Featured, from left: Sen. Juan “Chuy” Hinojosa, D-McAllen, Vice Chair, Senate Committee on Finance; Chief Justice Dori Contreras, 13th Court of Appeals, Edinburg/Corpus Christi; and Rep. Terry Canales, D-Edinburg, Chair, House Committee on Transportation. This image was taken on Thursday, August 16, 2018, at the Cimarron Country Club in Mission during the annual Legislative Luncheon Report Card organized by the Rio Grande Valley Hispanic Chamber of Commerce.
Photograph By ISMAEL GARCÍA
Sen. Hinojosa, Rep. Canales played key roles in new Texas law that increases the public’s right to know how taxes are spent, reports Omar Ochoa
Two Valley state lawmakers played important roles in the passage of Senate Bill 943, which is designed to protect taxpayer dollars from waste, fraud and abuse, and help restore transparency to government, according to Edinburg City Attorney Omar Ochoa.
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.
SB 943 restores public access to state and local contracting information in the wake of two Texas Supreme Court rulings that allowed private entities to more easily conceal their dealings with government, according to the bill analysis by the House Research Organization, with is the nonpartisan research arm of the Texas House of Representatives.
In doing so, SB 943, which goes into effect on January 1, 2020, will close significant loopholes in the Texas Public Information Act, according the Sen. Kirk Watson, D-Austin, the author of the measure, and Rep. Giovanni Capriglione, R-Southlake.
Gov. Greg Abbott signed the legislation into law in June 2019.
Hinojosa was a coauthor of SB 943, while Canales was a joint sponsor 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 Senate allows multiple primary authors for each bill or resolution. The sponsor is 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.
“The Valley’s legislative delegation, with Sen. Hinojosa and Rep. Canales serving in leadership roles on this measure, strongly supported and voted for Senate Bill 943,” said Ochoa. “Here at home, Edinburg’s city leadership long has demonstrated its support for transparency in government at the local level, such as through the posting on our website of the entire city council agenda packets, through broadcasting live and maintaining on our city website the full meetings of the city council and Edinburg Economic Development Corporation Board of Directors full meetings. Neither of these major acts of government transparency are required by state law, but the mayor and city council members fully support informing our citizens of the actions of their local government at all times.”
Watson and Capriglione, in a joint announcement they issued in mid-May 2019, when the Texas House of Representatives gave final approval on SB 943, further explained the importance of the bipartisan legislation that closed significant loopholes in the Texas Public Information Act.
Senate Bill 943 restores public access to state and local contracting information in the wake of two Texas Supreme Court rulings that allowed private entities to more easily conceal their dealings with government, both lawmakers contended following the Friday, May 17, 2019 unanimous approval of SB 943 by the Texas House of Representatives.
“Today’s (May 17, 2019) passage of SB 943 is a strong statement for transparency in government contracting. I am proud to have worked on this legislation over the last two and a half years to bring back the fundamental importance of knowing how our tax dollars are being spent,” said Capriglione, who carried the legislation with Watson.
“The Legislature is finally in a position to restore the public’s right to know,” Watson said. “I’m proud the Texas Legislature has stood strong for government transparency, and I’m grateful to Representative Capriglione and the dozens of stakeholders who worked with us to develop these agreed-to bills.”
Watson and Capriglione set out during the 140-day regular session of the Texas Legislature, which began in early January 2019, to address businesses’ legitimate concern about protecting proprietary information while ensuring the public can obtain key information about the deals made in the public’s name.
SB 943 achieved this balance by:
• Restoring the competition or bidding exception to its longstanding interpretation so that only governmental bodies may raise it. If Texans are to hold their public officials accountable, access to public information is essential;
• Creating a new exception for contractors’ proprietary information that’s shared with a governmental body through the bid and solicitation process;
• Updating the trade secrets exception to include the definition of “trade secret” in the Texas Civil Practice & Remedies Code;
• Ensuring that contractors cannot raise the propriety information or trade secrets exception to block the public’s access to key contract terms and information indicating whether or not a contractor performed its duties under the contract;
• Adding private prisons, private civil commitment facilities, and Alamo managers to the list of “governmental bodies” in the Public Information Act;
• Providing a safe harbor that excludes economic development entities that maintain independence from the governmental bodies with which they do business from the definition of “governmental body” in the Public Information Act; and
• Requiring other contractors to maintain information about their government contracts and share it with the governmental body if the governmental body needs it to respond to a Public Information Act request it receives.
The House Research Organization also provided the following additional insights into the issues that revolved around this legislation:
Recent Texas Supreme Court decisions have given contractors significant leeway to claim that information related to their government contracts should be kept secret, essentially overruling decades of attorney general interpretations promoting transparency. In some cases, even the contracts themselves and the amount of taxpayer money at issue were held to be exempt from public disclosure.
As a result, the public’s ability to keep informed about government spending and contracting had been greatly reduced.
SB 943 returns certain exceptions under the Public Information Act back to their longstanding interpretation while providing a new exception to disclosure for truly proprietary information.
The new state law shall improve accountability by requiring certain contractors to maintain information associated with their government contracts and to provide that information in response to public information requests. Maintaining these records simply would be part of the cost of doing business with state or local governments.
The legislation was crafted in consultation with the Texas Sunshine Coalition, which was formed during the last interim to advocate for greater government transparency. The coalition includes the Texas Public Policy Foundation, ACLU Texas, the League of Women Voters of Texas and several other organizations.
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 speakers 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, the following 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
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.
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.
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.
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.
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.
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:
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.
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, 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.
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.
Kate Alexander and Katy Aldredge contributed to this article. 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).