State of Texas v Craig Doyal, PD-0254-18 (Tex. Crim. App. – February 27, 2019)
In this criminal case, the Texas Court of Criminal Appeals held unconstitutional the provision of the Texas Open Meetings Act (“TOMA”) regarding circumventing the Act by meeting in numbers of less than a quorum.
The Montgomery County judge, a member of the Commissioner’s Court, was indicted for allegedly attempting to circumvent TOMA regarding a local county road issue. Doyal filed a motion to quash the criminal charge, challenging the constitutionality of the circumvention provision. The trial court dismissed the complaint but the Court of Appeals reversed, holding the TOMA provision was constitutional. Doyal appealed.
The Court first disagreed with the State’s position and held the statute regulates speech, not simply conduct. The definition of “meeting” requires a deliberation or exchange of information, which is speech. For purposes of TOMA, the statutory act of engaging in a “meeting” is communicative. Next, the Court held when a vagueness challenge involves the First Amendment, a criminal law may be held facially invalid even though it might not be unconstitutional as applied to the defendant’s conduct. To pass constitutional muster, a law that imposes criminal liability must be sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement. When the law implicates First Amendment freedoms, it also must be sufficiently definite to avoid chilling protected expression. What renders a statute vague is the “indeterminacy of precisely what” the prohibited conduct is. Under § 551.143, a person commits an offense if the person “knowingly conspires to circumvent TOMA by meeting in numbers less than a quorum for the purpose of secret deliberations ….” The Court found it difficult to support the provision, since TOMA applies only when a quorum is present but the crime is committed when a quorum is not present. Further, the phrase “knowingly circumvent” does not focus on real-world conduct and is a catch-all provision in the abstract. As a result, the provision was held unconstitutional on its face.
The concurring opinion disagreed the statute was vague and simply reasoned the statute impermissively violated the First Amendment. The dissent disagreed with both the vagueness and First Amendment analysis.