Texas court blows a hole in state’s Open Meetings Act

Montgomery County Judge Craig Doyal is seen before a hearing on the constitutionality of the Texas Open Meetings Act in the 221st state District Court at the Lee G. Alworth Building on Monday, March 27, 2017 in Conroe. less Montgomery County Judge Craig Doyal is seen before a hearing on the constitutionality of the Texas Open Meetings Act in the 221st state District Court at the Lee G. Alworth Building on Monday, March 27, 2017 in ... more Photo: Jason Fochtman, Staff Photographer / Houston Chronicle Photo: Jason Fochtman, Staff Photographer / Houston Chronicle Image 1 of / 1 Caption Close Texas court blows a hole in state’s Open Meetings Act 1 / 1 Back to Gallery

AUSTIN — The Texas Court of Criminal Appeals on Wednesday struck down a key provision of the state’s Open Meetings Act, finding the section that makes it a crime for government officials to meet secretly to discuss the public’s business is “unconstitutionally vague.”

The ruling makes such violations no longer punishable as crimes in Texas, so long as the meetings do not involve a majority of a governing board such as a school district, city council or county commission.

“The court stuck a knife into the heart of the Open Meetings Act,” said Joe Larsen, a board member of the Freedom of Information Foundation of Texas who has worked on the case. “It’s the real world where the consequences are going to be backroom deals hidden from the public.”

The court said it was up to the Legislature, which is currently in session, to decide whether to revise the provision so it would pass constitutional muster. “We do not doubt the Legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” wrote Presiding Judge Sharon Keller.

The court’s ruling could have immediate impact on a state investigation of the Houston school district’s board, and of the economic development agency in Pasadena.

As written, the act makes it illegal for members of a government body to “knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” The attorney general’s office, which defended the law in court, defined this violation as a “walking quorum,” with members of a governing body gathering in groups with fewer than a majority, but through successive meetings essentially conducting business in secret.

The attorney general’s office described this practice as building a “daisy chain of members the sum of whom constitute a quorum.”

“The Office of the Attorney General strongly believes in the transparency of government to ensure its accountability to Texans. We’re disappointed that the court did not follow the brief we filed, but we look forward to working with the Legislature to address this vital issue,” said Jeff Mateer, First Assistant Attorney General.

Larsen suggested the ruling could have national implications if other states use it to justify arguments that their own open meetings laws are also unconstitutionally vague. He said he hopes the state would appeal the case to the U.S. Supreme Court. The attorney general’s office did not respond when asked to comment on that possibility.

The ruling stems from the indictment of Montgomery County Judge Craig Doyal, who, as a member of the commissioners’ court, met privately with a fellow commissioner and a political consultant about the potential structure of a county road bond in 2015.

For subscribers: Appeals court reinstates indictments against top Montgomery county leader Doyal, two others

Doyal asked the courts to dismiss the 2016 indictment, arguing that the law is too vague and violates free speech rights. The trial court agreed with him, although an appeals court overturned that decision, reinstating the indictments of Doyal, fellow commissioner Charlie Riley, and political consultant Marc Davenport. The three faced misdemeanor charges of violating the open meetings law, punishable by up to six months in jail and a fine of up to $500.

“What a tragic waste of time, energy, effort, money and reputation on the part of several elected officials in Montgomery County that we had to fight this battle,” said Doyal, who blamed much of his loss in the 2018 primary election to the case that allowed his opponent to imply he was a criminal. “But the truth always finds a way … I expected this result because I always knew we never did anything wrong. That’s what’s frustrating. I worked with the county for 32 years. I know the TOMA rules, and I did not violate them.”

Judge Kevin Yeary wrote the dissenting opinion to the criminal court’s 7-2 ruling. Also dissenting was Judge David Newell.

“Yet another perfectly good statute falls today, adding fuel to the claims that this court is often too quick to reject the considered will of our state’s Legislative Department,” read the filing from Yeary.

Advocates for open government in Texas expressed frustration.

The Open Meetings Act “is not as vague as some make it out to be,” said Kelly Shannon, executive director of the Freedom of Information Foundation of Texas. “If it’s public businesses, don’t be talking about it in secret.”

Several organizations representing government and school officials say the law is less than clear. The Texas Municipal League, the Texas City Attorneys Association and the Texas Association of Counties told the court that officials “desperately need guidance as to what they can and cannot do.”

The provision is one of the major pillars of the Open Meetings Law. Others remain intact, however, including requirements that boards, councils and commissions vote in public, post meeting agendas and give notice of upcoming meetings.

Ruling could impact investigation of HISD

The ruling could impact the Texas Education Agency’s investigation into allegations of Open Meetings Act violations by some members of the Houston ISD Board of Trustees.

TEA officials are investigating whether five trustees illegally coordinated ahead of an October 2018 vote to oust Interim Superintendent Grenita Lathan, who took over the position indefinitely in March 2018. The five trustees each spoke with Lathan’s chosen replacement, Abelardo Saavedra, prior to the vote. Some trustees have said they communicated with one other board member about a potential motion to remove Lathan.

Trustees ultimately voted 5-4 to replace Lathan with Saavedra, but they reversed the decision several days later following intense public backlash and Saavedra’s decision to back out of the job. Saavedra told the Houston Chronicle he quickly discovered HISD’s issues stemmed from the school board, as opposed to Lathan’s administration.

TEA opened a special accreditation investigation in January after receiving “multiple complaints” about violations of the Open Meetings Act. TEA leaders said they are investigating whether trustees were “deliberating district business prior to a regularly scheduled board meeting,” regarding Lathan’s removal.

While the notice alludes to misconduct described in the same statute that was overturned Wednesday, TEA officials did not indicate they are investigating HISD based on that statute. Rather, the TEA notice lists the entire chapter of open meetings laws, leaving it unclear whether the investigation rested entirely on the now-invalidated statute.

TEA officials declined to comment Wednesday “due to the open investigation.”

All five trustees who voted to oust Lathan have denied allegations of misconduct or declined to comment about the TEA investigation.

Case against Pasadena agency threatened

Six current or former members of the Pasadena Second Century Corp., an economic development agency, were indicted in January 2018 for intentionally dividing the board into two groups to meet separately with a contractor in order to avoid having a quorum that would trigger public meeting requirements.

The six members of the board allegedly met twice on Nov. 28, 2016, with engineering firm Civil Concepts about potential designs for a new civic center.

Board members Ernesto Paredes and Emilio Carmona, former board President Roy Mease and ex-board members Brad Hance, Jackie Welch and Jim Harris were all indicted on charges they violated the Texas Open Meetings Act.

“There can be no prosecution of anyone under that statute, so they have to decide how they want to proceed,” said Houston attorney Stanley Schneider, who is representing Mease. “All judges are bound to follow the ruling of the Court of Criminal Appeals, so we know what the results will be on any similar review of the issue. It also vindicates the conduct of Mr. Mease and the other people charged that they did nothing illegal.”

Jimmy Ardoin, a Houston attorney representing Carmona, echoed that, and said he’s not sure what the appetite would be for continuing to pursue the case, particularly given that the board members serve on a volunteer basis.

“I’m optimistic that the District Attorney’s office will decide to no longer pursue the case,” he said. “I don’t know if they want to try and test it under some new theory; I don’t know how they would. My guess is it’s going to be pretty difficult for them to do it.”

Staff writer Jacob Carpenter contributed reporting from Houston; Catherine Dominguez contributed from Montgomery County.