Analysis of 790 S.W.2d 299
with Regard to
the Texas Open Meetings Act
by Donald Ray Burger
Attorney at Law

Acker v. Texas Water Com'n, 790 S.W.2d 299 (Tex. 1990).
Holding of Case: A "meeting" under TOMA includes any deliberations involving a "quorum" of the members of the governing body at which they discuss any public business or policy over which they have control. There is no such thing as an "informal" meeting. A meeting either complies with TOMA or it is an illegal meeting.
Analysis of Case: Acker wanted approval from the three member Texas Water Commission for a wastewater treatment plant. A hearings examiner had given a favorable recommendation. Acker was at the public hearing when a recess was called for a bathroom break. Acker's lawyer overheard two of the commissioners talking about Acker's application while standing side-by-side at the urinals in the restroom. After the recess the permit was voted upon and denied. Acker alleged that the discussion at the urinals was an illegal meeting because two of the three commissioners constituted a quorum, and any discussion of the application would be an illegal meeting.
Acker moved for a summary judgment in front of the trial court. His lawyer filed an affidavit swearing to what the lawyer had heard the two commissioners discussing at the urinals. The two commissioners filed affidavits that they "had no recollection" of any conversations outside the hearing room and that, based on their habits, such conversations were "highly unlikely."
Ruling of the Texas Supreme Court: (1) The trial court order granting Acker a summary judgment is overruled because the affidavits of the commissioners created fact issues that a jury would have to resolve. The case was sent back to the trial court for trial.
That is not the end of the importance of this case, however. This case has great language in it. The court notes, "The executive and legislative decisions of our governmental officials as well as the underlying reasoning must be discussed openly before the public rather than secretly behind closed doors. " 390 S.W. 2d at 300. The Court also noted, "A 'meeting' includes any deliberation involving a 'quorum' or majority of the members of a governing body at which they act on or discuss any public business or policy over which they have control." 790 S.W. 2d at 300. In fact, no one argued that the meeting would be legal. The case turned on the technicality of whether a summary judgment was proper given that the commissioners swore that it was "highly unlikely" that they would ever discuss public business outside the meeting room.
A last quote from this great case: ""Our citizens are entitled to more than a result. They are entitled not only to know what government decides, but to observe how and why every decision is reached. The explicit command of the statute is for openness at every stage of the deliberations. Accordingly, we have demanded exact and literal compliance with the terms of this statute." 790 S.W. 2d at 300.

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