Explanation of COVID-19 Suspension of Texas Open Meetings Act

TAC is always available to discuss issues that arise in your county. During this ongoing COVID-19 outbreak, we understand that these matters are particularly complex and time-sensitive. Our goal is to provide you with resources that address frequent topics that arise in states of emergency. We encourage you to discuss these and any other legal questions with your county attorney. You can always call the TAC Helpline at (888) 275-8224 and one of our legal staff will be happy to assist you.

Suspension of TOMA Requirements

On March 16, at the Attorney General's request, Gov. Greg Abbott utilized Section 418.016 of the Government Code to suspend certain requirements of the Texas Open Meetings Act (TOMA) in light of the ongoing COVID-19 emergency. Tex. Gov't. Code Ann. Section 418.016 (Vernon 2017). The Governor suspended provisions of TOMA that require a quorum of the governing body and the general public to be together in a single location in order to allow videoconference or telephonic meetings. A list of suspended provisions is available here. A copy of the Governor's suspension letter is here. This suspension is in effect until terminated by the Governor or until the state disaster declaration is lifted or expires.

While the Governor's order is in force, a county commissioners court may hold a meeting in a fully virtual forum in which a quorum of the court is not physically present, but a quorum of the court, county employees and members of the public must all attend the meeting via videoconference or telephone conference call.

Requirements of Telephone Conference Call or Videoconference Meeting

Generally, Section 551.125(b) of the Government Code allows an open or closed meeting to be held by telephone conference call only if: (1) an emergency or public necessity exists within the meaning of Section 551.045 of the Government Code and (2) the convening of a quorum at one location is difficult or impossible. Tex. Gov't Code Ann. §551.125(b)(Vernon 2017).The Governor suspended the Section 551.125(b)(1) emergency or public necessity requirement. While the Section 551.125(b)(2) language requiring the convening of a quorum at one location to be difficult or impossible remains in place, we believe the Governor's March 19 Executive Order is sufficient to justify a determination that safely gathering a quorum in one place would be difficult or impossible due to the close proximity of the commissioners, staff and the public; the Governor's executive order declared a public health disaster, noted CDC guidance that person-to-person contact heightens the risk of COVID-19 transmission and prohibited social gatherings of more than 10 people.

The procedures for videoconference calls for open or closed meetings are set out in Section 551.127 of the Government Code and do not contain the same emergency or public necessity requirement as telephone conference call meetings. Tex. Gov't Code Ann. §551.127 (Vernon 2017). The Governor has suspended the Section 551.127(b) requirement that a quorum of the court be physically present at one location of a videoconference meeting.

The Governor suspended Section 551.127(f), which requires each portion of a videoconference call meeting that is required to be open to the public (as opposed to the closed portion of a meeting) to be visible and audible to members of the public who are physically present at the specified location of the meeting. This suspension is subject to additional requirements for the allowance of public participation in the meeting as discussed below.

The Governor also usefully suspended a number of technological requirements for videoconference meetings, including the requirements that a videoconference meeting meet the minimum technical audio and visual standards specified by the Texas Department of Information Resources (DIR), that faces be visible at all times, and that viewers be able to observe the demeanor of each participant in the open portion of the meeting. Additionally suspended is the provision in Section 551.127(a-3) of the Government Code under which a commissioner is considered absent from the meeting for any time in which communication with the commissioner was lost or disconnected. This allows counties who have not engaged in holding meetings in this manner some leeway. The Governor's order does require the dial-in number or videoconference link at a minimum to make the meeting audible to the public.

Section 551.127(a-2) provides that a member of the court who participates in the meeting is counted as present for all purposes. Tex. Gov't Code Ann. §551.127(a-2) (Vernon 2017).

Please see the DIR's guide for conducting an open meeting by telephone or videoconference for more information.

Notice of Teleconference or Video Meeting

Counties that choose to conduct a commissioners court meeting by telephone or videoconference are required to include in the online written notice of the meeting a toll-free dial in number for the general public or a free video conferencing link, along with an electronic copy of any agenda packet per the Governor's suspension order. The requirement of a physical posting has been suspended for teleconference and videoconference held meetings. The required timing for the online notice remains the same as for open meetings in general: 72 continuous hours prior to a non-emergency meeting and one hour prior to an emergency meeting. Tex. Gov't Code Ann. §§551.043(a); 551.045(a) (Vernon 2017 & Supp. 2019).

Notice of Physical Meeting or Commissioners Court

Notice requirements remain the same for a commissioners court that holds a physical meeting in the normal manner and must be posted at a place readily accessible to the public at all times in addition to being posted on the internet for at least 72 hours prior to the scheduled time of the meeting or an hour prior to an emergency meeting. Tex. Gov't. Code Ann. §§551.043(a), 551.043(b) (1) (Vernon 2017). Additionally, for an emergency meeting, Sec. 551.047, which requires special notice to the media in certain circumstances, still applies. Tex. Gov't. Code Ann. §551.047 (Vernon 2017).

Public Participation

The Governor's suspension order requires counties that choose to conduct a commissioners court meeting by teleconference or videoconference to include in the online notice of the meeting a toll-free dial-in number for the general public or a free video conferencing link that provides two-way communication for members of the public to both hear the meeting and address the commissioners court. The order directs counties to the DIR for technological expertise in meeting these requirements.

The Governor suspended the requirement set out in Section 551.007(b) of the Code that a governmental body allow each member of the public who desires to do so address the body regarding an item on the agenda before or during deliberation of the item.

However, the public must be allowed to participate in some manner as the order states "members of the public would still be entitled to participate and address the governmental body during the telephonic or videoconference meeting, perhaps through a dial-in number or videoconference software."
The commissioners court retains its authority to set reasonable terms for public participation. Tex. Gov't. Code Ann. §551.007 (Vernon Supp. 2019).

Recordings

The Governor's suspension order requires the public to be provided access to a recording of any telephonic or videoconferencing meeting. For a videoconference, the commissioners court is required to make at least an audio recording available to the public. Tex. Gov't Code Ann. §551.127(g).

If a county is not holding its meeting by teleconference or by videoconference, all open meetings requirements remain in effect.