2019 Texas Legislative Recap

With the 86th Regular Legislative Session ending last month and Governor Greg Abbott’s veto period ending June 16, 2019, Texas officially has new laws pertaining to open government. Below is an explanation of four bills that amend Chapter 551 of the Texas Government Code, the Texas Open Meetings Act (“TOMA”), and two bills that amend Chapter 552 of the Texas Government Code HB, the Texas Public Information Act (“TPIA”).

One of the bills that got the most attention this session was SB 1640 which addressed the constitutional concerns of the TOMA raised in the Texas Court of Criminal Appeals case State v. Doyal, 2019 WL 944022, at 4 (Tex.Crim.App—2019). SB 1640 revises violations under the Open Meetings Act to be classified as criminal offenses and restores the prohibition against “walking quorums.” These specifications speak to Texas Court of Criminal Appeals Presiding Judge Sharon Keller’s concerns of vague language and lack of specificity in TOMA. This new law, effective immediately, clarifies that a member of a governmental body is in violation of TOMA if they knowingly engage in at least one communication among a series of communications that occur outside a meeting authorized by TOMA, and at the time of the communication, the member was aware that the series of communications would involve a quorum and would be classified as a deliberation once a quorum becomes involved. The bill also revises the definition of “deliberation” to include written exchanges between a quorum of a governmental body.

Secondly, SB 494 revises exceptions to the Open Meetings Act during times of crises. Under this bill, the time for governmental bodies to notify the public of an emergency meeting or emergency addition to the agenda of a meeting would decrease from two hours to at least one hour before the start of the meeting. The short-notice meeting must be for the purpose of discussing the emergency. The bill outlines certain emergency matters to include fire, flood, earthquake, hurricane, tornado, wind storm, power failure, epidemic and civil disturbance. In addition to meetings, the bill allows governmental bodies to suspend public information requirements of TIPA during an emergency for up to a week during a crisis. If the emergency persists after the initial week suspension period, the governmental body can extend the suspension period up to another week. In order for a governmental body to enact this suspension, it must provide public notice in a readily accessible place and be maintained through the suspension period. SB 494 becomes effective on September 1, 2019.

Thirdly, SB 239 relates to meetings for special purpose districts, requiring certain water districts to post meeting materials on its website. This new law which becomes effective on September 1, 2019, applies to the following districts with a population of 500 or more: water control improvement districts, fresh water supply district, municipal utility districts and water improvement districts. SB 239 provides that upon written request a district resident, not later than the third day before a public hearing on the adoption of an ad valorem tax rate, may request an audio recording of the hearing and the district shall provide the recording to the resident in electronic format not later than the fifth business day after the date of the hearing. The bill also adds an option for the board to designate a meeting place outside the district for meetings, if there is no suitable meeting place within the district, as long as it is not located more than 10 miles from the boundary of the district. The meeting place must be deemed beneficial to the district and not deprive the residents of the district a reasonable opportunity to attend meetings.
The last new law affecting TOMA is HB 2840, and it requires certain governmental bodies to allow citizens who wish to speak on an agenda item for an open meeting to do so before or during the item is considered. The bills allows the governmental body to adopt reasonable rules regarding citizens’ presentations, such as imposing a time limit. Citizens are able to criticize the governmental body in their address, as long as it is not otherwise prohibited by law. The governmental bodies effected include, but are not limited to, county commissioners courts, municipal governing bodies, special districts, school district boards, and county boards of education. HB 2840 becomes effective September 1, 2019.

Pertaining to the Texas Public Information Act, SB 943 addresses the lack of transparency controversy surrounding the outcome in Boeing Co. v. Paxton, 466 S.W.3d 831 (Tex. 2015). SB 943 expands public disclosure requirements in regards to government contracts. Contracting information maintained or sent between a governmental body and a contractor regarding information such as relating to the receipt or expenditure of public funds, solicitation or bid documents relating to a contract, and communications during the solicitation, evaluation, or negotiation of a contract require disclosure under the bill. In addition, contracts executed between a governmental body and a private entity that exceed $1 million is subject to additional recordkeeping and disclosure requirements. This bill overturns the Boeing decision and does not permit contractual information between public and private entities such as price, items or services subject to the contract, identity of parties or subcontractors, and overall or total pricing for the contactor to be classified as trade secrets, competitive advantage information, or proprietary information. SB 943 becomes effective September 1, 2019.

Lastly, SB 944 revises public information request processes for information stored on a privately owned device. The bill requires temporary custodians, defined as current or former officers or employees, to transfer public information to the governmental body to be preserved, or preserve the information on the privately owned device for a period of time specified by the governmental body. Temporary custodians do not have a personal or property right to this information. The bill also specifies that an officer of public information must make a reasonable effort to obtain information from a temporary custodian if the information had been requested from the governmental body. SB 944 becomes effective September 1, 2019.