Beaumont, January 25 – On the heels of the recent indictments of several members of the Pasadena (Texas) Economic Development Board for alleged violations of the same section of the Texas Open Meetings Act (TOMA), the 9th Court of Appeals based in Beaumont began its deliberations yesterday in the criminal case against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport. Technically, January 24, 2018, was the “submission date” for the case, meaning that the Court of Appeals would begin its deliberations.
What does a submission date mean?
The submission date for a case is when the Court formally begins consideration of it on the merits. The Justices – Chief Justice Steve McKeithen, Associate Justice Hollis Horton, and Associate Justice Leanne Johnson – could have begun informal consideration of the case a while ago. Doyal, Riley, and Davenport sought numerous delays in the briefing schedule and in the oral arguments which the Court of Appeals eventually scheduled for today, January 25, 2018. The Court of Appeals ultimately determined that it would not hear oral arguments in this appeal which the Court had previously designated as an “accelerated appeal” due to the importance of the case both to Montgomery County citizens and because the three criminal defendants have sought to have TOMA declared unconstitutional as a violation of their constitutional right to free speech.
Usually, on a submission date, the Court of Appeals will meet in conference privately and take an initial vote on the merits of the appeal. The Justices will also agree upon one of them who will write the majority opinion for the Court of Appeals. Writing an opinion can several as short a time as a few weeks and as long as many months.
Defendants appear nervous
In a sign that the criminal defendants – Doyal, Riley, and Davenport – are nervous about the outcome of this appeal, Houston criminal defense attorney Rusty Hardin filed a letter brief with the Court of Appeals on Monday, January 22, 2018. Hardin stated in the letter that he was responding to two “friend of the court” briefs that Texas Attorney General Ken Paxton and the Freedom of Information Foundation had submitted to the Court of Appeals.
Hardin responded to General Paxton’s argument in his brief that the trial court, Visiting Judge Randy Clapp, should not have considered factual testimony from the defendants’ witnesses, because all the factual testimony provided were complaints about the existence of TOMA when the Court should only determine whether TOMA violates free speech rights as a matter of law. Hardin tried to argue that the Court of Appeals should consider factual objections to a law when considering whether the law is constitutional or not.
Hardin, on behalf of County Judge Craig Doyal, also argued that he should be allowed to discuss government business in secret and that TOMA “punishes” him if he tries to conduct County business in secret. Doyal and Hardin claim that violates Doyal’s right of free speech under the Constitution, while the Texas Attorney General as well as the special prosecutors have argued that TOMA merely regulates the “time, place, and manner” of the speech that constitutes “public business.”
What the criminal case against Doyal, Riley, and Davenport concerns: indictment
The indictment should speak for itself:
“THE GRAND JURY, for the County of Montgomery, State of Texas, duly selected, empaneled, sworn, charged, and organized as such by the 221st Judicial District Court for said County, upon their oaths present in and to said Court that Craig Doyal [and Charlie Riley and Marc Davenport] on or about August 11, 2015 and continuing through August 24, 2015, and before the presentment of this indictment, in the County and State aforesaid, did then and there as a member of a governmental body, to-wit: the Montgomery County Commissioner’s Court, knowingly conspire circumvent Title 5, Subtitle A Chapter 551 of the Texas Government Code (herein after referred to as the Texas Open Meetings Act) by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, to-wit: by engaging in verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond, Against the Peace and Dignity of the State.”
The Grand Jury indicted Doyal, Riley, and Davenport, for meeting in numbers of less than a Commissioners Court quorum (3 out of 5) for the purpose of secret deliberations in violation of TOMA to structure the resolution to set a November 2015 road bond referendum.
Doyal, Riley, and Davenport continue to face criminal charges, now in the Beaumont Court of Appeals for conspiring to circumvent the Texas Open Meetings Act’s Section 551.143 by meeting in a number less than a quorum for the purpose of secret deliberations in violations of TOMA.
The desire for secrecy and to avoid public scrutiny is the problem with Doyal and Riley. Doyal paid Davenport $5,000 to represent Doyal in the negotiations over the road bond referendum.
What is TOMA Section 143?
TOMA Section 143, the provision under which Doyal, Riley, and Davenport face criminal indictment 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.”
In other words, a quorum of the Commissioners Court is three members among Doyal, Riley, Clark, Precinct 3 Commissioner James Noack, and Precinct 1 Commissioner Mike Meador. If three actually meet and discuss an issue within the jurisdiction of the Commissioners Court or any public business, then they’ve conducted a “closed meeting” in violation of Section 144 of TOMA under certain conditions. But if two members of the Commissioners Court meet to circumvent TOMA’s open meetings requirement, and secretly have a verbal exchange about public business, for the purpose of conspiring to circumvent TOMA by meeting in groups of less than a quorum, they’ve committed a crime under Section 143.
For example, if Craig and Charlie decide they want popcorn served in all County offices to County employees, they’re okay to discuss that with each other. But if Craig and Charlie have that same verbal exchange with the knowledge that they’re doing so in order to have “secret deliberations” (a VERY IMPORTANT TERM!), then they’re in trouble with the law. “Deliberations” is an important term here. It means “a verbal exchange during a meeting between a quorum of a governmental body…concerning…any public business.” How do Craig and Charlie break that law? They meet and decide about the popcorn policy and do so knowing that they’re going to get a third Commissioners Court member into their decision outside of an open meeting of the Commissioners Court.
Basically, the criminal allegations against Doyal, Riley, and Davenport are pretty simple, because they not only had verbal exchanges about the provisions of a road bond referendum resolution but also they memorialized those discussions in a written Memorandum of Understanding with some third parties. The next step that got them in trouble occurred when their political consultant Davenport, on retainer to both Doyal and Riley at the time, went to Precinct 4 County Commissioner Jim Clark to get his road projects and to communicate with him about the road bond referendum. Those actions, and the likely testimonial explanation of Clark in a trial, are likely the reason that Doyal and Riley are in nuclear hot water.
The constitutionality challenge – vagueness, fear, and free speech
Doyal, Riley, and Davenport claim that TOMA Section 143 is unconstitutionally vague, because they can’t understand it. They presented three attorneys and a few elected officials this past week who acted as their spokespeople in that regard. The attorneys, especially Austin attorney Jennifer Riggs, told Visiting District Judge Randy Clapp that they regularly advise their clients not to meet at all with other governmental body members in order to avoid criminal prosecutions. The elected officials, including Oak Ridge North Mayor Jim Kuykendall, testified that they’re so afraid of TOMA Section 143 that they never communicate with each other outside of open meetings. Riggs and Kuykendall both expressed their opposition to the “chilling effect” TOMA has upon free expression of ideas among governmental body members.
Section 143 is not vague at all. If Doyal and Riley meet they’re okay. But if they meet for the purpose of circumventing the quorum requirement of TOMA, by having secret meetings in smaller-than-quorum groups in order to get a majority of the Commissioners Court in line for a vote before an open meeting, then they’re in trouble.
Doyal, Riley, and Davenport have contended that TOMA Section 143 is an unconstitutional restriction on their right of free political speech seemed to lose all credibility. That argument is the precise reason that Texas Attorney General Ken Paxton has intervened in their criminal case to oppose their constitutionality argument. It has long been the law that “time, place, and manner restrictions” upon political speech are okay, as long as they serve a reasonable purpose and are limited in such a manner to achieve their means. Just as Doyal has every right to limit citizen comments during Commissioners Court meetings to 3 minutes each, so may the Texas Legislature tell Doyal and Riley, “You can’t express your political speech to each other for the purpose of gaining a majority of the Commissioners Court to support your idea, unless you do so in an open meeting.”
Arrogance and defiance – not true that they won’t meet in public or in small groups
The basic problem with Doyal, as County Judge, and Riley, as a County Commissioner, is that they want to operate in secret. Doyal has turned a once open County government into a dark cave of secrecy. Department Directors get their walking papers for providing the public information. County employees are intimidated from speaking with the public. The County Budget process, one of the most important functions of the Commissioners Court, has turned into a closed and secret process. Doyal’s fundamental County governing principle is “lockjaw.”
The County budget is so secretive that Doyal and the County Commissioners don’t know what’s in it.
At the same time, Doyal and Riley have shown no fear whatsoever from meeting outside of open Commissioners Court meetings, as TOMA requires. They meet regularly.