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Ruling expected on political consultant charged with violating Open Meetings Act with members of Commissioners Court

March 6, 2017 GMT

Conroe-based defense attorney Steven Jackson hopes a judge rules this week in favor of his client Marc Davenport and dismisses a charge against the political consultant for allegedly conspiring to circumvent the Texas Open Meetings Act.

The jury trial for County Judge Craig Doyal, Precinct 2 Commissioner Charlie Riley, Precinct 4 Commissioner Jim Clark and Davenport will begin March 27. All four were indicted on the same conspiracy charge June 24. It stems from negotiations in August 2015 regarding a November 2015 road bond.

Jackson claims the 221st state District Court does not have jurisdiction over Davenport because he is not a member of a governmental body and cannot be prosecuted in a federal court.

“To prosecute (Davenport) in the criminal district court violates his rights to due process under the 5th and 14th Amendments to the United States Constitution and his rights under Texas Constitution Article 1, Section 19,” Jackson stated in his motion filed Oct. 31, 2016.

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However, according to Chris Downey, a Houston-based attorney who was appointed by former 9th District Court Judge Kelly Case as a special prosecutor to investigate whether any communications prior to the Aug. 24 vote to put the $280 million road bond on the ballot violated the act, Jackson’s claims have no merit.

“We will file a response to that; and I don’t think there is any legal basis for his removal,” Downey said regarding Davenport’s motion for dismissal.

While the Texas Open Meetings Act does pertain to government bodies, an Attorney General’s Opinion from Nov. 20, 2000, in part, states that a person who is not a member of a governmental body could be charged with a violation of the Texas Open Meetings Act if “the person, acting with intent, aids or assists a member or members who knowingly act to violate the Act.”

Downey said he expects visiting 221st state District Court Judge Randy Clapp, of Wharton County, to rule on the motion this week. Judge Lisa Michalk recused herself from the bench since Commissioners Court funds her budget.

A Montgomery County grand jury issued the indictments after a six-month investigation into communications in August 2015 that led to commissioners approving the placement of the bond package on the ballot.

An Aug. 24 Open Records request by The Courier showed dozens of emails involving the judge, certain members of the court, Davenport and others, including members of The Woodlands-based Texas Patriots PAC, regarding the framework of the road bond.

Campaign finance reports show Riley paid Davenport $5,000 on Aug. 6, 2015, for a “consulting expense.”

In addition, Riley gave Davenport $10,000 on May 14, 2015. Along with $5,000 to Performance Marketing on the same day. The same mailing address is listed for Davenport and Performance Marketing.

Doyal paid Davenport $10,000 on May 16, 2015, for a consulting expense.

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However, Doyal previously said that neither he nor Riley paid Davenport for consulting services regarding the August road bond negotiations.

If convicted of the misdemeanor, the crime is punishable by a fine of $100 to $500, confinement in the county jail for one month up to six months; or both. The elected officials also could be forced to vacate their positions.

Road to a special prosecutor

District Attorney Brett Ligon recused his office early in the process because then-First Assistant District Attorney Phil Grant was using Davenport as his political consultant in his campaign for 9th state District Court judge. Grant later cut ties with Davenport.

Then-9th state District Court Judge Kelly Case, who did not return calls to The Courier last week, appointed Downey Sept. 16, 2015. According to Downey, Case had several options for the investigation, including appointing a special prosecutor, using the Texas Attorney General’s Office or the Texas Rangers.

“The district attorney does not have any say in who is appointed,” Downey said. “It is the decision of the appointing judge. I got a call from him and he requested I take the case. In my experience, if you are not conflicted out, you have an obligation as an officer of the court to take up the task.”

Downey noted he has and continues to use the Texas Rangers in the investigation of the case.

“The Texas Rangers have assisted in the case,” Downey said.