Trial of the 21st Century, The TOMA Trial: Davenport loses appeal after Justice recuses himself, trial delayed for a while, constitutionality hearing to proceed Monday

Justice Charles A. Kreger of Conroe recused himself from the Beaumont Court of Appeals proceeding which Marc Davenport brought on an emergency basis.

Beaumont and Conroe, March 24 – The Beaumont Court of Appeals denied TOMA Trial Defendant Marc Davenport’s application for a writ of mandamus in which he complained that Visiting Judge Randy Clapp of the 329th District Court of Wharton County abused his discretion by refusing to dismiss the criminal case against Davenport. Prior to the denial of Davenport’s appellate proceeding, Court of Appeals Justice Charles Kreger recused himself. Chief Justice Steve McKeithen, Justice Hollis Horton, and Justice Leanne Johnson joined in the unanimous per curiam opinion.

Davenport argued that Judge Clapp abused his discretion when he ruled the he, as a District Judge, has jurisdiction over Davenport’s case, even though Davenport is a private citizen whose criminal case is for alleged violation of a Class B misdemeanor. Usually, misdemeanor cases are heard in county courts at law. District courts only hear felonies as well as misdemeanors involving official misconduct. Since Davenport is not a public official, he cannot be held culpable for official misconduct.

Steve Jackson of Conroe, Davenport’s attorney, had previously told The Golden Hammer that Davenport will bring his appellate proceeding to the Texas Court of Criminal Appeals, the highest criminal appellate court in the State of Texas, if the Beaumont Court of Appeals denied his application for a writ of mandamus.

Trial delayed

The blog that attempts to compete with The Golden Hammer, Montgomery County’s leading daily newspaper, incorrectly reported in its story on the TOMA Trial that began “While the trial for two members of Montgomery County Commissioners Court and local political consultant is scheduled to begin Monday…” That statement constitutes fake news.

In fact, Judge Clapp ruled today that the trial of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and political whiz Marc Davenport will not begin next week. Jackson, Davenport’s attorney, had sought a stay of the trial from the Beaumont Court of Appeals. Davenport withdrew the request for a stay, however, on Tuesday, March 21. Jackson told The Golden Hammer that the judge and the attorneys do not intend to begin the trial immediately after the hearing next week on the constitutionality of TOMA, because that would not be practical from a logistical and trial-preparation standpoint. Jackson also noted that several of the attorneys have scheduling matters that conflict with any trial that could occur during the first week of April.

Constitutionality hearing

Instead of a trial, on Monday, March 27, 2017, at 9:30 a.m., Judge Clapp will begin to conduct a likely full-week evidentiary hearing on the issue of the constitutionality of the Texas Open Meetings Act, which all three Defendants – Doyal, Riley, and Davenport – have challenged on the grounds of alleged “vagueness” and violation of their First Amendment rights to free political speech.

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

Judge Clapp has ruled that the defendants will present their constitutionality challenge cases first. Houston attorney Rusty Hardin will present his witnesses first on behalf of County Judge Craig Doyal. Then criminal defense attorney Troy McKinney, representing Defendant Charlie Riley, will present his case. Finally, Steve Jackson of Conroe on behalf of Davenport will put on his case. After the defendants have presented their witnesses and argument, the State of Texas may have the opportunity to present rebuttal witnesses. It is certainly possible that the hearing on the constitutionality issues will take the full week if not longer.

Hardin told The Golden Hammer this evening, “We’re very pleased the judge is giving us this hearing and considering the constitutionality issue as carefully as he is. The judge deserves credit for allowing both sides to provide important information to the court.” Jackson explained that he anticipates that the defendants will present experts on municipal law, administrative law, and TOMA, as well as lay witnesses including possibly several politicians on how the TOMA has affected their ability to serve. Jackson said he does “suspect” that the Special Prosecutor will present a rebuttal case.

“Vagueness” is an important constitutional issue because individuals cannot, under both the Texas and United States Constitutions, be held criminally liable for prohibitions which are unclear. Doyal, Riley, and Davenport have all filed motions with the District Court contending that TOMA is impossible to understand, so it should not form the basis of criminal liability.

All three defendants also contend that TOMA violates their First Amendment rights to free political speech by prohibiting them from speaking about Commissioners Court issues unless they do so in an open meeting properly noticed under TOMA’s posting requirements. That is a bit of a rigid interpretation of TOMA and seems to go beyond even the position of the State of Texas in this criminal proceeding. Courts have consistently determined that restrictions on the time, place, and manner of political speech are permissible if they serve a proper and reasonable purpose that comports with due process.

The Golden Hammer will provide continuous reporting, analysis, and breaking news regarding the hearing next week on the constitutionality of TOMA, an issue that is vital to advocates of openness, transparency, and fair representation in political decision processes.

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