Beaumont Court of Appeals takes the ethical approach all the way around in Texas Open Meetings Act case

Justice Charles Kreger recused himself from the Texas Open Meetings Act criminal case involving County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport.

Beaumont, November 1 – The four-person Beaumont Court of Appeals has taken the ethical approach all the way around in the Texas Open Meetings Act criminal case against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport. Justice Charles Kreger recused himself from participating in the case. The Court of Appeals has treated the accelerated appeal as just that: an appeal that requires timely disposition, especially with the March 6, 2018, Republican Primary Election looming and with the intervention of Texas Attorney General Ken Paxton on the side of the Special Prosecutors.

The criminal case

The Montgomery County Grand Jury indicted Doyal, Riley, and Davenport on June 26, 2016, for allegedly violating the Texas Open Meetings Act (“TOMA”) by conspiring to circumvent the open deliberations requirement of TOMA by meeting in numbers less than a quorum to determine the structure of the proposed November 2015 road bond referendum. The factual allegation is basically that Doyal and Riley used Davenport to procure agreements from other Commissioners Court members without, instead, conducting their deliberations in an open meeting properly noticed under the requirements of TOMA.

On April 3, 2017, Visiting District Judge Randy Clapp of Wharton County granted Doyal’s, Riley’s, and Davenport’s motion to dismiss the indictments on the ground that TOMA violates their constitutional rights of free speech and that the statute is so vague they claim they are unable to understand it.

Why Justice Kreger recused himself

Readers may recall that during the early part of 2017, Precinct 3 County Commissioner James Noack was harshly critical of the conduct of Doyal and Riley on many different fronts. For example, Noack wrote a guest editorial in The Golden Hammer, Montgomery County’s leading daily newspaper, on January 22, 2017, entitled “Guest Editorial: “Lipstick on a Pig’ with Rebuttal to Doyal, By Commissioner James Noack.” In various public statements, press releases, columns, and letters to the editor, Noack made his conservative supporters proud by his positions on the following, among others:

  • Noack criticized Doyal’s attempt to concentrate power in the County Judge’s office;
  • Noack criticized Doyal’s secrecy;
  • Noack criticized Doyal and Riley for their efforts to foist the Woodlands Parkway Extension on The Woodlands;
  • Noack criticized Doyal’s and Riley’s conduct that led to their indictments; and
  • Noack criticized the nepotism in which Doyal and Riley engaged to hire their family members as County employees.

In early February, 2017, however, Court of Appeals Justice Charles Kreger had witnessed enough of Noack’s criticism of Doyal in public. Kreger’s family and Doyal’s family have been quite close for several decades. Kreger and Doyal are personal friends. Kreger is usually a soft-spoken man but, when necessary, he can become a fierce advocate.

Therefore, Kreger sent two text messages to Noack in which he harshly criticized Noack for Noack’s purported involvement in Doyal’s and Riley’s indictment under TOMA and for Noack’s public criticism of Doyal which Kreger characterized as a “public spectacle.” In response, Noack reminded Justice Kreger that Noack is on the witness list for the prosecution in the criminal case against Doyal, Riley, and Davenport, so Kreger should not communicate with Noack about those issues.

Very quickly, the angry text messaging back and forth stopped.

Now, let’s be clear. Charles Kreger is an outstanding Justice of the Court of Appeals and an upstanding member of the Montgomery County community. Recent United States Supreme Court opinions have made clear that a judge does not give up his rights to express his political views under the First Amendment just because he holds a judicial position as his job. There was nothing wrong with Kreger complaining to Noack, and there was nothing wrong with Noack’s argumentative response to Kreger.

In fact, Kreger took admirable action with respect to the TOMA matter. When the TOMA case came to the Beaumont Court of Appeals, without waiting for a party to the case to have to file a motion to recuse, and without hiding his ethical discomfort with hearing the Doyal-Riley-Davenport case, Justice Charles Kreger took precisely the right action. He quietly recused himself.

Even if one might disagree with Kreger’s views on local politics, Justice Kreger deserves respect for doing the right thing.

Charles Kreger’s actions have another name: honor and integrity.

Upcoming oral argument(s)

In another important respect, the Court of Appeals did the right thing, and it’s so significant that it may have an historic impact on the future of Montgomery County, which suffers mightily from the corruption emanating from its Commissioners Court. See, for example, “MAJOR BREAKING NEWS: Reed Posts ’95 Theses’ Of Montgomery County Corruption (Partly To Commemorate The 500th Anniversary Of The Martin Luther-Led Reformation)!!!” The Golden Hammer, October 31, 2017. Please note that #1 of Reed’s Post on the Sadler Building concerns the TOMA case.

The TOMA criminal case against Doyal, Riley, and Davenport looms enormously over Montgomery County, because, if convicted, Doyal and Riley face almost certain removal from office for “official misconduct.” The TOMA criminal case, so significant that many citizens already refer to it as the “Trial of the 21st Century,” directly addresses the secret manner in which Doyal, Riley, and Davenport have sought to conduct County business involving hundreds of millions of dollars of decisions affecting Montgomery County taxpayers.

After several months of filing of briefs from the attorneys on both sides of the case and from Texas Attorney General Ken Paxton who has sided with the Special Prosecutors against Doyal, Riley, and Davenport, the Court of Appeals finally set the case for oral argument for November 9, 2017, at 9:30 a.m. It does appear, however, that the criminal defendants would prefer to delay the case as long as possible in order to avoid a decision, which might very well reinstate the indictments against them, until after the March 6, 2018, Republican Primary Election.

Therefore, it came as no surprise that Doyal’s attorney, Rusty Hardin of Houston, whom Doyal’s major political backers Halff Associates engineers, convicted felon Pete Peters of Austin, Varde Partners who are some of the Tx-249 Tollway real estate developers, and San Antonio’s Rick Sheldon who is also a Tx-249 Tollway real estate developer have hired for Doyal, sought to delay the oral argument until after January 18, 2018, which would almost certainly delay an appellate decision until after the election. As one might expect, the Court of Appeals showed its courtesy to Hardin and granted his request for a delay.

This week, however, after this newspaper confirmed as much with the Clerk of the Beaumont Court of Appeals yesterday morning, it became clear that the Court of Appeals will not countenance delay in this “accelerated” appeal any longer. The Court of Appeals has held firm that Riley and Davenport must participate, though their attorneys, in the oral argument originally scheduled for November 9, even though Doyal’s attorney Hardin will argue on January 25.

It would appear that the Court of Appeals will have almost three months between the two oral arguments, easily sufficient time to write an opinion and have an opinion in the criminal case ready to go by the middle of February, 2018, and a few weeks before the March 6 election. Oral arguments are rarely dispositive of appellate cases, as the written briefings are far more significant.

Ultimately, Rusty Hardin will get to put on his show for Doyal and the media. The likelihood, however, is that the Court of Appeals will be ready to rule very soon after the January 25, 2018, oral argument, especially since Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson will have heard essentially all of the points in the briefs and in the November 9, 2017, oral argument.

The Court of Appeals’ actions have another name: honor and integrity.

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