Texas Senate Sends Key Open Government Measures to Texas House

posted on 4.15.2019

Bills repairing damage done by Texas courts to the Texas Public Information Act and the Texas Open Meetings Act have now moved from the Texas Senate to the Texas House. With about 40 days left in the 86^th Legislature, TAB and the Texas Sunshine Coalition are optimistic about passage of these much-needed reforms.

Status of TAB newsroom priority legislation
SB 943 by Sen. Kirk Watson, D-Austin, and HB 2189 by Rep. Giovanni Capriglione, R-Southlake, are Senate and House companion transparency measures meant to offset the damage done by two 2015 Texas Supreme Court decisions (Boeing v. Paxton and Greater Houston Partnership v. Paxton).

Combined, the two decisions have gutted the public’s ability to see how taxpayer dollars are spent. 

The Boeing decision alone has been cited nearly 3,000 times by governmental bodies to prevent release of information in the nearly four years since the Court’s decision.

SB 943 was referred to the House State Affairs Committee last Friday while HB 2189 is on its way to the House Calendars Committee.  It was approved by the House State Affairs Committee earlier this month.

SB 944 by Sen. Kirk Watson, D-Austin, and HB 2191 by Rep. Giovanni Capriglione, R-Southlake, are

Senate and House companion TPIA omnibus bills addressing several facets of how the TPIA functions. 

They include language from HB 1700 by Rep. Todd Hunter, R-Corpus Christi, a bill that addresses a TPIA loophole that prevents the public from getting records concerning public business that are in private officeholder email accounts or held on their private electronic devices.  

SB 944 was also referred to the House State Affairs Committee last Friday.

HB 2191 and HB 1700 are on their way to the House Calendars Committee after their approval by the House State Affairs Committee earlier this month.

On another court-related front, TAB is seeking a clarification in law that dates of birth, unless statutorily or constitutionally protected, should be subject to release under the Texas Public Information Act.

Journalists use DOBs to differentiate between two individuals with the same or similar names.  A 2015 Third Court of Appeals decision, Paxton v. City of Dallas, however, extended a common-law right of privacy to dates of birth of all Texans. 

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.

Rep. Todd Hunter, R-Corpus Christi, and freshman Sen. Nathan Johnson, D-Dallas, have filed HB 1655 and SB 1317 to address the problem.

HB 1655 is in the House Calendars Committee awaiting a date on a House calendar.

The Senate Business and Commerce Committee heard SB 1318 last week and left the bill pending.  TAB Newsroom Legislative Committee member Joe Ellis, KVUE-TV Austin, testified on the measure.

A Win for the Texas Open Meetings Act
Texas Open Government forces got a big win this week when the House State Affairs Committee approved SB 1640 by Sen. Kirk Watson, D-Austin, on Monday.  The Texas Senate unanimously approved the measure last week.  The bill addresses the recent Court of Criminal Appeals TOMA decision which struck down the "walking quorum" penalty as unconstitutionally vague. 

The House companion bill, HB 3402 by Rep. Dade Phelan, R-Beaumont, has already been approved by the committee and is awaiting a date on a House calendar. 

Anti-SLAPP Law Revamp
Texas lawmakers filed four bills this session that would have negatively affected the Texas Citizen Participation Act, better known as Texas’ anti-SLAPP litigation law. 

A fifth bill, HB 3547 by Rep. Joe Moody, D-El Paso, would have made sensitive and precise revisions to the existing law to address several concerns about the law’s application since TAB and others were successful in passing it in 2011.

The TCPA has saved Texas newsrooms hundreds of thousands of dollars in legal fees by allowing early dismissal of meritless defamation claims.  

Moody’s bill was TAB’s preferred approach, but HB 2730 by Rep. Jeff Leach, R-Plano, chairman of the House Judiciary and Civil Jurisprudence Committee, became the vehicle by which the law will be revamped.

After a lengthy committee hearing, Leach formally withdrew his committee substitute bill and promised to work anew on another substitute considering a plethora of witnesses’ concerns raised by the Protect Free Speech Coalition, which TAB is helping fund.   

The committee approved the new substitute last week and it is now on its way to the House Calendars Committee seeking a date on a House calendar.

The bill now contains nearly all the language TAB and the Coalition had sought, and while there are minor concerns that could be addressed in a House floor amendment, TAB remains hopeful that will occur. 

HB 2730 is vastly improved from its original filed form with concerns about the existing statute addressed in a manner that maintains strong First Amendment protections. 

Data Request Layout, Attorneys’ Fees, Dead Suspects
Three other issues which TAB advocated in the 2017 session were refiled this session and most have been heard by their respective legislative committees.

HB 4132 by Rep. Eddie Rodriguez, D-Austin, and SB 1317 by Sen. Nathan Johnson, D-Dallas, require governmental bodies to provide an electronic copy of public information maintained in an electronic form or in a format acceptable to the requestor, including in a searchable and sortable format, if requested that way. 

Newsrooms have been stymied when requests have been answered in the form of an unsearchable and unsortable PDF document.  

The House State Affairs Committee heard HB 4132 last week and left the bill pending.

Senate Business and Commerce has yet to hear SB 1317.

A bill that would end a long-lamented practice by governmental bodies of needlessly sticking requestors with a hefty legal bill when seeking release of information, HB 3457 by Rep. John Smithee, R-Amarillo, was approved Monday by the House State Affairs Committee.

TAB Newsroom Legislative Committee member Stacy Allen, an attorney with TAB’s state counsel, Jackson Walker LLP, testified on the bill.  Under current law, a court can assess litigation costs and reasonable attorney fees to a requestor if they substantially prevail in a lawsuit to force release of information. 

In some cases, however, governmental bodies have disingenuously elected to release the information on the eve of trial, well after the requestor has spent tens of thousands of dollars in legal costs to win the information’s release. 

TAB and other Open Government advocates tried to pass similar legislation in the 2017 session, but it was vetoed by Gov. Abbott. 

TAB Newsroom Legislative Committee member Laura Prather, an attorney with TAB Associate member law firm Haynes Boone LLP, met earlier this year with the Governor’s office and was encouraged to refile a bill with slightly revised language to gain approval.

The House Calendars Committee will now determine if the measure gets a House floor vote.

HB 147 by Rep. Joe Moody, D-El Paso, is another Texas Public Information Act bill that gained traction last year, only to die on a House calendar when it missed a bill deadline.  It would allow access to law enforcement information in cases in which all suspects involved are deceased.  

Under Section 552.108 of the Texas Public Information Act, law enforcement materials do not have to be released if there is a pending investigation or unless there is a final court outcome.  There won’t be a final court outcome, however, if a suspect in a case is deceased. 

Several high-profile investigations remain “active” cases even though the only suspect in the case is deceased. 

Austin’s KXAN-TV reported on the issue earlier this year, demonstrating how families have been kept in the dark about the circumstances of how their loved ones died in law enforcement custody.  The bill quickly moved out of House committee in 2017, but this year, the law enforcement community has been out in force seeking to block the bill.

HB 147 was heard by the House State Affairs Committee in late February and on Monday, the committee approved a committee substitute bill in a 9-3 vote.  The bill now moves to the House Calendars Committee for a date on the House floor.

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

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