Featured, from left: Steve Taylor, Editor-in-Chief, the Rio Grande Guardian, on Monday, October 21, 2o19 prepares to do his job as a journalist by interviewing John Sharp, Chancellor, the Texas A&M System, following a public ceremony marking the first anniversary of the Texas A&M University Higher Education Center at McAllen, located at 6200 Tres Lagos Boulevard. A new state law, authored by Rep. Terry Canales, D-Edinburg, now allows any citizen to also address their elected leaders and their top appointed officials during public government meetings on any agenda item before a vote, not just in a designated time slot, according to the Dallas Morning News.
Photograph By NATHANIEL BAEUR
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House Bill 2840 by Rep. Canales, overwhelmingly supported by Texas Legislature and Gov. Abbott, may become one of the most important advances for the public’s freedom of speech in Texas history
By DAVID A. DÍAZ
[email protected]
It very well may become one of the most important advances for freedom of speech in Texas history, and it came courtesy of the Texas Legislature and Gov. Greg Abbott, who last spring strongly supported a measure authored by Rep. Terry Canales, D-Edinburg, that immensely increases the power of citizens to address government leaders.
Even though its impact is far-reaching, Canales, who also serves as Chair, House Committee on Transportation, wrote a piece of legislation that was extraordinarily brief and to the point:
• Government leaders must allow individuals who wish to comment on any agenda item to be able to do so during a public meeting; and
• Government leaders can not prohibit individuals from criticizing them during a public meeting.
“This new law has gotten very little attention, but it’s quite significant, even stunning,” observed Dave Lieber, The Watchdog investigative columnist for the Dallas Morning News. “This is unheard of. Previously, most governments allowed comments at some point, but only rarely did leaders let the public speak on individual agenda items during their deliberations. Usually, they only allowed such comments when public hearings are required by law.”
HB 2840 is such a powerful force for open government in Texas that the Dallas Morning News, in its headline for Lieber’s commentary, characterized Canales’ measure as “A cool new Texas law you never heard of means they can’t shut you up at government meetings anymore”.
(https://www.dallasnews.com/news/watchdog/2019/10/04/cool-new-texas-law-never-heard-means-cant-shut-government-meetings-anymore/)
Waco Tribune-Herald: Canales, a “dedicated champion of governmental transparency”
The Waco Tribune-Herald has also weighed in on the importance of House Bill 2840, calling on local governing entities to be “fully committed to living up to a new state law whose primary mission ensures citizens are permitted to offer their two cents before any issue is decided — not afterward.”
Canales, a Democrat and “dedicated champion of governmental transparency”, authored the bill at the urging of a conservative group called Objective Watchers of the Legal System — OWLS, for short — after the group complained of governmental subdivisions in South Texas discouraging public input on public issues, the Tribune-Herald reported. “The new law thus requires city councils, school boards, county commissioners courts, and other entities to provide for commenting ‘before or during the consideration of each item on the meeting agenda.’ This can include ‘public criticism of the governmental body or any action or inaction.’”
(https://www.wacotrib.com/opinion/editorials/editorial-new-commenting-law-to-test-both-public-local-government/article_d6b40b0b-7d7d-5acd-9e1a-163ba3fd80c5.html)
In his home region of deep South Texas, the Monitor newspaper also endorsed the new state law, pointing out that Canales’ measure helps guarantee that public meetings still can proceed in an orderly manner, but that everyone’s viewpoint must be heard.
It also provides equal time for public comment for individuals whose comments must be translated or when sign-language is required.
“The new law does preserve those bodies’ right to set time limits on individual comments, as long as non-English speakers and anyone else who requires translation receives twice the designated time in order to allow for the translation. This only applies when an immediate translation isn’t available, such as a sign-language interpreter who provides the translation while a person is speaking,” the Valley-based newspaper stated.
(https://www.themonitor.com/2019/10/01/editorial-law-standardizes-protects-comment-public-meetings/)
But, as a recent report by the Texas Association of School Boards (TASB) notes, the new state law authored by Canales requires that anyone who wishes to comment on an agenda item must be allowed to be heard.
“The board (Texas school boards of trustees) must allow every member of the public who desires to address the board about an item on the agenda for an open meeting to do so before or during the board’s consideration of the item. A board may not, for example, require the designation of a spokesperson to reduce the number of speakers or cap the total amount of time in a manner that results in denying a member of the public who has followed the district’s procedures to address the board,” the TASB report finds. “It may be reasonable for the board to offer, but not require, alternative options to address the board, such as submitting written comments in lieu of spoken comments or donating an individually assigned amount of time to another registered speaker. If a board finds that it is overwhelmed by the number of citizens wishing to address the board, the board should seek legal advice before refusing to allow a citizen to address the board prior to its consideration of an agenda item.”
(https://www.tasb.org/services/legal-services/tasb-school-law-esource/governance/documents/oma-public-comment.aspx)
Valley lawmakers committed to transparency in government
As happy as he is of the bipartisan and overwhelming support House Bill 2840 received from the Texas Legislature, Canales said he is even more proud that his measure carried the names of several South Texas lawmakers one of the driving forces for the law.
Sen. Juan “Chuy” Hinojosa, D-McAllen, was a cosponsor of Canales’ House Bill 2840, while fellow South Texas legislators – Rep. R.D. “Bobby” Guerra, D-McAllen, Rep. Ryan Guillen, D-Rio Grande City, and Rep. Richard Raymond, D-Laredo – were joint authors of the legislation.
All Valley legislators voted for House Bill 2840, which was carried in the Texas Senate by Sen. Bryan Hughes, R-Mineola, who served as the main sponsor of the measure. Hughes is a former colleague of Canales in the House of Representatives who is now serving his first term as a state senator.
“Our cities, counties, school boards, regional mobility authorities, the council of governments – the list goes on – post their agenda packets online, televise their meetings on their local government channels and websites, and many of them have been doing so for years and even decades,” Canales reflected. “So we in deep South Texas have a long history of transparency in government – and those ideals are put into action in the Texas Legislature by every one of my colleagues from the Valley.”
In general, openness, accountability, and honesty define government transparency. In a free society, transparency is the government’s obligation to share information with citizens. It is at the heart of how citizens hold their public officials accountable.
(https://ballotpedia.org/Government_transparency)
House Bill 2840 also received support during the respective House and Senate committee hearings from individuals and representatives of groups from throughout the state, including the following witnesses who registered on behalf of, or on, the measure:
Ellis Gregory (League City, Texas);
Chris Masey (Coalition of Texans with Disabilities);
Edward Sterling (Texas Press Association);
Calvin Timlin (Self); and
Al Zito (Self).
Canales had special praise for the members of the OWLS (Objective Watchers of the Legal System) for bringing the issue to his attention, and for rallying legislative support for House Bill 2840 at the Texas Capitol.
“This new state law is a perfect example of Texas residents bringing their ideas to the Legislature, and making their vision become reality,” Canales said. “You don’t have to be wealthy, powerful, or have family or business connections in the Texas Legislature to change Texas laws for the better. You just have to be willing to bring your ideas to your local state legislators, because that is what we are here for.
“As President Theodore Roosevelt famously said so long ago, and it is true today: ‘It’s hard to fail, but it is worse never to have tried to succeed,” Canales advised.
House Research Organization Bill Analysis
For affected local government entities, private groups, and individuals which may still be trying to best understand the state law authored by Canales, the House District 40 state representative points them to the bill analysis by the House Research Organization, which is the nonpartisan research arm of the Texas House of Representatives.
Highlights of the House Research Organization bill analysis follows:
House Bill 2840 requires certain governmental bodies to allow any member of the public who wished to address the body regarding an item on the agenda for an open meeting to do so at the meeting before or during the body’s consideration of that item.
The state law created by HB 2840 affects:
• A county commissioners court;
• A municipal governing body;
• A deliberative body with a rulemaking or quasi-judicial power and that was classified as a department, agency, or political subdivision of a county or municipality;
• A school district board of trustees;
• A county board of school trustees;
• A county board of education;
• The governing board of a special district created by law;
• A local workforce development board;
• A nonprofit corporation eligible to receive funds under the federal community services block grant program and authorized by the state to serve a geographic area of the state;
• A nonprofit corporation that provided water supply, wastewater service, or both, and was exempt from ad valorem taxation; and
• A joint board created to exercise the constituent powers of each public agency with respect to an airport, air navigation facility, or airport hazard area.
House Bill 2840 allows a governmental body to which it applied to adopt reasonable rules regarding the public’s right to address that body, including those that limited the total amount of time that a member of the public could address the body on a given item. If a governmental body did not use simultaneous translation equipment, a member of the public who addressed the body through a translator would have to be given at least twice the amount of time as a member of the public who did not require the assistance of a translator.
A governmental body could not prohibit public criticism of that body unless that criticism was otherwise prohibited by law.
The bill became state law on Sunday, September 1, 2019.
Legislative Glossary
As the author of House Bill 2840, Canales is the legislator who files a bill and guides it through the legislative process (also called the primary author). The Senate allows multiple primary authors for each bill or resolution. The House of Representatives allows only one primary author, the House member whose signature appears on the original measure and on the copies filed with the chief clerk. Both chambers also have coauthors, and the House of Representatives has joint authors.
In the House of Representatives, a joint author is a member authorized by the primary author of a bill or resolution to join in the authorship of the measure and have his or her name shown following the primary author’s name on official printings of the measure, on calendars, and in the journal. The primary author may authorize up to four joint authors.
The sponsor is the legislator who guides a bill through the legislative process after the bill has passed the originating chamber. The sponsor is a member of the opposite chamber of the one in which the bill was filed.
A cosponsor is a legislator who joins with the primary sponsor to guide a bill or resolution through the legislative process in the opposite chamber. A cosponsor must be a member of the opposite chamber from the one in which the measure was filed.
The Freedom of Information Foundation of Texas strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment.
They assist individual citizens, journalists, and government officials through educational seminars, an annual conference, and a speaker bureau. They also file briefs in important legal cases addressing open government and freedom of speech and press. The Foundation’s FOI Hotline connects Texans with volunteer attorneys who explain open government laws. Their Light of Day project teaches college students how to use public records in their reporting. They are a non-profit 501(c)3 organization.
According to the Texas Freedom of Information Foundation of Texas, two major state laws in Texas help promote and protect the people’s right to know about the activities of their governments and its elected and appointed leaders.
Texas Public Information Act
Covered Entities
The Texas Public Information Act applies to all governmental bodies, including all boards, commissions, and committees created by the executive or legislative branch. It also may apply to a body that is supported by public funds or that spends public funds. Private organizations that hold records for governmental bodies also are covered. However, private individuals and businesses are not covered even though they supply goods or services through a government contract.
Types of Information
Public information refers to information collected, assembled, produced or maintained in the course of transacting public business. It may be on paper or film or in electronic communications such as emails, Internet postings, text messages or instant messages.
Exceptions
Some information is not open to the public. These types of information are listed as exceptions in the Texas Public Information Act. They include some information in personnel records, pending litigation, competitive bids, trade secrets, real estate deals and certain legal matters involving attorney-client privilege. Attorneys’ fees paid by a governmental body are generally public.
Law Enforcement
Generally, the front page of a police report is public. Records that would hinder the investigation or prosecution of a crime if they are released are exempt from disclosure.
The Judiciary
Information collected and maintained by the judiciary is not covered by the Texas Public Information Act. That information is governed by public access rules set by the Texas Supreme Court and other applicable rules and laws.
Making a Request
Filing a request under the Texas Public Information Act is as simple as asking the government agency in writing for the desired information. The request can be made through a letter or via email or fax. It does not need to contain any particular language, but it’s important to be clear. Try to be specific. This will help produce the information that is sought and can eliminate the need later for narrowing down a request that is too broad. The governmental body is not allowed to ask why the information is being requested.
Charges
A governmental body or agency can charge for copies of the information, but the fee must be reasonable and cannot be used to discourage someone from asking for information. The requester is entitled to an itemized bill if the charge is more than $40. A governmental entity can also waive copying charges. For more information, see the Texas Cost Rules tab in the Resources section of the website for the Freedom of Information Foundation (http://foift.org). To avoid charges, the requester can ask to view the records in person on the premises of the governmental body.
Withholding Information
Public information is supposed to be released “promptly.” There is a misconception that a governmental body or agency has 10 days to release information. The 10-day mark is the deadline for a governmental body if it contends the information is not public, to ask for an attorney general’s decision allowing it to withhold the records. (Texas’ open records law is stronger than those in many other states in that if a governmental entity wants to withhold information, it has to ask the attorney general for permission to do so.) After a ruling is sought, the attorney general then decides within 45 days. The person making the original request can also offer written comments to the attorney general. If a governmental body fails to seek an attorney general decision in time, the information is presumed to be public.
Appealing an Open Records Decision
When the attorney general’s office agrees with a governmental body that information can be withheld from the public, the person making the original request has the option of filing a lawsuit in state district court to attempt to have the information released.
The Texas Open Meetings Act is detailed in Chapter 551 of the Government Code. It states that governmental bodies must hold open meetings unless there is an authorized reason for a closed session, also known as an executive session.
Key provisions of the act are as follow:
Covered Entities
Governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government are subject to the Texas Open Meetings Act. Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations also are subject to the law.
Quorum
A quorum refers to a majority of members of a governing body unless a quorum is defined differently by applicable law or rule or charter of the body. A quorum must be present for the body to take action.
Posting of Notice
The governmental body must give the public notice of the date, time, place, and subject of an upcoming meeting. The notice must be posted in a place readily accessible to the general public at all times at least 72 hours before the meeting. In case of an emergency or “urgent public necessity,” a meeting notice or addition to a meeting agenda may be posted at least two hours prior to the meeting. The governmental body must clearly identify the emergency.
Other Exceptions to Posting Law
Boards or commissions with statewide jurisdiction must have their meeting notice posted on the Internet by the secretary of state at least seven days before a meeting. Committees of the Texas Legislature are not subject to the meeting notice rules above. Their rules are set by the Texas House and Senate.
Closed Sessions
Closed, or executive, sessions may be held by a governmental body in certain situations. Executive sessions are permitted when a body is meeting with its attorney on litigation or a settlement offer; deliberating personnel matters; deliberating the purchase or lease of property; discussing certain financial contract negotiations, or discussing the deployment of security devices. Several other exceptions to open meetings are also contained in the Texas Open Meetings Act.
Deliberations Between Meetings
Under a new provision of the act that took effect Sept. 1, 2013, members of a governing body are allowed to communicate with one another about public business between meetings if they do so in writing and on a publicly accessible online message board. The message board must be prominently displayed and easy for the public to find on the government entity’s website. Officials may not take action on the message board. That must wait for a posted meeting.
Video Conferencing
The Texas Open Meetings Act now allows for members of a governmental body to attend a public meeting via a video conference call. The head of the board or commission must be physically present in the designated meeting place and the public must be given access to that meeting space. The public must be able to witness the comments and actions of those officials attending the meeting remotely via audio and video equipment and be able to participate via videoconferencing just as they would at a traditional public meeting.
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Rep. Terry Canales, D-Edinburg, who is the Chair of the House Committee on Transportation, represents House District 40 in Hidalgo County, which includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr, and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426. For more on this and other Texas legislative news stories that affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).
