Despite AG Paxton’s admonishments about First Amendment rights, Texas House moves to limit citizen information about 87th Legislature in two key votes

State Representative Tony Tinderholt, Republican of Arlington (second from right), fought for open government on Thursday, January 14, 2021, in the Texas House of Representatives. His procedural amendments failed on record votes where moderate Republicans joined with Democrats to keep House proceedings difficult for the public to view.

The Golden Hammer Staff Reports

Austin, January 15 – Despite the efforts of conservative Republican State Representatives and Texas Attorney General Ken Paxton, a coalition of liberal Republicans and Democrats defeated a number of procedural votes to make Texas House of Representatives proceedings more open to the public, despite the Chinese Coronavirus, during the 87th Legislative Session. All of the procedural amendments failed.

The most prominent of those votes was an amendment, which Arlington Republican Representative Tony Tinderholt proposed to require that all legislative committee proceedings remain open to public view and videotaping. The amendment was very relevant after highly-regarded conservative political activist Amy Hedtke of Waxahachie suffered arrest and criminal trespass charges merely for recording a committee proceeding during the 86th Legislative Session.

Tinderholt’s amendment died on a 33 to 109 record vote with prominent conservatives Briscoe Cain, Steve Toth, Mayes Middleton, and Matt Shaheen among those supporting the move to make the Legislative Session more open. A group of moderate Republicans joined with House Democrats to defeat all of the proposals to make House proceedings more open and accessible to the public, despite precautions taken related to the Chinese Coronavirus panic.

On Tuesday, January 12, Texas Attorney General Ken Paxton responded to an official inquiry by Representative Cain, Republican of Deer Park, and held that all sessions of the Texas House must be open, other than under very narrow circumstances. Despite Paxton’s Opinion KP-0347, the Texas House adopted Rules to close many aspects of the legislative proceedings.

Paxton noted in his Opinion, “Article III, section 16 of the Texas Constitution requires that sessions of each House be open, except when the Senate is in executive session. Thus, when the Legislature meets for session in the Capitol, it must be open and accessible to the public.”

Paxton further opined, “The First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances. However, to the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place, and manner of access.”

Some legislators had wanted to move all proceedings to a virtual online format for fear of the virus. Paxton, however, responded, “Article III, section 10 [of the  establishes a quorum of two-thirds of each House to do business, and it ties quorum to ‘attendance.’ A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum.”

Paxton concluded his opinion that, while each House of the Texas Legislature may determine the rules for its own proceedings, those Rules must conform to the requirements of the Texas and United States Constitutions. “The rules set by the House and Senate have historically conformed to constitutional restraints requiring voting and debate to occur in person,” Paxton wrote.

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