Conroe, December 8 – Visiting District Judge Randy Clapp, sitting for the 9th District Court, dismissed the charges against Precinct 4 Montgomery County Commissioner Jim Clark on Tuesday, December 6, 2017, “in the interest of justice.” The charges arose in the Texas Open Meetings Act (“TOMA”) criminal case that remains pending against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport.
Judge Clapp noted that “Mr. Clark has fully complied with the terms of the pretrial diversion.” Clark has only agreed to testify truthfully about what happened with respect to the November 2015 road bond referendum. “That’s easy, because I want to tell the truth,” Clark has told The Golden Hammer previously.
Clark’s attorney, E. Tay Bond of Conroe, said, “Mr. Clark has always agreed to tell the truth just as he did in front of the Grand Jury under oath for four hours. It’s been very rewarding working for a client, Jim Clark, who has his constituents at heart and who takes his job seriously.”
Clark’s attorney E. Tay Bond: “Mr. Clark has always agreed to tell the truth just as he did in front of the Grand Jury under oath for four hours. It’s been very rewarding working for a client, Jim Clark, who has his constituents at heart and who takes his job seriously.”
“The most significant quality of the agreement that I reached in regards to Mr. Clark is the fact that this pretrial diversion did not include a judicial confession, because Mr. Clark was unwilling to agree that he ever intentionally to violate the Open Meetings Act. That is very different from any other pretrial diversion that you will come across,” Bond added.
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.
The desire for secrecy and to avoid public scrutiny is the problem with Doyal and Riley. Doyal paid Davenport $5,000 to represent Doyal in the negotiations over the road bond referendum.
“…the statute is not the problem. The desire for secrecy and to avoid public scrutiny is the problem with Craig Doyal and Charlie Riley.”
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.
What is TOMA Section 143?
TOMA Section 143, the provision under which Doyal, Riley, and Davenport face criminal indictment 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 [TOMA] by meeting in numbers less than a quorum for the purpose of secret deliberations.”
In other words, a quorum of the Commissioners Court is three members among Doyal, Riley, Clark, Precinct 3 Commissioner James Noack, and Precinct 1 Commissioner Mike Meador. If three actually meet and discuss an issue within the jurisdiction of the Commissioners Court or any public business, then they’ve conducted a “closed meeting” in violation of Section 144 of TOMA under certain conditions. But if two members of the Commissioners Court meet to circumvent TOMA’s open meetings requirement, and secretly have a verbal exchange about public business, for the purpose of conspiring to circumvent TOMA by meeting in groups of less than a quorum, they’ve committed a crime under Section 143.
For example, if Craig and Charlie decide they want popcorn served in all County offices to County employees, they’re okay to discuss that with each other. But if Craig and Charlie have that same verbal exchange with the knowledge that they’re doing so in order to have “secret deliberations” (a VERY IMPORTANT TERM!), then they’re in trouble with the law. “Deliberations” is an important term here. It means “a verbal exchange during a meeting between a quorum of a governmental body…concerning…any public business.”
How do Craig and Charlie break that law? They meet and decide about the popcorn policy and do so knowing that they’re going to get a third Commissioners Court member into their decision outside of an open meeting of the Commissioners Court.
Basically, the criminal allegations against Doyal, Riley, and Davenport are pretty simple, because they not only had verbal exchanges about the provisions of a road bond referendum resolution but also they memorialized those discussions in a written Memorandum of Understanding with some third parties. The next step that got them in trouble occurred when their political consultant Davenport, on retainer to both Doyal and Riley at the time, went to Precinct 4 County Commissioner Jim Clark to get his road projects and to communicate with him about the road bond referendum. Those actions, and the likely testimonial explanation of Clark in a trial, are likely the reason that Doyal and Riley are in nuclear hot water.
The constitutionality challenge – vagueness, fear, and free speech
Doyal, Riley, and Davenport claim that TOMA Section 143 is unconstitutionally vague, because they can’t understand it. They presented three attorneys and a few elected officials this past week who acted as their spokespeople in that regard. The attorneys, especially Austin attorney Jennifer Riggs, told Visiting District Judge Randy Clapp that they regularly advise their clients not to meet at all with other governmental body members in order to avoid criminal prosecutions. The elected officials, including Oak Ridge North Mayor Jim Kuykendall, testified that they’re so afraid of TOMA Section 143 that they never communicate with each other outside of open meetings. Riggs and Kuykendall both expressed their opposition to the “chilling effect” TOMA has upon free expression of ideas among governmental body members.
Section 143 is not vague at all. If Doyal and Riley meet they’re okay. But if they meet for the purpose of circumventing the quorum requirement of TOMA, by having secret meetings in smaller-than-quorum groups in order to get a majority of the Commissioners Court in line for a vote before an open meeting, then they’re in trouble.
Doyal, Riley, and Davenport have contended that TOMA Section 143 is an unconstitutional restriction on their right of free political speech seemed to lose all credibility. That argument is the precise reason that Texas Attorney General Ken Paxton has intervened in their criminal case to oppose their constitutionality argument. It has long been the law that “time, place, and manner restrictions” upon political speech are okay, as long as they serve a reasonable purpose and are limited in such a manner to achieve their means. Just as Doyal has every right to limit citizen comments during Commissioners Court meetings to 3 minutes each, so may the Texas Legislature tell Doyal and Riley, “You can’t express your political speech to each other for the purpose of gaining a majority of the Commissioners Court to support your idea, unless you do so in an open meeting.”
Arrogance and defiance – not true that they won’t meet in public or in small groups
The basic problem with Doyal, as County Judge, and Riley, as a County Commissioner, is that they want to operate in secret. Doyal has turned a once open County government into a dark cave of secrecy. Department Directors get their walking papers for providing the public information. County employees are intimidated from speaking with the public. The County Budget process, one of the most important functions of the Commissioners Court, has turned into a closed and secret process. Doyal’s fundamental County governing principle is “lockjaw.”
The County budget is so secretive that Doyal and the County Commissioners don’t know what’s in it.
At the same time, Doyal and Riley have shown no fear whatsoever from meeting outside of open Commissioners Court meetings, as TOMA requires. They meet regularly.