February 1, 2007

The Texas Legislature’s Immunity from TOMA
By Jack D. McNamara

Does the Texas Legislature comply with the Texas Open Meetings Act?

We have been asking this question for the past three months — ever since we read U.S. District Judge Robert Junell’s November 7, 2006 decision regarding the challenge to the constitutionality of that law by two Alpine city councilpersons, Avinash Rangra and Anna Monclova.

The answer is No, at least as it concerns the Texas House of Representatives.

On January 27 we received an answer to our question in an email from House Speaker Tom Craddick. While “the House and Senate are technically subject to the TOMA” the Open Meetings Act also “explicitly recognizes … an overriding constitutional authority to set their own rules (Article III, section 11 and sections 551.003 and 551.046 of the Texas Government Code).”

We are not the only Texans confused by the comparison of law in Alpine and law in Austin. News stories in which reporters are at least implicitly critical of Austin legislative openness abound. Our favorite remains a news story from the Austin American-Statesman online of May 25, 2005. The Legislature had just concluded the biennial budget, a $140 billion exercise. Mark Lisheron wrote that the only legislators who had any influence on the final bill were Senator Steve Ogden of the Senate Finance Committee and Representative Jim Pitts, chair of the House Appropriations Committee. The headline was “Decisions come behind closed doors at the Capitol—Backrooms still the base of power.”

The TOMA was a point of pride for open government activists in Austin in the late 1970s. One of those activists, Charles Deaton, wrote a book, The Year They Threw The Rascals Out, describing the reforming session of 1973. In 1978 the TOMA, Article 6252-17, section 2b read, “In this Act the Legislature is exercising its rule-making powers to prohibit secret meetings of the Legislature, its committees or any other bodies associated with the Legislature….” However, the section has one more phrase: “except as otherwise specifically permitted by the Constitution.”

Moreover, various authorities in the intervening years have indicated the Lege is covered by the TOMA. In 1974 Attorney General John Hill opined (Letter Advisory Opinion No. 84) that the law was “intended to cover legislative committees.”

In 1983 Attorney General Jim Mattox (JM-122) wrote that the Legislature is covered and in December 2000 the Texas Supreme Court rendered a similar decision in their opinion permitting the Texas Senate to conduct a secret ballot to determine the Senate’s presiding officer after then Lt. Governor Rick Perry vacated the office to become governor.

We asked the Travis County District Attorney if he had ever prosecuted a legislator for violation of the TOMA and he said No. There were complaints filed in 2003 after the Democratic minorities in the Senate and the House respectively bolted for Albuquerque and Ardmore, Oklahoma to prevent a quorum. The complaints pointed out rather rationally that the Democrats had to meet and communicate somehow in order to collectively as one man get out of Austin — an apparent violation of the criminal section of the TOMA for conspiring in numbers less than a quorum.

But no prosecutions resulted from the Democrats’ flight.

After discussing the question rather widely, Greg Cox of the Travis County District Attorney’s Office recommended we contact former Representative Terry Keel, an Austin criminal defense lawyer who left his seat in 2006 to run for the Court of Criminal Appeals. Keel was highly regarded in the Legislature. Mr. Keel referred us to the House Journal of January 13, 2005 — the 79th Legislature, Regular Session.

The Journal records the meetings of the House in the early days of each session. The House adopts the rules by which the members will proceed — pursuant of course to Article III, section 11 of the Texas Constitution. This year there was a heated debate over electing the Speaker. In 2005 the Journal includes a lengthy “statement” by Mr. Keel. In the first paragraph he says, “Observers should take note that the Texas Open Meetings Act is inapplicable to the Texas Legislature.”

Mr. Keel reviews the Act’s history as it relates to the Legislature, including specific legislative procedures which are common now but might be illegal under the TOMA. The paragraph concludes, 

“… Thus every time a legislator meets with other legislators to secure a majority vote on an issue before a committee or the full house, that legislator would be violating the Open Meetings Act. Attempting such a misapplication of the Act leads to absurd results, given that the conduct described is universally recognized as proper and necessary for legislators in a representative democracy.”

At the conclusion of his “statement” Mr. Keel reports he has discussed these matters with the Travis County District Attorney whose opinion is consistent with Mr. Keel’s.

So there we are … except these opinions all preceded Judge Junell’s November 2006 opinion. And yes, Judge Junell sits in the Western District of Texas which includes Austin. And yes, Judge Junell was, prior to his appointment to the bench, a senior Texas legislator, chairman of the House Appropriations Committee. After presentation of the case in Pecos, the judge wrote, as a conclusion of law, that “… there is no meaningful distinction among public employees, appointed public officials, and elected public officials.”

An email from one Alpine city councilperson to another asking to set up a council meeting was therefore prosecutable, even if such an interpretation of the TOMA is “absurd” in Austin.

There is a slight disconnect here. The rules of both the House and the Senate contain many references to open government. But there are zero cases of criminal enforcement and the House Rules do not include any criminal sanctions in the 100-plus pages.

Even before Judge Junell’s decision a Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel lawyer, David Méndez, posted a lengthy article on the Web, “Special Problems Under the Open Meetings Act: Applicability of the Open Meetings Act to the Legislature” (July 2004). ”With the demise of a bipartisan culture the committees and policies for operation of the chambers will need to be reviewed and analyzed to determine how they adhere to the Open Meetings Act as the Act may represent one of many tools that can be utilized to check the power of the body.”

Representative Keel is correct. Representative democracy cannot proceed under the ridiculous strictures applied here in Alpine. The result is that we have one rule of law in Austin and another rule in the cities, counties, and school boards out in the boondocks. •

(Also published by the Big Bend Sentinel of Marfa, Texas February 1, 2007.)