Archive for the ‘Uncategorized’ Category

The TOMA Lawsuit: July 2010 Update

July 31, 2010

Much has been happening recently.

Both the plaintiffs and the defendants  have filed for summary judgment.

Later, a federal judge dismissed cities from the lawsuit.

See “Judge tosses Texas Cities from open meetings suit” Associated Press, The Dallas Morning News, July 28, 2010.

TOMA Support from the Republican Party of Texas

May 24, 2010

According to a May 11, 2010, blog entry by William Lutz in The Lone Star Report, the Executive Committee of the Republican Party of Texas passed a resolution in support of the Texas Open Meetings Act on March 27, 2010. The text of the resolution is included in the blog post.

A New TOMA Reference

April 20, 2010

The lawsuit directed against certain provisions of the Texas Open Meeting Act (TOMA) is not receiving the attention in news reports and editorials that it did earlier this year.

Yet, a new summary of the purposes and provisions of the TOMA and the circumstances under which closed meetings can be held by governing bodies and administrative bodies subject to the law has just appeared with a discussion appropriate for its inclusion in the Texas Professional License Defense Lawyer Blog. The blog entry dated April 20, 2010 was “What is the Texas Open Meetings Act?” by Louis Leichter.

Sunshine Week

March 17, 2010

In the Pflugerville Key to the City, there was no notice that March 14-20, 2010, is Sunshine Week.  But see, for example, “Letting the Sun Shine: Promoting Open Government” by Texas State Senator Judith Zaffirini, Wilson County News, March 17, 2010.

This might be just the right time to write to the Pflugerville City Council and ask that Pflugerville be withdrawn from the TOMA (Texas Open Meeting Act) lawsuit.

Should a Petition Be Started in Pflugerville?

March 4, 2010

The Pflugerville City Council has not yet shown any inclination to withdraw Pflugerville from the lawsuit directed against TOMA (Texas Open Meetings Act).

Should Pflugerville begin to follow the kind of advice offered to cities and towns in Galveston County in The Daily News (a newspaper published in Galveston County)? In an article entitled “League isn’t worth the price,” it is advocated that cities and towns in Galveston County quit the Texas Municipal League on the basis of positions taken by this organization toward open government. It is further advocated that petitions be started if city governments do not act.

Another Resolution in Support of TOMA

February 17, 2010

According to the Beaumont Enterprise, the Beaumont City Council unanimously passed a resolution in support of the Texas Open Meetings Act.

This is what the Pflugerville City Council should also be doing.

Should Pflugerville Withdraw from the TOMA Lawsuit?

January 11, 2010

According to the Texas Almanac, there are 1208 incorporated cities in Texas.

Pflugerville and just four other Texas cities have joined in the TOMA (Texas Open Meetings Act) lawsuit.

Is there really widespread support in Texas for the lawsuit?

Is it now high time for the Pflugerville City Council to consider withdrawing Pflugerville from the lawsuit?


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TOMA Lawsuit to Be Discussed by Pflugerville City Council

January 10, 2010

Item 10A. “Discuss Open Meetings law suit: City of Alpine, City of Big Lake, City of Pflugerville, City of Rockport, City of Wichita Falls, et al v. Greg Abbott, Texas Attorney General, and the State of Texas.” has been placed on the agenda for the January 12, 2010, regular meeting of the Pflugerville City Council.

The packet for the meeting has the 19-page text of the TOMA (Texas Open Meetings Act) lawsuit that was filed in December 2009. The text by itself is available here.

By contrast, some arguments defending TOMA are available in a brief dated August 28, 2009, and entered in No. 06-51587, In the United States Court of Appeals for the Fifth Circuit, Avinash Rangra and Anna Monclova v. Frank Brown and Greg Abbott. For example, Part IIE is entitled: “The Text of TOMA Is Typical of Open Meetings Laws Across the Nation and Is Not Overbroad nor Vague.”


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Where Was the Citizen Input?

January 8, 2010

In the time since the TOMA (Texas Open Meetings Act) lawsuit was filed in December, explanations given in support of the vote by the City Council to include Pflugerville in the lawsuit have continued to appear in the local news. What has not been explained is why no discussion about the TOMA matter took place in open session in the City Council before the vote to join the TOMA lawsuit was taken in the October 13, 2009, meeting. 

Any discussion that occurred must have taken place in the closed executive session just before the open session for the vote.

In the minutes of the open session (for agenda item 10E) it is stated:

”Mayor Coleman indicated that he needed a resolution on the litigation item that they had discussed. (Resolution supporting and joining the City of Alpine, Texas in litigation to determine whether a local government official’s free speech made pursuant to official duties enjoys the same constitutional protections that the 1st amendment to the United States Constitution grants to other speech.)

Mr. Cooper made a motion to join the litigation with the City of Alpine v. Frank D. Brown, 83rd Judicial and that they join that as a City Council and City Council persons to support that legal action. Mr. Gonzales seconded the motion. All voted in favor. The motion carried.”

Here is the video.

Here is the resolution.

It is troubling that no effort was made, apparently, to obtain any input from the people in Pflugerville before taking the action to join in the TOMA lawsuit. Although citizens are free to speak on agenda items in a City Council Meeting, it would have been not at all clear from the agenda that such an important action (to join in the lawsuit described in the resolution) would have been considered in the meeting. It is not surprising, therefore, that nobody came forward to speak about agenda item 10E.

It is also not at all clear why joining in the TOMA lawsuit would be is the best interest of the City of Pflugerville in particular. Hundreds of Texas cities are not participating.


Texas Attorney General Abbott says government meeting agendas need to be specific.” by Jon Nielsen, Dallas Morning News, October 19, 2008. (Posted in Texas Budget Source website)


Also, for reference (551.071 was mentioned in item 10E of the agenda):

Sec. 551.071.  CONSULTATION WITH ATTORNEY; CLOSED MEETING.  A governmental body may not conduct a private consultation with its attorney except:
  (1)  when the governmental body seeks the advice of its attorney about:
    (A)  pending or contemplated litigation; or
    (B)  a settlement offer; or
  (2)  on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.


According to what is presented in the Open Government page in the Attorney General of Texas website, the Open Meetings Act would appear to be different and distinct from the Public Information Act.

The third paragraph of the October 13, 2009, Resolution No. 1228-09-10-13-1E of the City of Pflugerville should presumably include “Texas Open Meetings Act” in place of “Texas Public Information Act.” 

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Two Articles about TOMA

December 25, 2009

An article entitled “City joins lawsuit over Open Meetings dispute” by James Rincon appeared this week’s Pflugerville Pflag. It also appeared online with the headline “Pflugerville one of four cities named in lawsuit” in the new Pflugerville Pflag website. An editorial dated December 2, 2009, with the title “Texas elected officials shouldn’t fear accountability” in the Star-Telegram is mentioned in the article and is available online here.

On December 3, 2009, the Pflugerville Pflag published an opinion article by Bill Hobby that later appeared in the Alpine Avalanche under the headline “1st Amendment cannot be a shield for elected officials.” In the Alpine Avalanche, the article was preceded by an editor’s note with an observation about the roles of Bill Hobby and Don Adams in the strengthening of the Open Meetings Act in 1973.


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