West Texans Fight Sunshine Law's Constitutionality

John Council
Texas Lawyer
07-24-2006


Could one of Texas' most prominent criminal-defense attorneys dismantle the Texas Open Meetings Act -- the 39-year-old law that's a bedrock principle of state government requiring decisions to be made in public?

Dick DeGuerin of Houston's DeGuerin Dickson & Hennessy thinks he can. And he's not alone.

On July 26, DeGuerin will represent a current and a former member of the Alpine City Council at a full-day hearing on the merits in their declaratory judgment action. At the Lucius D. Bunton III Federal Courthouse in Pecos, DeGuerin will ask U.S. District Judge Rob Junell to declare TOMA, Chapter 551 of the Texas Government Code, unconstitutional.

DeGuerin accepted a rare civil case -- Rangra, et al. v. Brown, et al. -- at the behest of his friend, Rod Ponton, an Alpine solo who also represents the plaintiffs. DeGuerin says even though the case is civil, it's the kind he loves. His clients are two politicians who are victims of an unjust law, he says.

"I liked the odds," DeGuerin says. "We've got a constitutional issue here. We intend to take it all the way to the Supreme Court" if necessary.

"We're not seeking money damages," Ponton says. "We're seeking a declaratory judgment that the Texas Open Meetings Act as written and as applied violates the First Amendment."

Known as the "sunshine law," the Texas Legislature passed TOMA in 1967 to ensure that all governmental meetings are held in public and that the public has adequate notice of such meetings. Over the years, legislators have amended the law numerous times.

As a result of some of those amendments, DeGuerin says, the law has strayed from its original intent. The law as presently written is overly broad, constitutionally vague and violates his clients' First Amendment rights to free speech, he says.

DeGuerin's clients found themselves faced with possible criminal prosecution because of a 2004 e-mail they allegedly read or replied to that pertained to city business. Texas is one of only six states in the nation that has an open meetings law that contains criminal penalties. [See "Officials Challenge Open-Meetings Law," Texas Lawyer, Oct. 17, 2005, page 1.]

"Our point is that the Open Meetings Act has become so convoluted and transmogrified by the tinkering that the . . . damn Legislature does every year, it's far beyond the salutary intent of the Open Meetings Act, which is to prevent meetings from [occurring] behind closed doors," says DeGuerin, who represents Alpine City Council member Avinash Rangra and Anna Monclova, a former Alpine City Council member.

The key change, which occurred in 1999, broadens the definition of "meeting" in TOMA to include discussions where actual face-to-face verbal deliberations do not occur, according to the plaintiffs' complaint. That change makes all sorts of communications between council members outside of a public hearing where a quorum is technically present a potential violation of TOMA, DeGuerin says.