The Texas Court of Criminal Appeals of Texas recently ruled § 551.143 of the Texas Government Code (also known as the Texas Open Meetings Act or “TOMA”) is unconstitutionally vague on its face. This section made it a criminal violation for members of a governmental body to knowingly conspire to circumvent the TOMA by secretly meeting in numbers less than a quorum for deliberations on official public business. The case, State of Texas v. Doyal, stemmed from the actions of the Montgomery County Judge Craig Doyal who, in this capacity, was also a member of the Montgomery County Commissioners Court. Doyal, along with two other precinct commissioners, was alleged to have negotiated details of a 2015 county road bond referendum with a political action committee outside of a duly called and noticed meeting. Although the trial court originally dismissed the indictment, the appellate court reversed this decision in favor of the State which then brought the case before this Court.

The Court’s basis for reversal relied on several deficiencies they found in § 551.143. To start, the TOMA’s public-meeting provisions only apply when a governmental body meets as a “quorum” as defined in the statute, and the terms “meeting” and “deliberations,” as defined, require a quorum. Thus, without a quorum, there cannot be a meeting or deliberation as the TOMA provides. Further, the Court found the word “secret” insufficient to supply the requisite clarity to the TOMA to provide guidance for public officials. Ultimately, in order to pass constitutional muster, a law that imposes criminal liability must be sufficiently clear enough (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and (2) to establish determinate guidelines for law enforcement. In fact, even greater specificity is required when Frist Amendment freedoms are implicated, like the freedom of speech is here. The Court found that § 551.143, as written, did not meet these standards and, thus, this section is unconstitutionally vague on its face. Quite simply put, if the alleged violation of the TOMA requires meeting in a quorum and the person does not contemplate meeting in a quorum, then the person cannot literally have the purpose of violating the TOMA.

Ultimately, there do not appear to be any sections that directly prohibit or punish the meeting of public officials in numbers less than a quorum to deliberate on official public business, either civilly or criminally. As of the writing of this summary, the Office of the Attorney General has refused to comment on whether they will appeal this decision to the United States Supreme Court. Nevertheless, governmental bodies would be wise to avoid engaging in deliberations outside of a duly called and noticed meeting. Although the TOMA may not provide for a means by which to punish bad actors, the spirit and intent of the TOMA still make clear that government transparency is in the best interest of the public.

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