Texas Open Meetings Act Provision Struck Down by Texas Court of Criminal Appeals

The Texas Open Meetings Act (“TOMA”) is included in Chapter 551 of the Government Code. It states that governmental bodies must hold open meetings unless there is an authorized reason for a closed session. Public access to the proceedings and decision-making processes of both local and state governmental entities is an essential element of a properly functioning democracy. Despite its important public interest goals, a significant provision of the government transparency law was recently struck down as unconstitutional.

Texas Open Meetings Act

The Texas Open Meetings Act was enacted to ensure Texas government is transparent, open, and accountable to all Texans. It requires state and local governmental entities to conduct public business responsibly and in accordance with the law. The law contains very specific guidelines concerning when notice of an open meeting must be given and what information that notice must contain. Strict compliance with these guidelines is generally necessary.

In addition to notice, to remain in compliance with TOMA, minutes must be kept or a recording made of every open meeting. These minutes must state the subject of each deliberation and indicate each vote, order, decision, or other action taken.

Unconstitutionally Vague

Texas’ highest criminal court, The Texas Court of Criminal Appeals, struck down a significant provision of the Texas Open Meetings Act last month, calling it “unconstitutionally vague.”

The provision at issue makes it a crime for public officials to “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” The goal is to keep public officials from organizing smaller meetings — without an official quorum present — to discuss public business in private.

Open-government advocates warned the ruling undermines the aim and purpose of the Act. Like the lawyers at our firm, many members of the public, as well as elected officials, are watching to see if the state Legislature will address the issue.

Houston, Texas Public Interest Lawyers

The Texas Open Meetings Act embodies the most basic values of democracy by ensuring Texas citizens can stay informed about and participate in their local government. Strict and specific requirements mean accidental and intentional violations do occur. At Feldman & Feldman, we work hard for the people of Texas to ensure those in positions of power do not infringe upon their rights. Government transparency via open meetings is just one component of a true transparent democracy. If you or someone you know believe your local or state government has acted in violation of TOMA, we can help.

Austin, The Live Music Capital of the World, Struggles With Noise Complaints

Due to the close proximity of businesses, entertainment venues, residential areas, and hotels in a metropolitan area, noise complaints are a common occurrence in a big city. Without clear and defined regulations in place for noise levels – including specific hours of operation for music and entertainment venues – these complaints can be a constant source of friction between business owners and those living in or visiting a city.

Austin has spent the last three years attempting to codify regulations and create a system of clear expectations for any business that opens or operates in an area where noise complaints might arise, including near a residential area or a hotel. The city’s Music Commission is pushing the City Council to produce an ordinance to clarify expectations and hopefully alleviate tension between the city’s numerous entertainment venues and nightclubs and nearby hotels and residences.

The Live Music Capital of the World

Austin was dubbed the “Live Music Capital of the World ®” in 1991, when it was determined the city had more live music venues per capita than anywhere else in the country. In addition to being the home of over 200 live music venues, Austin annually hosts some of the country’s largest music festivals, including renowned South by Southwest (SXSW) and Austin City Limits (ACL).

The sheer volume of music venues in a relatively small geographic area was eventually going to lead to issues. In 2015, a newly opened downtown Austin hotel began submitting noise complaints against a nearby nightclub, which had been operating peacefully for years. In mid-2017, it appeared the City Council was on track to create a licensing and penalty system for music venues and nightclubs operating within Austin city limits to address these types of complaints. Objections from leaders in the local hospitality industry and music/entertainment industry, however, derailed these efforts.

Current Laws in Place

The current Austin Code of Ordinance specifies a person may not:

1. Use or permit the use of sound equipment at a business in excess of the decibel limits prescribed by this chapter;
a. in excess of 85 decibels between 10:00 a.m. and 2:00 a.m., as measured at the property line of the business; or
b. is audible at the property line of the business between 2:00 a.m. and 10:00 a.m.
2. Make noise or play a musical instrument audible to an adjacent business or residence between 10:30 p.m. and 7:00 a.m.;

Since downtown Austin is packed with music venues, clubs, restaurants, and hotels, these restrictions are very broadly defined for the epicenter of a city built on live music. Creating a more clearly defined set of regulations, including steps for permitting and set guidelines for violations or infractions, could go a long way towards bridging the divide between entertainment venue owners looking to run a successful business and visitors and tourists looking to get a good night’s sleep.

A History of Success With Noise Complaints

The lawyers at Feldman & Feldman have significant experience dealing with noise complaint issues, most recently reaching a successful resolution for Houston residents in relation to White Oak Music Hall. The Greater Heights homeowners’ settlement with White Oak Music Hall included limitations on when and how long shows can be held at the venue. The settlement also prohibited shows on school nights from lasting past 9:30 p.m., along with any outdoor concerts during state STAAR testing. A sound monitoring system was also required, with potential fines reaching up to $15,000 per violation. These regulations have measurably improved the relationship between the residents of this area and the music venue.

Top Sources Of Noise Complaints

Few people understand how disruptive noise pollution is until they experience it firsthand. While noise pollution can occur at any time of the day, many victims experience it at night when they are unable to sleep due to the noise. Noise complaints are a big problem in Houston because the city does not have any zoning laws, meaning businesses can set up shop in the middle of neighborhoods.

The Houston Sound Ordinance

Zoning requirements may not restrict individuals and businesses, but everyone is expected to abide by the Houston Sound Ordinance. The Houston Sound Ordinance protects citizens from all types of noise, including cars and motor vehicles, music, animals, loud machinery, or any other type of disruptive noise. Sound cannot exceed 65 decibels during the day and 58 decibels during the night in residential areas. Permits can allow businesses to have sound up to 75 decibels until 10pm on Sunday through Thursday and 11pm on Fridays and Saturdays.

Top Sources of Noise Complaints

Thousands of noise complaints are made to the City of Houston each year regarding a wide variety of offenders. However, there are a few top offenders that make up most of the sound complaints.

Restaurants and bars are a common source of noise complaints for obvious reasons. These buildings not only house large numbers of people, but they often also feature loud music. Whether the music is live or recorded, it can easily exceed the maximum allowed noise levels. Because these places are often open late, neighbors often lose sleep over noise levels.

Noises complaints are also filed against buildings with noisy generators or HVAC systems. These types of machinery are extremely loud and often operate for hours at a time. All types of buildings, including grocery stores, restaurants, and shopping centers, among many others, utilize these types of machines, but they are still expected to keep noise levels within legal limits.

Specialty businesses, such as mechanics, gun ranges, and construction sites can also produce sound that is well over the legal limit. These locations utilize machines that create a lot of noise and steps must be taken to minimize noise disturbance.

Houston Noise Complaint Lawyers

There is no excuse for disturbing the peace. We have achieved success in multiple high-profile noise complaint cases in Houston. If a business is violating the Houston Sound Ordinance and refuses to abide by legal sound limits, contact Feldman & Feldman today to schedule an appointment with one of our attorneys to discuss your legal options.

Every Citizen Has The Right To Petition Their Government

People are often unaware of all of the rights they possess. An important, but often overlooked, right is a citizen’s right to petition their government. Very few individuals exercise this right, but it is available to everyone and can make a significant impact on communities.

Your Right To Petition The Government

The right to petition the government is one of the oldest rights, not just in the United States, but throughout the western world. It dates as far bag as the Magna Carta, which was signed in 1215 to help limit the powers of the monarchy and give rights back to the people. The right to petition the government was then also included in the English Bill of Rights of 1689 before making its way into the First Amendment of the U.S. Constitution.

How Petitioning The Government Works

If a citizen wants to put a certain issue in front of voters, he or she will need to file a petition with the Texas Secretary of State or the local City Secretary’s office where they want the issue to be voted on. The petition must include a minimum number of signatures from eligible voters in order to be put on the ballot. While the number of signatures can vary from city to city, in Houston, citizens filing a petition need at least 20,000 signatures. Once a person or group has collected the requisite number of signatures, those signatures will need to be verified by the City Secretary or Secretary of State. Once verified, the issue is placed on the ballot in the next election.

Petitioning The Government Is Incredibly Important

It is incredibly important that citizens have their voices heard. Oftentimes, elected representatives and other officials ignore the issues most important to us. By petitioning the government, citizens can bring these important issues into the spotlight for voters to decide on. The ability to petition the government is a crucial part of our democracy and no one should infringe upon this right.

Feldman & Feldman Will Fight For Your Rights

Even though citizens are guaranteed the right to petition the government, some officials will get in the way of individuals and groups exercising this right. When this occurs, Feldman & Feldman can help you fight for your rights. We’ve worked with organizations to protect their right to petition the government and have extensive experience in election law. Contact us today to schedule an appointment to discuss how we can help.

The Differences Between the Texas and U.S. Constitutions

What’s The Difference Between The U.S. and Texas Constitutions?

While many people learn about the U.S. Constitution in school, few give it much thought outside of school, and even fewer give the Texas Constitution any thought at all. While the U.S. Constitution applies to the federal government with the states being subordinate, the Texas Constitution (and all state constitutions) sets in writing what the state government can and cannot do with the counties being subordinate.

While similar to the U.S Constitution, the Texas Constitution has some striking differences, many of which can make it more difficult to file constitutionally based lawsuits under Texas law. One of the most striking differences between the Texas and U.S. Constitutions is length. The U.S. Constitution is intentionally brief and vague, which allows the federal government to broadly interpret it. The Texas Constitution was written leaving little room for interpretation to ensure it cannot be interpreted in a manner inconsistent with the constitution’s ideals.

The Texas Constitution gets its length from going into great detail. While the Texas Constitution grants Texans similar rights to the U.S. Constitution, the Texas Constitution is much more specific regarding exactly when these rights are infringed upon. While it may seem like this specificity would make legal matters cut and dry, in practice it can greatly complicate things.

Filing a Lawsuit Under The Texas Constitution

There are generally two types of lawsuits filed under the Texas Constitution: facial challenges and “as applied” challenges. Facial challenges claim particular portions of the Texas Constitution are unconstitutional. In “as applied” challenges, plaintiffs argue constitutional statutes are being applied unconstitutionally in a way that discriminates against them because of their particular circumstances.

Because Texas has a very specific constitution, it can be difficult to understand whether or not a statute was applied wrongly in “as applied” challenges. Only experienced lawyers familiar with the nuances of the Texas Constitution will be able to determine if a violation has occurred and provide enough evidence to overcome the burden of proof associated with these cases.

Feldman & Feldman: Experts Constitutional Law

At Feldman & Feldman, our attorneys have extensive experience filing lawsuits under the Texas Constitution. We understand how complex these cases can be and are uniquely qualified to litigate and resolve these issues. If you believe your rights under the Texas Constitution have been infringed upon, contact us today.

Common Election Campaign Legal Issues

Running for any public office comes with many strict regulations and guidelines. These regulations are put in place to ensure a fair election and to preserve democracy. Unfortunately, these restrictions only work if those involved with election campaigns abide by them. Election campaigns run into a variety of legal issues involving federal and state regulations, sometimes unintentionally, but other times with the hope their violations will go unnoticed.

Some of the most common election campaign legal issues include:

  • Misappropriation of funds – Campaign funds cannot be spent on just anything. These funds should only be spent on the campaign and are not available for personal use or to purchase things like property or pay interest.
  • Failure to submit reports – Election campaigns must file financial reports with the Texas Election Commission, even in non-election years. During an election year, candidates for office are required to submit four reports throughout the year.
  • Not disclosing advertising – Under Texas campaign law, certain campaign advertising must include a disclosure statement explaining the advertising is “political advertising” or “pol. adv.” and include the name of the person who paid for the advertising, the political committee authorizing the political advertising, or the candidate or specific-purpose committee supporting the candidate.
  • Accepting funds or making an expenditure without a treasurer – Any campaign that receives contributions and/or makes expenditures must first appoint a campaign treasurer and file the necessary paperwork.
  • Accepting funds from prohibited organizations – Candidates cannot accept contributions from everyone. In Texas, candidates cannot receive contributions from organizations like labor unions and most corporations.
  • Accepting out of state contributions – Before accepting any out of state contributions, candidates need to obtain and file required paperwork.
  • Accepting contributions during a legislative session – Most offices in Texas do not allow candidates to accept contributions during a period that begins 30 days before a regular legislative session convenes and ends 20 days after final adjournment

Experienced Election Campaign Lawyers

Failure to abide by election laws could not only jeopardize a candidate’s entire campaign, but it could also cause candidates to face civil lawsuits or even criminal charges. At Feldman & Feldman, our election campaign lawyers are well versed in Texas election laws. We can advise campaigns and help establish procedures for compliance with regulations.

Everything You Need To Know About The Texas Whistleblower Act

As a government employee, what do you do if you discover your employer, a government agency or organization, is breaking the law? While you might feel compelled to report your employer to the authorities, you may be equally worried it could cost you your job. Fortunately, government employees who alert authorities to wrongdoings by their employers are offered numerous protections under the Texas Whistleblower Act.

Blowing the Whistle on an Employer

There are numerous wrongdoings a government agency or organization might engage in, including violating the Texas Open Meeting Act or the Texas Public Information Act, safety regulations, or committing an illegal activity. Unfortunately, blowing the whistle on a government employer comes with many risks. Employees or whistleblowers could lose their jobs and be blacklisted in their respective fields; but, retaliation of this type is also illegal under the Texas Whistleblower Act

The Texas Whistleblower Act

To encourage employees to report illegal activity by government agencies and organizations, state legislators passed the Texas Whistleblower Act in 1983. Under this Act, public employees are protected from various forms of retaliation by employers, including suspension, termination, or any adverse actions against the employee. It is important to note the Texas Whistleblower Act only protects public, and not private employees, with some exceptions. Certain healthcare professionals that report abuse can seek protection under the Texas Whistleblower Act. Additionally, employees reporting violations of the Hazard Communication Act or certain types of discrimination can also be protected from retaliation.

Why You Need A Lawyer

Whistleblower laws in Texas can be complex, and some government agencies and organizations will blatantly violate them. When this occurs, an experienced whistleblower attorney can help victims seek compensation for back pay, benefits and seniority, and other damages. If you work for a public entity and suspect the government agency or organization you work for is committing wrongdoing, you should contact a lawyer immediately. By partnering with an experienced lawyer, you will be able to protect yourself from retaliation. It is also important to work with a lawyer because you need someone who is looking out for your best interests. Law enforcement agencies will work to get justice, and this can sometimes cause the whistleblower to suffer collateral damage. An attorney can protect you and your best interests at all times.

At Feldman & Feldman, we have worked with numerous whistleblowers in Texas as they courageously stand up to government agencies committing wrongdoing. It is our pleasure to serve Houston and the entire state of Texas by supporting and protecting citizens who report government abuses.

What Citizens Should Know About The Texas Public Information Act and The Texas Open Meeting Act

As Texans, we have the right to know what is going on with governmental entities. This not only helps ensure a system of checks and balances, but also serves to keep officials and appointees accountable. However, many Texans are completely unaware of their rights and do not exercise them.

About The Texas Public Information Act

The Public Information Act states “Governmental bodies shall promptly release requested information that is not confidential by law, either constitutional, statutory, or by judicial decision, or information for which an exception to disclosure has not been sought.” Essentially, this means Texans have a right to access most government records. Additionally, Texans requesting records cannot be asked why they are requesting them. Because we elect many of our officials, we have a right to review the work they perform on our behalf. Without this transparency, democracy cannot exist.

The Texas Opening Meetings Act

The Texas Open Meetings Act dictates that governmental bodies must hold open meetings unless there is an authorized reason for a closed session, also known as an executive session. The Texas Open Meetings Act applies to many organizations, like commissioner courts, city councils, school boards, and nonprofit organizations that provide public services or spend taxpayer money among others. Meeting dates and times must be posted at least 72 hours in advance so interested citizens can participate in the meetings if they so choose.

Violations of The Texas Public Information Act and The Texas Open Meetings Act 

Sometimes violations of the Texas Public Information Act and the Texas Opening Meetings Act are simply due to carelessness. Some officials may be unaware of the nuances of the laws, but other times there are specific reasons for violations. There are instances when officials don’t want to share information because it could be incriminating, or at the very least, unflattering. However, restricting this information infringes on the rights of Texans to know what goes on in their government and community.

At Feldman & Feldman, we fiercely protect Texans’ right to information. We will take on local and state agencies to make sure they comply with the Texas Public Information Act and the Texas Open Meetings Act.