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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-17-00125-CR

____________________

THE STATE OF TEXAS, Appellant

V.

MARC DAVENPORT, Appellee

On Appeal from the 221st District Court

Montgomery County, Texas

Trial Cause No. 16-06-07318-CR

MEMORANDUM OPINION

The State appeals the trial court’s order dismissing the indictment against 

Appellee Marc Davenport (Davenport or Appellee) for conspiracy to circumvent the 

Texas Open Meetings Act. 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.
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On June 24, 2016, a Grand Jury indicted Appellee, Marc Davenport, for 

Conspiracy to Circumvent the Texas Open Meetings Act under section 551.143 of 

the Government Code. See Tex. Gov’t Code Ann. § 551.143 (West 2017). Although 

Davenport and the State agree that he was not a member of a “governmental body,”

Davenport was charged as a party to the conspiracy with language in the indictment 

tracking Penal Code section 7.02(a)(2). See Tex. Penal Code Ann. § 7.02(a)(2) (West 

2011). The indictment alleged that:

. . . Marc Davenport, on or about August 11, 2015 and continuing 

through August 24, 2015 and before the presentment of this indictment, 

. . . did then and there, with the intent to promote or assist the 

commission of the offense described herein, solicit, encourage, direct, 

aid or attempt to aid Jim Clark or Charlie Riley or Craig Doyal who, 

did then and there as a member of a governmental body, to wit: the 

Montgomery County Commissioner’s Court, knowingly conspire to 

circumvent Title 5 Subtitle A Chapter 551 of the Texas Government 

Code . . . by meeting in a number less than a quorum for the purpose of 

secret deliberations in violation of the Texas Open Meetings Act, to 

wit: 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[.]

Riley and Doyal were indicted in separate indictments. 

On October 31, 2016, Davenport filed a Motion to Dismiss for Lack of 

Jurisdiction arguing that Davenport was not a member of a “governmental body” 

and that at no time was he acting as a “public servant” or “in an official capacity as 

a public servant.” The trial court denied Davenport’s Motion to Dismiss for Lack of 
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Jurisdiction.1 Davenport also opposed the State’s proposal to join or consolidate for 

trial Davenport’s case with two other cases, State of Texas v. Craig Doyal, No. 16-

06-07315-CR, and State of Texas v. Charlie Riley, No. 16-06-07316-CR. 

On March 20, 2017, Doyal filed a Motion to Dismiss the Indictment in 

Doyal’s case. On March 22, 2017, Davenport filed a Motion to Join Defendant Craig 

Doyal’s Motion to Dismiss the Indictment. The Doyal motion asserted that section 

551.143 of the Government Code must be reviewed under strict scrutiny, is facially 

unconstitutional because it violates the First Amendment, and is overbroad, vague 

and confusing.2 The trial court held a hearing on the motion to dismiss. On April 4, 

2017, in three separate orders, the trial court dismissed the indictments against 

Davenport, Doyal, and Riley. The State appealed. 

We overturned the trial court’s ruling granting Doyal’s motion to 

dismiss. See State v. Doyal, No. 09-17-00123-CR, slip. op. (Tex. App.—

Beaumont Feb. 7, 2018, no pet. h.), available at http://www.search.txcourts.gov/

 

1 Davenport filed a petition for a writ of mandamus with this Court 

challenging the trial court’s jurisdiction on the basis that he is not a public servant. 

See In re Davenport, No. 09-17-00084-CR, 2017 Tex. App. LEXIS 2571 (Tex. 

App.—Beaumont Mar. 23, 2017) (orig. proceeding). We denied the petition after 

concluding that Davenport failed to show why a challenge on direct appeal would 

be an inadequate remedy. Id. at *2.

2 An appellate court may take judicial notice of its own records, such as 

pleadings, in the same or related proceedings involving the same or nearly same 

parties. See Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987).
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DocketSrch.aspx?coa=coa09. And, we overturned the trial court’s ruling 

granting Riley’s motion to dismiss. See State v. Riley, No. 09-17-00124-

CR, slip. op. (Tex. App.—Beaumont Feb. 7, 2018, no pet. h.), (mem. op. 

not designated for publication), available at http://www.search.txcourts.gov/

DocketSrch.aspx?coa=coa09. For the reasons discussed in State v. Doyal and State 

v. Riley, we also reverse the order dismissing Davenport’s indictment.

In remanding Davenport’s case, we emphasize that the only matter that is 

currently before us pertains to the facial constitutional challenges that were made in 

Doyal’s Motion to Dismiss. Davenport did not assert any additional grounds for 

dismissal in Davenport’s Motion to Join. No other challenges or issues are currently 

before us in this appeal. We expressly have not ruled upon an “as applied challenge”

nor have we been asked to review the application of the statute to Davenport, a 

consultant and someone who alleges he is not a member of a governmental body. 

While a defendant has the right to seek a dismissal of an indictment based on 

a claim that the statute under which the defendant was indicted is facially invalid, 

the bar to succeeding on these types of claims is high. 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. 
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Salerno, 481 U.S. 739, 745 (1987); see also McGruder v. State, 483 S.W.3d 880, 

883 (Tex. Crim. App. 2016).

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The overbreadth doctrine is “strong medicine” that is used “sparingly and only 

as a last resort.” State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015)

(citing N.Y. State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Broadrick 

v. Oklahoma, 413 U.S. 601, 613 (1973); Ex parte Thompson, 442 S.W.3d 325, 349

(Tex. Crim. App. 2014)). When making a “substantial overbreadth” challenge under 

the First Amendment, the challenger must establish that the statute as written 

“prohibit[s] a substantial amount of protected expression, and the danger that the 

statute will be unconstitutionally applied must be realistic and not based on ‘fanciful 

hypotheticals.’” Id. (footnotes omitted) (quoting United States v. Stevens, 559 U.S. 

460, 485 (2010) (Alito, J., dissenting)). Therefore, Davenport had the burden to 

 

3 Courts are directed to avoid sustaining a defendant’s facial challenge to a 

statute when possible because such challenges, when they are sustained, allow the 

courts to nullify a legislative act without first requiring that a record be created 

regarding the defendant’s conduct. See Wash. State Grange v. Wash. 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); see also King St. Patriots v. Tex. Democratic Party, 521 

S.W.3d 729, 737 (Tex. 2017) (“‘It is not the usual judicial practice . . . nor do we 

consider it generally desirable, to proceed to an overbreadth issue unnecessarily—

that is, before it is determined that the statute would be valid as applied.’”) (quoting 

Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 485-86 (1989)).
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demonstrate “‘that a substantial number of instances exist in which the Law cannot 

be applied constitutionally.’” See id. (quoting N.Y. State Club Ass’n, 487 U.S. at 14). 

“The Supreme Court ‘generally does not apply the “strong medicine” of overbreadth 

analysis where the parties fail to describe the instances of arguable overbreadth of 

the contested law.’” Id. (quoting Wash. State Grange v. Wash. State Republican 

Party, 552 U.S. 442, 449-50 n.6 (2008)). Based upon the appellate record currently 

before us, we conclude that Davenport has failed to establish that the statute in 

question prohibits a substantial amount of activity that is protected by the First 

Amendment, judged in relation to its plainly legitimate sweep.

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

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

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on January 24, 2018

Opinion Delivered February 7, 2018

Do Not Publish

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