By Maxey H.B. No. 2775
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the civil and criminal enforcement of the Texas open
1-3 meetings and open records laws.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 3, Chapter 271, Acts of the 60th
1-6 Legislature, Regular Session, 1967, as amended (Article 6252-17,
1-7 Vernon's Texas Civil Statutes), is amended to read as follows:
1-8 Sec. 3. (a) The district attorney, the attorney general,
1-9 or <A> any interested person, including bona fide members of the
1-10 news media, may commence an action either by mandamus or injunction
1-11 for the purpose of stopping, preventing, or reversing violations or
1-12 threatened violations of this Act by members of a governing body.
1-13 An action taken by a governmental body in violation of this Act is
1-14 voidable. The attorney general may file the petition for a writ
1-15 of mandamus or injunctive relief in Travis County.
1-16 (b) The district attorney or the attorney general may file
1-17 suit to collect a civil penalty not to exceed $2,000 for each
1-18 violation from a governmental body a member of which has knowingly
1-19 violated this Act or from a member of a governmental body who has
1-20 knowingly violated this Act. The district attorney may bring the
1-21 suit to collect the civil penalty in district court in the county
1-22 in which the named defendant resides or the violation is alleged to
1-23 have occurred. The attorney general may bring the suit to collect
2-1 the civil penalty in district court in Travis County or in the
2-2 county in which the named defendant resides or the violation is
2-3 alleged to have occurred. Any penalty imposed under this
2-4 subsection is to be paid to the state.
2-5 (c) In any <an> action brought under this section, a court
2-6 shall <may> assess costs of litigation and reasonable attorney's
2-7 fees incurred by a plaintiff <or defendant> who substantially
2-8 prevails. <In exercising its discretion, the court shall consider
2-9 whether the conduct of the governmental body had a reasonable basis
2-10 in law and whether the litigation was brought in good faith.>
2-11 SECTION 2. Section 4, Chapter 271, Acts of the 60th
2-12 Legislature, Regular Session, 1967, as amended (Article 6252-17,
2-13 Vernon's Texas Civil Statutes), is amended by amending
2-14 Subsections(a) and (b) and by adding Subsection(c) to read as
2-15 follows:
2-16 Sec. 4 (a) Any member of a governing body who knowingly
2-17 calls or aids in calling or organizing a special or called meeting
2-18 or session which is closed to the public, or who knowingly closes
2-19 or aids in closing a regular meeting or session to the public, or
2-20 who knowingly participates in a regular, special, or called meeting
2-21 or session which is closed to the public where a closed meeting is
2-22 not permitted by the provisions of this Act, shall be guilty of a
2-23 misdemeanor and on conviction is punishable by of a fine of not
2-24 less than $1,500 <$100> nor more than $3,000 <$500> or imprisonment
2-25 in the county jail for not less than one month nor more than one
3-1 year <six months>, or both.
3-2 (b) Any member or group of members of a governing body who
3-3 knowingly conspires to circumvent the provisions of this Act by
3-4 meeting in numbers less than a quorum for the purpose of secret
3-5 deliberations in contravention of this Act shall be guilty of a
3-6 misdemeanor and on conviction is punishable by a fine of not less
3-7 than $1,500 <$100> nor more than $3,000 <$500> or imprisonment in
3-8 the county jail for not less than one month nor more than one year
3-9 <six months> or both.
3-10 (c) A violation under subsection (a) or (b) of this section
3-11 constitutes official misconduct. The attorney general shall have
3-12 concurrent authority with the local prosecutor to prosecute a
3-13 person who violates either subsection.
3-14 SECTION 3. Section 4, Chapter 424, Acts of the 63rd
3-15 Legislature, Regular Session, 1973, as amended (Article 6252-17a,
3-16 Vernon's Texas Civil Statutes), is amended to read as follows:
3-17 Sec. 4. Application for public information. On application
3-18 for public information to the officer for public records in a
3-19 governmental body by any person, the officer for public records
3-20 shall promptly produce such information for inspection or
3-21 duplication, or both, in the offices of the governmental body. If
3-22 the person requests the public information on a computer tape or
3-23 disk, the governmental body must provide the requested information
3-24 in the requested form if it possesses the necessary computer
3-25 equipment and software to do so, but may charge the actual costs of
4-1 doing so as provided in Section 9. If the information is in
4-2 active use or in storage and, therefore, not available at the time
4-3 a person asks to examine it, the officer for public records shall
4-4 certify this fact in writing to the applicant and set a date and
4-5 hour within a reasonable time when the record will be available for
4-6 the exercise of the right given by this Act. Nothing in this Act
4-7 shall authorize any person to remove original copies of public
4-8 records from the offices of any governmental body.
4-9 SECTION 4. Section 7, Chapter 424, Acts of the 63rd
4-10 Legislature, Regular Session, 1973, as amended (Article 6252-17a,
4-11 Vernon's Texas Civil Statutes), is amended by adding Subsection
4-12 7(d) to read as follows:
4-13 (d) If the attorney general is a party to a judicial action
4-14 brought by a person other than a governmental body to prohibit the
4-15 disclosure of information required by a decision of the attorney
4-16 general, the attorney general may request transfer of the action to
4-17 Travis County.
4-18 SECTION 5. Section 8, Chapter 424, Acts of the 63rd
4-19 Legislature, Regular Session, 1973, as amended (Article 6252-17a,
4-20 Vernon's Texas Civil Statutes), is amended to read as follows:
4-21 Sec. 8(a) CIVIL ENFORCEMENT OF ACT <WRIT OF MANDAMUS>. If
4-22 a governmental body refuses to request an attorney general's
4-23 decision as provided in this Act; <,> or to supply as provided in
4-24 this Act public information or information which the attorney
4-25 general has determined to be a public record, the person requesting
5-1 the information, the district attorney, or the attorney general may
5-2 seek a writ of mandamus compelling the governmental body to make
5-3 the information available for public inspection. The attorney
5-4 general may file the petition for a writ of mandamus in Travis
5-5 County.
5-6 (b) The district attorney or the attorney general may file
5-7 suit to collect a civil penalty not to exceed $2,000 for each
5-8 violation from a governmental body, an officer or employee of which
5-9 has willfully refused, or from an officer or employee of the
5-10 governmental body who has willfully refused to request an attorney
5-11 general's decision as provided in this Act; or to supply as
5-12 provided in this Act public information or information which the
5-13 attorney general has determined to be a public record. The
5-14 district attorney may bring the suit to collect the civil penalty
5-15 in district court in the county in which the named defendant
5-16 resides or the violation is alleged to have occurred. The attorney
5-17 general may bring the suit to collect the civil penalty in district
5-18 court in either Travis County or the county in which the named
5-19 defendant resides or the violation is alleged to have occurred.
5-20 All civil penalties imposed are to be paid to the state.
5-21 (c) The person requesting the information has a private
5-22 cause of action for civil damages against a governmental body, an
5-23 officer or employee of which has willfully refused, or against an
5-24 officer or employee of a governmental body who willfully refuses to
5-25 request an attorney general's decision as provided in this Act; or
6-1 to supply as provided in this Act public information or information
6-2 which the attorney general has determined to be a public record.
6-3 That person may file suit in district court in Travis County or in
6-4 district court in the county in which the named defendant resides
6-5 or the willful violation is alleged to have occurred. A willful
6-6 violation as described in this subsection is a compensable injury,
6-7 and the court may award civil damages in an amount not to exceed
6-8 $2,000 for each violation.
6-9 (d) In an action brought under this section <or Subdivision
6-10 (3) of Subsection (c) of Section 10>, the court shall <may> assess
6-11 costs of litigation and reasonable attorney's fees incurred by the
6-12 plaintiff <or defendant> who substantially prevails. In an action
6-13 brought under Subdivision (3) of Subsection (c) of Section 10, the
6-14 court shall assess costs of litigation and reasonable attorney's
6-15 fees incurred by the defendant who substantially prevails. <In
6-16 exercising its discretion, the court shall consider whether the
6-17 conduct of the governmental body had a reasonable basis in law and
6-18 whether the litigation was brought in good faith.>
6-19 SECTION 6. Section 9, Chapter 424, Acts of the 63rd
6-20 Legislature, Regular Session, 1973, as amended (Article 6252-17a,
6-21 Vernon's Texas Civil Statutes), is amended by amending Subsection
6-22 (h) to read as follows:
6-23 (h) If a governmental body refuses or fails to provide
6-24 copies of or access to public records at the actual cost of
6-25 reproducing or providing access to the records as provided in
7-1 Subsections (a) and (b) of this section, <a> the person requesting
7-2 the information <who overpays>, the district attorney, or the
7-3 attorney general may seek a writ of mandamus to compel the
7-4 governmental body to provide copies of or access to the public
7-5 records at the actual cost. The attorney general may file the
7-6 petition for a writ of mandamus in Travis County. In an action
7-7 brought under this subsection by a person who overpays, that person
7-8 shall be entitled to recover three times the amount of the
7-9 overcharge; provided, however, that the governmental body did not
7-10 act in good faith in computing the costs. In an action brought
7-11 under this subsection, a court shall assess costs of litigation and
7-12 reasonable attorney's fees incurred by plaintiff who substantially
7-13 prevails.
7-14 SECTION 7. Section 10, Chapter 424, Acts of the 63rd
7-15 Legislature, Regular Session, 1973, as amended (Article 6252-17a,
7-16 Vernon's Texas Civil Statutes), is amended by amending Subsection
7-17 (f) and adding Subsections (g) and (h) to read as follows:
7-18 (f) Any person who violates Section 10(a) <or 10(b)> of this
7-19 Act shall be deemed guilty of a misdemeanor and upon conviction
7-20 shall be punished by confinement in the county jail not to exceed
7-21 six (6) months or fined in an amount not to exceed $1,000, or both
7-22 such fine and confinement. A violation under this section
7-23 constitutes official misconduct.
7-24 (g) Any person who violates Section 10(b) of this Act shall
7-25 be deemed guilty of a misdemeanor and upon conviction shall be
8-1 punished by confinement in the county jail not to exceed one year
8-2 or fined in an amount not to exceed $3,000, or both such fine and
8-3 confinement. A violation under this section constitutes official
8-4 misconduct.
8-5 (h) The attorney general shall have concurrent authority
8-6 with the local prosecutor to prosecute a person who violates
8-7 Section 10(a) or 10(b) or Section 12 of this Act.
8-8 SECTION 8. Section 12, Chapter 424, Acts of the 63rd
8-9 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
8-10 Texas Civil Statutes), is amended to read as follows:
8-11 Sec. 12. Penalties. Any person who wilfully destroys,
8-12 mutilates, removes without permission as provided herein, or alters
8-13 public records shall be guilty of a misdemeanor and upon conviction
8-14 shall be fined not less than $500 <$25> nor more than $4,000, or
8-15 confined in the county jail not less than three days nor more than
8-16 one year <three months>, or both such fine and confinement. A
8-17 violation under this section constitutes official misconduct.
8-18 SECTION 9. (a) This Act applies only to an offense
8-19 committed or conduct that occurs on or after the effective date of
8-20 this Act. For the purposes of this section, the offense is
8-21 committed or the conduct occurs on or after the effective date of
8-22 this Act if every element of the offense or the conduct occurs on
8-23 or after the effective date.
8-24 (b) An offense or conduct that occurs before the effective
8-25 date of this Act is governed by the law in effect at the time the
9-1 offense or conduct occurred, and that law is continued in effect
9-2 for that purpose.
9-3 SECTION 10. If any provision of this Act or its application
9-4 to any person or circumstance is held invalid, the invalidity does
9-5 not affect other provisions or applications of this Act that can be
9-6 given effect without the invalid provision or application, and to
9-7 this end the provisions of this Act are declared severable.
9-8 SECTION 11. The importance of this legislation and the
9-9 crowded condition of the calendars in both houses create an
9-10 emergency and an imperative public necessity that the
9-11 constitutional rule requiring bills to be read on three several
9-12 days in each house be suspended, and this rule is hereby suspended,
9-13 and that this Act take effect and be in force from and after its
9-14 passage, and it is so enacted.