Clark to testify against Doyal, Riley in TOMA trial

Precinct 4 Commissioner Jim Clark will be granted a pretrial diversion in exchange for his testimony against County Judge Craig Doyal, Precinct 2 Commissioner Charlie Riley and political consultant Marc Davenport. less Precinct 4 Commissioner Jim Clark will be granted a pretrial diversion in exchange for his testimony against County Judge Craig Doyal, Precinct 2 Commissioner Charlie Riley and political consultant Marc ... more Photo: Jason Fochtman, Staff Photographer Photo: Jason Fochtman, Staff Photographer Image 1 of / 1 Caption Close Clark to testify against Doyal, Riley in TOMA trial 1 / 1 Back to Gallery

One of three members of Montgomery County Commissioners Court indicted on a charge of conspiring to circumvent the Texas Open Meetings Act has agreed to testify against the other two elected officials and a political consultant in their upcoming trial, according to the attorney representing him.

Precinct 4 Commissioner Jim Clark was granted a pretrial diversion in exchange for his testimony against County Judge Craig Doyal, Precinct 2 Commissioner Charlie Riley and political consultant Marc Davenport, said Conroe-based attorney E. Tay Bond, who is representing Clark.

Houston defense attorney Rusty Hardin, who is representing Doyal, and Conroe defense attorney Steve Jackson, representing Davenport, said they don't blame Clark for taking the deal, but both look forward to questioning him on the stand. The two also maintain their clients are not guilty.

"What is interesting is they are charged with conspiring to violate the act," Hardin said. "They aren't even charged with violating it. They are charged with reaching an agreement among themselves to violate the act, and Clark knows that is not true.

"Craig Doyal is not guilty. Charlie Riley is not guilty. Whatever Jim Clark says in order to help himself and save his own hide is not going to be anything that harms Craig Doyal."

All four face the TOMA violation charge stemming from negotiations in August 2015 to place a $280 million road bond referendum on the November 2015 ballot. After a six-month investigation, a Montgomery County grand jury indicted the four in June 2016 on one count each of the Class A misdemeanor that carries a punishment of up to six months in jail and a maximum $500 fine, if convicted. It is unclear whether a guilty verdict or plea would force the elected officials to vacate their positions.

All four are scheduled to start trial proceedings March 27 in the 221st state District Court in Montgomery County.

However, on Monday, Bond confirmed that Clark has worked out the agreement with the special prosecutor handling the case.

According to Bond, if Clark "lives up to the terms" of the diversion, his case will be dismissed. While some pretrial diversions require admission of guilt, Bond said that is not the case with Clark's agreement.

"He would be required to voluntarily complete training offered by the Texas Attorney General's Office (regarding) the Texas Open Meetings Act as required by (the) Texas Government Code," said Bond, noting that Clark then would provide documentation to Special Prosecutor Chris Downey that he completed the training. "He would have to retain a consultant to advise him and his staff on the applicability and proper implementation of the requirement of the Texas Open Meeting Act.

"He will have to testify truthfully under oath in any trials concerning this alleged violation of the Texas Open Meetings Act."

Downey did not respond to requests for comment.

In a released statement, Clark said he believes that the special prosecutors, after reviewing grand jury testimony in its entirety, felt comfortable approaching him.

"I gave a true and honest testimony to the grand jury, and I believe the special prosecutors knew the truth when they heard it and were inspired to approach me through my attorney," Clark stated.

"The other conditions of the agreement are fair, and I look forward to fulfilling these terms so that we can move forward from this event."

Jackson said he has never seen such an agreement in his 24 year career.

"Usually, a pretrial diversion agreement typically comes with a confession," Jackson said. "However, there is no confession here. I do not believe, based on everything I have read, that anybody conspired to violate the Texas Open Meetings Act. In fact, it is quite the contrary. Everybody tried to be very careful to not do so and did nothing more than to try and benefit the county by eventually getting a road bond passed."

Hardin called the agreement "a gift."

"All it does is get diverted and then gets dismissed and later (Clark) can seek to have it expunged," Hardin said. "I don't have any criticism of Mr. Clark of taking the plea. I will be curious to what he has to say. We don't know what he has told them.

"I must confess, I look forward to visiting with him on the stand."

An Aug. 24, 2015, Open Records request by The Courier and subsequent article regarding the email communications led to the appointment of Downey as special prosecutor to investigate the case.

Then-9th state District Court Judge Kelly Case, who did not seek re-election in 2016, appointed Downey after Montgomery County District Attorney Brett Ligon requested that someone else handle the case due to some conflicts of interest involving his office. Case had the choice of hiring a special prosecutor or requesting that the state Attorney General's Office handle it, according to Downey.

The information provided to The Courier showed dozens of emails between the county judge, certain members of Commissioners Court, Davenport and others, including members of The Woodlands-based Texas Patriots PAC, which negotiated the framework of the bond package with the elected officials and political consultant. No Patriots PAC member was indicted and it is not known whether any were a subject of the special prosecutor's investigation.

The Courier did not receive any emails from Clark regarding the open records request. However, in the emails provided by Doyal, Bill Smith, an inspector with Clark's office, forwarded an email from O'Sullivan containing a draft of the memorandum of understanding between the PAC, Riley and Doyal.

In a previous article, Clark said he provided Davenport with a hard copy of his road bond projects.

The Courier requested documents between Aug. 11 and Aug. 21, 2015, because commissioners took no action on a November 2015 road bond on Aug. 11, 2015, which was the last scheduled court meeting before the Aug. 24 deadline to place a bond referendum on the November 2015 ballot.

However, on Aug. 21, 2015, Doyal and Riley announced they had reached a memorandum of understanding with the Patriots PAC that opened the door for the bond referendum. At the same time, a special meeting of Commissioners Court was posted for Aug. 24, 2015. On that date, commissioners unanimously approved the referendum, and voters later passed it. The bond package did not include the controversial Woodlands Parkway extension or the Robinson Road project in Oak Ridge North. The parkway extension led to the demise of a $350 million road bond referendum in May 2015, which voters rejected due to the overwhelming opposition in The Woodlands.

The Courier also requested phone logs and text messages but never received any documents responsive to that request.

According to a previous Courier article, campaign finance reports show Riley paid Davenport $5,000 on Aug. 6, 2015, for a "consulting expense." Riley also 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.

In addition, Doyal paid $5,000 to County Treasurer Stephanne Davenport - Marc Davenport's wife - on May 17, 2015, for her campaign for Montgomery County treasurer. Riley contributed $2,500 to her campaign as well.

Clark, Doyal and Riley all are up for re-election in 2018.