Austin, September 3 – Special Prosecutor Christopher Downey and his legal team filed their Brief, on behalf of the State of Texas, without any delay in the Texas Open Meetings Act (“TOMA”) criminal prosecution case against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport, who is the husband of disgraced lame duck County Treasurer Stephanne Davenport. The State filed the Brief on August 22, 2018, with the Texas Court of Criminal Appeals, the highest appellate court for criminal cases in Texas.
In June, 2016, a Montgomery County Grand Jury indicated Doyal, Riley, and Davenport for conspiring to circumvent TOMA by conducting meetings in numbers less than a quorum for the purpose of establishing a quorum to pass the provisions of a proposed November, 2015, road bond referendum. Doyal, Riley, and Davenport negotiated a memorandum of understanding with the leadership of the Texas Patriots PAC with respect to the road bond referendum after the group and others had soundly defeated another road bond referendum in May, 2015, because the earlier referendum had included a proposal to construct a Woodlands Parkway Extension, which voters in Commissioners Precinct 3 (The Woodlands area), and Precinct 2 (the Magnolia area) strongly opposed.
The Grand Jury indicted the three and one other member of the Commissioners Court for meeting in numbers less than a quorum and conspiring to circumvent the open meetings requirements of TOMA. The other member of the Commissioners Court, outgoing Precinct 4 County Commissioner Jim Clark, ultimately received a dismissal from the case under an agreement with the prosecutors.
In April, 2017, a hyperpolitical visiting judge with close connections to Doyal’s attorney dismissed the indictments right before a criminal trial against the three. The visiting judge ruled that TOMA is unconstitutional after Doyal, Riley, and Davenport argued that TOMA violated their rights of free political speech and also was so vague that they were unable to understand the statute.
In February, 2018, however, the Beaumont Court of Appeals overturned the dismissal of the indictments in a unanimous opinion and ruled that TOMA is consistent with the provisions of the United States and Texas Constitutions, because it is merely a restriction on the time, place, and manner of speech which does not regulate the contentof political speech. In other words, reasonable regulations, such as the Montgomery County Commissioners Court’s limitation on citizens comments to last only three minutes may occur, although the government may not ultimately regulate the content of political speech. The constitutionality of time, place, and manner restrictions has been established law in the United States for well over a century.
The Court of Appeals also determined that there was nothing vague about TOMA.
In its thorough brief, the State of Texas, through the Special Prosecutor, noted that TOMA applies only to a quorum of the members of governmental bodies on “public business or public policy over which the governmental body has supervision or control,” and does nothing to restrict communications between these elected officials and between any of them and the public outside the procedural constraints imposed by the TOMA statutory structure.
Perhaps the most important argument the State of Texas made in its brief was:
“In addition to the salutary and compelling goals of transparency, faith in government, creating an environment where corruption cannot thrive, TOMA also protects the rights as public officials to observe and participate in the public policy making for which they were elected. Without TOMA, a majority of members would have the power to effectively expel the minority from the public policy process altogether.”
The secrecy of the Montgomery County government under Doyal has undoubtedly created an environment where corruption has thrived. For example, the approval on August 28, 2018, of a $14.9 million purchase of Enterprise Resource Planning (“ERP”) software in a Commissioners Court meeting clearly involved corruption of the most crass sort. Members of the Davenport Ring, including Stephanne Davenport and her close associate County Auditor Phyllis Martin, lobbied vociferously for the approval of that software purchase. The Commissioners Court approved the purchase and expenditure of $14.9 million, the most expensive purchase (other than for roads or buildings) in the history of Montgomery County, with little discussion or deliberation and without any review of the contract between the County government and the vendor. In fact, that contract was not even made available to the members of the Commissioners Court for their review.
The ERP purchase would seem to be precisely the type of corruption TOMA sought to prevent.
The Special Prosecutor noted that the constitutionality of TOMA has already been squarely addressed by the United States Court of Appeals for the Fifth Circuit. Appellees were indicted under a different statute than that directly challenged in Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012). However, the First Amendment arguments and vagueness arguments are the same for both Sections 551.143 (under which Doyal, Riley, and Davenport were indicted) and Section 551.144, the subject of the Fifth Circuit case.
The State also argued that the criminal defendants, Doyal, Riley, and Davenport, proffered a number of lawyers who merely complained in testimony in the trial court’s hearing on constitutionality that they didn’t like the TOMA statute, because it limited what their clients could do, which was not sufficient grounds for overturning the constitutionality of a statute with the important statutory purpose of advancing open government.