Emails & Texts – Texas Open Meetings Act?

[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter.” Tex. Gov’t Code § 551.002. But how could something as innocuous as a quick update or brief message regarding a topic of public business or public policy to a quorum of a governmental body outside the realm of an officially called meeting be interpreted as a violation of the TOMA? The Attorney General follows a strict interpretation of what constitutes a “meeting” and “deliberation”, and makes these communications a potential risk for not just the person that sends the message, but also the rest of the governmental body that receives the information.

The definition of “deliberation” is broad. Because avoiding the TOMA’s requirements would be too easy if “deliberation” only applied to spoken communications, written notes and electronic mail are other forms of communications that are subject to the TOMA. Op. Tex Att’y Gen. JC-307 (2000). For example, the AG has interpreted the TOMA to require that written reports from a city manager to a city council be noticed in accordance with the TOMA requirements. Tex. Gov’t Code Ann. §§ 551.0035, 551.0415; see Tex. Att’y Gen. Op. No. GA-668 (2008). In another ruling, the AG determined that “deliberation” applies to circumstances when a quorum of a governmental body attends an event other than the governmental body’s own meeting and one member of the quorum comments, answers questions, or testifies about public business in front of the quorum, even if no other member participates. Op. Tex. Att’y Gen. Nos. JC-248 (2000), JC-203 (2000). Ultimately, communications between a quorum of a governmental body about public business, no matter the forum or the time, can be a “meeting” to which the TOMA applies, regardless of whether another member responds to the communication.

While these interpretations by the Attorney General’s Office may seem quite strict, Texas courts do not rely solely on this input to determine whether certain communications, especially one-way communications, constitute a meeting subject to TOMA. Attorney General Opinions and Open Records Decisions are viewed as highly persuasive and entitled to great weight, but any final determination of a law’s applicability, meaning or constitutionality is left to the courts. With that being said, members of a governmental body should be careful with communications of any kind with a quorum that discuss public business or public policy. Although it seems rather innocuous to think an email with no need for a response from its recipients would constitute a violation, even absent any intent to circumvent the TOMA, the Attorney General may interpret it differently.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.