In a decision that upends decades of open meetings law, the Texas Court of Criminal Appeals held that the provision of the Texas Open Meetings Act prohibiting a government official from circumventing the Act through a “walking quorum” or “daisy chain” discussion outside of a public meeting is unconstitutionally vague.

The Texas Open Meetings Act requires every meeting of a governmental body to be open to the public except as authorized. Tex. Gov’t Code § 551.002.  A “meeting” is defined as any deliberation or gathering at which a quorum of the governmental body is present and public business or policy over which the governmental body has supervision or control is discussed or decided.  Id. § 551.001(4).  All public officials must watch a mandatory video or attend other training under the Act.  Id. § 551.005.  A public official commits a crime if they engage in an unauthorized closed meeting.  Id. § 551.144.

The Act also makes it a crime if a government official “conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”  Id. § 551.143.  For years this provision was understood to bar “walking quorum” or “daisy chain” discussions. The understanding was confirmed by a 2005 Texas Attorney General Opinion which held that the section applied to

“’members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body’ … ‘a daisy chain of members the sum of whom constitute a quorum’ or a ‘walking quorum.'”

Tex. Atty Gen. Op. No. GA-0326 (2005).

A county judge was indicted for violating this section and challenged the provision as overbroad in violation of the First Amendment and unconstitutionally vague.  The trial court dismissed the indictment but the court of appeals held the statute constitutional.  The Texas Court of Criminal Appeals disagreed.

The court held that the statute potentially implicated the free speech rights of public officials and applied a heightened standard of review.  It held that the statute was “hopelessly indeterminate by being too abstract” with regard to what it meant to circumvent the Act.  The court acknowledged the Attorney General Opinion but found that even if the Act could be limited to that definition, there were still many ways in which a “daisy chain” or “walking quorum” could be defined, citing opinions from other states.  It concluded that section 551.143 was unconstitutionally vague on its face and affirmed the trial court’s dismissal of the indictment.

Unless and until the legislature amends the statute to specify conduct that improperly circumvents the Texas Open Meetings Act, public officials are no longer at risk of prosecution for having daisy chain or walking quorum meetings outside of the public eye.

State of Texas v. Doyal, No. PD-1254-18 (Tex. Crim. App. Feb. 27, 2019)