Texas Court of Criminal Appeals Strikes Down Key Texas Open Meetings Act Provision

posted on 3.04.2019

The Texas Court of Criminal Appeals last week ruled a key provision of the Texas Open Meetings Act is “unconstitutionally vague”. The 7-2 decision upheld an April 2017 district court ruling that ordered the dismissal of indictments against the Montgomery County Judge, the Montgomery County Precinct 2 Commissioner, and a political consultant who were charged with violating Section 551.143 of the Government Code.

The TOMA provision that was struck prohibited a so-called “walking quorum” in which members of a governmental body knowingly conspire to circumvent the law “by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”  Texas lawmakers added the criminal prohibition to the TOMA in 1993.

The misdemeanor offense, one of the few criminal penalties in Texas’ open government laws, carries a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.

“I would emphasize that the decision deals with only one narrow provision of the Act: criminal penalties for walking quorum conspiracies,” said Paul Watler, an attorney with TAB’s general counsel, Jackson Walker LLP. He also serves on the Board of the Freedom of Information Foundation of Texas.

“The remainder of the Act remains in place, including the requirement that every meeting of a governmental body be open to the public, the notice and agenda requirements, the requirement that final action always take place in a called open meeting, etc.” 

“Further, the civil enforcement remedies of suit by any member of the public, including a member of the news media, for mandamus or injunction to stop or prevent a TOMA violation remain unaffected by this ruling.”

Gov. Greg Abbott, R-Austin, was quick to send an advisory letter to governmental appointees and state agency heads, saying he expected them to “follow the spirit of the law."

“I do think that legislative action is the only viable recourse to fix this,” Watler said.  “If that fails, we will be stuck with a bad law in Texas.”

Lawmakers appear ready to seek a legislative remedy before the session ends May 27.  State Rep. Steve Toth, R-Conroe, filed HB 2965 on Monday to address the ruling.

On Wednesday, state Sen. Kirk Watson, D-Austin, and state Rep. Dade Phelan, R-Beaumont, chairman of the House State Affairs Committee, filed SB 1640 and HB 3402 to address the ruling.  Watson is championing several of TAB’s Open Government legislative priorities this session.  "We simply couldn't let this ruling go unanswered," said Watson.  "Without some kind of walking quorum prohibition, there's nothing to stop government actors from meeting in smaller groups to avoid the spirit and intent of the Open Meetings Act."

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

---