2002 Texas Attorney General Reports and Opinions 1 (2002)

handle is hein.sag/sagtx0080 and id is 1 raw text is: Tex. Att'y Gen. Open Record Decision No. ORD-676 (2002) -- John Cornyn Administrati... Page 1 of 15

Offic of the Attorney General - State of Texas
John Cornyn
November 30, 2002

Open Records Decision No. 676
RE: Re-evaluation of Open
Records Decision No. 574 (1990)
regarding the scope of the attorney-
client privilege under section
552.107(1) of the Government
Code; whether section 552.101 of
the Government Code also
encompasses the attorney-client
privilege; whether the attorney-
client privilege is mandatory and
compelling for purposes of the
Public Information Act; and related
questions. (ORQ-40)
AUTHORITY
Under section 552.011 of the Government Code we consider the scope of the
section 552.107(1) exception, and related questions pertaining to the attorney-
client privilege in the context of the Public Information Act (the Act). -
THE PROPER EXCEPTION FOR THE ATTORNEY-CLIENT
PRIILEGE
Recent case law, without analysis, suggests that the attorney-client privilege
may be asserted under either section 552.107(1) or section 552.101 of the
Government Code.- 2 While recognizing that section 552.107(1) specifically
incorporates the privilege into the Act, one court states that the catch-all
provision of Section 552.101 certainly includes information governed by the
attorney-client privilege.- 30 Prior to 1990, this office had also construed the
statutory predecessor to section 552.101 to incorporate the attorney-client
privilege.-4 But in 1990, this office concluded that section 552.101 does not
encompass discovery privileges in general.L Unlike confidential
information to which section 552.101 applies, the public distribution of
privileged information by a governmental body, as holder of the privilege,
does not implicate criminal penalties under the Act.-U
The Texas attorney-client privilege is found at Rule 503 of the Texas Rules of

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