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.