Doyal, Craig

PD-0254-18 PD-0254-18

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/7/2018 3:49 PM

Accepted 3/8/2018 11:47 AM

DEANA WILLIAMSON

IN THE COURT OF CRIMINAL APPEALS OF THE CLERK

STATE OF TEXAS FILED

COURT OF CRIMINAL APPEALS

3/8/2018

NO. PD-_______-18 DEANA WILLIAMSON, CLERK

CRAIG DOYAL,

Petitioner

VS.

THE STATE OF TEXAS,

Respondent

ON DISCRETIONARY REVIEW FROM THE NINTH

COURT OF APPEALS DISTRICT OF THE STATE OF TEXAS

CAUSE NO . 09-17-00123-CR

APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

RUSTY HARDIN

State Bar No. 08972800 RUSTY HARDIN & ASSOCIATES, LLP

5 Houston Center

CATHY COCHRAN 1401 McKinney Street, Suite 2250

State Bar No. 09499700 Houston, Texas 77010

Telephone: (713) 652-9000

ANDY DRUMHELLER Facsimile: (713) 652-9800

State Bar No. 00793642 Email: rhardin@rustyhardin.com

Email: ccochran@rustyhardin.com

NAOMI HOWARD Email: adrumheller@rustyhardin.com

State Bar No. 24092541 Email: nhoward@rustyhardin.com

Attorneys for Petitioner,

CRAIG DOYAL

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Petitioner: CRAIG DOYAL

Attorneys at Trial and for Appellee/Petitioner:

RUSTY HARDIN

CATHY COCHRAN

ANDY DRUMHELLER

NAOMI HOWARD

1401 McKinney Street, Suite 2250

Houston, Texas 77010

Prosecutors Pro Tem for the State at Trial and for Appellant/Respondent:

CHRISTOPHER DOWNEY

The Downey Law Firm

2814 Hamilton Street

Houston, Texas 77004

DAVID CUNNINGHAM

2814 Hamilton Street

Houston, Texas 77004

JOSEPH R. LARSEN

Gregor * Cassidy, PLLC

700 Louisiana, Suite 3950

Houston, Texas 77002

Trial Court: THE HONORABLE RANDY CLAPP

Visiting Judge, sitting by appointment in the

221st Judicial District, Montgomery County

Ninth Court of Appeals Panel of Justices:

HON. STEVE McKEITHEN, CHIEF JUSTICE

(Author of Opinion)

HON. HOLLIS HORTON, JUSTICE

HON. LEANNE JOHNSON, JUSTICE

ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE CASE AND PROCEDURAL HISTORY . . . . . . . . . . . . . ix

I. Did the court of appeals err in concluding that §551.143 did not violate the

First Amendment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Reasons for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. What the Court of Appeals Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. How the Court of Appeals Erred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The court of appeals erred in finding that discussion of public

matters was equivalent to disorderly conduct and unprotected

expression under the First Amendment. . . . . . . . . . . . . . . . . . . 4

2. The court of appeals dismissed Supreme Court precedent and

followed a Fifth Circuit opinion interpreting a different TOMA

statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. The court of appeals ignored substantial examples of the

overbreadth of §551.143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

II. Did the court of appeals err in finding that §551.143 was not void for

vagueness? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Reasons for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. The Hearing in the Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. What the Court of Appeals Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

D. How the Court of Appeals Erred. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX NO. 1, State v. Doyal, __S.W.3d__, 2018WL761011

(Tex. App.—Beaumont, February 7, 2018) (designated for publication)

APPENDIX NO. 2, APPELLEE’S BRIEF, Cause No. 04-17-00123-CR

APPENDIX NO. 3, DEFENDANT DOYAL’S MOTION TO DISMISS, Cause No. 16-06-

07315-CR

APPENDIX NO. 4, CHAPTER 551 OF TEXAS GOVERNMENT CODE, “TEXAS OPEN

MEETINGS ACT”

iv

INDEX OF AUTHORITIES

Cases

Asgeirsson v. Abbott, 696 F.3d 454

(5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,6,7

Broadrick v. Oklahoma, 413 U.S. 601

(1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,5,6

Citizens United v. Fed. Election Comm'n, 558 U.S. 310

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,7,8,14

Cohen v. California, 403 U.S. 15

(1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ex parte Lo, 424 S.W.3d 10

(Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ex parte Mitcham, __S.W.3d__, 2018WL847655

(Tex. Crim. App. February 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,10

Ex parte Perry, 483 S.W.3d 884

(Tex. Crim. App. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,8,12,13

Ex parte Poe, 491 S.W.3d 348

(Tex. App.—Beaumont 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,5,6,15

Faust v. State, 491 S.W.3d 733

(Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Grayned v. Rockford, 408 U.S. 104

(1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14,19

Kolender v. Lawson, 461 U.S. 352

(1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,17

v

Long v. State, 931 S.W.2d 285

(Tex. Crim. App.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,19

Martinez v. State, 323 S.W.3d 493

(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,3,7

Ross v. State, 531 S.W.3d 878

(Tex. App.—San Antonio 2017) (pet. granted, January 28, 2018) . . . . . . . . 5

State v. Doyal, __S.W.3d__, 2018WL761011

(Tex. App.—Beaumont, February 7, 2018) . . . . . . . . . . . . . . . . . . . . passim

State v. Johnson, 475 S.W.3d 860

(Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,14

State v. Markovich, 77 S.W.3d 274

(Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Alvarez, 567 U.S. 709

(2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Stevens, 559 U.S. 460

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,9,11

Wagner v. State, __S.W.3d__, 2018WL849164

(Tex. Crim. App. February 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,19

Other Authority

OP. TEX. ATT’Y GEN., No. GA-0326 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi

Constitutions and Statutes Referenced

U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. GOV’T CODE §551.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. GOV’T CODE §551.143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. GOV’T CODE §551.144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3,11,12

TEX. R. APP. P. 66.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,13,14

vii

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is essential to the full development of the First Amendment

issues in this case of first impression. Although all fifty states have open meeting

laws, no jurisdiction has a criminal conspiracy statute like §551.143 (part of Chapter

551 of the Texas Government Code–the Texas Open Meetings Act),1 and apparently

there has never been a successful criminal conviction for a “walking quorum” or

“daisy chain” violation of an open meetings law. The constitutionality and

interpretation of §551.143 of the Texas Open Meetings Act (TOMA) are issues of

enormous practical consequence to members of governmental bodies, large and small,

across the state who are subject to criminal prosecution under its provisions.

1

Unless otherwise noted, all references to statutes are to the Texas Government Code.

viii

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Montgomery County citizens wanted relief from traffic congestion, but after

local Tea Party organizations defeated the May 2015 road bond package,

Commissioners Court was loathe to even discuss the topic. By that August,

representatives of the Texas Patriots PAC realized that the county’s traffic problems

had reached a crisis, and they requested a meeting with County Judge Doyal.

Facilitated by Marc Davenport, Judge Doyal and Commissioner Charlie Riley met

with the PAC, and afterwards Judge Doyal held a press conference announcing that

he would designate time on the Commissioners Court agenda for discussion of a

proposal for a revised road bond to be included on the November ballot. After

discussion and public comment at the August 22nd open meeting, the Commissioners

Court voted unanimously to put the revised road bond package on the November

ballot. The compromise was a success, and the voters passed the new road bond by

60%, whereas the May proposal had failed by 60%.2

A specially appointed prosecutor later indicted County Judge Craig Doyal,

along with Commissioners Charlie Riley and Jim Clark and political consultant Marc

Davenport, for the offense of “knowingly conspir[ing] to circumvent Title 5 Subtitle

A Chapter 551 of the Texas Government Code (hereinafter referred to as the Texas

2

For a more complete recounting of the Montgomery County road bond saga, See

APPENDIX 3, Defendant Doyal’s Motion to Dismiss the Indictment, pp.3-6.

ix

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 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” (C.R. 6).3

Judge Doyal filed a pretrial motion to dismiss the indictment, arguing that

§551.143: (1) placed unconstitutional burdens on Free Speech and failed to withstand

strict scrutiny; (2) was unconstitutionally overbroad; and (3) vague and ambiguous.

(C.R. 45). The trial court held a four-day hearing to determine whether §551.143 of

TOMA was facially unconstitutional. He heard from witnesses for both the defense

and the State and, after considering the arguments of counsel and the testimony of

eight witnesses, including experts, the trial court signed an order granting the motion

to dismiss (C.R. 79). The Ninth Court of Appeals issued its opinion, reversed the order

of the trial court dismissing the indictments, and remanded the case for further

proceedings in State v. Doyal, __S.W.3d__, 2018WL761011 (Tex. App.—Beaumont,

February 7, 2018). See APPENDIX 1.

3

The Petitioner will cite to the clerk’s record as C.R. The reporter’s record will be cited as

1 R.R., et seq.

x

I.

Did the court of appeals err in concluding that §551.143 did not violate the

First Amendment?

A. Reasons for Review

First, §551.143 of TOMA raises an important question of state and federal law

that this Court has never addressed. See TEX. R. APP. P. 66.3(b). Until now, Texas

public officials could only guess at what speech might be prohibited or wonder

whether this law, by burdening political speech, violates the First Amendment.

Second, the court of appeals’ finding that §551.143 of TOMA is a legitimate

restriction on First Amendment rights is in conflict with this Court’s decisions in Ex

parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), State v. Johnson, 475 S.W.3d 860

(Tex. Crim. App. 2015), Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016), and

most recently, Wagner v. State, __S.W.3d__, 2018WL849164 (Tex. Crim. App.

February 14, 2018). It also conflicts with the United States Supreme Court’s decisions

in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), and Reed v. Town

of Gilbert, Ariz., 135 S. Ct. 2218 (2015). The conflict is particularly problematic

because there is so little case law discussing criminal liability under the Texas Open

Meetings Act, yet §551.143 affects thousands of public officials on a daily basis. See

TEX. R. APP. P. 66.3(c).

1

Third, the lower court’s holding that §551.143 of TOMA does not

unconstitutionally restrict speech has so far departed from the proper course of judicial

proceedings as to call for an exercise of this Court’s supervisory power. See TEX. R.

APP. P. 66.3(f).

B. Overview

Every aspect of this case involves speech. Judge Doyal was charged because

of who he is alleged to have talked to and what he is alleged to have talked about. The

allegations in this offense cannot be proven without looking into the content of Judge

Doyal’s speech.

Chapter 551 of the Government Code (Texas Open Meetings Act or TOMA)

has the laudable goal of promoting transparency in government meetings. Section

551.144 prohibits closed meetings and imposes penalties for discussions by a quorum

of a governmental body about public business without following TOMA

requirements. But §551.143 floods the waterfront by prohibiting members of

governing bodies from meeting in numbers of less than a quorum for the purpose of

secret deliberations “on matters within the jurisdiction of the governing body or public

business.” Section 551. 143’s driftnet approach tangles up too much protected speech

because it is not narrowly tailored like §551.144 and does not pass strict scrutiny.

2

C. What the Court of Appeals Held

The Ninth Court of Appeals characterized §551.143 as a content-neutral law

restricting conduct and applied mere “rational basis” scrutiny. Doyal,

2018WL761011,*2. The court rejected Reed v. Town of Gilbert, Ariz., as controlling

authority and instead relied on Broadrick v. Oklahoma, 413 U.S. 601 (1973), to

conclude that Section 551.143 addressed only conduct and did not deserve any First

Amendment protection as speech. The court equated Judge Doyal’s claim with that

of one of its earlier cases, Ex parte Poe, 491 S.W.3d 348 (Tex. App.—Beaumont

2016). In Poe, the appellant challenged the constitutionality of a statute prohibiting

display of a firearm in public, but the court in Poe (and apparently in the present case)

found that the “the statute punishes conduct . . . rather than protected expression, and

that the statute bears a rational relationship to the State’s legitimate interest in

protecting its citizens from harm.” Doyal, 2018WL761011,*2.

The court of appeals also held that the Fifth Circuit’s opinion in Asgeirsson v.

Abbott, 696 F.3d 454 (5th Cir. 2012), a civil case looking at the constitutionality of

a different criminal statute in TOMA, §551.144, was still valid law after Reed and

provided the proper First Amendment analysis of §551.143. Doyal,

2018WL761011,*3-4. Finally, the court held that §551.143’s overbreadth was not real

and substantial when compared to its plainly legitimate sweep and that Judge Doyal

3

did not satisfy his burden to show that the provision was unconstitutionally overbroad.

Doyal, 2018WL761011,*5.

D. How the Court of Appeals Erred

The court of appeals erred because it failed to follow the Supreme Court’s First

Amendment jurisprudence and this Court’s analysis of First Amendment cases on an

issue of statewide importance to members of governing bodies of every size, from

rural water boards to metropolitan city councils.

1. The court of appeals erred in finding that discussion of public

matters was equivalent to disorderly conduct and unprotected

expression under the First Amendment.

The court of appeals, without suggestion from any party, classified §551.143

as a restriction on conduct rather than speech:

We conclude that, unlike the circumstances in Reed, which involved the

particular type of speech or message on signs, section 551.143 of TOMA

is directed at conduct, i.e., the act of conspiring to circumvent TOMA by

meeting in less than a quorum for the purpose of secret deliberations in

violation of TOMA. It is not the content of the deliberations that is

targeted by section 551.143; rather, section 551.143 targets the act of

knowingly conspiring to engage in deliberations that circumvent the

requirements of TOMA. Doyal, 2018WL761011,*4.

The court cited Broadrick v. Oklahoma as authority that conduct receives no First

Amendment protection: “[I]f the statute punishes conduct and not speech, we apply

a rational basis level of review to determine if the statute has a rational relationship

4

to a legitimate state purpose.” Doyal, 2018WL761011,*2. Broadrick involved the

Hatch Act and partisan political conduct of soliciting funds by public employees.

But this is not a case about fundraising “conduct.” It is a case in which the law

clearly restricts the content of what members of a governmental body say to one

another. As the Supreme Court explained in Broadrick, a facial challenge is

particularly appropriate where a statute regulates “only spoken words,” implicates the

right of association, or acts as a prior restraint as §551.143 does. See 413 U.S. at

612-13.

The lower court pointed to its own “instructive” decision in Ex parte Poe for

support of its holding that Doyal’s conduct is subject to “rational basis” analysis rather

than strict scrutiny. In Poe, the court held that a statute prohibiting the display of a

firearm in public was conduct, not speech, and the proscription on displaying a firearm

was rationally related to a legitimate government interest in public safety. But

displaying a firearm in public is simply not analogous to discussing public business

in meetings of less than a quorum. The latter involves pure speech, the former

involves pure conduct.4

4

Although this Court refused Poe’s PDR, it recently granted the State’s PDR in Ross v. State,

531 S.W.3d 878 (Tex. App.—San Antonio 2017) (pet. granted, January 28, 2018), which addressed

the split in Texas intermediate courts concerning whether the “displaying a firearm” statute is

unconstitutionally overbroad and vague. The Court should grant review in this case as well because

the distinction between “conduct” and “speech” in the context of the First Amendment is vitally

important to members of governmental bodies across the state.

5

The Beaumont court is simply mistaken that §551.143 targets “not the content

of the deliberations [but] the act of knowingly conspiring to engage in deliberations.”

Speech is the heart of “deliberations,” and punishing an agreement to deliberate does

not magically convert speech into conduct. See Cohen v. California, 403 U.S. 15, 18

(1971) (“The only ‘conduct’ which the State sought to punish is the fact of

communication.”).

2. The court of appeals dismissed Supreme Court precedent and

followed a Fifth Circuit opinion interpreting a different TOMA

statute.

After relying on Broadrick and its own Poe case to decide that §551.143 was not

speech but conduct, the court then adopted the “content-neutral” analysis used in

Asgeirsson v. Abbott, to hold that §551.143 was not unconstitutionally overbroad or

vague. Asgeirsson is not controlling authority, has been abrogated by multiple

Supreme Court decisions, does not use proper intermediate-scrutiny analysis, and

analyzes a different criminal statute under TOMA. Reliance on Asgeirsson is

misplaced.

The Asgeirsson decision was based on this reasoning:

A regulation is not content-based, however, merely because the

applicability of the regulation depends on the content of the speech. A

statute that appears content-based on its face may still be deemed

content-neutral if it is justified without regard to the content of its

speech. 696 F.3d at 460.

6

The Supreme Court’s Reed decision was based on this reasoning:

[T]he crucial first step in the content-neutrality analysis [is] determining

whether the law is content neutral on its face. A law that is content based

on its face is subject to strict scrutiny regardless of the government's

benign motive, content-neutral justification, or lack of “animus toward

the ideas contained” in the regulated speech.135 S.Ct. at 2228; see also

United States v. Stevens, 559 U.S. 460 (2010); Citizens United v. Fed.

Election Comm'n, 558 U.S. 310 (2010).

The court of appeals should have applied Reed’s overbreadth analysis; instead it

rejected that Supreme Court case merely because it did not discuss Asgeirsson. Doyal,

2018WL761011,*4. Of course not, the Supreme Court had different fish to fry. The

Beaumont court, nonetheless, held that §551.143 was content-neutral since “[t]he

Asgeirsson court held that a regulation is not content-based merely because the

applicability of the regulation depends on the content of the speech.” Doyal,

2018WL761011,*3. That is explicitly contradicted by Reed:

[I]t is well established that “[t]he First Amendment's hostility to

content-based regulation extends not only to restrictions on particular

viewpoints, but also to prohibition of public discussion of an entire

topic.” Thus, a speech regulation targeted at specific subject matter is

content based even if it does not discriminate among viewpoints within

that subject matter. For example, a law banning the use of sound trucks

for political speech—and only political speech—would be a

content-based regulation, even if it imposed no limits on the political

viewpoints that could be expressed. 135 S. Ct. at 2230 (internal citations

omitted).

7

Recent Supreme Court decisions uphold restrictions on speech only in very

limited circumstances because content-based restrictions are reviewed under strict

scrutiny. This Court has also found statutes overly broad when they restrict whole

classes of speakers,5 the statute criminalized activity that was adequately restricted by

other penal statutes,6 or the statute swept up substantially more protected than

unprotected activity.7

Section 551.143 restricts the speech of a whole class of speakers, “members of

a governmental body,” and an entire subject matter, “an issue within the jurisdiction

of the governmental body or any public business.”8 That means that the statute is a

content-based restriction of expression. It is subject to strict scrutiny.

The court of appeals reached the wrong result because it failed to apply the

correct “strict scrutiny” standard. It held that Judge Doyal had failed to “prove that the

statute was unconstitutionally vague and overbroad,” Doyal, 2018WL761011,*5, but,

under strict scrutiny, it is the State’s duty to shoulder that burden of proof.

5

Martinez v. State, 323 S.W.3d 493, 505 (Tex. Crim. App. 2010).

6

Ex parte Perry, 483 S.W.3d 884, 913 (Tex. Crim. App. 2016).

7

Ex parte Mitcham, __S.W.3d__, 2018WL847655 (Tex. Crim. App. February 14, 2018)

(concurring op.).

8

The Supreme Court warned against restricting the speech of an entire group of speakers in

Citizens United v. Federal Election Comm'n, and this Court has also recognized that limiting the

speech or expression of an entire group did not render a statute content-neutral. Martinez, 323

S.W.3d at 505 (“That all gang hand signs, not just those used by the VC street gang, were prohibited

does not render that prohibition content-neutral.”).

8

3. The court of appeals ignored substantial examples of the

overbreadth of §551.143.

The court of appeals would allow restriction of speech based on the salutary

effects of TOMA and to encourage transparency in public meetings. Doyal,

2018WL761011,*5. United States v. Stevens warned against weighing such public

interests against free speech:

The Government thus proposes that a claim of categorical exclusion

should be considered under a simple balancing test: “Whether a given

category of speech enjoys First Amendment protection depends upon a

categorical balancing of the value of the speech against its societal

costs.” As a free-floating test for First Amendment coverage, that

sentence is startling and dangerous. The First Amendment's guarantee of

free speech does not extend only to categories of speech that survive an

ad hoc balancing of relative social costs and benefits. 559 U.S. 460, 470

(2010) (internal citations omitted).

The Beaumont court’s categorical balancing of the value of transparency against

Free Speech whenever members of governmental bodies speak in numbers less than

a quorum about public issues is likewise “startling and dangerous.”

The court of appeals stated that “[b]efore a statute will be invalidated on its face

as overbroad, the overbreadth must be real and substantial when ‘judged in relation

to the statute’s plainly legitimate sweep.’” Doyal, 2018WL761011,*2. But Judge

Newell recently reaffirmed the proper test for constitutional overbreadth in Ex parte

Mitcham:

9

Overbreadth analysis already allows that a statute that is capable of being

applied constitutionally may nevertheless be unconstitutional if it could

also be used to criminalize protected speech....Examples of a statute’s

plainly legitimate sweep do not tell us how far beyond that legitimate

sweep the statute reaches. 2018WL847655,*1 (Newell, J., concurring).

When it comes to protected speech, the legitimate sweep must be no broader

than the precise grab of the compelling need that gives rise to the statute. “The First

Amendment requires that the Government's chosen restriction on the speech at issue

be “actually necessary” to achieve its interest. There must be a direct causal link

between the restriction imposed and the injury to be prevented.” United States v.

Alvarez, 567 U.S. 709, 725 (2012) (internal citations omitted). And this Court has

explained:

In order to demonstrate that a challenged restriction is narrowly tailored,

the government must demonstrate that the restriction “serve[s] a

substantial state interest in ‘a direct and effective way.’” Faust v. State,

491 S.W.3d 733, 748 (Tex. Crim. App. 2015).

Section 551.143 has not been shown to directly and effectively increase

governmental transparency or prevent closed meetings. There have been no reported

previous criminal prosecutions in Texas in the more than forty years of §551.143’s

existence. If violations of TOMA were so frequent and egregious as to require stiff

criminal sanctions, we should have heard of it before. And if this statute served such

a compelling governmental need, it would surely apply to the Texas Legislature and

the U. S. Senate, but it does not.

10

The witnesses testifying at the pretrial hearing gave numerous examples of their

own or other officials’ innocent discussions with other officials and citizens that

would be covered by §551.143's broad language. Some of those examples are cited

in Judge Doyal’s original brief, APPENDIX 3, pp.34-36, and many more in

Commissioner Riley’s brief, APPELLEE RILEY’S BRIEF TO NINTH COURT OF APPEALS,

pp.7-22.

These members of local governmental bodies are at the mercy of rogue or

special prosecutors because §551.143 is so broad. As the Supreme Court warned,

“[T]he First Amendment protects against the Government; it does not leave us at the

mercy of noblesse oblige. We would not uphold an unconstitutional statute merely

because the Government promised to use it responsibly.” Stevens, 559 U.S. at 480

(2010).

And TOMA already has a criminal liability statute—§551.144—which serves

the purpose of transparency and deterring closed meetings. Section 551.143 sweeps

up far more protected, innocent speech than actual criminal conduct. As Presiding

Judge Keller explained, “With legitimate applications flowing solely, or almost

entirely, from conduct proscribed by other statutes, it could be said that the challenged

statute has no life of its own.” Ex parte Perry, 483 S.W.3d at 913. Section 551.143 has

no real life of its own. TOMA has ample remedies for violations: any action taken

11

during an improper meeting is voidable;9 an aggrieved person may obtain an

injunction in a declaratory judgment action;10 and criminal sanctions may be sought

for a “closed meeting” under §551.144.

The alarm sounded by media proponents in this case is that the public would

be shut out of important decision-making by its government. But §551.144 safeguards

TOMA’s goal of open meetings and §551.143’s overbreadth cannot be justified. The

public-spirited citizens who serve their communities in governmental bodies (many

of them without pay) should be free to express themselves informally to other

members one-on-one or in small groups without fear that they will be swept up in the

wide net of §551.143. Because this is an issue of statewide importance to

officeholders in governmental bodies, concrete guidance from this Court is

imperative.

II.

Did the court of appeals err in finding that §551.143 was not void for

vagueness?

A. Reasons for Review

A vague criminal statute that encroaches on free speech violates due process

because it fails to give fair warning of what is prohibited, encourages arbitrary and

9

§551.141.

10

§551.142.

12

discriminatory enforcement, and has a chilling effect on free expression. Grayned v.

City of Rockford, 408 U.S. 104, 108-09 (1972). All vaguely worded laws create a trap

for the unwary, but §551.143 creates uniquely steep stakes because the mere

indictment of a public official has political, as well as personal, consequences that

range from loss of public trust to loss of public office. As a constitutional matter,

public officials must be put clearly on notice of precisely what speech they are

statutorily prohibited from engaging in because even the perception of criminal

conduct damages both the body politic and the individual person. Ex parte Perry, 483

S.W.3d at 898.

First, because this Court has never addressed the meaning of the statutory

language in §551.143, it should grant Judge Doyal’s petition and conduct a proper

analysis of this criminal law which places so many Texas public officials in potential

peril of prosecution. See TEX. R. APP. P. 66.3 (b).

Second, the court of appeals’ conclusion that §551.143 gives adequate notice to

the average person is based on reinterpreting the statute, which is in conflict with this

Court’s statutory construction principles in Long v. State, 931 S.W.2d 285 (Tex. Crim.

App. 1996), and State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015), as well

as the Supreme Court’s void-for-vagueness body of law in Grayned v. Rockford, 408

U.S. 104 (1972), Kolender v. Lawson, 461 U.S. 352 (1983), and Citizens United v.

13

Fed. Election Comm'n, 558 U.S. 310 (2010). This Court should review the Beaumont

court’s opinion to resolve that conflict. See TEX. R. APP. P. 66.3(c).

Third, the intermediate court’s opinion, rather than clarifying the language of

§551.143’s criminal liability (a statute for which there is little judicial guidance),

actually muddies the waters by inserting language into the statute and ignoring

contradictory statutory language. That court’s statutory analysis calls for this Court’s

review. See TEX. R. APP. P. 66.3(f).

B. The Hearing in the Trial Court

The experienced trial judge heard numerous witnesses before deciding that

§551.143 was unconstitutionally vague. Not only did he hear testimony from experts

on the Open Meetings Act and the First Amendment, but he also heard testimony from

various Texas public officials. Those officials admitted they struggled to understand

the restrictions imposed by §551.143, and they were afraid to speak to fellow

members about public business and sometimes even feared being seen together

because of the possibility of being accused of trying to circumvent TOMA. (2 R.R.

222, 227,263-266, 270; 3 R.R. 111, 114, 116-117; 5 R.R. 18, 20, 32, 37, 55).

These public officials shudder in their boots because they can so easily be

indicted and beggared by defending themselves in court, regardless of their innocent

intent. This concern chills their free speech and deters them from doing their job

14

effectively and efficiently. Unlike Judge Doyal and his fellow public officials who

must work with their colleagues in resolving governmental issues as they crop up,

Monday morning hindsight gives “prosecutor[s] the ability to pick and choose” (3

R.R. 51), and they “have the power to go out and pick those whose communications

they don’t like” under §551.143 (3 R.R. 61). It was in the context of this evidence

from those who must work with TOMA on a daily basis that the trial judge held that

§551.143 is unconstitutionally vague.

C. What the Court of Appeals Held

The court of appeals held that §551.143 could be understood from the plain

words of the statute. The Beaumont court analogized Judge Doyal’s arguments

regarding the ambiguity in the meaning of “conspire,” “circumvent,” “secret,” and

“deliberations” in the context of §551.143 to the ambiguity complained of in Ex parte

Poe and the alleged ambiguity surrounding “alarm” in that case. The court quickly

dispensed with “conspire,” “circumvent,” and “secret,” stating that these words all had

plain meanings, so there was no ambiguity. Doyal, 2018WL761011,*4. The appeals

court then relied on an Attorney General opinion to supply the interpretation of

“deliberations.” The court concluded that meeting in numbers less than a quorum was

a “method of forming a quorum” and that this was discerned from the plain meaning

of the words. Doyal, 2018WL761011,*5.

15

D. How the Court of Appeals Erred

Section 551.143 is so broadly worded that all members of a governmental body

who find themselves in the company of any other members of that same governmental

body should be on guard as to what they speak about (or even to speak at all), lest

someone construe that “meeting” as a conspiracy. This is the counsel that experts give

their governmental entity clients: “The very act of trying to keep it legal could be what

helps prove, under [§551.143] a conspiracy.” (3 R.R. 47). “You can do an awful lot

with [§551.143] in hindsight to make things look like a violation, totally innocent

communications.” (3 R.R. 49). Because members of governmental bodies can never

know exactly what speech is prohibited and in what numbers it is safe to talk, these

members often refrain from speaking altogether.

The Beaumont court’s artificial construction and insertion of language that is not

actually in the statute conflicts with well-established Supreme Court precedent: “[T]he

void-for-vagueness doctrine requires that a penal statute define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.” Kolender, 461 U.S. at 357.

Yet multiple witnesses testified that ordinary people serving their communities

are confused by §551.143. Mayor Charles Jessup of Meadows Place said that

16

§551.143 is a “very convoluted and confusing statute. . . I really don’t understand it.

. . . We try to avoid conversations, and the discussion of a walking quorum has come

up. We’re not sure exactly how that works, but it scares us all to death.” (2 R.R. 222).

Eric Scott, mayor of Brookshire, testified that §551.143 “makes me believe that they

can go to jail very easily, and no one wants to go to jail.” (2 R.R. 266). It “chills” his

ability to express himself and solicit others’ opinions. (2 R.R. 270). Mayor Jim

Kuykendall of Oak Ridge North explained that Section 551.143 “basically neuters

everybody.” (3 R.R. 111). The members don’t feel that they can talk to each other or

members of the public. (3 R.R. 114). After learning about this case, Mayor

Kuykendall is afraid he’s broken the law. He fears just being indicted would be

devastating financially. (3 R.R. 117).

Section 551.143 is vague on its face by making it a crime for a member of a

governmental body to “conspire” to meet in numbers of less than a quorum “to

circumvent” TOMA for the purpose of “secret deliberations” about “public business”

or “an issue within the jurisdiction of the government body.” The court of appeals

erred when it held that “conspire,” “circumvent,” and “secret” all had plain meanings

that required no special judicial interpretation and that “public business” deserved no

interpretation at all. The court of appeals treated those words as if there could be no

17

confusion at all. Witnesses at the hearing said otherwise. They are the ones who know

the problems of the statute, and they are the ones who need answers.

But perhaps most troubling was the court’s blind adoption of the Attorney

General’s opinion. The Attorney General’s resolution of the conflict in §551.143,

which prohibits public officials in less than a quorum from having “deliberations,”

and §551.001, which defines “deliberations” as a verbal exchange between a quorum,

is as follows: “‘meeting in numbers less than a quorum’ describes a method of

forming a quorum, and a quorum formed this way may hold deliberations like any

other quorum.” OP. TEX. ATT’Y GEN., GA-0326, 4 (2005). How can less than a

quorum form a quorum? And if it takes a quorum to deliberate, how can less than a

quorum deliberate in violation of TOMA? The Beaumont court merely opined that the

Attorney General’s construction of the statute was discernible from a plain reading of

the words. Doyal, 2018WL761011,*5.

When a statute burdens First Amendment rights, the vagueness doctrine

demands greater specificity than in other contexts to preserve the right of free

expression because “[u]ncertain meanings inevitably lead citizens to steer far wider

of the unlawful zone than if the boundaries of the forbidden areas were clearly

marked.” Grayned, 408 U.S. at 109. In other words, it “chills” free speech.

18

The lower court’s analysis also conflicts with this Court’s void-for-vagueness

analysis in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) and Wagner v.

State, __S.W.3d__, 2018WL849164 (Tex. Crim. App. Feb. 14, 2018). Both decisions

recognize that criminal statutes require greater specificity and “narrow tailoring” in

the First Amendment context. And Judge Keasler has specifically cautioned against

statutory interpretation such as the Beaumont court engaged in: “I believe a statute is

only ‘readily subject to a narrowing construction’ if the language already in the statute

can be construed in a narrow manner. Adding language to a statute is legislating from

the bench.” State v. Markovich, 77 S.W.3d 274, 285 (Tex. Crim. App. 2002) (Keasler,

J., dissenting).

Because public officials around the state have a compelling interest in clearly-

worded penal statutes that govern the manner in which they speak to one another and

conduct the business of governing, guidance from this Court is necessary.

PRAYER FOR RELIEF

For all of the reasons set out above, Judge Doyal asks this Court to grant his

petition for discretionary review, reverse the judgment of the Ninth Court of Appeals,

and reinstate the judgment of the trial court.

19

Respectfully submitted:

RUSTY HARDIN & ASSOCIATES, LLP

By: /s/ Rusty Hardin

RUSTY HARDIN

State Bar No. 08972800

CATHY COCHRAN

State Bar No. 09499700

ANDY DRUMHELLER

State Bar No. 00793642

NAOMI HOWARD

State Bar No. 24092541

5 Houston Center

1401 McKinney Street, Suite 2250

Houston, Texas 77010

Telephone (713) 652-9000

Facsimile (713) 652-9800

Email: rhardin@rustyhardin.com

Email: ccochran@rustyhardin.com

Email: adrumheller@rustyhardin.com

Email: nhoward@rustyhardin.com

Attorneys for Petitioner, CRAIG DOYAL

20

CERTIFICATE OF COMPLIANCE

Now comes Petitioner, Craig Doyal, by and through undersigned counsel, and

certifies that per TEX. R. APP. P. 9.4(i)(2)(D), the Petitioner’s word count , as verified

by the computer program, WordPerfect, is 4,409 (of allowed 4,500) words.

/s/ Naomi Howard

NAOMI HOWARD

21

CERTIFICATE OF SERVICE

I hereby certify that, pursuant to TEX. R. APP. P. 9.5(b)(1) and 68.11, an

electronic copy of the above and foregoing Petition for Discretionary Review has been

electronically served on the prosecutors pro tem for the State and the State Prosecuting

Attorney via the electronic filing manager on March 7, 2018.

CHRIS DOWNEY

The Downey Law Firm

2814 Hamilton Street

Houston, Texas 77004

Email: chris@downeylawfirm.com

DAVID CUNNINGHAM

2814 Hamilton Street

Houston, Texas 77004

Email: cunningham709@yahoo.com

JOSEPH R. LARSEN

Gregor * Cassidy, PLLC

700 Louisiana, Suite 3950

Houston, Texas 77002

Email: jlarsen@grfirm.com

STACEY M. SOULE

State Prosecuting Attorney of Texas

P.O. Box 13046

Austin, Texas 78711-3046

Email: information@spa.texas.gov

/s/ Naomi Howard

NAOMI HOWARD

22

APPENDIX NO.1

State v. Doyal, __S.W.3d__, 2018WL761011

(Tex. App.—Beaumont, February 7, 2018) (designated for publication)

State v. Doyal, --- S.W.3d ---- (2018)

2018 WL 761011

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT

LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas,

Beaumont.

The STATE of Texas, Appellant

v.

Craig DOYAL, Appellee

NO. 09-17-00123-CR

|

Submitted on January 24, 2018

|

Opinion Delivered February 7, 2018

On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 16-06-07315-CR

Attorneys and Law Firms

Christopher J. Downey, Houston, Joseph Robert Larsen, Dallas, David Cunningham, for Appellant.

Andrew Davis, as Amicus Curiae.

Naomi Howard, Houston, Russell Hardin, Anthony Douglas Drumheller, Cathy Cochran, for Appellee.

Before McKeithen, C.J., Horton and Johnson, JJ.

Opinion

OPINION

STEVE McKEITHEN, Chief Justice

*1 The State of Texas appeals the trial court's dismissal of an indictment, which alleged that appellee Craig Doyal,

as a member of the Montgomery County Commissioners Court, knowingly conspired to circumvent the Texas Open

Meetings Act (“TOMA”). We reverse the trial court's order dismissing the indictment and remand the cause to the trial

court for further proceedings consistent with this opinion.

Doyal, a member of the Montgomery County Commissioners Court, was indicted for knowingly conspiring to

circumvent the provisions of TOMA by meeting in a number less than a quorum for the purpose of secret deliberations

“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[.]” See

Tex. Gov't Code Ann. § 551.143 (West 2017). Doyal filed a motion to dismiss the indictment, asserting that section

551.143 is facially unconstitutional because it violates the free speech provisions of the First Amendment and is vague

and overbroad.

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

State v. Doyal, --- S.W.3d ---- (2018)

Doyal asserted that he, a county commissioner, and a political consultant met with representatives of a local political

action committee (“PAC”) to discuss placing a road bond referendum on the November 2015 ballot, and as a result of

the meeting, a memorandum of understanding was produced, in which the Texas Patriots PAC promised its political

support for putting a road bond proposal on the commissioners' special meeting agenda. According to Doyal, he posted

the agenda for a special meeting of the Commissioners Court, and citizens praised the commissioners' work at the special

meeting and thanked them for putting a road bond on the ballot. Doyal asserted that the county attorney wrote him

a letter stating that the commissioners had complied with the requirements of TOMA, and voters passed the bond in

the November election. Doyal alleged that the discussions between himself, the other commissioner, the consultant, and

the members of the PAC were not a meeting under TOMA and were not intended to be an agreement to conspire to

avoid TOMA.

In his motion to dismiss, Doyal argued that section 551.143 of the Texas Government Code burdens free speech and

is subject to strict construction. According to Doyal, the statute facially “does not make sense[ ]” because “[m]eeting

in numbers of less than a quorum does not violate a statute that requires a quorum to meet in open session.” Doyal

contended that because TOMA applies only to specific speech by public officials, it is a content-based penal regimen

subject to review under strict scrutiny. According to Doyal's motion to dismiss, section 551.143 is constitutionally

overbroad because it prohibits a substantial amount of protected speech when judged in relation to the statute's plainly

legitimate sweep. Doyal further asserted that section 551.143 is vague and confusing because the terms “conspire” and

“secret” are not defined, and the statute fails to explain what kind of “deliberations” are covered.

*2 The State's response in the trial court asserted that section 551.143 is “both constitutional and enforceable.”

According to the State, section 551.143 is content neutral because “it does not restrict speech based on specific content,

but simply requires that the disclosure of the speech take place in an open forum.” The State asserted that the purpose

of section 551.143 is to control the effects of closed meetings, including decreased transparency, encouragement of fraud

or corruption, and increased mistrust in governmental entities. In addition, although the State argued that intermediate

scrutiny is the proper standard for reviewing section 551.143, the State contended that even if the strict scrutiny standard

applied, section 551.143 meets that test because “it is narrowly tailored and serves a compelling state interest.”

The trial court held a hearing, but heard no testimony regarding the underlying facts. Rather, Doyal's witnesses offered

opinion testimony regarding their interpretations of section 551.143, the challenges it poses, and its constitutionality.

The trial judge signed an order granting Doyal's motion to dismiss the indictment. No party requested the trial court to

make findings of fact and conclusions of law, and none were filed. The State then filed this appeal, in which it raises two

issues for our consideration: (1) the trial court erred by dismissing the indictment on the ground that section 551.143 is

facially unconstitutionally vague and ambiguous, and (2) the trial court erred by dismissing the indictment on the ground

that section 551.143 facially violates the First Amendment and is overbroad.

“Whether a statute is facially constitutional is a question of law that we review de novo.” Ex parte Lo, 424 S.W.3d

10, 14 (Tex. Crim. App. 2013). If we determine that there is a reasonable construction which will render the statute

constitutional, we must uphold the statute. Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App. Houston [14th Dist.]

2002, pet. ref'd). We presume that a statute is valid and that the Legislature did not act unreasonably or arbitrarily.

Ex parte Lo, 424 S.W.3d at 14-15. “The burden normally rests upon the person challenging the statute to establish its

unconstitutionality.” Id. at 15.

“The First Amendment which prohibits laws ‘abridging the freedom of speech’ limits the government's power to

regulate speech based on its substantive content.” State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App. Houston [14th Dist.]

2016, pet. ref'd); see U.S. Const. amend. I. “Content-based regulations are those that distinguish favored from disfavored

speech based on the idea or message expressed.” Stubbs, 502 S.W.3d at 224. “[W]hen the government seeks to restrict and

punish speech based on its content, the usual presumption of constitutionality is reversed.” Ex parte Lo, 424 S.W.3d at

15. “Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed)

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2

State v. Doyal, --- S.W.3d ---- (2018)

are presumptively invalid, and the government bears the burden to rebut that presumption.” Id. Accordingly, we apply

strict scrutiny to content-based regulations. Id. On the other hand, if the statute punishes conduct and not speech, we

apply a rational basis level of review to determine if the statute has a rational relationship to a legitimate state purpose.

See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial when “judged in

relation to the statute's plainly legitimate sweep.” Id. A statute should not be invalidated for overbreadth merely because

it is possible to imagine some unconstitutional application. See In re Shaw, 204 S.W.3d 9, 15 (Tex. App. Texarkana

2006, pet. ref'd). With respect to issues of vagueness, statutes are not necessarily unconstitutionally vague merely because

the words or terms employed in the statute are not specifically defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex.

Crim. App. 1988). When a statute does not define the words used therein, we give the words their plain meaning. See

Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov't Code Ann. § 311.011(a) (West 2013)

(“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”).

Under the void-for-vagueness doctrine, a statute will be invalidated if it fails to define the offense in such a manner

as to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See State v.

Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,

75 L.Ed.2d 903 (1983).

*3 “TOMA requires that meetings of governmental bodies be open to the public.” Asgeirsson v. Abbott, 696 F.3d 454,

458 (5th Cir. 2012). Section 551.143(a) of TOMA, which makes a violation of TOMA a criminal offense, provides as

follows:

(a) 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 by meeting in numbers less than

a quorum for the purpose of secret deliberations in violation of this chapter.

Tex. Gov't Code Ann. § 551.143(a). Chapter 551 defines the term “deliberation” as “a verbal exchange during a

meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person,

concerning an issue within the jurisdiction of the governmental body or any public business.” Id. § 551.001(2) (West Supp.

2017). In addition, chapter 551 defines “governmental body” to include a county commissioners court. Id. § 551.001(3)

(B). Furthermore, chapter 551 defines a “meeting” as follows:

(A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and

another person, during which public business or public policy over which the governmental body has supervision or

control is discussed or considered or during which the governmental body takes formal action; or

(B) except as otherwise provided by this subdivision, a gathering:

(i) that is conducted by the governmental body or for which the governmental body is responsible;

(ii) at which a quorum of members of the governmental body is present;

(iii) that has been called by the governmental body; and

(iv) at which the members receive information from, give information to, ask questions of, or receive questions from

any third person, including an employee of the governmental body, about the public business or public policy over

which the governmental body has supervision or control.

...

The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the

public business that is conducted by the body, the attendance by a quorum of a governmental body at a regional,

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3

State v. Doyal, --- S.W.3d ---- (2018)

state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and

any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press

conference.

The term includes a session of a governmental body.

Id. § 551.001(4). Lastly, chapter 551 defines “quorum” as “a majority of a governmental body, unless defined differently

by applicable law or rule or the charter of the governmental body.” Id. § 551.001(6).

In analyzing section 551.144 of TOMA, 2 the U.S. Court of Appeals for the Fifth Circuit held that “[t]ransparency is

furthered by allowing the public to have access to government decisionmaking.... The private speech itself makes the

government less transparent regardless of its message. The statute is therefore content-neutral.” Asgeirsson, 696 F.3d at

461-62. The Asgeirsson court held that a regulation is not content-based merely because the applicability of the regulation

depends on the content of the speech. Id. at 459. “A statute that appears content-based on its face may still be deemed

content-neutral if it is justified without regard to the content of the speech.” Id. at 459-60. Doyal contends that Asgeirsson

was abrogated by Reed v. Town of Gilbert, U.S. , 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). He emphasizes that this

Court need not follow cases from the Fifth Circuit Court of Appeals and argues that two additional U.S. Supreme Court

cases “show that Section 551.143 does not pass constitutional muster even under intermediate scrutiny[,]” 3 and that

Asgeirsson dealt with section 551.144, which is “a simple, clear statute[,]” but section 551.143 is “so vague that experts

call it ‘gibberish’ and are confused about its meaning and application.”

*4 First, we note that Reed does not mention or discuss Asgeirsson, and we reject Doyal's assertion that Reed abrogated

Asgeirsson. See Reed, 135 S.Ct. at 2218-39. Second, in Reed, the issue facing the Supreme Court was the constitutionality

of a town's “Sign Code” that prohibited the display of outdoor signs without a permit, but exempted numerous categories

of signs from that requirement, including ideological signs, political signs, and temporary directional signs relating to a

qualifying event. Id. at 2224-25. In Reed, a church and its pastor wished to advertise the time and location of its Sunday

church services, which were held in a variety of different locations due to financial constraints. Id. at 2225. The church

was twice cited for exceeding the time limits for displaying temporary directional signs, as well as its failure to include

the date of the event on the signs. Id. The church filed suit in federal district court, arguing that the Sign Code violated

its freedom of speech. Id. at 2226. After the District Court granted summary judgment in favor of the town, the Court

of Appeals affirmed, and the Supreme Court granted certiorari. Id. After concluding that the town's Sign Code was

clearly not content-neutral, but instead was “content based on its face[,]” the Supreme Court held that the Sign Code

could not survive strict scrutiny because the Sign Code was not narrowly tailored to further a compelling government

interest. Id. at 2228-32.

We conclude that, unlike the circumstances in Reed, which involved the particular type of speech or message on signs,

section 551.143 of TOMA is directed at conduct, i.e., the act of conspiring to circumvent TOMA by meeting in less

than a quorum for the purpose of secret deliberations in violation of TOMA. See Tex. Gov't Code Ann. § 551.143;

Reed, 135 S.Ct. at 2228-32; Asgeirsson, 696 F.3d at 461-62. It is not the content of the deliberations that is targeted by

section 551.143; rather, section 551.143 targets the act of knowingly conspiring to engage in deliberations that circumvent

the requirements of TOMA. See Tex. Gov't Code Ann. § 551.143. “The prohibition in TOMA is applicable only to

private forums and is designed to encourage public discussion[.]” Asgeirsson, 696 F.3d at 461. Therefore, we reject Doyal's

contention that we must apply strict scrutiny in reviewing section 551.143.

This Court's opinion in Ex parte Poe, 491 S.W.3d 348 (Tex. App. Beaumont 2016, pet. ref'd), is instructive. In Ex parte

Poe, the appellant asserted that the disorderly conduct statute is facially unconstitutional due to its alleged vagueness

and its alleged violation of his rights under the First, Second, Fifth, and Fourteenth Amendments. Id. at 350. The statute

at issue in Ex parte Poe provided that “ ‘A person commits an offense if he intentionally or knowingly ... displays a

firearm or other deadly weapon in a public place in a manner calculated to alarm.’ ” Id. at 354. This Court concluded

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4

State v. Doyal, --- S.W.3d ---- (2018)

that the statute punishes conduct (displaying a firearm in a public place in a manner calculated to cause alarm) rather

than protected expression, and that the statute bears a rational relationship to the State's legitimate interest in protecting

its citizens from harm. Id. We therefore rejected Poe's argument that strict scrutiny applied, and we began by presuming

that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it. Id. We also rejected

Poe's argument that the word “alarm” was undefined and inherently subjective, and instead gave the undefined terms

in the statute their plain meaning. Id.

In the case at bar, Doyal argues that section 551.143 is vague because the terms “conspire,” “circumvent,” and “secret”

are not defined, and the statute does not explain what type of deliberations are covered. As was the case in Poe, the terms

at issue have a plain meaning. “Conspire” is commonly understood to mean “to make an agreement with a group and

in secret to do some act (as to commit treason or a crime or carry out a treacherous deed): plot together[.]” Webster's

Third International Dictionary 485 (2002). “Circumvent” means “to overcome or avoid the intent, effect, or force of:

anticipate and escape, check, or defeat by ingenuity or stratagem: make inoperative or nullify the purpose or power of

esp. by craft or scheme[.]” Id. at 410. “Secret” means “kept from knowledge or view: concealed, hidden” and “done or

undertaken with evident purpose of concealment[.]” Id. at 2052.

*5 Doyal asserts that because chapter 551 defines “deliberation” as a verbal exchange during a meeting between a

quorum of members concerning an issue within the jurisdiction of the governmental body or any public business, yet

section 551.143 refers to deliberations of less than a quorum, the statute is unconstitutionally vague. See Tex. Gov't

Code Ann. §§ 551.001(2), 551.143. The Attorney General has opined that TOMA does not require that a governmental

body's members be in each other's physical presence to constitute a quorum, and, therefore, section 551.143 applies to

“members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time

but who, through successive gatherings, secretly discuss a public matter with a quorum of that body.” Tex. Att'y Gen.

Op. No. GA-0326 p. 3 (2005). 4 The Attorney General explained that the definition of “deliberations” as used in section

551.143 “is consistent with its definition in section 551.001 because ‘meeting in numbers less than a quorum’ describes a

method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum.” Id. at p. 4;

see Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F.Supp.2d 433, 473, 476 (W.D. Tex. 2001). The Attorney

General also opined that “[t]his construction is discernible from a plain reading of the provision.” Tex. Atty's Gen. Op.

No. GA-0326 p. 4. We find the Attorney General's reasoning persuasive.

We conclude that section 551.143 describes the criminal offense with sufficient specificity that ordinary people can

understand what conduct is prohibited. See Holcombe, 187 S.W.3d at 499. The statute provides reasonable notice of the

prohibited conduct. See Holcombe, 187 S.W.3d at 499; see also Kolender, 461 U.S. at 357, 103 S.Ct. 1855; see also Tex.

Gov't Code Ann. § 551.143. We conclude that the statute is reasonably related to the State's legitimate interest in assuring

transparency in public proceedings. See Asgeirsson, 696 F.3d at 461-62. The alleged overbreadth of section 551.143 is

not real and substantial when judged in relation to its plainly legitimate sweep. See Broadrick, 413 U.S. at 615, 93 S.Ct.

2908. Doyal has not satisfied his burden to prove that the statute is unconstitutionally vague and overbroad. See id. We

sustain the State's appellate issues, reverse the trial court's order dismissing the indictment, and remand the cause to the

trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All Citations

--- S.W.3d ----, 2018 WL 761011

Footnotes

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5

State v. Doyal, --- S.W.3d ---- (2018)

1 Doyal is the elected County Judge of Montgomery County, and not technically a commissioner. The County Judge is a member

of Commissioners Court. Tex. Loc. Gov't Code Ann. § 81.001(a) (West Supp. 2017).

2 Section 551.144 makes calling or aiding in calling a closed meeting, closing or aiding in closing a meeting to the public, or

participating in a closed meeting a criminal offense. Tex. Gov't Code Ann. § 551.144 (West 2017).

3 Doyal argues that under Packingham v. North Carolina, U.S. , 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017) and Matal

v. Tam, U.S. , 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), section 551.143 cannot survive even intermediate scrutiny.

In those cases, the Supreme Court invalidated a law banning sex offenders from using social media and held that the First

Amendment bars a law that prohibited disparaging trademarks. Packingham, 137 S.Ct. at 1735, 1738; Matal, 137 S.Ct. at

1751. We reject the assertion that these cases render it impossible for section 551.143 to survive intermediate scrutiny.

4 We recognize the difficulties this language causes the State in its attempt to prove this element beyond a reasonable doubt;

however, a statute that creates difficulty for the State in meeting its burden of proof is not unconstitutional.

End of Document © 20 8 Thomson Reuters. No c a m to or g na U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 6

APPENDIX NO. 2

APPELLEE’S BRIEF, Cause No. 04-17-00123-CR

ACCEPTED

09-17-00123-CR

NINTH COURT OF APPEALS

BEAUMONT, TEXAS

8/21/2017 3:29 PM

CAROL ANNE HARLEY

CLERK

NO. 09-17-00123-CR

COURT OF APPEALS FOR THE

NINTH DISTRICT OF TEXAS

Beaumont, Texas

STATE OF TEXAS

Plaintiff - Appellant,

v.

CRAIG DOYAL

Defendant - Appellee.

Appeal from the 221st Judicial District Court

Montgomery County, Texas

Trial Court Cause No. 16-06-07315-CR

Hon. Randy Clapp

APPELLEE CRAIG DOYAL’S BRIEF

Rusty Hardin RUSTY HARDIN & ASSOCIATES, LLP

State Bar. No. 08972800 5 Houston Center

Cathy Cochran 1401 McKinney, Suite 2250

State Bar No. 09499700 Houston, Texas 77010

Andy Drumheller Telephone: (713) 652-9000

State Bar No. 00793642 Facsimile: (713) 652-9800

Naomi Howard Email: rhardin@rustyhardin.com

State Bar No. 24092541 Email: ccochran@rustyhardin.com

Email: adrumheller@rustyhardin.com

Attorneys for Appellee Craig Doyal Email: nhoward@rustyhardin.com

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

The parties and counsel listed below are involved in this matter.

Appellant:

The State of Texas

Appellee:

Craig Doyal

Counsel for Appellant:

Chris Downey

The Downey Law Firm

2814 Hamilton Street

Houston, Texas 77004

David Cunningham

2814 Hamilton Street

Houston, Texas 77004

Joseph R. Larsen

Sedgwick, LLP

1200 Smith Street

Houston, Texas 77002

Counsel for Appellee:

Rusty Hardin

Cathy Cochran

Andy Drumheller

Naomi Howard

RUSTY HARDIN & ASSOCIATES, LLP

5 Houston Center

1401 McKinney, Suite 2250

Houston, Texas 77010

ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ............................................. ix

ISSUES PRESENTED...............................................................................................x

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT .............................................................................................................5

I.  Because Section 551.143 is a content-based law that restricts

speech, it is (1) presumed unconstitutional and (2) subject to

strict scrutiny. ........................................................................................5

A.  The Standard of Review: “Strict scrutiny” applies to all

content-based statutes restricting speech. ...................................5

B.  Section 551.143 is a content-based regulation of speech. ..........8

1. Attorney General Opinion GA-0326 (2005) rewrote

Section 551.143. ...............................................................8

2. Section 551.143 restricts “secret deliberations.” ............11

3. A statute that singles out and regulates speech of a

specific subject matter is a content-based limitation

of speech, subject to strict scrutiny.................................12

a. Reed v. Town of Gilbert clarified that Section

551.143 is a content-based regulation. .................12

b. Reed abrogated Asgeirsson v. Abbott. ..................15

c. The State claims that Reed, McCullen, and

Asgeirsson have been analyzed by a Texas

federal court. .........................................................17

C.  Post-Reed, courts nationwide have invalidated numerous

content-based laws regulating speech. ......................................20

D.  Even before Reed, laws restricting political speech were

especially likely to be found unconstitutional. .........................23

iii

II.  The State has not shown that Section 551.143 passes strict

scrutiny. ...............................................................................................26

A.  The State has failed to prove that Section 551.143 serves a

compelling need that is not already met by other TOMA

provisions. .................................................................................26

1. TOMA addresses important, but not compelling,

governmental interests. ...................................................27

B.  The State has failed to prove that Section 551.143 is

narrowly tailored. ......................................................................31

1. Section 551.143 has the demonstrated effect of

chilling public officials’ free speech. .............................34

C.  Section 551.143 is unconstitutionally vague as well as

overbroad. .................................................................................37

III.  Section 551.143 does not pass even intermediate scrutiny. ................41

PRAYER ..................................................................................................................45

CERTIFICATE OF SERVICE ................................................................................46

CERTIFICATE OF COMPLIANCE .......................................................................47

APPENDIX

Defendant Craig Doyal’s Motion to Dismiss the Indictment ............................Tab A

iv

INDEX OF AUTHORITIES

Cases

Asgeirsson v. Abbott 696 F.3d 454 (5th Cir. 2012) ......................................... passim

Auspro Enterprises, LP v. Texas Dept. of Transp.

506 S.W.3d 688 (Tex. App.—Austin 2016, pet. filed) .................................20

Burrage v. United States

134 S.Ct. 881 (2014)......................................................................................10

Cahaly v. Larosa

796 F.3d 399 (4th Cir. 2015) .........................................................................22

Champion v. Commonwealth

2017 WL 636420, __ S.W.3d ___ (Ky. Feb. 16, 2017) ................................21

Citizens United v. Federal Election Commission

130 S.Ct. 876 (2010)......................................................................................16

Defense Distributed v. U.S. Dept. of State

121 F.Supp.3d 680 (W.D. Tex. 2015) ...........................................................17

Defense Distributed v. U.S. Dept. of State

2017 WL1032309 (5th Cir., Mar. 15, 2017) .................................................19

Defense Distributed v. U.S. Dept. of State

838 F.3d 451 (5th Cir. 2016) .........................................................................18

Draego v. City of Charlotteville,Va.

2016 WL 6834025 (W.D. Va. 2016) .............................................................25

Esperanza Peace and Justice Center v. City of San Antonio

316 F.Supp.2d 433 (W.D. Tex. 2001) .................................................... 32, 33

Ex parte Lo

424 S.W.3d 10 (Tex. Crim. App. 2013) ................................................ passim

Ex parte Perry

483 S.W.3d 884 (Tex. Crim. App. 2016) ........................................... 6, 23, 25

Ex parte Thompson

442 S.W.3d 325 (Tex. Crim. App. 2014) ................................................. 6, 23

Florida State Bar v. B.J.F.

491 U.S. 524 (1989).......................................................................................28

v

Grayned v. Rockford

408 U.S. 104 (1972).......................................................................................37

In re Texas Senate

36 S.W.3d 119 (Tex. 2000) ...........................................................................28

Ind. Civil Liberties Union v. Ind. Sec’y of State

No. 1:15-CV-01356-SEB-DML (D. Ind. 2015) ............................................22

Jenevein v. Willing

493 F.3d 551 (5th Cir. 2007) .........................................................................24

Long v. State

931 S.W.2d 285 (Tex. Crim. App. 1996) ............................................... 23, 37

Mabry v. Union Parish School Board

974 So.2d 787 (La. App. 2014) .....................................................................10

Manzi v. State

88 S.W.3d 240 (Tex. Crim. App. 2002) ..........................................................3

Matal v. Tam

2017 WL 2621315 (June 19, 2017) .................................................... 5, 41, 42

Mays v. State

476 S.W.3d 454 (Tex. Crim. App. 2015) ........................................................3

McIntyre v. Ohio Elections Comm’n

514 U.S. 334 (1995).......................................................................................24

Mnyofu v. Board of Education of Rich Township High School Dist. 227

2016 Westlaw 13197336 (N.D. Ill. 2016) .....................................................25

Norton v. City of Springfield

768 F.3d 713 (7th Cir. 2014) .........................................................................21

Norton v. City of Springfield

806 F.3d 411 (7th Cir. 2015) .........................................................................21

Packingham v. North Carolina

2017 WL 2621313 (June 19, 2017) .......................................................... 5, 41

Penrod Drilling Corp. v. Williams

868 S.W.2d 294 (Tex. 1993) .........................................................................17

Police Dept. of Chicago v. Mosley

408 U.S. 92 (1972).........................................................................................15

vi

Rangra v. Brown

566 F.3d 515 (5th Cir. 2009) .........................................................................17

Reed v. Town of Gilbert

135 S.Ct. 2218 (2015)............................................................................ passim

Renton v. Playtime Theatres, Inc.

475 U.S. 41 (1986).........................................................................................17

Republican Party of Minnesota v. White

536 U.S. 765 (2002).......................................................................................24

Rideout v. Gardner

123 F. Supp. 3d 218 (D.N.H. 2015) ..............................................................22

Rosemond v. Markham

135 F.Supp.3d 574 (E.D. Ky. 2015) ..............................................................23

Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.

502 U.S. 105 (1991).......................................................................................32

Skilling v. United States

561 U. S. 358 (2010) .......................................................................................9

State v. Bishop

787 S.E.2d 814 (N.C. 2016) ..........................................................................22

Susan B. Anthony List v. Driehaus

814 F.3d 466 (6th Cir. 2016) .........................................................................24

Thomas v. Schroer

2017 WL 1208672 (W.D. Tex. March 31, 2017) ..........................................20

Turner Broadcasting Sys., Inc. v. FCC

512 U.S. 622 (1994).........................................................................................7

United States v. Bass

404 U. S. 336 (1971) .....................................................................................10

United States v. Salerno

481 U.S. 739 (1987).........................................................................................6

Ward v. Rock Against Racism

491 U.S. 781 (1989).................................................................................. 7, 17

Washington State Grange v. Washington State Republican Party

552 U.S. 442 (2008).........................................................................................6

vii

Washington v. Glucksberg

521 U.S. 702 (1997).........................................................................................6

Working America, Inc. v. City of Bloomington

142 F.Supp.3d 823 (D. Minn. 2015) .............................................................22

Other Authorities

Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict

Scrutiny, 59 VANDERBILT L. REV. 793 (2006).................................................7

C. Robert Heath & Emily Willms Rogers, Did the Attorney General Shine Light on

the Confusion in Texas’ Sunshine Law? Interpreting Open Meetings Act

Provision § 551.143, 7 TEX. TECH. ADMIN. L.J. 97, 99 (2006) ................ 8, 31

Carlos Doroteo, The Texas Open Meetings Act: An Old-Fashioned, Wild-West,

First Amendment Shoot-Out, 56 S. TEX. L. REV. 675, 708 (2015)..................9

Devon Helfmeyer, Do Public Officials Leave Their Constitutional Rights at the

Ballot Box? A commentary on the Texas Open Meetings Act, 15 TEX. J.

CIVIL LIB. & CIVIL RIGHTS 205, 227-28 (2010) ..................................... 29, 30

Hugh Hansen, Symposium: Most Important Free Speech Case in Many Years;

http://www.scotusblog.com/2017/06/symposium-important-free-speech-

case-many-years/ ...........................................................................................42

Sam Kinch, Sharpstown Stock-Fraud Scandal, The Handbook of Texas Online .....9

Scott Houston, Texas Open Meetings Act: Constitutional?, 13 TEX. TECH. ADMIN.

L.J. 79, 100 (2011)...........................................................................................8

viii

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is essential to the full development of the constitutional issue

in this case of first impression in the United States. Although all fifty states have

open meeting laws, no jurisdiction has a criminal conspiracy statute like Section

551.143, and apparently there has never been a successful criminal conviction for a

“walking quorum” or “daisy chain” violation of an open meetings law. This is an

issue of grave practical importance to Texas officials subject to the Texas Open

Meetings Act (TOMA).

ix

ISSUES PRESENTED

I. Because Section 551.143 is a content-based law that restricts speech, it is (1)

presumed unconstitutional and (2) subject to strict scrutiny.

II. The State has not shown that Section 551.143 passes strict scrutiny.

III. Section 551.143 does not pass even intermediate scrutiny under the Supreme

Court’s most recent cases.

x

STATEMENT OF FACTS

In 2015, Montgomery County was choking with traffic. Residents were

demanding road relief from county commissioners. Despite public outcry, a road

bond proposal on the May 2015 ballot failed to pass, in part, because the Texas

Patriots PAC, a local Tea Party group, actively campaigned against it. The

commissioners continued to hear complaints about traffic, but were reluctant to

risk another road bond ballot defeat. In August 2015, the PAC indicated they

would be willing to support a road bond package if their fiscal concerns were

addressed. Representatives of the PAC requested a meeting with County Judge

Doyal. Facilitated by Marc Davenport, Judge Doyal and Commissioner Riley met

with the PAC to hear proposals for reconsidering a road bond proposal. After the

meeting, the PAC, Judge Doyal, and Commissioner Riley held a press conference

announcing the results of the meeting, and Judge Doyal announced that he was

placing a revised road bond on the agenda for consideration by the full

Commissioners’ Court. After discussion and public comment, the Commissioners’

Court voted unanimously to put a new road bond on the November ballot. Two

months later, voters passed the road bond by 60%, whereas the May proposal had

failed by 60%.1

1

See Appendix A, Motion to Dismiss, pp. 4-6 for additional background facts.

1

The State filed criminal charges against Montgomery County Judge Craig

Doyal, Commissioners Charley Riley and Jim Clark, and Marc Davenport, a

political consultant, for purportedly conspiring to violate the Texas Open Meetings

Act (TOMA).

After an evidentiary hearing, the trial judge granted Judge Doyal’s Motion to

Dismiss because Government Code, Section 551.143, violated the Free-Speech

Clause of the First Amendment.

Judge Doyal agrees with the State that whether Section 551.143 passes

constitutional muster is a question of law, not a question of fact. The hearing on

the motion to dismiss gave the State an opportunity to present evidence to prove

that this penal law served a compelling governmental need and was narrowly

tailored to serve only that compelling need. Judge Doyal and his fellow defendants

offered evidence that the statute is both overbroad (covers too much protected

speech) and under-inclusive (does not cover the most important public officials)

and was unconstitutionally vague.

In the interest of brevity, the witnesses’ testimony is referred to only at

relevant points in this brief.2

2

To the extent that the legal issues are supported by witnesses’ testimony or credibility

assessments, appellate courts defer to the trial judge who, as Johnny-on-the-Spot, is best

situated to make those judgments. Thus, all facts are viewed in the light most favorable to the

2

SUMMARY OF THE ARGUMENT

The purpose of the Texas Open Meetings Act (TOMA) is to increase

governmental transparency, discourage fraud and corruption, and decrease public

mistrust of government. Judge Doyal respects and embraces transparency in

governmental affairs. He does not challenge TOMA as a “sunshine” statutory

scheme to ensure openness.

However, one single conspiracy statute within that Act—Section 551.143—

is unconstitutionally overbroad and vague. It is a content-based regulation of

speech which restricts “secret deliberations,” i.e. speech, about “public business”

by public officials gathering in less than a quorum outside of a properly posted

open meeting. It acts as a blunderbuss when a stiletto is needed. By its vagueness

and breadth, it “chills” the free speech rights of public officials.

As a content-based law that restricts speech, Section 551.143 is presumed

unconstitutional and is subject to strict scrutiny. Under Reed v. Town of Gilbert,

135 S.Ct. 2218 (2015), the Supreme Court’s most recent relevant case, a law

regulating speech is “content-based” if that law “applies to particular speech

because of the topic discussed or the idea or message expressed.” Id. at 2227. As

the Court of Criminal Appeals has explained, “[i]f it is necessary to look at the

party prevailing in the trial court. See Mays v. State, 476 S.W.3d 454, 459 (Tex. Crim. App.

2015); Manzi v. State, 88 S.W.3d 240, 254 (Tex. Crim. App. 2002) (Cochran. J, concurring).

3

content of the speech to decide if the speaker violated the law, then the regulation

is content-based.” Ex parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013).

Section 551.143 is a content-based statute because one must know what

public officials are saying when they gather in less than a quorum. If they are

talking about “public business” or “an issue within the jurisdiction of the

governmental body,” then Section 551.143 applies. If they are talking about

baseball or the weather, then Section 551.143 does not apply.

The State has failed to show that Section 551.143 passes strict scrutiny. It

has failed to show that this specific statute (as opposed to TOMA as a general

scheme) (1) serves a compelling governmental interest; (2) is necessary to protect

that interest which cannot be adequately protected by other means, and (3) is

narrowly tailored to serve only that compelling interest, i.e., that it does not

prohibit more speech than is necessary.

The State relies almost exclusively upon a pre-Reed Fifth Circuit case,

Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012), in arguing that Section 551.143

is a “content-neutral” law subject to intermediate scrutiny.

First, Asgeirsson was abrogated by Reed, which contradicted its premise and

reasoning.

4

Second, this court need not follow Fifth Circuit cases, but it must follow the

precedent of the Supreme Court and the Court of Criminal Appeals.

Third, even if Asgeirsson were still good law and the controlling precedent,

the most recent Supreme Court cases, Packingham v. North Carolina, 2017 WL

2621313 (June 19, 2017), and Matal v. Tam, 2017 WL 2621315 (June 19, 2017),

show that Section 551.143 does not pass constitutional muster even under

intermediate scrutiny.

Fourth, and most important, Asgeirsson dealt with Section 551.144, which is

a simple, clear statute: Public officials–look around you; if there’s a quorum, you

must conduct a properly posted open meeting under TOMA. Section 155.143, on

the other hand, is so vague that experts call it “gibberish” and are confused about

its meaning and application.

ARGUMENT

I. Because Section 551.143 is a content-based law that restricts speech, it is

(1) presumed unconstitutional and (2) subject to strict scrutiny.

A. The Standard of Review: “Strict scrutiny” applies to all content-

based statutes restricting speech.

Appellate courts review de novo whether a statute is facially constitutional.

Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When someone attacks

the constitutionality of a statute, courts usually begin with the presumption that the

statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id.

5

at 15. Normally, the burden rests on the person challenging the law to establish its

unconstitutionality. Id. But when the State seeks to restrict or punish speech based

on its content, that usual presumption is reversed. Id.3

Content-based regulations are presumptively invalid, and the State must

rebut that presumption. Id.4 Courts apply the "most exacting scrutiny to

3

The State argues that the Supreme Court disfavors facial challenges and quotes Washington

State Grange v. Washington State Republican Party, 552 U.S. 442, 450-51 (2008). That case

involved a lawsuit filed immediately after Washington enacted a “modified blanket primary”

system in which candidates could express their political party preference on the ballot

regardless of whether the party approved of them. The parties filed suit, claiming that this

system violated their First Amendment rights of free association because voters would think

the candidates were supported by the political party. Unfortunately, they did not wait to see

whether voters really were confused. It was all speculation because the law had not yet been

applied to any elections. There was no live controversy and no risk yet to either a candidate or

a political party.

Here, however, there certainly is a case and controversy and grave risk. County Judge Doyal

and Commissioner Riley were charged with committing a crime under Section 551.143 and are

positioned, as were John Lo and Ronald Thompson, to mount a pretrial facial challenge to its

constitutionality under the First Amendment. Ex parte Lo,424 S.W.3d at 14; Ex parte

Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial challenge to the

constitutionality of a criminal statute is best made before trial so that the defendant, if he

prevails, need not endure the extravagant time, expense, and anxiety that any such criminal

trial entails, when the ultimate outcome is a matter of law, not fact. See Ex parte Perry, 483

S.W.3d 884, 902 (Tex. Crim. App. 2016) (facial challenge to penal statute on First Amendment

grounds may be made–and appealed–pretrial).

4

The State has mistakenly relied on cases that do not deal with the Free Speech Clause in stating

that one who makes a facial challenge to a law “must show ‘that no set of circumstances exists

under which [the statute] would be valid’” or that the statute lacks any “plainly legitimate

sweep.” Appellant’s Brief at 22 and 30. Those cases, United States v. Salerno, 481 U.S. 739,

745 (1987) (finding that Bail Reform Act which authorized pretrial detention was not facially

unconstitutional under the Eight Amendment), and Washington v. Glucksberg, 521 U.S. 702,

740, n. 7 (1997) (holding that Washington’s ban on assisted suicide was rationally related to

legitimate government interests), are irrelevant to a discussion of constitutionality under the

First Amendment, which has its own jurisprudence and standards. See Ex parte Perry, 483

6

regulations that suppress, disadvantage, or impose differential burdens upon speech

because of its content." Id. (quoting Turner Broadcasting Sys., Inc. v. FCC, 512

U.S. 622, 642 (1994)).

To satisfy the strict-scrutiny standard, a law that regulates speech must be

(1) necessary to serve a compelling state interest and (2) narrowly drawn. Ex parte

Lo, 424 S.W.3d at 15. “A law is narrowly drawn if it employs the least restrictive

means to achieve its goal and if there is a close nexus between the government's

compelling interest and the restriction.” Id.5

But if a less restrictive means of serving the compelling interest could be as

effective in achieving the legitimate purpose of the statute, then the law in question

does not satisfy strict scrutiny. Id. Given this test, “It is the rare case in which a

speech restriction withstands strict scrutiny.” Reed v. Town of Gilbert, 135 S.Ct.

2218, 2236 (2015). (Kagan, J., concurring) (citations and quotations omitted).6

S.W.3d at 902-03 (“Under the First Amendment's “overbreadth” doctrine, a law may be

declared unconstitutional on its face, even if it might have some legitimate applications.”).

5

Regulations that are content-neutral, i.e. that regulate speech without regard to its content, are

subject to a less exacting “intermediate scrutiny” which requires that the challenged law not be

“substantially broader than necessary” to achieve the government’s important interest. Ward v.

Rock Against Racism, 491 U.S. 781, 799-800 (1989).

6

Colloquially, “strict in theory, fatal in fact.” According to one source, seventy percent of all

laws subject to strict scrutiny in federal courts are struck down, while seventy-eight percent of

challenged laws affecting speech are struck down. Adam Winkler, Fatal in Theory and Strict

in Fact: An Empirical Analysis of Strict Scrutiny, 59 VANDERBILT L. REV. 793 (2006).

7

B. Section 551.143 is a content-based regulation of speech.

Section 551.143(a) states:

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 by

meeting in numbers less than a quorum for the purpose of

secret deliberations in violation of this chapter.

On its face, this statute does not make sense. According to one expert

witness, the statute is “gibberish.” (RR2 at 40). Gathering in numbers of less than

a quorum does not violate a statute that requires a quorum to meet in open session.

You either have a quorum or you don’t; with the former you have open meetings,

with the latter, you have informal discussions.

1. Attorney General Opinion GA-0326 (2005) rewrote Section

551.143.

From its enactment in 1973, courts, commentators, experts, and (most

importantly) public officials who try to obey this criminal law have been

confused.7 So confused, that in 2004 (some thirty years after it had originally been

7

See generally, C. Robert Heath & Emily Willms Rogers, Did the Attorney General Shine Light

on the Confusion in Texas’ Sunshine Law? Interpreting Open Meetings Act Provision §

551.143, 7 TEX. TECH. ADMIN. L.J. 97, 99 (2006) (“Despite these attempts at clarification” by

courts and attorney general opinions “confusion persists, and local officials desiring to steer

clear of violating the Act look for a bright-line rule that clearly defines when discussions

among members of a governing body outside a formal public meeting are permissible and

when they are not.”); Scott Houston, Texas Open Meetings Act: Constitutional?, 13 TEX. TECH.

ADMIN. L.J. 79, 100 (2011) (“Even with vast knowledge of the act [TOMA], practitioners still

have trouble advising clients. Many elected officials ask if they can talk about public business

with other members of the governmental body outside of a properly posted meeting.

8

enacted but apparently never used in the criminal context)8 Tom Maness, the long-

time Jefferson County District Attorney, requested an Attorney General opinion

about it. He “had significant doubt as to the constitutionality of the statute,” there

was “significant disagreement” as to its intended meaning, and he was concerned

that it was “void for vagueness.”9

The Attorney General basically rewrote the statute to prohibit:

A member or members of a governmental body who

knowingly conspire to circumvent [TOMA] by gathering

in numbers that do not physically constitute a quorum at

any one time but who through successive gatherings

create a quorum of that body for the purpose of secret

deliberations in violation of [TOMA].10

Generally, the answer is no.”); Carlos Doroteo, The Texas Open Meetings Act: An Old-

Fashioned, Wild-West, First Amendment Shoot-Out, 56 S. TEX. L. REV. 675, 708 (2015) (“The

sheer complexity and confusion arising out of this real world event [the Port of Houston board

member fight] provides a strong case that TOMA is overbroad and vague, since it is difficult to

discern when exactly the law has been broken.”).

8

Section 551.143 was added to the original 1967 Open Meetings Act in 1973, after the 1971

Sharpstown stock-fraud scandal. Sam Kinch, Sharpstown Stock-Fraud Scandal, The

Handbook of Texas Online. In 1993, the Open Meetings Act was codified in chapter 551 of

the Texas Government Code.

9

https://texasattorneygeneral.gov/opinions/opinions/50abbott/rq/2004/pdf/RQ0291GAf

10

As one expert witness testified, the only way for Section 551.143 to mean what the AG’s

opinion says it means is to invent a lot of new words and put them in the statute (RR2 at 56).

But an AG opinion cannot add new words or new definitions to a penal statute–a law that must

be strictly construed and whose provisions are interpreted under the Rule of Lenity to favor the

defendant, not the State.

It is a “familiar principle that ‘ambiguity’ in the ambit of criminal statutes should be resolved

in favor of lenity.” Skilling v. United States, 561 U. S. 358, 410 (2010). That principle

prevents courts from giving the words of a criminal statute “a meaning that is different from

9

We are told by Attorney General Opinion GA-0326 (2005) that the purpose of

Section 551.143 is to prevent and punish a “walking quorum” or “daisy chain”

secret deliberation. Id. at *2. This occurs, according to the Attorney General, when

members conspire to commit a criminal offense by having secret deliberations

through serial communications with each other until a quorum is reached. Id. Of

course, that is not what the law actually says.11 The Attorney General simply

found that construction “discernible” from his own reading. Id.12

[their] ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United

States, 134 S.Ct. 881, 891 (2014). And it means that when a criminal statute has two possible

readings, courts do not “‘choose the harsher alternative’” unless the legislature has “‘spoken in

language that is clear and definite.’” United States v. Bass, 404 U. S. 336, 347–349 (1971).

11

A Kansas civil statute does say what the Attorney General argues that Section 551.143 meant

to say. See Appendix A, Motion to Dismiss, fn. 8.

12

According to a 1990 Louisiana Attorney General Opinion, “a ‘walking quorum’ is a meeting

of a public body where different members leave the meeting and different members enter the

meeting so that while an actual quorum is never physically present an actual quorum during the

course of the meeting participates in the discussion.” Mabry v. Union Parish School Board,

974 So.2d 787, 789 (La. App. 2014) (quoting Op. Atty. Gen. No. 90-349, July 26, 1990). The

Mabry court held that the “casual telephone encounters where several board members

individually and separately discussed the situation” concerning an employment contract would

have “to reach a much more structured level with secretive binding force on at least a quorum

of the membership before the Open Meetings Act would be implicated.” Id. The court

explained:

[W]e find that the informal exchange of ideas and opinions preliminary to a

meeting of elected officials is important for the issues of agenda setting and

compromise that make a deliberative body function efficiently. For one member

to have a phone conversation with another, wherein opinions and thoughts on a

topic are expressed, does not mean or create a presumption that those parties’

views will be fixed in stone in solidarity before the public meeting.

10

2. Section 551.143 restricts “secret deliberations.”

The State has not cited a single case from Texas or any other jurisdiction

involving a successful criminal conviction under Section 551.143 or for having a

“walking quorum” deliberation, and Judge Doyal is unable to find such a case in

any of the 50 states that have Open Meetings laws.13

Nonetheless, Judge Doyal assumes that what the Legislature intended to

prohibit and punish in Section 551.143 is some sort of “secret deliberation.” A

“deliberation” is defined as “a verbal exchange during a meeting between a

quorum of a governmental body, or between a quorum of a governmental body and

another person, concerning an issue within the jurisdiction of the governmental

body or any public business.” Section 551.001(2). Therefore, the law, on its face,

prohibits and punishes certain “verbal exchanges,” i.e., speech. Of course, Section

551.143 directly contradicts the statutory definition of “deliberation” which

requires a quorum, but Section 551.143 makes it a crime for “deliberations” by less

than a quorum of members. Those two statutes are impossible to reconcile. So

Id. at 790. Louisiana courts construe their open-meetings law in a common-sense manner to

provide both openness for the public and sufficient means for public officials to obtain

information and exchange views on public business.

13

See Appendix A, Motion to Dismiss, fns. 2& 3 for an explanation of the Westlaw searches.

11

even beyond the First Amendment problems, the statute is unenforceable as self-

contradictory “gibberish.” It is a classic oxymoron.

But putting aside unenforceability, the next question is whether that speech

restriction is content-based. It is.

3. A statute that singles out and regulates speech of a specific

subject matter is a content-based limitation of speech,

subject to strict scrutiny.

a. Reed v. Town of Gilbert clarified that Section 551.143

is a content-based regulation.

The United States Supreme Court recently reiterated that “content-based”

regulations of speech are subject to strict scrutiny. Reed v. Town of Gilbert, 135

S.Ct. 2218 (2015).14 And, unremarkably, the Supreme Court explained that a law

14

Reed involved a town’s sign code which divided signs that do not need city permits into three

categories: “ideological” (signs “communicating a non-commercial message or ideas”),

“political,” and “temporary directional signs relating to a qualifying event.” 135 S.Ct. at 2224.

These categories are “based on the type of information they convey.” Id. And the code

imposes more stringent restrictions on temporary directional signs than the other two types. Id.

at 2225.

A small, cash-strapped church that held services “catch-as-catch-can” at various town locations

sued because the law governing their “temporary directional signs” was more restrictive in

time, place, and manner than the other two sign categories. Although lower courts admitted

that a police officer had to read the church’s sign before he knew whether it fell into the third

category, they called the law “content-neutral” by saying that the town’s “interests in

regulating temporary signs are unrelated to the content of the sign.” Id. at 2226.

The Supreme Court in essence said, “So what?” The law, on its face, is content-based,

regardless of (1) the legitimate reasons for enacting it, (2) whether it singles out one particular

idea or viewpoint for differential treatment, or (3) whether that law seems a “reasonable” time,

place, and manner regulation. Id. at 2227-30. If you need to know the content of the speech or

sign to know if the particular law applies–Stop. That’s enough. The law is content-based and

12

regulating speech is “content-based,” if that law “applies to particular speech

because of the topic discussed or the idea or message expressed.” Id. at 2227.

That is, does one need to know what was said before deciding the law

applies to that “verbal exchange”? If yes, then the law is content-based on its

face.15 For example, suppose two council members are standing in the City Hall

rotunda, talking, gesturing, and putting their heads together, then one leaves and a

third council member approaches and begins to talk to the first. Does Section

551.143 apply to their “verbal exchanges”?16 We don’t know until we hear what

they were discussing—maybe the weather (or a baseball game) or maybe a road

bond (or traffic lights).

Section 551.143 applies only to “verbal exchanges” about “an issue within

the jurisdiction of the governmental body or any public business.” Section

subject to strict scrutiny. Id. (“Because the Town’s Sign Code imposes content-based

restrictions on speech, those provisions can stand only if they survive strict scrutiny”).

15

In Reed, the Supreme Court explained that a law may be content-based in either of two ways:

(1) facially by regulating speech by its topic or subject or (2) inferentially when the

government’s purpose or justification for enacting the law depends on the underlying idea or

message expressed. That is, the law is facially neutral, but the motives or purpose in enacting

it were content-based. 135 S.Ct. at 2228. Because Section 551.143 is content-based on its

face, we need not address the second prong, just as the Reed Court did not need to address that

second, inferential, prong.

16

The right question for the constitutional inquiry is whether the statute applies at all, not

whether this evidence is sufficient to show that they have conspired to commit an offense

under Section 551.143.

13

551.001(2). The applicability of Section 551.143, therefore, depends on the

subject or topic of the conversation. If the topic is “public business” (whatever that

is) or “any issue within the jurisdiction” of the city council, then Section 551.143

regulates and limits that speech. It is a classic, straight-forward example of a

content-based statute.17 See Reed, 135 S.Ct. at 2227 (noting that “[s]ome facial

distinctions based on a message are obvious, defining regulated speech by

particular subject matter”);18 see also Ex parte Lo, 242 S.W.3d at 15, n.12.

One must look at the content of a member’s “verbal expression” to decide

whether Section 551.143 applies to gatherings of less-than-a-quorum; therefore,

under Reed and Lo, it is a content-based regulation of speech, and it is subject to

strict scrutiny.

17

For example, a law that prohibits one from giving any speech at Hyde Park Corner between

midnight and 6:00 a.m. is a neutral time, place, and manner restriction. However, a law that

prohibits anyone (or just a public official) from giving a speech about “public business”

between midnight and 6:00 a.m. is a content-based statute subject to strict scrutiny, even

though it might also be a reasonable time, place, and manner restriction.

18

Even when a regulation does not address content on its face, it is considered content-based if it

cannot be “justified without reference to the content of the regulated speech.” Reed, 135 S.Ct.

at 2227.

14

b. Reed abrogated Asgeirsson v. Abbott.

Reed has caused heartburn in courts across America because it reiterated19

that if a law regulating speech is content-based, then strict scrutiny applies. Period.

The Supreme Court explained that over the years this simple, common-sense

doctrine had been muddied by courts suggesting that content-based regulations

weren’t subject to strict scrutiny if, for example, “the purpose and justification for

the law are neutral.” Id. at 2228 (“A law that is content based on its face is subject

to strict scrutiny regardless of the government’s benign motive, content-neutral

justification, or lack of ‘animus toward the ideas contained’ in the regulated

speech.”).

That is what led the Fifth Circuit astray in Asgeirsson v. Abbott, 696 F.3d

454 (5th Cir. 2012), when it upheld TOMA as a “content-neutral” scheme.

Asgeirsson was decided three years before Reed clarified that strict scrutiny applies

to all content-based laws affecting speech.20 The Fifth Circuit stated,

19

In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972), the Supreme Court invalidated a

picketing statute because it prohibited picketing within 150 feet of schools, except for

picketing that involved labor disputes. That was a content-based regulation in which

application of the law depended on whether the picketing in question dealt with the subject of

labor disputes. It was an improper content-based regulation of speech. Id. Reed is not new

law, it is old law, Mosley, reaffirmed.

20

See Appendix A, Motion to Dismiss, pp. 9-14, for a history of “The Alpine case” and

Asgeirsson.

15

A regulation is not content-based, however, merely

because the applicability of the regulation depends on the

content of the speech. A statute that appears content-

based on its face may still be deemed content-neutral if it

is justified without regard to the content of its speech.

Id. at 460.21 “No, no, no,” said the Supreme Court in Reed. If the applicability of

the law depends on the content of the speech, it is content-based and strict scrutiny

applies. Period. End of story.

21

The Fifth Circuit suggested that TOMA is a “disclosure” law just like the political campaign-

reporting requirements discussed in Citizens United v. Federal Election Commission, 130 S.Ct.

876 (2010). A “disclosure” law is one that opens up and reveals past events. For example,

campaign contributions must be “disclosed” or made public after the recipient accepts them. Id.

at 914. We “disclose” something after it has occurred.

Similarly, the Texas Public Information Act (Texas Open Records Act), Tex. Gov’t Code

chapter 552, is a “disclosure” act requiring that all governmental bodies (the same bodies that

are required to hold open meetings) make the records of their prior activities and decisions

open to the public upon request. For example, any public citizen or newspaper reporter may

request a copy of all emails, phone logs, or minutes by commissioners that are kept by the

county government concerning a specific topic. Although certain sections of TOMA might be

considered “disclosure” statutes, e.g., the posting of an agenda to “disclose” to the public what

topics had been decided upon for discussion at an open meeting, Section 551.143 is certainly

not a “disclosure” law, it is a “regulation of speech” law. (RR3 at 27-28; explaining that

Citizens United is a disclosure statute, as are the time, place, and manner rules concerning a

governmental meeting, but Section 551.143 is a “prohibition” statute, so Citizens United is

inapplicable to it). It is the Open Records Act that is analogous to Citizen’s United, not Section

551.143.

As the experienced trial judge noted at the hearing, if Section 551.143 were deemed a

“disclosure” law, then any violation would presumably be cured if the officials disclosed and

reaffirmed their prior discussions and decisions in a regularly posted open meeting (RR2 at

158-159). How could it still be a crime if public disclosure cured the violation?

Of course, the main focus in Citizens United was striking down, on First Amendment grounds,

a statute that was “an outright ban, backed by criminal sanctions” restricting corporate political

donations made close to the time of an election as a violation of free-speech rights.” Id. at 888-

89. Section 551.143. The same type of ban is at issue in Section 551.143.

16

The Fifth Circuit in Asgeirsson, like the Ninth Circuit in Reed, mistakenly

thought that even if a statute was content-based on its face, other justifications

could save it from strict scrutiny.22 But now the Fifth Circuit, like the Ninth

Circuit, this court, and the Court of Criminal Appeals (which had predicted the

Reed holding in its 2013 Ex parte Lo decision),23 must, under the Supremacy

Clause, follow the United States Supreme Court.24

c. The State claims that Reed, McCullen, and Asgeirsson

have been analyzed by a Texas federal court.

The State in its brief cites Defense Distributed v. U.S. Dept. of State, 121

F.Supp.3d 680 (W.D. Tex. 2015), a federal district court case, as support for its

22

In all fairness, the Supreme Court may have led courts astray in such cases as Ward v. Rock

Against Racism, 491 U.S. 781, 799-800 (1989) (noting that “[t]he principal inquiry in

determining content neutrality, in speech cases generally and in time, place, or manner cases in

particular, is whether the government has adopted a regulation of speech because of

disagreement with the message it conveys”), and Renton v. Playtime Theatres, Inc., 475 U.S.

41, 47-48 (1986) (upholding a zoning ordinance and suggesting that, in some instances, a law

that appears content-based on its face might still be deemed content-neutral if it were justified

without regard to the content of the speech such as “secondary effects”). But as the Supreme

Court explained as it distinguished Ward in Reed, “an innocuous justification cannot transform

a facially content-based law into one that is content-neutral.” 135 S.Ct. at 2228.

23

The Fifth Circuit itself had accurately predicted the Reed result and reasoning in Rangra, its

first TOMA decision. Rangra v. Brown, 566 F.3d 515, 521 (5th Cir. 2009) (“A speech

regulation is content-based if it defines the regulated speech by reference to its content”;

agreeing that the criminal provisions of TOMA are “content-based regulations that require the

state to satisfy the strict-scrutiny test in order to uphold them.”). Reed resurrected Rangra and

abrogated Asgeirsson. See Appendix A, Motion to Dismiss, pp. 9-14.

24

See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (Texas courts “are

obligated to follow only higher Texas courts and the United States Supreme Court.”).

17

contention that Asgeirsson is still valid after Reed. Appellant’s Brief at 38-39. The

State claims that Reed, McCullen, and Asgeirsson were all analyzed by the district

court when it denied injunctive relief based on, among other factors, the substantial

likelihood of the plaintiff’s First Amendment claim succeeding on the merits.

While the district court made such an analysis, the Fifth Circuit did not approve it.

Defense Distributed v. U.S. Dept. of State, 838 F.3d 451 (5th Cir. 2016). The

majority of the three-judge panel of the Fifth Circuit in its review of the district

court’s denial of injunctive relief expressly declined to address the First

Amendment.25 The panel focused instead on the balancing of harm test for

granting injunctive relief.

However, Judge Edith Jones declared, “I dissent from this court’s failure to

treat the issues raised before us with the seriousness that direct abridgments of free

speech demand.” Id. at 461 (Jones, J., dissenting). She explained exactly how the

25

The Fifth Circuit majority asserts three times that its opinion in Defense Distributed v. U.S.

Dept. of State, 838 F.3d 451 (5th Cir. 2016), does not address the merits of the First

Amendment claims made by the plaintiffs who were seeking injunctive relief:

 “[W]e decline to address the merits requirement.” Id. at 458.

 “We therefore affirm the district court’s denial and decline to reach the question of

whether Plaintiff-Appellants have demonstrated a substantial likelihood of success on

the merits [of their First Amendment claim].” Id. at 460.

 “These are difficult questions, and we take no position on the ultimate outcome other

than to agree with the district court that it is not yet the time to address the merits [of

the First Amendment claim].” Id. at 461.

18

U.S. State Department violated Defense Distributed’s First Amendment rights and

chastised the district court for its analysis: “The district court, moreover, clearly

erred in gauging the level of constitutional protection to which this speech is

entitled: intermediate scrutiny is inappropriate for the content-based restriction at

issue here. (Why the majority is unwilling to correct this obvious error for the sake

of the lower court’s getting it right on remand is a mystery).” Id. at 463.

While the majority opinion shed no light on whether Asgeirsson was still

valid law—the case wasn’t mentioned once—the dissent made the proper analysis

of speech regulations and looked at many of the same issues present in this case:

plain meaning of the statute, whether the statute regulates speech, and the proper

constitutional analysis.

The State cannot claim that its reliance on Asgeirsson and intermediate

scrutiny would survive Fifth Circuit review post-Reed. Not only did Judge Jones

reject use of Asgeirsson and intermediate scrutiny for content-based speech

regulations, but four other Fifth Circuit judges believed that Defense Distributed

should have been granted en banc rehearing and the merits of the First Amendment

claim addressed. Defense Distributed v. U.S. Dept. of State, 2017 WL1032309

(5th Cir., Mar. 15, 2017). Judge Jennifer Elrod issued a scathing dissent from the

denial of rehearing and scolded the majority for relying on “a mere assertion of a

19

national security interest.” Id. at *2. In sum, the Fifth Circuit has definitely not

reaffirmed Asgeirsson after Reed.

C. Post-Reed, courts nationwide have invalidated numerous content-

based laws regulating speech.

The Austin Court of Appeals has noted that many courts across the nation

were surprised by the Reed decision as they had “construed pre-Reed precedent as

allowing ‘content-based regulations [to be treated] as content neutral if the

regulations are motivated by a permissible content-neutral purpose.’” Auspro

Enterprises, LP v. Texas Dept. of Transp., 506 S.W.3d 688, 700 (Tex. App.—

Austin 2016, pet. filed) (invalidating portions of Texas Highway Beautification

Act as a content-based regulation of speech that was not narrowly tailored to serve

compelling governmental interests).26 Nonetheless, the Austin Court of Appeals

was constrained to follow Reed rather than an earlier Texas Supreme Court

decision upholding the challenged law. Id. at 698-700.

26

See also Thomas v. Schroer, 2017 WL 1208672 (W.D. Tex. March 31, 2017) (noting Auspro

and agreeing that the billboard Act was subject to strict scrutiny under Reed and it was not

sufficiently narrowly tailored; held unconstitutional).

20

Indeed, content-based laws regulating speech have been falling like

dominoes after Reed clarified when a law affecting speech is content-based and,

therefore, subject to strict scrutiny.27

For example, the Seventh Circuit had originally upheld an anti-panhandling

statute against a First Amendment challenge because it regulated by subject matter

rather than by viewpoint. Norton v. City of Springfield, 768 F.3d 713, 717-18 (7th

Cir. 2014). The law was called a content-neutral regulation of time, place, and

manner of speech prohibiting “oral request[s] for an immediate donation of

money,” but permitting signs and oral pleas to send money later. Id. On rehearing

after Reed, the court reversed itself and held that the Supreme Court “abolishe[d]

any distinction between content regulation and subject-matter regulation” and

made it clear that “a speech regulation targeted at specific subject matter is content

based even if it does not discriminate among viewpoints within that subject

matter.” Norton v. City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015).28

27

The cases are collected on a weekly basis at 24 A.L.R. 7th Art. 6 (“Construction and

Application of Reed v. Town of Gilbert, Ariz, Providing that Speech Regulation Targeted at

Specific Subject Matter is Content-Based Even If It Does Not Discriminate Among Viewpoints

Within that Subject Matter”).

28

See also Champion v. Commonwealth, 2017 WL 636420, __ S.W.3d ___ (Ky. Feb. 16, 2017)

(anti-panhandling statute struck down as a content-based unconstitutional regulation of

speech).

21

Application of a “time, place, or manner” doctrine to a statute that targets a

specific subject matter of speech can no longer be deemed content-neutral. Id.

Under Reed, a statute prohibiting “ballot selfies” was struck down despite

the state’s claim that (1) the law’s purpose was to prevent “vote buying and voter

coercion,” and (2) it was a reasonable time, place, and manner restriction.29 So

was a South Carolina law prohibiting certain robocalls30 and North Carolina’s

cyber-bullying law.31 A Minnesota statute regulating certain door-to-door

solicitations was struck down under Reed because it required a license for the

solicitation of some, but not all, materials.32 And a Kentucky law prohibiting a

29

Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015) (“Because the law require[d]

regulators to examine the content of the speech to determine whether it include[d]

impermissible subject matter,” it was subject matter-based discrimination), aff’d, 838 F.3d 65

(1st Cir. 2016), cert. denied 137 S.Ct. 1435 (April 3, 2017); see also, Ind. Civil Liberties Union

v. Ind. Sec’y of State, No. 1:15-CV-01356-SEB-DML, at *19 (D. Ind. 2015) (same).

30

Cahaly v. Larosa, 796 F.3d 399, 402-05 (4th Cir. 2015).

31

State v. Bishop, 787 S.E.2d 814, 817-21 (N.C. 2016) (statute that criminalized posting

“private, personal or sexual information pertaining to a minor” was content-based; although

protecting children from online bullying was a compelling interest, the law was not narrowly

tailored–criminalizing personal information to “annoy” a minor swept too broadly).

32

Working America, Inc. v. City of Bloomington, 142 F.Supp.3d 823 (D. Minn. 2015) (even

though city had benign motive and content-neutral justification of reducing fraud and criminal

activity and honoring homeowners' heightened expectation of privacy inside their own home,

ordinance treated solicitors differently depending on function or purpose of their speech, and

need to obtain license depended on content of message).

22

newspaper columnist without an in-state license from writing a “family

psychologist” advice column was content-based and invalid after Reed.33

Most of these statutes were merely civil regulations of speech, not penal

provisions that criminalized speech. When determining the constitutionality of

criminal sanctions against speech, strict scrutiny is frequently lethal in its demand

for a particularly compelling governmental need and an extremely narrow

tailoring. See Ex parte Perry, 483 S.W.3d at 912-17 (coercion of a public official

statute facially unconstitutional under Free-Speech Clause); Ex parte Thompson,

442 S.W.3d 325, 330 (Tex. Crim. App. 2014) (improper photography statute

facially unconstitutional in violation of freedom of speech); Ex parte Lo, 424

S.W.3d at 14; see also Long v. State, 931 S.W.2d 285, 297 (Tex. Crim. App. 1996)

(stalking statute facially unconstitutional and vague because its language was too

expansive).

D. Even before Reed, laws restricting political speech were especially

likely to be found unconstitutional.

Political speech is at the very core of the First Amendment, and courts are

especially protective of persons exercising their free-speech rights when discussing

politically controversial or public-interest issues. McIntyre v. Ohio Elections

33

Rosemond v. Markham, 135 F.Supp.3d 574, 581-85 (E.D. Ky. 2015) (attempt by state board of

psychologists to regulate parenting advice in newspaper was a content-based restriction which

did not survive strict scrutiny under Reed).

23

Comm’n, 514 U.S. 334, 347-48 (1995).34 Both before and after Reed, no form of

speech is more protected than this core political speech which enjoys “exacting”

scrutiny, upholding restrictions only when they are narrowly tailored to serve an

“overriding state interest.” Id. at 347.

Thus, under McIntyre and Reed, an Ohio law that prohibited and punished

political false statements that include all false speech about a candidate, not just

defamatory or fraudulent remarks, was content-based and failed the exacting

scrutiny given political speech.35

Even before Reed, rules restricting the political and free speech rights of

judges were struck down both by the Supreme Court36 and the Fifth Circuit.37 It

should not be said that a Texas County Judge, who acts as the chief executive of a

34

McIntyre involved an Ohio election statute that prohibited the distribution of anonymous

campaign literature. The Supreme Court held that the law violated the First Amendment right

to “anonymous” free speech.

35

Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473-76 (6th Cir. 2016) (state’s political

false-statement laws were content-based; they burdened core political speech, were not

sufficiently narrowly tailored, and did not withstand strict scrutiny).

36

Republican Party of Minnesota v. White, 536 U.S. 765, 781-82 (2002) (state’s rule prohibiting

judicial candidates from announcing their views on disputed legal or political issues violated

the free-speech rights of judges and judicial candidates).

37

Jenevein v. Willing, 493 F.3d 551, 557-58 (5th Cir. 2007) (judiciary commission’s order

censuring Texas judge because of the content of his speech about public affairs and alleged

abuses of process in a particular case violated his free-speech rights).

24

county, or his fellow commissioners have fewer free-speech rights than a county

judge who sits on a trial bench.38

Similarly, laws that target “defamatory attacks” at city council meetings39

and “criticism” of officials at school board meetings40 have been struck down post-

Reed as content-based and failing to survive strict scrutiny in the context of

political gatherings.

That is not to say that all content-based statutes regulating speech fail strict

scrutiny. Some can survive. But the government’s power to criminalize speech,

especially political speech by public officials discussing public business, must be

extremely limited and closely scrutinized, never assumed.

38

The State analogizes the free-speech restrictions in Section 551.143 to the rules regarding ex

parte communications during a trial. That is a false analogy. It is Section 551.144 and its rules

regarding an open meeting that is analogous to the rules regarding the conduct of a trial.

Outside of the courtroom and outside of the open meeting forum, both judges and members of

a governmental entity still have their normal free-speech rights to discuss “public business”

and controversial topics of community concern. Just as judges have a right to private speech

about “public business,” so do public officials. See Perry, 483 S.W.3d at 915-17 (public

officials have a First Amendment right to engage in expression, even threats, regarding their

official duties).

39

Draego v. City of Charlotteville,Va., 2016 WL 6834025, * (W.D. Va. 2016) (city's rule

banning speakers from making "defamatory attacks on groups" at city council meetings was

not content-neutral because a speaker and the council must assess whether speech had a

“character-attacking” content under Reed; violated First Amendment).

40

Mnyofu v. Board of Education of Rich Township High School Dist. 227, 2016 Westlaw

13197336 (N.D. Ill. 2016) (school board violated plaintiff's First Amendment rights under

Reed by preventing him from criticizing school officials during board meetings).

25

II. The State has not shown that Section 551.143 passes strict scrutiny.

Because Section 551.143 imposes content-based restrictions on speech, that

law may stand only if it survives strict scrutiny, “which requires the Government to

prove that the restriction furthers a compelling interest and is narrowly tailored to

achieve that interest.” Reed, 135 S.Ct. at 2231.

The State argues that the purpose of TOMA is to increase transparency of

government, discourage fraud and corruption, and decrease public mistrust of

governmental entities. Judge Doyal agrees wholeheartedly. He does not challenge

TOMA as a general open-meetings scheme. But having a benign intent will not

save a constitutionally defective statute like Section 551.143.

A. The State has failed to prove that Section 551.143 serves a

compelling need that is not already met by other TOMA

provisions.

The issue in this case is not TOMA. It is the one overbroad and vague

criminal conspiracy provision within that act which has a tremendous “chilling”

effect on public officers and their constituents. Section 551.143 does not

effectively serve any compelling governmental interest, and it is not narrowly

tailored to achieve only a compelling interest.

26

1. TOMA addresses important, but not compelling,

governmental interests.

The point of TOMA is to ensure that decisions made by government entities

are made in open meetings so that citizens may see and hear their public officials

discuss, debate, and decide upon matters within their jurisdiction. That is an

important public interest, but it is not an essential or compelling one. If it were,

our two main lawmaking entities—the United States Congress and the Texas

Legislature—would be subject to the same strictures. These legislative bodies are

the main focus of public concern over the openness and accessibility of

government entities, yet they are not required to obey and abide by these

transparency laws.

As the current Washington political scene shows, national laws are not

always crafted or much discussed in public; a pro forma vote after secret political-

party deliberations suffices. The Texas Legislature originally intended for TOMA

to apply to its own deliberations,41 but, under its rulemaking authority, it exempts

itself.42 A law that addresses a “compelling” governmental need should apply to

41

It was, after all, enacted in response to the legislative scandal surrounding the Sharpstown

stock-fraud scandal and the involvement of Speaker Gus Mutscher as well as other lawmakers

in possible bribery concerning that affair. Presumably, the Legislature did not want legislators

giving favorable treatment to bills based on bribery rather than merit.

42

Ms. Jennifer Riggs, an expert on TOMA, testified at the motion hearing that TOMA applies to

Texas legislators, but that they “suspend the rules” of TOMA on a daily basis so that they can

27

all lawmaking entities, across the board, while laws that address a lesser,

“important,” governmental need may apply selectively to some lawmaking

entities.43 Only those laws that serve compelling governmental needs could satisfy

the first strict-scrutiny prong.

TOMA’s regulatory “stick” is Section 551.144, the prohibition of “closed”

meetings which “1) prevent transparency; (2) encourage fraud and corruption; and

(3) foster mistrust in government.” Asgeirsson, 696 F.3d at 461 (discussing the

purpose of Section 551.144). That statute is clear and easy to understand. If a

quorum of the members of a governmental entity meets to deliberate on “public

business” or “an issue within the jurisdiction of the governmental body,” then it

must do so in a properly posted public meeting.

get their work done (RR3 at 56-57). She is correct. See In re Texas Senate, 36 S.W.3d 119,

120 (Tex. 2000) (“Section 551.003 "prohibit[s] secret meetings of the legislature, committees

of the legislature, and other bodies associated with the legislature, except as specifically

provided in the constitution. This provision clearly covers the Committee of the Whole Senate.

Thus, its meeting and votes cannot be secret "except as specifically provided" by the Texas

Constitution.”). The Texas Constitution explicitly permits the Legislature to create its own

rules and so it exempts itself from TOMA. But, as Ms. Riggs explained, the legislators do not

intend to violate TOMA with their hallway conferences, logrolling, and informal vote

counting, they simply want to serve their constituents and pass needed legislation, just as local

officials try to do. (RR3 at 91).

43

See Florida State Bar v. B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J., concurring) (noting that a

law's under-inclusiveness—its failure to reach all speech that implicates the interest—is

evidence that an interest is not compelling or “of the highest order,” because it suggests that the

government itself doesn't see the interest as compelling enough to justify a broader statute).

28

All 50 states have open meetings laws like TOMA, but fewer than 20 have

any criminal provisions.44 No other state has a special conspiracy provision like

Section 551.143. It would seem peculiar that, if this conspiracy statute were

“necessary to meet a compelling” government need, not one of the other 49 states

with equally important needs for open meeting laws considered this type of law

necessary. The State has failed to offer any proof as to why (1) any state with an

open-meetings law would have a compelling need for this type of criminal-

conspiracy law or (2) why Texas’s public officials are so different from those in

every other jurisdiction that they require such an overly broad criminal prod.45

TOMA already has ample remedies for violations of its provisions: any

action taken during an improper meeting is voidable,46 an aggrieved person may

44

Texas is the only state to integrate a criminal penalty directly into its open meeting laws.

Eighteen states have some criminal penalty—usually a fine—for a violation of the state’s open

meeting laws. Devon Helfmeyer, Do Public Officials Leave Their Constitutional Rights at the

Ballot Box? A commentary on the Texas Open Meetings Act, 15 TEX. J. CIVIL LIB. & CIVIL

RIGHTS 205, 227-28 (2010) (listing all nineteen states along with their penalties; twelve of

them would permit jail as an option for intentionally or knowingly participating in a closed

meeting under a statute like Section 551.144).

45

After all, making the Penal Code conspiracy provision (Section 15.02) applicable to TOMA

would punish any miscreant members who knowingly conspire to violate the law that requires

an open meeting and would suffice to deter those who try to avoid open meetings.

46

Section 551.141.

29

file for an injunction in a declaratory judgment action,47 and criminal sanctions

may be sought for a “closed meeting” under Section 551.144.

Other states have addressed transparency in government in different ways:

(1) they do not criminalize open meeting violations—civil deterrence is sufficient;

(2) they do not criminalize any meetings of less than a quorum of public officials;

or (3) they use criminal penalties only if the statutory language is explicit, not

subject to misinterpretation, and prohibits only rotating, simultaneous, or serial

“walking quorums.”48 Section 551.143 does not follow any of those paths. It is

not narrowly tailored to punish only speech which clearly threatens a compelling

(or even important) governmental interest of open government. Instead, it sweeps

so broadly that “open meetings” experts counsel their public-official clients to

avoid talking to fellow officials outside of a properly posted open meeting.49

Constitutional challenges to other open meetings laws (made before Reed)

have been unsuccessful, but none of those cases involved a criminal penalty.50

After all, the purpose of open-meetings laws is not to make criminals out of public

47

Section 551.142.

48

See Helfmeyer, supra note 45 at 227-28.

49

The State pooh-poohs the testimony of the defense experts, but fails to explain away the

several law review articles that have analyzed Section 551.143 and concluded that it is

confusing, vague, and unconstitutional. See note 8 supra listing those articles.

50

Id. 229-30.

30

officials, but to subject their governmental decision-making to the scrutiny of the

citizens.

Two competing interests drive TOMA: “the public’s right to know about the

workings of its governmental bodies, and the need to ensure members of

governmental bodies are informed and act efficiently.”51 Both of these goals are

essential to good government; neither is more important or compelling than the

other. Congress and the Texas Legislature have struck the balance firmly in favor

of the rights of the public official. TOMA tilts local government slightly the other

way, but it is essential that public officials have sufficient avenues to become well-

informed, both about their fellow officials’ concerns and those of the public. Only

the least restrictive means of achieving the goal of open government will pass

muster when circumscribing a public official’s free speech rights.

Section 551.143 does not meet that test.

B. The State has failed to prove that Section 551.143 is narrowly

tailored.

According to the First Amendment overbreadth doctrine, a statute is facially

invalid if it prohibits a “substantial” amount of protected speech “judged in relation

to the statute's plainly legitimate sweep.” Ex parte Lo, 424 S.W.3d at 18. The

51

Heath & Rogers, supra note 8 at 98-99.

31

“narrowly tailored” prong of the strict scrutiny test is basically the reverse of

saying that the law is overbroad or over-inclusive.52

In various opinions and training aids, the Attorney General has relied upon

Esperanza Peace and Justice Center v. City of San Antonio, 316 F.Supp.2d 433

(W.D. Tex. 2001), its Poster Child case, in trying to explain and apply Section

551.143. In Esperanza, a federal district court held that the mayor should not have

held a series of meetings and telephone calls with council members on the evening

before the council meeting to discuss the City’s budget and to obtain a consensus

on its changes. The judge explained:

[A] meeting of less than a quorum is not a “meeting”

within the Act when there is no intent to avoid the Act’s

requirements. On the other hand, the Act would apply to

meetings of groups of less than a quorum where a

quorum or more of the body attempted to avoid the

purpose of the Act by deliberately meeting in groups of

less than a quorum in closed sessions to discuss and/or

deliberate public business, and then ratifying their actions

as a quorum in a subsequent public meeting.

Id. at 476. This was a civil case seeking injunctive relief, not a criminal

prosecution. And clearly the purpose of the calls and “closed” meetings was to

52

See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S.

105, 120-21 (1991) (“Son of Sam” law requiring publishers to escrow income from books

written by those accused of crime was over-inclusive because it applies to works on any

subject if they include any thoughts or recollections about a crime, and its broad definition of

"person convicted of a crime" allows the Board to escrow the income of an author who admits

in his work to committing a crime, whether he was ever actually accused or convicted).

32

“achieve a consensus on changes to the budget” by the entire council before the

next day’s open meeting. Id. at 442. A budget decision was made by the entire

council in a pre-meeting before the open meeting. That case is simple and

straightforward.

If only Section 551.143 were so simple. It is not. It does not require that a

quorum meet. It does not require that a quorum make a decision or achieve a

consensus. Talking about “public business” by “numbers less than a quorum” to

purportedly “circumvent” TOMA will suffice. It is dramatically overbroad and

vague and has an in terrorem chilling effect upon both public officials and their

constituents. It does prohibit the Esperanza situation—the true daisy chain of

sequential meetings53—but it potentially prohibits much more speech that should

be free and unfettered under the First Amendment.

Indeed, given the “walking quorum” Attorney General opinion, section

551.143 could criminalize public officials who have been approached individually

by a citizen, asked to support a bill, and told that a fellow official has already done

so. The “daisy chain” is created by the citizen talking to each public official

serially and getting a positive response from each. Or the mayor’s secretary

53

A more narrowly tailored statute might prohibit “meetings in numbers of less than a quorum

for the purpose of [having] sequential or multiple secret deliberations that would together

constitute a quorum and reaching a decision as a result of those sequential meetings.” See RR3

at 41).

33

calling each council member to ask if he would like a particular item—school

buses for example—on the agenda for the next open meeting could make a daisy

chain.

1. Section 551.143 has the demonstrated effect of chilling

public officials’ free speech.

At the motion hearing, witnesses expressed a number of concerns about

Section 551.143:

 Who does it apply to? Just members of the government entity?

Citizens acting with members? The statute begins with the phrase “A

member or members”—does that mean one member can conspire all

by himself? Or with only one member and then some citizens? Or

lobbyists? The city manager? The mayor? (RR2 at 43).

 Does Section 551.143 apply when three city council members running

for re-election all attend the same political house party and talk about

“public business”?54 What if the first two leave, but the third arrival

gets a summary of what was said? (RR2 at 64).

 Suppose a commissioner blogs about public policy–other members

who read that blog might be influenced; could the blogger be deemed

to have violated Section 551.143? And what if the other

commissioners should post a comment on the blog? “God help them.”

(RR3 at 33-34).

 As Ms. Riggs noted, “The very act of trying to keep it legal could be

what helps prove, under [Section 551.143] a conspiracy.” (RR3 at 47).

“You can do an awful lot with [Section 551.143] in hindsight to make

54

See Atty. Gen. Op. JC-0203 (if two members of a subcommittee appear at an official

“speaking engagement” and participate in a discussion of “public business,” TOMA applies).

34

things look like a violation, totally innocent communications.” (RR3

at 49).55

The practical result if Section 551.143 is deemed constitutional is that more

and more government would be conducted by staff members, city managers, and

the board’s executive director (RR2 at 76). They are the keepers of information

and, unlike elected or appointed officials, may discuss public business with each

other and the citizenry without concern for TOMA if they share that information

with the responsible public officials only in an open meeting.

As the mayors testified at the hearing, Section 551.143 scares them:

 Mayor Charles Jessup of Meadows Place said that Section 551.143 is

a “very convoluted and confusing statute. . . I really don’t understand

it. . . . We try to avoid conversations, and the discussion of a walking

quorum has come up. We’re not sure exactly how that works, but it

scares us all to death.” (RR2 at 222).

 He admitted that he had “been in a position this week three times

alone of possible violation of [TOMA]” and then he explained the

innocent circumstances. (RR2 at 227).

 Eric Scott, the mayor of Brookshire, testified that he had attended the

Kennedy School of Government at Harvard, and he thinks that

Section 551.143 “actually stopped good governance” because he

55

Charlie Zech, a lawyer who advises public entities and boards, explained how members are in

jeopardy if two of them want to have a talk about a public matter. They meet in a quiet room

so that a third member will not join them and create a prohibited quorum. They are

intentionally avoiding the Act, but is that in fact a “conspiracy to circumvent” the Act, even

though it is perfectly innocent (RR4 at 85). Is the attempt to comply with the law by avoiding

meetings in which a quorum would be present, in fact, evidence of circumventing the law and,

therefore, of violating it?

35

cannot have a “free flow of communication and exchange of ideas”

with his fellow council members or citizens. (RR2 at 263-264).

 Section 551.143 “makes me believe that they can go to jail very

easily, and no one wants to go to jail.” (RR2 at 266). It “chills” his

ability to express himself and solicit others’ opinions (RR2 at 270).

 Mayor Jim Kuykendall of Oak Ridge North explained that Section

551.143 “basically neuters everybody.” (RR3 at111). The city

manager puts items on the agenda and gives the city council members

information. The members do not feel that they can talk to each other

or members of the public outside of a properly posted open meeting

(RR3 at 114). The law makes him a “figurehead,” because the city

manager is the real boss, but she could be in trouble for talking to

each member. (RR3 at 116-117).

 After learning about this case, Mayor Kuykendall is afraid he has

broken the law. He fears just being indicted would be devastating

financially (RR3 at 117).

 Even the State’s witness, former Houston City Councilman James

Rodriguez, stated that he has never “knowingly” been a part of a

“rolling quorum”; he repeatedly used the term “err on the side of

caution” because he doesn’t want to be charged with a TOMA crime.

(RR5 at 18, 20, 32, 37, 55).

All of these public officials agreed that, because of their fear of being

charged with a crime under Section 551.143, they “erred on the side of caution.”

That confusing, vague criminal conspiracy law “chilled” their speech.

Criminalizing innocuous, fact-finding discussions and inquiries by public

officials would lead to anemic government. This law discourages not only

discussion between public officials, but between public officials and members of

the public because that citizen might then talk individually to a quorum of the

36

council. Imagine what would happen if this criminal law were applied to the

members of Congress or the Texas Legislature.

C. Section 551.143 is unconstitutionally vague as well as overbroad.

According to both Supreme Court56 and Court of Criminal Appeals57

precedent, criminal laws must be sufficiently clear in at least three respects.

 First, a person of ordinary intelligence must have a reasonable

opportunity to know what is prohibited. Long, 931 S.W.2d at 287.

 Second, the law must establish clear guidelines for law enforcement.

Id.

 Third, when First Amendment freedoms are implicated, the law must

be sufficiently definite to avoid chilling protected expression. Id.

The demand for clarity is paramount. When a statute burdens First

Amendment rights, the vagueness doctrine demands greater specificity than in

other contexts to adequately preserve the right of free expression because

"[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful

zone than if the boundaries of the forbidden areas were clearly marked." Grayned,

408 U.S. at 109. In other words, it “chills” free speech.

56

Grayned v. Rockford, 408 U.S. 104, 108 (1972).

57

Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) (provision of harassment statute

referring to conduct that was likely to “annoy” or “alarm” was vague and reasonable person

standard could not be read into it; entire statute declared unconstitutional under First

Amendment).

37

Section 551.143 is unclear and vague on its face by making it a crime for a

member (or members) of a governmental body to “conspire” to meet in numbers of

less than a quorum “to circumvent” TOMA for the purpose of “secret

deliberations” about “public business” or “an issue within the jurisdiction of the

government body.”

First, what is the meaning of “conspire” in this statute? Conspire as defined

in Section 15.02 of the Penal Code? Some sort of common-law meaning of

conspire? Merely an agreement to meet to discuss public business? Or an

agreement to meet with the

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