Attorney General Defends Constitutionality Of Texas Open Meetings Law

Texas Attorney General Greg Abbott yesterday filed a brief defending the constitutionality of the Texas Open Meetings Act after several Texas cities and local officials challenged the law’s constitutionality in federal court.

The law says when a quorum of officials on a local government board, such as a city council or school board, wants to meet and discuss public business, they must post public notice first and hold their meetings in open sessions that members of the public are free to attend.

Although the Texas Open Meetings Act has exceptions that allow closed sessions in special circumstances, such as when officials need to discuss confidential personnel matters, it is otherwise a criminal offense for a quorum of governmental officials to discuss official business outside the setting of an open meeting.

The legal challenge to the open meetings law began with a 2005 indictment of two Alpine city council members, Avinash Rangra and Katie Elms-Lawrence, for allegedly holding an illegal meeting by using e-mails to discuss city business with two other elected officials.

The indictments were ultimately dropped, but Rangra and Elms-Lawrence filed suit alleging the open meetings act was a violation of their First Amendment rights under the U.S. Constitution. The Texas Municipal League filed “friend of the court” documents in support of Rangra and Elms-Lawrence.

A federal judge in Pecos upheld the Texas Open Meetings Act, saying the act did not restrict speech, but only required it to be made in the open rather than “behind closed doors.”

Rangra and Elms-Lawrence appealed; however, the Fifth Circuit U.S. Court of Appeals in New Orleans ultimately upheld the open meetings law.

Last December, the cities of Alpine, Big Lake, Pflugerville and Rockport filed another lawsuit challenging the law on First Amendment grounds.

In yesterday’s legal filing, Abbott said the open meetings act “promotes the fundamental principle of democratic government by requiring that members of governmental boards and commissions conduct the taxpayers’ business in a manner that is open and accessible to the public,” according to a statement from the AG’s office.

Solicitor General James Ho, who authored the brief asking the court to dismiss the earlier City of Alpine complaint, is serving as the state’s lead counsel in the current federal case.

“The First Amendment protects citizens against government oppression – not government against citizen oversight,” the state’s brief said. “Open government laws are based on the same premise: that public officials work for the people.”

The legal filing also noted that openness in government “is a First Amendment virtue, not a First Amendment violation.

“The fundamental purpose of the First Amendment is to enable and empower people to engage in free, robust discourse about their government, its officials and the policies they adopt on their behalf. Open meetings laws thus further, rather than frustrate, fundamental First Amendment values, by educating the public about the conduct and content of public business,” the AG’s brief said. “Indeed, courts have frequently invoked the First Amendment itself to require public access to certain government proceedings.”

The brief also noted that every state has enacted an open meetings law and every court to have confronted a First Amendment challenge to such laws has rejected the challenge and upheld the law, including the same federal district court that will hear the City of Alpine case.

In addition, the U.S. Supreme Court has repeatedly upheld disclosure requirements against First Amendment attack, including two rulings issued just this year.

The state also noted that that the Texas Open Meetings Act “is about protecting not free speech, but secret speech.”

“TOMA does not prohibit anyone from speaking. It merely provides that, when a quorum of public officials discusses public business under their supervision or control, they must do so openly, and not in secret,” the state’s filing said.