Austin, June 7 – The Texas Court of Criminal Appeals granted the petition for discretionary review in the criminal case against Montgomery County Judge Craig Doyal for alleged conspiracy to violate the Texas Open Meetings Act yesterday. The Court of Criminal Appeals has not yet granted the petitions in the criminal cases against Precinct 2 County Commissioner Charlie Riley and local political boss Marc Davenport, although it is likely that the Court will do so in their cases as well.
The ultra-liberal, pro-government spending, and anti-citizen lobbying groups, the Texas Municipal League and Texas Association of Counties, celebrating their work with liberal House Speaker Joe Straus to kill property tax reform during the 85th Legislative Session last year, decided to come to the side of their criminally-indicated allies, Precinct 2 Montgomery County Commissioner Charlie Riley and lame duck County Judge Craig Doyal, in the pending criminal case against Riley and Doyal before the Texas Court of Criminal Appeals in Austin. Texas Attorney General Ken Paxton has joined with Special Prosecutor Christopher Downey in seeking convictions of Riley and Doyal for Official Misconduct in the form of allegations of violations of the Texas Open Meetings Act (TOMA).
It’s likely that the high profile of the case – involving the Texas Attorney General, the Texas Association of Counties, and the Texas Municipal League – encouraged the Court of Criminal Appeals to hear the case. Nevertheless, the Court made clear that it would not hear oral argument.
The refusal of the Court of Criminal Appeals to hear oral argument in a constitutional challenge of the Texas Open Meetings Act suggests that there are strong elements on the Court of Criminal Appeals that did not believe the Court should have granted the Petition for Discretionary Review at all. Therefore, sending the message that the Texas Court of Criminal Appeals would not allow oral argument sends an ominous message to Doyal.
That the appellate court took the case, however, likely means that Doyal will have the opportunity to serve out his entire term as Montgomery County Judge through December 31, 2018, when Doyal leaves office after losing the March 6, 2018, Republican Primary to State Representative Mark Keough in a landslide.
Quite frankly, Republicans should breath a small sigh of relief with respect to the Precinct 2 Commissioner’s race. If the Court of Criminal Appeals agrees to hear Riley’s petition as well, then it is almost impossible that there could be a trial to convict Riley quickly enough to remove him from office before the November 2018 General Election. The Court of Criminal Appeals action in the Doyal case suggests that it is almost impossible that Riley’s criminal case would go to trial before Montgomery County Jury before next year.
Criminally indicted co-defendants Riley and Marc Davenport, the Precinct 2 Montgomery County Commissioner and local political boss, respectively, whose criminal indictments the Ninth Court of Appeals reinstated on February 7, 2018, filed their petitions for discretionary review with the Texas Court of Criminal Appeals in Austin on Monday, April 9, 2018. Their criminal co-defendant, Montgomery County Judge Craig Doyal, filed his petition with the Court of Criminal Appeals on March 8, 2018. Doyal, Riley, and Davenport have consistently sought multiple delays during the appellate process, which such delays seemed tied to the re-election efforts of Doyal, Riley, and Davenport’s wife (County Treasurer Stephanne Davenport). Doyal and Davenport lost their re-election bids on March 6 in the Republican Primary Election. Riley won the May 22 Republican Runoff Election for the Republican nomination for Precinct 2 County Commissioner but faces democrat Ron Keichline in November.
The Beaumont Court of Appeals reversed the dismissal of the criminal indictments on February 7, 2018, of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport (who has claimed to be a County official on several occasions, largely thanks to the misrepresentations of JP James Metts).
The purpose of filing the briefs to the Texas Court of Criminal Appeals is that Riley, Doyal, and Davenport would like to avoid having to face a jury of Montgomery County citizens in a trial.
Riley, Davenport, and Doyal all made the same arguments to the Court of Criminal Appeals, which is the highest court in Texas for criminal appeals (tantamount to the supreme court). They argued that they want the appellate courts to hold the Texas Open Meetings Act unconstitutional because, they claim, it violates their right to free speech. Riley, Davenport, and Doyal apparently believe that they should have the right to hold secret meetings if it concerns County business. The Texas Legislature enacted the Texas Open Meetings Act as a statement of Texas public policy that government should conduct its business in the open for the public to see, a position Riley, Davenport, and Doyal obviously abhor.
On April 24, 2018, the ultra-liberal Texas Municipal League and Texas Association of Counties filed “friend of the court” briefs to support Riley and Doyal. Specifically, those two lobbying organizations want the Texas Court of Criminal Appeals to act as a super-legislator and write provisions into the statutory language of TOMA in order to protect Riley, Doyal, and other members of those two ultra-liberal, pro-tax organizations. On May 8, the Texas Association of School Boards and Texas Association of School Administrators, both also pro-taxation lobbying organizations, also filed briefs to support Riley and Doyal.
Both Riley and Doyal lobbied, on behalf of the Texas Association of Counties, during the 85th Legislature Session in 2017, to help to defeat statewide property tax reform, which would likely have resulted in reduced property taxes for Montgomery County citizens, a reduction which, of course, Riley and Doyal find abhorrent. Riley also served as a Director of the Montgomery Central Appraisal District in 2017 and 2018 and oversaw massive property tax appraisal increases in order to provide the Montgomery County government with a much larger tax base upon which to raise tax collections to help with Riley’s and Doyal’s plans for increased County government spending. Riley and Doyal have consistently voted to use County taxpayer funds to pay their membership dues in the Texas Association of Counties, which generally works against the interests of the very citizens whose money goes to support that organization.
Riley and Davenport argued in their petitions that the Open Meetings Act is so vague that they cannot understand it and, therefore, the appellate courts should deem the statute unconstitutional. The Beaumont Court of Appeals rejected that argument and reinstated the indictments against Riley, Doyal, and Davenport.
Troy McKinney of Houston and Douglas Atkinson of Conroe represent Riley. Steve Jackson of Conroe represents Davenport. Rusty Hardin of Houston represents Doyal.
The unanimous ruling of Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson of the Ninth Court of Appeals was:
“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 in 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 of the criminal indictees’ arguments. 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
Riley was a member of the Davenport Ring and used his political boss, Marc Davenport, to negotiate a November, 2015, road bond referendum with leaders of the Texas Patriots PAC. Riley paid Davenport $5,000 for his negotiation services. Doyal also retained Davenport for the same purpose. Although Precinct 4 County Commissioner Jim Clark was also involved in the case early on, it became pretty apparent that he had not engaged in any wrongdoing, so Clark agreed to provide truthful information to the Special Prosecutor who dismissed the charges against Clark. Doyal also paid Davenport for the same services.
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.
If convicted, Doyal and Riley would be guilty of “official misconduct” under Texas law and would be subject to removal from office. They could lose their pensions as well.
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 in the Court of Appeals 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, James Metts, 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 political boss 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 Court of Appeals 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.