Conroe and Austin, July 18 – Montgomery County Judge Craig Doyal filed his brief with the Texas Court of Criminal Appeals on July 6, 2018, and asked the highest criminal appellate court in Texas to declare the Texas Open Meetings Act (TOMA) unconstitutional. Doyal, Precinct 2 County Commissioner Charlie Riley, and local political boss Marc Davenport stand indicted under TOMA for allegedly conspiring to circumvent the open meetings requirement in 2015.
Doyal’s elitism comes out
Doyal’s brief filed in the Texas Court of Criminal Appeals sounds more like a campaign speech than any sort of learned appellate brief. In fact, Doyal has continued to campaign against his electoral opponent who beat Doyal by a landslide in the March 6, 2018, Republican Primary Election. Here’s Doyal’s campaign argument inside his brief filed with the Court of Criminal Appeals:
“The perception of wrongdoing can be fatal to a public official’s career, especially if he or she is elected. This has played out in Judge Doyal’s own experience. He has yet to be convicted of violating Section 551.143, but his March primary opponent made sure to send out campaign flyers with jail bars superimposed over a picture of Judge Doyal and taglines encouraging voters to stop the corruption in Montgomery County. Section 551.143 is ripe for misuse by political opponents because the language is vague. Public officials need as much clarity in the statutes that criminally penalize them as the average person, if not more. Will Judge Doyal’s successor in office be seeking out or listening to the opinions of others? Certainly not. He will keep his mouth and ears shut, as will all other Montgomery County officials.”
Doyal has all but indicted and convicted Republican nominee and State Representative Mark Keough of violating TOMA, even though Keough isn’t yet in office!
What makes Doyal’s appellate argument most striking, however, is his position that public officials are a higher class than the rest of society who deserve special protection from the law. Specifically, Doyal has argued, “Criminal statutes aimed specifically at public officials require special clarity because an allegation can result in punishment before a verdict.”
Doyal apparently believes that people in positions where they can exercise power should have less scrutiny than citizens rather than more. That is the major theme of his entire brief filed with the Court of Criminal Appeals.
Doyal’s free speech hypocrisy
It’s important to recall that Doyal is the lame duck county judge who has had one citizen arrested merely for approaching the podium in Commissioners Court to attempt to make a citizen comment without that citizen disrupting the meeting at all. Doyal wanted to limit citizen comments during Commissioners Court meetings to matters that weren’t on the agenda only to one minute. How in the world is that not a content-based limitation upon free political speech?!
Very clearly, Doyal (and his attorneys) don’t understand the purpose of TOMA. Their argument comes down to the incorrect point “The purpose of Section 551.143 is to restrict members of governmental bodies from discussing matters of public business in numbers less than a quorum. This is an overly broad restriction on a public official’s right to free speech because it gobbles up a huge chunk of innocent and protected speech within its jaws.”
In actuality, the purpose of Section 551.143 of TOMA is to regulate the time, place, and manner in which a public official in Texas may discuss public business. It doesn’t prohibit such public discussion, just as regulations Doyal himself has imposed during the Commissioners Court meetings don’t regulate the content of speech but merely their time, place, and manner. What TOMA clearly does prohibit, however, is a public official attempting to circumvent the open meetings provisions of the statute by having meetings in numbers less than a quorum for the purpose of that circumvention. A “walking quorum,” for example is a violation of TOMA where public officials discuss matters of business in seriatim to circumvent the open meetings requirement of TOMA.
Doyal conducts secret business involving Commissioners Court and County government matters all the time. He just doesn’t want to have to abide by a Texas criminal statute that prohibits such conduct. He also believes public officials should receive more protection as a result of their positions of responsibility rather than acting with the highest care to protect citizen rights.
What the criminal case against Doyal, Riley, and Davenport concerns: indictment
Riley was a member of the Davenport Ring and used his political boss, Marc Davenport, to negotiate a November, 2015, road bond referendum with leaders of the Texas Patriots PAC. Riley paid Davenport $5,000 for his negotiation services. Doyal also retained Davenport for the same purpose. Although Precinct 4 County Commissioner Jim Clark was also involved in the case early on, it became pretty apparent that he had not engaged in any wrongdoing, so Clark agreed to provide truthful information to the Special Prosecutor who dismissed the charges against Clark. Doyal also paid Davenport for the same services.
The indictment should speak for itself:
“THE GRAND JURY, for the County of Montgomery, State of Texas, duly selected, empaneled, sworn, charged, and organized as such by the 221st Judicial District Court for said County, upon their oaths present in and to said Court that Craig Doyal [and Charlie Riley and Marc Davenport] on or about August 11, 2015 and continuing through August 24, 2015, and before the presentment of this indictment, in the County and State aforesaid, did then and there as a member of a governmental body, to-wit: the Montgomery County Commissioner’s Court, knowingly conspire circumvent Title 5, Subtitle A Chapter 551 of the Texas Government Code (herein after referred to as the Texas Open Meetings Act) by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, to-wit: by engaging in verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond, Against the Peace and Dignity of the State.”
The Grand Jury indicted Doyal, Riley, and Davenport, for meeting in numbers of less than a Commissioners Court quorum (3 out of 5) for the purpose of secret deliberations in violation of TOMA to structure the resolution to set a November 2015 road bond referendum.
Doyal, Riley, and Davenport continue to face criminal charges, now in the Beaumont Court of Appeals for conspiring to circumvent the Texas Open Meetings Act’s Section 551.143 by meeting in a number less than a quorum for the purpose of secret deliberations in violations of TOMA.
If convicted, Doyal and Riley would be guilty of “official misconduct” under Texas law and would be subject to removal from office.
Trial of the 21st Century
Many citizens have called the case “the trial of the 21st century” due to its potential impact on the future of Montgomery County.
A Montgomery County Grand Jury indicted Doyal, Riley, and Davenport for allegedly violating Section 551.143 of the Texas Open Meetings Act (“TOMA”)
“by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, to-wit: by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond.”
The prosecutors noted in their Brief in the Court of Appeals that Doyal and Riley are members of the Commissioners Court while the Grand Jury indicted Davenport for his alleged
“intent to promote or assist the commission of the offense described herein, solicit, encourage, direct, aid or attempt to aid…”
the defendants in their meeting in a number less than a quorum to circumvent TOMA.
Recent revelations about Davenport’s claimed work as a “sworn deputy” and a person in the office of the Justice of the Peace, Precinct 4, James Metts, may impact the proceedings, since Davenport is arguably a County government agent, although the State has not yet raised those factual issues.
Doyal and Riley each paid political boss Davenport $5,000 to negotiate the terms of a new bond referendum for November, 2015, after conservative activists had led a campaign to defeat the May, 2015, bond referendum which had included a proposal to build the Woodlands Parkway Extension. Voters in Commissioners Precinct 3 (mainly The Woodlands) and Commissioners Precinct 2 (Magnolia and surrounding areas) had voted overwhelmingly against the bond referendum in May 2015 while voters in other parts of Montgomery County had supported it.
Faced with serious criminal charges that could potentially lead to Doyal’s and Riley’s removal from office for “official misconduct,” Doyal, Riley, and Davenport, who clearly controls many of the actions and policy decisions of Doyal and Riley, sought a dismissal of the criminal cases against them by claiming that the TOMA statute is unconstitutional. As the State of Texas noted in its Court of Appeals Brief, there was no testimony yet in the trial court concerning the facts that gave rise to the indictments. Rather, the hearing before the trial court was primarily a bunch of lawyers who claimed to be experts in TOMA.
The trial judge, Visiting District Judge Randy Clapp of Wharton County, had dismissed the cases against Doyal, Riley, and Davenport on April 4, 2017, at the urging of Doyal’s very expensive attorney Rusty Hardin whom Doyal has paid several hundred thousand dollars from his campaign funds and from a separate legal defense fund that individuals strongly interested in the construction of the TX 249 Tollway had established.
The Beaumont Court of Appeals reinstated the indictments, issued judgment against all three criminal defendants – Doyal, Riley, and Davenport – and ordered them to pay the State of Texas’ court costs of several thousand dollars incurred in the appeal.