Attorney General Opinion Provides Clarification on Public Comment Requirements at Meetings of Governmental Bodies

Attorney General Ken Paxton issued opinion KP-0300 addressing questions related to public comment sessions during open meetings.

Recently adopted legislation (HB 2840, 86th Legislature (2019)) created a new requirement under the Open Meetings Act that a governmental body must allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting to address the body regarding the item at the meeting before or during the body’s consideration of the item.  KP-0300 clarifies that a governmental entity satisfies this requirement by having a single public comment period at the beginning of an open meeting to address all items on the agenda (i.e., the public comment does not need to occur immediately adjacent to the discussion of the item or separate from public comment on other agenda items.).  This allows an entity to deviate from what had previously been a standard course of conduct of allowing members of the public to comment on items as they were considered by the governmental body.

HB 2840 also included a provision permitting a governmental body to adopt reasonable rules regarding the public’s right to address the body, including time limits.  The underlying request for this opinion (RQ-0313-KP) asked whether a governmental body may limit the total amount of time it gives a speaker to address all desired agenda items (The governmental body only permits public comments at the beginning of the meeting and has a policy of a 3 minute time limit for testimony per item. A member of the public wanted to comment on 17 of the 21 agenda items and argued he should be given 3 minutes per item (51 minutes total) for the public comment period.).  While not opining on whether any particular period of time is permissible, the Attorney General stated that a rule capping the total amount of time a speaker has to address all agenda items is permissible only if the rule is reasonable. A reasonable period of time will depend on many factors, including the number of agenda items and their complexity, and is a fact question for the governmental body to determine in the first instance subject to judicial review.

While this opinion may not result in widespread changes to many governmental bodies’ current practice of allowing individuals to speak on specific items as they are considered (subject to a time limit), it does provide a potentially useful option if a governmental body is ever faced with chronic abusers of the right to address the body or if there are contentious items which draw a large number of speakers.