Image: The Notice of Appeal, which Special Prosecutor Christopher Downey, filed to appeal on behalf of the State of Texas the criminal cases against Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political consultant Marc Davenport.
Conroe, April 21 – Special Prosecutor Christopher Downey filed the State of Texas’ Notice of Appeal Wednesday evening in the criminal prosecutions of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political consultant Marc Davenport concerning their alleged violations of the Texas Open Meetings Act (TOMA). The prosecution came to an abrupt turn when on April 5, 2017, Visiting District Judge Randy Clapp dismissed the cases against Doyal, Riley, and Davenport, after they argued that TOMA is unconstitutional due to alleged vagueness and allegedly violating their rights to free political speech.
Doyal, Riley, and Davenport fought very hard against one of the provisions in TOMA to enforce “open government.” After a 4-day hearing in which the criminal defendants brought forward witnesses to complain how the “open government” requirements interfered with their ability to conduct business, Judge Clapp ended the prosecution which would have been Montgomery County’s “Trial of the 21st Century.”
Davenport’s attorney, Steve Jackson, renowned criminal defense attorney in Conroe, told The Golden Hammer in an exclusive interview that Davenport did not intend, at this time, to file a cross-appeal to complain about Judge Clapp’s refusal to dismiss Davenport from the case, since Davenport is a private citizen and never served as a “member” of a “governmental body” which the class of individuals to whom TOMA would seem to apply. Jackson explained, “If the state were to prevail in their appeal…then we would look at taking other legal attacks on whether or not Mark can be brought into the case in the District court.”
The appeal will go the Ninth Court of Appeals in Beaumont where it’s likely that Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson will hear the case. Justice Charles Kreger had previously recused himself from a related appellate matter, so that will likely happen again for this appeal. The appeal will likely take from 9 to 18 months.
Judge Clapp’s ruling holds Section 143 of the Texas Open Meetings Act unconstitutional. No other judge has ever held any provision of the Open Meetings Act unconstitutional.
The indictments of the defendants stated:
“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] 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, Davenport, and Precinct 4 County Commissioner Jim Clark 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. Clark has since turned “state’s evidence” so he is no longer a defendant subject to the prosecution.
TOMA Section 143, the provision under which Doyal, Riley, and Davenport faced criminal charges provides:
“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter [TOMA] by meeting in numbers less than a quorum for the purpose of secret deliberations.”
Now, members of governmental bodies will have the opportunity to conduct secret deliberations outside of a formal quorum with impunity, unless the State of Texas successfully overturns Clapp’s ruling.
The Court’s ruling is a major blow to open government and transparency throughout the State of Texas. Doyal has cloaked the Montgomery County government in secrecy. For that reason, Doyal and Riley have come to be known as the “King of Government Darkness” and “Prince of Government Darkness,” respectively. County spending in Montgomery County is out of control but Doyal and Riley don’t want you to know why.