Montgomery County Judge Craig Doyal and other elected officials will remain in office, without the cloud of a looming criminal case, after presiding Judge Randy Clapp of Wharton County’s 329th District Court dismissed the case against the elected officials—instead ruling that a portion of the Texas Open Meetings Act is unconstitutional.
The case was heard in Montgomery County’s 221st District Court between March 29 and April 3. It brought to question whether Doyal, Precinct 2 Commissioner Charlie Riley, Precinct 4 Commissioner Jim Clark and political consultant Marc Davenport violated the TOMA while negotiating details of the November 2015 Montgomery County road bond referendum with the Texas Patriots PAC.
The case, however, never made it to trial. Instead, after four days of testimony by expert witnesses and government officials about their experience with the TOMA, Clapp ruled one statute in particular—Texas Government Code 551.143—was unconstitutional. The ruling also means the case against the elected officials has been dismissed, pending appeal.
“We are not challenging TOMA,” Doyal’s attorney Rusty Hardin said. “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.”
The allegations
Questions about a TOMA violation stemmed from negotiations between the elected officials with the Texas Patriots PAC in the days before a $280 million road bond referendum was placed on the November ballot on Aug. 24, 2015, by Commissioners Court.
Montgomery County voters weighed in on two road bond referendums in 2015. The first was a $350 million bond referendum that was rejected by voters during the May election. A majority of opposition came from residents of The Woodlands, many of whom voiced displeasure with a proposed extension of Woodlands Parkway from FM 2978 to Hwy. 249.
In November, voters instead approved the $280 million referendum after Riley agreed he would not use funds from the bond to build the extension.
In June 2016, however, prosecutor Chris Downey—who represents the state of Texas on the case—said a grand jury had determined there was probable cause to conclude that the officials and Davenport had violated the TOMA by discussing the road bond referendum outside of public meetings. Evidence included emails, correspondence, documentation and interviews.
If the officials had been found guilty, punishment for the criminal violation could have included a fine, jail time and a possible removal from their elected positions, according to the TOMA.
Doyal said the negotiations in question, however, were not among the county commissioners themselves—who in public meetings had discussed the bond over the course of the year and publicly voiced their support for placing the referendum on the November ballot. Instead, he said he and Riley were seeking the support of the PAC before Commissioners Court considered putting the road bond on the ballot once again.
“Commissioner Riley and I sat down with the Patriot PAC, not our buddies but our opposition, to put together a bond issue to be supported by everybody,” Doyal said. “We put the bond issue on the ballot and gave the voters two months to choose how to vote on it. I don’t know how better to do my job.”
Doyal also said he felt he did not violate the TOMA in the process because the only action that was taken was a vote to place the bond on the ballot.
“We didn’t approve a contract, we didn’t hire a consultant [and] we didn’t approve a bond issue,” Doyal said.
The ruling
On April 4, Clapp ruled statute 551.143 was unconstitutional. The ruling does not affect the remainder of the TOMA, but it does strike the provision from the law. It also means the case against the elected officials and Davenport has been dismissed.
Downey said his team is considering an appeal.
“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,” Downey said. “We will determine in short order whether to file notice of appeal.”
State Sen. Brandon Creighton, R-Conroe, said the state Legislature could consider examining the rule following Clapp’s decision in future legislation.
“The judicial branch has spoken,” Creighton said. “This issue is much broader than just my opinion. However, if brought to the Texas Capitol, I would suggest we study this issue and work with the attorney general’s office on any future legislation.”
The court heard testimony from expert witnesses like Austin-based attorney Jennifer Riggs, who previously worked at the Texas Attorney General’s office and has deep knowledge of the TOMA. Riggs has also previously testified and written articles supporting the act.
However, Riggs testified that while she supports the greater cause of the act, she believes the statute in question, 551.143, is unconstitutional because it is vague and does not give a clear definition of what behavior is or is not allowed.
From her experience writing attorney general’s office opinions related to the TOMA, she said the statute was intended to prevent practices like a walking quorum, but instead restricts government officials from communicating with constituents. A walking quorum is when elected officials are speaking to one another in a series of conversations in numbers less than a quorum in order to avoid violating the TOMA.
“The very act of trying to keep it legal [by not meeting in a quorum] could be what proves [conspiracy under Section] 143,” Riggs said. “This puts them in an impossible position.”
Riley said the ruling will help elected officials across the state openly discuss issues in their communities with constituents and one another.
“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,” Riley said.
