Case Information
*1 The Attorney General of Texas December 30, 1983 JIM MATTOX
Attorney General Honorable Stan Schlueter Opinion No. JM-122
Supreme Court Building Chairman P. 0. Box 12546 Austin. TX. 7671% 2546 lb?: Effectiveness of House Cormaittee on Ways & Means 512/47kn-2501 Texas House of Representatives committee rules relating to Telex 910/674.1367 P. 0. Box 2910 confidentiality of information Telecopier 512/475-0266 Austin, Texas 78769 considered by subcommittee [714] Jackson, Suite 700 2141742.6944 Dallas, TX. 75202.4506 Representative Schlueter: Dear
You have requested our opinion regarding the validity of certain
provisions of House Resolution No. 1~14, adopted by the House on April 27. 1983. Certain provisions of those rules attempt to contravene 4624 Alberta Ave., Suite 160 El Paso, TX. 799052793 portions of the Open Records Act, article 6252-17a. V.T.C.S., so as to 915/5333464 except from disclosure information not presently excepted by that
statute. You first ask: pKu Texas, Sub 700 1. Are the applicable provisions of. . . House rlouston, TX. 77002.3111 Resolution No. 114 effective despite the Open 7131223-5666
Records Act. . . because of the provision in article III, section 11 of the Texas Constitution 606 Broadway. Suite 312 that each house determines the rules of its own Lubbock, TX. 79401.3479 proceedings? 6061747-5236 Article III, section 11 of the Texas Constitution provides, in 4309 N. Tenth, Suite B pertinent part: McAllen. TX. 76501-1665 512/662-4547 Each house may determine the rules of its own [200] Main Plaza. Suite 400 San Antonio, TX. 76205.2797 5121225-4191 construed narrowly to apply only to matters of procedure. Legislation In our opinion, the term "rules of its own proceedings" must be proceedings. . .
governing the dissemination of information in the custody of members of the House of Representatives, or by committees or subcommittees An Equal Opportunity/ Affirmative Action Employer 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, nursuant to article III. section 1 of the Texas Constitution. which ;ests the "legislative power of this State. . . in a Senate and House of Representatives . . . ." In Heiskell v. City of Baltimore, 4A. 116 (Md. 1886), the court of appeals of Maryland said:
When the constitution of the United States gave to each house of congress, 2nd 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.
4A.. at 118-19. Accord, Heyker v. Herbst, 50 S.W. 859, 860 (Ky. 1899).
In Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F.Supp. 51 (D.C. 1923). 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. Doyle v. Hofstader, 177 N.E. 489, 494 (N.Y. 1931). theNew 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:
2. 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)(l) of the act so that information deemed confidential under. . . House Resolution No. 114 would be excepted under section 3(a)(l)?
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)(l) 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:
3. Would 'subcommittee sensitive information or material' as defined by rule 9, section l(a) of House Resolution No. 114 be covered by any other exception under section 3(a) of the Open Records Act?
Section l(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 subconrmittee 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)(l). 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 applicabi~lity 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 *4 Honorable Stan Schlueter - Page 4 (JM-122)
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, Chairnan
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton