Transparency bills pass Texas Legislature; more work remains for next session

AUSTIN – The Texas Legislature approved measures this session to repair holes in the state’s Public Information Act and shore up the Open Meetings Act in the wake of detrimental court rulings.

The bipartisan initiatives won final approval in the days and hours before lawmakers adjourned Monday. They address openness in government contracting; the ability to access public records stored in private electronic accounts; and the ban on government officials meeting secretly in “walking quorums.”

These and several other transparency bills now head to Gov. Greg Abbott’s desk.

“The Freedom of Information Foundation was pleased to work with broad-based bipartisan organizations as part of the Sunshine Coalition to advocate for much needed changes in our public information and open meetings laws,” said attorney Laura Prather, co-chair of the FOI Foundation’s legislative committee.

Sen. Kirk Watson, D-Austin, and Rep. Giovanni Capriglione, R-Southlake, worked together to pass Senate Bill 943, contracting transparency legislation that strengthens the Texas Public Information Act following Texas Supreme Court rulings in 2015 that in many cases blocked public access to how taxpayer money is spent.

The court’s Boeing ruling allowed private companies doing business with government to keep key details of their agreements secret, sometimes including the final dollar amount, because of a claimed competitive disadvantage. The Greater Houston Partnership ruling severely limited access to financial information from non-profits that receive taxpayer money to perform traditional government duties.

“We applaud this new contracting transparency legislation. It will ensure access to information about the spending of taxpayer dollars. That’s a basic right in America. We at the FOI Foundation worked with lawmakers and other stakeholders to find a solution after the court’s very troubling rulings,” said Kelley Shannon, executive director of the FOI Foundation.

Watson and Capriglione also joined to pass Senate Bill 944, which allows better access to public records in a government official’s private cell phone or email account. Those records are already public by law, but SB 944 closes a “custodian loophole” and makes them easier to obtain. Addressing the custodian loophole and improving contracting transparency were key objectives of the Texas Sunshine Coalition, an alliance of 18 diverse organizations united to promote open government.

Meanwhile, Watson and Rep. Dade Phelan, R-Beaumont, won passage of Senate Bill 1640, providing more detailed language in the Texas Open Meetings Act ban on walking quorums, which are meetings or discussions held without a quorum present but that aim to ultimately involve a quorum of the body outside the presence of the public.

The Texas Court of Criminal Appeals issued a ruling this spring striking down the walking quorum criminal penalty as unconstitutionally vague, but left it up to the Legislature to fix it. Watson and Phelan immediately filed a bill to do that.

“All Texans will be able to know more about what their government is doing thanks to the tireless efforts of Senator Watson and Representatives Capriglione and Phelan in making sure these changes passed this session,” Prather said.

In an important free speech matter, the FOI Foundation and other groups supportive of the Texas Citizens Participation Act reached a compromise that preserves the core protections of the law, known as the anti-SLAPP statute. (SLAPP stands for Strategic Lawsuits Against Public Participation.) Some interests had proposed an overhaul of the existing law that would have removed those crucial protections. 

“When the Texas Citizens Participation Act came under attack this session, more than 620 organizations joined together to form the Protect Free Speech Coalition, which advocated for reforming the law to address specific needs rather than a wholesale gutting of the important free speech measure. The FOI Foundation was pleased to be part of the process in making the law better,” Prather said.

Several other open government measures also passed, including House Bill 81 by Rep. Terry Canales, D-Edinburg, to ensure taxpayer money spent on parades and concerts is information citizens can access and House Bill 2840 by Canales to give members of the public the right to address governing bodies during open meetings.

Among the transparency bills that fell short of passage was House Bill 1655, restoring access to dates of birth in public records. It passed the House but got blocked in the full Senate in the session’s final days, even though it had passed the Senate in 2017. 

Access to dates of birth ensures accurate criminal background checks for employers and employees; assists in lending and other financial transactions; helps journalists in accurate criminal justice reporting; allows voters to vet political candidates; and gives genealogists the tools to track ancestry.

House Bill 147 also failed to pass. It would have closed a Public Information Act loophole that allows police to withhold records from the public indefinitely when a suspect died in police custody. Numerous families came forward to testify about their inability to obtain police records related to the death of a loved one. Access to these records gives families closure and allows the public to hold police accountable. 

House Speaker Pro Tem Joe Moody, D-El Paso, said in a prepared statement over the weekend that he was grateful for a late-session opportunity with Sen. Watson to try to keep his bill progressing as an amendment to SB 944, but a “deliberate disinformation campaign” prevented it from advancing, so he pulled the amendment from SB 944 during a conference committee. Watson explained that Moody made the decision because it became clear the governor would veto the bill if the police records transparency provision remained in it. The Combined Law Enforcement Associations of Texas, known as CLEAT, waged an intense lobby effort against Moody’s bill.

The FOI Foundation of Texas will continue to work on passage of these important measures in the next legislative session in 2021.