Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 4, 2012

The Honorable Dennis Bonnen Opinion No. GA-0979
Chair, Sunset Advisory Commission
Post Office Box 13066 Re: Whether the staff of the Sunset Advisory
Austin, Texas 78711-3066 Commission is entitled to receive confidential
records, documents, and files and to attend
confidential disciplinary hearings, deliberations,
and other proceedings of the State Commission
on Judicial Conduct (RQ-1066-GA)

Dear Representative Bonnen:

You ask whether the staff of the Sunset Advisory Commission ("Sunset Commission") is
entitled to receive confidential records, documents, and files and to attend confidential disciplinary
hearings, deliberations, and other proceedings of the State Commission on Judicial Conduct
("SCJC"). 1

You state that the Sunset Commission is currently reviewing the SCJC for the biennial
review prepared for the Eighty-third Legislature. Brief at 1. During the review, Sunset Commission
staff asked to attend closed session meetings in which the SCJC informally hears complaints lodged
against judges accused of judicial misconduct. ld. 2 The Sunset Commission staff also asked for
memoranda that SCJC staff attorneys prepared to aid the SCJC in its decisions. !d. The SCJC has
denied the requests, asserting that the hearings and documents requested by the Sunset Commission
are privileged and confidential. !d. at 2. Instead, the SCJC has provided the Sunset Commission
only with documents concerning judges who have waived confidentiality or whose sanctions were
made public. ld. 3 You ask the following questions:

1
See Letter and Brief from Honorable Dennis Bonnen, Chair, Sunset Advisory Comm'n, to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (May 31, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter" and "Brief').

2
As you acknowledge, the SCJC is a judicial agency exempt from the provisions of the Open Meetings Act.
Brief at 1. See TEX. Gov'T CODE ANN . § 551.001(3)(A) (West 2012) (limiting the definition of "governmental body"
to a commission "within the executive or legislative branch of state government"); TEx. CONST. art. V, § 1-a (creating
the SCJC under article V, the "Judicial Department").

3
An April 2012 Staff report notes that the Sunset Commission staff supplemented its ordinary review with
surveys, interviews, and other activity unique to the SCJC in an effort to mitigate its lack of full access. The report
(continued ... )
The Honorable Dennis Bonnen - Page 2 (GA-0979)

1. Is the staff of the Sunset Advisory Commission, as part of its
statutorily required review of the State Commission on Judicial
Conduct, entitled to review the confidential records, documents, and
files of the State Commission on Judicial Conduct, including
documents prepared by State Commission on Judicial Conduct staff
attorneys that may be subject to attorney-client privilege?

2. Is the staff of the Sunset Advisory Commission, as part of its
review of the State Commission on Judicial Conduct, entitled to
attend proceedings of the State Commission on Judicial Conduct,
including disciplinary hearings before the State Commission on
Judicial Conduct and the State Commission on Judicial Conduct's
deliberations in arriving at a decision to take disciplinary action
against a judge?

Request Letter at 1.

Chapter 325 of the Government Code, which generally governs the Sunset Commission's
operations, authorizes the Commission to conduct reviews of certain state agencies, typically those
agencies that are scheduled to expire unless their continued operation is reauthorized by the
Legislature. TEX. Gov'T CODE ANN. §§ 325.008-.024 (West 2005 & Supp. 2012). An agency
scheduled for Sunset review is required to submit a report to the Sunset Commission containing
information about the agency according to statutory review criteria and "any other information" the
Sunset Commission requests. /d. §§ 325.007, .011 (West Supp. 2012). In the course of agency
review, the Sunset Commission may request agency assistance, which the agency must provide, and
the Sunset Commission and staff are specifically authorized to "inspect the records, documents, and
files of any state agency." /d. § 325.019 (West 2005). Chapter 325 provides that when a state
agency's record is "considered to be confidential by law" and is received by the Sunset Commission
"in connection with the performance of the [Commission's] functions," the information "remains
confidential." /d.§ 325.0195(b). Significantly, however, chapter 325 does not expressly state that
the Sunset Commission may access the SCJC's privileged or confidential records. The absence of
such an explicit statutory provision is particularly significant given the fact that article V, section 1-a
of the Texas Constitution provides that the SCJC's papers and proceedings "shall be confidential,
unless otherwise provided by law." TEX. CONST. art. V, § 1-a (emphasis added). Thus, the plain text
of the constitution authorizes the Legislature to "otherwise provide[] by law" with the enactment of

3
( ... continued)
recommends that the Legislature statutorily clarify that the confidentiality and privilege provisions do not prevent the
Sunset Commission staff access to SCJC proceedings and records, and that the Sunset Commission staff is required to
maintain the same level of confidentiality as SCJC staff. SUNSET ADVISORY COMM'N, STAFF REPORT, STATE COMM'N
ON JUDICIAL CONDUCT at 15-19, 33 (Apr. 2012), available at http://www.sunset.state.tx.us/83rd/jc/jc_hm.pdf (last
visited Dec. 4, 2012).
The Honorable Dennis Bonnen - Page 3 (GA-0979)

a statute to that effect. However, the Legislature has not enacted a statute specifically requiring the
SCJC to disclose its confidential records to the Sunset Commission.

Chapter 33 of the Government Code is the statute the Legislature enacted to generally govern
the SCJC's conduct and operations. Under chapter 33, the proceedings and papers filed with the
SCJC are-without exception-made expressly confidential unless and until charges are formally
filed against a judge. TEX. Gov'T CODE ANN.§ 33.032(a) (West 2004). Further, even after formal
charges have been filed, the Government Code continues to expressly make confidential "(1) the
discussions, thought processes, or individual votes of members of the commission; (2) the
discussions or thought processes of employees of the commission, including special counsel for the
commission; or (3) the identity of a complainant or informant if the person requests that the person's
identity be kept confidential." /d. § 33.027(c)(l)-(3).

The Legislature has exercised its discretion to incorporate specific exceptions to chapter 33's
confidentiality requirements, but none of those exceptions relate to the Sunset review process.
Chapter 33 expressly authorizes the SCJC to release otherwise confidential information to law
enforcement authorities and enforcement personnel with the State Bar of Texas, among others. See
id. §§ 33.032(f) (providing for disclosure to the Office of the Chief Disciplinary Counsel of the State
Bar of Texas); 33.036(a)(l)-(4) (authorizing disclosure to a law enforcement agency, a public
official who appoints judges, the Texas Supreme Court, or an entity that provides SCJC-ordered
judicial education). However, the Legislature has not yet also incorporated an exception requiring
the SCJC to produce confidential records to the Sunset Commission. 4 As the express exceptions
already incorporated into chapter 33 demonstrate, when the Legislature has previously exercised its
article V, section 1-a authority to narrow the general constitutional confidentiality requirement
governing the SCJC's records, the Legislature has enacted explicit statutory language to that effect.
See id. § 33.032(b) (providing that a "formal hearing and any evidence introduced during the formal
hearing, including papers, records, documents, and pleadings filed with the clerk, shall be public").
Thus, while article V, section 1-a grants the Legislature constitutional authority to pass a statute
expressly requiring the SCJC to provide confidential records to the Sunset Commission, such a
statute has not yet been enacted.

Similarly, just as neither the SCJC's governing statute nor chapter 325 contain an express
exception authorizing the Sunset Commission to access the SCJC' s confidential records, chapter 325
also currently lacks any provision explicitly authorizing Sunset Commission staff to attend SCJC
proceedings that are made confidential by the Texas Constitution "unless otherwise provided by

4
Chapter 33 provides for legislative oversight in addition to review by the Sunset Commission. Section 33.005
requires the SCJC to file a report directly with the Legislature that includes information similar to the review criteria that
an agency must provide to the Sunset Commission under chapter 325. Compare TEx. Gov'TCODEANN. § 33.005(a)-(b)
(West 2004), with id. § 325.011 (West Supp. 2012).
The Honorable Dennis Bonnen - Page 4 (GA-0979)

law. " 5 In the absence of an express statutory provision specifically authorizing the staff of the Sunset
Commission to review the SCJC's confidential records and documents and to attend proceedings,
a court could conclude that the Legislature has not enacted the statute necessary to establish an
exception to the constitutional requirement under article V, section 1-a that SCJC records and
proceedings remain confidential "unless otherwise provided by law."

5
Because we conclude that no Jaw authorizes the Sunset Commission to access confidential SCJC documents
and proceedings, we do not address the argument of the SCJC that deliberations by adjudicative bodies enjoy a
"deliberative privilege," or that authorizing Sunset Commission staff to attend confidential deliberations would implicate
the constitutional separation of powers doctrine. See Brief of State Commission on Judicial Conduct at 3-6 (July 10,
2012). See also Armadillo Bail Bonds v. State, 802 S.W.2d 237, 240 (Tex. Crim. App. 1990) (determining that the
Texas Constitution grants the Legislature "authority over judicial 'administration"' but "does not permit the Legislature
'to infringe upon the substantive power of the Judicial department"') (citation omitted).
The Honorable Dennis Bonnen - Page 5 (GA-0979)

SUMMARY

Under article V, section 1-a of the Texas Constitution, papers
filed with the State Commission on Judicial Conduct, along with the
Commission's proceedings, are made confidential unless the
Legislature enacts a law establishing an exception to the
constitutional confidentiality requirement. A court could conclude
that the Legislature has not authorized the staff of the Sunset
Advisory Commission to review the confidential records, documents,
and files of the State Commission on Judicial Conduct or to attend
confidential meetings and deliberations of the State Commission on
Judicial Conduct.

ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee