Government Transparency Suffers a Major Setback Thanks to the Texas Court of Criminal Appeals

The windows of Texas government have been tinted even darker thanks to a landmark ruling Wednesday by the Texas Court of Criminal Appeals. The nine-member panel, which is the state’s highest authority on criminal matters and is composed entirely of Republicans, struck down portions of the Open Meetings Act that imposed criminal penalties on elected officials who discuss public business in private. Taken in context with other court rulings in recent years, the action may signal darker days for transparency advocates and Texans who’d like to know what their government is up to.

At issue was the case of former Montgomery County Judge Craig Doyal, who was indicted in 2016 for allegedly conspiring with other elected officials and a consultant to put a $280 million road bond package on the ballot. Doyal and others faced six months in jail and a maximum fine of $500, penalties provided for in the Open Meetings Act. Doyal filed to have the misdemeanor charges dismissed, a request initially granted by a district court judge in 2017 but later reversed by an appeals court. This week, the new ruling put an end to the case, saving Doyal and co. from jail and blowing a huge hole in state transparency laws.

The Texas Open Meetings Act was passed in 1973 as part of a slate of transparency legislation that included campaign finance laws, ethics and public information rules. It was created in response to a major financial scandal that implicated the governor, lieutenant governor and nearly two dozen elected officials. Until Wednesday, the Open Meetings Act allowed for members of a government body who secretly meet about public business without a quorum (generally a majority) to be charged with a misdemeanor. The reasoning behind the law is that if officials want to run the government, they need to do so out in the open and with a quorum. It applies to city councils and county commissioners courts, school boards and legislative bodies, among others.

“[The ruling] does deprive law enforcement officials of an important tool in ensuring that the public’s business is not conducted secretly.”

Though charges for violating the rule are uncommon, they aren’t unheard of. In Harris County, a grand jury agreed to indict six former members of the Pasadena economic development board who allegedly met privately with a contractor in 2016. In 2004, two members of the Alpine City Council were indicted after they allegedly tried to skirt the law by deliberating on public business through email. It isn’t clear whether anyone has ever been convicted or faced jail time under the law.

Doyal and the others were accused specifically of trying to circumvent the law through what’s known as a “walking quorum” — that is, privately meeting with fellow commissioners in numbers that don’t constitute a quorum in advance of a public vote. In its majority opinion, the Texas Court of Criminal Appeals found that the definition of a walking quorum is too vague to be punishable as a crime. A single member of the court, Kevin Yeary, disagreed with the other jurists. “Yet another perfectly good statute falls today,” he wrote. “Because the Court strikes down a statute that is plainly salvageable, I respectfully dissent.”

“[The ruling] does deprive law enforcement officials of an important tool in ensuring that the public’s business is not conducted secretly,” said Jim Hemphill, an Austin attorney who advises the Observer and other media clients on libel matters. Both he and Kelley Shannon, director of  the Freedom of Information Foundation of Texas, noted that the ruling doesn’t give a green light for walking quorums — but it does remove the criminal penalty for forming one.

Governor Greg Abbott sent a letter Thursday to appointees and state agencies urging them to comply with the “spirit” of the open meetings law, despite the court’s decision. “Texas has long been, and will continue to be, a leader in governmental transparency,” he wrote. When Abbott was the state’s attorney general, transparency advocates blasted him for allowing facilities housing hazardous chemicals to hide their inventories from the public.

Texas courts have been responsible for the worst of the state’s transparency rollbacks in recent years. In 2015, the state Supreme Court ruled in Boeing Co. v. Paxton that records could be kept secret if their release would put the government or businesses at a competitive disadvantage. The ruling has been cited thousands of times, including to keep the public in the dark about a $265-million deal to build a new power plant in Denton; to withhold a food service contract at Kemp ISD; and to hide the identities of candidates who applied for the Austin city manager job in 2017. The Texas Supreme Court set another damaging precedent in 2015 when it allowed the Greater Houston Partnership, a powerful business consortium that oversees the city’s economic development activities, to withhold files on what it does with taxpayer money.

In the Doyal case, the high court kicked the statute back to the Legislature, writing that the onus is on lawmakers to clarify the rule. Still, it’s anyone’s guess as to whether legislators will Windex the glass of government transparency this session, or how they can do it. In March 2018, a Fort Bend County Commissioner asked an interim House committee to consider waiving other rules laid out in the Open Meetings Act in times of emergency. The commissioner told lawmakers he was hesitant to discuss business with other officials outside of public meetings, lest he be punished for creating a walking quorum.

Now it appears that the commissioner, along with other elected officials in Texas, won’t have to worry quite so much about that.