Conroe and Beaumont, November 2 – In their effort to defendant themselves from the criminal charges against them for alleged violations of the Texas Open Meetings Act (“TOMA”), Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport have argued that TOMA is unconstitutional because, they claim, it violates their rights of free speech under the United States and Texas Constitutions. Their broad attack on TOMA and its public policy of “open meetings” has drawn the ire of Texas Attorney General Ken Paxton who has sided with the Special Prosecutors seeking to convict Doyal, Riley, and Davenport, which such conviction would likely lead to the removal of Doyal and Riley from office for “official misconduct,” if they’re found guilty.
Yesterday, the Special Prosecutors filed a motion in the Beaumont Court of Appeals, where the criminal case against the three is pending, to postpone the oral argument – set for Riley and Davenport for November 9, but set for Doyal for January 25 – so that all three oral arguments are heard together. More significantly, the Special Prosecutors announced in their motion that an attorney representing the Texas Attorney General, who filed a “friend of the court” Brief, would like to participate in the oral argument before Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson.
The participation of the Texas Attorney General’s representative during the oral argument is a major development in this case, since “friends of the court” usually do not particulate in the oral argument. The significance of this case to defend the importance of “open meetings” under Texas law, however, has drawn Attorney General Paxton into the matter headlong.
The elected Texas Attorney General explained in his Brief that his interest in the case is “The Office of the Texas Attorney General defends Texas statutes that are challenged under the Constitution of the United States…[T]he Office of the Attorney General has a specific and heightened interest in this litigation because the Texas Open Meetings Act is a predominantly civil law that is vital to the open functioning of all levels of government in Texas.”
In his Brief, General Paxton explained, “Section 551.143 makes it a misdemeanor for members of a governing body to knowingly conspire to circumvent TOMA’s disclosure requirements by deliberating public issues with a quorum of that body through a series of meetings, none of which by itself has a quorum.” In this instance, the Montgomery County Grand Jury indicted Doyal, Riley, and Davenport for conducting a series of meetings to negotiate the terms of a November 2015 road bond that they sought to set for a referendum.
Paxton made three primary arguments in his Brief.
First, the Texas Attorney General, speaking on behalf of the citizens of Texas, noted that disclosure laws such as TOMA, which prohibits governance in secrecy, promote First Amendment values while not preventing anyone from speaking in the public. Paxton noted that since in our society the citizenry is the final judge of the proper conduct of public business, openness in the democratic process is of critical importance. He explained, “Open meetings promote accountability, prevent corruption, and ensure that officials with minority views are not shut out by the majoring. By enforcing open meetings, section 551.143 [of TOMA] advances these interests, and is constitutional. Indeed, it is telling that Defendants do not cite a single case striking down an open meetings provision.”
Second, the Attorney General explained it is a content-neutral provision that is merely aimed at hiding information from the public. He wrote, TOMA “does not concern what is said, but only whether it is said in private, away from voters who need that information to hold their elected officials accountable.”
Making sure that what is said is in private is precisely what Davenport, Doyal, and Riley seek. They want to make sure that voters who need information to hold their elected officials accountable do not have that information. Paxton noted that Section 551.143 of TOMA “is narrowly tailored to promote Texas’s compelling interest in good governance.”
Third, Attorney General Paxton made clear that TOMA is not overbroad or vague. The criminal prohibition under Section 551.143 of TOMA only applies to those who “knowingly” seek to circumvent TOMA’s disclosure requirements. Although Doyal in particular tried to argue in his briefing that he has trouble interpreting TOMA and trouble understanding it, Paxton rejected that argument entirely. The Attorney General said, “…that is irrelevant. What matters is whether it is clear what the statute prohibits at its core. And section 551.143 clearly prohibits persons from knowingly conspiring to circumvent TOMA’s disclosure requirement by secretly deliberating with a quorum of a governmental body through a series of discussions.”
The criminal case, also known as the “Trial of the 21st Century” because of its potential impact on the future of Montgomery County politics, could have an enormous impact on the outcome of the March 6, 2018, Republican Primary Election where Doyal has drawn the ever popular and staunchly conservative State Representative Mark Keough as an opponent, where Riley has drawn two opponents so far in local businessman Brian Dawson and former Comal County Commissioner Greg Parker, and where Davenport’s wife, County Treasurer Stephanne Davenport, faces the immensely popular and fiscally conservative Melanie Pryor Bush.