Opinions
Opinion No. JC-0506
The Honorable Jack Skeen, Jr., Smith County Criminal District Attorney,
Smith County Courthouse, 100 North Broadway, Tyler, Texas 75702, concerning
whether the Smith County Commissioners Court violates the Open Meetings Act,
chapter 551 of the Government Code, if it permits the Smith County Auditor
to attend a meeting closed to consult with the county's attorney regarding
pending litigation or settlement options, and related questions (RQ-0470-JC).
SUMMARY
With respect to a meeting of a county commissioners court closed under §551.071
of the Government Code to consult with the county's attorney regarding pending
litigation or a settlement offer, the commissioners court may include the
county auditor if the court determines that (1) the county auditor's interests
are not adverse to the county's; (2) the county auditor's presence is necessary
to the issues to be discussed; and (3) the county auditor's presence will
not in effect, waive the attorney-client privilege. See Tex. Gov't Code Ann. §551.071
(Vernon 1994); Tex. R. Evid. 503. If a reviewing court concludes that the
attorney-client privilege does not apply to an attorney-client consultation
closed under §551.071, it may also find that the commissioners court
violated the Open Meetings Act. We modify Attorney General Opinion JM-238
to the extent that it does not consider the attorney-client privilege currently
provided by rule 503 of the Texas Rules of Evidence. See Tex. Att'y Gen. Op.
No. JM-238 (1984) at 2.
With respect to a meeting closed under an exception other than §551.071,
see, e.g., Tex. Gov't Code Ann. §§551.072, 551.074 (Vernon 1994),
a county commissioners court may include the county auditor if the court finds
that the auditor's interests are not adverse to the county's and that her
participation is necessary to the anticipated deliberation. If a discussion
convened under an exception other than §551.071 also involves an attorney-client
communication, the commissioners may wish to evaluate the auditor's presence
in light of the attorney-client privilege. All of these determinations require
the commissioners court to resolve a number of fact issues, subject to review
by a court.
The commissioners court should weigh the propriety of including the county
auditor in a closed meeting consistently with the Open Meetings Act's open-meetings
requirement and exceptions thereto.
If the county auditor is present during the open portion of a commissioners
court meeting when the court announces that it will proceed into a closed
meeting and the commissioners do not exclude the auditor, the court has included
the auditor in its closed meeting.
Opinion No. JC-0507
The Honorable Rick Perry, Governor of Texas, Office of the Governor, P.O.
Box 12428, Austin, Texas 78711, concerning clarification of Attorney General
Opinion JC-0426: Whether a state university may contract with a bank that
employs a member of the board of regents as an officer (RQ-0473-JC).
SUMMARY
Section 404.0211 of the Government Code, which changes the common-law conflict-of-interest
rule for state agency officers who select a depository for the funds of a
state agency, does not apply to an institution of higher education such as
Texas Woman's University. Attorney General Opinion JC-0426 is affirmed.
Opinion No. JC-0508
Mr. Jim Loyd, Executive Director, Texas Health Care Information Council,
206 East Ninth Street, Suite 19.140, Austin, Texas 78701, concerning whether
a hospital is authorized to report information required by chapter 108, Health
and Safety Code, without obtaining the written consent of the affected patient
(RQ-0481-JC).
SUMMARY
Chapter 181 of the Health and Safety Code does not require hospitals to
obtain written authorizations from patients prior to sending confidential
identifying information to the Texas Health Care Information Council pursuant
to chapter 108 of the Health and Safety Code. Section 181.103 of the Health
and Safety Code expressly provides that a covered entity may use or disclose
protected health information without the express written authorization of
the individual to comply with the requirements of any state law. Because hospitals
are required by chapter 108 of the Health and Safety Code to disclose protected
health information to the council, they are within this exemption. Information
regarding patient identity that is submitted by hospitals to the council is
protected by strict confidentiality provisions included in Health and Safety
Code chapter 108.
For further information,
please call the Opinion Committee at (512) 463-2110 or access the website
at www.oag.state.tx.us.
TRD-200203328
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: May 29, 2002
RQ-0545
Mr. Tito Guerrero, III, President, Stephen F. Austin State University,
P.O. Box 6078, SFA Station, Nacogdoches, Texas 75962-6078
Re: Whether a state university must conduct a student referendum in order
to adopt an international education fee (Request No. 0545-JC)
Briefs requested by June 22, 2002
RQ-0546
The Honorable Rick Perry, Governor, Office of the Governor, P.O. Box 12428,
Austin, Texas 78711
Re: Computation of medical fees by the Workers Compensation Commission
under section 413.011, Labor Code (Request No. 0546-JC)
Briefs requested by June 24, 2002
RQ-0547
The Honorable Patricia Gray, Chair, Committee on Public Health, Texas
House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910
Re: Whether certain property owned by a hospital district is subject to
the "exclusive use" requirement of article XI, section 9 of the Texas Constitution,
and related questions (Request No. 0547-JC)
Briefs requested by June 23, 2002
RQ-0548
The Honorable W.C. Kirkendall, District Attorney, 25th Judicial District,
113 South River, Suite 205, Seguin, Texas 78155
Re: Whether a commissioners court may set the daily reimbursement rate
of expenses for grand jurors at a different rate from that of petit jurors
(Request No. 0548-JC)
Briefs requested by June 22, 2002
RQ-0549
Mr. Ron Philo, Chair, Anatomical Board of the State of Texas, The University
of Texas, Health Science Center at San Antonio, 7703 Floyd Curl Drive, San
Antonio, Texas 78229-3900
Re: Whether a body donated to a named college or university is a body subject
to distribution by the Anatomical Board of the State of Texas, and related
questions (Request No. 0549-JC)
Briefs requested by June 23, 2002
RQ-0550
The Honorable Sherry L. Robinson, Waller County Criminal District Attorney,
836 Austin Street, Suite 105, Hempstead, Texas 77445
Re: Procedure by which a prosecutor may obtain a waiver from the state
in cases of conflict of interest, and related question (Request No. 0550-JC)
Briefs requested by June 23, 2002
RQ-0551
Ms. Rebecca F. Olivares, Chair, Texas Workers' Compensation Commission,
4000 South IH 35, MS-4D, Austin, Texas 78704-7491
Re: Whether a rule of the Texas Workers' Compensation Commission that requires
written communications regarding a claim to be provided to the claimant as
well as his attorney, acts as an exception to Rule 4.02 of the State Bar Rules
of Professional Conduct (Request No. 0551-JC)
Briefs requested by June 24, 2002
RQ-0552
Mr. Robert J. "Sam" Tessen, Executive Director, Office of Rural Community
Affairs, 507 Sabine, Suite 300, Austin, Texas 78701
Re: Whether the Rural Foundation created by chapter 110, Health & Safety
Code, may finance rural programs that are not health programs (Request No.
0552-JC)
Briefs requested by June 24, 2002
RQ-0553
Ms. Michele L. Henricks, Executive Director, Court Reporters Certification
Board, 205 West 14th Street, Suite 101, Austin, Texas 78711
Re: Whether any action is required of the Court Reporters Certification
Board in the implementation of section 57.021(d), Government Code (Request
No. 0553-JC)
Briefs requested by June 24, 2002
For further information,
please call the Opinion Committee at 512/ 463-2110 or access the website at
www.oag.state.tx.us.
TRD-200203313
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: May 29, 2002
Requests for Opinions