Featured: Omar Ochoa, owner, Omar Ochoa Law Firm (https://omarochoalaw.com) in McAllen, as a public service is providing updates on key legislation that affects transparency in government in Texas.

Photograph By DAVID PEZZAT

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Omar Ochoa: Texas Court of Criminal Appeals, Texas Legislature taking actions involving transparency in governments throughout state

By DAVID A. DÍAZ
[email protected]

The Texas Court of Criminal Appeals on Wednesday, February 27, 2019, ruled that a major provision in the Texas Open Meetings Act (TOMA) is unconstitutionally vague, invalidating the specific rule and raising questions about the relationship between free speech rights and government transparency, according to Texas Senate News, said McAllen attorney Omar Ochoa.

Ochoa, owner, Omar Ochoa Law Firm (https://omarochoalaw.com), as a public service is providing updates on state court battles and key legislation that affect transparency in government in Texas.

In general, openness, accountability, and honesty define government transparency. In a free society, transparency is 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)

In addition to the recent action by the Texas Court of Criminal Appeals, state legislation has been filed by numerous state lawmakers during the ongoing 140-day regular session of the 86th Texas Legislature, including:

• SB 462 by Sen. Donna Campbell, R-New Braunfels, seeks to provide more information for voters when taxing jurisdictions seek approval to issue bond debt, according to Texas Senate News.

• Sen. Kirk Watson, D-Austin, and Rep. Giovanni Capriglione, R-Southlake, filed Senate Bill 943 and House Bill 2189, respectively. The identical pieces of legislation address citizens’ access to information contained in and surrounding state and local government contracts, according to the Freedom of Information Foundation of Texas (FOI Foundation).

Sen. Juan “Chuy” Hinojosa, D-McAllen, is a primary author of SB 943.

• The parents of teens and young adults who died in police custody urged the House State Affairs Committee on Wednesday, February 27, 2019, to support House Bill 147, by House Speaker Pro Tem Joe Moody, D-El Paso, to close a loophole in the Public Information Act so they can access records about their loved ones’ deaths, according to the Freedom of Information Foundation of Texas.

The Senate Committee on Property Tax considered legislation on Tuesday, February 26, 2019 intended to give property owners a fairer process when protesting the appraised value of their homes and taxpayers more transparency when deciding whether to vote for or against local bond proposals, according to Texas Senate News.

• The first measure, SB 462 by Sen. Donna Campbell, R-New Braunfels, seeks to provide more information for voters when taxing jurisdictions seek approval to issue bond debt.

• SB 67 by Sen. Jane Nelson, R-Flower Mound, would make a number of changes to the requirements for members of the body that hears tax protests from homeowners. Along with the increase in tax rates, rising property values are often cited as one of the major drivers of increased property tax bills.

• Additionally, most of SB 67’s provisions are also included in Sen. Paul Bettencourt’s (R-Houston) major tax reform bill, SB 2, passed out of the Senate Property Tax Committee on February 14, 2019.

Two other major bills in the FOI Foundation and Texas Sunshine Coalition open government legislative agenda were filed on Tuesday, February 12, 2019 by Rep. Todd Hunter, R-Corpus Christi.

• House Bill 1655 would restore public access to dates of birth in many public documents, including criminal justice records and candidate applications. This helps to ensure accuracy in reporting and allows public vetting of politicians running for office.

• House Bill 1700, a bill that closes the “custodian loophole” in the Texas Public Information Act, would make it easer to obtain public records contained in officials’ private devices or email accounts. Records dealing with public business are already public record, but if they are held in private custody they can be difficult to obtain under current law.

An author of a bill 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.

A “bill” is a type of legislative measure that requires passage by both chambers of the legislature and action by the governor in order to become effective.

A bill is the primary means used to create and change the laws of the state.

“Bill” types include Senate and House of Representatives bills, Senate and House Joint Resolutions, Senate and House Concurrent Resolutions, and Senate and House resolutions.

The term “filed” is used to refer to a measure that has been introduced into the legislative process and given a number. Members of the House of Representatives file bills with the Chief Clerk of the House of Representatives. Senators file bills with the Secretary of the Senate.

(https://tlc.texas.gov/docs/legref/Glossary.pdf)

State Appeals Court Strikes Down Key Open Government Provision

According to Texas Senate News:

The Texas Open Meetings Act is intended to increase transparency in government proceedings, requiring that any governing body meeting in quorum, that is, with enough members to conduct official business, has to do so in a public forum.

The specific clause struck down Wednesday, February 27, 2019, would apply to a prohibition on discussion of relevant matters among government officials when a quorum isn’t achieved.

The court found that the law wasn’t clear as to what constitutes a violation of this law.

Sen. Kirk Watson, D-Austin, a leading advocate for open government, tweeted that this could be cause for concern.

“I’m still reviewing the opinion, but I think the Legislature needs to address this issue this session,” he wrote. “This is a matter of high importance because members of the public need to be able to trust that decisions are being made in the open, not behind closed doors.”

The deadline for filing legislation for the current session is Friday, March 8, 2019.

First adopted in 1967, and amended many times in the subsequent years, the core of TOMA requires meetings of governmental bodies to be open to the public and that notice of the meeting be posted publicly and tell citizens where and when the meeting is happening.

“Public access to the proceedings and decision-making processes of governmental entities is an essential element of a properly functioning democracy,” wrote Attorney General Ken Paxton in the introduction to the 2018 Open Meetings Handbook.

The provision at issue in the case ruled on Wednesday, February 27, 2019, reads as follows:

“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

The specific case involved Montgomery County Judge Craig Doyal, who was indicted for violating TOMA along with two county commissioners, when they allegedly negotiated details of a county road bond outside of a public meeting. Doyal challenged the indictment, saying the law was unclear, too broad, and violated his First Amendment rights.

In its ruling, the court found the provision was too vague and as such failed to meet the constitutional requirements for laws that impose a criminal penalty. Such laws must make it clear to the average person exactly what acts or behavior are barred.

Furthermore, the First Amendment Association adds an additional standard to clear.

“Greater specificity is required when First Amendment freedoms are implicated because ‘uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked,’” wrote Presiding Judge Sharon Keller in the Court’s majority opinion.

Two of the nine justices that sit on the court dissented.

The panel did leave the door open for legislative action.

“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” wrote Keller. “But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.”

Lawmakers file bill to repair Texas Public Information Act, help citizens track spending

According to the Texas Freedom of Information Foundation of Texas:

Two Texas lawmakers filed bipartisan legislation on Thursday, February 21, 2019, to strengthen the state’s Public Information Act and give Texans the ability to once again track the spending of taxpayer money.

Sen. Kirk Watson, D-Austin, and Rep. Giovanni Capriglione, R-Southlake, filed Senate Bill 943 and House Bill 2189, respectively. The identical pieces of legislation address citizens’ access to information contained in and surrounding state and local government contracts.

Sen. Juan “Chuy” Hinojosa, D-McAllen, is a joint author of SB 943.

The proposal takes into account months of work by the diverse Texas Sunshine Coalition as well as the competitive concerns of businesses and non-profits that contract with the government.

“Without the contracting transparency reforms being proposed by SB 943 and HB 2189, governmental entities and third parties who contract with them can keep Texans in the dark about basic issues such as the amount of money spent in a contract and whether promises are kept.

Transparency is necessary to accountability and having trust in our government,” said First Amendment attorney Laura Prather, legislative co-chair for the non-profit Freedom of Information Foundation of Texas.

Texas Supreme Court rulings in 2015 interpreted the Public Information Act to allow governmental bodies and firms and organizations contracting with the government to easily block release of information to the those requesting it.

“In many cases, even the final contract and amount spent cannot be viewed by citizens because of how the court’s interpretation is being used,” Prather added.

The FOI Foundation of Texas and more than 15 other groups formed the Texas Sunshine Coalition to raise awareness and emphasize that the Public Information Act serves all Texans. Individual citizens, businesses, journalists, researchers and many others use the law.

“For decades, Texas had one of the strongest open government laws in the nation. We are thankful for this legislation to repair the Public Information Act. The ability to see how tax money is spent is a foundation of our democracy. It’s basic American civics,” added Kelley Shannon, executive director of the FOI Foundation of Texas.

The legislation by Watson and Capriglione is one of several open government measures the FOI Foundation of Texas is working to pass in the current Texas Legislature. Information on other transparency issues can be found at http://www.txsunshine.org and http://www.foift.org.

Legislators hear testimony on closing police loophole in Texas Public Information Act

According to the Texas Freedom of Information Foundation of Texas:

The parents of teens and young adults who died in police custody urged the House State Affairs Committee on Wednesday, February 27, 2019, to close a loophole in the Public Information Act so they can access records about their loved ones’ deaths.

“Government transparency is government transparency, even when it’s not pretty,” said House Speaker Pro Tem Joe Moody, D-El Paso, as he explained the need for his House Bill 147. “It’s better for people to know the truth, even if it’s ugly and complicated and challenging.”

The legislation would prevent law enforcement agencies from withholding records in cases that did not end in a conviction or deferred adjudication. That exemption in the Texas Public Information came about in the late 1990s and was meant to protect innocent people who are released by the police and not convicted. However, some police agencies now use it to withhold records when a suspect has died in custody, and, thus, will not ever be convicted or finally adjudicated.

Among the witnesses supporting the bill were Kathy and Robert Dyer, parents of Graham Dyer, an 18-year-old who died after he was arrested by Mesquite police officers. They told of the injuries their son sustained in police custody and how afterward they could never obtain the records they requested from the local police force because of the loophole in state law. Instead, they found a way to get videos and other records through a federal Freedom of Information Act request of the FBI and learn about his fatal injuries.

“If someone dies in police custody, I would think this is when we want to open all our police records,” Robert Dyer said. His wife, Kathy, also described the ordeal and the questions the family has wanted answered: “We’re parents. Don’t we have a right to know what happened to our son?”

Demeisha Burns, whose son Herman Titus, 21, died in Travis County Jail custody, said her son wasn’t given the medical care he needed and that she could not obtain the jail records she requested to find out what happened because of the gap in the open records law.

“People deserve to know,” she said. “Families want to be in the loop. … Just so we can go to bed at night and not cry our eyes out.

Several police officers testified that they oppose the bill as it’s currently written but that they are working with Moody on some changes to the legislation that they would support.

Property Tax panel considers transparency, fairness measures

According to Texas Senate News:

The first measure, SB 462 by Sen. Donna Campbell, R-New Braunfels, seeks to provide more information for voters when taxing jurisdictions seek approval to issue bond debt.

According to the state’s Bond Review Board fiscal year 2018 report, local governments today carry $230 billion in debt, an 18 percent increase over the last five years. About two-thirds of that is in the form of general obligation bonds, which are repaid by property taxes, and can therefore drive up property tax bills.

“Ultimately [the bill] is about just giving voters a clear picture of local debt and its effect on their property taxes when they are asked to vote on a bond,” Campbell said.

Her bill would require certain information to be disclosed directly upon the ballot form in a bond election.

“Placing this information on the ballot where voters are asked to approve of the bond is the most transparent place to ensure that voters can make an informed decision about the debt,” she said.

Taxing jurisdictions would have to disclose the purpose of the bond, the principal amount, and the fact that it could lead to increased tax rates if approved. Additionally, the jurisdiction would have to list the total amount of existing debt carried on the entity’s books and the portion of a taxpayer’s property tax bill that goes to pay down that debt.

The next bill, SB 67 by Sen. Jane Nelson, R-Flower Mound, would make a number of changes to the requirements for members of the body that hears tax protests from homeowners. Along with the increase in tax rates, rising property values are often cited as one of the major drivers of increased property tax bills.

When owners believe their property has been appraised above market value in the periodic appraisal process used to determine the value of taxable property within a jurisdiction, they can protest that valuation to the local appraisal review board (ARB).

A 2018 survey on ARB performance conducted by the state comptroller, found that respondents felt the three-member boards as a whole generally performed satisfactorily, with more than 80 percent saying that their board as a whole was fair. When considering individual members, however, the numbers get much lower, with almost two-thirds of respondents identifying a single board member as unfair.

Nelson’s bill would seek to address issues of unfairness and dissatisfaction by requiring that any evidence used by the ARB be presented to the home owner prior to the hearing, or it cannot be submitted into the process. It would set term limits for board members and require them to have more training on equal and uniform property appraisal.

During interim hearings on property taxes in 2016, Bettencourt said his committee heard reports that some individuals were threatened with even higher property values if they didn’t drop the protest.

“We were taking public testimony that people were being told that the value could go up, you should settle,” he said.

“That’s just wrong,” replied Nelson.

Her bill would prohibit an ARB from further raising an property’s value above the protested value to coerce the taxpayer to settle the complaint.

Nelson said this bill is identical to a bill that received unanimous support in the Senate last session (2017), but did’t clear the House.

Additionally, most of the measure’s provisions are also included in Bettencourt’s major tax reform bill, SB 2, passed out of the Property Tax Committee February 14, 2019, so it will likely find some path back to the House again this session.

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Kelley Shannon contributed to this article. Session video and all other Senate webcast recordings can be accessed from the Senate website’s Audio/Video Archive . For more on this and other Texas legislative news stories which affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).