Could one chamber of the Texas Legislature make committee records confidential by adopting its own rules?
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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-122: House Rules and Open Records Confidentiality
Plain-English summary
JM-122 concluded that a Texas House resolution was invalid to the extent it conflicted with the Open Records Act. The constitutional power of each chamber to set its own procedural rules did not let one chamber change a substantive statute enacted by both chambers and signed by the governor.
"To the extent that House Resolution No. 114 is in conflict with article 6252-17a, we believe it is invalid."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf"We do not believe that one house of the legislature, under the guise of its rule-making authority, may remove itself from the coverage of a specific substantive law that has been enacted by both houses of the legislature and signed by the governor."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
The House could not turn records into confidential information for section 3(a)(1) merely by adopting a rule. The opinion relied on the Texas Supreme Court's conclusion that a public body's general rulemaking power could not be used to evade the Open Records Act.
"[A] governmental agency is not permitted to bring its records within the ambit of the exception of section 3(a)(1) merely by the promulgation of a rule."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
The opinion did not conclude that every item described as committee-sensitive had to be released. Particular documents might qualify for existing exceptions, including common-law privacy, the informer's privilege, employee privacy, or the exception for interagency and intraagency memoranda.
"Such information might possibly be withheld under a number of exceptions in section 3(a) of the Open Records Act: under section 3(a)(1), as information within the scope of common law privacy or the informer's privilege; under section 3(a)(2), as information within the scope of employee privacy; under section 3(a)(3), as information contained in interagency or intraagency memoranda or documents."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.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
Did the Texas Constitution let the House override the Open Records Act through a chamber rule?
No. JM-122 read article III, section 11 narrowly as authority over procedural matters, not authority for one chamber to change a substantive disclosure law.
"In our opinion, the term 'rules of its own proceedings' must be construed narrowly to apply only to matters of procedure."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
Could a House rule itself count as a law making records confidential?
No. The opinion said that allowing a public body to manufacture a confidentiality exception through its general rulemaking authority would defeat the purpose of the Open Records Act.
"To imply such authority merely from general rule-making powers would be to allow the agency to circumvent the very purpose of the Open Records Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
How could the Legislature lawfully adopt the confidentiality policy in House Resolution No. 114?
The opinion said the Legislature would need to amend the Open Records Act.
"We emphasize that, if the legislature wishes to adopt a resolution similar to House Resolution No. 114, the proper procedure for doing so is by amending the Open Records Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
Did JM-122 decide whether any particular committee document was confidential?
No. It said the office could decide whether an exception applied only after reviewing the specific documents for which an exception was claimed.
"We can determine the applicability of specific exceptions only when presented with particular documents for which exceptions are claimed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
Background and legal framework
House Resolution No. 114 contained provisions intended to withhold information that the Open Records Act did not then except from disclosure. The request asked whether the House's constitutional rulemaking power made those provisions effective and whether the resolution itself could supply a statutory confidentiality exception.
"Certain provisions of those rules attempt to contravene portions of the Open Records Act, article 6252-17a, V.T.C.S., so as to except from disclosure information not presently excepted by that statute."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
The opinion noted that the Open Records Act expressly included the Legislature within its coverage.
"Furthermore, article 6252-17a, enacted in 1973 by the Sixty-third Legislature, specifically includes the legislature within the scope of the act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
The resolution defined sensitive material to include allegations of illegal or improper conduct by current or former House members, officers, or employees, related preliminary inquiries or investigations, and the subcommittee's investigative methods.
"[I]nformation or material in the possession of the subcommittee that pertains to illegal or improper conduct by a present or former member, officer, or employee of the house; to allegations or accusations of such conduct; to any resulting preliminary inquiry, initial review, or investigation by the subcommittee into the allegations or conduct; or to the investigative techniques and procedures of the subcommittee."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
Holding
"Article III, section 11 of the Texas Constitution, authorizing each house to determine the rules of its own proceedings, applies to matters of procedure. House Resolution No. 114 is invalid to the extent it conflicts with article 6252-17a, V.T.C.S. However, certain 'committee sensitive information' may possibly be withheld under a number of exceptions in section 3(a) of the Open Records Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0122
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0122.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 30, 1983
Honorable Stan Schlueter
Chairman
Committee on Ways & Means
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769
Opinion No. JM-122
Re: Effectiveness of House committee rules relating to confidentiality of information considered by subcommittee
Dear Representative Schlueter:
You have requested our opinion regarding the validity of certain provisions of House Resolution No. 114, adopted by the House on April 27, 1983. Certain provisions of those rules attempt to contravene portions of the Open Records Act, article 6252-17a, V.T.C.S., so as to except from disclosure information not presently excepted by that statute. You first ask:
- Are the applicable provisions of House Resolution No. 114 effective despite the Open Records Act because of the provision in article III, section 11 of the Texas Constitution that each house determines the rules of its own proceedings?
Article III, section 11 of the Texas Constitution provides, in pertinent part:
Each house may determine the rules of its own proceedings. . . .
In our opinion, the term "rules of its own proceedings" must be construed narrowly to apply only to matters of procedure. Legislation governing the dissemination of information in the custody of members of the House of Representatives, or by committees or subcommittees thereof may not properly be so characterized. In Pickus v. United States Board of Parole, 507 F.2d 1107 (D.C. Cir. 1974), a federal appellate court said that the term "rules of agency organization, practice or procedure" means technical regulations of the form of agency action and proceedings and does not include action which goes beyond formality and substantially affects substantive rights. Id. at 1108.
Furthermore, article 6252-17a, enacted in 1973 by the Sixty-third Legislature, specifically includes the legislature within the scope of the act. Section 2(A). We do not believe that one house of the legislature, under the guise of its rule-making authority, may remove itself from the coverage of a specific substantive law that has been enacted by both houses of the legislature and signed by the governor, pursuant to article III, section 1 of the Texas Constitution, which vests the "legislative power of this State . . . in a Senate and House of Representatives. . . ." In Heiskell v. Mayor & City Council, 4 A. 116 (Md. 1886), the Court of Appeals of Maryland said:
When the constitution of the United States gave to each house of congress, and the constitution of the state of Maryland the right to each house of the general assembly, to determine its rules of proceeding, it was never held for a moment that such a right included the power to change any existing statute or common law.
4 A. at 118-19. Accord, Heyker v. McLaughlin, 50 S.W. 859, 860 (Ky. 1899).
In Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973), the federal court held that a statute enacted by both houses of Congress controls over a resolution adopted by one house. Id. at 56 n.8. In Doyle v. Hofstader, 177 N.E. 489, 494 (N.Y. 1931), the New York court said that a resolution of one house of the Legislature is invalid and of no effect if it is in conflict with general law. To the extent that House Resolution No. 114 is in conflict with article 6252-17a, we believe it is invalid. We emphasize that, if the legislature wishes to adopt a resolution similar to House Resolution No. 114, the proper procedure for doing so is by amending the Open Records Act.
Your second question is:
- If the Open Records Act does govern the subcommittee proceedings, is a rule of the House of Representatives considered a "law" for the purposes of section 3(a)(1) of the act so that information deemed confidential under House Resolution No. 114 would be excepted under section 3(a)(1)?
As we have noted, for purposes of the Open Records Act, the House of Representatives is a "public body" subject to that statute's provisions. In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), the Supreme Court of Texas said that, while a rule enacted by a public body may have the force and effect of statute in other contexts, a governmental agency is not permitted to bring its records within the ambit of the exception of section 3(a)(1) merely by the promulgation of a rule. The court declared:
To imply such authority merely from general rule-making powers would be to allow the agency to circumvent the very purpose of the Open Records Act.
540 S.W.2d at 677. See also Open Records Decision Nos. 173, 152 (1977).
Your final question is:
- Would "subcommittee sensitive information or material" as defined by rule 9, section 1(a) of House Resolution No. 114 be covered by any other exception under section 3(a) of the Open Records Act?
Section 1(a) of rule 8 of the proposed rules defined "subcommittee sensitive information or material" as:
information or material in the possession of the subcommittee that pertains to illegal or improper conduct by a present or former member, officer, or employee of the house; to allegations or accusations of such conduct; to any resulting preliminary inquiry, initial review, or investigation by the subcommittee into the allegations or conduct; or to the investigative techniques and procedures of the subcommittee.
Such information might possibly be withheld under a number of exceptions in section 3(a) of the Open Records Act: under section 3(a)(1), as information within the scope of common law privacy or the informer's privilege; under section 3(a)(2), as information within the scope of employee privacy; under section 3(a)(3), as information contained in interagency or intraagency memoranda or documents. Neither do these examples necessarily exhaust the list of potential exceptions. We can determine the applicability of specific exceptions only when presented with particular documents for which exceptions are claimed.
SUMMARY
Article III, section 11 of the Texas Constitution, authorizing each house to determine the rules of its own proceedings, applies to matters of procedure. House Resolution No. 114 is invalid to the extent it conflicts with article 6252-17a, V.T.C.S. However, certain "committee sensitive information" may possibly be withheld under a number of exceptions in section 3(a) of the Open Records Act.
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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