Featured, right: Rep. Eddie Lucio, III, D-Brownsville, Chair, House Committee on Insurance, was part of a united Rio Grande Valley state legislative delegation which coauthored, sponsored, and/or voted for Senate Bill 1640, which clears up confusion on requirements of the Texas Open Meetings Act in order to prevent members of a governmental body from meeting in a series of small, private gatherings to avoid a quorum. The measure, which became law on Monday, June 10, 2019, was co-authored by Sen. Juan “Chuy” Hinojosa, D-McAllen and Sen. Judith Zaffirini, D-Laredo/Starr County, and sponsored by Rep. Terry Canales, D-Edinburg, and Rep. R.D. “Bobby” Guerra, D-McAllen.
Photograph By PAUL CHOUY
Sens. Hinojosa/Zaffirini, Reps. Canales/Guerra take leadership roles on SB 1640, which benefits the Texas Open Meetings Act, reports Omar Ochoa
The Rio Grande Valley state legislative delegation coauthored, sponsored, and/or voted for legislation overwhelmingly approved by the Texas Legislature in May 2019 which clears up confusion on requirements of the Texas Open Meetings Act in order to prevent members of a governmental body from meeting in a series of small, private gatherings to avoid a quorum, reports Edinburg City Attorney Omar Ochoa.
Senate Bill 1640, authored by Sen. Kirk Watson, D-Austin, and which featured Sen. Juan “Chuy” Hinojosa, D-McAllen, and Sen. Judith Zaffirini, D-Laredo/Starr County, as coauthors, deals with action in early 2019 by the Texas Court of Criminal Appeals which found the “criminal conspiracy” provision of the Texas Open Meetings Act unconstitutional, according to the Texas Municipal League, in its Legislative Update, dated Friday, June 7, 2019.
An author is a 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 coauthor is a legislator authorized by the primary author of a bill or resolution to join in the authorship of the measure. Both the Senate and the House of Representatives allow an unlimited number of coauthors on a bill or resolution. A coauthor must be a member of the chamber in which the bill was filed.
Rep. Terry Canales, D-Edinburg, Chair, House Committee on Transportation, and Rep. R.D. “Bobby” Guerra, D-McAllen, were among the five sponsors of SB 1640.
A 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.
“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,” said Ochoa. “Neither of these major acts of government transparency is 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.”
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.
SB 1640 amends the Government Code to clarify, specify, and make more precise the conduct that constitutes a prohibited series of communications under the state open meetings law, conduct commonly referred to as a “walking quorum.”
A quorum is a term that defines the minimum number of people required for an assembly or organization to conduct business. It allows people to ensure that financial and legal decisions are always reviewed and voted on by a good percentage of the members. Although a quorum can be a majority, it is defined according to the needs of the organization and is often written in the organizational by-laws.
New law restores the “walking quorum” prohibition
The Senate Research Center, which is the nonpartisan research arm of the Texas Senate, in its bill analysis of SB 1640 provided the intent of the bill, as stated by Watson.
“On February 27, 2019, the Texas Court of Criminal Appeals (CCA) concluded that Government Code Section 551.143(a), commonly referred to as the ‘walking quorum’ prohibition in the Texas Open Meetings Act (TOMA), was unconstitutionally vague on its face. The court took particular issue with the phrase ‘conspires to circumvent this chapter,’ concluding that the current statute ‘requires a person to envision actions that are like a violation of TOMA without actually being a violation of TOMA and refrain from engaging in them,’” Watson explained when he filed SB 2016.
It is an offense to knowingly circumvent the Texas Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations. This provision penalizes participants in what is sometimes called a “walking quorum” where members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of the body with the objective of avoiding an open meeting. A governmental body may be subject to both civil and criminal liability for conducting business by a “walking quorum.”
“Despite the statute’s vagueness, its purpose is clear — to prohibit members of a governmental body from skirting TOMA’s requirement that deliberations occur in public by meeting in a series of small, private gatherings to avoid a quorum,” the Austin senator continued. “This kind of prohibition is essential to ensuring governmental bodies continue to conduct public business in the open.”
The Texas Open Meetings Act was adopted to help make governmental decision-making accessible to the public. It requires meetings of governmental bodies to be open to the public, except for expressly authorized closed sessions, and to be preceded by public notice of the time, place, and subject matter of the meeting. “The provisions of [the Act] are mandatory and are to be liberally construed in favor of open government.”
Also according to Watson, in further explaining the intent of his original legislation, the new state law:
• Addresses the constitutional issues identified by the Texas Court of Criminal Appeals by making the “walking quorum” prohibition much more specific, precise, and clear. This not only addresses the court’s concerns, but it will also help members of governmental bodies to better understand the limits of the law; and
• At the same time, SB 1640 restores the original intent and scope of the prohibition so that governmental bodies cannot avoid transparency by conducting a series of small, private conversations.
• When SB 1640 was deliberated by the House of Representatives on Friday, May 17, 2019 – and which would go on to pass later that day on a 145-1-1 vote – the House Research Organization provided the following background for review by lawmakers and the public:
• Government Code ch. 551, the Texas Open Meetings Act, generally requires meetings of governmental bodies to be open to the public. Closed meetings are allowed under certain circumstances. The act also requires governmental bodies to give written notices of upcoming meetings and to keep minutes or make a recording of each open meeting.
• A “meeting” means a deliberation between a quorum of the body, or between a quorum and another person, during which public business is discussed or considered or formal action is taken.
• A “deliberation” means a verbal exchange during a meeting between a quorum of the body, or between a quorum and another person, concerning an issue within the body’s jurisdiction or any public business.
• Under sec. 551.143, a member or group of members of a governmental body commits an offense if the member or group knowingly conspire to circumvent the Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations. An offense is a misdemeanor punishable by jail for at least one month but not more than six months and/or a fine of at least $100 but not more than $500.
• SB 1640 would revise the conduct constituting an offense under Government Code sec. 551.143.
• Under the bill, a member of a governmental body would commit an offense if the member knowingly engaged in at least one communication among a series of communications that each occurred outside of a meeting authorized by the Open Meetings Act and that concerned an issue within the jurisdiction of the governmental body in which the members engaging in the individual communications constituted fewer than a quorum.
• At the time the member engaged in the communication, the member also would have to have known that the series of communications involved or would involve a quorum and would constitute a deliberation once a quorum engaged in the series of communications.
• The bill would revise the definition of “deliberation” to mean a verbal or written exchange between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body.
• The bill would take immediate effect if finally passed by a two-thirds record vote of the membership of each house. Otherwise, it would take effect September 1, 2019, and would apply only to an offense committed on or after the bill’s effective date.
• SB 1640 would restore the “walking quorum” prohibition to the Texas Open Meetings Act by addressing constitutional issues found by the Texas Court of Criminal Appeals. In February 2019, the court concluded in State v. Doyal that Government Code sec. 551.143, commonly referred to as the “walking quorum” prohibition, was unconstitutionally vague on its face.
• The court took issue with “knowingly conspires to circumvent this chapter,” concluding that current statute requires a person to envision actions that are like a violation of the act without actually being a violation and refrain from engaging in them. That issue, along with the absence of a clear definition of the concept of a walking quorum, reinforced the court’s conclusion that the current language is broad and lacks any reasonable degree of clarity on what it covers.
• Restoring this prohibition is essential to ensure that the public’s business is conducted in the open. The original intent of the prohibition was to prevent members of a governmental body from skirting requirements of the Texas Open Meetings Act by meeting in a series of small, private gatherings to avoid a quorum. Without a walking quorum prohibition, there is nothing to stop governmental bodies from meeting in smaller groups to obscure government business from the public, thereby avoiding the spirit and intent of the act.
• The bill would address the court’s concerns by making the conduct that constituted an offense more specific, precise, and clear. It also would help governmental bodies better understand the limits of the law, ensuring transparency and accountability to the public they serve. Officials would have to knowingly engage in a series of exchanges outside of a public meeting that involved or would eventually involve a quorum. The bill would specify that the prohibition would apply only to issues within a governmental body’s jurisdiction and that deliberations could take place in verbal or written exchanges.
• The House sponsor intends to offer a floor amendment that would specify that an offense occurred if the members engaging in the series of communications constituted a quorum.
The Senate approved SB 1640 on a 31-0 vote on Thursday, May 23, 2019.
FREEDOM OF INFORMATION FOUNDATION OF TEXAS
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, 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 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 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.
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.
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).