KBS Reference Desk: Open Meetings Act

Q:        I heard last week that the Court of Criminal Appeals found a provision of the Texas Open Meetings Act unconstitutional. Which part did they strike down and what does it mean?

A:        The Court found Section 551.143 of the Texas Open Meetings Act (TOMA) unconstitutional. This section made “walking quorums” or “daisy chains” a criminal offense.

The Texas Open Meetings Act was designed to make governmental decision-making transparent or open to the public. One provision of the TOMA, Section 551.143, criminalized actions of a member or group of members of a governmental body who “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

The case recently heard by the Court of Criminal Appeals involved the prosecution of a county judge for allegedly participating in a “walking quorum.” In his defense, the county judge argued that the statute was overbroad in violation of the First Amendment and was unconstitutionally vague. The Court of Criminal Appeals ultimately agreed.

In its ruling, the Court discussed multiple aspects of the statute, but ultimately relied on the fact that the TOMA provisions only apply when a governmental body meets as a “quorum.” They considered that the definitions of “deliberation” and “meeting” both require a quorum and reasoned that because an offense is committed under Section 551.143 when members meet in less than a quorum, the language of the statute presents an inherent conflict “designed to enlarge TOMA’s reach.”

As a result of the Court’s decision, it is highly probable that a legislative “fix” will be proposed this session. In the interim, compliance with the guidance of the Texas Governor, in a statement issued just one day following the ruling, is advisable: “All agencies and boards should continue to follow the spirit of the law . . . providing transparency in the work you perform for Texans.”