Austin, April 3 – State Representative Steve Toth presented House Bill 2965, a bill to amend Section 143 of the Texas Open Meetings Act to the Texas House of Representatives Committee on State Affairs on Monday, April, 2019. The purpose of Toth’s bill, as he explained was to meet the objections of the Texas Court of Criminal Appeals when, on February 3, the highest criminal court in Texas ruled Section 143 was unconstitutionally vague as written.
The Texas Open Meetings Act (“TOMA”) generally prohibits members of a governmental body from meeting in a quorum unless the meeting is public after notice to the citizens. Section 143 is a vital portion of TOMA, because it prohibits members of a governmental body from meeting in numbers less than a quorum for the purpose of circumventing the quorum requirement but for the purpose of gathering a majority of support for issues, also known as a “walking quorum.”
The Court of Criminal Appeals ruled Section 143 was vague at the urging of former Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport, who have advocated government secrecy. In all fairness, there were considerable drafting problems with Section 143.
Toth explained, “I met with some of the stakeholders including people in Governor Abbott’s office to make sure that the ‘walking quorum’ provision in the statute is really clear.” Toth mentioned that current law may have First Amendment problems, so the prohibition should focus on behavior and actions rather than on language. “It’s a critical weakness in our transparency laws here in Texas. This bill focuses more on behavior and actions and less on speech,” Toth told the Committee.
El Campo City Councilman Chris Barbee, Montgomery County District Attorney Brett Ligon, Montgomery County Attorney B.D. Griffin, and Leesa Hyder, a local legal expert, testified in favor of Toth’s legislation.
Barbee, a former President of the Texas Press Association and City Councilman, spoke in favor of Toth’s bill. He said, “I’m a victim of a violation of this Open Meetings law.” Barbee lost appointment as Mayor of El Campo, as a result of what he contended was a walking quorum outside of the noticed meeting of the City Council.
Ligon said “the Texas Open Meetings Act only applies when you meet in a quorum.” Ligon explained “you’re dealing with definitional problems and free speech problems when you’re dealing with a ‘walking quorum’.” Ligon said we “can’t have backroom dealings.”
Ligon said, “I believe Montgomery County would be in favor of this bill.” He explained the facts in the criminal case against Doyal, Riley, and Davenport.
The Committee members clearly struggled with the language, as one committee member said, “The devil is in the language.”
B.D. Griffin, the Montgomery County Attorney, spoke in support of HB 2965. Griffin argued that the purpose of TOMA is to “safeguard the public’s interest in knowing the workings of governmental bodies.” Griffin said the legislation needs to define the “walking quorum concept.” He also said some of the terms were too broad in Section 143 in the manner the Legislature had previously drafted it.
Griffin said that the vagueness of the statute made it very difficult to advise governmental officials with respect to what they could or could not do.
Hyder said HB 2965 cleans up the language and removes the definitional problems in Section 143. Hyder said, “HB 2965 is content neutral” and does not prohibit any specific free speech but merely provides a time, place, and manner restriction.
Toth concluded in quoting the Court of Criminal Appeals and said the statute “‘must focus on conduct, behavior, and actions, not the content of the speech.’ That’s what this bill does.”
Hyder provided her full statement to the Committee to this newspaper. Therefore, it follows:
“Chairman Phelan and Committee Members,
“My name is Leesa Hyder. I am a resident of Montgomery County…here to speak in favor of HB 2965, Representative Toth’s bill to revive the Texas Open Meetings Act after the Texas Court of Criminal Appeals declared a key provision in the statute unconstitutional last month in Doyal versus the State of Texas.
“For three reasons, the Committee should support HB 2965 and the substitute for that bill currently under review before the Legislative Budget Board.
“#1, the purpose of TOMA is to cause government to do business in the open for the public to watch and listen.
“The elimination of Government Code Section 551.143 is the exception which subsumes the entire purpose of the statute. While TOMA requires public deliberation for quorums, if secret meetings can decide matters in walking quorums, then quorums are meaningless.
“#2, Section 551.143, as important as it is, has contained terms whose definitions contradicted the very meaning of the law’s intent.
“Section 551.143 proscribes certain conduct where there are “meetings in numbers less than a quorum” but the very definition of the term “meeting” in Section 551.001(4) requires a quorum to constitute it as such.
“HB 2965 cleans up the language and removes every constitutional vagueness issue, which the Texas Court of Criminal Appeals addressed.
“#3, the bill and the substitute, are content neutral, because they focus on the prohibition of actionsrather than on the content of speech or the intent of the actors.
“The bill concerns time, place, and manner restrictions only relating to conduct and is content-neutral.
“InWard versus Rock Against Racism, Justice Anthony Kennedy wrote in the majority opinion:
“The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys…. The government’s purpose is the controlling consideration.
“HB 2965 has nothing to do with the message conveyed but promotes the robust public expression of ideas for all to hear.
“In addition to content neutrality, the bill meets the other three criteria for valid time, place, and manner restrictions: it’s narrowly tailored, serves a significant governmental interest of openness, and leaves open ample alternative channels for communication in robust open meetings with full unfettered discussion.
“Texas is known for the courage of its businesspeople. That’s how the Legislature should make sure that our government conducts business as well: out in the open.”