Analysis of AG Opinion JM-1071 (1989)
Regarding the Texas Open Meetings Act
by Donald Ray Burger
Attorney at Law

This is an important decision on the TOMA. In 1987 the TOMA was amended to add Section 2A requiring the governmental body to maintain a certified agenda or tape recording of a closed meeting. Subsection 2A(h) made it unlawful to "make public the certified agenda or tape recording of a meeting or that portion of a meeting that was closed under authority of this Act." The question arose whether that prohibition acted to prevent members of the governmental body from talking about what went on during a closed session without violating subsection 2A(h). If it did, it was argued, that such a law would violate freedom of speech under the First Amendment.
The Attorney General avoided the First Amendment issue by holding that nothing in the TOMA prevents a member of a governmental body from speaking about what went on at a closed hearing. The AG held that subsection 2A(h) "does not prohibit persons who are present at the executive session from afterwards talking about the subject matter of the session."

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