Texas High Court Strikes Down Open Meetings Act Provision; New Bill Proposed

In a split decision, on March 1, 2019, the Texas Court of Criminal Appeals invalidated a significant provision of Texas's Open Meetings Act as unconstitutionally vague. State of Texas v. Doyal, No. PD- 0254-18 (Tex. Crim. App. 2019).

The provision at issue makes it a crime if any member of a governmental body "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." Tex. Gov't Code § 551.143(a). The County Judge of Montgomery County, Texas had been indicted under that provision for allegedly conducting secret deliberations about a road bond. He moved to dismiss the indictment on grounds that the statute was unconstitutionally vague.

In its opinion, the Court of Criminal Appeals first recognized that elected officials' speech is protected by the First Amendment just as robustly as that of citizens in general. Id. at *6. Finding that Section 551.143(a) implicates the First Amendment and recognizing that "uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked," the court analyzed whether Section 551.143(a) is sufficiently definite to avoid chilling protected expression. Id. at *12 (citing Grayned v. Rockford, 408 U.S. 104, 108-09 (1972)).

The court noted that Section 551.143(a) does not criminalize a conspiracy to violate a law; rather, it criminalizes a conspiracy to circumvent a law. "[T]he 'circumvent' language necessarily requires something other than a literal violation of some other provision of TOMA." Id. at *16. But, said the court, it is unclear what else would be included. "It requires a person to envision actions that are like a violation of TOMA without actually being a violation of TOMA and refrain from engaging in them." Id. As such, the court struck down Section...