“Make or Break” Week in the Texas House – Newsroom Measures in Jeopardy

posted on 5.01.2017

This is the “make or break” week for the Texas House of Representatives.

In just 26 days, the 85^th Texas Legislature, regular session, will adjourn sine die.

House lawmakers are in a race to have their bills voted out of committee and placed on a House calendar by May 9.

 If not, those House bills die unless one can find a germane bill that is still moving which can serve as an amendment vehicle. 

The House is working long hours on the floor this week to move bills out of the chamber and has scheduled a rare Saturday floor session to consider bills.

While TAB has been successful in moving several legislative priority measures out of committee and on to a House calendar (as well as four Senate bills out of that chamber), a number of important TAB measures were stuck in committee as of mid-Monday.

A Senate measure is also stuck in its originating Senate committee, but its lifespan is longer as House deadlines to consider Senate bills do not kick in until May 20.

So what bills are in jeopardy in the House Government and Transparency Committee?

HB 2670 by Rep. Todd Hunter, R-Corpus Christi, which would clarify a 2013 law that said public business, even if it is conducted on private electronic devices or in private email accounts, is public record. 

The 2013 law essentially codified what the Texas A.G.'s office had been ruling for many years.  

Some public officials, however, are refusing to provide these materials to the governmental body to satisfy the requests for that information. 

The proposed fix, first attempted in the 2015 Legislature, would amend the existing law by requiring a government officer or employee in possession of public records to hand that information over to the governmental body upon request. 

The 2015 failed to beat a House bill deadline and TAB is doing everything in its power this year to avoid a repeat.

Another Hunter bill in question is HB 2710, clarifies that dates of birth (DOBs) unless statutorily protected, are subject to release. 

Journalists use DOBs to differentiate between two individuals with the same or similar names in order for reporting to be accurate.  

A May 2015 Third Court of Appeals decision, Paxton v. City of Dallas, extended a common-law right of privacy to dates of birth of all Texans, basing its decision on an earlier Texas Supreme Ct. decision which held public employee dates of birth could be withheld from the public.  

As a result of the court’s decision, some Texas police departments are now redacting DOBs from the “basic information” that must be released when an individual is arrested or charged, thereby creating liability issues for crime reporting.  

A Hunter omnibus TPIA measure, HB 3848, would move several issues contained in stand-alone bills in one package.  

These include:

• Custodian of records: (HB 2670 by Hunter)
• DOBs: (HB 2710 by Hunter)
• Governmental body URLs:   Cities and counties can send Texas Public Information Act requestors to a website if the information already exists online.  This measure would expand access to public information by allowing state agencies also to respond to TPIA requests with an Internet address where requested information may already exist.  (SB 79 by Nelson)
• Failure to respond to TPIA requests:   Requestors are sometimes at a loss to understand why they do not get a response from governmental bodies when they submit a TPIA request.  According to the AG’s office, the body is not required to respond if they have no documents that are responsive to the request, or if they are relying on a previous AG determination that the information does not have to be released.  In addition, governmental bodies aren’t required to identify any previous determination that they are relying upon.

HB 4144 by Rep. Chris Paddie, R-Marshall, is also in question.

It says a Texas citizen should not be vulnerable to a lawsuit simply for asking for information they believe is covered by the Texas Public Information Act.  

Recently, the State Fair of Texas sued a law firm seeking records that its client believed were subject to the TPIA.  

The Fair does not believe it is a governmental body and therefore is not subject to the Act. 

Rep. Giovanni Capriglione, R-Southlake, has three bills stuck in the committee, although two have their Senate companions in the committee as well, thereby extending the measures’ lives because House bill deadlines for Senate bills don’t kick in for a few more weeks.

Those Senate bills would ultimately be the measures that move out of the committee.

Capriglione’s HB 3581 would require governmental bodies to release “record layout” information contained in spreadsheet and database records. 

Newsrooms have encountered problems with requested data being released but the header used to identify the columns of information in a spreadsheet is not. 

In other cases spreadsheets are released in the form of a .pdf rather than a searchable document. 

Both make the information unusable for reporting purposes and HB 3581 would address both issues.

Capriglione’s HB 792 has a little longer lifespan because SB 407 by Sen. Kirk Watson, D-Austin, the Senate companion bill, is sitting in the House Government Transparency and Operations Committee.

It addresses the 2015 Boeing v. Paxton Texas Supreme Ct. decision that expanded the competitive bidding exception in the Texas Public Information Act in two egregious ways.

In addition to allowing private entities to claim the exception, it also allowed the exception to apply to final, awarded government contracts.   

Capriglione’s HB 793 also has a longer life for the same reason – its Senate companion bill, SB 408 by Sen. Kirk Watson, D-Austin, is in the committee.

The measure would correct some of the confusion and damage caused by the 2015 Texas Supreme Court decision in Greater Houston Partnership v. Paxton that redefined when publicly-funded private entities are subject to the Texas Public Information Act. 

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.   

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

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