Emails, David Donaldson, lawyer, April 18-19, 2017
April 18, 2017
I hate to say it, but the letter you sent me was pretty persuasive that the Texas Constitution allows the House to set its own rules notwithstanding the Texas Open Meetings Act. While that might tempt future legislatutes to be more secretive, the good news is that the House still provides access and visibility to its meetings, just not as much as the Texas Open Meetings Act would allow. Hope this helps.
-------- Original message --------
From: "Selby, Gardner (CMG-Austin)
Date: 4/19/17 8:09 AM (GMT-06:00)
Subject: Thoughts on this analysis received from Bill Aleshire?
W. Gardner Selby
From: Bill Aleshire
Sent: Tuesday, April 18, 2017 6:19:34 PM
To: Selby, Gardner (CMG-Austin)
Subject: RE: Urgently seeking your on-the-record analysis for a fact check
Chairman Geren’s letter does not mention TOMA section 551.003. That section protects TOMA from the preemption by Legislative Rules that would apply to statutes because TOMA is itself an exercise of the legislature’s power to adopt rules. In other words, TOMA is a rule of the legislature that applies to the legislature. In adopting TOMA to apply to itself, the Legislature sets an example for all other governmental bodies in Texas to follow, and shows the seriousness with which the Legislature considers TOMA to be in letting the people see what goes on inside their government. They should be very proud of making themselves subject to TOMA.
Chairman Geren’s letter is correct in terms of potential conflict between the TOMA “Rules” and other House Rules, in that, if a conflict exists, they would need to be reconciled. But a presiding officer’s general authority to conduct the meeting is not in conflict with, and does not trump, the specific requirement of TOMA section 551.023 to let those in attendance make a recording of the proceedings, subject complying with reasonable rules so as to not disrupt the proceedings. If the Committee at issue has not adopted rules under 551.023, perhaps they should do so.
Notice that the Article III, section 11 does not say anything specifically about the Legislature having authority to outlaw recording of its proceedings. In other words, there is no direct conflict between TOMA section 551.023 and Art. III, section 11, the only constitutional provision cited in Chairman Geren’s letter. There has been one case where the issue was whether TOMA’s prohibition against secret voting superseded the Senate’s choice to elect a Senator by secret ballot to perform the duties of the Lt. Gov. when Rick Perry became Governor. That case (attached) was brought by my former law partner Jennifer Riggs in 2000. But that case involved a different constitutional provision, Article III, section 41 regarding election of legislative officers. The Supreme Court noted “Section 551.003 “prohibit[s] secret meetings of the legislature, committees of the legislature, and other bodies associated with the legislature, except as specifically provided in the constitution.” Then the Court noted, “Article III, section 41 of the Texas Constitution states: “In all elections by the Senate and House of Representatives, jointly or separately, the vote shall be given viva voce, except in the election of their officers.” (Emphasis added.) This provision authorizes the Senate to elect its officers by secret ballot, should it choose to do so.5 This specific provision is therefore an exception to section 551.003.”
Bottom line: TOMA, including section 551.023, applies to the Legislature because the Legislature has designated TOMA as an exercise of its rulemaking authority, as recognized in section 551.003. Unlike the constitutional provision involved in the In re Texas Senate case, nothing in article III, section 11 says anything about authority of the Legislature to prohibit recordings of its proceedings.
By the way, don’t legislative committee meeting have cameras pointing at people already (who are not apparently intimidated or distracted by them) and that are live-streamed and recorded and available on the internet? http://www.house.state.tx.us/video-audio/
April 19, 2017
I like this answer a lot better. Looks to me you can rely on it.