Texas Court of Criminal Appeals Judge Kevin Yeary, the “good guy,” has some explaining to do

Texas Court of Criminal Appeals Judge Kevin Patrick Yeary.

Conroe, August 19 – Sometimes even a judge must face his constituents. Tonight, Monday, August 19, 2019, at 6:30 p.m., Texas Court of Criminal Appeals Judge Kevin Patrick Yeary will speak to the Montgomery County Tea Party at the Church @ 242, 9268 State Highway 242, Conroe.

Judge Yeary does, in fact, have some explaining to do. In one matter which came before the Court of Criminal Appeals, Yeary was the good guy. In another matter, he joined with the remainder of the Court in a troubling manner.

Texas Open Meetings Act case against Craig Doyal, Charlie Riley, and Marc Davenport

On February 27, 2019, the Court of Criminal Appeals determined that the Texas Open Meetings Act provision under which former Montgomery County Judge Craig Doyal, Precinct 2 Montgomery County Commissioner Charlie Riley, and local political boss Marc Davenport were criminally indicted in June, 2016, is unconstitutionally vague. Doyal, Riley, and Davenport will no longer be subject to criminal prosecution for the conduct they allegedly committed during the November, 2015, road bond referendum.

The Court of Criminal Appeals, the highest criminal law court in Texas, ruled on a 7 to 2 vote, with Judge Yeary and one other dissenting, that Section 551.143 of the Texas Open Meetings Act (“TOMA”) is unconstitutionally vague. Judge Michelle Slaughter went further in a concurring opinion and argued that TOMA was a violation of the First Amendment’s rights of free speech.

A Montgomery County Grand Jury had indicted Doyal, Riley, and Davenport for “knowingly conspire[ing]…to circumvent…[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 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 trial court, Visiting Judge Randy Clapp, had dismissed the indictments as unconstitutionally vague in April, 2017. The Beaumont Court of Appeals reinstated the indictments and reversed the rulings of the trial judge in early February, 2018.

Doyal, Riley, and Davenport were prosecuted under Section 551.143 of TOMA which provides:

A member or a group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”

The Court of Criminal Appeals noted in its opinion for the majority, “more clarity is required of a criminal law when that law implicates First Amendment freedoms.” The Court further held, “We conclude the statute before us…is hopelessly indeterminate by being too abstract.”

Yeary, however, made clear he believed the criminal statute was not vague. He also wrote in his opinion that “Section 551.143(a) represents a reasonable time, place, or manner restriction upon nonpublic, not public, speech. For this reason, I disagree with Judge Slaughter’s conclusion that it must be invalidated as an unconstitutional encroachment upon the free speech rights of public decisionmakers. Moreover, even if I agreed that strict scrutiny represented the appropriate standard for gauging the constitutionality of the statute for First Amendment purposes, I would hold that the legislative will should prevail.”

Not only was the ruling an enormous victory for Doyal, Davenport, and Riley but also it constituted a great victory for the entire Texas Municipal League and the Texas Association of Counties who submitted “friend of the court” briefs to the Texas Court of Criminal Appeals. Under this ruling, Doyal, Davenport, and Riley clearly established – statewide – a new world for local governments in which they may operate in secret meetings as long as they do not meet in actual physical quorums (i.e., majorities) of the governmental body.

On one major issue, the Texas Open Meetings Act (TOMA) indictment of disgraced former County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and corrupt local political boss Marc Davenport, Yeary was the good guy. The Court of Criminal Appeals as a whole, however, did nothing to preserve governmental openness or integrity in its opinion.

Fortunately, the Texas Legislature passed Senate Bill 1640, which Governor Greg Abbott signed into law, to restore TOMA’s provisions which prohibiting a “walking quorum” where fewer members of a governmental body than a quorum could circumvent the Act by meeting in numbers less than a quorum but for the purpose of getting agreement outside of an open meeting of matters to come before them.

Yeary, who was certainly the good guy among the Judges of the Court of Criminal Appeals, should explain to the audience how the highest criminal court in the State could show such leniency towards the indicted ones.

State of Texas versus Adrian Heath

On November 2, 2016, Yeary joined a unanimous Court of Criminal Appeals in refusing to hear Woodlands resident Adrian Heath’s Petition for Discretionary Review. A Montgomery County District Court had convicted Heath of Illegal Voting when Heath voted in the May 8, 2010, election of the Woodlands Road Utility District #1 (“RUD”).

Until Heath’s and co-defendant Jim Jenkins’ criminal convictions, Texas courts have largely treated the test of whether someone was a “resident” of the geographic area where they voted as a subjective test, i.e., the individual voter mostly could determine where he or she considered his or her “residence” at the time of the election. This practice permitted many individuals to vote in elections where they maintained post office boxes, where their parents live even though they own a home elsewhere, or, most commonly, in bond elections to establish long-term debt financing for developer-controlled utility districts, such as the RUD.

In Heath’s case, however, the criminal District Court held Heath to an objective standard, i.e., to allow a jury to determine whether Heath reasonably lived at The Residence Inn which he claimed was his “residence” at the time of the RUD election.

It’s arguable whether Heath acted properly. Nevertheless, there did appear to be a double-standard in the enforcement of the law.

With Yeary’s and the Court of Criminal Appeals’ decision in Heath’s case, the law appears to be “a person can only vote where he objectively appears to live, unless he is working at the behest of a real estate developer, meaning he can vote anywhere.”

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