Frequently Asked Questions
on the Texas Open Meetings Act
by Donald Ray Burger
Attorney at Law
What is the general requirement of the Texas Open Meetings Act (TOMA)?
Section 551.002 sets forth the general rule: "Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." The exceptions are very limited.
Which governmental entities are covered by the TOMA (Texas Open Meetings Act)?
The TOMA lists "governmental bodies" subject to the act in Section 551.001(3).
(A) Boards, commissions, departments, committees, or agencies within either the executive or legislative branch of the state government are included if they are directed by one or more elected or appointed members are covered.
(B) County Commissioners Courts are covered.
(C) Municipal governing bodies (city councils) are covered.
(D) Deliberative bodies that have fulemaking or quasi-judicial power and are classified as departments, agencies or political subdivisions of a county or municipality are covered.
(E) Boards of Trustees of School Districts are covered.
(F) Boards of School Trustees of counties are covered.
(G) Boards of Education of counties are covered.
(H) Governing Boards of special districts created by law are covered.
(I) Nonprofit corporations organized under Chapter 67 of the Water Code that provide water supplies or wastewater services, or both, and are exempt from ad valorem taxation under Section 11.30 of the Tax Code are covered.
Are city council members prohibited by the TOMA from discussing what goes on during closed sessions of the city council meetings?
Nothing in the TOMA prohibits such discussions by members of governmental bodies-city council members or otherwise. This issue was laid to rest in AG Opinion JM-1071 issued in 1989. In 1987 the TOMA was amended to add Section 2A requiring the governmental body to maintain a certified agenda or tape recording of a closed meeting. Subsection 2A(h) made it unlawful to "make public the certified agenda or tape recording of a meeting or that portion of a meeting that was closed under authority of this Act." The question arose whether that prohibition acted to prevent members of the governmental body from talking about what went on during a closed session without violating subsection 2A(h). If it did, it was argued, that such a law would violate freedom of speech under the First Amendment.
The Attorney General avoided the First Amendment issue by holding that nothing in the TOMA prevents a member of a governmental body from speaking about what went on at a closed hearing. The AG held that subsection 2A(h) "does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session."
How long does one have to bring a lawsuit alleging a violation of the TOMA?
The length of time one has to bring a lawsuit is the limitations period. If one waits longer that the limitations period, the court will usually throw out the case. The TOMA does not have a limitations period within the act. Therefore the limitations period is governed by the general four year statute of limitations period contained in Section 16.051 of the Texas Civil Practices and Remedies Code. This is one of the holding of Rivera v. City of Laredo, 948 S.W.2d 787, 793 (Tex. App.--San Antonio 1997, denied). However, just because one has four years from the date of the illegal meeting to bring the lawsuit, that does not mean one gains any advantage in waiting that long. As a practical matter, the sooner the lawsuit is brought, the better one's chances of gathering needed evidence and witnesses.
Can a private individual request an AG opinion on the TOMA?
Exactly who can request an AG opinion is set out in sections 402.042 and 402.043 of the Government Code. Also, the AG addresses this issue on the Attorney General website.
Unfortunately, non-governmental people cannot get AG opinions on the meaning of the TOMA.
Our City Council often goes into "closed" or "executive" sessions. Can they do this?
In my opinion, closed sessions often violate the TOMA. The limited exceptions to the open meetings requirements, and the procedures to be followed in having a closed meeting, are set out in Sections 551.071 through 551.104. TOMA is designed to mandate open meetings. Exceptions to the open meeting requirement are narrow, and not in keeping with the overall purpose of the act. Closed sessions are so dangerous, and so likely to violate the TOMA, that some city charters prohibit them altogether. Many closed sessions that occur in Texas are illegal under the act, and subject to lawsuit against the offending governmental bodies.
How many members of a governmental body must be present before the TOMA kicks in?
In general, the TOMA kicks in when a quorum of the governing body gather together and discuss business. Section 551.001(6) defines quorum to mean a majority of the governmental body, unless quorum is defined differently by the rules or charter of the governmental body. The TOMA does not apply just within city council chambers. In Acker v. Texas Water Com'n, 790 S.W. 2d 299 (Tex. 1990) the Texas Supreme Court considered a case involving the three member Texas Water Commission. Two of the members went to the bathroom during a break and were alleged to discuss business while standing side-by-side at the urinal. Two out of three was a quorum! This illustrates how easily an illegal meeting can occur.