Individual rights and political scientists are raising questions about the Tarrant County Commissioners Court decorum policy that led to the arrest of two people.
Former state Rep. Lon Burnam of Fort Worth was carried out of the Aug. 4 court meeting by sheriff’s deputies after he picked up the microphone during his allotted one minute. EJ Carrion of Fort Worth was kicked out of the meeting for cursing and then arrested a week later on a warrant issued by the county.
Notably, both had been kicked out of a Tarrant County Commissioners Court meeting once already this year.
Both were released on a personal recognizance bond within a day of being booked into the county jail system. They are also facing criminal charges that could mean up to 18 months in jail and $6,000 in fines.
The charges are hindering proceedings by disorderly conduct, a Class A misdemeanor, and disrupting a meeting or procession, a Class B misdemeanor.
Brennen VanderVeen, an attorney at the Foundation for Individual Rights and Expression, said he believes there are unconstitutional provisions within the county’s decorum policy. The Philadelphia-based foundation was founded as a non-partisan group and has challenged both Democrats and Republicans on First Amendment issues across the country.
The Tarrant County decorum policy prohibits personal attacks, impertinent, profane, obscene, or slanderous remarks as well as threatening, disruptive or unruly behavior.
Leah Nesbitt, a spokesperson for County Judge Tim O’Hare, said the policy exists to allow as many voices as possible to be heard at meetings in an orderly manner. She pointed to the fact that every large county in Texas has a decorum policy, and many of them are stricter than Tarrant County’s.
“These rules do not silence passionate or critical voices. Maintaining order is necessary to serve all constituents efficiently and effectively,” Nesbitt said.
VanderVeen said he takes issue with the vagueness of some of the policy, saying it would be impossible to quite know where the line is on what is considered a personal attack or profanity.
“If I were going to this meeting to talk, I don’t know what comments wouldn’t be allowed, and that’s a problem,” the attorney said.
The gray area in the decorum policy, VanderVeen said, gives the presiding officer, often O’Hare, ultimate discretion. He worries local government officials tend to be overzealous in determining what criticism goes too far.
“You can have policies that are meant to allow the expression and meant to make sure things are done in a basically orderly fashion. That all is fine,” VanderVeen said. “The problem is when the rules are vague and give the government officials discretion to enforce them at their whim, and when they target particular viewpoints, which in practice is generally giving criticism.”
Brandon Rottinghaus, a political science professor at the University of Houston, agreed that the decorum policy needs to provide predictability for the public.
“The rules should be designed to let more speech be accommodated instead of less,” Rottinghaus said. “How and where you draw that line is really important because that does give you a sense of what is and is not allowed, and people need to know what that is and where that line is.”
Generally, the decorum policy is similar to other Texas municipalities’, Rottinghaus said. It’s relatively generous in that three minutes are allotted to be used on any topic, on or off the agenda, he added.
VanderVeen said he’s never come across an instance when someone was arrested days after the fact. Arrests typically happen in public meetings when someone refuses to leave, he said.
On Aug. 4, Carrion walked out on his own accord, whereas Burnam lay down on the floor when the sheriff’s deputies approached to escort him out. Despite the difference, the two are facing the same charges.
Because of the unconstitutional provisions within the decorum policies being the bases of the arrests, VanderVeen said the court should overturn the charges.
District Attorney Phil Sorrells said in a statement: “The rules of decorum are grounded in respect for the law and the Constitution. Our country was built on the rule of law, not chaos. In both of these cases, individuals made a choice: they chose chaos over law and order.”
The arrests may create a “chilling effect on future public comment,” Rottinghaus said.
A person considering speaking to their elected officials will no longer be nervous about being cut off but instead about finding themselves in jail.
“It may minimize people’s willingness to participate in this way,” Rottinghaus said. “That lowers their voice in a participatory democracy. Whether these criticisms prove legally correct or not, arrests can make the perceived costs of participation dramatically higher.”
Nesbitt said the sheriff’s office determines who to arrest, not O’Hare.
“As the presiding officer, Judge O’Hare’s duty is to maintain an orderly meeting for the benefit of the public and the efficiency of conducting government business on behalf of Tarrant County residents,” she said.
Elected officials, activists and civil rights organizations have also spoken out against the actions. Alex Montalvo, a friend of Carrion’s and fellow activist in Fort Worth, said the arrests are persecution for speech protected by the First Amendment.
“If the decorum policy is the reason that O’Hare and the Commissioner’s Court and the district attorney felt they could issue a warrant for the arrest of EJ, this would seem like it’s in violation of First Amendment rights, and that is our government using oppressive tactics to suppress speech, and should be something that none of us tolerate,” he said.
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Rachel Royster is a news and government reporter for the Fort Worth Star-Telegram, specifically focused on Tarrant County. She joined the newsroom after interning at the Austin American-Statesman, the Waco Tribune-Herald and Capital Community News in DC. A Houston native and Baylor grad, Rachel enjoys traveling, reading and being outside. She welcomes any and all news tips to her email.