                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ___________________

                             NO. 09-17-00124-CR
                            ___________________


                     THE STATE OF TEXAS, Appellant

                                      V.

                        CHARLIE RILEY, Appellee

__________________________________________________________________

                On Appeal from the 221st District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-06-07316-CR
__________________________________________________________________

                        MEMORANDUM OPINION

      In June 2016, a grand jury indicted several of the members of the

Montgomery County Commissioners Court, including Charlie Riley, for conspiring

to violate the Texas Open Meetings Act (TOMA). See Tex. Gov’t Code Ann. §

551.143 (West 2017). In pertinent part, Riley’s indictment alleges he knowingly

conspired to circumvent TOMA over a two-week period that began on August 11,

2015, by “meeting in a number less than a quorum for the purpose of secret

                                      1
deliberations” regarding “the contents of the potential structure of a November 2015

Montgomery County Road Bond[.]” Subsequently, Riley filed a motion with the trial

court asking the court to dismiss his indictment.1 Riley’s motion asserts that section

551.143 of TOMA is unconstitutional on its face. According to the arguments that

are presented in the motion, the conspiracy provisions that are in TOMA violate the

rights of elected public officials to engage in free speech and are unconstitutional



      1
         Technically, Riley filed a “Motion to Join Defendant Craig Doyal’s Motion
to Dismiss the Indictment,” which Doyal filed in trial court cause number 16-06-
07315-CR. However, the cases were not filed in the same trial court cause numbers,
the record does not contain an order granting Riley’s motion to join Doyal’s motion,
and the record does not show that Riley’s case was consolidated with the case the
State filed against Doyal. Riley’s motion states that he “adopts and joins” Doyal’s
motion, and Riley advanced no arguments in his motion separate from those
presented by Doyal in his motion to dismiss. Doyal’s motion to dismiss was filed in
cause number 16-06-07315-CR, a case that is styled The State of Texas v. Craig
Doyal. Nonetheless, the transcript from the hearing the trial court conducted on the
motion to dismiss reflects that the trial judge who presided over Riley’s case also
presided over the case against Doyal. The trial court conducted a joint hearing on
Riley’s and Doyal’s motions. During the hearing, the State did not complain that the
Code of Criminal Procedure does not authorize a defendant in one case to file a
motion adopting motions filed by another defendant in another case. The transcript
of the motion to dismiss hearing reflects that the attorneys for Doyal, Riley, and
Marc Davenport, another defendant who the State alleged engaged in the conspiracy,
were present and participated in the hearing on the requests these defendants filed to
dismiss their indictments. The attorneys for the defendants represented that they
were acting together and calling witnesses together on their respective motions.
Because the trial court granted Riley’s motion, the trial court’s decision appears to
have been based on the grounds that Doyal presented in his motion, as Riley’s
motion did not advance any grounds that were separate from the grounds that Doyal
advanced in his motion.
                                          2
restrictions on their rights because the provisions in TOMA are overly broad. See

U.S. CONST. amend. I (prohibiting Congress from making a law that abridges the

freedom of speech); U.S. CONST. amend. XIV (prohibiting a State from making or

enforcing any law that abridges the privileges or immunities of a citizen of the

United States); Tex. Gov’t Code Ann. § 551.143 (making it an offense to conspire

to circumvent TOMA). Riley’s motion further asserts that because the conspiracy

provisions in TOMA fail to sufficiently define the conduct that is prohibited by the

Act, the provisions are vague and confusing such that the ordinary citizen cannot

determine how he can avoid violating the statute.

      In State v. Doyal, an opinion we handed down today, the Court overturned the

trial court’s order granting Craig Doyal’s motion to dismiss because Doyal failed to

meet his burden to establish that the conspiracy provisions in TOMA always operate

unconstitutionally under all possible circumstances. No. 09-17-00123-CR, slip op.

(Tex. App.—Beaumont Feb. 7, 2018, no pet. h.), available at http://

www.search.txcourts.gov/DocketSrch.aspx?coa=coa09. For the same reasons, we

also hold that Riley failed to meet his burden to establish that the conspiracy

provisions at issue always operate unconstitutionally under all possible

circumstances. See id. For the reasons that we explained in Doyal, we reverse the

order the trial court signed granting Riley’s motion to dismiss. Id. at 11-14.

                                          3
      In remanding Riley’s case for further proceedings, we recognize that Riley

did not ask the trial court to consider if section 551.143 of TOMA operated

unconstitutionally “as applied” to the facts and circumstances of his particular case.

Consequently, the facts and circumstances that led to the indictments of

Montgomery County’s elected officials were not at issue in this appeal, which

concerned only the much broader question of whether the provision in the statute

that Riley challenged always operated unconstitutionally under all possible

circumstances. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim.

App. 2011) (explaining that “as applied” challenges to the constitutionality of a

statute require the facts of the case to be developed, so such challenges “cannot be

properly raised by a pretrial motion to quash the charging instrument”).

      We also note the very high bar that defendants face when they claim that a

statute is facially invalid. The United States Supreme Court has explained: “A facial

challenge to a legislative Act is, of course, the most difficult challenge to mount

successfully, since the challenger must establish that no set of circumstances exists

under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987); see also McGruder v. State, 483 S.W.3d 880, 883 (Tex. Crim. App. 2016)

(explaining that to prevail on a facial challenge, the defendant is required to establish

that the statute always operates unconstitutionally with respect to all possible

                                           4
circumstances). Courts strive to avoid sustaining facial invalidity challenges because

granting such claims allows a court to nullify a legislative act without the benefit of

a record to establish what the defendant did to allegedly violate a statute. See

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-

51 (2008) (noting that facial challenges are disfavored for several reasons,

explaining that they often rest on speculation, run contrary to the principles of

judicial restraint, and threaten to short circuit the democratic process). The Texas

Supreme Court also indicates that courts should avoid granting motions claiming

that statutes are facially invalid “‘for reasons relating both to the proper functioning

of courts and to their efficiency[.]’” King St. Patriots v. Tex. Democratic Party, 521

S.W.3d 729, 737 (Tex. 2017) (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox,

492 U.S. 469, 485 (1989)). In other words, the courts have a judicial preference

requiring “the lawfulness of the particular application of the law” to “be decided

first[,]” a process that in criminal cases nearly always requires a trial. Id. at 737-38.

      While we have concluded that Riley failed to meet his burden of proving his

facial invalidity and vagueness claims, we have neither considered nor is it

appropriate at this point for us to consider whether section 551.143 is invalid “as

applied.” Consequently, this opinion cannot be interpreted as any indication

regarding this Court’s views regarding the validity of the allegations that are in

                                            5
Riley’s indictment. We cannot overemphasize that individuals charged with crimes,

including elected officials, are presumed innocent prior to trial. See Tex. Code Crim.

Proc. Ann. art 38.03 (West Supp. 2017).2

      We sustain the State’s appellate issues, reverse the trial court’s order

dismissing Riley’s indictment, and remand the cause to the trial court for further

proceedings consistent with the Court’s opinion.

      REVERSED AND REMANDED.



                                                ___________________________
                                                       HOLLIS HORTON
                                                            Justice


Submitted on January 24, 2018
Opinion Delivered February 7, 2018
Do Not Publish

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



      2
          Article 38.03 of the Code of Criminal Procedure provides:

                All persons are presumed to be innocent and no person may be
          convicted of an offense unless each element of the offense is proved
          beyond a reasonable doubt. The fact that he has been arrested,
          confined, or indicted for, or otherwise charged with, the offense gives
          rise to no inference of guilt at his trial.

      Tex. Code Crim. Proc. Ann. art. 38.03 (West Supp. 2017).
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