Conroe, October 18 – Texas Attorney General Ken Paxton filed a sweeping Brief on the side of the special prosecutors seeking criminal convictions of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and corrupt local political boss Marc Davenport. On October 13, Paxton filed an Amicus Curiae, “Friend of the Court,” Brief against Doyal, Riley, and Davenport’s efforts to have the Texas Open Meetings Act (“TOMA”) declared unconstitutional so that they may carry on Montgomery County business in secret.
The elected Texas Attorney General explained in his Brief that his interest in the case is “The Office of the Texas Attorney General defends Texas statutes that are challenged under the Constitution of the United States…[T]he Office of the Attorney General has a specific and heightened interest in this litigation because the Texas Open Meetings Act is a predominantly civil law that is vital to the open functioning of all levels of government in Texas.”
General Paxton explained, “Section 551.143 makes it a misdemeanor for members of a governing body to knowingly conspire to circumvent TOMA’s disclosure requirements by deliberating public issues with a quorum of that body through a series of meetings, none of which by itself has a quorum.” In this instance, the Montgomery County Grand Jury indicted Doyal, Riley, and Davenport for conducting a series of meetings to negotiate the terms of a November 2015 road bond that they sought to set for a referendum.
Paxton made three primary arguments in his Brief.
First, the Texas Attorney General, speaking on behalf of the citizens of Texas, noted that disclosure laws such as TOMA, which prohibits governance in secrecy, promote First Amendment values while not preventing anyone from speaking in the public. Paxton noted that since in our society the citizenry is the final judge of the proper conduct of public business, openness in the democratic process is of critical importance. He explained, “Open meetings promote accountability, prevent corruption, and ensure that officials with minority views are not shut out by the majoring. By enforcing open meetings, section 551.143 [of TOMA] advances these interests, and is constitutional. Indeed, it is telling that Defendants do not cite a single case striking down an open meetings provision.”
Second, the Attorney General explained it is a content-neutral provision that is merely aimed at hiding information from the public. He wrote, TOMA “does not concern what is said, but only whether it is said in private, away from voters who need that information to hold their elected officials accountable.”
Making sure that what is said is in private is precisely what Davenport, Doyal, and Riley seek. They want to make sure that voters who need information to hold their elected officials accountable do not have that information. Paxton noted that Section 551.143 of TOMA “is narrowly tailored to promote Texas’s compelling interest in good governance.”
Third, Attorney General Paxton made clear that TOMA is not overbroad or vague. The criminal prohibition under Section 551.143 of TOMA only applies to those who “knowingly” seek to circumvent TOMA’s disclosure requirements. Although Doyal in particular tried to argue in his briefing that he has trouble interpreting TOMA and trouble understanding it, Paxton rejected that argument entirely. The Attorney General said, “…that is irrelevant. What matters is whether it is clear what the statute prohibits at its core. And section 551.143 clearly prohibits persons from knowingly conspiring to circumvent TOMA’s disclosure requirement by secretly deliberating with a quorum of a governmental body through a series of discussions.”
The criminal case, also known as the “Trial of the 21st Century” because of its potential impact on the future of Montgomery County politics, is not yet set for oral argument before the three-justice panel of the Court of Appeals that will hear the appeal: Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson.