Defendants Still at Risk after Nines Hold Open Meetings Act Constitutional

I make my home in Montgomery County, Texas-- the main county north of Harris County, whose county seat is the metropolis of Houston. My folks bought a lake lot in Montgomery County about 48 years ago. The number of the residents of the county and the value of its commerce has been rocketing up since before that time and continues to do so today.
You've heard of fracking. The guy who invented fracking had been developing, among other places, a giant set of upscale planned communities in southern Montgomery County just north of Spring Creek and the rest of the Harris County line. In total, it's called The Woodlands and is absolutely one of the most beautiful and prosperous areas in metro Houston. Conroe has always been a suburb for those who could stomach the commute, and for people like me who cannot it is a pleasant small or medium-sized town. The east part of the county, the north part of the county and the west part of the county away from Lake Conroe is rural, impoverished, and is subject to being predated upon by corrupt or incompetent officials (I spoke very precisely here. Many, perhaps even most, are good-hearted, hard-working, honest people, but a few bad apples, particularly bad ones at the top of the barrel, can make all smell sickeningly rotten.). The very most unpleasant thing for me about the county is that it has a horrible history of anti-Black racism, and that that racism is still virulent. I came here because my elderly mother-in-law is here, and I thought that I could set up a law practice here with less commuting than I could in nearly any other place.
OK, so this place is prosperous and expanding, needs more government services. For a certain type of corrupt politician, Montgomery County Texas is a bird's nest on the ground.
Craig Doyal is the Montgomery County Judge. As in all of Texas's larger counties, Doyal does not preside over any court of law, he presides over and is a member of Commissioners' Court. All Texas counties have four commissioners, one for each quadrant. One job that a commissioner has is to build and repair roads and to do other motor transportation jobs that might vary greatly district to district and county to county. The commissioners and the county judge together, as Commissioners' Court is the governing body of a county, making budgets, having final approval over the payment of the county's bills and the incurring of any county debt, etc.
I know hardly anything about Commissioner Charlie Riley; I would not recognize him if he bit me.
I know hardly anything about Mr. Marc Davenport, but I am an admirer of his wife, Montgomery County Treasurer Stephanne-- pronounced "Stephanie"-- Davenport. She has given to me absolutely every indication that she personally is hardworking, efficient, and expert in her job. She is given to making "Why can't we all get along?" posts in Facebook. 
Doyal asserted that he, county commissioner Charlie Riley, and political consultant Marc Davenport met with representatives of the Texas Patriots Political Action Committee to discuss placing a road bond referendum on the November 2015 ballot, and as a result of the meeting, the PAC promised to  support putting a road bond proposal on the commissioners’ special meeting agenda. The three men were indicted for conspiracy to violate the Texas Open Meetings Act. A visiting judge was brought in to supervise the case proceedings, since everybody local was conflicted out. That judge turned out to be the energetic and cheerful Randy Clapp of the 329th Judicial District Court of Wharton. Celebrity lawyers Cathy Cochran (former judge on Texas's highest criminal court, the Court of Criminal Appeals), Rusty Hardin and W. Troy McKinney were part of Doyal's legal defense team.
To make a long story short, defense counsel prevailed upon Judge Clapp to dismiss the indictments of all three men on account of the Open Meetings Act's violating free speech after a single hearing. The State appealed to Beaumont.
Appellate cases are generally decided by justices in groups of three. Beaumont has four. 
In each of these cases the panel was the same, Chief Justice Steve McKeithen who rose to that court from being a Montgomery County Attorney years ago, and Justices Hollis Horton and Leanne Johnson from the Beaumont area. The appellate cases are similar but not identical. The panel justices decided that the Chief Justice would write the opinion relating to Doyal, and that that would be the case that would be printed up in the law books. Horton and Johnson would write opinions not to be published for Riley and Davenport respectively.
Whether or not a statute is constitutional is a question of pure law as to which the trial court's answer is given no weight. If there is some reasonable construction that will render the statute constitutional, then the statute should be held to be constitutional.  Statutes are presumed to be valid, reasonable and not arbitrary.
A statute should not be invalidated for over-breadth merely because it is possible to imagine some unconstitutional application. TOMA is not void for vagueness. 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. This law does not limit what may be said, or to whom it may be said, you just can't have a secret meeting to hide from the public or to fool the public about what was discussed about a public governmental decision.
State of Texas v. Craig Doyal, ____ S.W.3d _____, No. 9-17-00123-CR (Tex. App.-- Beaumont, Feb. 8, 2017, no pet. h.)
Riley did not argue that TOMA was unconstitutional as applied to him like Doyal did, but only that it is unconstitutional on its face-- a much higher, harder standard to reach.
State of Texas v. Charlie Riley, No. 9-17-00124-CR (Tex. App.-- Beaumont, Feb. 8, 2017, mem. op., no pet. h.)
Davenport's case could really be different from the others. The State's case against him is weaker. He has no control over when or where or how Commissioners' Court makes its decision. He could have said that he had utterly no intention to violate TOMA-- that TOMA never crossed his mind-- that even if he had wanted to, he does not have nor ever had the power to violate TOMA. But instead of his team's making their own independent motion to dismiss the indictment, they just used Doyal's. Like Riley, he only argued facial unconstitutionality, not "as applied" unconstitutionality.
State of Texas v. Marc Davenport, No. 9-17-00125-CR (Tex. App.-- Beaumont, Feb. 8, 2017, mem. op., no pet. h.) 
Hat tip to Joshua Zientek for emailing me, among others, about this case.