Austin, February 27 – The Texas Court of Criminal Appeals determined that the Texas Open Meetings Act provision under which former Montgomery County Judge Craig Doyal, Precinct 2 Montgomery County Commissioner Charlie Riley, and local political boss Marc Davenport were criminally indicted in June, 2016, is unconstitutionally vague. Doyal, Riley, and Davenport will no longer be subject to criminal prosecution for the conduct they allegedly committed during the November, 2015, road bond referendum.
The Court of Criminal Appeals, the highest criminal law court in Texas, ruled on a 7 to 2 vote, with Judges Yeary and Newell dissenting, that Section 551.143 of the Texas Open Meetings Act (“TOMA”) is unconstitutionally vague.
A Montgomery County Grand Jury indicted Doyal, Riley, and Davenport for “knowingly conspire[ing]…to circumvent…[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 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 trial court, Visiting Judge Randy Clapp, had dismissed the indictments as unconstitutionally vague in April, 2017. The Beaumont Court of Appeals reinstated the indictments and reversed the rulings of the trial judge in early February, 2018.
Doyal, Riley, and Davenport were prosecuted under Section 551.143 of TOMA which provides:
A member or a 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.”
The Court of Criminal Appeals noted in its opinion for the majority, “more clarity is required of a criminal law when that law implicates First Amendment freedoms.” The Court further held, “We conclude the statute before us…is hopelessly indeterminate by being too abstract.”
Specifically, the Court held that the definitions of the terms “less than a quorum,” “quorum,” “meeting,” “secret,” and “deliberation” are poorly defined within the statute. For example, the Court of Criminal Appeals wrote, “The word ‘secret’ indicates that Section 551.143, like other parts of TOMA, is aimed at preventing meetings that are not open to the public. As such, the word serves a limiting function but, given the wide array of possible interactions between public officials, is not sufficient by itself to supply the requisite clarity to the statute.”
Finally, the Court of Criminal Appeals held that it is unclear what it means to “circumvent” a law. The Court of Criminal Appeals recognized that the statute’s intent was to prohibit “walking quorums” where one-on-one discussions would occur in a chain of meetings in which governmental entity board members went around an actual quorum for a meeting by meeting in smaller groups but ultimately to establish a quorum. Nevertheless, the Court of Criminal Appeals held that the unclear definition of the term “circumvent” in Section 551.143 makes it unclear whether a “walking quorum” would, indeed, constitute a criminal violation.
Not only is the ruling an enormous victory for Doyal, Davenport, and Riley but also it constitutes a great victory for the entire Texas Municipal League and the Texas Association of Counties who submitted “friend of the court” briefs to the Texas Court of Criminal Appeals. Under this ruling, Doyal, Davenport, and Riley have clearly established – statewide – a new world for local governments in which they may operate in secret meetings as long as they do not meet in actual physical quorums (i.e., majorities) of the governmental body.
Secret government has three new heroes: Charlie Riley, Craig Doyal, and Marc Davenport.