Beaumont, July 13 – The prosecutors, acting on behalf of the State of Texas, who are pursuing criminal convictions against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss and consultant Marc Davenport, filed their opening Brief late in the day on Monday, July 10, 2017, in the Ninth Court of Appeals at Beaumont. The criminal defendants – Doyal, Riley, and Davenport – now must file their Brief on July 31, 2017, although multiple extensions of that deadline are likely.
Many citizens have called the case “the trial of the 21st century” due to its potential impact on the future of Montgomery County.
A Montgomery County Grand Jury, at the request of District Attorney Brett Ligon, indicted Doyal, Riley, and Davenport for allegedly violating Section 551.143 of the Texas Open Meetings Act (“TOMA”)
“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 a 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.”
The prosecutors noted in their Brief that Doyal and Riley are members of the Commissioners Court while the Grand Jury indicted Davenport for his alleged
“intent to promote or assist the commission of the offense described herein, solicit, encourage, direct, aid or attempt to aid…”
the defendants in their meeting in a number less than a quorum to circumvent TOMA. Recent revelations about Davenport’s claimed work as a “sworn deputy” and a person in the office of the Justice of the Peace, Precinct 4, may impact the proceedings, since Davenport is arguably a County government agent, although the State has not yet raised those factual issues.
Faced with serious criminal charges that could potentially lead to Doyal’s and Riley’s removal from office for “official misconduct,” Doyal, Riley, and Davenport, who clearly controls many of the actions and policy decisions of Doyal and Riley, sought a dismissal of the criminal cases against them by claiming that the TOMA statute is unconstitutional. As the State of Texas noted in its Brief, there was no testimony yet in the trial court concerning the facts that gave rise to the indictments. Rather, the hearing before the trial court was primarily a bunch of lawyers who claimed to be experts in TOMA.
The trial judge, Visiting District Judge Randy Clapp of Wharton County, dismissed the cases against Doyal, Riley, and Davenport on April 4, 2017.
Free speech and First Amendment issue
While Doyal, Riley, and Davenport tried to argue that TOMA is a restriction on their right to free speech under the First Amendment. Of course, Doyal and Riley certainly seem to understand the concept of “time, place, and manner restrictions” as being reasonable by the manner in which they limit citizen comments to 3 minutes and only during certain time periods during the meetings of the Montgomery County Commissioners Court.
The main point of the State’s Brief was:
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 restraints by the TOMA statutory structure.”
In other words, TOMA is merely a “time, place, and manner restriction” just like regulations of citizen comments during the Commissioners Court meetings, a reasonable restriction on free speech, as the United States Supreme Court has recognized for well over a century. The prosecutors also argued that TOMA’s restrictions on the time, place, and manner of speech within the TOMA are reasonable, because those restrictions contribute to the “salutary and compelling goals of transparency, faith in government, creating an environment where corruption cannot thrive…” Doyal, Riley, and Davenport, who primarily operate in secret, clearly do not support the goals of transparency or creating an environment where corruption cannot thrive.
The prosecutors pointed out to the Court of Appeals that the constitutionality of TOMA has already been squarely addressed by the United States Court of Appeals for the Fifth Circuit in the Asgeirson v. Abbott decision in 2012. They also brought to the appellate judges’ attention that one of the Defendants’ witnesses, attorney Alan Bojorquez, conceded that point regarding the Asgeirson opinion.
Doyal, Riley, and Davenport contend that TOMA is so unconstitutionally vague that they cannot understand its provisions. Generally, a law which is vague violates the “due process clause” of the Fifth Amendment to the United States Constitution. The prosecutors reminded the Court of Appeals that the Asgeirson appellate court also rejected that argument.
During the hearing in the trial court, the criminal defendants proffered a number of witnesses, including Oak Ridge North Mayor Jim Kuykendall, who claimed that, as elected officials, they don’t understand the provisions of TOMA. That is not what makes a statute unconstitutionally vague, as the prosecutors noted in citing the United States Supreme Court opinion of United States versus Salerno from 1987. A statute is unconstitutionally vague is there are “no sets of circumstances…[that] exists under which [the statute] would be valid” as the Supreme Court held.
Basically, the criminal defendants – Doyal, Riley, and Davenport – were indicted allegedly for conducting meetings in less than a quorum (3 out of the 5 Commissioners Court members) to circumvent TOMA by obtaining agreements to support the November 2015 road bond referendum issue. There wouldn’t seem to be anything particularly difficult to understand about that.
The prosecutors concluded their Brief with the following statement:
“A nation founded on the principle of government of the people, by the people and for the people necessarily requires that government be conducted in view of the people. This theory of government runs back to our founding fathers and is the bedrock on which this nation is built. The First Amendment supports this right of the people for open, limited government and the Texas Open Meetings Act was passed to provide a legislative framework to ensure that governmental bodies in Texas meet their constitutional duty to do business in the light of day.”