The only thing propping up the veneer of transparency created by the Texas Open Meetings Act is the honor system, thanks to a ruling earlier this week from the Texas Court of Criminal Appeals, Texas' highest criminal court.
Until Wednesday morning, Texas law forbid public officials from knowingly discussing public business in small groups in order to avoid creating a quorum, circumventing state laws that require that the public be allowed to watch its municipal, county and state governments do their jobs. The Dallas City Council couldn't, for instance, meet in three groups of five instead of one group of 15 to discuss an issue and then share the groups' opinions with each other so that they'd never form a quorum and never be forced to meet in public.
Then Montgomery County Judge Craig Doyal was indicted for breaking the law in 2015 after he allegedly held secret meetings about a county road bond without a quorum of county commissioners present. After being charged, Doyal claimed that the charges should be dismissed because the law making what he did illegal was unconstitutional because it violated his First Amendment rights and was unconstitutionally vague.
The law says that "A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter."
Two days ago, the Court of Criminal Appeals agreed that the law was too vague in a 7-2 decision.
“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,” Presiding Judge Sharon Keller wrote in the court's decision. “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. This we decline to do.”
Kelley Shannon, the executive director of the Freedom of Information Foundation of Texas, disputed Keller's interpretation of the law.
"We don't think it's vague. We think it's quite clear and everybody understands the law and the spirit of the law," Shannon says. "You can't go around discussing public business in private. It's a very disappointing ruling."
While most officials know the law, Shannon says, the Criminal Court of Appeals' ruling creates an unnecessary risk for the public.
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"By removing the criminal penalty — that's a real disincentive for people. In other words, if you have the criminal penalty up there, it makes people know how serious you are about the law and following the law," Shannon says. "It's important to have the criminal penalty, but, that said, most people want to follow the law just because they're law-abiding citizens."
Texas Gov. Greg Abbott, for one, is counting on the integrity of public officials throughout the state.
"Texans place significant trust in their elected and appointed officials. With this trust comes the expectation that officials will conduct public business responsibly and in accordance with the law," he wrote in a letter to state appointees and agency employees Thursday. "Regardless of yesterday’s ruling, my standard and expectation is for all agencies and boards to continue to follow the spirit of the law. You should not waver in your commitment to providing transparency in the work you perform for Texans at your respective governmental entities."
With the Court of Appeals ruling on the books, the ball is in the state's court. It could ask for a rehearing, or legislators could amend the law to make it more explicit, Shannon says.