AUSTIN — Texas has passed a new law that lets lawmakers conceal their emails and other communications from public scrutiny, as they prepare to redraw the state's voting maps.

The law's Republican authors, North Texas' Rep. Charlie Geren and Sen. Kelly Hancock, billed it as a housekeeping matter, a routine update to rules governing how lawmakers retain records and run debates. It passed easily with almost no discussion and little media attention.

Geren, R-Fort Worth, later defended the new law in multiple statements to The Dallas Morning News as a way to protect the separation of powers and, specifically, legislative independence.

But transparency advocates warn that the new measure will dramatically expand what legislative documents can be kept secret, allowing the men and women who write laws to hide why they make the decisions they do and who is influencing them to act. The bill was passed ahead of the 2021 redistricting process, leading some to worry it was written specifically to help state lawmakers and legislative staffers responsible for redrawing the Texas' political maps to hide their tracks.

“This is very clearly an attempt to hide communications about redistricting from any future court review,” said Nina Perales, part of a team of lawyers who successfully challenged the state’s 2011 maps. “Normally, Texas legislators have only had two options: lie or tell the truth about their motives.

“The new bill is an attempt to create a third option, which is hide the evidence.”

'Legislative privilege'

House Bill 4181, which became law June 14, allows state lawmakers and legislative employees to keep secret all communications that deal with "a legislative activity or function" and are "given privately," a phrase not defined in the statute.

This “legislative privilege” extends to any discussions “among or between” the lieutenant governor; parliamentarians; members of all legislative boards, commissions, councils, departments or offices except the Texas Ethics Commission; and any “person performing services under a contract” with the Legislature.

Communications between legislative lawyers, or their employees, and lawmakers are also confidential because of attorney-client privilege, the new law spells out. It also shifts some responsibilities from records custodians at the Texas State Library and Archives to the Texas Legislative Reference Library.

While lawmakers have long had the authority to withhold many internal documents, this change allows nearly every person who works under the Capitol dome to cite “legislative privilege” in order to refuse to turn over almost any communication. The new law itself this privilege is necessary “to protect the public’s interest in the proper performance of the deliberative and policymaking responsibilities of the legislature” and to preserve the separation of powers.

Joe Larsen, an Austin-based attorney who advocates for open government, said this effectively creates “a black box” that will let lawmakers and their staffs avoid accountability. The public and the press will no longer have access to their communications, including emails, memos and other documents, allowing them to keep Texans in the dark about their decisions, he added.

It will “completely allow the legislators to control the message, keep anyone from looking behind the curtain,” said Larsen, a board member on the Freedom of Information Foundation of Texas. “It’s a power grab.”

“This is a big deal and it should have been vetted," he added. "It’s closing off a big source of information to the citizens of Texas.”

Little scrutiny

The legislative privilege law was little noticed this year, when legislators were busy patting themselves on the back for passing a handful of bipartisan open government bills that improve transparency in state contracting and public meetings.

Geren filed the bill March 8, the deadline for submitting legislation. It was referred to the Committee on House Administration, which he chairs, for debate. Members of the public were not invited to speak on the bill that day, so the hearing where it was first introduced was not recorded, his staff confirmed.

During the bill’s introduction on the House floor on May 2, Geren described it as a cleanup measure to modernize the day-to-day workings of the legislative branch of state government.

“The statutes governing legislative organization and operation have not been updated in probably 30 years,” Geren said. “There are other updates in this, as well as codifying what is privileged and what is confidential. ... I'd be happy to take questions.”

But there was no substantive debate on the bill that day. After Rep. Giovanni Capriglione, R-Southlake, amended it to specify which contractors can claim legislative privilege, House lawmakers approved it by a vote of 136-0.

The bill received even less attention in the Senate. In Hancock’s Business and Commerce Committee, no one testified before it was approved 7-1. Just one person, Wendy Woodland with the Texas Library Association, registered her opposition.

"It makes such a monumental change to how official legislative records are managed, impacting public access," Woodland told The Dallas Morning News last week. "We never got an understanding of why this is necessary."

The bill passed on the Senate floor with no debate.

Four senators voted against it: Brandon Creighton, R-Conroe; Bryan Hughes, R-Mineola; Angela Paxton, R-McKinney; and Kirk Watson, D-Austin. None responded to requests for comment to explain their votes.

The Texas Democratic Party also declined to weigh in, and Gov. Greg Abbott, who let the bill become law without his signature, did not return inquiries.

Rep. Briscoe Cain, a member of the hard-right Freedom Caucus, was one of six House members who abstained from voting on the measure. This week, he said he didn’t vote for it because he had ethics concerns.

"It would have looked self-serving on my behalf as a legislator to support the bill," Cain, R-Deer Park, told The News. He added that the complex measure passed committee and was set for a floor debate before lawmakers could properly vet it. "People didn't know what the hell it actually did."

'Concerns about redistricting'

In a statement to The News, Geren said the new law codifies existing practice and protects lawmakers from overreach and outside pressure.

"Legislative privilege 'serves important public purposes' and ensures that members and their staffs are protected from substantial intrusions by the executive and judicial branch seeking to second guess the Legislature's motives," Geren said, citing a recent Texas Supreme Court case.

He then specifically mentioned the last round of redistricting in 2011. After a legal challenge, state lawmakers and legislative employees were ordered to release damning emails that helped advocates prove the state’s voting maps were racially gerrymandered.

Geren's Fort Worth district was adjacent to one that the courts eventually ordered to be redrawn.

“They reached this conclusion in part because they said the privileges were not explicitly and completely spelled out in the Legislative Council statute,” Geren said, referring to the Legislature’s nonpartisan research agency. “House Bill 4181 codifies the common law of legislative privilege, developed from the Speech and Debate Clause of the Texas Constitution, as traditionally understood by the Legislature and the Texas courts.”

Rep. Chris Turner, who leads the House Democratic Caucus, was immediately worried about the bill’s intent.

“I specifically raised the concern about redistricting,” Turner, D-Grand Prairie, said. “This bill could serve as a barrier to discovery of very relevant documents and communications in the legal process around redistricting or other matters.”

So he amended it, saying the bill did not affect a court's "rules of evidence," in the hopes that Texas would again have to comply with a judge's requests for documents if the state is sued over its 2021 voting maps.

“There’s already federal judicial precedent of breaking this type of legislative privilege if plaintiffs can demonstrate the need to do so," Turner added. "I believe the amendment will help fortify that ability, but obviously we will have to see if this is ever put to the test.”

But it’s unclear whether Turner’s amendment will have that effect. When asked to clarify, Geren issued another statement: “Redistricting would not apply to this scenario as it does not involve a criminal proceeding.”

While federal judges often set aside state laws, saying federal rules or laws override them, they sometimes allow documents to be withheld if common practice dictates that legislators assume they’re communicating in confidence. But there are still “several ways” lawyers would be able to gain access to these communications. Legislative privilege can be waived or broken, or a judge can choose to set it aside.

On Thursday, the U.S. Supreme Court ruled 5-4 that federal judges cannot curb partisan gerrymandering. However, it affirmed its authority to consider whether race was a factor in drawing voting maps.

But even if the new law has no effect on redistricting, said Perales, the lawyer involved in the challenge of the 2011 maps, it could still help lawmakers withhold documents relate to challenges in state courts to state laws, like the ban on sanctuary cities or school finance. She remembers deposing lawmakers who cited “legislative privilege” when she was a lawyer for the Texas Latino Redistricting Task Force.

“[The new law is] an attempt to cloak communications on lots of issues,” she said. “I am confident the tools remain to expose racial discrimination in policymaking.”

When asked about the measure’s general effect on transparency, Turner said public records laws regarding lawmaker communications were confusing and needed to be fixed.

“There has been ambiguity as to what is protected and what is not,” Turner said. “If in practice this proves to shut off the release of records that would previously be subject to public records, the Legislature should revisit that and make sure we’re holding us to a transparency standard.”