Appeals court reinstates Texas Open Meetings Act indictments against Montgomery County officials

By Mike Snyder
Houston Chronicle
Originally published Feb. 7, 2018

Less than a month before a fiercely contested Republican primary election, a state appeals court on Wednesday reinstated indictments alleging that two elected Montgomery County officials and a consultant violated the state’s open meetings law.

The 9th Court of Appeals reversed a decision by state District Judge Randy Clapp, who had dismissed the indictments last April in a ruling that found a portion of the Texas Open Meetings Act unconstitutional. The appeals court ordered Clapp to reconsider the indictments against County Judge Craig Doyal, Commissioner Charlie Riley and political consultant Marc Davenport.

The decision is a setback for Doyal and Riley in the final weeks before the March 6 Republican primary, which is decisive in the conservative suburban stronghold north of Houston. Doyal’s primary opponent, state Rep. Mark Keough of The Woodlands, has lent his campaign more than $230,000 and secured the backing of populist groups such as Empower Texans and a local tea party organization.

“Without question, this is a significant blow for the Doyal campaign,” said Rice University political science professor Mark P. Jones. “With the initial decision, he felt he could put this behind him.”

Doyal’s attorney, Rusty Hardin, said he would appeal to the Texas Court of Criminal Appeals. And Doyal noted that no court has ruled on the facts of the case.

“The important thing for people to understand is, it doesn’t have anything to do with guilt or innocence,” Doyal said. “It’s strictly about the constitutional questions.”

A grand jury indicted Doyal, Riley, Davenport and Commissioner Jim Clark on June 24, 2016, on misdemeanor charges of violating the open meetings law during discussions of a November 2015 road bond election. The charges are punishable by up to six months in jail and a fine of up to $500.

The indictment against Clark was dismissed after he agreed to cooperate with prosecutors.

Riley and Davenport could not be reached for comment. Riley, who represents Precinct 2 on Montgomery County’s west side, holds a wide fundraising advantage over his two primary opponents, Greg Parker and Brian Dawson.

Keough said he was “sad for the individuals involved but most importantly for the reputation of Montgomery County.”

“The people of Montgomery County want leaders who will honor their oath, honor the law and honor the will of the people,” he added.

Even before the appeals court decision, signs were emerging that the county judge campaign would intensify in its final weeks.

Campaign finance reports filed this week showed that Doyal, 56, seeking a second term as the county’s chief executive, raised more than $63,000 in January — almost as much as he raised in the previous six months. The sum included a $15,000 contribution from Kim Marling of The Woodlands.

Keough, 64, a two-term state representative, raised just under $5,000 in January. Largely because of personal funds he has lent his campaign, he entered the final weeks with about $80,000 on hand, compared with about $90,000 for Doyal.

Doyal spent only about $3,000 in January. “We do have a plan for a push” in the final weeks, he said, declining to provide details.

Beyond its local political impact, the case has been closely watched by open-government advocates concerned about potential weakening of the open meetings law.

Doyal’s challenge focused on a section of the law that prohibits a so-called “walking quorum,” a circumstance in which members of a governmental body confer about public business without a quorum gathering at one place and time. Six current or former members of Pasadena’s economic development board were indicted in January under the same provision.

Prosecutors in Montgomery County initially alleged that Doyal, Riley, Clark and Davenport conspired to consult with tea party representatives during last-minute negotiations to get a road bond proposal on the November 2015 ballot; the $280 million package passed after a larger one had failed months earlier. Doyal’s motion alleged that the applicable section of the law infringed on free speech and was vague and overly broad.

The appeals court found these arguments unpersuasive.

Its opinion said the section of the law in question did not seek to restrict the content of deliberations, which might be seen as a free-speech issue. Instead, the court said, the section “targets the act of knowingly conspiring to engage in deliberations that circumvent the requirements” of the open meetings law.

Paul Watler, a Dallas attorney who serves on the Freedom of Information Foundation of Texas board, said the open meetings law has faced other constitutional challenges. But the Doyal case, he said, yielded the first written opinion by a state appeals court in a case involving the “walking quorum” clause.

“This opinion by the 9th court is a ringing endorsement of government in the sunshine in Texas,” Watler said. “There’s been somewhat of a movement among some government officials who have complaints about the Open Meetings Act to render it invalid by challenging its constitutionality. Here you have a very well-considered and persuasively written opinion that shows that it does pass constitutional muster.”