Did Texas House Members Violate the Texas Open Meetings Act When Redistricting?
March 16, 2022
By: Sarah Depew
On October 18, 2021, the Mexican American Legislative Caucus (MALC), the largest and oldest Latino legislative caucus in the nation, issued a public statement on their Twitter account stating that they filed a petition for deposition in order to investigate a possible violation of the Texas Open Meetings Act. More specifically, the public statement raised concerns about the possibility of secret communications and decision-making in Texas’ redistricting process.
The public statement included a link to a copy of the petition. The petition requests deposition from Adam Foltz, a partisan redistricting operative. Mr. Foltz was employed at the Texas Legislative Council, a non-partisan state agency, but he worked under the direction of and reported to Representative Todd Hunter. Adam Foltz’s employment was a kept a secret from Democratic lawmakers, including those on the Redistricting Committee. The petition states, “[n]o conversations with Foltz by any member of the Committee have taken place in open, public meetings, and access to Foltz by all Democratic members of the Redistricting Committee has been denied by Chairman Hunter.” Democratic lawmakers on the Redistricting Committee were unaware of his presence until the Texas Tribune published an article about the operative. The petition states, “Foltz’s hiring was never disclosed to the public, except through independent investigative journalism, nor to the Democratic members of the House Redistricting Committee.”
The Texas Tribune article was released on September 29, 2021, Chairman Hunter released his proposed redistricting map on September 30, 2021, and he set notice for a public hearing and a deadline for all amendments to be on October 4, 2021—giving both the public and lawmakers a single business day to prepare after they had been kept in the dark up until that point. Chairman Hunter did not permit any expert or resource witnesses, including Mr. Foltz, to testify at the public hearings. Chairman Hunter then forced all members to vote on the proposed bill and amendments immediately. According to the petition, “the irregular speed of the process and the asymmetry of information” led MALC to believe a violation of the Texas Open Meetings Act occurred.
The Texas Open Meetings Act requires that meetings be held publicly, with public notice given. The Act defines a meeting as “a deliberation between a quorum of a governmental body … which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action.” A quorum is defined as more than half of the governmental body. The Redistricting Committee has fifteen members—eight Republicans and seven Democrats—giving Republican members the majority required to form a quorum. Penalties for violations include modest fines and one to six months in jail.
However, another possible remedy would be to void the action. If a court found there was a violation of the Texas Open Meetings Act, the court could invalidate the governmental action that resulted from it. Further, the Texas Supreme Court held in Town of Shady Shores v. Swanson that governmental immunity is waived “for a declaration that an action taken in violation of TOMA is void.” This poses an interesting question in this case because invalidating the actions of the Redistricting Committee at this time would also invalidate the actions of the Texas House and the Texas Senate, who voted in favor of the redistricting map in the open and in compliance with the Texas Open Meetings Act. It is not obvious if a violation of the Texas Open Meetings Act on the committee-level would invalidate open votes by the chambers or if the open votes by the chambers act as a kind of correction of a violation of the Texas Open Meetings Act on the committee-level, however, it seems unlikely. In Olympic Waste Service v. City of Grand Saline, the Court held that communications that violated the Texas Open Meetings Act did not invalidate votes that were made in the open and in compliance with the Act.
A court could say that the time to invalidate the action (if invalidating the action was justified) would have been before it was voted on, either in committee or in the legislative chambers. However, even this framework is questionable because the secrecy and irregular speed of the process would place petitioners at an unreasonable disadvantage. Further, even if a petitioner did somehow act in time and was able to demonstrate a violation of the Texas Open Meetings Act, what remedy would a court give them? Practically speaking, it can’t invalidate an action that has not yet resulted from the improper communication and the court is unlikely to invalidate a committee vote once it has been cast. Perhaps even more provocatively, would a court issue a temporary restraining order preventing the committee from advancing a disputed action? This also seems unlikely. Therefore, it is not obvious how, or when, this option could be applied or what implications a finding of a violation of the Texas Open Meetings Act could have on Texas’ already highly contentious redistricting process. Whatever the answer is, Texans are statutorily entitled to an open process.