Trial of the 21st Century, The TOMA Trial: Defendants’ expert, attorney Zech begs Judge Clapp for clarity

Conroe, March 31 – On April Fools’ Eve, March 31, 2017, the fireworks came early to the Texas Open Meetings Act (“TOMA”) trial, the Trial of the 21st Century, involving criminal defendants Montgomery County Judge Craig Doyal, Precinct 2 County Commisioner Charlie Riley, and political consultant Marc Davenport. San Antonio government affairs attorney Charles Zech began the day as the defendants’ paid expert witness.

Zech had served previously as the city attorney in New Braunfels. Zech and his law firm now represent government officials and governments. He does not represent individuals or businesses who are adverse to city governments, because he acts as city attorney or general counsel for several city governments in the area around Bexar County and San Antonio. He is an active member of the Texas City Attorneys Association and a past president of that august pro-government spending interest group. Zech was the 2011 outstanding governmental lawyer of the year according to the State Bar.

Zech began his testimony by stating that he believes TOMA has some “good rules and important rules…I’m an advocate for transparency.”

Zech was adamant that “I can’t advise my clients of the proper course of action” under Section 143 of the TOMA, the statute under which Doyal, Riley, and Davenport were indicted. Section 143 provides:

“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter [TOMA] by meeting in numbers less than a quorum for the purpose of secret deliberations.”

Doyal, Riley, and Davenport contend that they can’t understand what Section 143 means and that they believe the provision is unconstitutionally “vague.” The statute clearly means that members of a government body, such as the Commissioners Court, can’t meet in groups less than a quorum with the intention of gathering a quorum of votes on an issue before the government body. Nevertheless, Doyal, Riley, and Davenport claim they can’t understand that.

Zech agrees and contends that Section 143 baffles him as well.

Zech has clearly invited Visiting District Judge Randy Clapp to legislate from the bench, since Zech would like to end his bafflement. Zech said, “I am familiar that third parties can be criminally liable under this statute, because there’s an Attorney General’s Opinion. I don’t have to tell my clients that; they know.”

 Somehow Zech’s clients, who are NOT governmental officials, understand Section 143 well enough to fear its provisions. Apparently, only governmental officials suffer from confusion over the meaning of Section 143.

Zech said, “If it said intentionally it would be easier to give my client advice  … but it doesn’t say intentionally, it says knowingly.”

Zech further complained, “I don’t know how you can conspire with yourself.” No one in the statute, however, is there any indication that someone can conspire by himself or herself.

During cross-examination by Special Prosecutor Chris Downey, Zech averred, “When I read this I can’t explain it to my clients properly.” His clients don’t require his explanation, however, because Zech said they understand it without him!