On June 30, 2021, Governor Abbott approved Attorney General Ken Paxton’s request to lift the open meeting law emergency suspensions that had been temporarily suspended in March 2020 in response to the COVID-19 pandemic, specifically the provisions of Section 551.127, Texas Government Code. As a result, all open meeting requirements will resume on September 1, 2021.

The suspensions allowed Texas governmental bodies and other entities subject to the provisions of the Open Meetings Act to utilize telephonic and videoconference meetings amid the COVID-19 outbreak while ensuring governmental transparency to the public. As of September 1, 2021, entities subject to the Act wishing to utilize remote tools must comply with all open meetings laws as written.

Telephonic Meetings

Generally, the Texas Open Meetings Act allows telephone meetings instead of the normal, in-person meetings if “an emergency or public necessity exists” and “the convening at one location of a quorum of the governmental body is difficult or impossible.” The suspensions essentially provided that the “emergency requirement” was met for the entire duration of Governor Abbott’s order. When that order was lifted, the “emergency requirement” must again be met on a case-by-case basis for all meetings taking place after September 1, 2021. An “emergency” includes an imminent threat to public health and safety, including a threat of fire, flood, earthquake, hurricane, tornado, or wind, rain, or snow storm; power failure, transportation failure, or interruption of communication facilities; epidemic; or riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence.”

In order to conduct a telephonic meeting, two-way communication must be provided during the entire call, and the identification of each speaker must be clearly stated before speaking. The call must also be audible to the public at the location specified in the notice of the meeting as the location of the meeting. A recording of the meeting must be made available to the public.

Videoconferencing

Under the COVID-19 suspensions, a quorum of remote, videoconferencing attendees was sufficient—meaning all members could be at separate locations and all be counted as present. As of September 1, 2021, a quorum must be physically present at the meeting in order to utilize videoconferencing. Pursuant to § 551.127 of the Act:

• A member or employee of a governmental body may participate remotely and be counted as present if the video and audio feed of the member’s or employee’s participation is broadcast live at the meeting.
• A physically-present quorum is not required for a meeting of a state governmental body or a governmental body that extends into three or more counties, but the member of the governmental body presiding over the meeting must be physically present at one location open to the public during the open portions of the meeting.
• The notice of the meeting held by videoconference must specify the location where a quorum of the governmental body is physically present as the location of the meeting and must specify the intent for a quorum to be present at that location.
• The meeting must be visible and audible to the public at the physical location.
• While a remote participant is speaking, the person’s face must be clearly visible, and voice audible to each participant and to the members of the public in attendance at the physical location.
• Regardless whether a member of the governmental body is participating in a meeting from a remote location by videoconference call, a governmental body may allow a member of the public to testify at a meeting from a remote location by videoconference call.
• The governmental body must make an audio recording of the meeting available to the public.

The Law

Section 551.127, without the suspensions allowed under Governor Abbott’s emergency order, states:

Sec. 551.127.  VIDEOCONFERENCE CALL.  (a)  Except as otherwise provided by this section, this chapter does not prohibit a governmental body from holding an open or closed meeting by videoconference call.

(a-1)  A member or employee of a governmental body may participate remotely in a meeting of the governmental body by means of a videoconference call if the video and audio feed of the member’s or employee’s participation, as applicable, is broadcast live at the meeting and complies with the provisions of this section.

(a-2)  A member of a governmental body who participates in a meeting as provided by Subsection (a-1) shall be counted as present at the meeting for all purposes.

(a-3)  A member of a governmental body who participates in a meeting by videoconference call shall be considered absent from any portion of the meeting during which audio or video communication with the member is lost or disconnected.  The governmental body may continue the meeting only if a quorum of the body remains present at the meeting location or, if applicable, continues to participate in a meeting conducted under Subsection (c).

(b)  A meeting may be held by videoconference call only if a quorum of the governmental body is physically present at one location of the meeting, except as provided by Subsection (c).

(c)  A meeting of a state governmental body or a governmental body that extends into three or more counties may be held by videoconference call only if the member of the governmental body presiding over the meeting is physically present at one location of the meeting that is open to the public during the open portions of the meeting.

(d)  A meeting held by videoconference call is subject to the notice requirements applicable to other meetings in addition to the notice requirements prescribed by this section.

(e)  The notice of a meeting to be held by videoconference call must specify as a location of the meeting the location where a quorum of the governmental body will be physically present and specify the intent to have a quorum present at that location, except that the notice of a meeting to be held by videoconference call under Subsection (c) must specify as a location of the meeting the location where the member of the governmental body presiding over the meeting will be physically present and specify the intent to have the member of the governmental body presiding over the meeting present at that location.  The location where the member of the governmental body presiding over the meeting is physically present shall be open to the public during the open portions of the meeting.

(f)  Each portion of a meeting held by videoconference call that is required to be open to the public shall be visible and audible to the public at the location specified under Subsection (e).  If a problem occurs that causes a meeting to no longer be visible and audible to the public at that location, the meeting must be recessed until the problem is resolved.  If the problem is not resolved in six hours or less, the meeting must be adjourned.

(g)  The governmental body shall make at least an audio recording of the meeting.  The recording shall be made available to the public.

(h)  The location specified under Subsection (e), and each remote location from which a member of the governmental body participates, shall have two-way audio and video communication with each other location during the entire meeting.  The face of each participant in the videoconference call, while that participant is speaking, shall be clearly visible, and the voice audible, to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the physical location described by Subsection (e) and at any other location of the meeting that is open to the public.

(i)  The Department of Information Resources by rule shall specify minimum standards for audio and video signals at a meeting held by videoconference call.  The quality of the audio and video signals perceptible at each location of the meeting must meet or exceed those standards.

(j)  The audio and video signals perceptible by members of the public at each location of the meeting described by Subsection (h) must be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting.

(k)  Without regard to whether a member of the governmental body is participating in a meeting from a remote location by videoconference call, a governmental body may allow a member of the public to testify at a meeting from a remote location by videoconference call.

What This Means to You

Entities subject to the Act widely used videoconferencing tools to conduct entire meetings by video amid the COVID-19 pandemic. After September 1, 2021, more stringent requirements must be met to utilize videoconferencing for an open meeting.

Contact Us

If you have further questions on this matter, you may contact Ken Campbell at 512/338-5322 or kcampbell@bajb.com.