Editorial on the Trial of the 21st Century, The TOMA Trial: The Open Meetings Act is not unconstitutional, but Davenport shouldn’t be a defendant.

Image: The Constitution of the United States of America, National Archives, Washington, D.C. The Declaration of Independence resides in the vertical case above the horizontal cases holding the Constitution.

Tomorrow, Visiting District Judge Randy Clapp of Wharton County will begin a week-long hearing on the constitutionality of the Texas Open Meetings Act under which Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and Marc Davenport are criminally charged. The Golden Hammer will provide extensive up-to-date coverage of the hearing and the criminal case.

The Texas Open Meetings Act (“TOMA”) does not violate the Texas Constitution or the United States Constitution. It’s not “vague.” It doesn’t violate Craig Doyal’s, Charlie Riley’s, or Marc Davenport’s rights of free speech under Constitutions. Nevertheless, Marc Davenport should not be a defendant in the criminal prosecution for other reasons (whether you’re a fan of his or not.)

Finally, there’s one more important point. TOMA is good public policy.

Is the Open Meetings Act unconstitutionally “vague”?

 A recent United States Supreme Court decision provides an excellent summary of the law applicable to the defendants’ vagueness argument. The case is FCC versus Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012), in a unanimous opinion which Justice Anthony Kennedy wrote.

Here’s the law regarding “vagueness” in criminal cases:

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed 322 (1926)  (‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’); Papachristou v. Jacksonville, 405 U.S> 156, 162, 92 S.Ct. 839, 31 L.Ed2d 110 (1972) (‘Living under a rule of law entails various suppositions, one of which is that “[all persons] are entitled to be informed as to what the State commands or forbids” ‘ (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed 888 (1939)  (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’ Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See Id., at 306, 128 S.Ct. 1830.

That’s the law in the entire United States of America, because, as Justice Kennedy noted, it springs from the Due Process Clause of the Fifth Amendment, which is part of the Bill of Rights to the U.S. Constitution. The Fourteenth Amendment to the Constitution makes all of the Constitution’s protections applicable to the states, including the Greatest of All States, Texas.

What that means is that the State of Texas can’t subject you to criminal penalties, such as imprisonment or fines, unless you, being a person of common or ordinary intelligence, had the opportunity in advance to know what it was that you weren’t supposed to do. Yes, folks, the law assumes that Craig Doyal, Charlie Riley, and Marc Davenport are people of ordinary intelligence (or better).

So let’s look at a now infamous example, State of Texas versus Adrian Heath. Heath is serving prison time (currently in the Montgomery County Jail waiting for transfer to the Institutional Division of the Texas Department of Criminal Justice.) In the February 10, 2017, issue, Montgomery County’s leading daily newpaper, The Golden Hammer discussed “Adrian Heath, Political Prisoner.”

Heath’s case is not as simple as it might appear. There are good reasons why a person of common intelligence might believe that it’s okay to vote where you want as long as you have some reasonable subjective belief that the location is, albeit briefly, your residence. That’s how real estate developers get away with “rent-a-voters,” post office box holders can vote where their boxes are, some GOP Precinct Chairs can vote where their offices are, and President George H.W. Bush could vote at his hotel room in Houston despite his primary actual residence in Kennebunkport, Maine. The problem in Heath’s case, which, sadly, no appellate court ever squarely addressed, is that the definition of “residence” in the Texas Election Code is downright goofy:

“Sec. 1.015. RESIDENCE. (a) In this code, “residence” means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence.

“(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.

Emphasis added!

Why is the emphasis added? Because who on Planet Earth would know the entirety of the “common-law rules, as enunciated by the courts of this state” before they went to vote in an election?! No lawyer knows all of the common law rules, in other words the language in every single judicial opinion enunciated by the courts of Texas. How in the world could Adrian Heath or Jim Jenkins know all the rules.

What’s scary about the Heath and Jenkins cases is that the trial judge, David Stephens, instructed the jury in each of their cases to follow the law and he cited the exact provision above. In other words, the Jury had to know all of the “common-law rules, as enunciated by the courts of this state” in order to convict Heath and Jenkins of felonies.

No way! It’s downright loopy. That’s crazier than a fat man walking barefoot down the street on a Sunday afternoon!

That is unconstitutionally vague, because neither Heath nor Jenkins could possibly know what a “residence” would mean under the Texas Election Code before they committed some conduct that a criminal court would later hold them culpable for committing a felony.

TOMA: It’s not vague.

So let’s apply this analysis to TOMA.

For the purpose of this discussion, let’s assume that the Montgomery County Commissioners Court has five (5) members – a County Judge and four Commissioners. A quorum is a majority, three (3) of the five.

Here’s what TOMA prohibits. Section 551.144 of the Government Code makes it a crime under these circumstances:

“A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly:

(1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting;

(2) closes or aids in closing the meeting to the public, if it is a regular meeting; or

(3) participates in the closed meeting, whether it is a regular, special, or called meeting.”

The foregoing Section – which is NOT the Section with which Doyal, Riley, or Davenport face criminal charges – is pretty easy to understand. For example, hypothetically, Craig, Charlie, and their pal Jim Clark (Precinct 4 Commissioner) get together for lunch at Luby’s and decide over their LuAnne Platters that they are going to abolish the County Treasurer’s Office. They finish their meal, shake hands, and go home with the commitment that they’re ready to vote to abolish the Treasurer’s Office at the next official Commissioners Court meeting. Problems, problems, problems! Craig, Charlie, and Jim, hypothetically, just participated in a closed meeting, because they conducted a meeting to which the public does not have access under Section 551.001(1) of the Texas Government Code. Neither Craig, Charlie, nor Jim invited anyone to join them for lunch. They didn’t post their meeting in accordance with the notice and posting provisions of the statute. They didn’t post an agenda at all. They just met, conducted their meeting, and, of course, enjoyed a fine Luby’s meal. In that hypothetical they easily should have known better.

Now, let’s look at the actual statute under which Doyal, Riley, and Davenport face criminal charges.

Sec. 551.143 of the Texas Government Code 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 by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

Here’s the classic hypothetical similar to the discussion above about the lunch at Luby’s. In this circumstance, however, Craig and Jim have lunch at Luby’s and, over their Luanne Platters, agree on how they’ll vote. Then the next day, Jim and Charlie get together at Popeye’s and over spicy chicken Jim tells Charlie about the meeting between Jim and Craig and gets Charlie’s commitment to vote to abolish the Treasurer’s Office.

Notice that Craig, Jim, and Charlie did NOT violate Section 551.144, because they didn’t meet in a quorum. Instead, they met in numbers less than a quorum “for the purpose of secret deliberations.”

What in the world are “secret deliberations”?! The phrase has two words in it. Only one word has a definition in the statute, “deliberations.” “Deliberation” means a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business, under Section 551.001 of TOMA. Is it really difficult to understand what a “secret” is? Have you not known since you were a child that a “secret” is something that you intentionally don’t tell others?

So in the instance of the hypothetical situation, the Craig-Jim meeting was a secret and the Jim-Charlie meeting was a secret, but even more importantly the connection between the two meetings was a secret. There was no notice, no public posting, and no public agenda for their meetings at Luby’s and Popeye’s, respectively.

There is nothing “vague” about the statutory language in Section 551.143.

How do these hypothetical scenarios compare to the actual charges against Doyal, Riley, and Davenport? They’re not too far off, except lunches weren’t involved and Davenport was the “carrier pigeon” for the communications between Doyal, Riley, and the third Commissioners Court member, Jim Clark.

Therefore, we should return to the analysis of our friend Justice Kennedy in the Fox Television case in 2012. Does Section 551.143 of TOMA make its prohibitions clear enough that men of common intelligence could understand its meaning without having to guess? The answer is clearly “Yes” and, in practice, government officials most certainly know that.

For decades, members of the Montgomery County Hospital District have taken care not to meet together, even at Christmas parties, in quorums. They’ve also taken care not to engage in discussions of MCHD business outside of open meetings. Has that caused the MCHD to shut down? Of course not. It merely means that issues concerning MCHD must be the subject of discussions in open meetings properly noticed so that the public may listen, attend, and have advance notice.

It may not be convenient for people who wish to conduct their business in secret. It may slow decision-making down. When it comes to the decisions of government in a free society, those are the decisions that we, as a free people who want to remain free, want to slow down! We don’t want policy-making through text messages between the members of the Commissioners Court. We don’t want them to send their thoughts to Deanne Riley, Charlie’s wife of nepotism fame, so that she may forward their thoughts and ideas concerning County business on to the next member of the Commissioners Court.

That’s not how open government works. That’s not how deliberative government works.

Will we see a parade of the elected official elite march through the 221st District Court this coming week and complain to Judge Clapp that TOMA slows them down and makes government decisions “inefficient”? Gosh, I hope we do. I hope that TOMA has succeeded to that degree. That’s what we want, because there’s another name for that phenomenon:


TOMA: It doesn’t prohibit free speech. Sorry, Judge Doyal, but your argument is downright silly and hypocritical.

The “vagueness” argument has some grist. The free speech argument doesn’t. It’s ridiculous. A legal prohibition against someone shouting “Fire” in a crowded room at a political meeting does not violate the First Amendment’s right of free speech. Simiarly, nothing in the First Amendment gives someone the unfettered right to make a political statement any time and anywhere.

Courts have long recognized that reasonable “time, place, and manner” restrictions are permissible even with respect to political speech under the “free speech” provisions of the United States and Texas Constitutions.

Justice Kennedy in the Fox Television wrote:

“Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed. 222 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

There Kennedy wrote about “vagueness.” As discussed above, the statute is precise and is not arbitrary or discriminatory.

The legal analysis follows another United State Supreme Court opinion, Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.E.d 2d 794 (1983).  Then the analysis follows three categories of public forum:

  • a public forum like a public street, where speech may only be suppressed if it is necessary to achieve a compelling governmental interests. Regulations restricting speech under Perry may consist of reasonable time, place, and manner regulations that are narrowly drawn to achieve the governmental interest and leave ample alternative channels for expression.
  • A limited public forum which is one that the government has opened for public expressive activity. Speech regulation may be regulated in the same fashion as the traditional public forum as long as the limited forum remains open.
  • A nonpublic forum is one that neither traditionally nor by government action has become a forum for public communication. In a nonpublic forum, speech may be restricted so long as the regulations are reasonable and do not attempt to suppress expression because of a public official’s opposition to the speaker’s views.

To argue that Doyal, Riley, and Davenport should have the right to express their political views in a nonpublic forum, such as a secret meeting among them, would overturn centuries of American law concerning free speech.

Sorry, Doyal and Riley, but you’re also being hypocrites.

Let’s look at a hypothetical situation. Judge Doyal is a government official who runs Commissioners Court meetings. He claims to be a busy man. He permits citizen comments during those meetings, but there’s a fat lawyer named Eric and he doesn’t want to hear too much from him. Doyal and his fellow Commissioners Court members decide to impose a restriction on citizen comments of a time limit of 3 minutes for each citizen comment. Notice in this hypothetical situation that Doyal and the Commissioners are NOT telling Eric “stop talking about Golden Hammers” or “stop criticizing us politically.” Instead, Doyal is telling Eric, “If you want to speak in the Commissioners Court, you may speak for three minutes, a reasonable time restriction, “you may speak only during the Citizen Comment portion of the meeting,” a time and manner restriction, and “you must come up to the podium and speak into the microphone rather than yelling verbal comments from the audience seats,” a time, place, and manner restriction.

Guess what, Judge Doyal? You have restricted Eric’s free political speech by imposing a time, place, and manner restriction upon Eric’s citizen comments!

Let’s look at the TOMA statute, which does the same thing, except that Doyal, Riley, and Davenport don’t like the statute because it tells them when, where, and how they may express their political free speech. Actually, it really only tells Doyal and Riley, because Davenport isn’t a government official. What TOMA tells Doyal and Riley is that Doyal and Riley may express their “deliberations” about County issues to each other, i.e., to other members of the Commissioners Court in an open meeting properly noticed with a proper agenda under the TOMA.

Let Davenport go

Looking at the statute, it just doesn’t make sense for Davenport to face the criminal charges. Neither Section 551.143 or 551.144 apply to anyone other than “members of a governmental body.” Davenport is not one. It’s that clear.

The State of Texas should dismiss the case against Davenport.

TOMA is good policy.

TOMA is good policy. If any government needs the bright lights to shine upon every single aspect of it, it’s Montgomery County’s government. While Doyal and his County Attorney Lambright are fighting desperately to close the County’s decisions and operations to the public, it is precisely the transparency which they seek to avoid which is moving the citizenry towards reform of this creaky governmental organization.

Massive government spending, some of which they’ve hidden, conflicts of interest, nepotism, poor management, inefficiency, major operational problems, political gamesmanship, “hitting” government employees for political reasons rather than for what is good for the County, and plain old bad decisions require the light of day. If Craig Doyal is doing a backroom deal with Binkley and Barfield’s Dave Hamilton, then we should know about it. If he’s doing a deal with Harris County Commissioner “Cactus Jack” Cagle, it’s our right to know. If he’s making a decision with Charlie Riley about spending tens of millions of dollars on road projects that the voters rejected or wasting engineering funds on road projects we approved, then we should know about it.

This coming week, the lawyers for the defendants have warned us that we’ll hear from elected officials who don’t like TOMA. Of course they don’t like it. They don’t like the scrutiny. Their griping is irrelevant to the constitutional analysis.

Craig Doyal and Charlie Riley deserve fair jury trials on the factual basis of the serious criminal charges against them. Whether the voters later approved the road bond referendum by a landslide has absolutely nothing whatsoever to do with whether Doyal and Riley violated the law to get to a referendum first.

Davenport shouldn’t face criminal charges at all.



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