Texas AG: Capitol must remain accessible to public during legislative session

Whether legislators can vote and debate remotely still a question.

Due to COVID-19 and civil unrest, the Capitol and Capitol grounds were closed to the public for most of 2020. With the 87th Regular Session commencing on January 12, 2021, Democrats and Republicans from both chambers raised questions about the accessibility of the legislative process and the possibility of remote voting and debate.

On December 14, 2020, State Representative Briscoe Cain (R-Deer Park) asked the attorney general to weigh in regarding public access to the Capitol during session and the authority for members of the Legislature to debate or vote on legislation from a location other than their respective chambers.

Just one day before regular session commenced, the attorney general issued his opinion, concluding that:

• Because the Texas Constitution requires that legislative sessions be open, the State Preservation Board (which is responsible for the maintenance, operation, and improvements for the Capitol complex), cannot close the Capitol when the Legislature is meeting in session.
• The governor also cannot close the Capitol during session, because the constitutional mandate that the legislative session be “open” supersedes any statutory emergency authority that may otherwise apply to the Capitol.
• When the Legislature meets for session in the Capitol, it must be “accessible” to the public, except when the Senate is in executive session.
• Pursuant to each chamber’s constitutional authority to determine the rules of its own proceedings, the House and Senate may determine procedures for providing public access and conducting public testimony during the legislative session in accordance with the Texas Constitution.
• To the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place, and manner of access.
• The Legislature must provide some method by which the public can address legislators in some format.
• With respect to remote voting, the attorney general affirmed that the House and Senate may determine when and how to conduct their meetings, but implied that remote voting might be inconsistent with the Texas and U.S. Constitutions. The Attorney General noted that “The rules set by the House and Senate have historically conformed to constitutional restraints [by] requiring voting and debate to occur in person.”

The attorney general’s full opinion can be read here.