Judge rules portion of Texas Open Meetings Act unconstitutional

By Jesse Mendoza
Community Impact Newspaper
Originally published April 4, 2017

Presiding Judge Randy Clapp of Wharton County’s 329th District Court ruled that a portion of the Texas Open Meetings Act is unconstitutional—thus dismissing the case against Montgomery County Judge Craig Doyal and other officials.

The case, which was heard in Montgomery County’s 221st District Court, brought to question whether Doyal, Precinct 2 Commissioner Charlie Riley, Precinct 4 Commissioner Jim Clark and political consultant Marc Davenport violated the Texas Open Meetings Act while negotiating details of the November 2015 Montgomery County road bond. However, the case never made it to trial.

During the court hearings, attorneys questioned a mix of expert witnesses and government officials about their experience with the TOMA and questioned the constitutionality of one statute in particular—Texas Government Code 551.143. The statute states that members of a governmental body cannot knowingly conspire to circumvent the TOMA by meeting in numbers less than a quorum for the purpose of secret deliberations.

On Wednesday, Clapp ruled the statute is unconstitutional. The ruling does not affect the remainder of the TOMA, but it does strike the provision from the law.

“We hope to show through this evidence that we are not challenging TOMA,” Doyal’s attorney Rusty Hardin said during the hearings. “This is simply talking about [a] single statute that criminalizes a supposed conspiracy. The problem with the statute is it does not set out in specific set ways what a person that may be exposed to it can and cannot do. This specific statute is unconstitutionally vague.”

Special prosecutor Chris Downey, who represents the state of Texas on the case, said his team will make a decision soon on whether an appeal will be filed.

“I regret that the court elected to rule on this matter before receiving the briefs the sides were preparing to address the issues raised in this unusual hearing,” Downey said. “That said, I certainly respect the court’s ruling. Given the constitutional challenges the defense raised in opposition to one of the important enforcement components of the open meetings act, this is an important matter of both legal and public policy. With that in mind, we will determine in short order whether to file notice of appeal.”

Doyal said the challenge to the provision does not affect the remainder of the open meetings act. The ruling instead means that Clapp agreed the provision did not meet constitutional standards. Defense attorneys also argued that the statute can also capture innocent behavior because it did not explicitly outline which behavior is and is not permitted by law.

“We got word from the judge that he ruled in our favor and dismissed the indictment,” Doyal said. “I agree with the open meetings act and the public should be involved. I never did anything wrong and I have tried hard not to do anything wrong. I am excited that the judge has dismissed this indictment. Now it is time to move forward and take care of Montgomery County.”

Riley said he is relieved now that a decision has been reached, and that the ruling will help elected officials across the state openly discuss issues in their communities with constituents and one another.

“This has been one of the biggest tests of faith my family has ever endured. I am so thankful for the court’s ruling,” Riley said. “It is a ruling that affirms my support for open government and my belief that public officials ought to be able to constructively talk to, and work with, the people of Montgomery County without fear of being prosecuted. My staff and I look forward to continuing the excellent service that our community has come to expect from the Precinct 2 Commissioner’s Office.”