State v. Doyal, NO. PD-0254-18

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtKeller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Keel, and Walker, JJ., joined.
Citation589 S.W.3d 136
Parties The STATE of Texas v. Craig DOYAL, Appellee
Decision Date27 February 2019
Docket NumberNO. PD-0254-18

589 S.W.3d 136

The STATE of Texas
v.
Craig DOYAL, Appellee

NO. PD-0254-18

Court of Criminal Appeals of Texas.

Delivered: February 27, 2019


Keller, P.J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Keel, and Walker, JJ., joined.

A provision of the Texas Open Meetings Act (TOMA) makes it a crime if a member or group of members of a governmental body "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."1 We conclude that this provision is unconstitutionally vague on its face. Consequently, we reverse the judgment of the court of

589 S.W.3d 140

appeals and affirm the trial court's judgment dismissing the prosecution.

I. BACKGROUND

Appellee was the Montgomery County Judge, and as such, he was a member of the Montgomery County Commissioners Court. He was indicted for violating TOMA's § 551.143, the statute described above. The indictment alleges that Appellee did

as a member of a governmental body, to wit: the Montgomery County Commissioner's [sic] Court, knowingly conspire to circumvent Title 5 Subtitle A Chapter 551 of the Texas Government Code (hereinafter referred to as the Texas Open Meeting 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.

Appellee filed a motion to dismiss on the basis that § 551.143 was overbroad in violation of the First Amendment and was unconstitutionally vague. The trial court granted the motion and dismissed the indictment.

On appeal, the State contended that the statute did not violate the Constitution. The court of appeals agreed, concluding that the statute did not violate the First Amendment and was not unconstitutionally vague.2 In response to Appellee's First Amendment claims, the court of appeals held that § 551.143 was a content-neutral law because it was "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."3 The court further concluded that the strict-scrutiny standard was inapplicable because the prohibition in TOMA "is applicable only to private forums and is designed to encourage public discussion."4

With respect to vagueness, the court of appeals concluded that the statutory terms "conspire," "circumvent," and "secret," although undefined, have commonly understood meanings.5 Relying on an opinion of the Texas Attorney General, the court further concluded that the statute 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."6 Under this construction, the court concluded that the statute "describes a criminal offense with sufficient specificity that ordinary people can understand what conduct is prohibited."7

Consequently, the court of appeals reversed the trial court's order dismissing the indictment and remanded the case for further proceedings.8 We granted Appellee's petition for discretionary review, which complained, inter alia , that § 551.143 is void for vagueness.9 We agree

589 S.W.3d 141

that the statute is unconstitutionally vague on its face.

II. ANALYSIS

A. The Statutory Scheme

TOMA generally requires that meetings of a governmental body be open to the public.10 "Meeting" is defined in two ways, both of which require that a quorum be present:

(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.11

A "quorum" is defined as "a majority of a governmental body, unless defined differently by applicable law or rule or the charter of the governmental body."12 "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."13

The main TOMA provision, § 551.144, makes it a crime to engage in conduct that calls, facilitates, or participates in a closed meeting.14 A "closed meeting" is "a meeting to which the public does not have access."15

589 S.W.3d 142

Appellee was not charged under the main provision though. Instead, he has been prosecuted under, § 551.143, which provides:

A member or a 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.16

B. Implicating the First Amendment

As we shall explain more fully below, more clarity is required of a criminal law when that law implicates First Amendment freedoms.17 Consequently, we first address whether § 551.143 implicates the First Amendment's freedom of speech.18

We have recognized that the First Amendment is implicated when the government seeks to impose criminal sanctions on an elected official for communications made in his official capacity.19 As a Fifth Circuit panel once stated, "[T]he Supreme Court's decisions demonstrate that the First Amendment's protection of elected officials' speech is robust and no less strenuous than that afforded to the speech of citizens in general."20 The Fifth Circuit decision of Asgeirsson v. Abbott , relied upon by the State in the present case, held that TOMA's § 551.144 was "a content-neutral time, place, or manner restriction."21 Calling a statute a reasonable time, place, or manner restriction is an implicit acknowledgment that some of the activity regulated by the statute is protected speech.22

589 S.W.3d 143

The State contends that § 551.143 reaches only conduct rather than speech. At oral argument, the State's attorney maintained that the statute punishes the conduct of "meeting" rather than what might be said during that meeting.23 But both of TOMA's definitions of "meeting" incorporate communications, either through "deliberations," the passing of "information" from one person to another, or the asking of questions. The State contends that these definitions do not control because they define "meeting" as a noun and § 551.143 uses "meeting" as a verb.24 Even if the State is correct that the definitions are not controlling,25 the statute does not proscribe "meeting" in the abstract but proscribes a particular kind of meeting—one that is for the purpose of "deliberations." This purpose makes the statutory act of "meeting" communicative, even if the bare fact of meeting would not be so. The Supreme Court has observed that a parade could be non-communicative "[i]f there were no reason for a group of people to march from here to there except to reach a destination" but that "[r]eal" parades are in fact "public dramas of social relations" and, as such, are "a form of expression."26 For the same reason, TOMA's punishment of meeting for the purpose of deliberations reaches speech, and not just conduct.

The State also contends that any speech that is implicated by the statute is unprotected because it constitutes "speech integral to criminal conduct." But the cases that involve this form of unprotected speech involve speech that furthers some other activity that is a crime.27 Examples of this include picketing designed to coerce a company to sign an illegal contract or solicitation to facilitate a sex crime.28 The statute before us proscribes activity designed to "circumvent" TOMA, but circumventing TOMA is not a crime apart from § 551.143.29

589 S.W.3d 144

C. Nature of a Facial Vagueness Challenge

We next turn to whether the facial vagueness challenge advanced here requires a showing that there are no possible instances of conduct that it is clear would fall within the statute's prohibitions. If such a showing is required, and if at least one such instance of conduct can be imagined,...

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  • Ex parte Barrett, No. 05-19-00889-CR
    • United States
    • Court of Appeals of Texas
    • July 17, 2020
    ...opportunity to know what is 608 S.W.3d 97 prohibited and (2) to establish determinate guidelines for law enforcement. State v. Doyal , 589 S.W.3d 136, 146 (Tex. Crim. App. 2019). Laws implicating First Amendment freedoms require greater specificity because they must be "sufficiently definit......
  • Ex parte Fairchild-Porche, 14-19-00445-CR
    • United States
    • Court of Appeals of Texas
    • November 16, 2021
    ...factors like legislative history, the object of the statute, and the consequences of a particular construction. See State v. Doyal , 589 S.W.3d 136, 149 (Tex. Crim. App. 2019) ; Boykin , 818 S.W.2d at 785–86. When construing a statute in the face of a First Amendment challenge, courts have ......
  • Ex parte Jarreau, No. 04-19-00704-CR
    • United States
    • Court of Appeals of Texas
    • December 23, 2020
    ...possible circumstances. See Johnson v. United States , 576 U.S. 591, 602-03, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ; State v. Doyal , 589 S.W.3d 136, 144 (Tex. Crim. App. 2019). In Johnson , the United States Supreme Court stated: "[A]lthough statements in some of our opinions could be rea......
  • Ex parte Fairchild-Porche, 14-19-00445-CR
    • United States
    • Court of Appeals of Texas
    • November 16, 2021
    ...factors like legislative history, the object of the statute, and the consequences of a particular construction. See State v. Doyal, 589 S.W.3d 136, 149 (Tex. Crim. App. 2019); Boykin, 818 S.W.2d at 785 12 86. When construing a statute in the face of a First Amendment challenge, courts have ......
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1 books & journal articles
  • OVERBROAD INJUNCTIONS AGAINST SPEECH (ESPECIALLY IN LIBEL AND HARASSMENT CASES).
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 Nbr. 1, January 2022
    • January 1, 2022
    ...under another statute, such as where the speech constitutes the crime of extortion."), aff'd, 647 F. App'x 967 (11th Cir. 2016). (195.) 589 S.W.3d 136 (Tex. Crim. App. 2019). (196.) Id. at 143 (emphasis added). (197.) 825 S.E.2d 689, 698-99 (N.C. Ct. App. 2019). (198.) Mashaud v. Boone, 256......

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