Beaumont, October 25 – After a blockbuster “friend of the court” Brief from Texas Attorney General Ken Paxton urging the Beaumont Court of Appeals to permit the criminal indictments of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport to proceed to trial, the Special Prosecutors – Christopher Downey, Joseph Larsen, and David Cunningham – submitted their final briefing before the oral argument in the case.
The case is presently set for oral argument before Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson on November 9, 9:30 a.m., in the second floor courtroom of the James Keeshan Administration Building, 301 North Thompson, Conroe. The lawyers for the defendants have asked for a two month delay in the oral argument until mid-January, 2018, which such delay would make it likely that the Court of Appeals would not rule in the case until after the March 6, 2018, Republican Primary Election in which both Doyal and Riley face stiff challenges. As of the end of the business yesterday, the Court of Appeals still has not ruled upon the request by Doyal, Davenport, and Riley to delay the oral argument for two months.
The Montgomery County Grand Jury indicted the three on June 24, 2016, for allegedly violations Section 551.143 of the Texas Open Meetings Act (“TOMA”) by knowingly meeting in numbers less than a quorum with the intent of circumventing the open meetings and deliberations provisions of TOMA with respect to the structure of the November, 2015, road bond. Although Doyal has tried to justify his conduct by arguing for the urgent necessity for the road bond projects in Montgomery County, in actuality very little progress has occurred on the approved road bond projects (other than those in Precinct 3) until recently when the March, 2018, election has begun to loom large.
In the trial court, the three defendants argued to the trial judge, Visiting District Judge Randy Clapp of Wharton County, that TOMA violates their constitutional rights of free speech under the United States and Texas Constitutions and that the statute is so vague that they are unable to understand what TOMA prohibited them from doing. Clapp declared TOMA unconstitutional on April 3, 2017, so the Special Prosecutors appealed his decision to the Court of Appeals.
In their final brief, the Special Prosecutors argued:
- The prosecutors rejected political boss Marc Davenport’s argument that TOMA restricts speech based upon content. Rather, they argue that it merely restricts the time, place, and manner in which discussions by governmental authorities concerning government business may occur. Specifically, the restriction is that they must deliberate matters, such as Commissioners Court proceedings, in open meetings so that they public may observe them. All three defendants – Doyal, Riley, and Davenport – have made clear that they would prefer not to have to comply with the TOMA so that they “can get business done.”
- The prosecutors called Davenport’s arguments of vagueness and over breadth of the TOMA statute “mere ‘fanciful hypotheticals’ unsupported by analysis of the language of the statute or the testimony of the witness who either don’t speak to the issue or whose testimony supports the contrary position.
- Downey and his prosecutor colleagues further argued, “TOMA also protects the rights as public officials to observe and participate in the public policy making for which they were elected. Without TOMA and § 551.143, a majority of members would have the power to expel the minority from the public policy process altogether. By the only reasonable reading of § 551.143, it is narrowly tailored to serve these significant goals as it is limited to members of a governmental body who knowingly meet in numbers less than a quorum in order to actually do business as a quorum. Rather than limit the government’s ability to provide access to the workings of its governmental bodies through requiring business be done at properly noticed meetings, the First Amendment requires a level of access sufficient for the citizenry to perform their vital role of oversight in our system of limited government.”
Meanwhile, the TOMA criminal case is hardly the only serious legal problem that Doyal and Riley face. A Montgomery County Grand Jury and the Public Integrity Unit of the Montgomery County District Attorney’s Office is investigating Riley’s and Doyal’s use of County and school district public property since The Golden Hammer, Montgomery County’s leading daily newspaper, began investigating and reporting on the matter – with the amazing groundwork of conservative activists Ginger Russell, a Republican Precinct Chair from Magnolia, and Kelli Cook, Montgomery County Coordinator for the Campaign for Liberty from Montgomery. The Grand Jury received a day of testimony last Thursday, October 19, and is set to continue the investigation this coming Thursday.
Both the TOMA case and the current Grand Jury investigation, often referred to as “Trailer-Gate” because it began with an investigation into Riley’s and Doyal’s long-term storage of their cooking trailers on County property, are quite serious, because they both involve allegations of “official misconduct” for which Riley and Doyal could face removal from office, if convicted. Precinct 2 County Commissioner candidate Brian Dawson has called for Riley to resign as a result of the Trailer-Gate circumstances many of which Riley has openly admitted.