February 8, 2007

Texas Legislators and the TOMA
By Jack D. McNamara

Has anyone noticed that the Texas Legislature, who wrote the Texas Open Meetings Act (TOMA), does not bother to comply with major provisions of the statute?

Well yes, as a matter of fact.

On January 12, 2007 the House met to consider amendments to the Rules for the current 80th Session. Representative Yvonne Davis, A Democrat who represents northwest Dallas, offered Amendment 17. The amendment sought to insert the Texas Open Meetings Act into the House Rules. She drew a debate with several members who inquired how the TOMA would affect them as legislators.

Representative Davis said, “We are a body that believes in the open meetings process and certainly we ought to be able to comply with the rules that we ask other entities to.”

Representative Burt Solomons, a Carrollton Republican and the Rules Committee chairman, worried that “if you make a mistake, you may have to hire a lawyer. You may have to go see some D.A., I guess a local D.A. This (TOMA) has criminal penalties — ”

Davis responded that her amendment “just states that the House is subject to penalties that other entities are who violate open meetings rules … this (amendment) basically says that we believe in it enough that we would enforce whatever penalties we would enforce on any other public entity.”

In response to another legislator (Houston Democrat Harold Dutton) she said, “It ought to be that we are subject to those penalties that we would impose on other public entities if they violate it (TOMA).”

Later she had to tell the same legislator that he could not go to the Quorum Club with six of nine members of his committee and discuss a particular bill …, “you would probably be in violation …”

Her amendment, Representative Davis repeated, “just says that you should be subject to it, as all other public entities are.”

“We would be treating ourselves as we are treating others” by applying the TOMA to the House of Representatives, Davis said.

Representative Dutton (an attorney) persisted with specific questions concerning how a legislator would conduct himself under the TOMA and “I’m asking if you have thought about whether or not we’re going to have to change legislative procedures” under TOMA rules?

“Mr. Dutton, I’m accustomed to being treated like my constituents. So, they have to comply. I don’t know why we need to figure out what we need differently,” replied Davis.

Representative Solomons, the committee chairman, moved to table Davis’s amendment and his motion prevailed on a record vote 91-37 with the support of most Republicans and those Democrats who received good committee assignments this session.

Representative Davis’s attempt to place the Texas House under the TOMA received little attention from the Texas press but it was picked up by the blogs.

Our Representative Pete P. Gallego voted with Representative Davis on Amendment 17.

In April 2006 during the 3d Special Session of the 79th Legislature, Representative Gallego, Jim Dunnam and Garret Coleman and 17 co-authors introduced House Resolution 33 “to provide for transparency and ethical leadership in the operations of the House.”

The resolution is four single-spaced pages which go into considerable detail in proposing amendments to the House Rules. Referred to the Rules Committee, it went no further except that some parts of HR 33 were picked up and House Rules now include real-time access to amendments on the Internet and the recording of votes by members.

The only mention of “Open Meetings” in HR 33 concerns the compliance requirement of posting notices of meetings of committees (Section 551.044 Government Code). But under a section titled “Open Process-No Secret Conference Committees” the proposed resolution amending the rules says “No action or recommendation of the house conferees shall be valid unless taken at a meeting of the house conferees with a quorum of the house conferees actually present ... (our emphasis).”

No email problem there.

This is of course the detailed, convoluted, procedural maze of modern government. But it shows that our representatives are at least thinking about the problem even if they are as yet unaware of Judge Robert Junell’s opinion. Indeed there is a detectable thread of serious debate in the House since early 2003. That was the time Texans will recall, that the House majority became Republican for the first time since Reconstruction. A new majority makes new rules and the House Journal of March 25, 2003 includes the proposition (argued by Representative Terry Keel) that the House is not subject to the Open Meetings Act by authority of the Texas Constitution, Art. III, Sec. 11.

Representative Pete Gallego had made a point of order that day in an attempt to kill a bill by raising a possible violation of the Texas Constitution “because HB 4 (the bill under consideration) was derived from a meeting that violated Art III, Section 16 — ” the “open sessions” provision of the Constitution. The Speaker rejected Gallego’s point of order.

Gallego’s “violation” allegation set off a heated debate with distinctly partisan overtones, a reasonable result of the 2002 election. In the same debate, however, Gallego quoted at length a “legendary” legislative parliamentarian Bob “Big Daddy” Johnson who held the same opinion as Representative Keel that the Legislature is not subject to the TOMA. Johnson died in 1995.

By a majority of almost 3-1 the Texas House of Representatives on January 12, 2007 refused to submit themselves to the most onerous requirements of the law which all other Texans are required to observe.

Further, they have been thinking and arguing about it for at least the past four years, the period that the Democrats lost their one party total control of the state’s legislative machinery. Mostly this contentiousness is a good thing. It has certainly surfaced another cavernous contradiction in the law.

To a major extent the Legislature complies with the posting, record-keeping and public access requirements of the law. But they do not recognize the criminal provisions or the ridiculous limitations on communications among legislators. •

(Also published by the Big Bend Sentinel of Marfa, Texas February 8, 2007.)