news report

Texas Appeals Court Guts Part of Open-Meetings Law

Published in Courthouse News Service on Feb. 27, 2019.

In a 7–2 decision Wednesday, a Texas appeals court struck down a provision of the state’s open-meetings law that made it a crime for officials to hold meetings without quorum to conduct secret deliberations outside the public eye, calling that part of the statute unconstitutionally vague.

The Texas Open Meetings Act requires meetings of government bodies to be open to the public if a quorum is present — that is, if enough members are in attendance for the group to vote or take other formal action.

In the case before the Texas Court of Criminal Appeals, the state prosecuted former Montgomery County Judge Craig Doyal for convening a closed meeting of some of the county’s commissioners to discuss a road bond package. County judges in Texas are not judicial officers — they are the county’s executive officers, and preside over county commission meetings.

The section of the law that was struck down Wednesday made it illegal for members of a government body to “knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

“More clarity is required of a criminal law when that law implicates First Amendment freedoms,” Presiding Judge Sharon Keller wrote for the court’s majority.

She later added, “The statute before us is hopelessly indeterminate by being too abstract. … The statute has little in the way of limiting language and notably lacks language to clarify its scope.”

Attorney Rusty Hardin, who represented Doyal in the case, said it is “a great day for public officials in Texas.”

“You couldn’t figure out what conduct was criminal and what conduct was innocent” under the law, Hardin said in a phone interview. “The way this thing reads, it just captures as much innocent conduct as it would criminal, and so on its face there’s no way the public official can figure out what he can and can’t do.”

Hardin said the law created a chilling effect among elected officials.

“If one commissioner, for instance, wanted to go down the hall and say, ‘Hey Bill, do you think we want this particular issue on the agenda, for people to discuss? What’s your view?’ — they were all afraid to do even that for fear that somebody would say they were violating the Open Meetings Act,” Hardin said. “So the particular portion of the act that was struck down had an incredibly restrictive impact.”

Of the two dissenting judges, only Judge Kevin Yeary filed a separate opinion.

“Yet another perfectly good statute falls today,” Yeary began his dissent. “The court’s decision to strike the law relies on opinions from the United States Supreme Court that are, in the first place, less than a model of clarity, and that, in any event, are not at all like the case before us. It is also a product of the court’s failure to perceive the rather plain import of the Legislature’s choice of words.”

Though Judge Keller subjected the statutory provision at issue to greater scrutiny because it imposes criminal sanctions for government officials who “knowingly conspire” to “circumvent” the law by holding meetings at less than quorum — the two terms in the law the majority found unconstitutionally vague — Yeary argued that the punishment was reasonable.

“To provide a true disincentive, the stigma of a criminal penalty is necessary,” Yeary wrote. “Besides, the fact that a violation is only a misdemeanor shows that even the criminal penalty has been narrowly tailored. Misdemeanors are the least restrictive criminal stigma available and adequate to do the job.”

Yeary also warned that striking down this section of the law could permit “walking quorums,” a tactic by which members of a governing body cycle in and out of a meeting such that a majority of the group attends the meeting, but not all at the same time. This means there is never a quorum and therefore at no time is the group required to allow the public’s attendance.

“That is an insane concern,” Hardin said in the interview. “Nowhere in the country is a walking quorum considered criminal. This would be the only statute that would say that’s criminal. The walking quorum is a recent invention that has made its way into some civil cases that would carry a civil penalty if somebody could prove it. It’s never been in a criminal statute, and it shouldn’t be in a criminal statute, because what the hell is a walking quorum?”

Hardin also agreed with a concurring opinion written by Judge Michelle Slaughter, who found the law was not unconstitutionally vague but did violate the First Amendment.

“How in the world can public officials have communications if what they say, or what somebody said to them while they’re listening, is potentially criminal?” Hardin asked. “They’re afraid to express themselves, for fear they’re going to be criminally prosecuted. I can’t think of anything more basic a violation of the First Amendment than that.”

Joe Larsen, who helped represent the state at trial, says this view misconstrues the provision.

“[Officials] have to knowingly conspire to circumvent the Open Meetings Act” to be held criminally liable, Larsen said in a phone interview.

He later added, “What we’re actually addressing here is the governmental body acting through a quorum, by the artifice of deliberately keeping their members in any one space below a quorum.”

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, expressed disappointment in the court’s ruling.

“Some people will use it as a chance to try to get around the spirit of the law,” Shannon said in a statement. “But the vast majority of people want to follow the law and want the public to understand government and participate in government. The vast majority of public officials know they can’t go around in secret and deliberate.”

Larsen said he will request a rehearing and is hopeful that his team can “peel off” some of the judges from the majority view.

“This is a big deal. This case has nationwide impact,” Larsen said. “Every single state has open-meetings laws, and a lot of them are written quite like this one. I can see a government official in New York or Florida or wherever, saying ‘Look at what they decided in Texas. This is very persuasive, this is what should be decided here.’”

The Texas Open Meetings Act contains other criminal provisions: it is a misdemeanor to call for, organize or participate in a regular meeting that is improperly closed to the public, for example, and it is also a misdemeanor to knowingly disclose a meeting’s agenda or recording if that information was lawfully closed to the public.