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The 5th Circuit Court of Appeals has cast doubt on the constitutionality of one of the criminal provisions in the Texas Open Meetings Act (TOMA). In doing so, the court strongly defended the right of elected officials to discuss public business with the same degree of constitutional protection enjoyed by members of the public. The court has not struck down any portion of the TOMA, but has sent the case back to the federal district court for further review.

The context of all this concerns elected officials communicating with each other about public business outside of a duly called meeting. TOMA includes a provision that makes it a crime for elected officials to meet in numbers less than a quorum for the purpose of holding secret deliberations as a way of circumventing the law. Texas Government Code 551. 143. After members of the city council in Alpine exchanged emails with each other about some business to come before the city, the local district attorney charged them with violating this provision of the law.

The district attorney later dropped the prosecution, but that was not the end of it. A city council member then filed suit against the district attorney and the Attorney General, alleging that this criminal prosecution violated his First Amendment rights of free speech. The council member asserted that the TOMA provision amounts to a “content based” restriction on free speech, which would mean that the courts should examine it under the very rigorous “strict scrutiny” standard.

The federal district court did not agree with that, but the 5th Circuit did. The 5th Circuit panel wrote that “The First Amendment’s protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general. ” The 5th Circuit thus sent the case back to the district court with instructions to apply “strict scrutiny. ” This will mean that the district attorney and Attorney General will have to show that the provision of TOMA serves a “compelling state interest” and is “narrowly tailored” to serve that purpose.

The Circuit Court did not declare the TOMA provision unconstitutional and carefully expressed no opinion on how the “strict scrutiny” analysis will end up. That will be up to the federal district court. Thus while school board members should monitor this case, they should also continue to follow their own school attorney’s advice regarding communication with each other outside of a board meeting.

We have included a powerpoint presentation below prepared by Jim Walsh of the law firm of Walsh, Anderson, Brown, Aldridge & Gallegos about the 5th Circuit’s decision in Rangra v. Brown.

PowerPoint - The Latest Ruling on Rangra v. Brown, decided by the 5th Circuit on April 24, 2009.