Conroe, March 30 – Renowned Austin attorney Jennifer Riggs began the testimony today as a witness whom defendant and political consultant Marc Davenport called as an expert witness. The other criminal defendants, Montgomery County Judge Craig Doyal and Precinct 2 County Commissioner Charlie Riley, were both in the Courtroom.
Riggs worked as an Assistant Attorney General from 1984 to 1992 and as Chief of the Open Government Section of the Attorney General’s Office from 1987 to 1989, She now operates her own law firm in Austin. She drafted Attorney General Opinions while she worked for the government. She worked for Attorney General Jim Mattox, one of the most liberal politicians Texas has ever seen.
Riggs represents strip clubs with respect to First Amendment problems.
Riggs testified that Attorney General Opinions are largely political rather than objective legal analyses.
Riggs explained that the Texas Open Meetings Act (“TOMA”) was strengthened as a result of the Sharpstown corruption scandal. She explained that she has advised clients who are government officials with respect to the provisions of the TOMA weekly. Riggs said that Section 143 of TOMA, which makes it a crime to conspire to violate TOMA by meeting in numbers less than a quorum for the purpose of ultimately establishing a quorum, is a difficult provision of the statute to understand. Riggs’ primary complaint about Section 143 is that she believes it’s unclear whether subcommittees of governmental bodies are subject to its provisions.
In other words, Riggs is complaining about the policy under Section 143 more than its constitutional validity.
Riggs complained that it’s unclear what a “deliberation” means under Section 143, because “deliberation” means a quorum of a governmental body while the purpose of Section 143 is to prohibit meetings in less than a quorum for the purpose of conspiring to establish a quorum eventually.
The problem with the defendants’ argument and the presentation of this type of Courtroom testimony is two-fold: first, expert witnesses on the law are inappropriate under Texas law, because judges, not witnesses, are to determine the law. The manner in which parties should argue the law is by filing motions and briefs for the judge to consider, not by having supposed witnesses testify.
Second, Section 143 prohibits deliberations for the purpose of circumventing the prohibition of governmental bodies meeting in a quorum outside of an open meeting. Section 143 concerns meetings of groups of members of governmental bodies in groups less than a quorum. In the instance of this TOMA trial, the State has alleged that after Doyal and Riley agreed in writing with the Texas Tea Party Patriots PAC to support certain provisions in a proposed 2015 road bond referendum, they sent Davenport to meet with another Commissioners Court member, Jim Clark, to establish a quorum in support of the same road bond referendum resolution with the same provisions.
Therefore, in reality, there is no vagueness or ambiguity in Section 143. Clearly, the members of a governmental body may meet in less than a quorum and discuss the issues before that body, as long as they’re not doing so for the purpose of trying to establish a quorum OUTSIDE OF AN OPEN MEETING through the process of meetings in groups less than a quorum. If Doyal and Riley had met, agreed with the Tea Party, and stopped there, they wouldn’t be facing criminal charges today. Where they allegedly erred, however, was in taking the next steps, through Davenport, to establish a quorum in support of their proposed road bond referendum resolution that was to come before the Commissioners Court.
Riggs has attempted to take the extreme position, which Section 143 clearly does NOT contemplate, that two County Commissioners could never talk to each other. In other words, the defendants are seeking to knock down a “straw man” which simply does not exist under the TOMA statute.
Here’s how Riggs constructed her argument. She noted that one Commissioner could blog. But if two other Commissioners comment on the blog, then they’re violating the Open Meetings Act. Riggs is correct. When the two other Commissioners comment, they ARE deliberating. The point here, however, is that Section 143 is clear and not vague at all.