2019-141 Impact of Senate Bill 1640Date: July 5, 2019 Report No. 2019-141
INFORMAL STAFF REPORT TO MAYOR AND CITY COUNCIL SUBJECT: Information on the impact of Senate Bill 1640. BACKGROUND: Senate Bill 1640 was introduced in the 86th Session of the Texas Legislature, passed unanimously in both chambers, and was signed by the governor on June 10, 2019, taking effect immediately. The bill addresses the Texas Court of Criminal Appeals opinion in State of Texas v. Doyal, which
found the “criminal conspiracy” provision in the Texas Open Meetings Act (TOMA) unconstitutionally vague. §551.002(2) previously provided that: “‘[d]eliberation’ means a verbal exchange during a meeting between a quorum of a governmental body and another person, concerning an issue within the
jurisdiction of the governmental body or any public business.” §551.143(a) previously read: “(a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in
numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” Senate Bill 1640 amended §551.002(2) to include written exchanges and eliminated “during a meeting” and “or any public business” so that it now reads: “‘[d]eliberation’ means a verbal or
written exchange between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body.” §551.143(a) was also amended to provide greater specificity: “(a) A member of a governmental body commits an offense if the member:
(1) knowingly engages in at least one communication among a series of communications that each occur outside of a meeting authorized by this chapter and that concern an issue within the jurisdiction of the governmental body in which the members engaging in the individual communications constitute fewer than a quorum of members but the members engaging in the series of communications constitute a quorum of members;
and (2) knew at the time the member engaged in the communication that the series of communications: (A) involved or would involve a quorum; and (B) would constitute a deliberation once a quorum of members engaged in the series
of communications.
Date: July 5, 2019 Report No. 2019-141
LEGAL: In State of Texas v. Doyal1, Doyal was charged with violating Texas Government Code §551.143,
which provides: “[a] member or a group of members of a governmental body commits an offense
if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” This section has commonly been referred to as the Walking Quorum provision.
The Court held that the statute was unconstitutionally vague on its face. In evaluating the statutory language, the Court noted that the chapter defines “meeting” to require a quorum, but then prohibits meeting in less than a quorum in §551.143, which would make the statute “internally inconsistent.” Additionally, the Court found that the use of the word “circumvent” is unclear, and therefore a person could not “know” that he was violating the law.
In short, the Court found that §551.143 attempts to make criminal any “actions that are like a violation of TOMA without actually being a violation of TOMA.” The Court concludes that while the Legislature does have the authority to prevent what has commonly been known as a Walking Quorum, the language in §551.143 lacks sufficient specificity for the Court to reasonably narrow
it to a construction that would be constitutional. DISCUSSION: Senate Bill 1640 attempts to clarify and make more specific the deliberation and offense provision under TOMA.
First, “deliberation” is defined to apply to a member or group of members discussing an issue, verbally or in writing, concerning an issue within the jurisdiction of the governing body. Second, the bill strikes the “knowingly conspires…” provision referenced earlier and replaces it
with specific provisions stating that an offense is committed when:
• One member engages in at least one communication in a series of communications outside of an authorized meeting;
• That message concerns an issue within the jurisdiction of the governmental body
• The members of the individual communications constitute less than a quorum of members, but the members engaging in a series of communications constitute a quorum of members; and
• The member knew the series of communications involved or would involve a quorum and
constitute a deliberation. CONCLUSION: The impact of this bill is that for an offense to be committed by a member of a governmental body,
the member would have to know that the series of verbal or written communications involved or
would involve a quorum, and when a quorum is reached, would constitute a deliberation.
1 State v. Doyal, --- S.W.3d ---, 2019 WL 944022 (Tex. Crim. App. 2019).
Date: July 5, 2019 Report No. 2019-141
The previous requirement did not speak to written communication and provided that an offense would be committed even if the member did not know. Additionally, an offense would only be committed if the deliberation concerned issues within the jurisdiction of the body (as opposed to
any public business item). The bill, in effect, restores the “walking quorum” provision in TOMA with a more specific, precise, and clear provision to prevent members of a governmental body from skirting requirements of the Open Meetings Act by meeting in a series of small, private gatherings to avoid
a quorum. ATTACHMENT(S): SB 1640 as Enrolled
STAFF CONTACT: Ryan Adams Deputy Director of Public Affairs/IGR (940) 349-8565
Ryan.Adams@cityofdenton.com
REQUESTOR: Council Member Armintor PARTICIPATING DEPARTMENTS: Public Affairs, City Attorney’s Office
STAFF TIME TO COMPLETE REPORT: Public Affairs: 2 hours, Legal: 3 hours
S.B.ANo.A1640
AN ACT
relating to the open meetings law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONA1.AASection 551.001(2), Government Code, is amended
to read as follows:
(2)AA"Deliberation" means a verbal or written exchange
[during a meeting] between a quorum of a governmental body, or
between a quorum of a governmental body and another person,
concerning an issue within the jurisdiction of the governmental
body [or any public business].
SECTIONA2.AAThe heading to Section 551.143, Government Code,
is amended to read as follows:
Sec.A551.143.AAPROHIBITED SERIES OF COMMUNICATIONS
[CONSPIRACY TO CIRCUMVENT CHAPTER]; OFFENSE; PENALTY.
SECTIONA3.AASection 551.143(a), Government Code, is amended
to read as follows:
(a)AAA member [or group of members] of a governmental body
commits an offense if the member:
(1)AA[or group of members] knowingly engages in at
least one communication among a series of communications that each
occur outside of a meeting authorized by this chapter and that
concern an issue within the jurisdiction of the governmental body
in which the members engaging in the individual communications
constitute fewer than a quorum of members but the members engaging
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in the series of communications constitute a quorum of members; and
(2)AAknew at the time the member engaged in the
communication that the series of communications:
(A)AAinvolved or would involve a quorum; and
(B)AAwould constitute a deliberation once a quorum
of members engaged in the series of communications [conspires to
circumvent this chapter by meeting in numbers less than a quorum for
the purpose of secret deliberations in violation of this chapter].
SECTIONA4.AASection 551.143, Government Code, as amended by
this Act, applies only to an offense committed on or after the
effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTIONA5.AAThis Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.
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S.B.ANo.A1640
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______________________________AAAA______________________________
President of the SenateAAAAAAAAAAAAASpeaker of the House
I hereby certify that S.B.ANo.A1640 passed the Senate on
AprilA9,A2019, by the following vote: YeasA30, NaysA1; and that
the Senate concurred in House amendment on MayA23,A2019, by the
following vote: YeasA31, NaysA0.
______________________________
AAAASecretary of the Senate
I hereby certify that S.B.ANo.A1640 passed the House, with
amendment, on MayA17,A2019, by the following vote: YeasA145,
NaysA1, one present not voting.
______________________________
AAAAChief Clerk of the House
Approved:
______________________________
AAAAAAAAAAAAADate
______________________________
AAAAAAAAAAAGovernor
S.B.ANo.A1640
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