Austin and Conroe, August 10 – Two of the criminal defendants in the Texas Open Meetings Act (TOMA) criminal case pending before the Texas Court of Criminal Appeals filed their appellate briefs late on Monday, August 6. Criminal defendant and Precinct 2 County Commissioner Charlie Riley filed his brief. Criminal defendant and local political boss Marc Davenport also filed his brief with the Court in Austin.
On February 18, 2018, the Beaumont Court of Appeals reinstated the criminal indictments against Montgomery County Judge Craig Doyal, Riley, and Davenport, after a visiting trial judge had dismissed their cases, after they argued TOMA allegedly violated their rights of free speech and was so vague that they could not understand the statute.
The unanimous ruling of Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson of the Ninth Court of Appeals is:
“We conclude that section 551.143 [of the Texas Open Meetings Act] describes the criminal offense with sufficient specificity that ordinary people can understand what conduct is prohibited…The statute provides reasonable notice of the prohibited conduct…We conclude that the statute is reasonably related to the State’s legitimate interest in assuring transparency in public proceedings…”
Doyal, Riley, and Davenport had claimed on both the trial court and the Court of Appeals that they could not understand the prohibitions in the Texas Open Meetings Act (“TOMA”) because they claim the statute is vague. They also tried to argue that the statute is unconstitutional because it violates their rights of free political speech.
The Beaumont Court of Appeals rejected both arguments of the criminal indictees. The Court of Appeals ruled that TOMA merely regulates the time, place, and manner of the political speech of governmental officials so that the public may observe deliberations in a transparent manner. Of course, Doyal, Riley, and Davenport have vehemently fought against any such transparency and had fought to have TOMA deemed unconstitutional.
What the criminal case against Doyal, Riley, and Davenport concerns: indictment
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.
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.
If convicted, Doyal and Riley would be guilty of “official misconduct” under Texas law and would be subject to removal from office.
Trial of the 21st Century
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 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.
Doyal and Riley each paid Davenport $5,000 to negotiate the terms of a new bond referendum for November, 2015, after conservative activists had led a campaign to defeat the May, 2015, bond referendum which had included a proposal to build the Woodlands Parkway Extension. Voters in Commissioners Precinct 3 (mainly The Woodlands) and Commissioners Precinct 2 (Magnolia and surrounding areas) had voted overwhelmingly against the bond referendum in May 2015 while voters in other parts of Montgomery County had supported it.
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, had dismissed the cases against Doyal, Riley, and Davenport on April 4, 2017, at the urging of Doyal’s very expensive attorney Rusty Hardin whom Doyal has paid several hundred thousand dollars from his campaign funds and from a separate legal defense fund that individuals strongly interested in the construction of the TX 249 Tollway had established.
The Court of Appeals issued judgment against all three criminal defendants – Doyal, Riley, and Davenport – and ordered them to pay the State of Texas’ court costs of several thousand dollars incurred in the appeal.
It is likely that the “Trial of the 21st Century” will not proceed for at least several months. Doyal, Riley, and Davenport could utilize several procedural devices to delay the matter further, including an appeal to the Court of Criminal Appeals, which would likely not take the case.
Riley filed his brief in the Texas Court of Criminal Appeals on August 6, 2018. Once again, he argued that TOMA is unconstitutionally vague and ambiguous. He argued that he is the victim of “shoddy draftsmanship” in the TOMA statute.
In his brief, Riley argued against application of the Open Meetings Act at all because, he claims, it “forces practitioners [lawyers] to advise members of government bodies to avoid discussing public business except in posted meetings.” That’s precisely the purpose of the statute, so, perhaps, Riley understands its purpose after all.
What Riley wants, however, is to be able to have secretive meetings with his colleagues on the Commissioners Court away from the prying eyes and ears of the public, even though the Texas Legislature has made governmental openness a public policy of the State of Texas.
Riley also argued that he, as an elected official, has a constitutional right of free political speech without time, place, or manner restrictions, even though he and his co-criminal indictee Doyal impose time, place, and manner restrictions on Montgomery County citizens at every Commissioners Court meeting.
Riley also complained that Texas has a more aggressive policy in favor of open government and that “no other state criminalizes meeting in less than a quorum.” Clearly, Riley’s voting record on the Commissioners Court would suggest that he’d be more comfortable as an elected official in a liberal state such as California or Massachusetts. Since, he argued, neither of those states have as strong as policy of governmental openness as Texas, Riley perhaps ought to consider moving to one of those two states and seeking to live off of the public dole there instead of the Lone Star State.
Davenport’s brief was far more straightforward than Riley’s or Doyal’s. Shockingly, Davenport argued that open government is not a “compelling state interest.” Additionally, Davenport argued that he is an “ordinary reasonable” person who has to guess at the meaning of the statute.
Davenport, Riley, and Doyal all sought to overstate the reach of TOMA by claiming that it prohibits a governmental official from communicating with his or her constituents. In reality, TOMA merely prevents a governmental official from conspiring to form a quorum on the governmental body by meeting with less than a quorum in a series of meetings.