Is a “walking quorum” OK now?

I expect you’ve heard by now that the Texas Court of Criminal Appeals has struck down an important part of the Texas Open Meetings Act (TOMA).  The court held that one section of the Act was unconstitutionally vague.  Thus for now, no one can be prosecuted for knowingly conspiring to circumvent the law by meeting in numbers less than a quorum in order to secretly talk about public business. 

This is a big deal, but let’s put it in perspective. First, this is just one section of the TOMA. The rest of the law remains intact. 

Second, the section shot down by the court is one of the few parts of TOMA that applies criminal penalties.  Criminal penalties can only be imposed when the law gives fair notice to people of what kind of conduct would amount to a violation of the law.  The law has to be reasonably clear.  That’s why those speed limit signs on our highways always have a specific number.  For three years, the State of Montana’s speed limit on major highways omitted a number and only required driving at a “reasonable and prudent” speed.  Then, in 1998, the Montana Supreme Court rejected this as unconstitutionally vague.  Your definition of “reasonable and prudent” may be way different than mine. I can attest to this every time I drive I-35.  In the TOMA case, we see the same principle at work. 

Third, it’s still improper for school board members, or any other government officials, to knowingly seek to circumvent TOMA.  Public business is supposed to be discussed at a properly posted meeting open to the public.  The fact that criminal prosecution is no longer available does not change that.

Fourth, keep an eye on the legislature.  There are already several bills introduced that would restore criminal penalties.  Anything the legislature does on this will be compared to the standards set out in the court’s opinion regarding clarity vs. vagueness. So keep an eye on HB 2965, HB 3402, HB 3697, HB 3752, SB 494 and SB 1640. 

Finally, we’ve always known that this part of the law was vague.  We just didn’t know that it would be deemed so vague as to be unconstitutional. School board members have been worried about simple email communication and text messages that might get passed along from Board Member 1 to Board Member 2 and then to Board Member 3.  Is this now a “conspiracy”?  Those anxieties will ease a bit with this ruling from our state’s highest criminal court.  Nevertheless, TOMA is intact and is designed to guarantee transparency in the transaction of official business. We would all be wise to keep that in mind.

The case is State of Texas v. Doyal, decided by the Texas Court of Criminal Appeals on February 27, 2019. 


Tomorrow: Toolbox Tuesday!!