Image: Special Prosecutor Christopher Downey.
ERIC YOLLICK, The Golden Hammer
Conroe, March 1 – The jury trial of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, Precinct 4 County Commissioner Jim Clark, and political consultant Marc Davenport for allegedly conspiring to circumvent the Texas Open Meetings Act (“TOMA”) is set for March 27 in Conroe before District Judge Randy Clapp, who is visiting from Wharton County where he presides as the 329th District Judge.
At present, the four defendants will go through a trial together because of the allegation that they engaged in a conspiracy together. The Indictments for each of the three members of the Montgomery County Commissioners Court are identical:
“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 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.“
Davenport’s Indictment alleged that he intended “to promote or assist the commission of the offense” but otherwise his Indictment concerns the same allegations against him as against Doyal, Riley, and Clark. All four defendants have pled “not guilty.”
On May 9, 2015, a Montgomery Countywide road bond referendum went down to defeat by a 42.81% to 57.19% margin with 28,366 votes cast. The primary cause of the defeat was the inclusion of westward extension of Woodlands Parkway from F.M. 2978 to F.M. 249, which many residents of The Woodlands expressed would increase traffic congestion inside of The Woodlands. The Texas Patriots Tea Party PAC (the “Patriots PAC”), under the leadership of President Julie Turner, Vice President Jon Bauman, and Treasurer Bill O’Sullivan, organized the opposition in south Montgomery County to the proposed road bond referendum.
After the defeat of the road bond referendum, informal discussions began to occur between political consultant Marc Davenport, who at some point was on retainer with Doyal and Riley, and representatives of the Patriots PAC about possible methods of salvaging road bond projects. The gist of the discussions in early August, 2015, was that removing the Woodlands Parkway extension project would increase the likelihood of passage of a road bond referendum. Davenport, Doyal, and Riley met with Turner, Bauman, and O’Sullivan to discuss the road bond in various meetings which eventually concluded in the execution of a “memorandum of understanding” (the “MOU”) between Doyal, Riley, and the Patriot PAC. The MOU was a nonbinding agreement that primarily stated that the Patriots PAC would support a road bond referendum that excluded the Woodlands Parkway extension and included a specific list of road projects which Davenport obtained from the four County Commissioners – Clark, Riley, Precinct 3 Commissioner James Noack, and Precinct 1 Commissioner Mike Meador. Noack and Meador did not participate in the communications.
The resulting road bond referendum, an election on November 3, 2015, passed by a 63.36% to 36.64% margin with 45,558 Montgomery County citizens casting their ballots.
District Attorney Brett Ligon declined to proceed with the prosecution in the TOMA case, because he believed he had a conflict arising from Davenport’s work as a political consultant for then-First Assistant District Attorney Phil Grant, who is now the 9th District Judge. Grant ultimately terminated Davenport’s services. The District Court overseeing the Grand Jury deliberations appointed Downey as the Special Prosecutor in place of Ligon.
The Grand Jury issued Indictments on June 24, 2016, after all four defendants, Noack, O’Sullivan, and others testified to the Grand Jury under Subpoenas. Clark’s testimony to the Grand Jury was quite lengthy (almost four-and-a-half hours) while Davenport’s testimony was quite brief (approximately 15 minutes).
Doyal has hired Houston attorney Rusty Hardin as his criminal defense attorney. Doyal’s January 16, 2017, campaign finance reports showed payments to Hardin in the amount of $89,430.79 and to Conroe attorney John Choate in the amount of $9,167.50, during the last six months of 2016. There is also a legal defense fund for Doyal which Austin political consultant Pete Peterson, Halff Associates engineers, and others have established.
Riley has retained the services of Conroe attorney Doug Atkinson and paid him $20,000, as Riley’s campaign finance reports revealed, while Clark has paid Conroe attorney E. Tay Bond $10,000 for his criminal defense services. Davenport’s criminal defense attorney is Conroe attorney Steve Jackson.
There’s a worrisome aspect of this upcoming trial. The opinions which many have expressed regarding Doyal’s and the other defendants’ guilt or innocence reflect individuals’ political opinions regarding those politicians more than the facts of the case.
Similarly, Doyal has hinted that one of his defenses will likely be that he believes that his actions were justified because he wanted the road bond projects to pass. Doyal’s argument is political, not legal. The road bond projects are largely a failure. Despite overwhelming passage of the road bond referendum in November, 2015, only 1 of the 55 projects is complete. That project was partly funded by the County but actually constructed by the City of Willis. One other of the road bond projects is actually under construction, a small road project at the Montgomery County Airport in Commissioner’s Precinct 1. Other than the road bond projects in Commissioner’s Precinct 3, very little progress is occurring with any of the 2015 road bond referendum projects. One of the problems involving those projects is the inaction of County Engineer Mark Mooney who has made clear that he and his staff have no involvement with the road bond projects at all. Doyal has attempted to centralize all operations of the Montgomery County government with disastrous consequences. Doyal simply does not devote sufficient time to manage. Doyal is attempting to concentrate his personal control over the County government’s management and operations. His efforts to gain power have barred the County Commissioners, who have the time, ability, and staff to make the road progress occur.
The political arguments on both sides – for and against the defendants’ positions – are not and should not be germane to the issues in the criminal trial.
At the same time, Doyal, Riley, Clark, and Davenport are entitled to and should enjoy a presumption of innocence. Since no court has adjudicated them guilty, they are innocent at the time of this writing. Whether one supports or opposes the politics of the defendants, they should receive a fair trial and political positions should have nothing to do with the determination of their guilt or innocence.
There are other troubling aspects of the criminal case among many:
- The criminal charges against Davenport seem out of place. Davenport is and has been a private citizen. He is not a member of a governmental body. Even if Davenport were an “agent” of Doyal and Riley during the negotiations involving road bond MOU, it’s highly questionable whether he was subject to the provisions of TOMA.
- The potential testimony of Commissioner James Noack would seem to inject political aspects to the evidence that have no place inside a court of law.
- The judge, jury, and community as a whole should not conflate the signing of the MOU, which was likely an act of stupidity, with an unlawful deliberation under TOMA.
The specific provision of the Texas Government Code with which the State has charged the four defendants is Section 551.143 which make it a Class B misdemeanor, punishable by a fine of $100 to $500 and confinement in the County Jail for one to six months if “a member or group of members of a governmental body commits an offense if the member or group or members knowingly conspire to circumvent TOMA by meeting in numbers less than a quorum for the purpose of secret deliberations…” While another provision of TOMA provides an affirmative defense if “the member of the governmental body acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record, the attorney general, or the attorney for the governmental body,” that affirmative defense does not appear to be available for the specific provision with which the four defendants face charges in this case.
Although the crimes are Class B misdemeanors, they carry with them a heavy penalty, because they constitute “official misconduct,” as the State Commission on Judicial Conduct determined in Judge Craig Doyal’s disciplinary proceeding. If convicted, it is likely that Doyal, Riley, and Clark would face removal from public office.
Davenport stands in an unusual position. He is not a member of the Commissioners Court, so it’s questionable whether he can even violate TOMA as a matter of law. Furthermore, since Davenport faces no removal action for committing misconduct, as a private citizen, it’s questionable whether the same District Court which is trying Doyal, Riley, and Clark even has jurisdiction over Davenport. County courts, not district courts, have jurisdiction over criminal misdemeanors, unless the charge involves official misconduct (or some other exceptions). Furthermore, even if convicted, Davenport’s worst case would be a $500 fine and 6 months in the Montgomery County Jail. While the Jail sentence is quite serious as is the fine, Davenport does not face the same threat to his long-term career that his three co-defendants face.
The legal system is far from perfect. Judicial process has many flaws. It’s the only civilized means by which the four defendants have any chance for a fair hearing. As a community, we should permit them to have that fair hearing.
DISCLOSURE: The Golden Hammer believes that stories, such as the one above, require full disclosure of the author. In this instance, the author considers himself a friend of Marc Davenport, a friend and fraternity brother of Jim Clark, a friend and past political supporter of Craig Doyal, and a fraternity brother and past political supporter of Charlie Riley. At the same time, however, the author has criticized Clark, Doyal, and Riley politically on various issues, including, inter alia, the animal shelter, ethics, mobility projects, County spending, and conflicts of interest.