Violations of TOMA may be criminal (and yes, you can go to jail)

by | Apr 9, 2021 | Texas Open Meetings Act

The Texas Open Meetings Act (TOMA) requires meetings of governmental bodies to be open to the public, except for expressly authorized closed sessions. TOMA provides criminal penalties—including possible jail time—for violations of certain provisions, making Texas one of around 15 states that allow violators of open meetings laws to be sent to jail.[1]

Is Texas really arresting public officials for violations of open meetings laws? It’s rare, but public officials have been indicted and found guilty under TOMA.

In 2022, an Angelina County Judge and two county commissioners were indicted on charges of violating TOMA, accused of holding an illegal closed meeting in the judge’s office in August 2021. All three men were booked into the county jail after the indictment.

Two Carroll ISD trustees were indicted on similar charges in 2021. The misdemeanor charges were linked to messages exchanged before an August 2020 board meeting to discuss the district’s cultural competency plan.

In 2016, former Smith County Judge Joel Baker was booked into the Smith County jail and charged with three counts of violating TOMA. Following the indictment, he was suspended by the State Commission on Judicial Conduct, a judicial ethics board where Baker used to be vice-chair. He entered a no contest plea deal on one of the charges and paid a $200 fine. The other two counts were dismissed as part of the plea deal.

The Texas Attorney General has opined that a person who is not a member of the governing body could be charged with violating section 551.144 of TOMA “if the person, acting with intent, aids or assists a member or members who knowingly act to violate the Act.”

There are different levels of punishment for different kinds of offenses under TOMA. A high-level overview is provided in the table below.

StatuteOffenseCriminal Penalty
Tex. Gov’t Code Ann. § 551.143Knowingly engaging in “serial meetings,” or “walking quorums,” which occur when members of a governmental body gather in numbers that do not physically constitute a quorum in order to secretly discuss a public matter through successive gatherings  Misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (2) confinement in the county jail for 1-6 months; or (3) both the fine and confinement.  
Tex. Gov’t Code Ann. § 551.144Where a closed meeting is not permitted and a member of the governmental body knowingly: (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting; (2) closes or aids in closing the meeting to the public, if it is a regular meeting; or (3) participates in the closed meeting, whether it is a regular, special, or called meeting.   It is an affirmative defense to prosecution that the member of the governmental body acted in reasonable reliance on a court order or a written interpretation of TOMA contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body.  Misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (2) confinement in the county jail for 1-6 months; or (3) both the fine and confinement.  
Tex. Gov’t Code Ann. § 551.145A member of the governmental body participates in a closed meeting of the governmental body knowing that a certified agenda of the closed meeting is not being kept or that a recording of the closed meeting is not being made.  Class C misdemeanor
Tex. Gov’t Code Ann. § 551.146  Knowingly disclosing to a member of the public the certified agenda or recording of a meeting that was lawfully closed to the public under TOMA.   It is an affirmative defense to prosecution that the defendant had good reason to believe the disclosure was lawful or the disclosure was the result of a mistake of fact concerning the nature or content of the certified agenda or recording.  Class B misdemeanor

Not all violations of TOMA requirements carry criminal penalties. For example, a Texas court of appeals held that a city council member discussing a subject not on the agenda was not a criminal offense because there was no evidence that the meeting itself was prohibited by TOMA. While the action taken on the subject of discussion was voidable, the councilman was not subject to criminal penalties.[2]

District courts have original jurisdiction over criminal violations of TOMA as misdemeanors involving official misconduct. TOMA does not authorize the attorney general to enforce its provisions. However, a district attorney, criminal district attorney, or county attorney may request the attorney general’s assistance in prosecuting a criminal case, including one under TOMA. In 2005, the Upshur County District Attorney requested help from the attorney general’s office in a case involving TOMA violations by the New Diana ISD’s Board President. The board president was indicted—marking a first for the attorney general’s office.

[1] Daxton R. “Chip” Stewart, Let the Sunshine in, or Else: An Examination of the “Teeth” of State and Federal Open Meetings and Open Records Laws, 15 Comm. L. & Pol’y 265, 290 (2010).

[2] State v. Williams, 780 S.W.2d 891, 894 (Tex. App.—San Antonio 1989, no pet.).

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