Beaumont, August 23 – Criminal defendant and Montgomery County Judge Craig Doyal filed his responsive brief in the Beaumont Court of Appeals on Monday, August 21, 2017. The State of Texas is appealing the dismissal of Doyal’s, Precinct 2 County Commissioner Charlie Riley’s, and local political boss and consultant Marc Davenport’s criminal case on constitutional grounds.
Visiting District Judge Randy Clapp dismissed the criminal charges against Doyal, Riley, and Davenport on April 3, 2017, after the Montgomery County Grand Jury indicated them in June, 2016, for allegedly violating the Texas Open Meetings Act (TOMA) arising out of their alleged attempts to circumvent TOMA’s provisions prohibiting communications in a quorum outside of an open meeting. More specifically, Doyal was indicted for allegedly communicating in numbers less than a quorum with the intent of violating TOMA essentially by establishing a “walking quorum” in order to get a road bond referendum on the ballot in November, 2015.
The November, 2015, road bond referendum eventually passed after Doyal, Riley, and Davenport negotiated an arrangement with the Texas Tea Party Patriots PAC to leave the proposed Woodlands Parkway Extension off of the ballot and off of future transportation plans for Montgomery County.
Despite the passage of the road bond referendum, very few of the road bond projects have proceeded in the two years since the messy circumstances resulting in the indictments. Riley has failed to proceed with the vast majority of the road bond projects in Precinct 2 while Precinct 1 County Commissioner Mike Meador has moved forward with only a handful of the road projects on his list.
Doyal argued in the trial court that Section 551.143 of the Texas Government Code under which he and his co-defendants were indicted violates his right to free speech. Specifically, the prohibition reads:
“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”
Doyal argued that TOMA is unconstitutional vague and is a content-based regulation of speech which violates his right to speak freely under the United States Constitution.
Under federal and Texas law, restrictions on political speech pass constitutional muster if they restrict the “time, place, and manner” of political speech. The best example of such a restriction, which clearly is constitutional, occurs when Doyal himself restricts the time during Commissioners Court meetings when citizens may speak. Doyal also restricts the length of citizens comments to 3 minutes each. Those are examples of valid time, place, and manner restrictions.
When applied to himself, however, Doyal argued in his brief filed in the Court of Appeals that the requirement of TOMA that Doyal only conduct “public business” in open meetings properly posted with notice to the public is an unconstitutional limitation on his speech. Doyal apparently believes that he, as County Judge, may restrict the political speech of citizens during Commissioners Court meetings but no one may restrict his speech about the same “public business” about which citizens speak.
Doyal tried to argue that TOMA is a “content based regulation of speech.” Specifically, he argued in his brief to the Court of Appeals that he could speak to members of Commissioners Court about non-public business but not about public business, so, he argues, it’s a “content based regulation.” That argument would seem to go a bit too far.
The City of Chicago has regularly regulated the location, length, and noise level of Nazi rallies in downtown. If someone merely wanted to speak to others walking down the street about daily pleasantries, the City of Chicago has not attempted to regulate such activities. The United States Supreme Court and federal courts of appeals across the United States have regularly held that such “time, place, and manner” restrictions are permissible.
Similarly, the Texas Legislature limited the time, place, and manner of Doyal’s conduct of “public business” to open meetings in accordance with the public policy of open government of the State of Texas. Doyal objects to any infringement on the time, place, and manner of his conducting public business, even though he aggressively regulates the time, place and manner of the political speech of citizens who seek discourse with him or other members of the Commissioners Court.
Interestingly, even though Doyal argued for 35 pages in his brief about his specific objections to the constitutionality of TOMA’s Section 551.143 and the manner in which it allegedly prohibits his free speech, Doyal finished his argument with the assertion that the statute is so vague that he cannot comprehend it.
Doyal wrote in his brief that a person or ordinary intelligence could not know what was prohibited under TOMA. Apparently, Doyal can’t understand that trying to have secret meetings in numbers less than a quorum for the purpose of circumventing the open meetings requirements of TOMA is conduct which is illegal.
Doyal’s four page vagueness argument failed to cite statutory or case authority, which would seem to violate the briefing rules of Courts of Appeals. Doyal claimed not to understand what are “secret deliberations,” “public business,” or “to conspire.”
Perhaps, the Court of Appeals will explain those concepts to him in their opinion, which ought to issue after Riley and Davenport file their briefs and after the oral argument which may occur later this year.