1. “The Court of Appeals erred when it held that Government Code section 551.143 applies to conduct rather than speech and therefore is not subject to strict scrutiny.”
2. “The Court of Appeals erred when it held that Government Code section 551.143 is not unconstitutionally overbroad.”
3. The Court of Appeals erred when it held that Government Code section 551.143 is not unconstitutionally vague.”
Davenport, a political consultant, Montgomery County Judge Craig Doyal, Montgomery County Commissioners Court’s member Charlie Riley, and another commissioner met with representatives of a local political action committee (“PAC”) about a proposed bond referendum. This resulted in an agreement by the PAC to support putting a road bond proposal on the commissioners’ special meeting agenda. That agenda was posted publicly, the meeting was held, and the voters passed the bond referendum that November. But Davenport was charged as a party for conspiring to circumvent the Texas Open Meetings Act (TOMA) under Tex. Gov’t Code § 551.143. Under subsection (a), “A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.” He filed a motion to dismiss on First Amendment grounds, including failure of strict scrutiny for a content-based restriction, overbreadth, and vagueness. The trial court granted Davenport’s motion.
The court of appeals reversed. It rejected the application of strict scrutiny, holding that the statute targets the conduct of conspiring to circumvent TOMA, not the content of whatever is discussed. Applying rational basis review, it held that Section 551.143 is reasonably related to the State’s legitimate interest in transparency in public proceedings. It also held that the statute gave fair notice to people of ordinary intelligence: although “conspire,” “circumvent,” and “secret” are not defined, each has a plain meaning. The court also held that the definitions of “deliberation” and “meeting,” which generally require a quorum, are drafted so as to accommodate deliberations at meetings without a quorum. As such, it concluded that Doyal failed to satisfy his burden to prove the statute is unconstitutional and vague.
Doyal raises numerous issues within his three grounds. First, the statute prohibits speech, not conduct. This restriction is content-based because it prohibits speech by a whole class of speakers on an entire subject matter. As a result, strict scrutiny is appropriate and it was the State’s burden to prove the statute is constitutional.
Davenport questions the compelling need for the statute and highlights the vast array of innocent discussions between and with government officials that are criminalized by its broad language. “Section 551.143 has the effect of reaching a substantial amount of protected speech because every member of a governmental body has constituents that they may have interactions with.” Likewise, he argues, a concerned citizen who speaks with a member of a governmental body could also be subject to prosecution.”
Lastly, Davenport argues the statute is unconstitutionally vague because it appears to cover so much speech that should not be prohibited. He points to public figures who testified at the pretrial hearing and expressed great confusion as to what is prohibited. He concludes that, “[b]ecause the statute is not sufficiently clear, this creates a chilling effect on speech regarding matters within the jurisdiction of the governmental body and public business because members of governmental bodies and citizens do not know what is lawful and not lawful.”