The Texas Court of Criminal Appeals has ruled that the Texas statute that outlaws “walking quorums” is unconstitutionally vague.
Tex. Gov’t Code § 551.143(a) makes it a criminal offense to “knowingly conspire to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” The provision is in the Texas Open Meeting Act which generally requires all discussions of public business to be done in an open, posted meeting. But § 551.143 takes that further to prohibit any two members of a governing body from meeting to try to build consensus.
However, the Court of Criminal Appeals, which is the highest court in Texas for criminal cases, found the statute lacking in specific direction necessary to charge someone with criminal conduct. In the first place, the speech which is prohibited by the statute is constitutionally protected speech, said the Court. The State argued that the statute did not prohibit speech but rather prohibited conduct, the act of meeting. But the Court disagreed with the State’s position. Any time a government tries to regulate speech that is otherwise protected by the First Amendment to the United States Constitution, higher standards of judicial review are engaged, it said. Since the speech in question is clearly such speech, the statute in question must be a reasonable time, place and manner restriction.
Section 551.143, however, is not clear on exactly what is prohibited. For example, it prohibits meeting in less than a quorum. But, the Act defines meetings as having a quorum. Thus, discussion with what number of fellow board members is illegal is not certain. The section outlaws violations of the Act, but does not otherwise define the violation. What constitutes “circumvent[ing]” the law is less than clear. Furthermore, what is a “secret” meeting is subject to interpretation. Furthermore, the term “walking quorum” has been defined differently by the courts of several other states.
According to the Court’s ruling, members of governing bodies apparently may now discuss public business with each other in groups of less than a quorum without posting a meeting notice. Meeting with a quorum is still strictly governed by the Texas Open Meetings Act. The Legislature still has time to pass new legislation to attempt to overturn the ruling, but time is growing short.