The Attorney General of Texas
December 22, 1981
MARK WHITE
Attorney General
Supreme Court Building
Honorable Jim Mapel Opinion No. m-417
P. 0. Box 12546 Criminal District Attorney
Austin. TX. 76711 Brazoria County Courthouse Re: Application of open
5121475-2501 Angleton, Texas 77515 Meetings Law to joint execu-
Telex 9101674-1367 tive session of two political
Telecopier 51214750266
subdivisions
1607 Main St., Suite 1400 Dear Mr. Mapel:
Dallas. TX. 75201
21417428944
You have requested our opinion regarding the applicability of the
Open Meetings Act, article 6252-17, V.T.C.S., to a joint executive
4624 Alberta Ave.. Suite 160 session of two political subdivisions. You state that in May and June
El Paso, TX. 79905 1981, the governing bodies of the Brazes River Harbor Navigation
9151533-3464 District and the city of Quintana met jointly to discuss the formation
of an industrial district, and, in connection therewith, the
1220 Dallas Ave., Suite 202
annexation and deannexation of certain land. The respective bodies
Houston, TX. 77002 each posted notice of their individual meetings and then retired to a
713/650-0666 joint executive session. A quorum of each body was present at the
joint meeting. You ask:
606 Broadway, Suite 312
Lubbock, TX. 79401
1. Can the governing bodies of two political
6061747-5236 subdivisions discuss the formation of an
industrial district which would involve the
deannexation of lands owned by one of the
4309 N. Tenth, Suite B subdivisions in a joint executive session?
McAllen, TX. 76501
5121062-4547
2. Can the governing bodies of two political
subdivisions discuss the annexation by one
200 Main Plaza, Suite 400 subdivision of land owned by or under the control
San Antonio, TX. 76205 of the other?
5121225.4191
3. Does the annexation or deannexation of
An Equal Opportunity/ land amount to a 'land acquisition' and therefore
Affirmative Action Employer qualify as an exemption under the Tqxas Open
Meetings Law?
From the facts you have described, it would appear that the Open
Meetings Act was applicable to the joint meetings, since a quorum of
each body was present. See Attorney General Opinion MW-28 (1979).
Section 2(a) of the statute makes every "regular, special, or called
meeting or session" open to the public "except as otherwise provided
p. 1422
Honorable Jim Mapel - Page 2 (MW-417)
in this Act or specifically permitted in the Constitution." The only
exception listed in section 2 which might be applicable to the
situation you have described is section 2(f), which provides:
The public may be excluded from that portion of a
meeting during which a discussion is had with
respect to the purchase, exchange, lease, or value
of real property, negotiated contracts for
prospective gifts or donations to the state or the
governmental body, when such discussion would have
a detrimental effect on the negotiating position
of the governmental body as between such body and
a third person, firm or corporation.
It does not appear that a discussion of the formation of an
industrial district or the annexation or deannexation of land could
reasonably be construed to constitute a discussion of "the purchase,
exchange, lease, or value of real property." We need not decide this
issue, however, because you have not indicated how public discussion
of the described matters would have a detrimental effect on either
governmental body's negotiating position with respect to a third
party. As a result, the Brazes River Harbor Navigation District and
the city of Quintana were not authorized to meet jointly in executive
session, under the circumstances you have indicated, on the basis of
section 2(f).
A brief from the city of Quintana suggests that the litigation
exception authorized the district and town to meet in executive
session, since the discussions were intended to avoid litigation
between them. Section 2(e) of article 6252-17, V.T.C.S., provides as
follo"s:
consultations between a
gover~~~ntalPr~~ad:eand its attorney are not
permitted except in those instances in which the
body seeks the attorney's advice with respect to
pending or contemplated litigation, settlement
offers, and matters where the duty of a public
body's counsel to his client, pursuant to the Code
of Professional Responsibility of the State Bar of
Texas, clearly conflicts with this Act.
This provision gives public bodies,a right to privileged communication
on litigation with their counsel and it also recognizes that the Code
of Professional Responsibility would under some circumstances prohibit
an attorney from consulting publicly with his client. Attorney
General Opinion M-1261 (1972). -see Code of Professional
Responsibility, Canon 4.
In the present case, the two political subdivisions contemplated
suing one another. Neither party consulted privately with its
attorney but did so in the presence of its potential adversary, the
p. 1423
Honorable Jim Mapel - Page 3 &W-417)
party from whom it would normally conceal its intentions and strategy.
We do not believe section 2(e) applies to this discussion. It may not
. . .
be invoked on these facts to exclude the public from the discussion.
SUMMARY
The Brasos River Harbor Navigation District
and the city of Quintana were not authorized to
meet jointly in executive session, under the
circumstances described, on the basis of section
2(e), 2(f) t or any other exception to the Open
Meetings Act, article 6252-17, V.T.C.S., for the
purpose of discussing the formation of an
industrial district, and, in connection therewith,
the annexation and deannexation of certain land.
w+?xg
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1424