County Judge Doyal seeks to exclude public from statutory “public hearing” on budget in violation of Texas Local Government Code Section 111.038, failed to post proper notice for budget “public hearing”

Montgomery County Judge Craig Doyal’s posting for the July 25, 2017, budget session is a total mess. It violates the Texas Local Government Code and would seem to set up the entire Commissioners Court to violate the Texas Open Meetings Act.

Conroe, July 24 – In an obvious effort to exclude public participation in the statutorily-required “public hearing” on the proposed Montgomery County Budget, County Judge Craig Doyal failed to post a proper notice for the budget meetings that will occur this week. Amazingly, nowhere on the proposed agenda is there any mention of a “public hearing,” as the Texas Local Government Code mandates nor is there any mention that the Commissioners Court will take action on the proposed budget as the Texas Local Government Code also mandates!

In other words, Doyal failed to post an agenda for Tuesday, July 25, 2017, that would permit the Commissioners Court to comply with the requirements of the Texas Local Government Code without violating the Texas Open Meetings Act!

Legal background

On July 14, 2017, County Auditor Phyllis Martin posted the proposed budget in accordance with Section 111.037 of the Texas Local Government Code.

Section 111.038 of the Texas Local Government Code provides:

“Sec. 111.038. PUBLIC HEARING ON PROPOSED BUDGET. (a) The commissioners court shall hold a public hearing on the proposed budget. Any person may attend and may participate in the hearing.

(b) The commissioners court shall hold the hearing on a day within 10 calendar days after the date the proposed budget is filed but before the last day of the first month of the fiscal year.

(c) The commissioners court shall publish notice that it will consider the proposed budget on the date of the budget hearing. The notice must be published once in a newspaper of general circulation in the county and must state the date, time, and location of the hearing.

(d) Notice under this section must include, in type of a size at least equal to the type used for other items in the notice, any statement required to be included in the proposed budget under Section 111.033(b).”

Subsection 111.038(b) requires that the Commissioners Court hold its public hearing on the proposed budget within 10 calendar days of July 14. It’s 11, but who’s counting…

Problems with the Notice

There are two major problems with the notice for the July 25 budget meeting.

First, it’s required to be a “public hearing” on the proposed budget where “Any person may attend and may participate in the hearing.” Tex. Local Gov’t Code Section 111.038(a). Doyal, however, did not post the meeting that way. Instead, he only posted a budget “workshop” without any mention of a public hearing.

Second, Sec. 111.039 of the Local Government Code mandates that:

ADOPTION OF BUDGET. (a) At the conclusion of the public hearing, the commissioners court shall take action on the proposed budget. A vote to adopt the budget must be a record vote.”

The second problem, however, is that there is no agenda item in the notice for the Commissioners Court to take action on the proposed budget. There’s an agenda item to discuss rollback tax rates and effective tax rates. There’s an agenda item to discuss tax rates to fund the budget, even though that would seem premature since they have to vote on the proposed budget first (as has always been done in the past for at least the last 25 years!). There’s an agenda item to vote on a proposed tax rate. There is not any agenda item for the proposed budget itself.

Therefore, Doyal has put the Commissioners Court in a terrible situation. Either they must violate Section 111.039 of the Texas Local Government Code by failing to “take action on the proposed budget” at the end of the hearing or they will violate the Texas Open Meetings Act by taking action on an item that is not noticed on the agenda! (Of course, it’s Montgomery County, where Texas law doesn’t seem to apply.)

Is there a solution? Yes. Doyal needs to post a new agenda for a public hearing on the budget to occur on Thursday or Friday (July 27 or 28). The new agenda should include “consider and take action on the proposed budget for Fiscal Year 2018.” As a precaution, County Auditor Martin may want to re-file her proposed budget on Monday as well to ensure complete statutory compliance.

 

Problems last year

During the hearings the week of July 25, 2016, for the Fiscal Year 2017,= County Budget, the Commissioners Court prohibited citizens from participating in the hearing. During a break on July 27, 2016, County Judge Pro Tempore Mike Meador expressed his view that permitting citizens to participate in the statutorily mandated public hearing on the proposed budget would “set a bad precedent” and disallowed any citizen participation in the hearing. It was a clear violation of Texas law.

At least two citizens had sought to participate in the public hearing but Meador disallowed citizen participation in the public hearing in direct violation of Section 111.039(a). The Commissioners Court then proceeded to adopt the proposed budget for Fiscal Year 2017 without ever having conducted a public hearing beforehand.

 

 

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