Texans who thought they had a legal right to at least observe while elected officials discussed the public’s business were, sadly, mistaken, the Texas Court of Criminal Appeals recently ruled.
In a 7-2 decision issued earlier this month, the appeals court gutted a provision in the Texas Open Meetings Act making it a misdemeanor offense for elected officials to knowingly conspire to circumvent the state’s open meetings law by gathering in numbers less than a quorum for the purpose of secret deliberations.
The prohibition against secret deliberations is, of course, among the pillars of all open government laws. Without it, the rest is mere stage direction, a set of rules about how to orchestrate political theater.
What will happen without a prohibition against secret deliberations is that elected officials will caucus in small groups out of public view to cut deals and make decisions on the public’s behalf, more often than not, about how to spend the public’s money.
Then they’ll convene in a public meeting to rubber-stamp their predetermined decisions.
That’s not speculation about what might happen if the appeals court decision stands, but a statement of fact about what routinely happened before the Texas Open Meetings Act became law, and has happened at times since despite and in violation of the law.
Without a prohibition against secret deliberations, Texas residents, voters and taxpayers will have no genuine right to even observe their elected government at work, much less to influence the decision-making. That right will be exclusive to the elected elite and whatever insiders they invite into their secret circles.
The appeals court’s main argument was the prohibition against secret deliberations was too vague and abstract.
“The statute before us is hopelessly indeterminate by being too abstract,” Presiding Judge Sharon Keller wrote for the court’s majority.
The immediate question is compared to what? Work-a-day Texans might find the state’s property tax code a bit vague and abstract, but most manage to pay their taxes despite that, just as most elected officials routinely manage to avoid violating the prohibition against secret deliberations.
All that could become academic, though, because four lawmakers representing both parties have filed bills in the Texas House and Senate that would clear things up nicely.
Rep. Steve Toth, a Republican from The Woodlands, filed HB 2965 and HB 3607, which would clarify the prohibition against secret deliberations.
Rep. Dade Phelan, a Republican representing Jefferson and Chambers counties, has offered a similar remedy to the appeals court’s blow against government transparency in HB 3402.
Meanwhile, Sens. Paul Bettencourt, a Houston Republican, and Kirk Watson, an Austin Democrat, have filed SB 1640 seeking to reinstate the prohibition against secret deliberations.
All Texas lawmakers should support these bills, or whatever combined legislation come from them, and Texas voters and taxpayers should encourage their local representatives in that direction.
• Michael A. Smith