Trial of the 21st Century: Prosecutors file reply to Montgomery County’s Judge Doyal’s brief in Open Records Act criminal case

Special Prosecutor Christopher Downey of Houston.

Beaumont, October 5 – Special Prosecutor Christopher Downey of Houston filed a reply brief on Monday, October 2, 2017, to Montgomery County Craig Doyal’s brief in the Ninth Court of Appeals at Beaumont, the appellate case involving the criminal indictment of Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport (who claims he’s a County employee out of the Precinct 4 Justice of the Peace Office). This article discusses the reply brief. Riley and Davenport filed their responsive briefs on Monday as well, but this newspaper will provide full coverage of those briefs over the coming days.

The three criminal defendants – Doyal, Riley, and Davenport – are alleged to have conducted secret deliberations to circumvent the openness requirements of the Texas Open Meetings Act (TOMA) in order to secure passage of a road bond referendum in November 2015 after another referendum had failed in May 2015. Doyal hired Davenport to negotiate on Doyal’s behalf and paid Davenport $5,000 for those services. Riley had previously paid Davenport to help him win the 2014 election for County Commissioner but also paid Davenport for the November 2015 road bond work as well.

On April 3, 2017, at Doyal’s, Riley’s, and Davenport’s urging, Judge Randy Clapp of Wharton County declared TOMA unconstitutional, at least in Montgomery County. The criminal defendants alleged to have violated TOMA argued that TOMA was unconstitutional because they believe their right to freedom of political speech should permit them to conduct secret deliberations away from open meetings and because they claim not to understand the provisions of TOMA.

The reply brief

The Special Prosecutor argued in his reply to Doyal’s brief that Doyal’s analysis of the constitutional issues does not make any sense. Specifically, he wrote, Doyal rests his argument that section 551.143, which prohibits meeting in numbers less than a quorum to try to circumvent the TOMA prohibitions, is unconstitutional, while he has conceded that the United States Court of Appeals for the Fifth Circuit in a case styled Asgeirsson versus Abbott already found that TOMA is constitutional, because it merely restricts the time, place, and manner of speech, not its content.

The Federal Court of Appeals in Asgeirsson found that TOMA is actually a content-neutral time, place, and manner restriction. Section 551.143 of TOMA prohibits government officials from meeting in numbers less than a quorum for the purpose of circumventing TOMA’s quorum requirement. The State of Texas noted that “it is the conduct of the members in knowingly conspiring to circumvent TOMA’s requirements by meeting in numbers less than a quorum that determines whether there is a violation.” In other words, the TOMA statute does not limit political free speech based upon its content.

As for Doyal’s claim that the TOMA statute is unconstitutionally vague, the Special Prosecutor noted that the County Judge’s “arguments of vagueness and over breadth are mere ‘fanciful hypotheticals’ unsupported by analysis of the [clear] language of the statute or the testimony of the witness who don’t speak to the issue or whose testimony supports the contrary position.”

The prosecution concluded with two interesting arguments for why it is important, as a matter of policy and Constitutional soundness, to enforce TOMA vigorously and uphold its enforceability:

  • Effective government operations require no secrecy. “TOMA also protects the rights as public officials to observe and participate in the public policy making for which they were elected. Without TOMA and §551.143, a majority of members would have the power to expel the minority from the public policy process altogether. By the only reasonable reading of § 551.143, it is narrowly tailored to serve these significant goals as it is limited to members of a governmental body who knowingly meet in numbers less than a quorum in order to actually do business as a quorum.” Publisher’s Note: This argument is interesting in light of the clear difficulty that individual members of the County Commissioners Court, primarily Precinct 3 County Commissioner James Noack and Precinct 4 County Commissioner Jim Clark, have had obtaining information from the Departments of the Sadler Administration Building, especially the County Auditor, who had made it difficult for those two officials and the citizens to obtain information about the workings of the County government.
  • “Rather than limit the government’s ability to provide access to the workings of its governmental bodies through requiring business be done at properly noticed meetings, the First Amendment requires a level of access sufficient for the citizenry to perform their vital role of oversight in our system of limited government.” Publisher’s Note: Just watching any Commissioners Court meeting up close and personal, it becomes very apparent that the five members of the Court are not communicating or deliberating with each other in the public and open forum. Rather, decisions seem to occur without those deliberations in public almost as if they had occurred somewhere else in secret at another time. Either that improper activity is occurring or the five members of Commissioners Court are five of the most dysfunctional humans on planet Earth.

It’s like that the oral argument in this criminal appeal will occur in the January, 2018, time frame with a decision several months after the March 6, 2018, Republican Primary Election.



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