Texas Court of Criminal Appeals overturns conspiracy provision enacted in 1973
The nine-member Court of Criminal Appeals today delivered a brutal blow to the public’s right to observe Texas governmental bodies deliberating in public before making decisions.
In the case State of Texas v. Doyal, the solidly Republican court concluded that Government Code Section 551.143 “is unconstitutionally vague on its face.” (More about the opinion later.)
That section of the Texas Open Meetings Act (TOMA) established a criminal offense “if a member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter….”
- State Senator Kirk Watson (D-Austin), wasted no time in reacting to the court decision that overturns nearly a half-century of precedent that ensured deliberations of governmental bodies in Texas are conducted in properly posted open meetings.
“I’m still reviewing the opinion, but I think the Legislature needs to address this issue this session,” Watson said in an email.
“This is a matter of high importance. Members of the public need to be able to trust that decisions are being made in the open, not behind closed doors.”
As reported by The Austin Bulldog two days ago, Watson and others are already carrying a heavy load of bills that seek to repair damage caused by several other court decisions that block access to public records. Today’s decision comes as an unwelcome additional burden for a session that’s already 51 days old and ends May 27, 2019.
Legislative fix will have support but time is short
- Travis County Attorney David Escamilla, who has investigated violations of Section 551.143 in the past (more about that later) said he’s disappointed by today’s court decision. He supports the need for a legislative fix such as Watson intends to introduce this legislative session. But he noted that legislation will have be more specific about the prohibited conduct.
“My concern is, can the legislation be specific and all-inclusive? Lawyers are paid to get around these statutes. The more specific we have to be, the greater the opportunity to find ways to circumvent the statute,” Escamilla said.
Former Travis County Judge Bill Aleshire, a longtime advocate for open government, said, “Without the ‘walking quorum’ provision of TOMA, elected officials can conduct secret discussions and come to secret agreements, leaving the public meeting just to formally vote for the conclusion they reached in secret.
“If this stands and is not corrected by the Legislature, what the public sees in open meetings will be nothing more than a rehearsed Kabuki theatre. No longer will the public see the real debate and how the elected officials came to a meeting of the minds.”
(Disclosure: Aleshire represented The Austin Bulldog in winning two public information lawsuits against the City of Austin in 2011.)
The Doyal decision
- Presiding Judge Sharon Keller, who in 1994 became the first woman elected to the court, wrote the 23-page opinion that was joined by five other judges.
The case involves the indictment of Montgomery County Judge Craig Doyal for violating TOMA Section 551.143 … “by meeting in a number less than a quorum for the purpose of secret deliberations … to-wit: by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of a potential structure of a November 2015 County Road Bond.”
Doyal filed a motion to dismiss claiming that Section 551.143 was overbroad in violation of the First Amendment and was unconstitutionally vague. The trial court granted the motion and dismissed the indictment.
The State appealed. The court of appeals reversed the trial court’s order dismissing the indictment and remanded the case for further proceedings.
Keller wrote in today’s majority opinion, “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. But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.
“…we conclude that section 551.143 is unconstitutionally vague on its face.”
- Judge Michelle Slaughter wrote a separate 30-page concurring opinion, which states, “I agree with the Court’s decision that the indictment against Craig Doyal, Appellee, must be dismissed because Government Code Section 551.143 is unconstitutional. But I disagree with the Court’s reasoning to reach that decision. I do not believe that the statute is impermissibly vague. Rather, I believe that the statute ‘abridg[es] the freedom of speech’ in violation of the First Amendment of the United States Constitution.”
Judge David Newell dissented without filing a separate opinion.
- Judge Kevin Yeary filed a 20-page dissenting opinion, stating, “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.”
Austin City Council violation
The Austin Bulldog’s investigative report of January 25, 2011, broke the story of the City Council’s institutionalized practice of violating the very provision of the TOMA that today’s court decision overturned.
Travis County Attorney Escamilla announced that same day he was launching an inquiry. His investigation lasted 21 months and ended with voluminous proof of communications among the mayor and council members by every means possible, the sum of which violated Section 551.143.
Violations under Section 551.143 are punishable by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.
- To avoid being prosecuted and if convicted being fined and serving jail time, Mayor Lee Leffingwell and the council members serving when the story broke all signed deferred prosecution agreements that acknowledged the validity of open government laws and affirmed the specific violations found by the investigation that constituted probable cause.
The Austin Bulldog reported the results of the investigation October 24, 2012, with links to each deferred prosecution agreement, as well as three dozen earlier stories related to the investigation.
Who wrote the statute?
In 1973 he was a lobbyist for Common Cause, a nonprofit, nonpartisan citizen’s lobbying organization promoting open, honest and accountable government.
“I actually wrote that section addressing the conspiracy to circumvent the Act,” Wood told The Austin Bulldog. “There was an epidemic of this in 1971 1972, and 1973. The Open Meetings Act passed in 1967 but everyone was getting around it.
“The Dallas mayor was meeting with council members two at a time, two-on-one,” he said. “They never met in a quorum, so I wrote the section and stuck it in there…and it has survived for nearly 40 years,” Wood said in 2012.
“The whole purpose of the Open Meetings Act is to have deliberations in the open,” he said. “These private meetings defeat the whole process.”
Of the City Council’s practice exposed by The Austin Bulldog, Wood said, “It’s a classic violation of that section. I practice criminal law and I don’t know how to defend it.”
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Texas Court of Criminal Appeals Opinion in The State of Texas v. Craig Doyal, Case No. PD-0254-18, February 27, 2019 (23 pages)
Trust indicators: Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page.
Email [email protected].
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