Image: Montgomery County Judge Craig Doyal and local political consultant Marc Davenport confer at the beginning of the TOMA Trial hearing on constitutionality at the beginning of the day, Wednesday, March 29, 2017.
Conroe, March 29 – The constitutionality hearing in which Defendants Craig Doyal, Charlie Riley, and Marc Davenport are challenging the validity of the Texas Open Meetings Act (“TOMA”) began with fireworks this morning when the prosecution and criminal defendants fought over whether to exclude witnesses under the rule. Visiting Judge Randy Clapp of Wharton County’s 329th District Court ruled with the defendants that witnesses during this hearing were not excluded from listening to other witnesses.
The light audience included Constable Phillip Cash, Constable David Hill, and former Sheriff Tommy Gage.
Doyal’s attorney, Rusty Hardin, explained, “This isn’t an attack on TOMA but just on one specific statute within it. From the very beginning, this statute has been lacking. We’re only talking about Section 551.143 of TOMA only” which makes it a crime to conspire to violate the open meetings requirement by meeting in numbers less than a quorum with the purpose of gaining a quorum on an issue before a governmental body.
Davenport’s attorney, Steve Jackson of Conroe, argued that “an ordinary person of reasonable intelligence cannot understand what is prohibited.”
The prosecution responded, “This particular provision of the Texas Open Meetings Act is absolutely essential. There’s irony that these people say they’re in favor of open meetings but they want to strip out this essential provision of the statute. The people you will hear is a little bit of a ’round robin’ because both the officeholders and their lawyers who advise them are going to say the same thing to you.” He continued, “There’s little doubt this provision is a central pillar of TOMA…The supposedly fear of government officials in trying to comply is vastly overblown.”
Doyal’s attorney, Hardin of Houston, presented the first witness, Alan Bojorquez, 49, a lawyer over 20 years, who has worked for the Texas Municipal League for 3 years and then went into private practice. The Texas Municipal League has consistently lobbied against citizen issues and in favor of pro-government growth and secrecy. Vorquez has studied TOMA for 20 years and claims to be an expert on “open government.” Bojorquez said “I chose to serve government officials.”
Bojorquez said he is a “big proponent of open government and transparency.” Bojorquez has represented primarily municipalities but also water and other special purpose districts. Bojorquez has worked for dozens of cities as their city attorney. Bojorquez admitted that he regularly appears on panels concerning TOMA where he speaks “on the other side” of attorneys who favor open meetings and open government.
Bojorquez testified the “mechanics of Section 143” of TOMA are “difficult.” “This provision is talked about a lot but understood very little,” Bojorquez said. Bojorquez said he was “stunned that this provision is treated as constitutional.” He argued the provision is a “prior restraint” on free speech. He admitted the United States Court of Appeals for the Fifth Circuit ruled TOMA’s control of free speech was constitutional because it regulated the time, place, and manner of speech. Vorquez testified that “I disagree with some pretty big lawyers in that case.”
Bojorquez said, “The problem with this statute…citizens needs to hear the back and forth so they understand what’s behind the votes of governmental officials…but then Section 143 comes in and says if they’re trying to avoid the statute by going around it…the statute is gibberish…I’m a cum laude graduate and I don’t understand it.”
Section 143 states, “A member or group of members of a governmental body commits an offense if the member…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.”
Bojorquez said he does’t understand:
- what is a conspiracy
- what does it mean to “circumvent”
- what is a “meeting”
Bojorquez said the “public doesn’t suffer” from this type of violation of TOMA. Bojorquez testified that city officials would seem to violate Section 143 all the time because they talk to each other. Bojorquez said that he’s advised clients not to communicate by email, Tweets, Nextdoor, and texts. Bojorquez also said that the definition of “deliberation” in the TOMA statute only applies to “verbal exchanges” which is even more confusing, because, Bojorquez argues, that emails, Tweets, and text messages are not verbal exchanges.
Hardin made the point that a “walking quorum” has never been the basis of a criminal prosecution in the history of the United States.
Bojorquez argued that Section 143 of TOMA could prevent private house parties with incumbent elected officials invited to discuss government issues. He concluded that Section 143 is vague, ambiguous, and too broad.