Can a school board keep a board member who is suing the board out of a closed-door meeting about that lawsuit?

Texas AG Opinion JM-1004: Can a School Board Shut Out a Trustee Who Is Suing It?

Plain-English summary

A school district trustee had done something unusual: he sued the other six members of his own board in federal court. The board naturally needed to meet with its lawyer to plan a defense, and it wanted to do that in a closed session without the plaintiff trustee in the room. A state senator asked the Attorney General whether that was allowed. The tension is real. On one side is the bedrock rule that every member of a governing board has the right to be at every meeting, because a board decision is supposed to be the pooled judgment of all its members. On the other side is the equally old rule that a client gets to talk to its lawyer in private.

The Attorney General came down on the side of the private consultation. He started with the Open Meetings Act, which lets a governmental body close a litigation-strategy meeting to the general public when it is getting advice from its attorney. That provision handles keeping the public out, but it says nothing about keeping out a board member, so the answer had to come from somewhere else. It came from the attorney-client privilege. The six sued members, as the board's real decision-makers in the lawsuit, had a right to confer with their lawyer confidentially and outside the presence of the person suing them. If the plaintiff trustee could sit in on those sessions, the privilege would be worthless and the board's litigation plan would flow straight to its adversary.

The usual rule about every member attending exists so each person can add their experience and argument and the board's decision reflects the whole body. But the Attorney General pointed out that when one member is so at odds with the board that he has taken it to court, there is little realistic chance of reaching a shared judgment with him in the room, so excluding him from the private consultation does no damage to the purpose behind the attendance rule. Admitting him, by contrast, would undermine the common-law and statutory protection for attorney-client communications and blunt the adversary system. So the board could keep the suing trustee out of the executive session about the lawsuit. The Attorney General was careful to add that this conclusion is tied to these specific facts, not a general license to bar board members from meetings.

Currency note

This opinion was issued in 1989. 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.

Several of the authorities cited here have been recodified. The Open Meetings Act (article 6252-17, V.T.C.S.), including the attorney-consultation provision quoted as section 2(e), was recodified as chapter 551 of the Government Code, and the litigation and attorney-consultation exception now appears in that chapter. The Education Code provision on a school district's capacity to sue and be sued (section 23.26(a)) has been renumbered in the recodified Education Code. The Texas Rules of Civil Evidence have been merged into the unified Texas Rules of Evidence, though the lawyer-client privilege in Rule 503 remains. Anyone dealing with a closed-session or attorney-client question involving a governmental body today should consult the current chapter 551 of the Government Code, the current Education Code, and the current Rules of Evidence rather than the 1989 provisions cited here.

Who this opinion affected (as of 1989)

School boards and other governmental bodies facing suit by one of their own members: The opinion let them consult their attorney in a closed session about the lawsuit without the member-plaintiff present.

A trustee who sues fellow board members: The opinion told such a member he could be shut out of the board's private litigation-strategy sessions on that suit, even though he otherwise had a right to attend board meetings.

The public: The opinion did not open these sessions to the public; the Open Meetings Act already allowed the board to close a litigation-consultation meeting.

Common questions

Can a Texas school board keep a member who sued it out of a closed meeting about the lawsuit?
Yes. In this opinion the Attorney General concluded that the board may exclude the suing trustee from an executive session held to consult the board's attorney about defending that suit.

Doesn't every board member have the right to attend every meeting?
As a general rule, yes, so the board's decision reflects the judgment of the whole body. But the Attorney General recognized a narrow exception grounded in the attorney-client privilege when a member has made himself the board's adversary by suing it.

Why does the attorney-client privilege matter here?
The sued members have a right to confer privately with their lawyer, away from the opposing party. If the plaintiff trustee could attend, the privilege would be stripped of value and the board's litigation strategy would be exposed to the person suing it.

Is this a broad rule that boards can exclude members they dislike?
No. The Attorney General expressly limited the conclusion to the specific facts: a member who has sued the board, excluded only from executive sessions to consult counsel about that lawsuit.

Background and statutory framework

The six board members were meeting as a governing body subject to the Open Meetings Act, having apparently determined that the suit was brought against them in their capacity as representatives of the school district (see generally Attorney General Opinion JM-824 (1987)). Executive sessions to discuss litigation are permitted by article 6252-17, section 2(e), V.T.C.S., which allows a governmental body to consult its attorney privately about pending litigation and where the duty of counsel under the State Bar's Code of Professional Responsibility clearly conflicts with the Act. That provision lets the body exclude the general public, but it does not address excluding a board member.

A board that exercises authority delegated by the legislature must act as a body at a meeting of which all members have notice or an opportunity to attend (Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75, 76 (Tex. 1942)). The purpose of that rule is to afford each member the opportunity to be present and to give his associates the benefit of his experience, counsel, and judgment, so the decision is the composite judgment of the body as a whole. This common-law rule applies to school district trustees (Garcia v. Angelini, 412 S.W.2d 949 (Tex. Civ. App. - Eastland 1967, no writ) (trustees could not remove other trustees or bar them from participation); see also Attorney General Opinion JM-119 (1983); Birdville Indep. School Dist. v. Deen, 141 S.W.2d 680 (Tex. Civ. App. - Fort Worth 1940), aff'd, 159 S.W.2d 111 (Tex. 1942)). Each board member would ordinarily be entitled to attend all board meetings.

The board of trustees may sue and be sued in the name of the school district (Educ. Code § 23.26(a)) and may employ an attorney where the district's interests require assertion or defense in court (Graves & Houtchens v. Diamond Hill Indep. School Dist., 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ)). The right to retained counsel in civil litigation is inherent in the adversary system (Mosley v. St. Louis Southwestern Railway, 634 F.2d 942 (5th Cir.), cert. denied, 452 U.S. 906 (1981)). Confidential communications between an attorney and client are privileged in civil cases (Cochran v. Cochran, 333 S.W.2d 635 (Tex. Civ. App. - Houston [1st Dist.] 1960, writ ref'd n.r.e.)), and Texas Rule of Civil Evidence 503 provides a lawyer-client privilege that defines "client" to include a public officer or public entity; the privilege exists for the client's benefit (Ex parte Lipscomb, 239 S.W. 1101 (Tex. 1922); Bearden v. Boone, 693 S.W.2d 25 (Tex. App. - Amarillo 1985, no writ)). Attorney General Opinion M-1261 (1972) held that the policy underlying the privilege permits governmental bodies to consult privately with their attorney. As the California decision relied on in that opinion explained, the privilege serves a policy assuring private consultation, and if client and counsel must confer in public view both privilege and policy are stripped of value (Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 69 Cal. Rptr. 480, 489 (Cal. App. 1968); see also City of San Antonio v. Aguilar, 670 S.W.2d 681 (Tex. App. - San Antonio 1984, writ dism'd n.r.e.)).

That policy applies to the six members sued by an individual trustee: they have a right to communicate privately with their attorney outside the presence of the opposing party. Because a member's decision to invoke the adversary system against the rest of the board makes a composite judgment unlikely, excluding him from the board's private consultation with counsel does no injury to the policy behind the attendance rule, while admitting him would undermine the protection given attorney-client communications and compromise the adversary system. The Attorney General therefore concluded that the plaintiff board member may be excluded from an executive session whose only agenda topic is the defense of the lawsuit, cautioning that the result is limited to the specific facts presented.

Citations

Statutory authority:

• Tex. Rev. Civ. Stat. art. 6252-17 (Open Meetings Act), § 2(e) (private attorney consultation on pending litigation)
• Education Code § 23.26(a) (school district may sue and be sued)
• Tex. R. Civ. Evid. 503 (lawyer-client privilege)

Cases:

• Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75 (Tex. 1942)
• Garcia v. Angelini, 412 S.W.2d 949 (Tex. Civ. App. - Eastland 1967, no writ)
• Birdville Indep. School Dist. v. Deen, 141 S.W.2d 680 (Tex. Civ. App. - Fort Worth 1940), aff'd, 159 S.W.2d 111 (Tex. 1942)
• Graves & Houtchens v. Diamond Hill Indep. School Dist., 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ)
• Mosley v. St. Louis Southwestern Railway, 634 F.2d 942 (5th Cir.), cert. denied, 452 U.S. 906 (1981)
• Cochran v. Cochran, 333 S.W.2d 635 (Tex. Civ. App. - Houston [1st Dist.] 1960, writ ref'd n.r.e.)
• Ex parte Lipscomb, 239 S.W. 1101 (Tex. 1922)
• Bearden v. Boone, 693 S.W.2d 25 (Tex. App. - Amarillo 1985, no writ)
• Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 69 Cal. Rptr. 480 (Cal. App. 1968)
• City of San Antonio v. Aguilar, 670 S.W.2d 681 (Tex. App. - San Antonio 1984, writ dism'd n.r.e.)

Related opinions:

• Attorney General Opinions JM-824 (1987), JM-119 (1983), M-1261 (1972)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1004
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1004.pdf

Original opinion text

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

January 10, 1989

Honorable Carl A. Parker
Chairman
Education Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JM-1004

Re: Whether member of school district board of trustees who has sued the other six members may be excluded from an executive session held to discuss the litigation (RQ-1493)

Dear Senator Parker:

You inform us that a member of the board of trustees of a school district has sued the other six board members in federal court. The claim was denied by a three member panel of federal judges but an appeal has been filed. You ask the following question:

Can the member which has filed the lawsuit against other members be excluded from an executive session during which the only agenda topic is the defense of the lawsuit?

Your question refers to an executive session for discussion of the lawsuit, thereby indicating that the six board members are meeting in their capacity as a governing body subject to the Open Meetings Act. We assume that they have determined that the litigation was brought against them in their capacity as representatives of the school district. See generally Attorney General Opinion JM-824 (1987) (suit by member of commissioners court against district attorney and sheriff). Executive session meetings to discuss litigation are permitted by the following provision of the Open Meetings Act:

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 . . . litigation . . . 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.

V.T.C.S. art. 6252-17, § 2(e).

This provision allows the governmental body to exclude the general public from its discussions of litigation but it does not address the exclusion of a board member from an executive session on litigation brought against the board by that board member. A board which exercises authority delegated to it by the legislature "must act thereon as a body at a stated meeting, or one properly called, and of which all the members of such board have notice, or of which they are given an opportunity to attend." Webster v. Texas & Pacific Motor Transport Co., 166 S.W.2d 75, 76 (Tex. 1942). The purpose of this rule is

to afford each member of the body opportunity to be present and to impart to his associates the benefit of his experience, counsel, and judgment, and to bring to bear upon them the weight of his argument on the matter to be decided by the Board, in order that the decision . . . may be the composite judgment of the body as a whole.

Id. at 77.

This is a common law rule which applies to the board of trustees of a school district. See Garcia v. Angelini, 412 S.W.2d 949 (Tex. Civ. App. - Eastland 1967, no writ) (trustees of school district could not remove other trustees from office nor bar them from participation in meetings and proceedings of school board); see also Attorney General Opinion JM-119 (1983); Birdville Indep. School Dist. v. Deen, 141 S.W.2d 680 (Tex. Civ. App. - Fort Worth 1940), aff'd, 159 S.W.2d 111 (Tex. 1942). Each board member would ordinarily be entitled to attend all board meetings. However, under the circumstances you inquire about, we believe that the board of trustees may exclude the trustee who has sued it from executive session meetings held to consult with its attorney about this lawsuit.

The board of trustees may sue and be sued in the name of the school district. Educ. Code § 23.26(a). The trustees of an independent school district may employ an attorney where the district's interests require assertion or defense in court. Graves & Houtchens v. Diamond Hill Indep. School Dist., 243 S.W. 638 (Tex. Civ. App. - Fort Worth 1922, no writ). The right to the advice and assistance of retained counsel in civil litigation is inherent in the idea of an adversarial system of justice. Mosley v. St. Louis Southwestern Railway, 634 F.2d 942 (5th Cir.), cert. denied, 452 U.S. 906 (1981) (right to assistance of counsel in civil litigation and administrative proceedings).

It is well established in the common law that confidential communications between an attorney and his client are privileged in civil cases. Cochran v. Cochran, 333 S.W.2d 635 (Tex. Civ. App. - Houston [1st Dist.] 1960, writ ref'd n.r.e.); see Attorney General Opinion M-1261 (1972). Rule 503 of the Texas Rules of Civil Evidence expressly provides a lawyer-client privilege and defines client as "a person, public officer, or corporation, association, or other organization or entity, either public or private" who consults a lawyer or receives legal services from a lawyer. Tex. R. Evid. 503. The privilege exists for the benefit of the client. Ex parte Lipscomb, 239 S.W. 1101 (Tex. 1922); Bearden v. Boone, 693 S.W.2d 25 (Tex. App. - Amarillo 1985, no writ).

The attorney-client privilege is a barrier to the attorney's testimony about confidential communications. Tex. R. Evid. 503; see Ex parte Lipscomb, supra. It has also been held to authorize private consultations between attorney and client. Attorney General Opinion M-1261 (1972) held that the policy underlying this privilege permits governmental bodies to consult privately with their attorney even though the Open Meetings Act did not at that time expressly allow such private consultations. A California case relied upon by Attorney General Opinion M-1261 states as follows:

Plaintiffs do not dispute the availability of the lawyer-client privilege to public officials and their attorneys. They view it as a barrier to testimonial compulsion, not a procedural rule for the conduct of public affairs. The view is too narrow. The privilege against disclosure is essentially a means for achieving a policy objective of the law. The objective is to enhance the value which society places upon legal representation by assuring the client full disclosure to the attorney unfettered by fear that others will be informed. . . . [Citations omitted.] The privilege serves a policy assuring private consultation. If client and counsel must confer in public view and hearing, both privilege and policy are stripped of value.

Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 69 Cal. Rptr. 480, 489 (Cal. App. 1968). See also City of San Antonio v. Aguilar, 670 S.W.2d 681 (Tex. App. - San Antonio 1984, writ dism'd n.r.e.) (stating that public meeting on city's decision to appeal case would have violated attorney-client privilege as discussed in Sacramento Newspaper Guild).

The policy assuring private consultation also applies to the six members of the school board who have been sued by an individual school trustee. They have a right to communicate privately with their attorney outside of the presence of the opposing party in the lawsuit. This policy, in our opinion, justifies an exception from the usual rule that each board member must have an opportunity to attend all board meetings. The purpose of this rule, as already pointed out, is to allow each member of the board to contribute his ideas, arguments, and judgment to his associates, so that the board's decision may be the judgment of the whole. When one member's disagreement with the board leads him to invoke the adversary system of justice against the rest of the board, there is little likelihood that a composite judgment on the matter can be reached through discussion. Thus, no injury is done to the policy entitling all board members to attend all board meetings if the plaintiff board member is excluded from the board's private consultations with its attorney. Admitting the plaintiff board member to such attorney-client conferences would moreover undermine the common law and statutory protection given attorney-client communications and compromise the efficacy of the adversary system of justice. We conclude that the board member who has filed the lawsuit against other members may be excluded from an executive session during which the only agenda topic is the defense of the lawsuit. We caution that this result is limited to the specific facts presented here.

SUMMARY

The attorney-client privilege permits the six members of a school board who have been sued by another board member to exclude the plaintiff board member from their executive session meetings held to consult with the board's attorney about this lawsuit.

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

Prepared by Susan L. Garrison
Assistant Attorney General