House Bill 2840, effective date 01 September 2019

• capitol.texas .gov

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• House Bill 2840: Public Comment on Agenda Items, Texas Municipal League, Zindia Thomas, Assistant General Counsel July 2019, Updated October 2019

House Bill 2840 by Representative Terry Canales (D – Edinburg) is effective date of September 1, 2019. The bill amends the Texas Open Meetings Act to provide that “a governmental body shall allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item.” Before the passage of the bill, the public had only the right to observe, rather than speak at, an open meeting of a governmental body.

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    • What right does the public have to speak on a particular agenda item?

The public has the right to speak on each item on the agenda at an open meeting of all governmental bodies as defined by the Open Meetings Act, except for state agencies. Tex. Gov’t Code § 551.007(a).

    • When does the public have the right to speak on items on the agenda of an open meeting?

    • Is a governmental body allowed to adopt reasonable rules on the public’s right to speak?

Yes. A governmental body may adopt reasonable rules concerning the public’s right to speak at an open meeting. Id. § 551.007(c). The rules may include how long the person can address the governmental body on a given item. 

    • May the governmental body still allow the public to ask questions about items not on the agenda?

    • May the governmental body prevent the public from criticizing the governmental body or actions of the governmental body?

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 Updated October 2019

    • 1. What is House Bill 2840? The bill, codified at Texas Government Code Section 551.007, amends the Texas Open Meetings Act (Act) to address public testimony at open meetings. (updated) Notably, the bill doesn’t apply to state agencies. It also doesn’t appear to apply to entities that are subject to the Act, but don’t fall within the term “governmental body” as defined in the Act. 

    • 2. Does House Bill 2840 mandate that a governmental body have a “public hearing” on every agenda item? No. 

    • 3. When does the public have the right to speak on items on the agenda of an open meeting? The legislature’s use of the disjunctive here evidences its intent to allow the governmental body to decide at which point in the meeting a member of the public speaks.

    • 4. Is a governmental body allowed to adopt reasonable rules regarding the public’s right to speak at open meetings? Yes. A governmental body may adopt reasonable rules concerning the public’s right to speak at an open meeting, consistent with the relevant provisions of law allowing it to do so. The rules may include, among many other things, how long a person may address the governmental body on a given item.

    •5. Does House Bill 2840 require a governmental body to allow a member of the public to speak during the body’s  consideration of an agenda item if the person wishes to do so?  Likely not.  The city council could comply with Section 551.007 by allowing a member of the public to  address the body regarding the item any time before the body’s consideration of the item.

    • 6. Is a governmental body required to allow the public to speak on agenda items at “workshops” or “work sessions?” City attorneys disagree about whether Section 551.007 applies to a workshop or work sessions. While some believe it applies, others have a different interpretation. That interpretation is largely based on when the governmental body “considers” an item.

    • 7. May the governmental body still allow the public to ask questions about items not on the agenda? Must a governmental body allow the public to ask questions about items not on the agenda? It has long been “common for units of local government to invite any member of the public to make whatever comments they desire in the public forum at the time of the public meeting,” including comments about items not on the agenda. Tex. Att’y Gen. Op. Nos. JC-0169 (2000). A governmental body may, but does not have to, allow the public to make comments about items not on the agenda. House Bill 2840 mandates that a governmental body allow a citizen to speak only in regard to items on an agenda. If the governmental body allows the public to comment on items not on the agenda, the governmental body can still apply reasonable rules regarding the number, frequency, and length of presentation, but it cannot discriminate against speakers.

    • 8. May the governmental body prevent the public from criticizing the governmental body or actions of the governmental body? A governmental body may not prohibit public criticism of the governmental body, including criticism of  any act, omission, policy, procedure, program, or service. However, the bill “does not apply to public  criticism that is otherwise prohibited by law.”  Id. § 551.007(e). What public criticism is prohibited by  law remains to be seen.  Defamation would probably fall under that prohibition.  In any case, a city should  be able to enforce a decorum policy for public speakers, so long is it doesn’t prohibit criticism. 

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• House Bill 2840 by Rep. Canales, overwhelmingly supported by Texas Legislature and Gov. Abbott, may become one of the most important advances for the public’s freedom of speech in Texas history, Legislative Media,  20 November 2019

Even though its impact is far-reaching, Canales, who also serves as Chair, House Committee on Transportation, wrote a piece of legislation that was extraordinarily brief and to the point: 

    • Government leaders must allow individuals who wish to comment on any agenda item to be able to do so during a public meeting; and

    • Government leaders can not prohibit individuals from criticizing them during a public meeting.

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    Canales, a Democrat and “dedicated champion of governmental transparency”, authored the bill at the urging of a conservative group called Objective Watchers of the Legal System — OWLS, for short — after the group complained of governmental subdivisions in South Texas discouraging public input on public issues, the Tribune-Herald reported.... As happy as he is of the bipartisan and overwhelming support House Bill 2840 received from the Texas Legislature, Canales said he is even more proud that his measure carried the names of several South Texas lawmakers one of the driving forces for the law.

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    The board (Texas school boards of trustees) must allow every member of the public who desires to address the board about an item on the agenda for an open meeting to do so before or during the board’s consideration of the item. A board may not, for example, require the designation of a spokesperson to reduce the number of speakers or cap the total amount of time in a manner that results in denying a member of the public who has followed the district’s procedures to address the board,” the TASB report finds. “It may be reasonable for the board to offer, but not require, alternative options to address the board, such as submitting written comments in lieu of spoken comments or donating an individually assigned amount of time to another registered speaker. If a board finds that it is overwhelmed by the number of citizens wishing to address the board, the board should seek legal advice before refusing to allow a citizen to address the board prior to its consideration of an agenda item.”

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    House Research Organization Bill Analysis. For affected local government entities, private groups, and individuals which may still be trying to best understand the state law authored by Canales, the House District 40 state representative points them to the bill analysis by the House Research Organization, which is the nonpartisan research arm of the Texas House of Representatives. (See article.)

    Legislative Glossary See article.)

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• Article: Herman: Putting a limit on citizen input at government meetings. Austin American Statesman 

Ken Hermankherman@statesman.com

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• Article:Harlingen Citizen Continues Fighting City’s Tax Hike in Court Former city commissioner Robert Leftwich alleges the city violated the Texas Open Meetings Act and denied citizens a chance make their voices heard. Texas Scorecard, 01 November 2019