BY Emma Platoff
A day after the state’s highest criminal court struck down a key provision in one of Texas’ most important government transparency laws, Gov. Greg Abbott is calling on his appointees and agency heads to “continue to follow the spirit of the law.”
The Texas Court of Criminal Appeals on Wednesday ruled that a slice of the Texas Open Meetings Act that makes it a crime for public officials to deliberate privately in small groups was “unconstitutionally vague.” That provision, which carried a potential fine and months-long stint in jail, had been in place for more than two decades.
“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,” Presiding Judge Sharon Keller wrote for the majority. “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.”
Now, amid concern from open government advocates and chatter about a possible legislative fix to the ruling, Abbott has made it clear that he expects all agency heads and appointees to continue acting transparently in their work.
“Texans place significant trust in their elected and appointed officials. With this trust comes the expectation that officials will conduct public business responsibly and in accordance with the law,” Abbott wrote in a letter Thursday. “You should not waver in your commitment to providing transparency in the work you perform for Texans at your respective governmental entities.”
The case that led to the decision came up years ago, when Montgomery County Judge Craig Doyal was indicted for allegedly conducting “secret deliberations” — without a quorum of the commissioners court present — about a November 2015 county road bond. Doyal claimed the statute he had been charged under was unconstitutional, and years later won a major victory from the nine-member, all-Republican court.
The rest of the sprawling law — which provides basic restrictions on announcing and convening meetings of public officials, from statewide boards to local and county officials — remains in place. But open government advocates cautioned that the criminal penalty, now unenforceable, had provided a strong disincentive for public officials to try to obscure government business from constituents and the media.
“The real world consequences are the return of backroom deals,” said Joe Larsen, an open government lawyer who defended the law in this case. “Now, all they have to do — and we’ve seen it many times — is have one less than a quorum in a room.”
Abbott, who in his long tenure as Texas attorney general won mostly favorable marks from open government advocates, has weighed in on this exact issue in the past. In 2005, Abbott issued a non-binding attorney general opinion that the provision at issue “is quite definite on its face,” “provides adequate notice and does not allow for arbitrary enforcement” — and thus, “this section is not unconstitutionally vague.”