Fearing that a legislative committee may force University of Texas System lawyers to testify and give up documents—and jail the attorneys if they refuse—the U.T. System is asking for a legal opinion about the committee’s authority.
The U.T. system wants an “expedited” opinion from the Texas Office of the Attorney General about whether the House Select Committee on Transparency in State Agency Operations, which is investigating whether to impeach U.T. System Regent Wallace Hall, has the authority to compel attorney-client privileged testimony and to subpoena attorney-work-product documents. The U.T. System asked: If an attorney declined, could the committee hold him in contempt?
It’s not likely the A.G.’s office will issue an opinion before the committee meets again in December.
“With notice that several current and former attorneys for the U.T. System might be called as witnesses, the System sought to assure that the attorney-client privilege was being appropriately maintained for legal counsel provided,” wrote U.T. System spokeswoman Jenny LaCoste-Caputo in an email.
Rusty Hardin of Hardin & Associates in Houston, who is outside counsel for the committee, didn’t return a telephone call seeking comment.
Allan Van Fleet, who represents Hall in the impeachment investigation, said, “I think the A.G. should determine that people retain their right to speak to counsel about what they are going to testify about to a House committee, including an impeachment committee, and that their lawyers have a right to create work product in order to advise their client on matters.”
The U.T. System’s request to the A.G.’s office includes a legal brief signedby Philip Hilder, the U.T. System’s outside counsel, which explains the background of the request.
In past hearings, the committee asked for testimony from lawyers including Carol Longoria, open records coordinator at the University of Texas at Austin; Barry Burgdorf, former vice chancellor and general counsel of the U.T. System; and Hilder himself.
Burgdorf told the committee the U.T. System and its board of regents hadn’t waived privileges, according to the brief.
“He therefore declined to answer questions that in his opinion invaded attorney client or work product privileges,” noted the U.T. System in its brief.
The committee asked Hilder to come out of the audience to testify without notice. Hilder “also declined to answer certain questions based on attorney client privileges,” according to the U.T. System’s brief.
Committee member Rep. Trey Martinez Fischer, D-San Antonio, “stated that the House Parliamentarian assured him that attorney-client privileges have ‘never been invoked’ before House committees and that congressional precedents ‘are permissive … as to whether to recognize a privilege,” according to the brief. Martinez Fischer also said that Texas Government Code Chapter 301 authorizes the committee to “compel disclosure of confidential information and hold persons who refuse in contempt,” according to the brief.
Among other things, the U.T. System argued in the brief that a Texas constitutional provision permits the Legislature to use its contempt powers only when the Legislature is in session. Because the Legislature is adjourned, argued the U.T. System in its brief, the committee can’t use its contempt powers.
Further, the committee would violate the Constitution by holding people in contempt under Government Code 665, the impeachment statute, argued the U.T. System in its brief. The impeachment statute gives the committee “the very same power as a state district court,” but that violates separation of powers by expanding legislative contempt beyond what the Constitution allows, said the brief.
However, if the committee has the same powers as a district court, it should also have the same limits: The attorney-client and work-product privileges limit a district court’s power to compel testimony or documents, according to the brief.
Hilder declined comment.
Martinez Fischer didn’t return a telephone call seeking comment.
Normally, it takes 180 days from the time an agency asks for an A.G. opinion to the time the office issues it. There’s no law or rule that requires the A.G. to issue “expedited” opinions, said Tom Kelley, spokesman with the Texas Office of the Attorney General.