The Trial of the 21st Century, The TOMA Trial: Pretrial hearing continues, Bojorquez withers on cross-examination

Visiting Judge Randy M. Clapp of the 329th District Court of Wharton County.

Conroe, March 29 – Criminal defense expert Alan Bojorquez continued his testimony today late this morning that Section 143 being eliminated from the TOMA statute would still provide various sanctions against public officials who violate TOMA. Bojorquez noted that courts could void determinations made in violation of the statute.

Bojorquez testified that he’s found that “using scare tactics about the Open Meetings Act is an effective marketing tool” for him to drum up new legal business.

It’s more than a bit surprising that Judge Clapp is permitting testimony on policy issues. Even more unusual is a law court permitting expert witnesses to testify about the law which centuries of judicial decisions have made clear is solely the province of judges themselves to determine in legal proceedings.

Bojorquez believes that state officials should rewrite TOMA’s Section 143 if they are concerned about governmental officials “cooking deals behind the scenes” but he also testified that there should not be criminal sanctions which are “overly harsh.”

Bojorquez admitted he advises public officials that if they’re just talking “one-on-one” then it is okay for them to talk. Nevertheless, he called for rewriting or removing the Section 143 statute entirely from the TOMA law. Bojorquez noted that one effect of this legal provision is to give more power to government staff who are not subject to TOMA’s provisions.

Upon questioning by Riley’s attorney, Troy McKinney, Bojorquez argued that people outside of governmental bodies could be subject to the statute as well. (He appears to ignore the plain language of the statute in making that assertion.) He admitted that Section 143 is not clear.

Special Prosecutor Joe Larsen of Austin handled the hearing for the State. Bojorquez, on cross-examination, admitted that his opinion on the constitutionality of TOMA differs from the opinion of the United States Court of Appeals for the Fifth Circuit. To illustrate that Bojorquez testified about matters of law, Larson questioned the witness on jurisprudence.

Larsen questioned Bojorquez about whether TOMA is “content based.” Bojorquez admitted that he didn’t know if there was a content problem in prohibiting free political speech in Section 143 that differs from the remainder of the TOMA statute. Bojorquez testified that he “continually” disagrees with the United States Court of Appeals on the constitutionality of TOMA.

Bojorquez admitted that he wasn’t familiar with the constitutional standard for “vagueness.” He discussed a similar criminal investigation in El Paso County where city officials claim not to understand the TOMA statute.

Bojorquez stated that the most powerful enforcement we have is at the ballot box. (Of course, if the citizens never know what’s actually happening, they’ll never have that opportunity to judge their elected officials.)

Larsen made the point that the whole idea of TOMA is to allow the public to “see the horse trading that their public officials are doing and to see what’s going on.” Bojorquez did not entirely disagree. Bojorquez admitted that his law firm submitted an amicus curiae brief to the Fifth Circuit Court of Appeals in which Bojorquez argued that TOMA was unconstitutional. He further admitted that the Court of Appeals rejected his brief.

Bojorquez admitted that he directly disagrees with the United States Court of Appeals for the Fifth Circuit and the written opinion in the Asgiersson v. Abbott case which the Court of Appeals issued in 2012. In that case, then-Attorney General Greg Abbott successfully argued that TOMA was not unconstitutional. Of course, Bojorquez expressed today that he disagrees both with General Abbott as well as the Court of Appeals.

Bojorquez agreed that TOMA is justified because it raises the public’s faith in government, reduces corruption, and increases openness. Larsen cited a case in which a court of appeals held that TOMA encourages public discussion so that it does not harm free political speech. Bojorquez acknowledged that he understood that distinction.

Bojorquez admitted that he’s not qualified to talk about criminal prosecutions under TOMA because he’s not a criminal lawyer. He also admitted he’s never advised any client not to speak about a particular subject matter as a result of TOMA, a point the prosecution made to show TOMA is not prohibiting the content of political speech.




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