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Can school board use OMA update as justification for restricting public comments?

Question: My school district is claiming that it’s restricting public comment to agenda items due to the recent law (they were previously allowing any comments). This seems like a gross misrepresentation of a change designed to guarantee a right rather than restrict it. Is my understanding correct?

Answer: Looks like your school district is reading the update to the Open Meetings Act in a very literal way that undermines the purpose of the revision in the 2019 legislative session.

We’re talking about HB 2840, which requires government bodies to allow people to comment on agenda items. Yes, the purpose of that was to allow more comments, not fewer, but another section of the revision says the government “may adopt reasonable rules regarding the public’s right to address the body … including rules that limit the total amount of time that a member of the public may address the body on a given item.” The intent of that was to keep the public from wasting time or basically shutting down a session by talking endlessly – not to eliminate public comment time outside of agenda items altogether.

Here’s the bill text:

I’d read that to mean that “people may not speak on anything but agenda items” (as your school district seems to be doing) is not a “reasonable rule” under the law. That would at least be up for interpretation by the AG, and may be worth challenging the ISD on. The Texas Municipal League reads the bill as permitting but not requiring government bodies to allow open comment, as long as the body isn’t restricting public criticism of the body (another passage in the OMA revision). Read this from TML counsel Zindia Thomas, who I respect on open records/meetings matters as acting in good faith on interpreting these things, rather than being reflexively defensive of her organization’s members:

In short, I’d suggest asking your school district to return to allowing an open comment session on non-agenda items, arguing that dismissing public comment altogether is not a “reasonable rule” under the HB 2840 revisions. It may at least be worth seeing if the AG would issue a letter opinion on it. It may also be a call to the AG hotline on open meetings, 512-478-6736.

Ask an Expert Questions and Answers FOI

Can the school board start out in executive session?

Question: We have a school board who (at every regular meeting) meets at 6 p.m. in a called executive session. They come out of executive session at 7 p.m. and enter open session of their regular monthly meeting. This is unlike any body I’ve ever covered. Generally, executive sessions come at the end of the regular meeting and are only entered if needed. Many times they are deemed not needed. This board, on the other hand, religiously has executive session before the called meeting. Is this kosher?

Answer: The Open Meetings Act requires meetings to start in open session. The law could not be more clear about this. See below.


If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed meeting unless a quorum of the governmental body first convenes in an open meeting for which notice has been given as provided by this chapter and during which the presiding officer publicly:

(1)  announces that a closed meeting will be held; and

(2)  identifies the section or sections of this chapter under which the closed meeting is held.

Ask an Expert Questions and Answers FOI

Should an outside presentation to a city tourism board be open to the general public?

Question: A city council appointed tourism board requested an organization come to town and give them a presentation, with q&a afterwards, on how they could and could not spend Hotel Occupancy Taxes (HOT). The board invited city council members and had the intent to invite the general public, but invited only a subset of the community. At the presentation, a quorum of the board was present. Members of the board asked questions of the presenter. Questions included examples of ways they had spent and planned to spend HOT funds. No meeting notice was posted about the event. Was this an Open Meetings Act event or not?


Yes, if a quorum of the board is present, and they’re deliberating (which this appears to be) or receiving information and asking questions of a third person (which this also appears to be), then this is a “meeting” under TOMA. See the definition below.

(4)  “Meeting” means:

(A)  a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or

(B)  except as otherwise provided by this subdivision, a gathering:

(i)  that is conducted by the governmental body or for which the governmental body is responsible;

(ii)  at which a quorum of members of the governmental body is present;

(iii)  that has been called by the governmental body; and

(iv)  at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control.

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Questions about reporting on nonprofits

Question: Nederland, Texas, is not unlike many small towns in Texas in that they have an annual heritage festival. That festival is operated via a nonprofit group. Late last year, the head of that group stepped aside after years of service amid speculation that she had stolen funds (somewhere around $300,000 or so). In the last month, two members of the nonprofit board said, on background, this did in fact happen, and there was no criminal complaint made and no outside investigation or arrest.

A week ago, a lawyer for the Nederland Heritage Festival admitted in a public letter that those funds were, indeed, “misused.” He also admitted there was only an internal investigation and there were no criminal proceedings. My questions are: If a nonprofit admits that funds were misused, does it have an obligation to report that to the IRS? Would a nonprofit pay taxes on funds that went missing through misuse? Could such an admission trigger any sort of penalty or investigation on the part of the IRS? Could this threaten their nonprofit status? Could there be any legal or federal or state sanctions for failing to disclose a misuse of funds by a nonprofit? In other words, can a nonprofit sweep something like this under the proverbial rug without any repercussion?

Answer: [Provided by Mark Horvit, former executive director of Investigative Reporters and Editors] Because they got reimbursed for the money, it’s less likely any criminal case would be pursued. I say that not from legal expertise, but past experience. That’s not because it¹s a nonprofit, just because the victim would have been made whole and a lot of law enforcement agencies don’t pursue those cases.

However, I would check with the state attorney general’s office, because the AG has a unit that investigates nonprofits and keeps information on their standing. I would think they would want to look into this, if they aren¹t already doing so. We did a project on that state AG unit about 12 years ago at the Star-Telegram, and one of our findings was that they don’t investigate anything unless the public or media brings it to their attention. So if the paper wants to do that, it could trigger an investigation if there isn’t already something underway. Here’s a link to the page with more info.

Similarly, it would be worth checking with the IRS, as this could have implications to the 501(c)(3) status. The statement they put out is an admission that there was wrongdoing.

I would also want to see evidence that they’ve put accounting practices in place that will help guard against whatever happened. There are two reasons I would want to see those: to see if they organization really has taken steps, and also because those steps could give a good indication of what happened in the first place. And I would argue that that information does not violate any agreement they have with the person or people who embezzled (if that’s what it was), because this is about policies and procedures, not the specific case.

I looked at the organization’s most recently posted Form 990 (these IRS forms are required of all non-profits). It doesn’t show evidence of theft (and it wouldn’t), but it does show financial scope. I would request the most recent one from the organization itself, as this one is at least a year old (They always run a year behind).

Note: IRS Form 990s are filed by all non-profits. You can ask any non-profit to show you its latest 990, or you can access any non-profit’s 990 from Guidestar.

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The cost of Texas court records

Question: Are courts (criminal/civil/etc) bound by law to charge newspapers for printed copies of court documents? Our district court clerk says everyone–even the media–must pay a $1 per page for any  material printed for us. Is there a way around this?

Answer: Copying costs are set by statute, and they are more expensive for court records than for records of other government agencies.

Section 106.0611 of the Texas Government Code outlines the fees for copies of state district courts. For non-certified copies, the courts may collect “no more than $1” for each “page or part of a page.” (Tex. Gov’t Code Sec. 106.0611(15)).

You can ask the court to waive the fee, but you can also ask to look at the court record and take photos of the page with your phone. That’s free.

The court records fee structure is different than “government agencies” that are subject to the Public Information Act. Under that fee structure, set out in Rule 70.3 of the Administrative Code, standard copy fees are set at 10 cents per page.$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=1&pt=3&ch=70&rl=3


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Fannin is lone Texas county excepted from public notice requirement

Question: On 7-13-16 Austin Lewter published a blog about public notices and the definition of general circulation newspapers, and stated that there was an exception for one Texas county.  I am wondering if that county is Fannin and how that exception was granted.

Answer: Thanks for talking the time with my blog about Newspapers of General Circulation. It is a term we throw around quite a bit, but it is important to break it down to truly understand all the implications.

The short answer is, “yes,” Fannin County is exempt from certain parts of the state mandates for public notices. And, yes, it is the only county in the state with such exemptions. The key is they are only exempt from certain requirements. The reasons are quite interesting.

Fannin County serves as the gateway to the Northeast Texas Piney Woods. Its northernmost border is the Red River and, as such, Oklahoma. It is dissected by U.S. Highways 82 and 69 as well as State Highways 121, 78 and 56, all of which make their ways to Interstates well beyond the county line.

Fannin County shares boundaries with six other counties in all directions. The county population was 38,915 in 2010. Of that, 10,127 people reside in the county seat of Bonham. The county saw its peak population of 51,793 in 1900. In addition to Bonham, Fannin County includes eight other cites, four towns and nine incorporated communities.

Like any other bustling frontier county, Fannin has a storied history of newspapers. According to the Texas Historical Commission, numerous newspapers were started during the early years of the county. The Bonham Sentinel, the first to be published, began in July 1846. The Northern Standard was published in Bonham from a month later until April 1847. Other early papers included the Western Argus (1847), the Bonham Advertiser (1849), the Western Star (1853), the Bonham Independent (1858) and the Bonham Era (1859).

After the Civil War, new newspapers included the Bonham News (1866), Honey Grove Independent (1873), Dodd City Spectator (1886), Bonham Review (1884) and Honey Grove Simoon (1884). The Weekly Fannin Favorite was established in Bonham in 1887. It expanded frequency in 1892 and became the Bonham Daily Favorite. The Daily Favorite is no longer publishing. After more than a century, the Favorite shuttered its doors some time ago.

The closing left a decent-sized town (Bonham) without a Newspaper of General Circulation. There are two weekly paid newspapers left in Fannin County. The Leonard Graphic serves the small town of Leonard in far southern Fannin County with a paid circulation of 710 and the Trenton Tribune serves the even smaller town of Trenton with a paid circulation of 772. Trenton, likewise, is in the extreme southern part of the county and has some property across the line in Grayson County.

The absence of the Favorite led to opportunity for a TMC product already in existence in Bonham called the Fannin County Leader. It is a 32-page tabloid mailed with a circulation of 15,500. It offices in Bonham and has been established for more than 40 years. Unlike, other shoppers, it does contain some news and editorial copy; but (like all shoppers) it is mailed free to readers with a Third Class Mailing Permit. Therefore it has no paid circulation. But it is a 32 page product full of ads and some news that is, by all accounts, heavily read in Fannin County… especially without a paid circulation newspaper in the county seat.

You’ll remember, to be a Newspaper of General Circulation, a paper must:

  1. 1. devote not less than 25 percent of its total column lineage to general interest items;
  2. 2. publish once each week;
  3. 3. enter as second-class postal matter in the county where published; and
  4. 4. have been published regularly and continuously much longer than 12 months.

The 25 percent requirement for general interest items is the difference between a newspaper and not an ad circular. To receive a 2nd Class Postage Permit, you must have at least 25 percent news in your product. Otherwise, you file a 3rd Class Permit and are therefore, by most definitions, a shopper. Third class postage is direct mail sent for free to zoned zip codes as ordered by the publisher. As long as you are covering at least 75 percent of the addresses in a ZIP code, you are considered a “Total Market Coverage” (TMC) product. The Fannin County Leader is a free TMC product, not a paid newspaper. But TMC products are audited as well and one that honestly has a circulation of near 50 percent of the total population of the county is doing something right. On the flip side, though, free TMC products don’t have to play by the same rules as paid newspapers. They can print all ads and no news, if they wish. They are not required to print any news or general interest stories.

After the closing of the Favorite, it became evident that more people in Fannin County were reading the Leader than the Leonard Graphic or the Trenton Tribune. This seems evident, as well, based upon the latter two’s self-reported circulation numbers. In 2003, a young lawyer named Larry Phillips won a special election to represent Fannin County in the Legislature. His predecessor, Ron Clark, had been appointed to a federal judgeship by President George W. Bush.

I know Larry Phillips and once discussed the Fannin County matter with him on a sidewalk bench outside of my office in Whitesboro. He is my state representative as well. Phillips said a group of citizens came to him from Fannin County asking if there was any way they could publish their public notices in the Leader as opposed to either one of the weeklies. “To me, it made sense,” Phillips said. “More people read the Leader so the seemed to reason that public notices should be published there… but, I admit, I was a rookie representative and, beyond that [even though he is an attorney], I had no idea what the legal requirements of a Newspaper of General Circulation really were.”

He soon found out, though. After protests from the Texas Press Association and the two weekly newspapers in Fannin County, the Texas House passed Phillips’ bill reverting public notices in Fannin County back to the Fannin County Leader. To be specific though, the law does not mention any publication by name. It simply exempts Fannin County from the requirement to post notices in a publication with a Second Class Mailing Permit. In another words, Fannin County still must publish all of the same notices as everyone else in the state; the county is just allowed to publish those notices in a free publication as opposed to a paid newspaper. The exemption only applies to Fannin County. Right or wrong, the whole narrative has great implications for the public’s right to know and the government’s requirement to publish. What happens when a county seat does not have a newspaper? I hope it’s not a question other counties have to answer in the future.

Ask an Expert Questions and Answers FOI

Can officials routinely wait 10 days to respond to my records requests?

Question: City officials routinely wait 10 days on all my open records requests, even when those records are easily accessible. Is that a violation of the Texas open records laws?

Answer: The Texas Public Information Act (552.221) does indeed give officials 10 days to produce a document “if it is in active use or in storage.” But otherwise, the law stipulates that the record shall be produced “promptly.” The law leaves no doubt about what that means: “An officer for public information of a governmental body shall promptly produce public information for inspection, duplication, or both on application by any person to the officer.  In this subsection, “promptly” means as soon as possible under the circumstances, that is, within a reasonable time, without delay.”

For city officials who want to quibble about the definition of “promptly,” note that the law itself defines the word: “without delay.”

Also, the Attorney General’s Guide to the Public Information Act specifies this on page 22: “’Promptly’ means that a governmental body may take a reasonable amount of time to produce the information, but may not delay. It is a common misconception that a governmental body may wait ten business days before releasing the information. In fact, as discussed above, the requirement is to produce information ‘promptly.’ What constitutes a reasonable amount of time depends on the facts in each case.”


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Are inmate health records public?

Question: I interviewed a jail inmate yesterday who claims that deputies broke his ribs in two places when they arrested him on Dec. 16. He said he complained of the pain daily, but they didn’t x-ray him until Jan. 29. Can I get a copy of the x-rays and any related medical documentation provided the inmate signs off on it?

Answer: I’m sure a request would (appropriately or not) denied with HIPAA as an excuse.  The inmate can request those records, of course, and pass them on to the reporter.

I’d argue that AG Open Records Decision 577 (1990), as noted in the AG handbook, would allow a person to request personally identifiable health information maintained by a state agency with the permission of the person named in the record.  That would be under 552.023.

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My newspaper’s black isn’t black enough. What do I do?

Question: My black isn’t black enough. That is to say, I wanted to do a fancy-schmancy reverse for my front cover, a film noir look about two detectives who solved a crime, but when the paper came back from the printer the black background was actually quite grayish. I’m told it has something to do with dot gain. The page proof looked sharp on my computer, just not on news print.

Answer: The answer to getting a smooth, crisp, rich black display on newsprint can be very simple or very complicated.

The simple answer: Ask your printer.

The variables of printing on newsprint are numerous. Quality can depend on the weight and brightness of the newsprint, composition of ink, water acidity, plate and blanket quality, number of copies in the run, prepress production and the characteristics of a particular press. Your printer should know her press well enough to give you the proper workflow to achieve the best quality solid black she can print.

The complicated answer: If the printer doesn’t know how to do this, you will have to figure it out yourself.

Tips and guidelines for complicated answer:

  • Your printed product will never look as good as the digital proof, pdf or production page on your computer screen. Your print product is printed on paper with four layers of ink applied on top of each other. Your computer screen projects three colors of light that are pure, intense and directed straight into the human eye. The reflective colors of the printed page will never reproduce the illumination of the screen. Focus on your printed product and keep print samples of color and design treatments that are successful.
  • Don’t expect the products printed on your press to look like the final product of others. You can compare newspapers and ask what you need to do to yield similar results, but another paper’s workflow, standards and capabilities will usually contain significant differences, ones which your printer cannot duplicate. It is similar to cutting cardboard in a straight line. Both scissors and a utility knife will cut, but a utility knife and a metal straightedge will cut straighter and faster. Focus on your printed product and the tools you have to work with.
  • A large, pure 100 percent black area can cause some press challenges. Sometimes it does not look black enough because a portion of the ink has been absorbed into the paper and loses its intensity, cannot be absorbed further and smears on the surface or prints with whitish strands due to a press blanket that is picking up loose fibers from the newsprint. You can try different/better ink, different/better paper or clean the press. If you have no control over the materials that are used in the operation, you may have to be satisfied that your press can only print a dark gray.
  • “Dot gain” refers to how much a halftone dot grows in diameter when printed. Depending on the press, a halftone dot can grow up to 30 percent when printed on newsprint. Some designers achieve a smoother black by selecting 80, 85, 90, or 95 percent black rather than 100 and let the dot gain flood the area uniformly.
  • “Rich black” refers to a black that is composed of cyan, magenta, yellow and sometimes black. It offers a richer, darker black but yields “0” forgiveness for poor registration and will make any reversed type a challenge to print and read. Avoid rich black on newsprint, especially if you are reversing out type.
  • A few designers have found that adding 15 – 30 percent cyan to a 90 – 95 percent black can often yield a darker black. It takes time and consistent prepress and printing to allow for testing, but once you find the right percentages you will have a great approach to use in your page designs.

Whether you are fortunate enough to be successful with the simple solution, or have no other choice than to go experimenting on your own, you should always rely on the knowledge and experience of you printer.

Ask an Expert Questions and Answers Social media

Can I quote a public Facebook post in my story?

Question:  A person posts on a Facebook open forum page he manages about witnessing a fire and how he tried to help. Then stated how the fire department was slow to arrive at the scene. He said he didn't want to be quoted during private messaging, then posts it for everyone to see. Can I use this in my story, saying this is what was posted on Facebook?

Answer:  Legally, yes printing truthful, accurate information in a public place will not lead to any liability.  Particularly if it was posted on an “open forum” (presumably a Facebook page viewable by the general public, not just those invited to participate or closed and available only to friends).

Ethically, that's the reporter's call.  If somebody says “please don¹t use this” and you do the opposite, there should be compelling reasons.  This would certainly need more investigation on your part – this person said that the fire department was slow to arrive, but what was his expertise in judging response times?

Certainly it needs a comment from the fire department.  And perhaps some investigation on fire department response times.