Can a Texas government board hand over the tape of its closed meeting when someone requests it under open records?

Texas AG Opinion JM-995: When Can a Board Release the Tape of a Closed Meeting?

Plain-English summary

The Newton County Appraisal District had a rough stretch. It lost a federal employment-discrimination lawsuit, was ordered to reinstate the plaintiff as chief appraiser, and had to pay damages and attorney's fees. Then it held a closed-door meeting to discuss what salary to pay that reinstated appraiser and taped the session. Afterward the district worried the meeting had been closed improperly, and someone filed an open-records request for the tape. A state senator brought two questions to the Attorney General on the district's behalf.

The first question was about a phrase in the judgment. The court ordered the attorney's fees recovered from the defendants "jointly and severally," and the district wanted to know whether that made the appraisal district alone liable for the whole amount or spread the liability across all the defendants. The Attorney General gave the standard answer. Joint and several liability means the person owed the money can go after any one defendant, several of them, or all of them together, whichever it prefers. So each defendant is equally on the hook, and the plaintiff picks how to collect. The opinion did not get into whether a defendant who pays more than its share can later demand reimbursement from the others, because that question was not asked.

The second question was the meatier one, and it is a useful lesson about how two open-government laws fit together. When a governmental body meets behind closed doors, the Open Meetings Act requires it to keep a record of that session, either a certified agenda or a tape. But that record is sensitive by design, because it captures exactly what officials said in a meeting the public was not allowed to attend. So the Act does not just leave the tape sitting in a filing cabinet subject to the usual open-records rules. Section 2A sets up a specific, court-supervised path: if someone sues claiming the meeting was improperly closed, a district judge can inspect the tape privately, in camera, and then order the body to hand over any portion of the meeting that should not have been closed. On top of that, the Act flatly forbids anyone from making such a tape public without lawful authority.

The Attorney General read that as an exclusive procedure. When the legislature spells out a particular method for doing something, it means that method and not others, an old principle the courts have applied for a century (Foster v. City of Waco goes back to 1923). So the appraisal district could not simply release the tape because it received an open-records request, even though the board suspected its own meeting had been closed improperly. The Attorney General took no position on whether the meeting actually was improperly closed. The point was narrower: the only lawful way to get that tape into public hands is the section 2A court procedure, and the board on its own had no authority to release it.

Currency note

This opinion was issued in 1988. 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.

The Open Meetings Act and Open Records Act were both later recodified: the Open Meetings Act (then V.T.C.S. article 6252-17) into Government Code chapter 551, and the Open Records Act (then article 6252-17a) into Government Code chapter 552. The certified-agenda-or-tape provisions of former section 2A now live in the Government Code, and their in camera inspection and disclosure procedures have their own later history. The core holding, that a closed-meeting record is released only through the statute's own court procedure and not on an ordinary records request, reflects the structure of the law as it stood in 1988; anyone handling a closed-meeting-record request today should consult the current Government Code chapters rather than the article numbers here.

Who this opinion affected (as of 1988)

Appraisal districts and other governmental bodies: The opinion told them that a tape or certified agenda of a closed meeting could not be handed out in response to an open-records request; release could come only through the section 2A court procedure, and unauthorized release was itself prohibited.

People seeking closed-meeting records: The opinion meant that the route to a closed-meeting tape ran through litigation and a district court's in camera review, not through a routine Open Records Act request to the body itself.

Defendants under a joint-and-several judgment: The opinion confirmed that a plaintiff holding a joint-and-several judgment may collect from any one defendant or all of them, so each defendant faced potential liability for the full amount.

Common questions

Can a government board release the tape of a closed meeting if it gets an open-records request?
No. In this opinion the Attorney General concluded that a closed-meeting tape or certified agenda may be released only through the section 2A court procedure of the Open Meetings Act, so the board had no authority to release it on an open-records request.

What is that court procedure?
Under section 2A, if litigation alleges an Open Meetings Act violation, a district court may inspect the certified agenda or tape in camera and, on final judgment, order the body to make public any part of a meeting that was not authorized to be closed.

Does it matter that the board thought the meeting was closed improperly?
The Attorney General expressed no opinion on whether the meeting was actually improperly closed. Even assuming it was, the board still lacked authority to release the tape outside the section 2A procedure.

What does "jointly and severally" liable mean in the judgment?
It means each defendant is equally liable and the plaintiff may collect from all of the defendants together or from any one or more of them, at the plaintiff's option, absent contrary language in the court's order.

Background and statutory framework

On the first question, the judgment ordered attorney's fees recovered from the defendants "jointly and severally." Quoting Black's Law Dictionary 972 (4th ed. 1968), the Attorney General noted that a liability is joint and several when the creditor may sue one or more of the parties separately, or all of them together, at its option. See generally 74 Am. Jur. 2d Torts § 66 (1974); Restatement (Second) of Torts §§ 875, 876 (1979). Absent contrary language in the judgment, each defendant is equally liable and the plaintiff may proceed against all of the defendants or against any one or more of them. The office did not address whether a defendant may recover by subrogation against another defendant if the plaintiff recovers wholly against the first.

On the second question, the district held a closed meeting under subsection 2(g) of the Open Meetings Act, V.T.C.S. article 6252-17, to discuss the salary of the former chief appraiser it was required to reinstate, and taped the executive session under section 2A rather than preparing a certified agenda. See Open Records Decision No. 495 (1988) (tape recordings of executive sessions in the custody of governing bodies are "information" under the Open Records Act). The board then received an Open Records Act request for the tape. Article 6252-17a, section 3(a), makes information collected, assembled, or maintained by governmental bodies public information. The board believed the meeting may have been improperly closed, but the Attorney General expressed no opinion on the actual impropriety of the meeting.

Section 2A of the Open Meetings Act requires a governing body to keep either a certified agenda or a tape of every closed meeting. Subsection (e) makes the certified agenda or tape available for in camera inspection by a district court if litigation involving an alleged violation of the Act has been initiated, and permits the court, on entry of a final judgment, to admit the record into evidence and to grant equitable or legal relief, including an order that the governmental body make available to the public the certified agenda or tape of any part of a meeting that was not authorized to be closed. Subsection (h) prohibits any individual, corporation, or partnership from knowingly making public, without lawful authority, the certified agenda or tape of a meeting or portion closed under the Act, and creates liability to an injured person for actual damages, court costs, attorney's fees, and exemplary damages; subsection (i) makes such an offense a Class B misdemeanor, and subsection (j) provides good-faith defenses. (Section 4 of the Act separately makes it a misdemeanor for a member to knowingly call, close, or participate in an improperly closed meeting.)

The Attorney General agreed with the suggestion that section 2A provides the only means of releasing a certified agenda or tape of a closed meeting. Where the legislature confers a power and prescribes a definite, certain method of procedure to be followed, other methods are impliedly excluded. Foster v. City of Waco, 255 S.W. 1104 (Tex. 1923); Citizens' Bank v. City of Terrell, 14 S.W. 1003 (Tex. 1890); see also Wilde v. Buchanan, 303 S.W.2d 518 (Tex. Civ. App. - Austin), writ ref'd n.r.e.; Johnston v. Calvert, 305 S.W.2d 778 (Tex. 1957); Steakley v. Braden, 322 S.W.2d 363 (Tex. Civ. App. - Austin 1959, writ ref'd n.r.e.); County School Trustees of Lubbock County v. Harral County Line Independent School Dist., 95 S.W.2d 204 (Tex. Civ. App. - Amarillo 1936, no writ). Sutherland on Statutory Construction applies the maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) to a statute that creates and regulates, prescribes the mode, and names the parties granted the right to invoke its provisions, so that the prescribed mode must be followed and none other. 2A N.J. Singer, Sutherland Statutory Construction § 47.23 (C. Sands 4th ed. 1984). Because section 2A empowers a court both to determine whether a meeting was improperly closed and to order disclosure, and specifically prohibits release without lawful authority, the Attorney General concluded that any public disclosure of a certified agenda or tape of a closed meeting must be accomplished only through the procedures set forth in the Act, and that the district's board was without authority to release the tape of the meeting assumed to be improperly closed.

Citations

Statutory authority:

• Open Meetings Act, V.T.C.S. art. 6252-17, § 2A (certified agenda or tape of closed meeting; in camera inspection and court-ordered disclosure; prohibition on unauthorized release)
• Open Meetings Act, V.T.C.S. art. 6252-17, § 2(g) (personnel exception permitting closed session)
• Open Meetings Act, V.T.C.S. art. 6252-17, § 4 (penalties for improperly closing a meeting)
• Open Records Act, V.T.C.S. art. 6252-17a, § 3(a) (definition of public information)

Cases:

• Foster v. City of Waco, 255 S.W. 1104 (Tex. 1923)
• Citizens' Bank v. City of Terrell, 14 S.W. 1003 (Tex. 1890)
• Wilde v. Buchanan, 303 S.W.2d 518 (Tex. Civ. App. - Austin), writ ref'd n.r.e.
• Johnston v. Calvert, 305 S.W.2d 778 (Tex. 1957)
• Steakley v. Braden, 322 S.W.2d 363 (Tex. Civ. App. - Austin 1959, writ ref'd n.r.e.)
• County School Trustees of Lubbock County v. Harral County Line Independent School Dist., 95 S.W.2d 204 (Tex. Civ. App. - Amarillo 1936, no writ)

Secondary authorities:

• Black's Law Dictionary 972 (4th ed. 1968)
• 74 Am. Jur. 2d Torts § 66 (1974)
• Restatement (Second) of Torts §§ 875, 876 (1979)
• 2A N.J. Singer, Sutherland Statutory Construction § 47.23 (C. Sands 4th ed. 1984)

Related opinions:

• Open Records Decision No. 495 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-995
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0995.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

December 19, 1988

Honorable Roy Blake
Chairman
Committee on Administration
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JM-995

Re: Liability of an appraisal district and its officers for damages awarded in a federal 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." 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 generally 74 Am. Jur. 2d Torts § 66 (1974); Restatement (Second) of Torts §§ 875, 876 (1979). Thus, absent any language in the court's 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 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, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints 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.

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 maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information. . . ." This office already has held that tape recordings of executive sessions in the custody of governing bodies are "information" 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 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, including an order that the governmental body make available to the public the certified agenda or tape of any part of a meeting that was not authorized to be closed under 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

V.T.C.S. art. 6252-17, § 2A(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. City of Waco, 255 S.W. 1104 (Tex. 1923); Citizens' Bank v. City of Terrell, 14 S.W. 1003 (Tex. 1890); see also Wilde v. Buchanan, 303 S.W.2d 518 (Tex. Civ. App. - Austin), writ ref'd n.r.e.; Johnston v. Calvert, 305 S.W.2d 778 (Tex. 1957); Steakley v. Braden, 322 S.W.2d 363 (Tex. Civ. App. - Austin 1959, writ ref'd n.r.e.); County School Trustees of Lubbock County v. Harral County Line Independent School Dist., 95 S.W.2d 204 (Tex. Civ. App. - Amarillo 1936, no writ). Sutherland on Statutory Construction declares:

As the maxim [expressio 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 § 47.23 (C. Sands 4th ed. 1984). (Footnotes omitted.)

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. See 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.

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 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 or imprisonment in the county jail for not less 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 in contravention 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 or imprisonment in the county jail for not less than one month nor more than six months or both.

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 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.

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

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