Texas Attorney General Paxton seeks to shore up Open Meetings Act in face of Riley-Doyal anti-openness in government attack on statute

Left to right: Texas Attorney General Ken Paxton and State Senator Brandon Creighton.

Austin, May 30 – Despite the efforts of Precinct 2 Montgomery County Commissioner Charlie Riley and disgraced former County Judge Craig Doyal to destroy the “open government” public policy in Texas, Texas Attorney General Ken Paxton has consistently continued to fight “to safeguard the public’s interest in knowing the workings of its governmental bodies.” In an official Attorney General Opinion, Number KP-0254, which Paxton issued on Friday, May 24, 2019, Paxton held that, despite the efforts of Riley and Doyal to change the law otherwise:

“If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act, through multiple communications each involving fewer than a quorum, the governmental body violates the Act.”

In response to an inquiry from Mike Morath, Commissioner of the Texas Education Agency, Paxton noted that the Texas Open Meetings Act (“TOMA”) authorizes any interested person in bringing an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of TOMA by members of a governmental body. Specifically, Paxton added, that if “members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action” which both TOMA and also Section 39.057(d) of the Texas Education Code authorize.

Two weeks ago, this newspaper notified Conroe Independent School District’s General Counsel Carrie Galatas that the method of notice for executive sessions of the Conroe ISD Board of Trustees failed to comply with the notice requirements of TOMA as the Texas Supreme Court explained in a decision in Cox Enterprises, Inc., versus Board of Trustees of Austin Independent School District, a 1986 case, which this newspaper brought to the attention of the General Counsel and which Attorney General Paxton mentioned in his formal opinion last week. In response to the notice from this newspaper, it does appear that Conroe ISD has corrected the problem in their method of providing notice. The General Counsel of the San Jacinto River Authority has indicated that state agency will also change its method of providing notice for executive sessions also in response to a similar notice from this newspaper.

Paxton noted in his opinion that the Texas Court of Criminal Appeals decision in the Doyal and Riley criminal cases only concerned one poorly-drafted criminal provision in TOMA. Paxton noted in a footnote, however, that “Senate Bill 1640, currently pending before the Texas Legislature, would amend…[TOMA] in response to the constitutional infirmities raised by the Court of Criminal Appeals” in the Riley-Doyal criminal matters. Senate Bill 1640 did, in fact, receive approval from both the Texas House and Texas Senate and has gone to Governor Greg Abbott for signature and enactment into law.

Paxton’s legal opinion is very important, because, he noted, despite the temporary setback for TOMA in the Riley and Doyal criminal cases, interested persons could still enforce TOMA’s provisions by bringing civil actions against scofflaw governmental entities and elected servants.

When Governor Abbott signs Senate Bill 1640 into law, TOMA will enjoy full restoration, despite the efforts of Riley and Doyal to destroy the purpose of TOMA, which Paxton explained is “to encourage good government by ending, to the extent possible, closed-door sessions in which deals are cut without public scrutiny.”

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