Texas Attorney General Greg Abbott could decide whether the Sunset Advisory Commission (SAC) staff, when conducting a sunset review, has a right to attend closed meetings and to have access to certain documents when the State Commission on Judicial Conduct (SCJC) considers complaints against judges.

State Rep. Dennis Bonnen, the SAC’s chairman, asked Abbott in a May 31 request for an opinion to address two questions: Is the SAC staff, as part of a sunset review, entitled to see confidential documents, including ones prepared by the SCJC attorneys, which may be subject to attorney-client privilege? Is the SAC staff, as part of a review, entitled to attend the SCJC’s proceedings, including disciplinary hearings before the judicial conduct commission?

According to the brief attached to Bonnen’s request, the SCJC is undergoing a sunset review but has refused to allow the SAC staff access to closed meetings and confidential records in disciplinary cases involving judges, even though the SAC staff offered to sign confidentiality agreements. On June 5, the SAC approved recommendations for the Texas Legislature’s consideration in 2013, including a recommendation for a statutory change that would require the SCJC, during a review, to provide the sunset staff access to the closed meetings and confidential documents.

Ken Levine, the SAC’s director, says Bonnen requested the AG’s opinion because “he wanted some clarity before the session.”

Seana Willing, the SCJC’s executive director, declines comment on Bonnen’s request for an AG opinion. “We’ll file a brief . . . and put all the issues before the attorney general,” she says.

As noted in the SAC’s brief, the SCJC asserts that the informal hearings at which the SCJC hears cases against judges accused of misconduct are confidential and privileged under Texas Constitution Article 5, §1-a(10) and Texas Government Code §33.032. The SAC argues in its brief that Government Code §33.003 establishes the SAC’s authority to review the judicial conduct commission under Chapter 325 of the Government Code. The SAC further argues that while the Texas Constitution makes proceedings before the SCJC “confidential” and makes the filing of papers and giving of testimony “privileged,” it also limits that confidentiality and privilege by expressly allowing the Legislature to enact laws that allow access to those papers, proceedings and testimony. “Chapter 325 is such a law,” the SAC argues in the brief. By making the SCJC subject to sunset review under Chapter 325, the Legislature intended to give the SAC access to the SCJC’s confidential information, according to the brief.

The SAC also contends that the SCJC’s assertion that it may withhold confidential documents under the attorney-client privilege recognized by Rule 53 of the Texas Rules of Evidence conflicts with the holding of Austin’s 3rd Court of Appeals in 2010′s Texas Commission on Environmental Quality v. Abbott. The 3rd Court held that the Legislature intended to maintain for itself access to confidential governmental information required to fulfill the legislative function without having to override exemptions to disclosure set out in the Texas Public Information Act. The reasoning in TCEQ applies to the current case involving the SCJC, the SAC argues.

Abbott spokesman Jerry Strickland declines comment on Bonnen’s request for an opinion. He says most opinions are issued within 180 days from the time a request is made.

Former Texas Lawyer reporter Mary Alice Robbins is an Austin freelance writer.