AUSTIN – The 2021 session of Texas Legislature kicks off today, and when lawmakers meet at the capitol, it must remain open to the public, according to Attorney General Ken Paxton.
Due to COVID-19 and civil unrest, the capitol and its grounds have been closed.
Last month, state Rep. Briscoe Cain requested an opinion from the attorney general regarding public access to the Texas Capitol during legislative hearings.
Briscoe also asked if the legislature or any other elected official has the power to close the capitol to the public.
On Jan. 11, Paxton issued an opinion stating Article III, section 16 of the Texas Constitution requires that sessions of each House be open, except when the Senate is in executive session.
“Thus, when the Legislature meets for session in the Capitol, it must be open and accessible to the public,” the opinion states.
Paxton found the First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances.
“However, 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 opinion states.
Perhaps because more and more businesses and entities are now meeting virtually, Briscoe also inquired on whether voting and debate must occur physically and in-person.
Paxton found that the constitution provides that each house may determine the rules of its own proceedings; however, the House and Senate must determine procedures, consistent with the Texas and U.S. Constitutions, for providing public access, conducting public testimony, debate, and voting on legislation during the legislative session.
“The rules set by the House and Senate have historically conformed to constitutional restraints requiring voting and debate to occur in person,” the opinion states.
Article III, section 10 establishes a quorum of two-thirds of each House to do business, and it ties quorum to “attendance.” A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum, the opinion states.