                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-17-00123-CR
                               ________________

                      THE STATE OF TEXAS, Appellant

                                        V.

                      CRAIG DOYAL, Appellee
__________________________________________________________________

                On Appeal from the 221st District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-06-07315-CR
__________________________________________________________________

                                    OPINION

      The State of Texas appeals the trial court’s dismissal of an indictment, which

alleged that appellee Craig Doyal, as a member of the Montgomery County

Commissioners Court, knowingly conspired to circumvent the Texas Open Meetings

Act (“TOMA”). We reverse the trial court’s order dismissing the indictment and

remand the cause to the trial court for further proceedings consistent with this

opinion.



                                         1
      Doyal, a member of the Montgomery County Commissioners Court, was

indicted for knowingly conspiring to circumvent the provisions of TOMA by

meeting in a number less than a quorum for the purpose of secret deliberations “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[.]” See Tex. Gov’t

Code Ann. § 551.143 (West 2017). Doyal filed a motion to dismiss the indictment,

asserting that section 551.143 is facially unconstitutional because it violates the free

speech provisions of the First Amendment and is vague and overbroad.

      Doyal1 asserted that he, a county commissioner, and a political consultant met

with representatives of a local political action committee (“PAC”) to discuss placing

a road bond referendum on the November 2015 ballot, and as a result of the meeting,

a memorandum of understanding was produced, in which the Texas Patriots PAC

promised its political support for putting a road bond proposal on the commissioners’

special meeting agenda. According to Doyal, he posted the agenda for a special

meeting of the Commissioners Court, and citizens praised the commissioners’ work

at the special meeting and thanked them for putting a road bond on the ballot. Doyal


      1
       Doyal is the elected County Judge of Montgomery County, and not
technically a commissioner. The County Judge is a member of Commissioners
Court. Tex. Loc. Gov’t Code Ann. § 81.001(a) (West Supp. 2017).
                                           2
asserted that the county attorney wrote him a letter stating that the commissioners

had complied with the requirements of TOMA, and voters passed the bond in the

November election. Doyal alleged that the discussions between himself, the other

commissioner, the consultant, and the members of the PAC were not a meeting under

TOMA and were not intended to be an agreement to conspire to avoid TOMA.

      In his motion to dismiss, Doyal argued that section 551.143 of the Texas

Government Code burdens free speech and is subject to strict construction.

According to Doyal, the statute facially “does not make sense[]” because “[m]eeting

in numbers of less than a quorum does not violate a statute that requires a quorum to

meet in open session.” Doyal contended that because TOMA applies only to specific

speech by public officials, it is a content-based penal regimen subject to review

under strict scrutiny. According to Doyal’s motion to dismiss, section 551.143 is

constitutionally overbroad because it prohibits a substantial amount of protected

speech when judged in relation to the statute’s plainly legitimate sweep. Doyal

further asserted that section 551.143 is vague and confusing because the terms

“conspire” and “secret” are not defined, and the statute fails to explain what kind of

“deliberations” are covered.

      The State’s response in the trial court asserted that section 551.143 is “both

constitutional and enforceable.” According to the State, section 551.143 is content

                                          3
neutral because “it does not restrict speech based on specific content, but simply

requires that the disclosure of the speech take place in an open forum.” The State

asserted that the purpose of section 551.143 is to control the effects of closed

meetings, including decreased transparency, encouragement of fraud or corruption,

and increased mistrust in governmental entities. In addition, although the State

argued that intermediate scrutiny is the proper standard for reviewing section

551.143, the State contended that even if the strict scrutiny standard applied, section

551.143 meets that test because “it is narrowly tailored and serves a compelling state

interest.”

       The trial court held a hearing, but heard no testimony regarding the underlying

facts. Rather, Doyal’s witnesses offered opinion testimony regarding their

interpretations of section 551.143, the challenges it poses, and its constitutionality.

The trial judge signed an order granting Doyal’s motion to dismiss the indictment.

No party requested the trial court to make findings of fact and conclusions of law,

and none were filed. The State then filed this appeal, in which it raises two issues

for our consideration: (1) the trial court erred by dismissing the indictment on the

ground that section 551.143 is facially unconstitutionally vague and ambiguous, and

(2) the trial court erred by dismissing the indictment on the ground that section

551.143 facially violates the First Amendment and is overbroad.

                                          4
       “Whether a statute is facially constitutional is a question of law that we review

de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). If we determine

that there is a reasonable construction which will render the statute constitutional,

we must uphold the statute. Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App.—

Houston [14th Dist.] 2002, pet. ref’d). We presume that a statute is valid and that the

Legislature did not act unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d at 14-

15. “The burden normally rests upon the person challenging the statute to establish

its unconstitutionality.” Id. at 15.

       “The First Amendment—which prohibits laws ‘abridging the freedom of

speech’—limits the government’s power to regulate speech based on its substantive

content.” State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App.—Houston [14th Dist.]

2016, pet. ref’d); see U.S. Const. amend. I. “Content-based regulations are those that

distinguish favored from disfavored speech based on the idea or message expressed.”

Stubbs, 502 S.W.3d at 224. “[W]hen the government seeks to restrict and punish

speech based on its content, the usual presumption of constitutionality is reversed.”

Ex parte Lo, 424 S.W.3d at 15. “Content-based regulations (those laws that

distinguish favored from disfavored speech based on the ideas expressed) are

presumptively invalid, and the government bears the burden to rebut that

presumption.” Id. Accordingly, we apply strict scrutiny to content-based regulations.

                                           5
Id. On the other hand, if the statute punishes conduct and not speech, we apply a

rational basis level of review to determine if the statute has a rational relationship to

a legitimate state purpose. See Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

      Before a statute will be invalidated on its face as overbroad, the overbreadth

must be real and substantial when “judged in relation to the statute’s plainly

legitimate sweep.” Id. A statute should not be invalidated for overbreadth merely

because it is possible to imagine some unconstitutional application. See In re Shaw,

204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d). With respect to issues

of vagueness, statutes are not necessarily unconstitutionally vague merely because

the words or terms employed in the statute are not specifically defined. See

Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute

does not define the words used therein, we give the words their plain meaning. See

Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also Tex. Gov’t

Code Ann. § 311.011(a) (West 2013) (“Words and phrases shall be read in context

and construed according to the rules of grammar and common usage.”). Under the

void-for-vagueness doctrine, a statute will be invalidated if it fails to define the

offense in such a manner as to give a person of ordinary intelligence a reasonable

opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d



                                           6
496, 499 (Tex. Crim. App. 2006); see also Kolender v. Lawson, 461 U.S. 352, 357

(1983).

      “TOMA requires that meetings of governmental bodies be open to the public.”

Asgeirsson v. Abbott, 696 F.3d 454, 458 (5th Cir. 2012). Section 551.143(a) of

TOMA, which makes a violation of TOMA a criminal offense, provides as follows:

      (a) 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.

Tex. Gov’t Code Ann. § 551.143(a). Chapter 551 defines the term “deliberation” 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.” Id. §

551.001(2) (West Supp. 2017). In addition, chapter 551 defines “governmental

body” to include a county commissioners court. Id. § 551.001(3)(B). Furthermore,

chapter 551 defines a “meeting” as follows:

      (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:


                                        7
            (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.

      ...

      The term does not include the gathering of a quorum of a governmental
      body at a social function unrelated to the public business that is
      conducted by the body, the attendance by a quorum of a governmental
      body at a regional, state, or national convention or workshop,
      ceremonial event, or press conference, if formal action is not taken and
      any discussion of public business is incidental to the social function,
      convention, workshop, ceremonial event, or press conference.

      The term includes a session of a governmental body.

Id. § 551.001(4). Lastly, chapter 551 defines “quorum” as “a majority of a

governmental body, unless defined differently by applicable law or rule or the

charter of the governmental body.” Id. § 551.001(6).




                                            8
      In analyzing section 551.144 of TOMA,2 the U.S. Court of Appeals for the

Fifth Circuit held that “[t]ransparency is furthered by allowing the public to have

access to government decisionmaking . . . . The private speech itself makes the

government less transparent regardless of its message. The statute is therefore

content-neutral.” Asgeirsson, 696 F.3d at 461-62. The Asgeirsson court held that a

regulation is not content-based merely because the applicability of the regulation

depends on the content of the speech. Id. at 459. “A statute that appears content-

based on its face may still be deemed content-neutral if it is justified without regard

to the content of the speech.” Id. at 459-60. Doyal contends that Asgeirsson was

abrogated by Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). He emphasizes that

this Court need not follow cases from the Fifth Circuit Court of Appeals and argues

that two additional U.S. Supreme Court cases “show that Section 551.143 does not

pass constitutional muster even under intermediate scrutiny[,]” 3 and that Asgeirsson


      2
        Section 551.144 makes calling or aiding in calling a closed meeting, closing
or aiding in closing a meeting to the public, or participating in a closed meeting a
criminal offense. Tex. Gov’t Code Ann. § 551.144 (West 2017).
      3
       Doyal argues that under Packingham v. North Carolina, 137 S.Ct. 1730
(2017) and Matal v. Tam, 137 S.Ct. 1744 (2017), section 551.143 cannot survive
even intermediate scrutiny. In those cases, the Supreme Court invalidated a law
banning sex offenders from using social media and held that the First Amendment
bars a law that prohibited disparaging trademarks. Packingham, 137 S.Ct. 1735,
1738; Matal, 137 S.Ct. at 1751. We reject the assertion that these cases render it
impossible for section 551.143 to survive intermediate scrutiny.
                                          9
dealt with section 551.144, which is “a simple, clear statute[,]” but section 551.143

is “so vague that experts call it ‘gibberish’ and are confused about its meaning and

application.”

      First, we note that Reed does not mention or discuss Asgeirsson, and we reject

Doyal’s assertion that Reed abrogated Asgeirsson. See Reed, 135 S.Ct. at 2218-39.

Second, in Reed, the issue facing the Supreme Court was the constitutionality of a

town’s “Sign Code” that prohibited the display of outdoor signs without a permit,

but exempted numerous categories of signs from that requirement, including

ideological signs, political signs, and temporary directional signs relating to a

qualifying event. Id. at 2224-25. In Reed, a church and its pastor wished to advertise

the time and location of its Sunday church services, which were held in a variety of

different locations due to financial constraints. Id. at 2225. The church was twice

cited for exceeding the time limits for displaying temporary directional signs, as well

as its failure to include the date of the event on the signs. Id. The church filed suit in

federal district court, arguing that the Sign Code violated its freedom of speech. Id.

at 2226. After the District Court granted summary judgment in favor of the town,

the Court of Appeals affirmed, and the Supreme Court granted certiorari. Id. After

concluding that the town’s Sign Code was clearly not content-neutral, but instead

was “content based on its face[,]” the Supreme Court held that the Sign Code could

                                           10
not survive strict scrutiny because the Sign Code was not narrowly tailored to further

a compelling government interest. Id. at 2228-32.

      We conclude that, unlike the circumstances in Reed, which involved the

particular type of speech or message on signs, section 551.143 of TOMA is 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. See Tex.

Gov’t Code Ann. § 551.143; Reed, 135 S.Ct. at 2228-32; Asgeirsson, 696 F.3d at

461-62. It is not the content of the deliberations that is targeted by section 551.143;

rather, section 551.143 targets the act of knowingly conspiring to engage in

deliberations that circumvent the requirements of TOMA. See Tex. Gov’t Code Ann.

§ 551.143. “The prohibition in TOMA is applicable only to private forums and is

designed to encourage public discussion[.]” Asgeirsson, 696 F.3d at 461. Therefore,

we reject Doyal’s contention that we must apply strict scrutiny in reviewing section

551.143.

      This Court’s opinion in Ex parte Poe, 491 S.W.3d 348 (Tex. App.—

Beaumont 2016, pet. ref’d), is instructive. In Ex parte Poe, the appellant asserted

that the disorderly conduct statute is facially unconstitutional due to its alleged

vagueness and its alleged violation of his rights under the First, Second, Fifth, and

Fourteenth Amendments. Id. at 350. The statute at issue in Ex parte Poe provided

                                          11
that ‘“A person commits an offense if he intentionally or knowingly . . . displays a

firearm or other deadly weapon in a public place in a manner calculated to alarm.’”

Id. at 354. This Court concluded that the statute punishes conduct (displaying a

firearm in a public place in a manner calculated to cause alarm) rather than protected

expression, and that the statute bears a rational relationship to the State’s legitimate

interest in protecting its citizens from harm. Id. We therefore rejected Poe’s

argument that strict scrutiny applied, and we began by presuming that the statute is

valid and that the Legislature did not act arbitrarily or unreasonably in enacting it.

Id. We also rejected Poe’s argument that the word “alarm” was undefined and

inherently subjective, and instead gave the undefined terms in the statute their plain

meaning. Id.

      In the case at bar, Doyal argues that section 551.143 is vague because the

terms “conspire,” “circumvent,” and “secret” are not defined, and the statute does

not explain what type of deliberations are covered. As was the case in Poe, the terms

at issue have a plain meaning. “Conspire” is commonly understood to mean “to make

an agreement with a group and in secret to do some act (as to commit treason or a

crime or carry out a treacherous deed): plot together[.]” Webster’s Third

International Dictionary 485 (2002). “Circumvent” means “to overcome or avoid the

intent, effect, or force of: anticipate and escape, check, or defeat by ingenuity or

                                          12
stratagem: make inoperative or nullify the purpose or power of esp. by craft or

scheme[.]” Id. at 410. “Secret” means “kept from knowledge or view: concealed,

hidden” and “done or undertaken with evident purpose of concealment[.]” Id. at

2052.

        Doyal asserts that because chapter 551 defines “deliberation” as a verbal

exchange during a meeting between a quorum of members concerning an issue

within the jurisdiction of the governmental body or any public business, yet section

551.143 refers to deliberations of less than a quorum, the statute is unconstitutionally

vague. See Tex. Gov’t Code Ann. §§ 551.001(2), 551.143. The Attorney General

has opined that TOMA does not require that a governmental body’s members be in

each other’s physical presence to constitute a quorum, and, therefore, section

551.143 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.” Tex. Att’y

Gen. Op. No. GA-0326 p. 3 (2005).4 The Attorney General explained that the

definition of “deliberations” as used in section 551.143 “is consistent with its

definition in section 551.001 because ‘meeting in numbers less than a quorum’


        4
        We recognize the difficulties this language causes the State in its attempt to
prove this element beyond a reasonable doubt; however, a statute that creates
difficulty for the State in meeting its burden of proof is not unconstitutional.
                                          13
describes a method of forming a quorum, and a quorum formed this way may hold

deliberations like any other quorum.” Id. at p. 4; see Esperanza Peace & Justice Ctr.

v. City of San Antonio, 316 F. Supp.2d 433, 473, 476 (W.D. Tex. 2001). The

Attorney General also opined that “[t]his construction is discernible from a plain

reading of the provision.” Tex. Atty’s Gen. Op. No. GA-0326 p. 4. We find the

Attorney General’s reasoning persuasive.

      We conclude that section 551.143 describes the criminal offense with

sufficient specificity that ordinary people can understand what conduct is prohibited.

See Holcombe, 187 S.W.3d at 499. The statute provides reasonable notice of the

prohibited conduct. See Holcombe, 187 S.W.3d at 499; see also Kolender, 461 U.S.

at 357; see also Tex. Gov’t Code Ann. § 551.143. We conclude that the statute is

reasonably related to the State’s legitimate interest in assuring transparency in public

proceedings. See Asgeirsson, 696 F.3d at 461-62. The alleged overbreadth of section

551.143 is not real and substantial when judged in relation to its plainly legitimate

sweep. See Broadrick, 413 U.S. at 615. Doyal has not satisfied his burden to prove

that the statute is unconstitutionally vague and overbroad. See id. We sustain the

State’s appellate issues, reverse the trial court’s order dismissing the indictment, and

remand the cause to the trial court for further proceedings consistent with this

opinion.

                                          14
      REVERSED AND REMANDED.



                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice

Submitted on January 24, 2018
Opinion Delivered February 7, 2018
Publish

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




                                      15
