The TOMA Trial: Prosecution expert White, lawyers spar over constitutional matters

Houston criminal defense attorney Troy McKinney is part of Precinct 2 County Commissioner Charlie Riley’s criminal defense team.

Conroe, April 3 – In the Texas Open Meetings Act (“TOMA”) constitutionality challenge by criminal defendants Craig Doyal (County Judge), Charlie Riley (Precinct 2 County Commissioner), and Marc Davenport (private consultant), the late morning sparring between attorneys and expert witness Joel R. White, a First Amendment and media attorney testifying for the State, was largely theater of the absurd. White is a 30 year attorney from Austin and has represented a number of large media firms such as CBS, the Associated Press, and Bloomberg.

The willingness of the judge and the attorneys to delve into matters of policy, rather than constitutional legal analysis, was frightening. At times, the Courtroom had the look and feel of a miniature Texas Legislature.

White represents his clients in libel, access to courts, transparency in government matters. He has litigated many openness and transparency issues under the Texas Open Meetings Act (“TOMA”) and the Texas Public Information Act in order to make sure reporters have access to public information.

White testified that TOMA is a disclosure statute and the Section 143 provides that members of a government body can’t meet in numbers of less than a quorum to circumvent the open meetings requirements of TOMA. White said, “This statute is content-neutral, because it doesn’t discriminate against any particular point of view and doesn’t prohibit discussion of a particular subject.”

“There is no first amendment right to discuss in a quorum in private,” White said.  “The TOMA statute is a time, place and manner restriction. It’s content neutral…since it’s content neutral, the statute is not subject to a strict scrutiny standard” to determine its constitutionality.

“There are compelling state interests behind TOMA:  transparency of government, it helps to prevent corruption, prevents a secret majority from forming a cabal that steps on the toes of others who might have an interest in government,” White told the Judge. “For an individual to violate Section 143, you’d have to have the requisite mental state…[a private person such as a reporter or consultant]  would have to be intentionally aiding or abetting the crime of the members to conspire to meet in numbers less than a quorum. That’s what the Attorney General said in an opinion. For a private person to be liable, a private individual would have to aid or encourage the offense.”

White agreed with Riley’s attorney, Troy McKinney of Houston, that TOMA is a complicated law, but he did say he would expect someone who is a member of a governmental body to understand if he was meeting in a number less than a quorum for the purpose of circumventing TOMA’s statutory provisions. Both McKinney and Doyal’s attorney, Rusty Hardin, tried to get White to agree that TOMA was a content-specific law. White rebuffed that point repeatedly. “If you’re talking about poodles and schnauzers you can do it however you want but if you’re talking about something within the jurisdiction of a governmental body, then you have to comply with the Open Meetings Act,” White told the judge.

Judge Clapp’s questions to White at the end of the morning were the most insightful and helpful. Judge Clapp asked White whether White makes a distinction between a meeting among governmental body members where they’re merely seeking education and information from one where they’re making a decision about some public issue. White said he doesn’t think there is such a distinction and compliance with TOMA’s provisions would be necessary for both types of meetings.

White made the point in response to Judge Clapp’s questioning that if staff members of a city council agree on behalf of their bosses on some public issue that could constitute a violation of TOMA, if there is knowing intent to establish a quorum with respect to an issue. “If they’re trying to avoid compliance with the requirements of the Open Meetings Act so that they can deliberate in secret, then they don’t want the public to know what they’re doing and that’s a violation.”

Judge Clapp asked White whether preventing members of a city council or staff members from having such meetings is good policy. White answered, “If staff members are acting with knowledge, then they are knowingly conspiring to violate” TOMA.





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