Conroe, March 23 – The Texas Open Meetings Act (“TOMA”) trial of Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and political consultant Marc Davenport will likely not go forward the week of March 27, 2017, as scheduled for the past six months. Both sides expect that Visiting Judge Randy Clapp of the 269th District Court of Wharton County will announce to them during another telephone pretrial hearing at 10 a.m. this morning whether he will allow the case to proceed to a jury trial on March 27 or whether he will allow a lengthy hearing on the defendants’ constitutional objections to the TOMA.
Doyal and Davenport have filed challenges to the constitutionality of the TOMA and have claimed that it’s unconstitutionally “vague” and violates their First Amendment rights to free speech. Riley has joined in their challenge.
Special Prosecutor Christopher Downey told The Golden Hammer, “I do not believe we’re likely to be picking a jury next week. There’s a 90% chance that we’ll have a hearing focused on the constitutionality of the Open Meetings Act instead.” Downey explained that the attorneys informed Judge Randy Clapp that both sides in the criminal case would likely call elected officials and First Amendment experts to testify before him in such a hearing about whether or not he should determine TOMA violates the Texas and United States Constitutions because its language is arguably “vague” and because it arguably prohibits free political speech in violation of the First Amendment to the United States Constitution applied to the State of Texas through the Fourteenth Amendment.
Downey said, “The State’s position is that this statute is not content-driven at all and that it’s content-neutral. The Open Meetings Act allows government officials to say anything they want but merely restricts the time, place, and manner when they make those statements, which such restrictions are entirely constitutional.” Downey noted that in his court filings he has cited to two opinions of the United States Court of Appeals for the Fifth Circuit which have expressly found that TOMA does not violate the U.S. Constitution or the Texas Constitution. “TOMA doesn’t restrict what you can say but merely demands that government officials hold those discussions in an open forum. It’s a matter of transparency and consistent with the policy of ‘openness’ which the Texas Legislature has made Texas public policy in both the Open Meetings and Open Records Acts.”
Conroe attorney Steve Jackson, one of the most highly-respected criminal defense attorneys in Texas, said, “I hope Judge Clapp will give us our opportunity to make our argument and have full hearing on the constitutionality issues.” He declined to predict the likelihood of a jury trial next week. Jackson did say, however, “I’m surprised at this prosecution. This statute, the Open Meetings Act, is for intentional violations. This criminal case is very different.”
Jackson explained that his client, Marc Davenport, has made constitutional objections to the statute, because “it is unconstitutionally vague, overbroad, and violates the First Amendment. We’re asking the trial to be put on hold, so that we can have a minitrial on the constitutionality of the statute. We expect to bring experts in from across the state to testify and explain why Judge Clapp should hold the Open Meetings Act unconstitutional. If we lose that hearing, we understand we’ll have to go to trial.”
“The statute has never been attacked constitutionally in the manner that my client, Marc, has challenged it. That’s because no private citizen has ever faced this type of prosecution under a statute intended for government officials. I truly think we’re on the right track with our constitutional objections,” Jackson explained, “because there is no definition of secret deliberation, so the statute as the prosecutor is interpreting it would basically shut down efficient government.”
“Vagueness” refers to a legal challenge to a statute which is unclear as to what constitutes a violation of it. In this case, the three defendants are charged with intending to conspire to circumvent the openness provisions of TOMA under Section 551.143 of the Texas Government Code. The State has not asserted that a quorum of the Commissioners Court met without proper notice. Rather, the State is asserting that a “walking quorum” of less than three (3) members of the Commissioners Court communicated directly or through Davenport, a private citizen working as a consultant for Doyal and Riley, in order to attempt to circumvent the statute and then obtain a majority vote with the asset of Precinct 4 Commissioner Jim Clark. Clark is cooperating with the Special Prosecutor, in return for an immunity from prosecution and a pretrial diversion.
Doyal’s attorney, Rusty Hardin of Houston, noted “no walking quorum prosecution has ever succeeded anywhere in the country every.”
“You’re talking about ending people’s careers for violating a statute when the voters later approved what they did by a landslide,” in the November 2015 bond referendum election, Jackson asserted. “Why would the defendants need to enter into a conspiracy when they immediately went public with everything they did. They even published the Memorandum of Understanding [between Doyal, Riley, and the Texas Tea Party Patriots PAC] in the newspaper.”