Can You Hear Me Now? How to Define a Public Hearing in Texas
In the United States, where the government derives its power from the consent of the governed, the opportunity for public input is cherished and revered not only on election day but also throughout the legislative process. In Texas, for example, the Legislature has recently enacted a statute requiring governmental bodies — other than those of the state, oddly — to allow members of the public to address the governmental body regarding an item on an agenda for an open meeting.
In addition to this requirement, many specific legislative acts require a public hearing before they can be enacted. In fact, the phrase “public hearing” is used at least once in over 400 chapters of the various Texas codes, and usually multiple times in each chapter. However, despite how often public hearings are mentioned in these codes, there is no concise definition of what a public hearing actually is.
Some statutes prescribe specific requirements for giving notice of a public hearing, but do not prescribe any specific requirements for the hearing itself. Occasionally, however, a statute will provide minimum criteria for a public hearing. For example, one statute specifically requires a public hearing “at which an opportunity to be heard must be afforded to any person having an interest in the subject matter of the hearing.” One might presume that such requirement is applicable to all public hearings, but an argument can be made to the contrary.
Specifically, there are certain rules or “canons” of statutory construction which, when applied to various statutes requiring public hearings, indicate that not all public hearings must be held consistently. Some such canons of construction include (1) that the legislature does not do a useless thing, (2) that each word used is intended to have meaning and be given effect, and (3) any word not used is omitted purposefully. Under these canons of construction, comparing one statute that requires a “full and complete public hearing” with another that merely requires a “public hearing” with no such qualification requires us to recognize that “full and complete” has been purposefully omitted from the latter. Alternatively, if “full and complete” were implicitly included in every mention of a “public hearing,” then specifying in any one statute that a “full and complete public hearing” must be held would offend both the canon that each word be given effect and the canon that the legislature does not due a useless thing because the phrase “full and complete” would be superfluous.
Therefore, in the absence of specific criteria for a public hearing, it may be permissible for a governmental body to set limits and rules for the hearing. Perhaps a limit on the total number of speakers, a limit on the time afforded to each speaker, or a limit on the total duration of the hearing could be imposed. Lack of specific criteria may also permit a hearing to be reopened once closed, to be suspended and continued at a later time, or to be held jointly with another public hearing.
Generally speaking, most governmental bodies value any input from the public and therefore would not likely curtail anyone’s opportunity to provide it. However, one could imagine scenarios of a filibuster from a small group of aggravated individuals or the devolution of a public hearing into speakers attacking the character or motivation of other speakers; and therefore, ironically, it may be in the best interest of the general public to impose certain limits on a given public hearing. At the very least, and employing another canon of construction that words be given their ordinary meaning, all that is required for a public hearing is that it is a hearing that is public.
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