Res 174-2009 12/15/2009 RESOLUTION NO. 1"ly �-�j
Resolution of the City of Wichita Falls, Texas supporting the 1St
Amendment of the U.S. Constitution and the preservation of the
Texas Open Meetings Act through its amendment to comply with the
U.S. Constitution, and supporting and joining with the City of
Alpine's Lawsuit to protect the rights granted to citizens pursuant to
the 1 Amendment of the U.S. Constitution from the criminal
provisions of the Texas Open Meetings Act
WHEREAS, the Wichita Falls City Council believes that open, transparent
government is fundamental to democracy and the Texas Open Meetings Act ensures
that elected officials conduct the taxpayers' business in the light of day and in a manner
than informs the public about government decision-making. Texans have a right to
know about their government, their elected representatives and the laws, policies, and
actions that are being adopted on the public's behalf;
WHEREAS, the City of Wichita Falls' elected officials have received training on
Texas Open Meetings Act and are fully committed to their obligations to conduct the
public's business in open meetings;
WHEREAS, open meetings acts have been adopted by 34 states but only 5
states provide that persons who violate their provisions be subjected to jail time;
WHEREAS, selected Texas public officials have been indicted merely for
sending emails to each other requesting an open meeting on a particular issue;
WHEREAS, on April 24, 2009, a three-judge panel of the 5 Circuit Court of
Appeals held that the criminal provisions of the Texas Open Meetings Act subjected
said act to strict constitutional scrutiny, but on September 10, 2009, the 5 Circuit,
sitting en banc, dismissed the lawsuit on the basis that the public officials who had
brought that lawsuit were no longer in office, and thus no longer faced the threat of
prosecution pursuant to the act;
WHEREAS, the Texas Attorney General has stated that the Texas Open
Meetings Act is not limited to discussions involving a quorum of inembers of a
governing body as follows:
"we construe section 551.143 to apply to members of a governmental body who
gather in numbers that do not physically constitute a quorum at any one time but
who, through successive gatherings, secretly discuss a public matter with a
quorum of that body." Tex. Att'y Gen'I Op. No. GA-326. (2005).
WHEREAS, the members of the City Council find that their political expression
with each other and the general public has been chilled by the criminal provisions of the
Texas Open Meetings Act;
WHEREAS, the Texas' open meetings act is not limited to public officials. The
Attorney General has stated:
"the law permits the charging of a person who is not a member of a
governmental body with an offense under the Open Meetings Act" Tex. Att'y
Gen'I Op. No. JC-0307 (2000);
WHEREAS, the City Council desires to protect the personal and political
expression of public officials, ordinary citizens, and members of the media from being
chilled by the penalty of 6 months in jail for each alleged violation of the Texas Open
Meetings Act;
WHEREAS, the 1 Amendment of the U.S. Constitution, prior to the enactment
and expansion of the Texas Open Meetings Act, protected the political expression of
public officials and citizens; and
WHEREAS, the Texas Open Meetings contains many non-criminal remedies for
its enforcement, including invalidation of action, mandamus, injunctions, and attorneys
fees and court costs payable to the winning party in a civil proceeding under the act.
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS THAT:
1. The Wichita Falls City Council supports and joins with the City of Alpine in its
suit to defend the 1 Amendment to the U.S. Constitution and declare the criminal
provisions of the Texas Open Meetings Act unconstitutional.
2. The Wichita Falls City Council supports amendment of the Texas Open
Meetings Act to remedy its constitutional infirmities and thereby save it from
invalidation.
3. The Wichita Falls City Council directs City Staff to forward a Certified Copy of
this Resolution to Alpine City Attorney Ron Ponton, Scott Houston, Director of Legal
Services - Texas Municipal League, and appropriate members of the legislature.
PASSED AND APPROVED this the 15 day of December, 2009.
MAYOR
ATTEST:
� ity Clerk