Featured: Fern McClaugherty, a leader with O.W.L.S. (Objective Watchers of the Legal System), with Rep. Terry Canales, D-Edinburg, in the Edinburg City Council Chamber at Edinburg City Hall on Thursday, February 14, 2019, during a reception hosted by the City of Edinburg to honor Canales for his appointment as Chair, House Committee on Transportation.
Photograph by MARK MONTEMAYOR
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Governor signs bill by Rep. Canales that gives Texans powerful new rights during public comment portions of open meetings affecting scores of local governments
By DAVID A. DÍAZ
[email protected]
Legislation that would increase the legal rights of people to speak before the elected and appointed leaders of many governing bodies in the Lone Star State was signed into law on Monday, June 10, 2019 by Gov. Gregg Abbott, according to Rep. Terry Canales, D-Edinburg, the primary author of the measure.
The author is the legislator who files a bill and guides it through the legislative process (also called the primary author).
The measure, House Bill 2840, goes into effect on September 1, 2019.
“It has been suggested that the practice of the governing bodies of certain political subdivisions to provide for public input and comment only at the conclusion of a meeting of the governing body makes it too difficult for the public to properly weigh in on decisions being made because they are forced to wait through the entire meeting to provide an opinion on any subject matter being addressed at the meeting,” said Canales. “HB 2840 seeks to give the public increased access to the decision-making process by providing for public comment before or during the consideration of each item on the meeting agenda.”
Throughout his public career, Canales – who also serves as Chair, House Committee on Transportation – has made protecting and promoting government transparency a hallmark of his legislative agenda, so much so that on Thursday, September 20, 2018, Canales was named a Transparency Champion by the Texas Press Association for his record of supporting the Texas Open Meetings Act and the Texas Public Information Act.
HB 2840 “would require most 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,” said Canales.
Canales’ HB 2840 adds several important protections for citizens who wish to speak to their elected and appointed leaders during public sessions, including stating that “a governmental body could not prohibit public criticism of that body unless that criticism was otherwise prohibited by law.”
In addition, citizens would be allowed to provide comments on each item on the agenda during the public comment portion of the open meeting, not just during items for which public hearings already required by state and federal laws, such as determining annual operating budgets, setting tax rates, use of federal block grants, and zoning and rezoning, which determine what activities and construction the place in different parts of cities.
HB 2840 also protects people attending those governmental meetings in other ways, by authorizing governing bodies to use “reasonable rules” to prohibit demonstrations that can intimidate the public, and by allow those public entities to establish conditions that do not restrict free speech, but that result in the gatherings proceeding smoothly, such as setting time limits during public comment periods, or granting a few individuals to speak on behalf of a large group.
The House District 40 state representative said the legislation was in response to growing concerns by individuals and groups, such as O.W.L.S., an advocacy group based in Hidalgo County, of the reported practices by certain political subdivisions in deep South Texas allegedly designed to discourage citizen participation during public meetings.
“In most cases, my experience has been that the local governing boards in the Valley – such as city commissions, school boards, county commissioners courts, and community colleges – allow people to voice their concerns at the beginning of their open meetings,” Canales said. “Unfortunately, some elected officials in the Valley and elsewhere in Texas believe it is okay to delay the public comment part of their meetings u the end of their public meeting, which is usually late in the evening.
“That is not the intent or the spirit of the Texas Open Meetings Act, and that’s why this legislation was approved by the Texas Legislature,” he emphasized.
Canales’ measure was carried in the Senate by Sen. Bryan Hughes, R-Tyler, who served as sponsor.
The sponsor is a member of the opposite chamber of the one in which the bill was filed.
The legislation had strong backing from the Valley’s state legislative delegation, which supported its passage, and which featured Sen. Juan “Chuy” Hinojosa, D-McAllen, was a cosponsor of HB 2840.
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
Rep. R.D. “Bobby” Guerra, D-McAllen, Rep. Ryan Guillen, D-Rio Grande City, and Rep. Richard Raymond, D-Laredo, served as joint authors of HB 2840.
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.
According to the bill analyses of the Canales’ legislation, which were produced by the House Research Organization, which is the nonpartisan research arm of the Texas House of Representatives:
HB 2840 seeks to give the public increased access to the decision-making process by providing for public comment before or during the consideration of each item on the meeting agenda.
The bill would apply to:
• A county commissioners court;
• A municipal governing body;
• A deliberative body with 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 a 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.
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.
The proposed new law – which would take effect on September 1, 2019 if the governor does not veto (kill) the measure – would see the following changes in specific portions of the current state law:
SECTION 1. Amends Subchapter A, Chapter 551, Government Code, by adding Section 551.007, as follows:
Sec. 551.007. PUBLIC TESTIMONY. (a) Provides that this section applies only to a governmental body described by Sections 551.001(3)(B)-(L) (relating to certain entities included in the definition of “governmental body”).
(b) Requires a governmental body to allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item.
(c) Provides that a governmental body to adopt reasonable rules regarding the public’s right to address the body under this section, including rules that limit the total amount of time that a member of the public may address the body on a given item.
(d) Provides that this subsection applies only if a governmental body does not use simultaneous translation equipment in a manner that allows the body to hear the translated public testimony simultaneously. Provides that a rule adopted under Subsection (c) that limits the amount of time that a member of the public may address the governmental body is required to provide that a member of the public who addresses the body through a translator is required to be given at least twice the amount of time as a member of the public who does not require the assistance of a translator in order to ensure that non-English speakers receive the same opportunity to address the body.
(e) Prohibits a governmental body from prohibiting public criticism of the governmental body, including criticism of any act, omission, policy, procedure, program, or service. Provides that this subsection does not apply to public criticism that is otherwise prohibited by law.
According to the Freedom of Information Foundation of Texas:
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 an 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 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 the videoconferencing just as they would at a traditional public meeting.
Texas Public Information Act</b
The Texas Public Information Act was originally known as the Texas Open Records Act, approved by the Legislature in 1973 in a reform atmosphere following the Sharpstown stock fraud scandal involving state officials. Spelled out in Chapter 552 of the Texas Government Code, the act states that “government is the servant and not the master of the people.”
“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,” the law states.
Some key provisions of the Texas Public Information Act are as follow:
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 our website. 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 Freedom of Information Foundation of Texas is a non-profit 301(c)(3) organization devoted to promoting open government and protection of the First Amendment rights of free speech and free press.
The organization educates citizens and public officials about open government laws and public access.
Attorneys who volunteer with FOIFT submit legal briefs in some cases of wide public interest.
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Rep. Terry Canales, D-Edinburg, 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 which affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com)
