Legislature Re-Prohibits “Walking Quorums” Under the Texas Open Meetings Act

The Texas Open Meetings Act (TOMA) exists “to safeguard the public’s interest in knowing the workings of its governmental bodies,” and “to encourage good government by ending, to the extent possible, closed-door sessions in which deals are cut without public scrutiny.”

TOMA requires, with some exceptions, that “[e]very regular, special, or called meeting of a governmental body shall be open to the public,” where a “meeting” includes “a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the body has supervision or control is discussed or considered,” and a “deliberation” is defined as “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” Tex. Gov’t Code §§ 551.002; 551.001(2), (4).

Or, as the Texas Attorney General has succinctly stated: “a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or public policy within the jurisdiction of the governmental body.” Tex. Att’y Gen. Op. No. KP-0254 (2019).

But what if members of a governmental body meet one-on-one, absent a quorum, to discuss public business, and then share that discussion, one-on-one, with other members, ultimately resulting in a “quorum” of members participating the “same” private discussion? Historically, TOMA was violated when a governmental body “knowingly conspire[d] to circumvent” the Act’s requirements by meeting in secret to deliberate in numbers less than a quorum. See Tex. Gov’t Code § 551.143 (per-2019 amendments). “Serial meetings,” or “walking quorums,” occur when members of a governmental body gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. Tex. Att’y Gen. Op. GA-0326 (2005). Thus, TOMA was violated when “a quorum or more of a body . . . attempts to avoid [TOMA’s] purposes by deliberately meeting in numbers physically less than a quorum in closed sessions to discuss public business and then ratifying its actions in a physical gathering of the quorum in a subsequent sham public meeting.”

But earlier this year the Texas Court of Criminal Appeals struck down the provision of TOMA prohibiting “walking quorums” as unconstitutionally vague. State v. Doyal, No. PF-0254-18, 2019 WL 944022 (Tex. Crim. App. Feb. 27, 2019). Within weeks, however, the Texas Legislature passed Senate Bill 1640, providing specificity, precision, and clarity to Tex. Gov’t Code § 551.143, to address the Court of Criminal Appeals vagueness concerns. Neither the Court of Criminal Appeals, nor any other Texas court, has yet to rule on the constitutionality of the new and improved prohibition.

Any interested person “may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of [TOMA] by members of a governmental body.” Tex. Gov’t Code § 551.142. Those harmed by a violation of TOMA may have a judicial remedy, as any “action taken by a governmental body in violation of [TOMA] is voidable.”