UT System Seeks AG Opinion on Attorney-Client Privilege

Updated Nov. 13, 6:30 p.m.: Paul Foster, the chairman of the University of Texas System Board of Regents, submitted a request for an opinion to the attorney general on Wednesday asking whether a legislative committee can compel testimony on matters protected by attorney-client privilege.

The House Select Committee on Transparency in State Agency Operations is investigating Regent Wallace Hall, and they have the authority to file articles of impeachment against him if they conclude that his performance as a regent warrants such an unprecedented action.

In hearings held by the committee in October, the system's former general counsel, Barry Burgdorf was prevented from discussing certain matters during his testimony because the system asserted that those topics were protected by attorney-client privilege. Some lawmakers on the committee questioned whether testimony could be restricted in such a way during a legislative hearing.

On Monday, they board voted to seek an opinion from the attorney general on the matter.

Foster's request also asks for guidance on whether the legislative committee can subpoena certain documents, which they have attempted to do. The chairman asked a number of questions about whether the committee can hold someone in contempt for refusing to testify or turn over certain documents — and what the punishment for such actions might be.

Original Story, Nov. 11, 1:45 p.m.:The University of Texas System Board of Regents on Monday voted to seek an opinion from the attorney general regarding the system's ability to assert attorney-client privilege to restrict public testimony in legislative hearings regarding Regent Wallace Hall.

In October, when the House Select Committee on Transparency in State Agency Operations subpoenaed and heard testimony from Barry Burgdorf, the system's former general counsel, he was unable to discuss certain matters because the system had asserted attorney-client privilege. However, some committee members — most notably, state Rep. Trey Martinez Fischer, D-San Antonio — questioned whether such privilege could be applied in the situation.

In addition to authorizing board chairman Paul Foster to seek an opinion — which could take some time — on the matter, the board voted in the same motion to "expressly waive the attorney-client privilege in a limited manner concerning those certain matters as recommended by outside counsel" during the regents' closed-door meeting.

System representatives did not publicly specify to which "certain matters" the motion was referring.

Hall, who has generated controversy with his investigation into the operations at the University of Texas at Austin, is being investigated by the select committee, which has the authority to file articles of impeachment against him. Hall and his attorneys say that his efforts have uncovered issues that warrant further investigation. They have insinuated that the pushback against Hall is an effort to cover up favoritism in the university's admissions process, among other matters.

Regents Alex Cranberg and Brenda Pejovich, whose appointments to the board were approved — like Hall's — in 2011, abstained from Monday's vote. Because of his involvement in the issue at hand, Hall also did not vote, though he indicated that he would have voted against the motion.

The committee is scheduled to meet again this week for two more days of hearings on Tuesday and Wednesday. The regents are scheduled to have another board meeting on Thursday.

Also at Monday's meeting, the board unanimously approved a motion allowing UT-Austin President Bill Powers to move forward with the hiring of Steve Patterson as the school's new men's athletic director. Patterson, who has served as athletic director at Arizona State University since 2012, will replace DeLoss Dodds, who is retiring after more than three decades at the university.

According to a spokesman for the university, Patterson's compensation is expected to be $1.4 million per year with bonuses of up to $200,000 per year and annual raises of at least 2.5 percent.