Austin, April 14 – Criminally indicted co-defendants Charlie Riley and Marc Davenport, the Precinct 2 Montgomery County Commissioner and local political boss, respectively, whose criminal indictments the Ninth Court of Appeals reinstated on February 7, 2018, filed their petitions for discretionary review with the Texas Court of Criminal Appeals in Austin on Monday, April 9, 2018. Riley and Davenport had sought delays in the deadline to file their appeals to Texas’ highest criminal appellate court. The Court of Criminal Appeals gave them a one-time 30-day extension with the admonishment, “NO FURTHER EXTENSIONS WILL BE ENTERTAINED.”
Their criminal co-defendant, Montgomery County Judge Craig Doyal, filed his petition with the Court of Criminal Appeals on March 8, 2018. Doyal, Riley, and Davenport have consistently sought multiple delays during the appellate process, which such delays seemed tied to the re-election efforts of Doyal, Riley, and Davenport’s wife (County Treasurer Stephanne Davenport). Doyal and Davenport lost their re-election bids on March 6 in the Republican Primary Election. Riley made the runoff but faces articulate conservative reformer Gregory Parker, who has two terms of experience as a County Commissioner from Comal County where he previously lived.
The Beaumont Court of Appeals reversed the dismissal of the criminal indictments of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport (who has claimed to be a County official on several occasions, largely thanks to the misrepresentations of JP James Metts) this morning.
The purpose of filing the briefs to the Texas Court of Criminal Appeals is that Riley, Doyal, and Davenport would like to avoid having to face a jury of Montgomery County citizens in a trial.
Riley, Davenport, and Doyal all made the same arguments to the Court of Criminal Appeals, which is the highest court in Texas for criminal appeals (tantamount to the supreme court). They argued that they want the appellate courts to hold the Texas Open Meetings Act unconstitutional because, they claim, it violates their right to free speech. Riley, Davenport, and Doyal apparently believe that they should have the right to hold secret meetings if it concerns County business. The Texas Legislature enacted the Texas Open Meetings Act as a statement of Texas public policy that government should conduct its business in the open for the public to see, a position Riley, Davenport, and Doyal obviously abhor.
Riley and Davenport also argued in their petitions that the Open Meetings Act is so vague that they cannot understand it and, therefore, the appellate courts should deem the statute unconstitutional.
Troy McKinney of Houston and Douglas Atkinson of Conroe represent Riley. Steve Jackson of Conroe represents Davenport. Rusty Hardin of Houston represents Doyal.
The unanimous ruling of Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson of the Ninth Court of Appeals wass:
“We conclude that section 551.143 [of the Texas Open Meetings Act] describes the criminal offense with sufficient specificity that ordinary people can understand what conduct is prohibited…The statute provides reasonable notice of the prohibited conduct…We conclude that the statute is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings…”
Doyal, Riley, and Davenport had claimed in both the trial court and the Court of Appeals that they could not understand the prohibitions in the Texas Open Meetings Act (“TOMA”) because they claim the statute is vague. They also tried to argue that the statute is unconstitutional because it violates their rights of free political speech.
The Beaumont Court of Appeals rejected both of the criminal indictees’ arguments. The Court of Appeals ruled that TOMA merely regulates the time, place, and manner of the political speech of governmental officials so that the public may observe deliberations in a transparent manner. Of course, Doyal, Riley, and Davenport have vehemently fought against any such transparency and had fought to have TOMA deemed unconstitutional.
What the criminal case against Doyal, Riley, and Davenport concerns: indictment
Riley was a member of the Davenport Ring and used his political boss, Marc Davenport, to negotiate a November, 2015, road bond referendum with leaders of the Texas Patriots PAC. Riley paid Davenport $5,000 for his negotiation services. Doyal also retained Davenport for the same purpose. Although Precinct 4 County Commissioner Jim Clark was also involved in the case early on, it became pretty apparent that he had not engaged in any wrongdoing, so Clark agreed to provide truthful information to the Special Prosecutor who dismissed the charges against Clark. Doyal also paid Davenport for the same services.
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.
If convicted, Doyal and Riley would be guilty of “official misconduct” under Texas law and would be subject to removal from office. They could lose their pensions as well.
Trial of the 21st Century
Many citizens have called the case “the trial of the 21st century” due to its potential impact on the future of Montgomery County.
A Montgomery County Grand Jury indicted Doyal, Riley, and Davenport for allegedly violating Section 551.143 of the Texas Open Meetings Act (“TOMA”)
“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 a 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.”
The prosecutors noted in their Brief in the Court of Appeals that Doyal and Riley are members of the Commissioners Court while the Grand Jury indicted Davenport for his alleged
“intent to promote or assist the commission of the offense described herein, solicit, encourage, direct, aid or attempt to aid…”
the defendants in their meeting in a number less than a quorum to circumvent TOMA.
Recent revelations about Davenport’s claimed work as a “sworn deputy” and a person in the office of the Justice of the Peace, Precinct 4, James Metts, may impact the proceedings, since Davenport is arguably a County government agent, although the State has not yet raised those factual issues.
Doyal and Riley each paid Davenport $5,000 to negotiate the terms of a new bond referendum for November, 2015, after conservative activists had led a campaign to defeat the May, 2015, bond referendum which had included a proposal to build the Woodlands Parkway Extension. Voters in Commissioners Precinct 3 (mainly The Woodlands) and Commissioners Precinct 2 (Magnolia and surrounding areas) had voted overwhelmingly against the bond referendum in May 2015 while voters in other parts of Montgomery County had supported it.
Faced with serious criminal charges that could potentially lead to Doyal’s and Riley’s removal from office for “official misconduct,” Doyal, Riley, and Davenport, who clearly controls many of the actions and policy decisions of Doyal and Riley, sought a dismissal of the criminal cases against them by claiming that the TOMA statute is unconstitutional. As the State of Texas noted in its Court of Appeals Brief, there was no testimony yet in the trial court concerning the facts that gave rise to the indictments. Rather, the hearing before the trial court was primarily a bunch of lawyers who claimed to be experts in TOMA.
The trial judge, Visiting District Judge Randy Clapp of Wharton County, had dismissed the cases against Doyal, Riley, and Davenport on April 4, 2017, at the urging of Doyal’s very expensive attorney Rusty Hardin whom Doyal has paid several hundred thousand dollars from his campaign funds and from a separate legal defense fund that individuals strongly interested in the construction of the TX 249 Tollway had established.
The Court of Appeals issued judgment against all three criminal defendants – Doyal, Riley, and Davenport – and ordered them to pay the State of Texas’ court costs of several thousand dollars incurred in the appeal.
It is likely that the “Trial of the 21st Century” will not proceed for at least several months. It’s unlikely that the Texas Court of Criminal Appeals will hear the case.