Image: Chief Justice Steve McKeithen of the Ninth Court of Appeals of Beaumont.
Beaumont, April 29 – The Ninth Court of Appeals at Beaumont has accelerated the appeal in the criminal case against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and political consultant Marc Davenport for allegedly violating the Texas Open Meetings Act (“TOMA”). On April 20, 2017, Special Prosecutor Christopher Downey of Houston filed a Notice of Appeal declaring that the State of Texas is appealing Visiting District Judge Randy Clapp’s dismissal of the criminal case against all three defendants after he held TOMA unconstitutionally vague and a violation of the defendants’ rights of free speech.
On Friday, April 21, two significant events occurred in the appeal. First, Justice Charles Kreger of Conroe rescued himself from the appellate proceedings. Second, the Court of Appeals set the appeal on an accelerated hearing schedule.
Kreger had previously recused himself from an emergency appeal which Davenport had filed after Clapp refused to dismiss him from the case. TOMA Section 143 under which the Montgomery County Grand Jury indicted Doyal, Riley, and Davenport, provides:
“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 [TOMA] by meeting in numbers less than a quorum for the purpose of secret deliberations.”
Since Davenport is not a “member…of a governmental body,” it always seemed strange that he has remained among the defendants charged in the case. The Court of Appeals denied Davenport’s emergency appeal after a unanimous ruling by Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson.
Since Kreger recused himself from the pending appeal, McKeithen, Horton, and Johson will form the panel of appellate judges who will consider the appeal from Clapp’s April 5, 2017, ruling in which he declared TOMA unconstitutional.
The Court of Appeals did not provide any explanation for its acceleration of the State’s appeal in the TOMA case against Doyal, Riley, and Davenport. Accelerated appeals in cases of this nature are not uncommon. Some of Texas’ appellate courts have local rules in which they always treat any appeal arising under article 44.01 of the Texas Code of Criminal Procedure, the statutory provision under which Downey filed this appeal, as accelerated. Amarillo’s Court of Appeals is one of those with such a local rule. Other appellate courts treat any appeal under article 44.01 as an accelerated appeal.
Since courts have considerable discretion in controlling their own dockets, the Beaumont Court of Appeals has the discretion to treat this appeal as accelerated.
An “accelerated” appeal is quite significant for several reasons. Appellate courts will tend to render decisions in accelerated cases on a priority basis before other pending appeals. Additionally, the appellate record is due in this case to the Court of Appeals by May 1, 2017, which means that Robin Cooksey, the Court Reporter, and Barbara Gladden Adamick, the District Clerk, must submit their records in this case quite expeditiously.
The briefing schedule will also be accelerated. Downey’s brief on behalf of the State of Texas will be due on or before May 22, 2017. Doyal’s lawyer Rusty Hardin, Riley’s lawyer Douglas Atkinson, and Davenport’s lawyer Steve Jackson will need to file their responsive briefs 20 days later. The Court of Appeals has already made clear, “In accelerated appeals, the court will not routinely grant extensions of time.”
In a case of the magnitude of this one where a significant provision in the Texas Government Code has been held unconstitutional, it’s likely the Court of Appeals will grant oral argument. The oral argument will occur on an accelerated schedule as well, so it’s quite possible that the oral argument could occur during the summer of 2017.
Similarly, it’s quite likely that the Court of Appeals will issue an opinion and ruling in the case before the end of the 2017 calendar year. Since it’s likely that other appeals will follow, if the State were to prevail in this appeal, the criminal case against Doyal, Riley, and Davenport would likely not come back to Conroe for a trial before the middle of 2018 at the very earliest.
Doyal, Riley, and Davenport are claiming that TOMA is unconstitutionally vague and improperly restricts their right to free political speech. A fourth defendant, Precinct 4 County Commissioner Jim Clark, has entered into a pretrial diversion agreement with Special Prosecutor Christopher Downey under which Clark has turned “state’s evidence” and is cooperating with the prosecutors in return for which they have given him immunity from prosecution under certain conditions and terms.
There are two major criminal provisions in TOMA. One of the provisions, Section 144, prohibits members of a governmental body, such as the County Commissioners Court, from meeting in a quorum (3 out of 5 Court members) without compliance with the notice and open meeting provisions of TOMA. The other provision, Section 143, is the one under which the three criminal defendants were indicated.
Although the crimes with which Doyal, Riley, and Davenport are charged are only Class B misdemeanors, Doyal and Riley could lose their careers as elected officials if convicted of these crimes which constitute “official misconduct.” Liberty County Commissioner Mike McCarty was removed from his job after he was convicted of a Class B misdemeanor involving “official misconduct” on Monday, April 24, 2017.
The gravamen of the prosecution case is:
- Doyal and Riley allegedly entered into some agreements concerning the proposal to put a November 2015 road bond referendum on the ballot. That the bond referendum eventually passed is not the issue. What is the issue is whether or not Doyal and Riley met in numbers less than a quorum (3 Commissioners Court members) for the purpose of passing a resolution in a particular form to place the referendum on the ballot.
- Doyal and Riley allegedly communicated with Precinct 1 Commissioner Mike Meador to attempt to get his support for the road bond resolution.
- Doyal and Riley allegedly communicated with Precinct 4 Commissioner Jim Clark, through their alleged agent political consultant Davenport, to get his support for the road bond resolution
- Davenport allegedly conspired with Doyal, Riley, and Clark to shape a road bond resolution which would pass the Commissioners Court.