Austin and Conroe, May 24 – The two individuals, disgraced former Montgomery County Judge Craig Doyal and his henchman Precinct 2 Montgomery County Commissioner Charlie Riley, most responsible for bringing down on Montgomery County the reputation as “the most corrupt County government in all of Texas” suffered a major setback yesterday. The Texas Senate voted to concur with an amended version of Senate Bill 1640 to revive the criminal provisions of the Texas Open Meetings Act (“TOMA”) which prohibit engaging in conduct which constitutes a “walking quorum” where less than a quorum of a government body’s members meet in a sequence of meetings to deliberate about upcoming matters in order to circumvent the rules requiring meeting in an open meeting when a quorum deliberates. The Texas House of Representatives voted 145 to 1 in favor of the important legislation on May 17.
Under the legislation, which Senator Kirk Watson of Austin authored and which was similar to legislation State Representative Steve Toth had authored in the Texas House, a member of a governmental body commits an offense if the member (1) knowingly engages in an least one communication among a series of communications that each occur outside of an open meeting and that concern an issue within the jurisdiction of the governmental body in which members engaging in the individual communications constitute fewer than a quorum of members and (2) knew at the time that the communications involved or would involve a quorum and would constitute deliberation once a quorum of members engaged in the series of communications.
While Doyal and Riley and their co-indictee, corrupt local boss Marc Davenport, will not face the criminal charges against them, because they successfully had a previous version of the “walking quorum” prohibition ruled unconstitutionally vague in the Texas Court of Criminal Appeals on February 27, 2019.
The Court of Criminal Appeals, the highest criminal law court in Texas, ruled on a 7 to 2 vote, with Judges Yeary and Newell dissenting, that Section 551.143 of the Texas Open Meetings Act (“TOMA”) was unconstitutionally vague. It was, in fact, poorly written. The version enacted yesterday contains much clearer language.
A Montgomery County Grand Jury 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 provided:
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.”
Specifically, the Court held that the definitions of the terms “less than a quorum,” “quorum,” “meeting,” “secret,” and “deliberation” were poorly defined within the statute. For example, the Court of Criminal Appeals wrote, “The word ‘secret’ indicates that Section 551.143, like other parts of TOMA, was aimed at preventing meetings that are not open to the public. As such, the word served a limiting function but, given the wide array of possible interactions between public officials, was not sufficient by itself to supply the requisite clarity to the statute.”
Finally, the Court of Criminal Appeals held that it was unclear what it means to “circumvent” a law. The Court of Criminal Appeals recognized that the statute’s intent was to prohibit “walking quorums” where one-on-one discussions would occur in a chain of meetings in which governmental entity board members went around an actual quorum for a meeting by meeting in smaller groups but ultimately to establish a quorum. Nevertheless, the Court of Criminal Appeals held that the unclear definition of the term “circumvent” in Section 551.143 makes it unclear whether a “walking quorum” would, indeed, constitute a criminal violation.
The new version of TOMA contains much clearer language, which (1) doesn’t contain terms lacking definitions and (2) arguably prohibits conduct rather than the exercise of political speech.
Passage of the statute reviving TOMA was an important victory for citizens from whom many governmental officials purposely hide.
Riley, for example, conducts the vast majority of his business in his Precinct 2 Commissioner Office behind a series of closed and locked doors. The Commissioner limits the public’s access to him and rarely returns telephone calls. Precinct 4 Commissioner James Metts follows similar procedures on the rare occasions when he actually comes to work.
Strangely enough, Precinct 1 Commissioner Mike Meador, who has a reputation for profligate spending, is one of the most accessible County officials and seems to maintain an “open door” policy to permit citizens to speak with him in his office.
Riley and Doyal met regularly before Commissioners Court meetings to discuss matters upon which the Commissioners Court would vote and so that Riley could receive his directions from Doyal and the County vendors with whom Doyal closely worked and acted to represent.