Trial of the 21st Century, The TOMA Trial: Where things stand

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

Conroe, April 2 – The criminal pretrial hearing on the constitutionality of the Texas Open Meetings Act (“TOMA”) under which Montgomery County Judge Craig Doyal, Precinct 2 County Commissioner Charlie Riley, and political consultant Marc Davenport were indicted in June, 2016, took three days of the past week. The attorneys have told Visiting District Judge Randy Clapp they anticipate another two days of testimony.

Doyal, Riley, and Davenport are claiming that TOMA is unconstitutionally vague and improperly restricts their right to free political speech. A fourth defendant, Precinct 4 County Commissioner Jim Clark, has entered into a pretrial diversion agreement with Special Prosecutor Christopher Downey under which Clark has turned “state’s evidence” and is cooperating with the prosecutors in return for which they have given him immunity from prosecution under certain conditions and terms.

There are two major criminal provisions in TOMA. One of the provisions, Section 144, prohibits members of a governmental body, such as the County Commissioners Court, from meeting in a quorum (3 out of 5 Court members) without compliance with the notice and open meeting provisions of TOMA. The other provision, Section 143, is the one under which the three criminal defendants were indicated.

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.”

The strongest witness testifying for the defendants this past week clearly was Austin attorney Jennifer Riggs. The defendants rested their presentation during the pretrial hearing at 1:11 p.m. on Friday afternoon. The prosecutors will begin on Monday at 9 a.m. with former Harris County Sheriff and Houston City Councilman Adrian Garcia as their first witness.

The attorneys on both sides of the criminal case did outstanding work. It’s not a debate contest, however.

Although the crimes with which Doyal, Riley, and Davenport are charged are only Class B misdemeanors, Doyal and Riley could lose their careers as elected officials if convicted of these crimes which constitute “official misconduct.” In actuality, much bigger are at stake in this trial.

The gravamen of the prosecution case is:

  • Doyal and Riley allegedly entered into some agreements concerning the proposal to put a November 2015 road bond referendum on the ballot. That the bond referendum eventually passed is not the issue. What is the issue is whether or not Doyal and Riley met in numbers less than a quorum (3 Commissioners Court members) for the purpose of passing a resolution in a particular form to place the referendum on the ballot.
  • Doyal and Riley allegedly communicated with Precinct 1 Commissioner Mike Meador to attempt to get his support for the road bond resolution.
  • Doyal and Riley allegedly communicated with Precinct 4 Commissioner Jim Clark, through their alleged agent political consultant Davenport, to get his support for the road bond resolution
  • Davenport allegedly conspired with Doyal, Riley, and Clark to shape a road bond resolution which would pass the Commissioners Court.

The testimony, particularly from Riggs, raised troubling issues. First, the witnesses as a group made it pretty clear that Section 143 is not vague. Elected officials may fear the statute but they and their attorney-advisors understand the statute. Basically, you can’t talk about matters that would come before the governmental body with the intent of gathering a quorum through meetings in numbers less than a quorum. The statute isn’t vague or ambiguous.

The statute definitely hacks off government officials, however, because they would like to talk with each other secretly and make public meetings of governing bodies such as the Commissioners Court mere “play acting” events where they appear to vote up or down on matters which they previously decided in groups of 2 to prepare for the meetings.

There are three major takeaways from the defendants’ witnesses’ testimony:

#1 TOMA is not unconstitutionally vague and does not unconstitutionally prohibit free political speech. Rather, the statute merely regulates the time, place, and manner of speech, which the United States Supreme Court has made clear is a constitutionally permissible restriction.

#2 Davenport should not be a defendant, because he is not and has never been a “member of a governmental body.”

#3 In the context of the testimony of Riggs in particular, the conduct of Doyal and Riley is quite troubling.

The Golden Hammer will continue its regular coverage of the pretrial proceedings on Monday.



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