In a 7-2 ruling Wednesday, the Texas Court of Criminal Appeals erased a significant provision in the Texas Open Meetings Act. The provision, which made it a crime for public officials to deliberately avoid the public by secretly meeting or communicating to discuss voting or action on an upcoming issue, carried penalties including a $500 fine and up to six months in jail.
TOMA was adopted in 1967 to make government meetings more accessible to the public. Before Wednesday’s ruling, it was illegal for governing bodies to separate into smaller groups to discuss official matters privately while deliberately trying to avoid the regulations outlined in the law.
By breaking into small groups, officials could avoid quorum, which is when more than half of a governing body is present at a public meeting and is required for discussion and action to be taken on an issue. By avoiding quorum, officials could discuss issues outside the realm of public scrutiny.
Writing for the majority, Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, said the provision was unconstitutional because its language was too vague and leaves judges to guess at the intended meaning of what it means to “circumvent the law.”
“We do not doubt the Legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” Keller said. “But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views.”
Isabella Fanucci, speech pathology and psychology junior, works with state legislators and attends public meetings to lobby for students who submit testimony. Fanucci said the ruling will be detrimental to advocates like her who attend public meetings and expect transparency from lawmakers.
“You won’t know the changes that are being made,” Fanucci said. “You won’t know how our representatives are speaking on our behalf.”
Nearly all governmental bodies in Texas are subject to the Texas Open Meetings Act, including the University of Texas System Board of Regents and the Austin City Council.
Media law lecturer David Donaldson said he disagrees with the majority opinion and believes the provision did a fairly good job defining when a conversation between public officials becomes illegal.
“You have to have a criminal intent to violate the law by using this technique,” Donaldson said. “Officials can tell when they are knowingly conspiring to try to avoid the law as opposed to simply talking with their fellow council members in less than a quorum just discussing an issue.”
Donaldson said he hopes the ruling will not tempt public officials to meet and discuss voting or other actions privately.
“I’m always hopeful that every public official takes the open meetings act seriously and recognizes the value it has for the public,” Donaldson said. “But there’re always some who are tempted not to do the right thing, and this will give them a little more leeway.”