Beaumont, November 4 – The Beaumont Court of Appeals agreed on Thursday to hear together all of the oral arguments in the criminal cases under the Texas Open Meetings Act against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport. The oral arguments will occur on January 25, 2018, at 9:30 a.m., in the Keeshan Administration Building, 301 North Thompson, Second Floor Courtroom, Conroe, Texas 77301.
The Court of Appeals panel which will hear the case consists of Chief Justice Steve McKeithen of Conroe, Justice Hollis Horton of Beaumont, and Justice Leanne Johnson of Beaumont.
While the Court of Appeals ruled that it would not consolidate the three criminal cases, it did effectively do so nonetheless by combining the oral arguments together. The Special Prosecutors and Attorney General of Texas will have an initial 20 minutes to argue and 10 minutes for rebuttal. The three attorneys for Doyal, Riley, and Davenport will have a total of 30 minutes which the Court of Appeals will allow them to divide as they see fit.
The three defendants face June 26, 2016, indictments by the Montgomery County Grand Jury that they conspired to violate the Texas Open Meetings Act (“TOMA”) by engaging in a verbal exchange concerning the potential structure of a November 2015 Montgomery County Road Bond in violation of Chapter 551, Subtitle A, Title 5, of the Texas Government Code.
The participation of the Texas Attorney General’s representative during the oral argument is a major development in this case, since “friends of the court” usually do not particulate in the oral argument. Part of the delay in the oral argument was to allow the Attorney General to participate.
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.”
In his Brief, 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.” 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, could have an enormous impact on the outcome of the March 6, 2018, Republican Primary Election where Doyal has drawn the ever popular and staunchly conservative State Representative Mark Keough as an opponent, where Riley has drawn two opponents so far in local businessman Brian Dawson and former Comal County Commissioner Greg Parker, and where Davenport’s wife, County Treasurer Stephanne Davenport, faces the immensely popular and fiscally conservative Melanie Pryor Bush.
By delaying the oral argument to January 25, it’s highly unlikely that the Court of Appeals would rule before the March, 2018, Primary Election. Therefore, voters will face the uncertainty that, if re-elected, Doyal and Riley could face removal from office for “official misconduct.”
Meanwhile, a Montgomery County Grand Jury is presently investigating Doyal and Riley with respect to their use of County property, equipment, and personnel for private and political campaign purposes, which could constitute a violation of Section 39.02 of the Texas Penal Code. Those alleged violations could be felonies or misdemeanors depending upon the value of the property and services Doyal and Riley might have received.