Is That Lunch Meeting Legal?

Is that lunch meeting legal? Is that text message toeing the line? Will that email land you in hot water? The Texas Attorney General has determined that a “walking quorum” occurs when members of a governmental body gather in number that do not physically constitute a quorum at any one time but who, through successive gatherings, discuss a public matter with a quorum of that body without notice to the public.

So, if you serve as a member of a governmental body and privately meet or communicate one-on-one with another member of a governmental body, absent a quorum, to discuss public business and then share that discussion with other members of the same governmental body, you may have participated in a “walking quorum.”

The Texas Open Meetings Act requires that “every regular, special, or called meeting or a governmental body . . . be open to the public,” with the Texas Attorney General defining 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  “walking quorum,” violates the Texas Open Meetings Act when a quorum (or more) of a governmental body attempts to avoid the Texas Open Meetings Act by deliberately meeting in numbers, physically less than a quorum, in closed sessions to discuss public business and, then, ratifying its actions in a physical gathering of the quorum in a later public meeting. While serving at Attorney General of the State of Texas, Governor Greg Abbot ruled that, oftentimes, “walking quorums” happen through telephone calls, text messages, and email correspondences.

In 2019, the Texas Court of Criminal Appeals, in its decision State v. Doyal, struck down the Texas Open Meetings Act restricting “walking quorums” as unconstitutionally vague, but the Texas Legislature clarified the provision with its passage of Senate Bill 1640. As amended, the Texas Open Meetings Act provides that an offense occurs if a member of a governmental entity:

1. knowingly engages in at least one communication among a series of communications that each occur outside of an open meeting concerning any public business of the governmental body where individual communications are among fewer than a quorum of members; and
2. the member knew at the time the member engaged in the series of communications that the series:
   • involved or would involve a quorum and,
   • would constitute a deliberation in violation of this chapter if the series of communications had occurred in a single instance among every member involved in the series.

Any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Texas Open Meetings Act by members of a governmental body. And, an offense found to be a prohibited series of communications – or a “walking quorum” – is a misdemeanor punishable by (1) a fine of not less than $100 or more than $500, (2) confinement in the county jail for not less than one month or more than six months, or (3) both fine and confinement.

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.