When could a Texas governmental body meet privately with its attorney under the Open Meetings Act?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-100: Closed Meetings With a Government Attorney
Plain-English summary
JM-100 concluded that a Texas governmental body could meet privately with its attorney about pending or contemplated litigation, settlement offers, or legal matters on which it sought or received the attorney's advice.
"Pursuant to section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act, a governmental body may meet with its attorney in executive session only with respect to pending or contemplated litigation or settlement offers, or to seek or receive the attorney's advice with regard to legal matters."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
The attorney's presence did not permit a closed general policy discussion unrelated to legal issues.
"General discussion of policy, unrelated to legal matters, is not permitted merely because an attorney is present."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
For a discussion not tied to a specific legal proceeding, the closed portion had to stay confined to legal matters.
"If the discussion does not relate to a specific legal proceeding, the closed door discussion with the attorney must be limited to legal matters."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Could a governmental body always close a meeting when its attorney attended?
No. JM-100 said attorney attendance alone did not justify excluding the public from a policy discussion unrelated to legal matters.
"General discussion of policy, unrelated to legal matters, is not permitted under the language of section 2(e) merely because an attorney is present."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Could the body meet privately about litigation or a settlement offer?
Yes. Section 2(e) expressly allowed private attorney consultation concerning pending or contemplated litigation and settlement offers.
"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 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf"Clearly, a governmental body may meet in executive session with its attorney in any instance in which it seeks the attorney's advice 'with respect to pending or contemplated litigation [or] settlement offers.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
What kind of attorney communication supported a closed session?
JM-100 focused on communications related to legal opinions, legal services, or assistance in a legal proceeding.
"The crux of these requirements for purposes of section 2(e) is that the communication must be related to an opinion on law or legal services or assistance in some legal proceeding."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Did the legal matter have to involve an already filed lawsuit?
No. The statute and holding also covered contemplated litigation and legal advice. For a matter unrelated to a specific pending or contemplated proceeding, however, the private discussion had to remain limited to legal issues.
"Thus, a governmental body may hold an executive session to seek or receive the advice of its attorney only with regard to matters in which it seeks the attorney's legal advice, or with regard to matters which relate to a specific pending or contemplated legal proceeding."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Background and legal framework
The Pecos County Attorney asked how to construe section 2(e) of the Open Meetings Act.
"You have requested our opinion regarding the proper construction of section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
The opinion connected the statutory exception to the lawyer's professional duty to preserve client confidences and secrets.
"Canon 4 of the Texas Code of Professional Responsibility . . . provides that '[a] lawyer should preserve the confidences and secrets of a client.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
JM-100 also quoted the attorney-client privilege formulation from United States v. United Shoe Machinery Corp., including requirements that the communication be made to a lawyer for legal advice, legal services, or help in a legal proceeding, outside the presence of strangers, and that the privilege be claimed and not waived.
"The privilege applies only if . . . the person to whom the communication was made . . . in connection with this communication is acting as a lawyer [and] the communication relates to a fact of which the attorney was informed . . . for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Holding
"Pursuant to section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act, a governmental body may meet with its attorney in executive session only with respect to pending or contemplated litigation or settlement offers, or to seek or receive the attorney's advice with regard to legal matters. General discussion of policy, unrelated to legal matters, is not permitted merely because an attorney is present."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0100
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0100.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
December 19, 1983
Honorable W. C. McDonald
Pecos County Attorney
Courthouse
Fort Stockton, Texas 79735
Opinion No. JM-100
Re: Construction of section 2(e) of the Open Meetings Act, article 6252-17, V.T.C.S.
Dear Mr. McDonald:
You have requested our opinion regarding the proper construction of section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act. That section provides:
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 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.
Clearly, a governmental body may meet in executive session with its attorney in any instance in which it seeks the attorney's advice "with respect to pending or contemplated litigation [or] settlement offers." We must determine, however, the scope of the following:
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.
Canon 4 of the Texas Code of Professional Responsibility, article 320a-1, V.T.C.S., Title 14, Appendix A, article 12, section 8, provides that "[a] lawyer should preserve the confidences and secrets of a client." Professor Wigmore's definition of the attorney-client privilege is perhaps the most frequently quoted:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at [the client's] instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
8 Wigmore, Evidence §2292, at 554. The classic case law definition of the privilege is that articulated by the court in United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950):
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
This definition, as well as the Wigmore formulation of the privilege, was cited with approval by the Fifth Circuit in In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975).
The crux of these requirements for purposes of section 2(e) is that the communication must be related to an opinion on law or legal services or assistance in some legal proceeding. Thus, a governmental body may hold an executive session to seek or receive the advice of its attorney only with regard to matters in which it seeks the attorney's legal advice, or with regard to matters which relate to a specific pending or contemplated legal proceeding. If the discussion does not relate to a specific legal proceeding, the closed door discussion with the attorney must be limited to legal matters. General discussion of policy, unrelated to legal matters, is not permitted under the language of section 2(e) merely because an attorney is present.
SUMMARY
Pursuant to section 2(e) of article 6252-17, V.T.C.S., the Open Meetings Act, a governmental body may meet with its attorney in executive session only with respect to pending or contemplated litigation or settlement offers, or to seek or receive the attorney's advice with regard to legal matters. General discussion of policy, unrelated to legal matters, is not permitted merely because an attorney is present.
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, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
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