Secret Deliberations? Texas Open Meetings Act Deemed Too Vague to Enforce
Earlier this week, the Texas Court of Criminal Appeals dealt a major blow to the Texas Open Meetings Act (TOMA) by ruling a portion of the Act, which had been around for more than two decades, was unconstitutionally vague.
TOMA was essentially enacted to ensure public access to governmental meetings. A provision of TOMA makes it a crime if a member of a governmental body “knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” Tex. Gov’t Code §551.143(a).
Montgomery County Judge Craig Doyal was indicted under the Act for allegedly conducting “secret deliberations” without a quorum of the Commissioners Court present. Doyal filed to have the charges dismissed, claiming that the statute was unconstitutionally vague. The case eventually reached the highest criminal court in Texas, the Texas Court of Criminal Appeals. The Court of Criminal Appeals agreed with Doyal and found that the statute was, in fact, unconstitutionally vague.
The court reasoned that it does not focus on the elements of an offense under TOMA. Instead, it “imposes criminal punishment for doing something that conflicts with the purpose of TOMA. It 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.”
“To pass constitutional muster, a law that imposes criminal liability must be sufficiently clear:
- To give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and
- To establish determinate guidelines for law enforcement.
When the law implicates First Amendment freedoms, it must also be sufficiently definite to avoid chilling protected expression.“
In a 7-2 Decision, the Court found that §551.143 did not pass the constitutional test, holding that the statute “is hopelessly indeterminate by being too abstract.”
What impact will this have on Texas Officials? Government Officials and City Attorneys have grappled with the uncertainty of §551.143 for years. Prior to this decision, Government officials arguably could not communicate privately with individual members of the same governmental body about governmental business without fear of violating TOMA.
For example, in a 7-member City Council, a quorum would be 4 members. In an easily imagined scenario; Council member A calls Council member B to discuss an issue. Council member A emails Council member C about the same issue. The next day, Council member A runs into council member D at a coffee shop and they too discuss the same issue. Even though a quorum was never actually present at the same time, the Texas Attorney General had previously opined that these practices, commonly referred to as “walking quorums” or a “daisy chain” were likely a violation of TOMA. Things were further complicated by the use of email chains, social media posts, and text messages which could easily, or even accidentally, reach a quorum of members.
The statute required an element of “knowingly” conspiring to circumvent TOMA, but invariably, the safest course was to stay as far away from the appearance of impropriety as possible. This inevitably led to some governmental officials refraining from discussions on issues which would not actually be any violation of TOMA. There is, of course, a chance that the issue reaches the United States Supreme Court. Aside from that, it will be up to the Texas Legislature to decide whether to revive this provision through a more narrowly tailored statute. TOMA certainly serves a valuable purpose, but the legislature needs to provide clarity on what officials can and cannot legally do.
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