AUSTIN – Texas Attorney General Ken Paxton, in a recent response to an inquiry from Education Agency Commissioner Mike Morath regarding the state's Open Meetings Act, said a governmental body is in violation of the Texas Open Meetings Act (TOMA) if it “deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the (TOMA) through multiple communications each involving fewer than a quorum.”
Paxton's May 24 response was in regard to Morath's April 24 letter to Paxton asking “whether civil remedies continue to exist” for violations of the TOMA. Morath said in the letter “it has been a longstanding principle of Texas law that when members of a governmental body meet in numbers less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, their actions are subject to civil consequences as provided by Texas law.”
Morath wrote that it is a criminal offense for “a member or a group of members of the governmental body to knowingly conspire to circumvent the (TOMA) by meeting in numbers of less than a quorum for the purpose of secret deliberations,” noting that the Court of Criminal Appeals recently issued a ruling that “the provision criminalizing the conspiracy to circumvent the (TOMA) is unconstitutionally vague.”
Paxton responded that “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.”
Texas Attorney General Ken Paxton
Paxton's opinion assured Morath that “civil remedies of the act remain” though the Court of Criminal Appeals struck down the criminal penalty for a walking quorum.
“Action taken by a governmental body in violation of the act is voidable,” Paxton wrote. “In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the act by members of a governmental body.”
Paxton said the Texas Education Agency could take appropriate civil action authorized by a subsection of the Education Code if the agency’s investigation of a school district board determined that members “violated their duty to comply with the (open meeting) act.”