2019 was a good year for open government legislation—in the wake of court rulings that weakened Texas open government laws, lawmakers approved measures to repair holes in the state’s Texas Public Information Act (TPIA) and shore up the Texas Open Meetings Act (TOMA). Then Texas was hit with a pandemic, causing many government offices to close or operate on a skeleton crew—magnifying certain problems in our open government laws. Unfortunately, when the Texas Legislature convened in 2021, open government legislation had little success. Pre-filing for the 88th legislative session began on November 14, 2022, and already more than two dozen bills related to open government laws have been filed. The most notable of these proposals are discussed in this blog post.
Texas Open Meetings Act (TOMA)
- HB 390 would require certain state agencies to broadcast live audio and video of their public meetings on the agency website and to provide archived video and audio on the website within 7 days of broadcast. The new requirements would apply only to state agencies within the executive or legislative branch that (1) are appropriated more than $10 million for a fiscal year and (2) are designated 100 or more full-time employees by the General Appropriations Act. And the requirements would apply only to an open meeting held on or after September 1, 2025. HB 390 was filed by Representative Donna Howard (D-Austin).
- SB 42 would impose certain requirements on public meetings where a majority of the members of the governmental body are participating remotely. Among other things, the bill would require the governmental body to allow members of the public to provide comments by telephone or videoconference call.
- The bill would allow a person attending a public meeting to livestream video and audio of the meeting. Existing law allows a person attending the meeting to record the meeting but does not mention livestreaming.1
- SB 42 also includes the same language that makes up HB 390 (discussed above), related to the live Internet broadcasting of public meetings held by certain state agencies.
- SB 42 was filed by Senator Judith Zaffirini (D-Laredo). Senator Zaffirini proposed a similar bill in 2021—SB 924—but it died without receiving a committee hearing.
Texas Public Information Act (TPIA)
- The TPIA allows governmental bodies to charge a requestor for providing public information. HB 613 would prohibit a governmental body from charging a requestor under certain, limited circumstances: (1) if the requested information is a report required to be filed by a political candidate or officeholder under Chapter 254 of the Texas Election Code, unless the past three years of such reports are publicly available on the governmental body’s website; (2) if the governmental body fails to release the requested information within 10 business days of the request, unless the governmental body has asked the requestor to clarify their request or the governmental body has requested an attorney general ruling within the 10-business-day period; or (3) if the governmental body requests an attorney general ruling as to whether the information can be withheld and either: (i) the governmental body fails to provide the requestor with a copy of that request; or (ii) the attorney general determines the requested information must be disclosed. HB 613 was filed by Representative Cody Vasut (R-Angleton).
- SB 43 defines a “business day” for purposes of the TPIA as every day except a Saturday or Sunday, a national holiday, or a state holiday.
- Existing law requires governmental bodies to respond to a public information request within 10 business days of receiving it. Under the attorney general’s current interpretation of “business days,” skeleton crew days and days on which a governmental body’s administrative offices are closed don’t count as a “business day.” During the height of the COVID-19 pandemic, many governmental bodies closed their physical offices and sent employees home to work, or worked with skeleton crews, causing the business day clock to stop ticking. TPIA requests languished, at a time when the public had an acute need for information from their government. SB 43 would close that loophole.
- SB 43 was filed by Senator Judith Zaffirini (D-Laredo). Senator Zaffirini proposed a similar bill in 2021—SB 925—but it died without receiving a committee hearing.
- SB 44 would require a governmental body to notify the requestor within 10 business days if there is no information responsive to their request or if the information is being withheld under a previous determination. If and when a governmental body requests an attorney general ruling as to whether information may be withheld, the request would have to state the specific exceptions that apply to the information (currently, most governmental bodies simply invoke every TPIA exception when they request an attorney general ruling).
- SB 44 also provides that, if a governmental body has failed to respond to a request and the requestor files a complaint with the attorney general, the governmental body must complete additional open records training and cannot assess any costs to the requestor for producing the information.
- SB 44 was filed by Senator Judith Zaffirini (D-Laredo). Senator Zaffirini proposed a similar bill in 2021—SB 927—but it died without receiving a committee hearing.
- SB 45 would require governmental bodies to produce “electronic public information” (i.e., “public information that is produced and maintained in an electronic spreadsheet or database that is searchable or sortable”) in a searchable and sortable format upon request. The bill would also allow a requestor to request that electronic public information be provided in the format in which the information is maintained by the governmental body.
- SB 45 was filed by Senator Judith Zaffirini (D-Laredo). A similar bill was filed by Representative Capriglione in 2021—HB 1810. The bill passed the House but died in committee in the Senate.