The Texas Attorney General’s Office recently released an important legal opinion (KP-0475) that addresses questions surrounding the Texas Open Meetings Act (TOMA). The opinion, requested by Hood County Attorney Matthew A. Mills, was issued on October 2, 2024. The inquiry involved the legality of a governmental body convening an executive session without sufficient public notice and whether hiring legal counsel could be discussed privately under TOMA’s attorney-consultation exception.
The case raised key concerns regarding the transparency of public meetings, specifically about what must be explicitly stated on meeting agendas when governmental bodies intend to enter closed executive sessions. Additionally, it scrutinized how far TOMA’s attorney-client exception could be stretched in closed-door discussions about hiring legal representation.
Background: The Role of the Texas Open Meetings Act (TOMA)
TOMA is designed to promote transparency and ensure that governmental decision-making is conducted in public. The Act applies to various governing bodies in Texas, including special districts like the Hood County Hospital District, and requires that public notices of meetings be specific about the topics to be discussed. Exceptions are allowed for closed-door executive sessions in certain situations, such as discussions of legal matters, personnel decisions, and real estate transactions.
In this case, Hood County’s inquiry stemmed from a specific meeting held by the Hospital District’s board, where it convened an executive session based on boilerplate language in the public notice. This language suggested that the board could enter an executive session “to discuss any of the matters listed” on the agenda, though key topics—including hiring a law firm—were not explicitly listed.
Issue 1: Insufficiency of Boilerplate Language in Public Notices
Mills requested clarity from the Attorney General’s Office on whether the use of broad, boilerplate language at the bottom of meeting agendas was sufficient notice under TOMA. This issue came to light after the board used such language to enter into an executive session during the meeting in question. The agenda contained only vague references to potential closed sessions without specifically identifying the topics of discussion, such as hiring a law firm for a tax rate election.
In response, the Attorney General’s Office firmly ruled that such generic language does not meet the standards of TOMA. According to the opinion, merely stating that an executive session might occur, without providing specific details about the subjects to be discussed, violates the Act’s notice requirements.
TOMA requires that notices must “alert the general public” to the topics to be considered during a meeting, including those discussed behind closed doors. The Attorney General emphasized that simply stating an executive session “may” occur under certain legal provisions does not provide enough information for the public to understand the scope of the meeting.
Key point: The opinion underscored that governmental bodies must provide detailed notice of the subjects to be addressed in both open and closed sessions. This notice must be specific enough to ensure transparency and public accountability, and boilerplate language alone is insufficient.
Issue 2: Attorney-Consultation Exception and Hiring Legal Counsel
The second question raised by Mills involved whether the Hospital District’s board could properly enter into a closed session to discuss hiring a law firm to represent the District in connection with a tax rate election. The board had used TOMA’s attorney-consultation exception, found in Section 551.071, to justify the executive session.
TOMA allows governmental bodies to meet privately with an attorney under certain conditions, including when seeking legal advice related to ongoing or potential litigation or where the attorney’s ethical duty conflicts with public discussion. The opinion clarified that this exception extends to discussions about hiring legal counsel, even before an attorney is formally retained, as long as the discussions pertain to legal services and are protected by attorney-client privilege.
The Attorney General’s Office concluded that discussions about hiring a law firm could indeed fall under the attorney-consultation exception. However, it provided important limits: the closed session could only be used to discuss legal matters relevant to the attorney’s services and advice. Any broader discussion of policy matters, unrelated to legal advice, would violate TOMA’s rules for executive sessions.
Key point: The opinion affirmed that while closed-door consultations with an attorney about hiring legal representation are permitted, they must remain focused on legal advice. Discussions that veer into general policy or non-legal matters must be conducted in open session to comply with TOMA.
Legal Precedents and Rationale for the Opinion
The Attorney General’s opinion relied on legal precedents to frame its conclusions, citing court rulings that have consistently required governmental bodies to provide sufficient public notice of both open and closed meetings. In particular, it pointed to a 1991 Texas Supreme Court case, City of San Antonio v. Fourth Court of Appeals, which held that the public must be given adequate notice of the governmental actions under consideration.
Additionally, the opinion referenced Rule 503 of the Texas Rules of Evidence, which defines attorney-client privilege and is incorporated into TOMA. The Attorney General emphasized that discussions intended to obtain legal services are protected by privilege, even if an attorney has not yet been formally retained.
However, the opinion warned that governmental bodies cannot use the presence of an attorney as a pretext to conduct broad discussions in private. The courts have repeatedly ruled that TOMA’s exceptions must be interpreted narrowly to protect public access to government decision-making.
Broader Implications for Government Transparency
This ruling has significant implications for all governmental bodies subject to TOMA, particularly regarding the proper use of executive sessions and the clarity required in meeting agendas. The Attorney General’s opinion reinforces that public officials must be transparent and specific when planning closed sessions, ensuring that citizens are fully informed about the actions being taken behind closed doors.
For the public, this opinion is a victory for transparency, ensuring that vague or generic notices are not enough to shield government deliberations from public view. Governmental bodies will need to ensure that they provide precise and clear language on their meeting agendas moving forward.
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Additionally, while every effort is made to ensure the reliability of the information, the publication does not warrant the completeness, accuracy, or timeliness of the content. Readers are encouraged to verify any legal information with official sources and to use their discretion when interpreting and applying the information provided.
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