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In an audacious act of legislating from the bench, an activist judge has ruled that a statute in the Texas Open Meetings Act requiring transparency in government deliberations is unconstitutional. In gutting the Open Meetings Act, visiting Judge Randy Clapp also dismissed the criminal charges against Montgomery County Judge Craig Doyal and Commissioner Charlie Riley, who were both indicted by a grand jury last year after conducting secret deliberations with each other to craft a road bond.

Doyal and Riley were charged specifically with violating Subsection 551.143 of the Texas Open Meetings Act, which 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.”

Concerned that Doyal would be convicted if tried under the law, Doyal’s attorney, Rusty Hardin, decided instead to challenge the constitutionality of the Open Meetings Act itself. Hardin filed a 22-page brief claiming that the Open Meetings Act is “unconstitutionally vague” and that Doyal should not be prosecuted.

Clapp agreed to postpone the criminal trial against Doyal and Riley and instead held a hearing on the constitutionality of the Open Meetings Act. After hearing three days of testimony from the defense, Clapp ruled that the statute under which Doyal was being prosecuted was unconstitutional and dismissed the charges without even allowing the prosecution to make their full case.

Clapp’s attempt to void pro-transparency law passed by the legislature is a stunning rejection of precedent. The Open Meetings Act has withstood legal challenges in the past, notably when it was upheld as constitutional by the U.S. 5th Circuit Court in 2012. The 5th Circuit Court stated then that:

“TOMA is content-neutral and is not unconstitutionally overbroad or vague. It is also a disclosure statute, though that does not change the level of scrutiny, because the statute is content-neutral.”

Clapp did not state any reason or grounds for dismissing the case.

In the aftermath of the decision, special prosecutor Chris Downey has said that the State will appeal the decision, which will likely go the 9th Court of Appeals in Beaumont.

While the ruling is a victory for Doyal, who has long pushed the edge when it comes to ethics and transparency, it is a setback in government transparency for the entire state and for citizens who expect their government to be accountable to the public.

Doyal and Riley are both up for re-election in 2018.

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