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When Texting Crosses the Line

Two Carroll ISD board members charged with violating the Texas Open Meetings Act were indicted by a Tarrant County grand jury for allegedly communicating outside of an authorized meeting. Carroll ISD Board President Michelle Moore and Vice President Todd Carlton face misdemeanor charges of conspiring to circumvent the Texas Open Meetings Act for secret deliberation.

The lawsuit, filed in late 2020, alleges that the text messages involved Carroll ISD’s Cultural Competence Action Plan – a result of video footage surfacing of Carroll ISD students shouting racial slurs and reports of students of color being insulted and treated poorly in the conservative, affluent, predominately white area – and constitute a “walking quorum.” The suit alleges that five out of the seven Carroll ISD board members discussed the Cultural Competence Action Plan through text messages.

A “walking quorum” violates the Texas Open Meetings Act when a quorum (or more) of members of the governing body of a governmental entity avoids the Texas Open Meetings Act by deliberately meeting – typically not physically together at one time – in closed sessions to discuss public business; then, that same group of members ratifies its actions in a physical gathering of the quorum in a later public meeting.

As discussed in a previous blog post, the Texas Attorney General defines a meeting as “when a quorum of a governmental body has a verbal exchange about public business or public policy within the jurisdiction of the governmental body.”

“A verbal exchange” includes text messages.

This could even include text messages on the personal cellphones of members of a governmental entity. These text messages would then fall within the scope of the Texas Public Information Act.

According to the Office of the Attorney General, information is characterized as public if the information is made in connection with a governmental body’s official business.

It does not rest on whether the governmental entity has physical possession of the information, (e.g., a letter), but simply whether the information was transmitted or received at all (e.g., a text). “Official business” constitutes “any matter over which a governmental body has any authority, administrative duties, or advisory duties. Gov’t Code § 552.003 (2-a).

A governmental entity owns all information necessarily connected with the transaction of that entity’s business, regardless of whether the information is created or received on a personal device or account of a member of that governmental entity. See Adkisson v. Paxton, 459 S.W.3d 761 (Tex. App.—Austin 2015, no pet.).

The Texas Public Information Act focuses on the nature of the communication, not the public or private ownership of the device or account on or in which a member of a governmental entity stores the communication.

As such, whether sending text messages, pigeon posts, or telegraphs, members of the governing body of a governmental entity should avoid making, transmitting, maintaining, or receiving information related to that governmental entity’s official business outside of an accurately noticed and properly held public meeting.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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