On February 27, the Texas Court of Criminal Appeals (the highest court in Texas for criminal matters), issued a ruling invalidating Section 551.143 of the Texas Open Meetings Act.  That section had created a misdemeanor offence if members of the governing body “knowingly conspired to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” 

Section 551.143 was designed to prevent “walking quorums.”  Walking quorums happen when members of a board would meet in small groups outside of the official meeting and discuss public business. 

The Court reasoned the language used in statute was unconstitutionally vague because a reasonable person should be able to know what conduct was prohibited in order to avoid it.  Specifically, the Court explained, “[t]o pass constitutional muster, a law that imposes criminal liability must be sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement.”  To emphasize this point, the Court created a few scenarios that would meet the legal requirements to punish someone for a violation of the law, but were not a violation of the spirit of the law.  Because they could determine scenarios which fell outside of their requirements, the Court determined the statute was unconstitutional. 

This ruling does not mean that a quorum is no longer necessary to conduct public business, merely that a violation is not a criminal offense.  The legislature has already filed bills to address this ruling and reinstate a criminal offense, but with more definite language.  In the House, HB2965, HB 3697, and HB 3402 have been filed.  In the Senate, SB 1640 has been filed as a companion to HB 3402.  TCSA is monitoring these bills to see if they pass.  While we wait to see what the legislature passes, best practices would be to ensure you are still maintaining quorums when discussing public business.