Is it still illegal for a Texas board to use a walking quorum after the Doyal ruling?

Plain-English summary

The Texas Open Meetings Act keeps the public business of government bodies, city councils, school boards, commissioners courts, in the open. One way officials try to get around it is the "walking quorum": instead of a majority meeting together (which would trigger the Act), members talk in smaller groups, one or two at a time, or by a chain of emails or phone calls, until a majority has effectively reached a decision before any public meeting. The Act had a criminal provision aimed at this, section 551.143(a), but in early 2019 the Texas Court of Criminal Appeals held in State v. Doyal that the provision was unconstitutionally vague and struck it down.

After that ruling, the Commissioner of Education asked the AG two questions. First, does the Act still forbid a quorum from deliberating through multiple sub-quorum communications? Second, do civil remedies still exist for that conduct?

On the first question, the AG explained that Doyal struck down only that one criminal section; the rest of the Act remains valid. Looking at the Act's definitions, a "meeting" is a deliberation between a quorum about public business within the body's jurisdiction, and a "deliberation" is a verbal exchange among a quorum about such matters. Nothing in those definitions requires the exchange to happen at the same time or in the same place. So if a quorum deliberates about public business outside an authorized meeting, the fact that it happened across several smaller conversations rather than all at once does not save it; the body still violates the Act. The AG pointed to a federal case, Esperanza, where a court voided a city council's budget reductions reached through a series of sub-quorum meetings, and to prior AG opinions concluding that a series of emails can add up to a deliberation.

On the second question, the AG confirmed the civil remedies survive even though the criminal penalty was struck. Action a governmental body takes in violation of the Act is voidable under section 551.141, and any interested person may bring a mandamus or injunction action under section 551.142 to stop, prevent, or reverse a violation. The AG also addressed the Commissioner's specific regulatory concern: if the Texas Education Agency investigates a school district under Education Code section 39.057 and finds the board of trustees violated its duty to act only by majority vote at a meeting held in compliance with the Act (Education Code section 11.051(a-1)), the agency could take the actions section 39.057(d) authorizes.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. (Note that the opinion itself flagged pending legislation, Senate Bill 1640, to address the struck-down criminal provision.)

What the opinion meant for those who asked

The Texas Education Agency and the Commissioner: At the time of the opinion, the AG read the Act to still prohibit walking-quorum deliberations and to keep its civil remedies in force after Doyal. The opinion meant the agency could, after a section 39.057 investigation finding a board violated its duty to comply with the Act, take the actions authorized by section 39.057(d).

School boards and other governmental bodies: The opinion explained that the loss of the criminal penalty did not make walking-quorum deliberations lawful; the conduct still violated the Act and exposed the body's actions to being voided or enjoined.

Journalists, watchdogs, and citizens: The opinion described the civil tools available, voidability and mandamus or injunction by any interested person, to challenge decisions made through sub-quorum deliberation.

Common questions

Did State v. Doyal make walking quorums legal?
No. The AG explained Doyal struck down only the criminal provision, section 551.143(a). The rest of the Act stands, and a quorum deliberating about public business outside an authorized meeting still violates it.

Does it matter that the members never all met at once?
No. The AG concluded the Act's definitions do not require simultaneous or same-place deliberation, so a chain of smaller communications that adds up to a quorum deliberating is still a violation.

What can be done about a decision made this way?
The AG said the action is voidable under section 551.141, and any interested person may sue for mandamus or an injunction under section 551.142 to stop or reverse the violation.

Can a school district face regulatory consequences?
Yes. The AG concluded the Texas Education Agency, after investigating under Education Code section 39.057 and finding a board violated its duty to comply with the Act, could take the actions authorized by section 39.057(d).

Background and statutory framework

The Open Meetings Act, Government Code chapter 551, requires that meetings of governmental bodies be open to the public (section 551.002) to safeguard the public's interest in knowing the workings of government (Cox Enterprises, Inc. v. Board of Trustees of Austin Independent School District). It defines "meeting" (section 551.001(4)(A)) and "deliberation" (section 551.001(2)) in terms of a quorum's verbal exchange about public business within the body's jurisdiction. In State v. Doyal, the Court of Criminal Appeals held section 551.143(a), the criminal walking-quorum provision, unconstitutionally vague, but the AG noted the ruling was limited to that section. The opinion observed that Senate Bill 1640, then pending, would amend section 551.143 in response to the court's concerns.

On whether the conduct still violates the Act, the AG relied on the absence of any simultaneity requirement in the definitions, the federal Esperanza Peace & Justice Center v. City of San Antonio decision voiding budget actions reached through sub-quorum meetings, prior opinions JC-0307 (2000), DM-95 (1992), and GA-0896 (2011) recognizing that physical presence of a quorum at one time is not always necessary and that a series of emails can be a deliberation, and Acker v. Texas Water Commission for the principle that a majority cannot have an "informal" discussion of a pending issue. On remedies, the AG cited section 551.141 (voidability), section 551.142 (mandamus or injunction by any interested person), and Hitt v. Mabry (upholding an injunction against board members deciding public business through private informal meetings or telephonic polls). On regulatory action, the AG cited Education Code sections 11.051(a-1), 39.057, 39.057(d), and 39A.002.

Citations

Statutory provisions:

• Tex. Gov't Code § 551.143(a); § 551.002; § 551.001(2), (4)(A); § 551.141; § 551.142
• Tex. Educ. Code § 11.051(a-1); § 39.057; § 39.057(d); § 39A.002
• Tex. S.B. 1640, 86th Leg., R.S. (2019)

Cases:

• State v. Doyal, No. PD-0254-18, 2019 WL 944022 (Tex. Crim. App. Feb. 27, 2019)
• Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986)
• Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472 (W.D. Tex. 2001)
• Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990)
• Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex. App.-San Antonio 1985, no writ)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0307 (2000)
• Tex. Att'y Gen. Op. No. DM-95 (1992)
• Tex. Att'y Gen. Op. No. GA-0896 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0254
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0254.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 24, 2019

Mr. Mike Morath Opinion No. KP-0254
Commissioner of Education
Texas Education Agency Re: Availability of civil remedies for violations
1701 North Congress Avenue of the Texas Open Meetings Act (RQ-0285-KP)
Austin, Texas 78701-1494

Dear Commissioner Morath:

    You ask whether civil remedies continue to exist for violations of the Texas Open Meetings Act (the "Act") in light of a recent court decision.1 Earlier this year, the Court of Criminal Appeals in State v. Doyal struck down a single criminal provision of the Act that prohibited members of governmental bodies from conspiring to circumvent the Act by meeting in numbers less than a quorum. No. PD-0254-18, 2019 WL 944022 (Tex. Crim. App. Feb. 27, 2019). The Court concluded that section 551.143(a) of the Government Code was unconstitutionally vague on its face. Doyal, 2019 WL 944022, at *10. That section provides:

            A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent [the Act] by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.

TEX. GOV'T CODE § 551.143(a). The Court's decision was limited to section 551.143, and all other provisions of the Act remain valid and binding.2

    Given the Court's ruling, you ask whether the Act continues to prohibit a quorum of a governmental body from deliberating about an item of public business outside of an authorized meeting through multiple communications, each involving fewer than a quorum. See Request Letter at 1-2. The Legislature adopted the Act "to safeguard the public's interest in knowing the workings of its governmental bodies." Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986). Its purpose is "to encourage good government by ending, to the extent possible, closed-door sessions in which deals are cut without public scrutiny." Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472 (W.D. Tex. 2001). In furtherance of that purpose, the Act requires that "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by [the Act]." TEX. GOV'T CODE § 551.002. The Act defines "meeting" to include "a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the body has supervision or control is discussed or considered." Id. § 551.001(4)(A). It further defines "deliberation" as "a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2). Reading these definitions together, a meeting occurs when a quorum of a governmental body has a verbal exchange about public business or public policy within the jurisdiction of the governmental body.

      Nothing in the statutory definitions of these terms or the general rule itself requires that the deliberation occur simultaneously or in the same location to constitute a meeting. See id. §§ 551.001(2), (4), .002. A federal district court addressed a scenario similar to that which you describe in a civil context. See Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d at 471. In Esperanza, city council members conducted multiple meetings, each with less than a quorum, to reach consensus on a city budget before the formal council meeting the following day. Id. At the conclusion of those meetings, all council members signed a consensus memorandum setting forth the agreed-upon changes to the budget, including significant budget reductions. Id. at 471-72. Finding that the council "had no power to deliberate and vote on the budget at a meeting not convened in accordance with the Act," the court voided the council's budget reductions. Id. at 478.

      Consistent with the court's conclusion, prior opinions of this office have explained that the "physical presence of a quorum in a single place at the same time is not always necessary for a violation of [the Act] to occur." Tex. Att'y Gen. Op. No. JC-0307 (2000) at 5 (quoting Tex. Att'y Gen. Op. No. DM-95 (1992) at 5). As Opinion GA-0896 explained, depending on the facts of a particular case, a series of e-mail communications could constitute a deliberation and a meeting for purposes of the Act. Tex. Att'y Gen. Op. No. GA-0896 (2011) at 3-4. The fact that the deliberation occurred over the course of multiple communications rather than simultaneously does not change the fact that deliberation among a quorum occurred. "When a majority of a public decision-making body is considering a pending issue, there can be no 'informal' discussion. There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990). Under the plain language of the statute and the definitions provided by the Legislature, if a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Act, the governmental body violates the Act.

     You also ask whether civil remedies exist, including regulatory actions, for such a violation. Request Letter at 2. Although the Court of Criminal Appeals struck down the criminal penalty for a walking quorum, the civil remedies of the Act remain. "[A]ction taken by a governmental body in violation of [the Act] is voidable." TEX. GOV'T CODE § 551.141. In addition, any interested person "may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of [the Act] by members of a governmental body." Id. § 551.142; see Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex. App.-San Antonio 1985, no writ) (upholding an injunction to prevent school district board members from arriving at a decision involving public business by way of private informal meetings or conferences, including telephonic polls of individual board members).

     In addition to the general civil remedies available in the Act itself, you ask about regulatory sanctions that may be imposed on certain types of governmental bodies found in violation of the Act. Request Letter at 2. In particular, you note the authority of the Texas Education Agency to conduct regulatory investigations of a school district that allegedly violated certain state or federal laws and to take certain actions based on the results of those investigations. See id. at 1 n.3; see also TEX. EDUC. CODE §§ 39.057 ("Special Accreditation Investigations"), 39A.002 ("Authorized Commissioner Actions"). The Education Code requires a school district board of trustees to "act only by majority vote of the members present at a meeting held in compliance with [the Act]." TEX. EDUC. CODE § 11.051(a-1). If the Texas Education Agency conducts an investigation as authorized by section 39.057 of the Education Code and concludes that members of a board of trustees violated their duty to comply with this provision, it could take appropriate action authorized by subsection 39.057(d) of the Education Code. See id. § 39.057(d).

                                   SUMMARY

                 If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act, through multiple communications each involving fewer than a quorum, the governmental body violates the Act.

                  Action taken by a governmental body in violation of the Act is voidable. In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body.

                 If the Texas Education Agency conducts an investigation as authorized by section 39.057 of the Education Code and concludes that members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action authorized by subsection 39.057(d) of the Education Code.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

1See Letter from Mr. Mike Morath, Comm'r of Educ., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Apr. 24, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2Senate Bill 1640, currently pending before the Texas Legislature, would amend section 551.143 of the Government Code in response to the constitutional infirmities raised by the Court of Criminal Appeals. See Tex. S.B. 1640, 86th Leg., R.S. (2019).