invalid to the extent it conflicts with article
6252-17a, V.T.C.S. However, certain "committee
sensitive information" may possibly be withheld
under a number of exceptions in section 3(a) of
the Open Records Act.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairnan
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 518