Image: Left to right, local political boss Marc Davenport and Montgomery County Judge Craig Doyal, criminal defendants in the Texas Open Meetings Act case, better known as “The Trial of the 21st Century,” due to its potentially significant impact on the makeup of the Montgomery County Commissioners Court. Commissioners Court members are subject to removal from office if found guilty of “official misconduct.” A violation of the Open Meetings Act is a form of “official misconduct” under Texas law.
Beaumont, August 2 – Criminal defendants Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss and consultant Marc Davenport obtained a 21-day extension on July 31, 2017, to file their appellate brief in the Texas Open Meetings Act (“TOMA”) criminal case pending against them in the Beaumont Court of Appeals. The State of Texas is appealing Judge Randy Clapp’s dismissal of the criminal case after Doyal, Riley, and Davenport claimed that TOMA unconstitutionally infringes upon their rights of free speech under the First Amendment and that the statute is so vague that they cannot understand its prohibitions.
The State of Texas prosecutors filed their appellate brief on July 10.
Faced with serious criminal charges that could potentially lead to Doyal’s and Riley’s removal from office for “official misconduct,” Doyal, Riley, and Davenport, who clearly controls many of the actions and policy decisions of Doyal and Riley, sought a dismissal of the criminal cases against them by claiming that the TOMA statute is unconstitutional. As the State of Texas noted in its Brief, there was no testimony yet in the trial court concerning the facts that gave rise to the indictments. Rather, the hearing before the trial court was primarily a bunch of lawyers who claimed to be experts in TOMA. The trial judge, Visiting District Judge Randy Clapp of Wharton County, dismissed the cases against Doyal, Riley, and Davenport on April 4, 2017.
While Doyal, Riley, and Davenport tried to argue that TOMA is a restriction on their right to free speech under the First Amendment. Of course, Doyal and Riley certainly seem to understand the concept of “time, place, and manner restrictions” as being reasonable by the manner in which they limit citizen comments to 3 minutes and only during certain time periods during the meetings of the Montgomery County Commissioners Court.
The main point of the State’s Brief was:
TOMA “applies only to a quorum of the members of governmental bodies on ‘public business or public policy over which the governmental body has supervision or control,’ and does nothing to restrict communications between these elected officials and between any of them and the public outside the procedural restraints by the TOMA statutory structure.”
In other words, TOMA is merely a “time, place, and manner restriction” just like regulations of citizen comments during the Commissioners Court meetings, a reasonable restriction on free speech, as the United States Supreme Court has recognized for well over a century. The prosecutors also argued that TOMA’s restrictions on the time, place, and manner of speech within the TOMA are reasonable, because those restrictions contribute to the “salutary and compelling goals of transparency, faith in government, creating an environment where corruption cannot thrive…” Doyal, Riley, and Davenport, who primarily operate in secret, clearly do not support the goals of transparency or creating an environment where corruption cannot thrive.
The prosecutors pointed out to the Court of Appeals that the constitutionality of TOMA has already been squarely addressed by the United States Court of Appeals for the Fifth Circuit in the Asgeirson v. Abbottdecision in 2012. They also brought to the appellate judges’ attention that one of the Defendants’ witnesses, attorney Alan Bojorquez, conceded that point regarding the Asgeirson opinion.
Concerns about an electoral mess: bad timing
The delays in progress in the appeal in Doyal’s, Riley’s, and Davenport’s criminal case may set up messy circumstances for voters in the upcoming March 6, 2018, Republican Primary Election.
Although the criminal defendants’ appellate brief is now due on August 21, 2017, this extension was their first. It’s highly likely, given the progression of this case, that the Defendants will obtain another 20 or so day extension and one more after that. Therefore, it’s probable that the Defendants will file their appellate brief around September 30, 2017.
The Court of Appeals has designated this appeal as expedited, which means that they’ll likely set the case for oral argument within approximately ninety (90) days after the Defendants file their brief.
If the oral argument occurs around mid-December, there’s a good chance that the Court of Appeals will not render an opinion until after the March 6, 2018, Republican Primary Election. Therefore, voters will possibly have already decided the next County Judge and Precinct 2 Commissioner without the benefit of knowing whether the incumbents – Doyal and Riley – will continue to face removal from office for “official misconduct.”
Doyal, Riley, and Davenport may not ultimately be found guilty of violating the TOMA. Nevertheless, they’ve placed voters in a position that creates grave uncertainty and a serious possibility that courts may step in and end the political careers of the Defendants.
At this point in time, Doyal will face State Representative Mark Keough who is challenging in the Republican Primary Election.
Riley faces a challenge from Conroe businessman Brian Dawson and from Conroe author and former Comal County Commissioner Gregory Parker. Both Dawson and Parker are longtime Republican Party activists.