The Texas attorney general’s Open Meetings Act (Act) training video – which legislators are not required by law to watch – features attorney general Abbott explaining the need for open meetings laws:

Thomas Jefferson once said that a public office is a public trust, and in that spirit the work of government must be open to all the people. It is a principle written into Texas law and upheld by the courts. The Sharpstown stock fraud scandal of the early 1970s serves as a reminder of the public trust and also of what happens when that trust is breached. Federal accusations and state charges were levied upon several elected officials. After the scandal, new Texas open government laws were passed to ensure that a scandal of that magnitude never happened again.

Sharpstown was a bank in Houston.  The scandal involved – among many other things – money for votes, bribery, and other untoward actions by the legislature.  Following criminal convictions, and after a political shift brought by later elections, the legislature in 1973 passed various open government laws.  One of those laws included very stringent amendments to the Act. 

What is most interesting about the Act, and what general Abbot fails to mention in the video, is that they do not apply to the Texas House or the Texas Senate.  The Act, in one of its very first provisions, states that “[by enacting the Act,] the legislature is exercising its powers to adopt rules to prohibit secret meetings of the legislature…except as specifically permitted in the constitution.” Article III, Section 11, of the Texas Constitution, provides that “[e]ach House may determine the rules of its own proceedings...”

That is the catch.  Both houses of the legislature take the position that their rules of procedure, which are adopted pursuant to the constitution, trump the Act.  Under those rules, the members can discuss public business freely amongst themselves, groups of their members, or even as a “caucus of the whole Senate” outside of the public’s view.  One legislator was recently quoted by Texas Monthly editor Paul Burka as saying that

From my perspective, it would be pretty hard to have a candid discussion if it always had to be in public. If I am trying to line up votes, there are times when I want to have a private discussion. If we couldn’t, it would put real restraints on policy making.

Whether that statement is correct or not isn’t the issue.  It’s the hypocrisy of some legislators concerning the Act. Many of them seem to believe strongly in open government, so long as it doesn’t apply to them. 

Legislative standing committees are supposed to comply with the Act as well.  But the members frequently suspend the law to allow them to meet with little notice.  Case in point?  S.B. 751, which was filed last week.  The bill amends the law relating to committee procedures to provide that “the attendance at a legislative caucus meeting by members of a standing committee who constitute a quorum of the committee is not considered a meeting of the standing committee under other law [e.g., the Act] or under the rules of procedure for the house creating the standing committee.”  In addition, committee members commonly visit in private break rooms behind committee chambers to come to agreements on legislation that is before the committee. 

Consider a similar situation involving city councilmembers.  Under the Act’s definition of a “meeting,” any time a quorum of the council is together and discusses public business, that gathering is subject to the Act.  According to the attorney general’s interpretation in Opinion No. JC-0203 (April 4, 2000), if a quorum of a governmental body desires to attend the same speaking engagement or lecture, an attending member participates in the discussion, and the deliberation relates to public business, the attendance will be subject to the requirements of the Act. 

What does that mean in plain English?  If a quorum of city councilmembers attends another entity’s meeting and public business is discussed, each member has just committed a jailable offense unless the meeting has been posted for 72 hours and other requirements are met.  For example, if a quorum attends a meeting of their party’s county caucus meeting, and the discussion is regarding an issue over which the city council has authority (e.g., street repair, economic development incentives, etc.), councilmembers may not participate at all unless all of the requirements of the Act are met.

Not surprisingly, when members of the legislature discovered that the law could prohibit councilmembers from testifying at a legislative committee meeting, a state law was passed to correct the problem.  But only as it relates to legislative committees: “[T]he attendance by a quorum of a governmental body at a meeting of a committee or agency of the legislature is not considered to be a meeting of that governmental body if the deliberations at the meeting by the members of that governmental body consist only of publicly testifying at the meeting, publicly commenting at the meeting, and publicly responding at the meeting to a question asked by a member of the legislative committee or agency.

Ironic? You be the judge. Next week: “Public information” as practiced at the Capitol.

TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the
Texas Municipal League.

Back to Legislative Update Index