Two commissioners and a county judge walk into a bar. The judge says, “I’d sure like to get this road out front fixed.” The two commissioners say, “That sounds like a good idea.”
Though it sounds like the set-up to a joke, the above situation isn’t funny to prosecutors familiar with the Texas Open Meetings Act (TOMA). That’s because two county commissioners and a judge make a quorum, their conversation constitutes a “meeting,” and now the local county attorney has a TOMA violation to deal with.
Long before we could tune into basic cable to keep up with the Kardashians’ every move, the Legislature passed TOMA to insure that we could keep up with our government. Adopted in 1967, the act essentially gives the public near-complete access to the meetings of a governing body. The law is based on the principle that citizens have the right to be informed about and participate in their own governance, and reviewing courts conduct their analysis of TOMA issues with this principle in mind.
Today, reality TV and social media have led to the expectation that we are informed about everything from a favorite celebrity’s baby name to an update (with photos!) of the salad that a random high-school classmate had for dinner. In this world, should we really be surprised that our citizens want to know the who, what, where, when, and why of their local government?
On the surface, that sounds pretty simple. However, anybody with a J.D. can tell you that things are rarely as simple as they seem. Violations of the Open Meetings Act happen. A lot. As my boss likes to say, “Lots of people are afraid that someone else is getting something that they aren’t.” We can count on those same people to let us know the second that an agenda item is not properly posted by the local school board and complain that no one is investigating members of the city council for having lunch together.
One of the worst things about TOMA violations is that their appearance can be so unpredictable. In a rural jurisdiction like mine, we might go years without dealing with a single one. Then, all of the sudden, our phones start blowing up with calls from helicopter moms who are out for blood after the school board did something they didn’t like or Lois Lane-like reporters hoping to knock Lex Luthor off his perch on the local city council.
This article is an attempt to save prosecutors headaches and forays into TOMA to research answers to common questions. Here is a glimpse at some of the ins and outs of this important legislation.
To whom and when does TOMA apply?
Every regular, special, or called meeting of a governmental body must be open to the public.1 “Governmental body” is defined in the Texas Government Code §551.002(3)(A)–(L). The list contains entities like the commissioners court and a school district board of trustees like you would probably expect, but it also includes a few that you might not necessarily think of as a governmental body, such as certain non-profit organizations and some property owners associations.2
TOMA comes into play when there is a meeting of the governmental body. A meeting is defined as a deliberation between a quorum of a governmental body or between a quorum of a governmental body and another person, during which business or public policy over which the governmental body has supervision or control is discussed or considered, or during which a governmental body takes action.3 A meeting can also be a gathering that is 1) conducted by a governmental body or for which the governmental party is responsible 2) at which a quorum of members of the governmental body is present, 3) that has been called by the governmental body, and 4) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.4
Records of open meetings
It should come as no surprise that minutes must be kept or a recording made of every open meeting. These minutes must state the subject of each deliberation and indicate each vote, order, decision, or other action taken.5 After the minutes are prepared, they are considered public records and must be made available for inspection and copying by the public if a request is made.6 Any person in attendance may record an open meeting in part or in full.7
If you are in a large county or have a large municipality in your jurisdiction, watch out. HB 283 (84th Legislative Session) made some amendments to TOMA regarding Internet broadcasting of open meetings. Effective January 1, 2016, the following entities must make a video and audio recording of reasonable quality of each regularly scheduled open meeting that is not a work session or a special called meeting and make available an archived copy of the video and audio recording of certain meetings on the Internet:
• a transit authority or department subject to Chapter 451, 452, 453, or 460 of the Transportation Code,
• an elected school district board of trustees for a school district with a student enrollment of 10,000 or more,
• an elected governing body of a home-rule municipality with a population of 50,000 or more, and
• a county commissioners court for a county with a population of 125,000 or more.8
The types of meetings required to be recorded and broadcast are described in §551.128(1). Don’t be caught unaware by this new requirement.9
In my opinion, the notice requirements placed on governmental bodies are probably the single most involved aspect of the Texas Open Meetings Act. The law contains very specific guidelines concerning when notice must be given and what information that notice must contain. These requirements should not be taken lightly—strict compliance is often necessary.
A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by a governmental body.11 The notice has to contain enough detail to let the public know what will be discussed at the meeting.12 If a committee of a governmental body is meeting and that committee has the authority to act or will make recommendations that will be accepted without discussion by the governmental body, notice of that meeting should be posted.13 A governmental body can’t discuss or take action on any item that is not posted. However, if a topic comes up that was not included in the notice for the meeting, limited discussion of the subject can take place so long as discussion is limited to specific factual information or policies that already exist.14
The posting must be a physical one. A hard copy of the meeting notice should be placed at a “location convenient to the public” in the county courthouse.15 The Internet may be used to maintain a concurrent posting on the governmental body’s website but cannot be used in place of the required physical posting.16 Depending on the size of the relevant population, a governmental body may be required to post the agenda for the meeting and the notice on its website.17 If a governmental body is using only a physical posting for its notice, the physical posting must be readily accessible by the public at all times for a minimum of 72 continuous hours before the meeting’s scheduled start time.18 Nothing can be added to the agenda after the 72-hour deadline for posting the notice unless there is an emergency.19
It is very important to follow these notice guidelines strictly. The Texas Supreme Court has held that putting a physical notice on a bulletin board inside a locked courthouse was insufficient to meet the 72-hour requirement, for example.20 Consequences for failing to follow the notice guidelines can be dire—in certain instances, the Supreme Court has gone so far as to void the actions of governmental bodies for failing to comply with the notice require-ment.21
Notice in emergencies
The law does give governmental bodies a little leeway when there is an emergency or urgent public necessity. When there is an emergency, notice of the meeting may be posted as little as two hours before the meeting is scheduled to begin.22 What is an emergency, you ask? An emergency or urgent public necessity exists “only if immediate action is required of a governmental body because of an imminent threat to public health and safety; or a reasonably unforeseeable situation.” When one of these situations arises, the governmental body has to clearly identify the emergency or urgent public necessity in the notice. This section comes in handy when Mother Nature decides to hit a county with a few tornados or a blizzard. On the same day. Only a few hundred miles apart.23
Believe it or not, there are some circumstances where it is permissible for a governmental body to have a closed meeting (that is, a meeting not open to the public). Subchapter D of the Texas Government Code lists the more than 20 exceptions to the requirement that meetings be open.24
Like everything else in the Open Meetings Act, these exceptions are very specific and narrowly tailored. Some of them are generally applicable to every type of governmental body while others apply specifically to just one agency. If you are going to counsel an entity on whether a closed meeting is permissible, be sure that the open meeting exception applies to that particular entity.
If a closed meeting is permissible, don’t forget to give the proper notice. If a closed meeting is going to be held under Subchapter D, a governmental body must first have a quorum of its body convene in an open meeting (for which proper notice has been given under TOMA),25 after which the presiding officer must publicly announce that a closed meeting will be held and identify the section(s) of Subchapter D that applies.26
Any action to be taken on a matter deliberated in a closed meeting must occur in an open meeting.27 A certified agenda or a recording of each closed meeting must be kept unless the closed meeting is a consultation with an attorney under §551.071.28 Requirements of the certified agenda include 1) a statement of the subject matter of each deliberation, 2) a record of any further action taken, and 3) an announcement by the presiding officer at the beginning and the end of the meeting indicating the date and time.29 This certified agenda and recording must be preserved for two years.30 If action involving the meeting is taken during that two-year period, the certified agenda and recording must be preserved as long as the action is pending.31
Enforcement, remedies, and criminal violations
So the local water board met in closed meeting when it should have met during an open meeting. While in the illegal closed meeting, the board decided to spend some money, and citizens of the county are upset. What can they do about it?
An interested person, including a member of the news media, can seek a writ of mandamus or an injunction to stop, prevent, or reverse a governmental body’s violation or threatened violation of the Texas Open Meetings Act.32 Whoever prevails may be awarded the costs of litigation and reasonable attorney’s fees.33 Whether the action was brought in good faith and whether the governmental body’s actions had a reasonable basis in law are two factors the court will consider when determining whether to award these costs to the prevailing party.34 If a court determines that a violation occurred, the action taken by the governmental body in violation of the Open Meetings Act is voidable.35
Let’s say that the water board meeting goes beyond an innocent mistake with the Open Meetings Act. Let’s say the board’s members knowingly tried to circumvent this chapter by meeting in numbers less than a quorum for the purpose of circumventing the act and having secret deliberations. In such a situation, the offending parties can be subject to a fine between $100 and $500 and/or time in the county jail for one to six months.36
If a closed meeting is called and no closed meeting exception applies, the member(s) of the governmental body who call or aid in calling or organizing the meeting, close or aid in closing the meeting, or participate in the closed meeting can be punished under §551.144. For violations under this section, the legislature provided an affirmative defense if the defendant acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body.37 Because of that lovely little defense, don’t be surprised to hear, “Can I get that in writing?” any time you advise a governmental body that it may have a closed meeting.
Failing to produce a certified agenda or recording of a properly called closed meeting can also result in a penalty. An offense under §551.145 is punishable as a class C misdemeanor if the members participate in a closed meeting knowing that a certified agenda of the meeting is not being kept or a recording is not being made.
The final offense under the Texas Open Meetings Act concerns the unauthorized disclosure of a certified agenda or recording of a meeting lawfully closed to the public. If a knowing disclosure is made, the offending party is liable to a person injured or damaged by the disclosure for 1) actual damages, 2) reasonable attorney’s fees, court costs, and possibly 3) exemplary damages.38 The offending party can also be charged with a Class B misdemeanor.39
The Texas Open Meetings Act embodies the most basic values of democracy. Its various requirements ensure that the citizens of Texas can stay informed about and participate in their local government. However, the consistent need for strict compliance with the act means that accidental violations and, heaven forbid, intentional violations are bound to occur.
With a little bit of luck and a lot of attention to detail by your local governmental bodies, you will never have to experience a TOMA violation-induced headache. But should you be the unlucky soul who finds a TOMA casefile dropped in your lap someday, I hope you find this article helpful. You might even consider dropping in on your local governmental leaders from time to time to offer a little open-meetings knowledge, especially if you ever see a quorum walk into a bar together.
1 Tex. Gov’t Code §551.002.
2 Tex. Gov’t Code §551.0015.
3 Tex. Gov’t Code §551.001(4)(A).
4 Tex. Gov’t Code §551.001(4)(B)(i-iv); see also Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433 (2001) for a good discussion on the concept of quorums and when a “walking quorum” might exist.
5 Tex. Gov’t Code §551.021.
6 Tex. Gov’t Code §551.022.
7 Tex. Gov’t Code §551.023. The governmental body is allowed to set some reasonable restrictions to maintain order at meetings, so don’t be afraid to designate a specific area for cameras to be set up.
8 Tex. Gov’t Code §551.128.
9 “That’s awesome. Now I can sit at home in my bathrobe and watch every action of my commissioners court.” —An anonymous member of the Rusk County & District Attorney’s Office informed of the provision requiring Internet broadcasting for counties of 125,000 people or more.
10 If you are looking for a more specific guide as to what to put into a notice of an opening meeting, the Texas Association of Counties puts out a publication titled Open Meetings Act: Basic Information for County Officers that serves as a more comprehensive primer on the Texas Open Meetings Act.
11 Tex. Gov’t Code §551.041.
12 City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991).
13 Tex. Att’y Gen. Op. No. GA-0999 (2013).
14 Tex. Gov’t Code §551.042.
15 Tex. Gov’t Code §551.049.
16 Tex. Gov’t Code §551.056.
17 Tex. Gov’t Code §551.056(c)(1)–(6).
18 Tex. Gov’t Code §551.043.
19 Tex. Gov’t Code §551.045.
20 Smith County v. Thornton, 726 S.W.2d 2 (Tex. 1986).
22 Tex. Gov’t Code §551.045.
23 See www.usatoday.com/story/weather/2015/ 12/27/severe-weather-tornadoes-texas-south/ 77939562.
24 Subsection D begins with Tex. Gov’t Code §551.071.
25 Tex. Gov’t Code §551.101.
26 Tex. Gov’t Code §551.101(1)–(2).
27 Tex. Gov’t Code §551.102.
28 §551.071 applies to consultations with attorneys on matters of 1) pending or contemplated litigation, 2) a settlement offer, or 3) a matter in which the duty owed to the governmental body by the attorney is in conflict with the Texas Open Meetings Act.
29 Tex. Gov’t Code §551.103.
30 Tex. Gov’t Code §551.104.
32 Tex. Gov’t Code §551.142(a).
33 Tex. Gov’t Code §551.142(b).
35 Tex. Gov’t Code §551.141.
36 This offense is titled Conspiracy to Circumvent and is punishable under Tex. Gov’t Code §551.143.
37 Tex. Gov’t Code §551.144(c).
38 Tex. Gov’t Code §551.146(a).
39 Tex. Gov’t Code §551.146(b).