Fixing What the Texas Supreme Ct. Got Wrong: Texas Senate Approves TAB Legislation

posted on 3.27.2017

The Texas Senate approved TAB’s top two legislative priority bills on Tuesday and sent them to the Texas House for consideration.

SB 407 by Sen. Kirk Watson, D-Austin, is a legislative redress to the Boeing v. Paxton Texas Supreme Court decision that expanded the competitive bidding exception in the TPIA in two egregious ways.

It allowed private entities to claim the exception and also allowed the exception to apply to final, awarded government contracts.   

SB 407 would limit the competitive bidding exception in the TPIA to those cases in which a governmental body can demonstrate the release of the information would harm its interests “in a particular competitive situation.” 

It also explicitly states that the exception does not apply to finalized government contracts.

SB 408, also by Watson, addresses the Texas Supreme Ct. decision in Greater Houston Partnership v. Paxton.

The ruling redefined when publicly-funded private entities are subject to the TPIA. 

For three decades, Texas relied on the so-called Kneeland test to protect the public’s ability to monitor public funds. 

The court abandoned the Kneeland standard and said the TPIA only applies to private entities “sustained” by public funds – a higher threshold.   

SB 408 would essentially codify the Kneeland test and restore a framework used for nearly 30 years to make decisions on release of information.

If successful, it means the two most important TAB newsroom legislative agenda items will be halfway in their journey to Gov. Greg Abbott’s desk.

That’s important as there are only 61 days left in the 85^th Texas Legislature.

But there’s one more bad Texas Supreme Ct. decision that TAB hopes to fix this session, and that ruling came down just after the session started.

In Paxton v. City of Dallas, the court ruled 7-2 that the City of Dallas could withhold requested public information because it was covered by the TPIA’s attorney-client privilege exception, even though the city had missed two TPIA deadlines which the AG’s office said mandated the information’s release under the Act. 

At issue is whether TPIA deadline requirements trump exceptions to release that are contained in the law.

“Ordinarily, a governmental body seeking to withhold information requested under the TPIA must seek an Attorney General’s ruling “no later than the 10^th business day after the date of receiving the written request’,” said Wesley Lewis, an attorney with TAB Associate member law firm Haynes and Boone LLP.

“Failure to do so renders the information presumptively subject to disclosure “unless there is a compelling reason to withhold the information.”

You can read Lewis’ analysis of the City of Dallas decision here.     

For Open Government advocates, the problem is what constitutes a “compelling reason” because the term is not defined in the TPIA.

The fear is that this ruling will allow governmental bodies to assert a host of other potential reasons that could be deemed compelling, hoping that a court would agree with at least one of them.

SB 1655 by Sen. Kirk Watson, D-Austin, would minimize the damage of the court’s ruling by defining  the attorney-client privilege as the only reason found “compelling” under the law.

SB 1655 was referred to the Senate Business and Commerce Committee on March 22 and has not yet received a hearing. 

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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