The opinion
March 16. 1987
Mr. Dennis Thomas Opinion No. ~~-645
Chairman
Public Utility Commission of Texas Re: Whether the Public Utility
7800 Shoal Creek Boulevard Commission may grant a temporary
Suite 400N stay to an order entered by a
Austin. Texas 70757 hearing examiner without holding
a public meeting
Dear Mr Thomas:
You ask two questions about the power of the Public Utility Com-
mission to take certain actions without violating the Open Meetings
Act, article 6252-17. V.T.C.S.
Your first question is as follows:
1. Pursuant to the provisions of the Open
Meetings Act, can any or all of the three connnis-
sioners, acting independently and without deli-
beration as defined in section l(b) of the Open
Meetings Act, sign an order or orders staying the
effect of an order entered by a hearings examiner
in a docketed case, pending an opportunity for
the commissioners to consider an appeal of the
hearings examiner’s order in a properly noticed
open meeting?
You state that it is common practice for hearings examiners and
administrative law judges to enter interim or procedural orders during
a contested administrative proceeding at the Public Utility Com-
mission. on occasion, an aggrieved party wfll appeal one of these
orders to the commission. A procedural rule of the commission
specifically provides for the appeal of Interim orders:
(a) Relief through written interim orders.
Prior to any final order of the cmmission,
a party or the staff may see[k], through an
examiner, relief through a written interim order,
but that order shall not be considered of the same
nature es * final decision. Furthermore, an
interim order shall not be subject to exceptions
or application for rehearing, but any party
aggrieved by the interim order may file an appeal
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Mr. Dennis Thomas - Page 2 (JM-645)
from the examiner's ruling to the commissioners by
filing written notice within 10 days of the rendl-
tion of the order. Such appeal may seek a stay of
the interim order. The commissioners shall rule
on the interim order within 15 days of the filing
of the appeal, and pending such ruling may grant a
stay of the interim order. If the commissioners
do not rule on the appeal within 15 days of its
filing, or extend the time for ruling, the interim
order is deemed approved and any granted stay is
lifted. (Emphasis added).
16 T.A.C. 921.106(a) (1983).
You contemplate that the hearings division, upon receiving a
notice of appeal and motion for a stay, would draft an order granting
the stay and circulate it to the individual commissioners for their
approval or denial. If two commissioners signed the requested order,
the stay would be granted. You ask whether the commissioners may
approve a stay in this manner without violating the Texas Open
Meetings Act, article 6252-17. V.T.C.S.
The Open Meetings Act provides that the meetings of governmental
bodies shall be preceded by public notice and shall be open to the
public. "Meeting" is defined as
any deliberation between a quorum of members of a
governmental body at which any public business or
public policy over which the governmental body has
supervision or control is discussed or considered,
or at which any formal action is taken.
V.T.C.S. art. 6252-17. 51(a). The Open Meetings Act does not, however,
state what decisions must be made by a coxssissionacting as a body,
rather than by individual cormnlssioners acting independently. This
issue is governed by other law.
In Webster v. Texas 6 Pacific Motor Transport Co., 166 S.W.Zd 75
(Tex. 1942). the Supreme Court held that a permit to act as a common
carrier was not validly granted to the Texas-& Pacific Motor Transport
Company because it was approved by only two commissioners at an
informal unscheduled meeting without notice to the third commissioner.
The court stated as follows:
It is a well established rule in this state, as
well as in other states, that where the Legisla-
ture has committed a matter to a board, bureau, or
commission, or other administrative agency. such
board, bureau, or commission 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
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Mr. Dennis Thomas - Page 3 (JM-645)
to attend. Consent or acquiescence of, or agree-
ment by the individual members acting separately,
end not as a body, or by a number of the members
less than the whole acting collectively at an uu-
scheduled meeting without notice or opportunity of
the other members to attend, is not sufficient.
(Emphasis added).
166 S.W.Zd at 76.
In out opinion, the rule stated in Webster also applies to the
proposed procedure of the Public Utility Coamisslon. We acknowledge
that article 1446c, V.T.C.S., the Public Utility Regulatory Act, does
not expressly require the commission to act on requests to stay an
interim order. Such stays are authorized by a commission rule,
adopted under the commission’s broad rule-making power. See V.T.C.S.
at. 1446c, $16(a); 16 T.A.C. 521.106(a) (1983). Nonetheless, the
statute provides that
[a] majority of the commissioners shall constitute
a quorum for the transaction of any business, for
the performance of any duty, or for the exercise
of any power of the cormaission.
V.T.C.S. art. 1446~. 012. This provision places in the commission as
a body the authority to exercise 3 power of the commission. See
Webster v. Texas h Pacific Motor Transport Co., 166 S.W.Zd 75,76
(Tex. 1942).
In our opinion. section 12 of article 1446c, V.T.C.S., requires
the comsission to act as a body to exercise the power to stay interim
orders, even though this power derives from a rule promulgated by the
commission. If the commissiou acts as a body, then it must do so in a
meeting conducted in accordance with the requirements of the Open
Meetings Act. Cf. Attorney General Opinion MN-32 (1979) (procedure of
Air Control Boardpermitting individual members to request executive
director to place an item on the agenda does not violate Open Meetings
Act).
Your request letter points out practical difficulties stemming
from the requirement that the commission act on a request to stay an
interim order in a meeting called and conducted according to the Open
Meetings Act. You state that a meeting to stay a hearing examiner's
order would probably have to be held on an emergency basis to prevent
the issue from becoming moot. The commission could solve this
practical problem by authorizing the hearing examiner or a single
commissioner to grant a stay until the commission could hear the
appeal. Since the commission has placed this power with itself and
has not delegated it to another commission officer or employee, it
must exercise the power as a body according to section 12 of article
1446~. V.T.C.S.
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Mr. Dennis Thomas - Page 4 (JM-645)
Your second question is:
Pursuant to the provisions of the Open Meetings
Act, can the comissioners meet in closed session,
or in a meeting open only to parties to a docketed
proceeding vho have signed a protective order in
that proceeding agreeing not to disclose certain
documents to the public, for the purpose of
reviewing the allegedly protected documents and
hearing argument on why the documents should or
should not be protected?
You state that rate and other proceedings before the commission
frequently involve disputed claims of privilege or confidentiality.
You wish to know if the commission can conduct an in camera review of
the documents or exclude the general public from a meeting at which
evidence and argument concerning the protectability of the documents
will be presented and the subject matter of the documents is likely to
be disclosed.
In our opinion, the comalssion may conduct an in camera review of
documents or hold a closed meeting to decide a claim or privilege in a
contested case in the same circumstauces that a court may conduct an
in camera review of allegedly privileged documents under the Texas
Rules of Evidence and Texas Rules of Civil Procedure. Although the
Open Meetings Act 00. its face appears to require that the commission
decide claims of privilege in public, we conclude that the contested
case procedural requirements in the Administrative Procedure and Texas
Register Act (APTRA). article 6252-13a. V.T.C.S.. creates an exception
to the Open Meetings Act with regard to contested cases.
A commission meeting to decide claims of privilege falls within
the broad requirement in the Open Meetings Act that “every regular,
special, or called meeting or session of every govermsental body shall
be open to the public. . . .” V.T.C.S. art. 6252-17. 52(a). The
commission is a governmental body within the meaning of the Open
See id. §l(c); see generally Attorney General Opinion
Meetings Act. --
MW-578 (1982). The commission engages in a “meeting” under the act
whenever a quorum of the conmission discusses whether documents in a
contested case are privileged. See art. 6252-17, 51(a). None of the
enumerated exceptions in the aceexempts such a meeting from the
requirement that it be public. Nor is a non-public meeting on claims
of privilege “specifically permitted in the Constitution.” -Id. 52(a).
Contrary to this public meeting requirement in the Open Meetings
Act, however, the APTRA requires that commission decisions on claims
of privilege in contested cases be made by in camera review or in
a closed meeting. Section 14(a) of the APTRA provides chat, in
contested cases:
The rules of evidence as applied in nonjury civil
cases in the district courts of this state shall
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L
Mr. Dennis Thomas - Page 5 (JM-645)
be followed. . . . ~Agencies shall give effect to
the rules of privilege recognized by law. . . .
In addition, section 14*(a) of the APTRA provides that discovery in
contested cases is “subject to such limitations of the kind provided
for discovery under the Rules of Civil Procedure. . . .”
The Texas Rules of Evidence and the Texas Rules of Civil
Procedure require that the determination of claims of privilege or
confidentiality be made in a non-public forum. The Rules of Evidence
recognize various claims of privilege. See Tex. R. Evid. 501 et seq.
The Rules of Civil Procedure authorize the issuance of protective
orders to protect privileged matters as warranted during the course of
discovery. Tex. R. Civ. Proc. 166b(4). Whenever resolution of a
disputed claim of privilege necessitates review of the allegedly
privileged documents themselves, the review must be conducted in
camera. See Weisel Enterprises, Inc. v. Curry, 718 S.W.Zd 56, 3
(Tex. 1986); Peeples v. Honorable Fourth Supreme Judicial District,
701 S.W.2d 635, 637 (Tex. 1985). The rationale for this reauirement
is self-evident: consideration of a claim of privilege should not
occur in circumstances where the verv act of consideration would
render ‘the claim moot. -Cf. Maresca v: Marks, 362 S.W.Zd 299 (Tex.
1962).
The Open Meetings Act’s requirement that the commission consider
claims of privilege in public obviously conflicts with APTRA’s
requirement that the commission consider such claims in private. When
an apparent conflict between statutory provisions exists, it is a
court’s dutv to resolve inconsistencies and effectuate the dominant
legislative-intent. Texas Department of Public Safety v. Schaejbe,
687 S.W.Zd 727, 728 (Tex. 1985). To the extent that inconsistencies
cannot be fully resolved, the more recent expression of legislative
intent ordinarily governs. Brown v. Patterson, 609 S.W.Zd-277, 289
(Tex. Civ. App. - Dallas 1980, no writ); see also City of Dallas v.
Brown, 475 S.W.Zd 833. 837 (Tex. Civ. App. - Dallas 1971, writ ref’d
n.r.e.). In such instances, the &ore specific statutory provision as
a general rule takes precedence over the general provision. Culver v.
Miears, 220 S.W.Zd 200. 203 (Tex. Civ. App. - Eastland 1949. writ
ref’d); see also 53 Tex. Jur. 2d Statutes 9186 (1964 & Supp. 1986).
Applying these basic principles of statutory construction, we
conclude that the legislature intended sections 14 and 14a of the
APTRA to require agency consideration of claims of privileges in
contested cases on an in camera basis, notwithstanding the general
public meeting requirement in the Open Meetings Act. Sections 14 and
14a of the APTRA, specifically mandate that in contested cases state
administrative agencies must follow the Texas Rules of Evidence and,
even more specifically, must give effect to the evidentiary rules of
privilege. As discussed, giving effect to the rules of privilege
requires that any review of allegedly privileged documents occur &
camera. In our opinion, the legislature nust have intended that the
broad public meeting requirement in the Open Meetings Act yield in the
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Mr. Dennis Thomas - Page 6 (JM-645)
narrow circumstance where, as here, a subsequently enacted statute
specifically directs that particular meetings be closed to the public.
We stress that our conclusion is a narrow one, limited to the
facts of this case. The commission may consider a claim of privilege
in a closed meeting only when: (a) the claim is made in the course
of a contested case proceeding under the APTRA, and (b) resolution of
the claim requires examination and discussion of the allegedly
privileged information. Thus, forexample, even when a claim of
privilege in a contested case necessitates review of the allegedly
privileged document. it may well be possible for the commission to
discuss and decide whether information in the document is privileged
without revealing the substance of the information. See, e.g., Open
Records Decision No. 306 (1982) (discussing why particular information
constitutes a trade secret). In such a case, the Open Meetings Act
requires that the commission deliberate and make its decision in
public.
Moreover, the need to discuss the substance of allegedly
privileged information does not necessarily require closing the
deliberations in their entirety. Only that portion of the. delibera-
tions which would reveal the information can be closed; the remainder
must be held in public.
We note, finally, that even when a closed meeting is unavoidable,
the commission still must provide notice of the meeting and announce
its final decision in public as required by the Open Meetings Act.
V.T.C.S. art. 6252-17. 462(e). Z(1). and 3A. See Cox Enterprises,
Inc. v. Board of Trustees of the Austin Independent School District,
706 S.W.Zd 956, 958-59 (Tex. 1986).
SUMMARY
The Public Utility Commission must act as a
body and is therefore subject to the Open Msetings
Act, article 6252-17, V.T.C.S.. when it decides to
stay an order entered by a hearing examiner in e
docketed case. The Administrative Procedure and
Texas Register Act creates an exception to the
Open Meetings Act with regard to contested cases.
Decisions of the Public Utility Commission in
claims of privilege in contested cases may be made
by in camera review or in a closed meeting.
JlL.IJ+m
Attorney General of Texas
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Mr. Dennis Thomas - Page 7 (~~-645)
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison and
Jennifer Riggs
Assistant Attorneys General
p. 2930