Trial of the 21st Century: Conroe’s Open Meetings Trial, subpoenas issued, Davenport’s dismissal motion denied

Trial of the 21st Century: Conroe’s Open Meetings Trial, subpoenas issued, Davenport’s dismissal motion denied

Image: This amazing photograph shows one of the greatest cross-examinations in American legal history when Clarence Darrow (standing) cross-examined his opposing counsel, William Jennings Bryan, in the Scopes “Monkey Trial” in Dayton, Tennessee, in May, 1925 (arguably the “trial of the 20th century.”) Although the jury convicted Scopes of teaching evolution to public school students illegally, a misdemeanor, the Supreme Court of Tennessee later reversed his conviction.

Conroe, March 20 – By all signs, the three cases, State of Texas versus Craig Doyal, State of Texas versus Charlie Dean Riley, and State of Texas versus Marc Davenport are set to begin on Monday, March 27, 2017, in Conroe. Judge Randy Clapp, visiting from the 269th District Court of Wharton County, denied Davenport’s motion to dismiss his case last week. Fourteen (14) subpoenas have issued upon the request of Prosecutor Pro Tem Christopher Downey.

The three remaining defendants in the trial face indictments that they conspired to violate the Texas Open Meetings Act (“TOMA”) by engaging in a verbal exchange concerning the potential structure of a November 2015 Montgomery County Road Bond in violation of Chapter 551, Subtitle A, Title 5, of the Texas Government Code. Precinct 4 Commissioner Jim Clark entered into an agreement to testify on behalf of the State of Texas and to cooperate with the special prosecutor on Thursday, March 9, 2017, in return for which the State of Texas agreed to give Clark a pretrial diversion in which Clark is admitting no guilt, his case will be dismissed by agreement, he will serve no probation, and his case might be eligible for expunction, so that he has no adverse criminal record. Clark’s deal with the prosecution has created the uncomfortable circumstance that he will essentially testify against two of his colleagues on the Commissioners Court, County Judge Doyal and Precinct 2 Commissioner Riley.

Subpoenas

On Monday, March 13, 2017, Christopher Downey, the special prosecutor, requested issuance of 14 subpoenas to potential prosecution witnesses. The subpoenas, all of which remain unserved, include the following:

  • Precinct 1 Commissioner Mike Meador, who serves on the Commissioners Court with Doyal and Riley
  • Gerald Bourque, a Woodlands attorney who had previously served as defense counsel
  • Bill O’Sullivan, often known as the “sage of Montgomery County,” a political activist, and Treasurer of the Texas Tea Party Patriots PAC which entered into a Memorandum of Understanding in 2015 under which Doyal and Riley agreed to certain political conditions for the November 2015 road bond and the Patriots PAC agreed to support the bond referendum
  • Precinct 3 Commissioner James Noack, who has been politically at odds with Doyal and Riley over recent months
  • jim fredricks, Doyal’s “chief of staff”
  • Jon Bauman, Vice President of the Patriots PAC
  • Julie Turner, President of the Patriots PAC
  • Evan Besong, Commissioner Noack’s constituent services director
  • Vicky Rudy, Oak Ridge North City Manager
  • John Wertz, Chairman of the Vetting Committee of the Montgomery County Tea Party and a GOP Precinct Chair
  • Jim Kuykendall, Oak Ridge North Mayor
  • Joanne Moore, secretary to Charlie Riley and his campaign treasurer
  • Patricia Werner, a secretary to Doyal
  • Darin Bailey, Chief Deputy County Clerk of Montgomery County.
U.S. Senator Ted Cruz (left) with Montgomery County community leader Bill O’Sullivan (right).

It would seem that O’Sullivan and Precinct 4 Commissioner Jim Clark would be the critical prosecution witnesses, because they will be able to present most, if not all, of the factual story to the judge and the jury. Without Clark as a cooperating witness, the prosecutor, Downey, may have faced difficult problems of how to prove the events surrounding the negotiations for the November 2015 road bond referendum. For example, Meador and Noack could offer explanations of portions of those facts, but O’Sullivan and Clark will be able to provide a broader overview of the entire set of circumstances.

Judge Clapp denied Davenport’s motion to dismiss

On March 14, 2017, Judge Clapp signed an Order on Opposed Motion to Dismiss for Lack of Jurisdiction in which the judge denied Davenport’s motion that the Court should dismiss his case because it lacked jurisdiction to hear it. Davenport’s attorney, Steve Jackson of Conroe, filed Davenport’s Motion to Dismiss for Lack of Jurisdiction on October 31, 2016. In the motion, Davenport argued that, since he is not a “Public Servant,” he cannot be held culpable for “official misconduct,” so that the 221st District Court hearing the case upon which Davenport was indicted, lacks jurisdiction. Normally, misdemeanors are heard in County Courts, unless they involve allegations of “Official Misconduct.”

The State filed a Response to Davenport’s Motion to Dismiss on March 8, 2017, in which the special prosecutor Downey argued that “a person who aids a public officer in the commission of a violation of the Texas Open Meetings Act can be charged as a party to the offense as if he were the party who directly committed the offense.” Downey further reasoned that since the State has charged Davenport with aiding Doyal and Riley in the violation of TOMA, and the law does not distinguish between Doyal and Riley as Davenport’s principals from Davenport, “it stands to reason that the jurisdiction of the matter should properly lie in the District Court.”

Political consultant Marc Davenport (left) and County Judge Craig Doyal (right).

Therefore, Doyal, Davenport, and Riley will likely face the criminal charges against them together in the same trial set to begin on March 27.

If convicted, Doyal and Riley could be removed from office as the County Judge and Precinct 2 County Commissioner, respectively, because a violation of TOMA constitutes “Official Misconduct” under Texas law. That possibility and the enormous influence of Davenport upon our County government are the reasons that the upcoming trial is profoundly significant to Montgomery County, even though it only involves criminal charges which are Class B misdemeanors.

The Golden Hammer will continue to provide up-to-the-minute coverage of the Trial of the 21st Century, which clearly has very significant ramifications for the future of this community, as those events occur.

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