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Texas Criminal Court of Appeals Strikes Down Quorum Provision in Texas Open Meetings Act

Mark Bauer, Texas Lawyer

February 27, 2019 at 11:55 AM

The Texas Criminal Court of Appeals on Wednesday struck down a quorum provision of the Texas Open Meetings Act as “unconstitutionally vague.”

Writing for the majority, Judge Sharon Keller wrote that the statute lacked any specificity. The open records law makes it a crime for government officials to circumvent public access and information about government meetings by knowingly conducting meetings that fail to meet a quorum.

“We conclude that the statute before us is vague in much the same way as the statutes in Johnson and Dimaya. Like those statutes, the statute before us is hopelessly indeterminate by being too abstract. As we shall see, the statute has little in the way of limiting language and notably lacks language to clarify its scope,” Judge Keller wrote for the majority.

The decision stems from a case involving Montgomery County judge Craig Doyal, who was indicted for circumventing the Texas Open Meetings Act after he met with a political consultant and a political action committee without a quorum to discuss a road bond.

“We have a duty to employ a reasonable narrowing construction to avoid a constitutional violation, but we can employ such a construction only if the statute is readily susceptible to one,” Judge Keller wrote.

“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act. But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views,” she said. “This we decline to do.”

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