Ex Parte James Richard "Rick" Perry
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Opinion
ACCEPTED 03-15-00063-CR 4288674 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/25/2015 9:54:12 PM JEFFREY D. KYLE CLERK NO. 03-15-00063-CR IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 2/25/2015 9:54:12 PM JEFFREY D. KYLE Clerk EX PARTE JAMES RICHARD “RICK” PERRY
ON APPEAL FROM THE 390TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS, CAUSE NO. D-1-DC-14-100139
APPELLANT’S BRIEF
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P. Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower San Jacinto Center 600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500 Houston, Texas 77002 Austin, Texas 78701-4078 Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com Telephone: 713.223.5393 Telephone: 512.322.2500 Facsimile: 713.223.5909 Facsimile: 512.322.2501
BOTSFORD & ROARK David L. Botsford State Bar No. 02687950 1307 West Avenue Austin, Texas 78701 dbotsford@aol.com Telephone: 512.479.8030 Facsimile: 512.479.8040 IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of the
names and addresses of all parties and counsel in this case.
Appellant: Governor James Richard “Rick” Perry.
Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078; and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701.
State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511, Austin, Texas, 78701.
i TABLE OF CONTENTS Identity of Parties and Counsel .................................................................................. i Index of Authorities ................................................................................................. iv
Statement of the Case...............................................................................................xv
Statement Regarding Oral Argument .................................................................... xvi Issues Presented .................................................................................................... xvii Statement of the Facts ................................................................................................1
Summary of the Argument.........................................................................................3
Argument....................................................................................................................7
I. Count II must be dismissed because the coercion statute is facially unconstitutional under the First Amendment. ......................... 7 A. The coercion statute is facially overbroad. ...............................10
B. The coercion statute is not the least restrictive means of serving a compelling state interest. ...........................................17
II. Count II also must be dismissed because the coercion statute is unconstitutionally vague on its face. .................................................. 22 III. Governor Perry’s other constitutional challenges are all cognizable in a pretrial habeas proceeding. ....................................... 28
A. General principles of cognizability ...........................................29 B. Governor Perry’s claims are cognizable in a pretrial habeas proceeding. ....................................................................33
IV. The indictment violates the constitutional separation of powers. ...... 38
V. The indictment violates the Texas Speech or Debate Clause and the common-law doctrine of legislative immunity. ........................... 45 VI. The abuse-of-official-capacity statute is unconstitutionally ii vague as applied to the veto alleged on the face of the indictment. ......................................................................................... 53 VII. The coercion statute is unconstitutional as applied to the veto threat alleged on the face of the indictment. ...................................... 55
A. As applied, the coercion statute is unconstitutionally vague. ........................................................................................56 B. As applied, the coercion statute violates the First Amendment. ..............................................................................58
Conclusion ...............................................................................................................59 Certificate of Compliance ........................................................................................62
Certificate of Service ...............................................................................................62 Index to Appendix ....................................................................................................63
iii INDEX OF AUTHORITIES
Page(s) CASES Abney v. United States, 431 U.S. 651 (1977) ............................................................................................ 36
Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) ............................................................................ 13 Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) ........................................................... 39 Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ............................................................................................ 10
Baker v. Carr, 369 U.S. 186 (1962) ............................................................................................ 43 Barnes v. Secretary of Admin., 586 N.E.2d 958 (Mass. 1992) ............................................................................. 42 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ............................................................................42, 48, 50, 51
Bowles v. Clipp, 920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ................................... 46
Camacho v. Samaniego, 954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) .................................. 48
Canfield v. Gresham, 17 S.W. 390 (Tex. 1891)...............................................................................45, 47
Citizens United v. Fed. Election Comm’n, 558 U.S. 320 (2010) ............................................................................................ 33
City of Seattle v. Ivan, 856 P.2d 1116 (Wash. App. 1993) ..................................................................... 14
iv Coffin v. Coffin, 4 Mass. 1 (1808) ................................................................................................. 46
Colautti v. Franklin, 439 U.S. 379 (1979) ............................................................................................ 25
Coleman v. Miller, 307 U.S. 433 (1939) ............................................................................................ 42
Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex. Crim. App. 1977) ........................................................... 20
Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) ........................................................... 40
Crouch v. Civil Service Comm’n of Tex. City, 459 S.W.2d 491 (Tex. Civ.
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ACCEPTED 03-15-00063-CR 4288674 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/25/2015 9:54:12 PM JEFFREY D. KYLE CLERK NO. 03-15-00063-CR IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 2/25/2015 9:54:12 PM JEFFREY D. KYLE Clerk EX PARTE JAMES RICHARD “RICK” PERRY
ON APPEAL FROM THE 390TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS, CAUSE NO. D-1-DC-14-100139
APPELLANT’S BRIEF
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P. Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower San Jacinto Center 600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500 Houston, Texas 77002 Austin, Texas 78701-4078 Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com Telephone: 713.223.5393 Telephone: 512.322.2500 Facsimile: 713.223.5909 Facsimile: 512.322.2501
BOTSFORD & ROARK David L. Botsford State Bar No. 02687950 1307 West Avenue Austin, Texas 78701 dbotsford@aol.com Telephone: 512.479.8030 Facsimile: 512.479.8040 IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of the
names and addresses of all parties and counsel in this case.
Appellant: Governor James Richard “Rick” Perry.
Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078; and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701.
State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511, Austin, Texas, 78701.
i TABLE OF CONTENTS Identity of Parties and Counsel .................................................................................. i Index of Authorities ................................................................................................. iv
Statement of the Case...............................................................................................xv
Statement Regarding Oral Argument .................................................................... xvi Issues Presented .................................................................................................... xvii Statement of the Facts ................................................................................................1
Summary of the Argument.........................................................................................3
Argument....................................................................................................................7
I. Count II must be dismissed because the coercion statute is facially unconstitutional under the First Amendment. ......................... 7 A. The coercion statute is facially overbroad. ...............................10
B. The coercion statute is not the least restrictive means of serving a compelling state interest. ...........................................17
II. Count II also must be dismissed because the coercion statute is unconstitutionally vague on its face. .................................................. 22 III. Governor Perry’s other constitutional challenges are all cognizable in a pretrial habeas proceeding. ....................................... 28
A. General principles of cognizability ...........................................29 B. Governor Perry’s claims are cognizable in a pretrial habeas proceeding. ....................................................................33
IV. The indictment violates the constitutional separation of powers. ...... 38
V. The indictment violates the Texas Speech or Debate Clause and the common-law doctrine of legislative immunity. ........................... 45 VI. The abuse-of-official-capacity statute is unconstitutionally ii vague as applied to the veto alleged on the face of the indictment. ......................................................................................... 53 VII. The coercion statute is unconstitutional as applied to the veto threat alleged on the face of the indictment. ...................................... 55
A. As applied, the coercion statute is unconstitutionally vague. ........................................................................................56 B. As applied, the coercion statute violates the First Amendment. ..............................................................................58
Conclusion ...............................................................................................................59 Certificate of Compliance ........................................................................................62
Certificate of Service ...............................................................................................62 Index to Appendix ....................................................................................................63
iii INDEX OF AUTHORITIES
Page(s) CASES Abney v. United States, 431 U.S. 651 (1977) ............................................................................................ 36
Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) ............................................................................ 13 Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) ........................................................... 39 Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ............................................................................................ 10
Baker v. Carr, 369 U.S. 186 (1962) ............................................................................................ 43 Barnes v. Secretary of Admin., 586 N.E.2d 958 (Mass. 1992) ............................................................................. 42 Bogan v. Scott-Harris, 523 U.S. 44 (1998) ............................................................................42, 48, 50, 51
Bowles v. Clipp, 920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ................................... 46
Camacho v. Samaniego, 954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) .................................. 48
Canfield v. Gresham, 17 S.W. 390 (Tex. 1891)...............................................................................45, 47
Citizens United v. Fed. Election Comm’n, 558 U.S. 320 (2010) ............................................................................................ 33
City of Seattle v. Ivan, 856 P.2d 1116 (Wash. App. 1993) ..................................................................... 14
iv Coffin v. Coffin, 4 Mass. 1 (1808) ................................................................................................. 46
Colautti v. Franklin, 439 U.S. 379 (1979) ............................................................................................ 25
Coleman v. Miller, 307 U.S. 433 (1939) ............................................................................................ 42
Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex. Crim. App. 1977) ........................................................... 20
Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) ........................................................... 40
Crouch v. Civil Service Comm’n of Tex. City, 459 S.W.2d 491 (Tex. Civ. App.CHouston [14th Dist.] 1970, writ ref’d n.r.e.) ................................................................................................................... 25
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) ............................................................. 55 D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) ............................................................................. 49 Doe v. McMillan, 412 U.S. 306 (1973) ................................................................................46, 47, 49
Dombrowksi v. Eastland, 387 U.S. 82 (1967) .............................................................................................. 36
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979) ........................................................... 23
Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) .....................................................32, 35
Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005) ........................................................... 29
v Ex Parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) ...............................................30, 31, 32
Ex parte Elliott, 973 S.W.2d 737 (Tex. App—Austin 1998, pet. ref’d) .................................32, 40
Ex Parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) .......................................................31, 34
Ex parte Ferdin, 183 S.W.2d 466 (Tex. Crim. App. 1944) ........................................................... 43
Ex parte Giles, 502 S.W.2d 774 (Tex. Crim. App. 1974) ........................................................... 40
Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013) ........................................................... 40
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) .................................................18, 19, 40
Ex parte Meza, 185 S.W.2d 444 (Tex. Crim. App. 1945) ........................................................... 43 Ex Parte McCullough, 966 S.W.2d 529 (Tex. Crim. App. 1998) ........................................................... 32 Ex parte Pitt, 206 S.W.2d 596 (Tex. Crim. App. 1947) ........................................................... 43
Ex parte Rathmell, 717 S.W.2d 33 (Tex. Crim. App. 1986) ............................................................. 31
Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982) .........................................31, 32, 36, 37
Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005) .........................................30, 31, 32, 34
Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) ...................................................8, 9, 19
vi Ex parte Watkins, 73 S.W.3d 264 (Tex. Crim. App. 2002) .......................................................31, 33
Ex parte Weise, 55 S.W.3d 617 (Tex. 2001).....................................................................30, 31, 32
Fulmore v. Lane, 140 S.W. 405 (Tex. 1911)................................................................................... 41
Garrison v. La., 379 U.S. 64 (1964) .............................................................................................. 17
Goldwater v. Carter, 444 U.S. 996 (1979) ............................................................................................ 42
Gooding v. Wilson, 405 U.S. 518 (1972) ............................................................................................ 23
Gravel v. United States, 408 U.S. 606 (1972) ......................................................................................46, 47
Grayned v. Rockford, 408 U.S. 104 (1972) ......................................................................................22, 23 Helstoski v. Meanor, 442 U.S. 500 (1979) ............................................................................................ 36 Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) ........................................................... 29
Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981) ............................................................................ 48
Homan v. Branstad, 812 N.W.2d 623 (Iowa 2012) ............................................................................. 42
In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) .............................................................................. 37
In re Perry, 60 S.W.3d 857 (Tex. 2001)...............................................................36, 47, 49, 50
vii Irons v. R.I. Ethics Comm’n, 973 A.2d 1124 (R.I. 2009) .................................................................................. 50
Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1976) ........................................................................41, 48
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) ........................................................... 34
Kilbourn v. Thompson, 103 U.S. 168 (1880) ......................................................................................46, 47
Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) .............................................................................. 23
Langever v. Miller, 76 S.W.2d 1025 (Tex. 1934) .............................................................................. 39
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1991) ...............................................22, 23, 25
Luther v. Borden, 48 U.S. 1 (1849) .................................................................................................. 42 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .............................................................................................. 8 Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) ........................................................... 39
Meyer v. Grant, 486 U.S. 414 (1988) ..................................................................................8, 17, 58
Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................................................................................ 36
Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) ........................................................... 48
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) ............................................................................................ 12
viii New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................................................. 8
Nixon v. United States, 506 U.S. 224 (1993) ............................................................................................ 42
Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006) ........................................................... 26
Papachristou v. City of Jacksonville, 405 U.S. 156 (1971) ............................................................................................ 23
People v. Iboa, 207 Cal. App. 4th 111 (2012) ............................................................................. 15
Phillips v. State, 401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d)............................. 16
Pickle v. McCall, 24 S.W. 265 (Tex. 1893)..................................................................................... 41
Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)................ 19 Roberts v. State, 278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d).......................20, 27 Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) .....................................................12, 20
Shade v. U.S. Congress, 942 F. Supp. 2d 43 (D.D.C. 2013) ...................................................................... 48
Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1989) ........................................................... 37
Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316 (Wash. 1910) .................................................................................... 42
State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. 1973) ............................................................................... 42
ix State ex rel. Dickson v. Saiz, 308 P.2d 205 (N.M. 1957) .................................................................................. 42
State ex rel. Lykos v. Fine, 330 S.W.3d 094 (Tex. Crim App. 2011) ......................................................31, 34
State ex rel. Wis. Senate v. Thompson, 424 N.W.2d 385 (Wisc. 1988) ............................................................................ 42
State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983)................................................................. 49
State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ....................................passim
State v. Holton, 997 A.2d 828, 856 (Md. Ct. Spec. App. 2010).............................................49, 50
State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) ........................................................... 29
State v. Neufeld, 926 P.2d 1325 (Kan. 1996) ................................................................................. 49 State v. Pauling, 69 P.3d 331 (Wash. 2003) .................................................................................. 15 State v. Robertson, 649 P.2d 569 (Or. 1982) ..................................................................................... 14
State v. Strong, 272 P.3d 281 (Wash. App. 2012) ....................................................................... 12
State v. Weinstein, 898 P.2d 513 (Ariz. Ct. App. 1995)..............................................................13, 14
Tenney v. Brandhove, 341 U.S. 367 (1951) ................................................................................46, 47, 50
Tobias v. State, 884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ...................18, 19, 27
x U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit, 624 F. Supp. 68 (N.D. Ill. 1985) ...................................................................12, 14
United States v. Beery, 678 F.2d 856 (10th Cir. 1982) ............................................................................ 52
United States v. Brewster, 408 U.S. 501 (1972) ......................................................................................48, 52
United States v. Coss, 677 F.3d 278 (6th Cir. 2012) .............................................................................. 12
United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973) .............................................................................. 49
United States v. Helstoski, 442 U.S. 477 (1979) ................................................................................47, 48, 49
United States v. Jackson, 180 F.3d 55 (2d Cir. 1999) ...........................................................................13, 15
United States v. Johnson, 383 U.S. 169 (1966) ..........................................................................47, 49, 50, 52 United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995) .............................................................................. 52 United States v. Lanier, 520 U.S. 259 (1997) ............................................................................................ 54
United States v. Myers, 635 F.2d 932 (2d Cir. 1980) .........................................................................36, 37
United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) ............................................................................................ 33
United States v. Renzi, 686 F. Supp. 2d 956 (D. Ariz. 2010) .................................................................. 52
United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994) .............................................................................. 36
xi United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995) ............................................................................ 52
United States v. Stevens, 559 U.S. 460 (2010) .............................................................................................. 9
United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992) ....................................................................51, 52
United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) ............................................................................ 13
United States v. Williams, 553 U.S. 285 (2008) .............................................................................................. 9
United States v. Zielezinski, 740 F.2d 727 (1984)............................................................................................ 52
Van Arsdel v. Texas A&M Univ., 628 F.2d 344 (5th Cir. 1980) .............................................................................. 26
Virginia v. Black, 538 U.S. 343 (2003) ........................................................................................ 8, 12 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) .............................................................................................. 9 Watts v. United States, 394 U.S. 705 (1969) ............................................................................................ 12
Whimbush v. People, 869 P.2d 1245 (Colo. 1994) ................................................................................ 14
Willborn v. Deans, 240 S.W.2d 791 (Tex. Civ. App.CAustin 1951, writ ref’d n.r.e.) ..................... 25
Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983) ......................................................................12, 14
xii STATUTES Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, Tex. Gen. Laws 3586 ....... 59 Tex. Penal Code § 1.07(a)(9) .................................................................................. 11
Tex. Penal Code § 1.07(a)(9)(F) .......................................................................... 7, 24
Tex. Penal Code § 1.07(a)(41) ................................................................................ 11
Tex. Penal Code § 1.07(a)(48) .........................................................15, 20, 21, 27, 59
Tex. Penal Code § 36.03(a)(1) .......................................................................7, 10, 24 Tex. Penal Code § 36.03(c)...................................................................................... 11 Tex. Penal Code § 36.06(a)..........................................................................15, 20, 27
Tex. Penal Code § 39.02(a)(2) ...........................................................................53, 54
Tex. Penal Code § 42.07(a)(2) ................................................................................. 20
OTHER AUTHORITIES 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 339 (George D. Braden ed. 1977) ................................................................................................................... 41
G. DIX AND R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254 (Supp. 2005) .................................................................... 34
Senate Research Center, Budget 101: A Guide to the Budget Process in Texas at 3, 10 (Jan. 2013).............................................................................................. 55
Texas Legislative Council, Facts at a Glance: Comparison of Punishment and Sentencing Provisions in the 1993 and 2003 Penal Code (2005) ............... 59
LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32, 1036 (2d ed. 1988) ..................................................................................................................... 9
Tex. Const. art. III, § 49a ......................................................................................... 55
xiii Tex. Const. art. IV, § 14............................................................................. xvi, 44, 58
Tex. Const. art. XV, §§ 1-5 ...................................................................................... 44
U.S. Const. amend. I .................................................................................................. 8
xiv STATEMENT OF THE CASE Nature of the case: The State charged Governor James Richard “Rick” Perry in a two-count indictment with abuse of official capacity and coercion of a public servant. CR4. Governor Perry filed an Application for Pretrial Writ of Habeas Corpus seeking dismissal of the indictment primarily on constitutional grounds. CR11.
Trial court and judge: Honorable Bert Richardson, Judge Presiding, 390th Judicial District, Travis County, Texas, Cause No. D1DC14-100139.
Course of proceedings and disposition The district court signed an order on below: January 27, 2015, denying the Application. CR464. Governor Perry timely filed his notice of appeal, CR438, and the district court certified Governor Perry’s right to appeal. 1SUPPCR12-13.
xv STATEMENT REGARDING ORAL ARGUMENT Governor Perry does not seek oral argument in this appeal. The issues,
although complex and of constitutional magnitude, have been extensively briefed,
and the public interest will be best served by expedited resolution of this appeal.
Until it is resolved, the pendency of this case inevitably will have a chilling effect on
the current Governor’s potential exercise of his veto power over items in the
Legislature’s forthcoming appropriations bill. 1 Nonetheless, Governor Perry is
willing to present oral argument should the Court believe it to be helpful, and he
would only ask that any oral argument be scheduled on an expedited basis.
1 The Texas Constitution gives the governor ten days from presentation of a bill to sign or veto it, although this period can be extended until up to twenty days after the regular session ends for appropriations bills passed at the very end of the session. Tex. Const. art IV, § 14. Since the Regular Session of the 84th Legislature will end not later than June 1, 2015, Governor Abbott will have to exercise any veto over items in any appropriations bill passed during the regular session by no later than about June 21, 2015, although the deadline could be sooner if the bill passes the Legislature before the end of the session.
xvi ISSUES PRESENTED 1. Free Speech. Is the offense of Coercion of a Public Servant, as defined in Texas Penal Code Sections 36.03(a)(1) and 1.07(a)(9)(F), facially invalid as a violation of the First Amendment to the U.S. Constitution?
A. Overbreadth. Is the offense unconstitutionally overbroad because it prohibits a substantial amount of protected speech, including threats to take lawful action?
B. Strict Scrutiny. Does the offense fail to survive strict-scrutiny review because, far from being necessary to serve a compelling state interest, its applications are either redundant or unconstitutional?
2. Vagueness. Is the offense of Coercion of a Public Servant, as defined in Texas Penal Code Sections 36.03(a)(1) and 1.07(a)(9)(F), void for vagueness on its face because all of its applications are either redundant or unconstitutional, thus requiring guesswork about its scope?
3. Cognizability. Did the district court err by holding that Governor Perry’s as-applied challenges to the indictment were not cognizable in a pretrial habeas proceeding, where those challenges can be decided based solely on the face of the indictment and the applicable statutes, and the challenges involve a right not to be tried which can only be vindicated by a pretrial remedy?
4. Separation of Powers. Did the district court err by failing to dismiss the indictment because the prosecution unconstitutionally interferes with the governor’s veto power, which is entrusted to the governor’s sole discretion by the Texas Constitution? 5. Immunity. Did the district court err by failing to dismiss the indictment because Governor Perry is immune from prosecution for the acts alleged on the face of the indictment under both the Texas Speech or Debate Clause and the related doctrine of legislative immunity?
6. Count I As-Applied. Did the district court err by failing to dismiss Count I because the abuse-of-official-capacity statute does not give fair notice that it might apply to gubernatorial vetoes and is therefore unconstitutionally vague as applied to the facts alleged on the face of the indictment?
xvii 7. Count II As-Applied. Did the district court err by failing to dismiss Count II because the statute is unconstitutional as applied to the facts alleged on the face of the indictment?
A. Vagueness. Is the coercion statute unconstitutionally vague as applied to the facts alleged on the face of the indictment because it fails to give fair notice that it might apply to threats of lawful action?
B. Free speech. Is the coercion statute unconstitutionally vague as applied to the facts alleged on the face of the indictment because threats to commit lawful action are protected speech under the First Amendment?
xviii STATEMENT OF THE FACTS Last summer, a Travis County grand jury returned a two-count indictment
against then-Governor James Richard “Rick” Perry. CR4. Count I alleges that
Governor Perry committed Abuse of Official Capacity under Section 39.02(a) of the
Texas Penal Code. The gist of this charge is that he “misused” government property
by vetoing funding for the Travis County Public Integrity Unit (“PIU”). Id. Count II
alleges that Governor Perry committed Coercion of a Public Servant under Sections
36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code. This charge alleges that he
attempted to “influence” Travis County District Attorney Rosemary Lehmberg by
threatening to veto funding for the PIU. CR5. In short, the charges are that
Governor Perry broke the law by threatening and issuing a veto. Governor Perry
made bond and was processed by the Travis County Sheriff. CR10.
Ten days after the indictment was returned, Governor Perry filed his
Application for Pretrial Writ of Habeas Corpus (the “Application”), which sought to
bar the prosecution and dismiss both counts of the indictment. CR11. The
Application made nine constitutional challenges to Count I and twelve challenges
(all of which but one were on constitutional grounds) to Count II. CR17-19. The
district court gave the State almost three months to file its response, which was not
1 filed until November 7, 2014. CR274. Governor Perry promptly filed a reply in
support of the Application. CR391.
Fourteen nationally-known constitutional scholars filed an amicus curiae
brief in support of Governor Perry’s Application. CR367-90. The amici supported
Governor Perry’s prayer for dismissal of Count I on two grounds: (1) that the
constitutional doctrine of Separation of Powers precluded the Legislature from
criminalizing the exercise of a constitutionally authorized gubernatorial veto; and
(2) that Governor Perry cannot be prosecuted for his veto because he is entitled to
absolute legislative immunity for any exercise of his veto power. CR375-84. The
amici also supported Governor Perry’s prayer for dismissal of Count II on the
ground that it criminalizes speech protected by the First Amendment. CR384-89.
In late January 2015, the district court denied the Application without an oral
hearing. CR464. The court rejected on the merits Governor Perry’s facial
overbreadth and vagueness challenges to the coercion statute on which Count II is
based. CR474-82. The court ruled that the remainder of Governor Perry’s
constitutional challenges were not cognizable in a pretrial habeas proceeding
because they supposedly raised merely as-applied, rather than facial, constitutional
arguments. CR468-73. While the court acknowledged that these arguments were
“compelling” and “may be relevant at a later time,” it declined to reach their merits
2 on the mistaken belief that “the court’s hands are tied” under existing case law
regarding cognizability. CR472-73. As a result, the district court has set this case on
a path to trial.2
SUMMARY OF THE ARGUMENT Former Governor Rick Perry is being prosecuted for a veto and an alleged
veto threat. At stake is not just the freedom of one man. The veto power will either
be preserved and continue its vital role as a check on the other branches of
government in this State, or its use will only be contemplated against the backdrop
of possible criminal prosecution. Beyond that, all Texas public officials may find
their speech stifled by an overbroad criminal statute that restricts their ability to
negotiate and manage government affairs.
Fortunately, multiple provisions of the Texas and U.S. Constitutions
proscribe the continuance of this misguided prosecution. The constitutionally-
mandated separation of powers protects the Governor’s veto authority and
discussions related to it from interference by the other branches, such as through
penal laws enacted by the Legislature and enforced by the judiciary. Freedom of
speech protects the governor and the rest of the public from the chilling effect of
2 The district court also held that Governor Perry’s one statutory challenge to Count II was not cognizable in a pretrial habeas proceeding, CR482, but the court sustained this same statutory challenge in ruling on Governor Perry’s motion to quash. CR459-62 (sustaining challenge to Count II for failing to negate statutory exception and granting State leave to amend).
3 vague and overbroad laws that sweep up protected speech in a misguided effort to
ensure that no possible misconduct escapes punishment. On its face, without the
need for any evidence, the indictment must be dismissed because it runs afoul of
these constitutional guarantees.
Governor Perry filed a pretrial application for habeas corpus so that dismissal
could occur immediately, before the indictment did further personal damage to him
or caused further distraction from the public’s business. He raised two facial
challenges to the coercion statute, which targets the content of speech on its face and
is presumptively unconstitutional. He also raised a number of as-applied challenges
to the coercion statute and the abuse-of-official-capacity statute. In one form or
another, these challenges all sought to vindicate the bedrock constitutional
principles of separation of powers and freedom of speech.
The district court denied relief without fully grappling with Governor Perry’s
challenges. The court addressed the merits of Governor Perry’s two facial
challenges to the coercion statute, but the court never acknowledged the dramatic
overbreadth of that statute, much less reconciled it with freedom of speech. The
court then disposed of Governor Perry’s other challenges, including the ones based
on separation of powers, on procedural grounds. While acknowledging that these
challenges were, in the court’s own words, “persuasive” and “compelling,” the court
4 fixated on the “as-applied” label to hold that these challenges were never cognizable
in a pretrial habeas corpus proceeding and can only be brought, if at all, after the
burden of trial.
Governor Perry now seeks relief from this Court to rectify these errors. As
shown below, the coercion statute is facially overbroad and cannot survive strict
scrutiny. By criminalizing all statements by public servants that threaten lawful
action and merely have the effect of influencing another public servant, the statute
condemns ordinary negotiation, management, and policy-making within state and
local governments across Texas. The First Amendment’s protections are at their
zenith with regard to such core political speech. Compounding this problem is the
coercion statute’s facial vagueness. Reasonable people must guess at what conduct
is prohibited by the statute’s constitutionally problematic reference to threats (which
are not statutorily required to be “unlawful”). And the statute creates a trap for the
unwary by defining the crime with reference to consequences (“influencing a public
servant”) without requiring that offenders have any intent or knowledge regarding
those consequences.
The district court also misapprehended the nature of Governor Perry’s
as-applied challenges. Because these challenges can be decided from the face of the
indictment, unlike typical as-applied challenges which require development of a
5 factual record at trial, Governor Perry’s as-applied challenges are ripe for review and
cognizable in pretrial habeas. All the factors underlying Texas habeas jurisprudence
support cognizability here. Indeed, the most wasteful and prejudicial course would
be to proceed to trial with the legally appropriate means of pre-trial resolution so
close at hand. In addition, Governor Perry’s challenges based on the Texas
Constitution’s Separation of Powers Clause, its Speech or Debate Clause, and
legislative immunity all involve a right not to be tried, which—like challenges
based on double jeopardy—must be vindicated before trial in order to have any
meaning at all. The paramount public interest in the effective functioning of state
institutions in general, and the untrammeled exercise of the line-item veto by the
governor in particular, likewise counsels in favor of prompt resolution of these
challenges. For all these reasons, Governor Perry’s as-applied challenges are
cognizable in pretrial habeas.
On the merits of his as-applied challenges, Governor Perry concurs with the
district court—the challenges are indeed “persuasive” and “compelling.” The Texas
Constitution requires that the governor’s veto power, including communications
about the use of that power, be kept free from interference by other branches.
And because governors act in a legislative capacity when exercising and
communicating about the veto power, they enjoy the protection of the Texas
6 Speech or Debate Clause and legislative immunity, both of which bar prosecution
for legislative activity. Finally, Governor Perry had no fair notice that the
abuse-of-official-capacity statute would apply to vetoes, nor that the coercion statute
would apply to threats of lawful action. And in any event, Texas case law squarely
holds that threats to take lawful action are protected speech under the First
Amendment and cannot be criminalized.
For all these reasons, Governor Perry asks the Court to halt this
unconstitutional prosecution by granting his application for habeas relief and
ordering the indictment dismissed, thereby eliminating any further stifling effect on
the Office of the Governor.
ARGUMENT I. Count II must be dismissed because the coercion statute is facially unconstitutional under the First Amendment. Despite the requirements of the First Amendment to the U.S. Constitution, the
district court’s scrutiny of the coercion statute underlying Count II was far from
strict. CR475-478. The coercion statute squarely targets speech with a certain
content—i.e., “threat[s] . . . to take or withhold official action” that “influence”
public servants. Tex. Penal Code §§ 1.07(a)(9)(F), 36.03(a)(1). The statute is
therefore subject to perhaps the most searching scrutiny known to American law.
Because of the special, almost sacred status our society accords to freedom of speech,
7 even well-written statutes often fail to withstand the rigors of strict scrutiny. A
fortiori, poorly-written statutes like the one at issue here—which smothers a wide
swath of protected speech under the banner of criminality and serves no purpose not
already served by more narrowly tailored laws—must be struck down.
CR18,30-41,384-89,409-13.
The First Amendment, which has been incorporated by the Due Process
Clause of the Fourteenth Amendment to apply to the states, e.g., Virginia v. Black,
538 U.S. 343, 358 (2003), provides that “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. Core political speech, such as the
alleged statement by Governor Perry that he would exercise his veto power if
Lehmberg did not resign, lies at the very heart of First Amendment protection. See
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (courts must apply
“exacting scrutiny” to laws burdening core political speech); Meyer v. Grant, 486
U.S. 414, 422 (1988) (First Amendment protection is “at its zenith” for core political
speech). This heightened protection stems from our “profound national
commitment” to the principle that “debate on public issues should be uninhibited,
robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
“Content-based regulations are presumptively invalid, and it is rare that a regulation
restricting speech because of its content will ever be permissible.” Ex parte
8 Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014) (internal footnote and
quotation marks omitted).
To succeed in a typical facial attack, a defendant must establish “that no set of
circumstances exists under which [the statute] would be valid.” United States v.
Stevens, 559 U.S. 460, 472 (2010). However, in the context of the First Amendment,
the Supreme Court recognizes “a second type of facial challenge,” whereby a law
may be invalidated as overbroad if “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at
473 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449, n.6 (2008) (internal quotation marks omitted)). Thus, a statute is facially
unconstitutional and violates the overbreadth doctrine if “it prohibits a substantial
amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008).
A law that is overbroad cannot be validly applied against any individual. LAWRENCE
H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32, 1036 (2d ed. 1988). Courts
must not “uphold an unconstitutional statute merely because the Government
promised to use it responsibly.” Thompson, 442 S.W.3d at 350 (quoting Stevens,
559 U.S. at 480).
In addition, a statute regulating the content of speech—such as the coercion
statute’s prohibition of certain “threats”—is subject to “strict scrutiny” and will be
9 invalidated unless it constitutes the “least restrictive means” of effectuating a
“compelling [state] interest.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656,
658, 666 (2004). A statute that prohibits protected speech “is unacceptable if less
restrictive alternatives would be at least as effective in achieving the legitimate
purpose that the statute was enacted to serve,” and “the burden is on the Government
to prove that the proposed alternatives would not be as effective as the challenged
statute.” Id. at 665.
A. The coercion statute is facially overbroad. The statutory language that forms the basis for Count II is written in broad
strokes. It begins with Section 36.03(a)(1), which makes it a crime to coerce a
public servant. An individual commits an offense if he or she, “by means of
coercion . . . influences or attempts to influence a public servant in a specific
exercise of his official power or a specific performance of his official duty or
influences or attempts to influence a public servant to violate the public servant’s
known legal duty.” Tex. Penal Code § 36.03(a)(1). “Coercion” is then defined in
the definition section of the Penal Code as
a threat, however communicated: (A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or another;
10 (C) to accuse a person of any offense;
(D) to expose a person to hatred, contempt, or ridicule;
(E) to harm the credit or business repute of any person; or
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
Id. § 1.07(a)(9). Governor Perry is charged with making a threat under
subpart (F)—that is, threatening to take official action. “Public servant” is also
defined broadly to encompass all aspects of state government, including any “officer,
employee, or agent of government,” “a juror or grand juror,” “an arbitrator,” a
political candidate, and even “an attorney at law or notary public when participating
in the performance of a government function.” Id. § 1.07(a)(41). The coercion
statute contains a single, narrow exception, for “member[s] of the governing body of
a governmental entity.” Id. § 36.03(c).
To be clear, Governor Perry is challenging the facial constitutionality of
Section 36.03(a)(1) only in conjunction with the definition of coercion in Section
1.07(a)(9)(F). He is not challenging either of these provisions standing alone.
Some applications of Sections 36.03(a)(1) and 1.07(a)(9) do not violate the
First Amendment. For example, a state can outlaw threats of violence against a
public servant without raising any First Amendment concerns. “True
threats”—which the U.S. Supreme Court has defined as “statements where the
11 speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence”—have no First Amendment protection. Black, 538 U.S. at 359
(no protection for cross burning that communicates threat of bodily harm or death);
see also Watts v. United States, 394 U.S. 705, 707-08 (1969) (no protection for
threat to assassinate the President of the United States). Threats to commit an
unlawful act are also generally not protected. See Wurtz v. Risley, 719 F.2d 1438,
1442 (9th Cir. 1983) (no protection for threat to commit rape); U.S. ex rel. Holder v.
Circuit Court of 17th Judicial Circuit, 624 F. Supp. 68, 71 (N.D. Ill. 1985) (no
protection for threat to damage property). And some courts have also held that the
First Amendment does not protect extortion (i.e., threats of harm or defamation
made to obtain a wrongful profit). See United States v. Coss, 677 F.3d 278, 289-90
(6th Cir. 2012) (no protection for threat to damage reputation made with intent to
wrongfully obtain property); cf. Sanchez v. State, 995 S.W.2d 677, 687-88 (Tex.
Crim. App. 1999) (no protection for sexual harassment made with intent to
wrongfully obtain sexual favors); see also State v. Strong, 272 P.3d 281, 287 (Wash.
App. 2012) (noting that extortion involves “compelling of the victim to give up
property” and is thus “an extension of theft”).
“Speech does not lose its protected character, however, simply because it may
embarrass others or coerce them into action.” N.A.A.C.P. v. Claiborne Hardware
12 Co., 458 U.S. 886, 910 (1982). Most threats do not fall into the categories of
unprotected speech listed above and instead enjoy “broad protection” under the First
Amendment. Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1014
(7th Cir. 1984). Non-extortionate threats to commit lawful action are protected by
the First Amendment, even if they influence another public servant. See State v.
Hanson, 793 S.W.2d 270, 273 (Tex. App.—Waco 1990, no pet.) (“Coercion of a
lawful act by a threat of lawful action is protected free expression.”). And courts
have recognized that “a threat to cause economic loss is not inherently wrongful.”
United States v. Jackson, 180 F.3d 55, 70 (2d Cir. 1999) (listing, as examples, a
consumer’s threat to sue for breach of warranty or file a complaint with a consumer
protection agency). Indeed, threats are “common in everyday business and personal
interactions.” State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 1995) (listing, as
examples, car owner’s threat to tell friends not to patronize a dealer unless repairs
are made, a store owner’s threat to report a customer to a credit reporting agency
unless bills are paid, and a mother’s threat to report her ex-husband to the court if he
fails to pay back child support). Threats are also common in American political
discourse, often being inseparable from ideas or advocacy. See United States v.
Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (giving, as an example, a threat to
picket an organization to induce social or political action). Even threats to commit
13 minor criminal offenses (such as threats of civil disobedience) can be protected
speech. See Wurtz, 719 F.2d at 1442 (listing, as examples, threats of sit-ins, marches
in the street, and mass picketing); Holder, 624 F. Supp. at 70 (listing additional
examples).
Given the broad protection accorded to threats under the First Amendment,
courts have not hesitated to strike down broadly-written coercion and extortion laws
on grounds of overbreadth. See, e.g., Wurtz, 719 F.2d at 1441-42 (striking down
Montana intimidation statute prohibiting threats “to commit any criminal offense,”
no matter how minor or the purpose of the threat); Holder, 624 F. Supp. at 71
(striking down Illinois intimidation statute prohibiting threats to “commit any
criminal offense”); Weinstein, 898 P.2d at 515 (striking down extortion statute that
prohibited obtaining property by threats to expose disreputable information, which
impinged on legitimate negotiation tactics); Whimbush v. People, 869 P.2d 1245,
1247-48 (Colo. 1994) (striking down extortion statute prohibiting making any threat
to harm with intent to induce action, which improperly “covers threats of collective
action in support of group demands”); State v. Robertson, 649 P.2d 569, 589-90 (Or.
1982) (striking down coercion statute prohibiting a wide range of threats merely
intended to induce some action by another); City of Seattle v. Ivan, 856 P.2d 1116,
1120 (Wash. App. 1993) (striking down city’s coercion ordinance which prohibited
14 a wide range of threats merely intended to induce some action by another). Other
courts have given coercion and extortion statutes narrow constructions to avoid
constitutional issues. See, e.g., Jackson, 180 F.3d at 70 (construing extortion statute
to only include “wrongful” threats to obtain property from another, and recognizing
that some threats to obtain property are legitimate negotiation tactics); People v.
Iboa, 207 Cal. App. 4th 111, 120 (2012) (statute proscribing use of “threats” to
interfere with duties of executive officer construed as limited to “threats of unlawful
violence”); State v. Pauling, 69 P.3d 331, 387-89 (Wash. 2003) (narrowing
otherwise overbroad extortion statute to only include “wrongful” threats made with
intent to obtain property from another).
As written, Sections 36.03(a)(1) and 1.07(a)(9)(F) criminalize a breathtaking
amount of constitutionally protected speech. As explained above, they purport to
criminalize (with only one exception) any threat by a public servant to take any
official action as a means of merely influencing the conduct of any other public
servant. Importantly, the statute is not limited to threats of “unlawful” conduct, see
Tex. Penal Code § 1.07(a)(48) (defining “unlawful” as “criminal or tortious or
both”), in contrast to other similar statutes. See, e.g., id. § 36.06(a) (illegal to
“intentionally or knowingly . . . threaten[] to harm another by an unlawful act” in
retaliation for public service (emphasis added)).
15 The implications are astounding, as they would render many common
scenarios in state government criminal. For instance, a manager could not threaten
to fire or demote a government employee for poor performance. A government
employee could not threaten to resign unless her pay or benefits were increased, or
to file a complaint unless workplace harassment were stopped. A judge could not
threaten to sanction an attorney for the State, to declare a mistrial if jurors did not
avoid misconduct, or to deny warrants that failed to contain certain information. An
inspector general could not threaten to investigate an agency’s financial dealings. A
prosecutor could not threaten to bring charges against another public servant. A
university administrator could not threaten to withdraw funding from a professor=s
research program. A public defender could not threaten to file a motion for
suppression of evidence to secure a better plea bargain for his client. A prosecutor
could not communicate to a judge in chambers his intent to file a potentially
embarrassing motion to recuse unless the judge voluntarily recused herself. Were it
not for the fact that members of a “governing body” are excepted from the statute,
even members of the House and Senate would presumably be breaking the law when
they negotiated among themselves to resolve differences in conference committee.3
3 Indeed, even a threat directed against a third party can trigger criminal liability if intended to influence a public servant. See Phillips v. State, 401 S.W.3d 282, 289 (Tex. App.—San Antonio 2013, pet. ref’d) (upholding conviction of 911 caller who threatened to kill particular police officer and thus influenced which officer a 911 dispatcher sent to the scene). For example, a government 16 The list is virtually endless. Statements so intrinsic to government, particularly
when they relate to matters of public policy, lie at the core of First Amendment
protection. See Meyer, 486 U.S. at 422 (First Amendment protection is “at its zenith”
for core political speech); Garrison v. La., 379 U.S. 64, 74-75 (1964) (“[S]peech
concerning public affairs is more than self-expression; it is the essence of
self-government.”).
Inescapably, the literal words of Sections 36.03(a)(1) and 1.07(a)(9)(F)
prohibit a striking number of ordinary activities that involve constitutionally
protected speech, much of it political in nature. In fact, as written, the statutory
language would make the ordinary functioning of government impossible. This is a
textbook case of overbreadth.
B. The coercion statute is not the least restrictive means of serving a compelling state interest. The State cannot salvage Sections 36.03(a)(1) and 1.07(a)(9)(F) by arguing
that they are the least restrictive means of achieving a compelling state interest. Any
compelling state interests are already addressed by the other types of threats that
constitute “coercion” under Section 1.07(a)(9). The State surely has a compelling
interest in preventing threats of unlawful or criminal acts against public servants, but
employee who threatened a trespasser and thereby caused a nearby peace officer to intervene would be a criminal under these provisions.
17 Section 1.07(a)(9)(A) already covers threats “to commit an offense.” And while the
State has a compelling interest in preventing threats of violence against public
servants, Tobias v. State, 884 S.W.2d 571, 580-81 (Tex. App.—Fort Worth 1994,
pet. ref’d), this interest is already addressed by Section 1.07(a)(9)(B)’s coverage of
threats “to inflict bodily injury in the future on the person threatened or another.”
And to the extent extortionate threats against public servants are not already covered
by these prior two provisions, Sections 1.07(a)(9)(C) through (E) address threats of
defamation and invasion of privacy. In short, there is no compelling state interest
left to serve by Section 1.07(a)(9)(F)’s catch-all coverage of threats “to take or
withhold action as a public servant.” The only discrete function of this provision,
when combined with Section 36.03(a)(1), is to prohibit speech protected by the First
Amendment.
An analogous situation was presented in Ex parte Lo, 424 S.W.3d 10 (Tex.
Crim. App. 2013), in which the Court of Criminal Appeals struck down a subsection
of the Penal Code which prohibited sex-related online communications with minors.
That statute (like the one here) was a “content-based regulation” and “presumptively
invalid.” Id. at 15. According to the court, the statute was not narrowly tailored
because “everything that [it] prohibits and punishes is speech and is either already
prohibited by other statutes (such as obscenity, distributing harmful material to
18 minors, solicitation of a minor, or child pornography) or is constitutionally
protected,” such as sexually explicit works of literature and popular television shows
and movies. Id. at 20 (emphasis in original). The same logic applies to Sections
36.03(a)(1) and 1.07(a)(9)(F). See also Thompson, 442 S.W.3d at 349-50 (striking
down as overbroad a criminal photography statute because, while the statute had
some “legitimate applications,” it “appl[ied] to any non-consensual photograph,
occurring anywhere, as long as the actor ha[d] an intent to arouse or gratify sexual
desire,” including photographs of celebrities and public sunbathers).
To support its ruling, the district court below cited several cases where Texas
courts rejected facial First Amendment challenges to statutory language that was
narrowly drawn and not constitutionally overbroad. CR475-478. But these cases
deal with different statutory sections and distinguishable facts. The Second Court of
Appeals rejected a First Amendment challenge to Sections 36.03(a)(1) and
1.07(a)(9)(A), under which a private citizen was charged with threatening to
“commit an offense” (murder and assault) against three court-of-appeals justices.
Tobias, 884 S.W.2d at 580-82. The Fourteenth Court of Appeals upheld a retaliation
statute which prohibited “threat[s] to harm another by an unlawful act.” Puckett v.
State, 801 S.W.2d 188, 192 (Tex. App.CHouston [14th Dist.] 1990, pet. ref’d)
(emphasis added) (quoting former Tex. Penal Code § 36.06(a)). The Court of
19 Criminal Appeals upheld a harassment statute which prohibited “threat[s], by
telephone or in writing, to take unlawful action.” Collection Consultants, Inc. v.
State, 556 S.W.2d 787, 792 (Tex. Crim. App. 1977) (emphasis added) (quoting
former Tex. Penal Code § 42.07(a)(2)). The Fourth Court of Appeals upheld a theft
statute which prohibited extortionCi.e., “unlawfully appropriat[ing]” property by
means of “coercion” as defined in Section 1.07(a)(9)(D) and (E) (i.e., threats of
defamation). Roberts v. State, 278 S.W.3d 778, 790-93 (Tex. App.CSan Antonio
2008, pet. ref’d). Finally, the Court of Criminal Appeals upheld a sexual harassment
statute which prohibited public servants from conditioning a right or privilege on
submission to sexual advancesCconduct which the court analogized to extortion.
Sanchez, 995 S.W.2d at 687-88.
In every one of these cases, the statutes at issue were narrowly written to focus
on unprotected speech. None of these cases stands for the broad proposition that all
threats, regardless of their content, are unprotected speech, much less that the State
has a compelling interest in preventing their communication. And none of these
cases dealt with, much less upheld, the much broader statutory language at issue here,
which is not limited to threats to “unlawfully” take or withhold official action. See
Tex. Penal Code § 1.07(a)(48) (defining “unlawful” to mean “criminal or tortious or
20 both and includes what would be criminal or tortious but for a defense not
amounting to justification or privilege”).4
The only case to address the constitutionality of the statutory language at issue
here affirmed the dismissal of an indictment which was based on a threat of lawful
conduct. See Hanson, 793 S.W.2d at 273. As discussed below in connection with
Governor Perry=s vagueness challenges, Hanson held that a prior version of Section
36.03(a)(1) was unconstitutionally vague as applied to a threat of lawful action
because “[c]oercion of a lawful act by a threat of lawful action is protected free
expression,” and a reasonable person could only guess whether “the term ‘threat’
encompass[ed] a threat of lawful action or only prohibit[ed] a threat of unlawful
action.” Id. at 272 (emphasis added). While Hanson expressly declined to reach the
question of the statute=s overbreadth, id. at 273, its First Amendment holding
supports that challenge as well.
Text, precedent, and common sense all point to the same conclusion:
Sections 36.03(a)(1) and 1.07(a)(9)(F), in conjunction, would essentially
criminalize the ordinary give and take of politics as well as the administration of
state government, all in violation of the First Amendment and without serving any
compelling state interest. For these reasons, the statutory language is facially 4 As the district court recognized, Governor Perry intends to assert a “public duty” justification defense at trial under Texas Penal Code Section 9.21. CR472n.7.
21 unconstitutional and void; the district court erred as a matter of law in concluding
otherwise; and this Court should dismiss Count II of the indictment.
II. Count II also must be dismissed because the coercion statute is unconstitutionally vague on its face. Besides its overbreadth, the coercion statute is fatally unclear about the
conduct it purports to prohibit. CR18,35-41,413-16. The district court reasoned,
erroneously, that because some conduct (such as threats of violence) are clearly
covered by the language of the statute, the language must survive a facial vagueness
challenge. CR473-78. But laws regulating speech are measured by stricter
standards of certainty. As with overbreadth, Governor Perry is challenging the
facial vagueness of Sections 36.03(a)(1) and 1.07(a)(9)(F) when read together, not
either standing alone.
Due process requires that criminal laws be sufficiently clear in two distinct
respects. First, a person of ordinary intelligence must be given a reasonable
opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex.
Crim. App. 1991) (citing Grayned v. Rockford, 408 U.S. 104, 108 (1972)). Second,
the law must establish determinate, explicit guidelines to prevent arbitrary
enforcement by the government. Long, 931 S.W.2d at 287 (citing Grayned, 408 U.S.
at 108-09). Thus, a statute is void for vagueness if it “either forbids or requires the
doing of an act in terms so vague that men of common intelligence must guess as to
22 its meaning and differ as to its application.” Ely v. State, 582 S.W.2d 416, 419 (Tex.
Crim. App. 1979); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1971).
In addition, when First Amendment freedoms are implicated, as here, the law
must be sufficiently definite to avoid chilling protected expression. Long, 931
S.W.2d at 287-88 (citing Grayned, 408 U.S. at 109). “When a statute is capable of
reaching First Amendment freedoms, the doctrine of vagueness demands a greater
degree of specificity than in other contexts.” Long, 931 S.W.2d at 287 (quoting
Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) (quotation marks omitted)). That
heightened specificity is necessary to preserve the right of free expression because
“[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone
than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408
U.S. at 109 (internal ellipsis and quotation marks omitted). When a vagueness
challenge involves First Amendment considerations, the usual strictures of facial
challenges are relaxed; a criminal statute may be held facially invalid for vagueness
even though it may not be unconstitutional in every application or even as applied to
the defendant’s conduct. Long, 931 S.W.2d at 288 (citing Gooding v. Wilson, 405
U.S. 518 (1972)).
Sections 36.03(a)(1) and 1.07(a)(9)(F) raise a fundamental and vexing
question for any public servant who wishes to comply with the law: does the
23 statutory language actually prohibit any threat to “take or withhold action as a public
servant” that merely “influences” another public servant? As Hanson recognized,
substantial uncertainty exists about whether this language was truly intended to
embrace threats of lawful action, which are protected by the First Amendment. See
Hanson, 793 S.W.2d at 272-73 (holding this statutory language was
unconstitutionally vague as applied to threats of lawful action). 5 Moreover, a
similar uncertainty exists about whether the statute was intended to cover threats of
unlawful action, as such threats are already addressed by subparts (A) through (E) of
the “coercion” definition in Section 1.07(a)(9).
Further compounding the vagueness of these sections is the fact that the
offense requires no culpable mental state. Technically, an offense could be
committed under these provisions whenever a public servant makes a threat “to take
or withhold [official] action,” Tex. Penal Code § 1.07(a)(9)(F), as long as the threat
merely has the effect of “influenc[ing]” another public servant. Id. § 36.03(a)(1).
Indeed, the statutory language does not require that an offender even know about the
threat’s influence on the other public servant. Even a threat of official action
inadvertently heard and acted upon by another public servant could be a criminal
offense. The absence of a culpable mental state means that citizens cannot 5 This uncertainty is heightened now because public servants might reasonably rely on Hanson’s holding that the First Amendment protects threats of lawful action.
24 determine whether their conduct is prohibited—a plain violation of due process. See
Colautti v. Franklin, 439 U.S. 379, 394 (1979) (statute that criminalized killing a
viable fetus held unconstitutionally vague where no scienter was required with
respect to fetus’s viability, thus creating “a trap for those who act in good faith”);
Long, 931 S.W.2d 285 at 290 (striking down harassment statute as
unconstitutionally vague in part because statutory requirement of a police report
“does little or nothing to inform an ordinary person that his conduct is forbidden
because the subsection contains no culpable mental state”; “[t]he wording of the
statute does not require the defendant to know that the victim has made such a report”
(emphasis in original)).
The vagueness of the statutory language is underscored by the fact that it
confusingly appears to characterize as “coercion” a threat that does not even rise to
the level of duress. For example, a public official who resigns under duress is
allowed to rescind the resignation and recover the office. Crouch v. Civil Serv.
Comm’n of Tex. City, 459 S.W.2d 491, 494 (Tex. Civ. App.CHouston [14th Dist.]
1970, writ ref’d n.r.e.). Yet had Lehmberg resigned because of Governor Perry’s
alleged veto threat, she could not have shown duress. “[A] threat to do what one has
a legal right to do, as bringing suit in court to enforce a claimed civil right, cannot
constitute duress.” Willborn v. Deans, 240 S.W.2d 791, 793-95 (Tex. Civ.
25 App.CAustin 1951, writ ref’d n.r.e.) (emphasis added) (holding that sheriff could
not recover his office on grounds of duress after being pressured out of office by
district attorney’s threat to bring removal proceedings). Similarly, a threat that
“delineat[es] the options available” and forces a public official to make “a reasoned
choice between two validly imposed alternatives” is not duress as a matter of law.
Van Arsdel v. Tex. A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980) (holding that
university employee could not recover his position on grounds of duress after
resigning due to university’s threat to bring dismissal proceedings against him based
on accusations of sexual harassment).
The district court rejected Governor Perry=s facial vagueness challenge to
Sections 36.03(a)(1) and 1.07(a)(9)(F) without adequately addressing the substance
of that challenge. The trial court first noted that the word “threat” has established
dictionary definitions. CR480 (quoting Olivas v. State, 203 S.W.3d 341, 345-46
(Tex. Crim. App. 2006)). Most words do. But these definitions fail to resolve the
fundamental source of vagueness in the statutory language—i.e., whether the “threat”
described in Section 1.07(a)(9)(F) refers to threats of lawful action, unlawful action,
or both. The trial court also cited two cases which held that threat-related language
was not unconstitutionally vague. CR481. But neither of those cases addressed the
language at issue here. Tobias upheld Section 36.03(a)(1) to the extent it involved
26 coercion under Section 1.07(a)(9)(A) (i.e., threats to commit an offense). See 884
S.W.2d at 580-82. Roberts upheld a statute prohibiting theft by means of coercion
under Section 1.07(a)(9)(D) and (E) (i.e., threats of defamation). Roberts, 278
S.W.3d at 790-93. In short, no case has upheld the statutory language at issue
here—Section 36.03(a)(1) to the extent it involves coercion under Section
1.07(a)(9)(F) (i.e., threats to take or withhold official action). And this language is
materially broader—and vaguer—than any of the language in the other subsections
of Section 1.07(a)(9). It does not contain any limitation to threats of “unlawful”
conduct. See Tex. Penal Code § 1.07(a)(48) (defining “unlawful” to mean “criminal
or tortious or both”).
As discussed above, the only case to address this language held that it was
unconstitutionally vague as applied to threats of lawful conduct. See Hanson, 793
S.W.2d at 273. Hanson expressly declined to reach the question of facial vagueness.
Id. However, because the vagueness identified by Hanson is a pervasive feature of
the statutory language and trenches on First Amendment freedoms to an intolerable
degree, Sections 36.03(a)(1) and 1.07(a)(9)(F) are also facially vague.
The Legislature has enacted other statutes addressing threats against public
servants that do not suffer from these vagueness defects, if only because they require
the threats to be “unlawful.” See, e.g., Tex. Penal Code § 36.06(a) (offense to
27 “intentionally or knowingly . . . threaten to harm another by an unlawful act” in
retaliation for public service or to interfere with public service (emphasis added)).
But the Legislature failed to do so when it last amended and melded Sections
36.03(a)(1) and 1.07(a)(9)(F) in 1994. For the reasons given above, these provisions
are unconstitutionally vague on their face, and Count II of Governor Perry=s
indictment is void and must be dismissed.
III. Governor Perry’s other constitutional challenges are all cognizable in a pretrial habeas proceeding. Although the district court addressed the merits of the facial overbreadth and
vagueness challenges discussed above, the court held that the other constitutional
attacks in Governor Perry’s Application were merely as-applied challenges and thus
not cognizable in a pretrial habeas proceeding. CR468-73. This was error.
CR14-16,41-42,48-49,409,417-19.
Governor Perry acknowledged in both his writ and his consolidated reply that
a true as-applied challenge to the constitutionality of a statute usually cannot be
decided in a pretrial writ. CR41-42,417-19. But although most of Governor Perry’s
challenges are “as applied” in the sense that they only attack certain applications of
the statutes, they are the functional equivalent of facial challenges. They rely only
on the indictment and the statutes, not the underlying facts or circumstances to be
proven at a hearing or trial, and so should be cognizable in a pretrial habeas
28 proceeding. Moreover, because Governor Perry seeks to vindicate constitutional
rights and powers that are essential to the efficacy of his former office and of
paramount public importance, his claims should be recognized as cognizable and
addressed before trial. Any other result would compromise if not vitiate the
constitutional rights and powers he seeks to vindicate. The mere act of deferring
resolution until trial is constitutionally offensive. This Court should therefore
address the merits of Governor Perry’s claims now and, after doing so, dismiss the
indictment.
Whether an issue can be raised in a habeas petition is a legal determination
that appellate courts review de novo. See Ex parte Brown, 158 S.W.3d 449, 453
(Tex. Crim. App. 2005); see also State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.
App. 2004) (standard of review is de novo for legal determinations that do not turn
on evaluation of witness’s credibility or demeanor or on disputed facts). De novo
review is also appropriate for questions concerning the application of law to facts
“when a court confronts important, clearly defined issues of first impression.”
Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997).
A. General principles of cognizability According to the Court of Criminal Appeals, “[p]retrial habeas should be
reserved for situations in which the protection of the applicant’s substantive rights or
29 the conservation of judicial resources would be better served by interlocutory
review.” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. 2001). The writ is generally
available in three categories of cases:
First, the accused may challenge the State’s power to restrain him at all. Second, the accused may challenge the manner of his pretrial restraint, i.e., the denial of bail or conditions attached to bail. Third, the accused may raise certain issues which, if meritorious, would bar prosecution or conviction.
Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (footnotes omitted).
The Court of Criminal Appeals has imposed prudential, but not
constitutionally-mandated, limits on the issues that are cognizable in a pretrial
habeas proceeding:
• Pretrial habeas should not be entertained when there is an adequate remedy by appeal. It should be reserved for situations in which the protections of the applicant’s substantive rights or the conservation of judicial resources would be better served.6
• Because an interlocutory appeal is an extraordinary remedy, appellate courts need to be careful to ensure that a pretrial writ is “not misused” to secure pretrial appellate review of matters that “should not be put before appellate courts at the pretrial stage”—a variation of ripeness.7
• Aside from double-jeopardy issues, pretrial habeas is not appropriate when the question presented, even if resolved in the
6 Weise, 55 S.W.3d at 619-20. 7 Ex Parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (quoting Smith, 178 S.W.3d at 801); see also Weise, 55 S.W.3d at 619-21.
30 applicant’s favor, would not result in immediate release from restraint.8
• Pretrial habeas should not be used when a complete factual record is required to address the claim, which includes most as-applied challenges to the constitutionality of the statute upon which the offense is based.9
Issues the Court has held to be cognizable in pretrial habeas include the
following:
• A claim of double jeopardy because, if granted, the trial would be barred, resulting in a conservation of judicial resources, and the right would be denied unless resolved prior to trial.10
• A claim of collateral estoppel because, if granted, the relitigation of the issue would be barred, although it may not bar an actual trial.11
• A claim that the face of the indictment demonstrates that any prosecution is barred by the statute of limitations, unless this is a “reparable” pleading defect.12
8 Weise, 55 S.W.3d at 619; Doster, 303 S.W.3d at 724. 9 Ellis, 308 S.W.3d at 79; see also Lykos, 330 S.W.3d at 911 (“An ‘as applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge and the reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”). 10 Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex. Crim. App. 1986) (noting that the Supreme Court had made it clear that an interlocutory appeal of a double jeopardy claim “is not only a proper but a preferred remedy,” because the right against twice being placed in jeopardy would be “significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence”). 11 Ex Parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim App. 2002). 12 Weise, 55 S.W.3d at 620; see also Smith, 178 S.W.3d at 804.
31 • A claim of illegal restraint by an order deferring adjudication of guilt.13
• A claim that the statute upon which the indictment is based is unconstitutional on its face.14
• A claim that a statute cannot be constitutionally applied to the facts alleged on the face of the indictment.15
At least three main factors underlie the Court’s evolving jurisprudence
regarding cognizability in pretrial habeas. The first factor is whether there is an
adequate remedy at law, which also considers whether the right at stake would be
undermined unless the issues were cognizable in pretrial habeas. See Weise, 55
S.W.3d at 619-20; Ex parte Robinson, 641 S.W.2d 552, 554-55 (Tex. Crim. App.
1982). The second factor, which is closely tied to the first, is judicial economy. See
Smith, 178 S.W.3d at 802 (“There is no point in wasting scarce judicial and societal
resources or putting the defendant to great expense, inconvenience, and anxiety if
the ultimate result is never in question.”).16 The third factor is whether resolution of
the question presented, if resolved in favor of the applicant, would result in the
13 Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998). 14 See Weise, 55 S.W.3d at 620 n.17 (noting that this type of an attack involves a challenge to the trial court’s power to proceed); Elliott, 973 S.W.2d at 738-43 (separation-of-powers challenge). 15 Ex parte Boetscher, 812 S.W.2d 600, 601-04 (Tex. Crim. App. 1991). 16 But see Doster, 303 S.W.3d at 725 (noting that the Court has “never actually resolved whether [judicial economy], absent a jurisdictional or constitutional defect, would be sufficient to make a claim cognizable on pretrial habeas”).
32 immediate release of the applicant. See Ex Parte Watkins, 73 S.W.3d 264, 275 (Tex.
Crim App. 2002).
B. Governor Perry’s claims are cognizable in a pretrial habeas proceeding. Except for the facial overbreadth and vagueness challenges discussed above
in Parts I and II, the district court failed to reach the merits of the arguments in
Governor Perry’s Application. This appears to have been a consequence of the
“as-applied” label used by Governor Perry in describing his remaining claims. See,
e.g., CR471-72 (“The trial court is without authority at this pretrial stage of the case
to consider and rule upon the merits of this particular defense because it is clearly
(and expressly stated by Defendant to be) a challenge to the constitutionality of [the
statute] as that statute is being ‘applied’ to this Defendant under this set of facts.”
The district court erred by giving controlling weight to labels. As a threshold
matter, “the distinction between facial and as-applied challenges is not so well
defined that it has some automatic effect or that it must always control the pleadings
and disposition in every case involving a constitutional challenge.” Citizens
United v. Fed. Election Comm’n, 558 U.S. 320, 331 (2010); see also United States v.
Nat’l Treasury Emps. Union, 513 U.S. 454, 477-478 (1995) (contrasting “a facial
challenge” with “a narrower remedy”). More importantly, however, some
33 as-applied challenges are cognizable in a pretrial habeas proceeding. Governor
Perry’s challenges fall into this group for at least two reasons.
First, Governor Perry’s as-applied challenges can be decided based solely on
the face of the indictment and statutes under which he is charged. Although the
Court of Criminal Appeals has made the broad statement that pretrial habeas “may
not be used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309 S.W.3d 71, 79
(Tex. Crim. App. 2010), the rationale for this statement only applies when the
challenge “requires a recourse to evidence,” which must await trial. State ex rel.
Lykos v. Fine, 330 S.W.3d 094, 910 & n.22 (Tex. Crim App. 2011) (quoting G. DIX
AND R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE
§ 42.254 (Supp. 2005)). When an as-applied challenge can be decided solely by
reference to the indictment and the statute, it stands on the same footing, insofar as
the cognizability principles described above are concerned, as a facial challenge.
See Smith, 178 S.W.3d at 802 (“There is no point in wasting scarce judicial and
societal resources or putting the defendant to great expense, inconvenience, and
anxiety if the ultimate result is never in question.”). Indeed, such
as-applied-to-the-indictment challenges are not as-applied challenges in the true
sense of the term. See Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009)
(Cochran, J., concurring, joined by Price, Womack, and Johnson, JJ.) (emphasis
34 added) (“A facial challenge is based solely upon the face of the penal statute and the
charging instrument, while an applied challenge depends upon the evidence
adduced at a trial or hearing.” (emphasis added)); see also CR417-418.
The Court of Criminal Appeals has recognized the pretrial cognizability of
as-applied-to-the-indictment challenges. In Ex parte Boetscher, 812 S.W.2d 600
(Tex. Crim. App. 1991), the defendant was charged with criminal nonsupport of his
children, which a statute enhanced to a felony because he resided out of state. Id. at
601. He brought a pretrial habeas proceeding to challenge the enhancement
provision of the statute on equal-protection grounds “as applied to the unusual
circumstances of his case” (i.e., his out-of-state residence at the time of the offense).
Id. at 603. The indictment specifically stated that “the defendant was then residing
in another state, to-wit: Michigan,” at the time of the offense. Id. at 602. The Court
of Criminal Appeals held that this as-applied-to-the-indictment challenge was
cognizable in pretrial habeas, sustained the challenge, and ordered the indictment
dismissed. Id. at 603-04. The Court expressly declined to consider whether the
statute would be constitutional as applied in other scenarios. Id. at 604 n.8.
Second, because Governor Perry’s constitutional challenges involve a right
not to be tried, they cannot be adequately resolved by direct appeal after trial.
CR42,417-418. When prosecution of an official violates the doctrine of separation
35 of powers, “the policies underlying that doctrine” require that the affected official
“be shielded from standing trial.” United States v. Rose, 28 F.3d 181, 186 (D.C. Cir.
1994) (quoting United States v. Myers, 635 F.2d 932, 935 (2d Cir. 1980)). Similarly,
the Speech or Debate Clause was designed to protect officials acting in a legislative
capacity “not only from the consequences of litigation’s results but also from the
burden of defending themselves.” Helstoski v. Meanor, 442 U.S. 500, 508 (1979)
(quotation marks omitted) (quoting Dombrowksi v. Eastland, 387 U.S. 82, 85
(1967)); see also Rose, 28 F.3d at 185.17 Governor Perry’s legislative-immunity
defense likewise involves a right not to be tried. See Mitchell v. Forsyth, 472 U.S.
511, 525 (1985) (absolute immunity is “an entitlement not to stand trial”); In re
Perry, 60 S.W.3d 857, 859-60 (Tex. 2001) (legislative immunity “shields legislative
actors not only from liability, but also from being required to testify about their
legislative activities” and “from the burden of defending themselves” (quoting
Dombrowski, 387 U.S. at 85)). Thus, unlike in the ordinary case, the mere pendency
of criminal proceedings is what imperils these constitutional principles, which are 17 The Helstoski decision is particularly persuasive authority. The Court of Criminal Appeals has followed the U.S. Supreme Court’s decision in Abney v. United States in holding that defendants have a right to a pretrial appeal of double-jeopardy claims. See Robinson, 641 S.W.2d at 555 (citing Abney v. United States, 431 U.S. 651 (1977)). There is thus every reason to believe that the Court of Criminal Appeals will follow the U.S. Supreme Court’s Helstoski decision, which relied upon Abney to hold that government defendants have a right to a pretrial appeal of Speech or Debate Clause claims. See Helstoski, 442 U.S. at 506 (observing that “[t]he reasoning undergirding [Abney] applies with particular force here” in the context of Speech or Debate Clause challenges, which must be vindicated before trial to be effective).
36 designed to safeguard performance of core governmental functions. See Myers, 635
F.2d at 936 (describing the heightened dangers associated with trials of elected
officials, including impairment of representation, irreparable political damage, and
intimidation by political rivals); see also CR42. For this reason, just like a defendant
raising a pretrial double-jeopardy challenge, see Robinson, 641 S.W.2d at 555,
Governor Perry has no adequate remedy at law to protect his substantive rights other
than a pretrial habeas proceeding. CR418.
Because the indictment implicates the powers of the Office of Governor, a
post-trial appeal is an especially inadequate remedy. The public has an acute interest
in the swift resolution of this case so that the current occupant of that office,
Governor Greg Abbott, can discharge his official responsibilities, including use of
the veto power, free from the threat of criminal liability. See Smith v. Flack, 728
S.W.2d 784, 792 (Tex. Crim. App. 1989) (“In some cases, a remedy at law may
technically exist; however, it may be nevertheless so uncertain, tedious, burdensome,
slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.”); cf. In
re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (adequacy of an appellate
remedy depends in part on the public’s interest in efficient resolution of a dispute
and does not “focu[s] exclusively on whether the parties alone have an adequate
appellate remedy”).
37 The merits of Governor Perry’s remaining arguments were not reached by the
district court due to its cognizability ruling. As recognized by the district court,
however, the circumstances of this case are “unique” and Governor Perry’s
challenges are “compelling.” CR472. There is no justification for further delaying a
decision on the merits of those challenges. Since these claims seek to bar the trial,
there can be little question that Governor Perry is challenging the power of the
district court to proceed and that, if these claims are resolved in his favor, he would
immediately be released from illegal restraint. The factors guiding the Court of
Criminal Appeals’ cognizability decisions all support the conclusion that Governor
Perry’s as-applied-to-the-indictment challenges are cognizable in a pretrial habeas
proceeding. To the extent the charges are not dismissed on the grounds discussed in
Parts I and II above, Governor Perry asks the Court to hold that all his claims are
cognizable and address his remaining substantive constitutional challenges on the
merits. Only the fullest possible review will protect Governor Perry’s rights,
preserve the powers of his former office, and further the public’s interest in effective
and courageous governance from all our public officials.
IV. The indictment violates the constitutional separation of powers. The district court erred by refusing to dismiss both counts of the indictment as
violations of the Separation of Powers Clause of the Texas Constitution.
38 CR17-19,22-25. Article II, Section 1 of the Texas Constitution mandates a clear
separation of powers among the branches of Texas government:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
Hence, unlike in the federal system, the requirement of separated powers is
explicitly and emphatically set forth in our constitution. “So important is this
division of governmental power that it was provided for in the first section of the
first article of the Constitution of the Republic of Texas, and alone it constituted
article 2 of each succeeding Constitution.” Langever v. Miller, 76 S.W.2d 1025,
1035 (Tex. 1934). The provision “reflects a belief on the part of those who drafted
and adopted our state constitution that one of the greatest threats to liberty is the
accumulation of excessive power in a single branch of government.” Armadillo Bail
Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990).
The courts have long been vigilant in preventing any attempt by one branch of
government to encroach on the authority constitutionally secured to another branch.
Thus, “any attempt by one department of government to interfere with the powers of
another is null and void.” Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App.
39 1987) (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1974)). The
Separation of Powers Clause can be violated in two ways:
(1) when one branch of government assumes or is delegated a power more properly attached to another branch, or
(2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Lo, 424 S.W.3d at 28. A statute that conflicts with any provision of the Texas
Constitution is, of course, void. See Cook v. State, 902 S.W.2d 471, 479 (Tex. Crim.
App. 1995). Claims asserting violations of the Separation of Powers Clause have
been considered in pretrial habeas cases, including by this Court. See, e.g., Ex parte
Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013) (considering but rejecting on
the merits an asserted violation of the Separation of Powers Clause); Ex parte Elliott,
973 S.W.2d 737, 738-43 (Tex. App—Austin 1998, pet. ref’d) (same).
In this case, the actions of the judicial branch—represented here by the district
judge and the attorney pro tem he appointed—are unduly interfering with the
constitutionally-assigned powers of the executive branch by scrutinizing a
gubernatorial veto and the alleged threat preceding that veto. The power to veto,
including the line-item veto of appropriations, is one of the core duties assigned to a
Texas Governor by our Constitution. Article IV, Section 14 provides in part:
If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve 40 the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.
This language imposes no limits on the Governor’s authority to exercise the veto in
his or her unbounded discretion. As one authority noted: “The veto, particularly the
item veto, is perhaps the most significant of the Texas governor’s constitutional
powers . . . . [B]ecause he has no significant budgetary powers . . . the item veto is
the primary method by which he exercises some control over the amounts and
purposes of state expenditures.” 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION
OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 339
(George D. Braden ed. 1977).18
In exercising the veto power, a Governor acts in a legislative, not an executive,
capacity, and thus is a member of a governing body. See Jessen Assocs., Inc. v.
Bullock, 531 S.W.2d 593, 598 (Tex. 1976) (governor’s “veto power is a legislative
function and not an executive function”); Fulmore v. Lane, 140 S.W. 405, 411 (Tex.
1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). Nor is this an anomalous or
outmoded view; the veto power is also characterized as a legislative act in the federal
18 Indeed, virtually any exercise of the veto power could be criminalized—or at least harassed with prosecution—under the State’s interpretation of the law. For example, every exercise of the veto, and particularly the line-item veto, will entail winners and losers. On the State’s theory, such vetoes could nearly always be construed as a “misuse of government property” done with “intent to harm another” under Texas Penal Code Section 39.02. At the very least, an investigation could be opened into virtually every veto.
41 system, Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998), as well as in many other
states.19
Because the power to veto is so central to the gubernatorial office, and
because nothing in the Texas Constitution or laws permits the judicial branch to
scrutinize a governor’s political decision to veto an appropriation, this is the type of
“political question” that American courts have traditionally declined to review as
nonjusticiable. See generally Nixon v. United States, 506 U.S. 224 (1993);
Goldwater v. Carter, 444 U.S. 996 (1979); Coleman v. Miller, 307 U.S. 433 (1939);
Luther v. Borden, 48 U.S. 1 (1849). The U.S. Supreme Court has generally
recognized the doctrine in cases with
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent
19 See, e.g., Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012); Barnes v. Secretary of Admin., 586 N.E.2d 958, 961 (Mass. 1992) (“it is for the Legislature . . . to determine finally which social objectives or programs are worthy of pursuit, the Governor may properly use his veto power to accomplish legislative-type goals”) (citation omitted); State ex rel. Cason v. Bond, 495 S.W.2d 385, 392 (Mo. 1973) (“[W]hen the Governor takes part in appropriation procedures [by vetoing legislation], he is participating in the legislative process . . . .”); State ex rel. Dickson v. Saiz, 308 P.2d 205, 211 (N.M. 1957) (“when the Governor exercises his right of partial veto he is exercising a quasi-legislative function”); Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316, 320 (Wash. 1910) (“In approving and disapproving laws, in the exercise of his constitutional prerogative, the executive is a component part of the Legislature.”); State ex rel. Wis. Senate v. Thompson, 424 N.W.2d 385, 391 (Wisc. 1988) (“The partial veto power in this state was adopted . . . to make it easier for the governor to exercise what this court has recognized to be his ‘quasi-legislative’ role, and to be a pivotal part of the ‘omnibus’ budget bill process.”).
42 resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr, 369 U.S. 186, 217 (1962). State courts, including those of Texas,
have had little need to articulate the concept as thoroughly as the U.S. Supreme
Court, but they have likewise consistently declined to decide cases that raise
political questions. The Court of Criminal Appeals has held in the context of parole
decisions that the Governor’s exercise of his discretionary constitutional authority
raises political, not judicial, questions. In Ex parte Ferdin, 183 S.W.2d 466 (Tex.
Crim. App. 1944), the Court refused to entertain jurisdiction over “what is in effect
an appeal from the act of the Governor in revoking the parole,” because courts lack
“power over the acts of the Governor so long as he is within the law and the matter
involved is one of his judgment and discretion in the performance of his duty
assigned to him by the Constitution . . . . Whether or not his acts are harsh, ill advised,
and arbitrary, is not a matter for this court to decide . . . .” Id. at 467-68. See also Ex
parte Pitt, 206 S.W.2d 596, 597 (Tex. Crim. App. 1947) (“The sole arbiter of the
wisdom of the revocation [of the Governor’s conditional pardon] is the Governor.”);
Ex parte Meza, 185 S.W.2d 444, 445 (Tex. Crim. App. 1945) (same).
43 The Texas Constitution reposes the check on a Governor’s veto power not in
the judicial branch, but in the Legislature and the people. Should either deem veto
decisions to be erroneous or improper, the Texas Constitution provides them a
legislative or political countermeasure. The Legislature may, if it remains in session,
override a gubernatorial veto. Tex. Const. art. IV, § 14. Legislators may refuse to
cooperate with the Governor on subsequent initiatives, including appointments. If
the Legislature concludes that the governor’s actions are sufficiently reprehensible,
the House may impeach and the Senate may try and, upon conviction, remove the
governor from office. Id. art. XV, §§ 1-5. And voters may have an opportunity to
defeat the re-election efforts of a governor whose policy choices they disagree with,
or they can elect legislators who will join in sufficient strength to re-enact vetoed
legislation and override any further veto attempts. These alternatives have sufficient
weight to cause most governors to exercise their veto power sparingly and
deliberately. Allowing a criminal prosecution of a political decision where there is
no allegation of bribery or demonstrable corruption undermines the basic structure
of state government.20
20 As discussed below in connection with the Speech or Debate Clause, the Legislature can criminalize acts of political corruption, including the acceptance of a bribe or a promise of a bribe in exchange for the exercise of a veto. Such a prosecution does not trigger any of the separation-of-powers issues that plague this prosecution because the illegal act is the acceptance of the bribe or the promise of the bribe, not the veto itself.
44 Thus, the statutes upon which this prosecution is based are void, at least to the
extent that they permit the judicial branch to interfere with Article IV, Section 14 of
the Texas Constitution, in violation of Article II, Section 1. In light of the foregoing,
the Court should hold that Claims 3 and 4 (as to Count 1) and Claims 9 and 10 (as to
Count II) of Governor Perry’s Application are cognizable, sustain these claims on
the merits, and dismiss the indictment.
V. The indictment violates the Texas Speech or Debate Clause and the common-law doctrine of legislative immunity. The district court also erred by refusing to dismiss both counts of the
indictment as violations of the Texas Constitution’s Speech or Debate Clause and
the absolute legislative immunity that accompanies it when the Governor is
considering or exercising his veto power. CR18-19,26-30.
Article III, Section 21 of the Texas Constitution provides that “[n]o member
shall be questioned in any other place for words spoken in debate in either House.”
This is Texas’s Speech or Debate Clause, which is similar to the Speech or Debate
Clause in the United States Constitution.21 On the few occasions when Texas courts
have considered the Texas Speech or Debate Clause, they have indicated that it has
the same scope as the federal clause. See Canfield v. Gresham, 17 S.W. 390, 392-93
21 Article I, Section 6, Clause 1 of the U.S. Constitution states in relevant part that “for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”
45 (Tex. 1891) (citing Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); Bowles v.
Clipp, 920 S.W.2d 752, 758 (Tex. App.—Dallas 1996, writ denied); see also Tenney
v. Brandhove, 341 U.S. 367, 375 (1951) (noting common purpose of federal and
state Speech or Debate Clauses, including Texas’s).
Under federal precedents, the Clause is “read broadly to effectuate its
purposes,” Doe v. McMillan, 412 U.S. 306, 311 (1973), which are “[t]o prevent
intimidation of legislators by the Executive and accountability before a possibly
hostile judiciary,” id. at 316, and to “free[] the legislator from executive and judicial
oversight that realistically threatens to control his conduct as a legislator.” Gravel v.
United States, 408 U.S. 606, 618 (1972). Stated differently, the purpose of the
principle is to secure to every member “exemption from prosecution, for every thing
said or done by him, as a representative, in the exercise of the functions of that
office.” Id. at 660 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808) (emphasis added)).
The Clause originated as a response to the British Crown’s use of criminal
prosecution to harass political opponents in Parliament. See United States v.
Johnson, 383 U.S. 169, 182 (1966). As noted in Johnson, “[t]here is little doubt that
the instigation of criminal charges against critical or disfavored legislators by the
executive in a judicial forum was the chief fear prompting the long struggle for
parliamentary privilege in England and, in the context of the American system of
46 separation of powers, is the predominant thrust of the Speech or Debate Clause.” Id.
The Clause therefore naturally implicates separation-of-powers considerations, as it
aims to “preserve the constitutional structure of separate, coequal, and independent
branches of government.” United States v. Helstoski, 442 U.S. 477, 491 (1979).
Borrowing from federal analyses, Texas courts have derived from the Clause
a broad doctrine of legislative immunity. See Perry, 60 S.W.3d at 859. Not only are
oral speech and debate protected, but so are written reports and legislative votes. See
Canfield, 17 S.W. at 392-93 (citing Kilbourn, 103 U.S. at 204); McMillan, 412 U.S.
at 311. In fact, the Clause protects all communications that are “an integral part of
the deliberative and communicative processes” involved in a legislative act,
including communications with or among aides. Gravel, 408 U.S. at 625; see also
Perry, 60 S.W.3d at 860-61.
As mentioned before, legislative activity includes a Governor’s exercise of
the veto power. See Jessen, 531 S.W.2d at 598. But the Clause also protects other
government officials besides the governor when they engage in “legitimate
legislative activity.” Tenney, 341 U.S. at 376; see also Perry, 60 S.W.3d at 860
(holding that the attorney general, comptroller, and land commissioner enjoy
legislative immunity for “legitimate legislative functions” performed while serving
47 on the Legislative Redistricting Board). 22 Legislative activity also includes
executive actions involving budgetary and appropriations matters. See Bogan, 523
U.S. at 55-56 (affording legislative immunity to city mayor for “introduction of a
budget and signing into law an ordinance,” a “discretionary, policymaking decision
implicating the budgetary priorities of the city” and “formally legislative, even
though he was an executive official”); Shade v. U.S. Congress, 942 F. Supp. 2d 43,
48 (D.D.C. 2013) (appropriation of funds is “a core legislative function”).23
Any criminal prosecution based on this protected legislative activity is barred.
“It is beyond doubt that the Speech or Debate Clause protects against inquiry into
acts that occur in the regular course of the legislative process and into the motivation
for those acts.” United States v. Brewster, 408 U.S. 501, 525 (1972). Thus,
legislative acts may not themselves be criminalized. See Helstoski, 442 U.S. at 488.
22 See also Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex. App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1194 (5th Cir. 1981), for proposition that absolute legislative immunity extended to a mayor’s veto of an ordinance passed by a city council). 23 To be sure, the protections of the Clause and its accompanying immunity have their limits. They do not extend to actions that are “no part of the legislative process or function,” even if performed by legislators. United States v. Brewster, 408 U.S. 501, 526 (1972). For example, a legislator may be prosecuted for bribery because “acceptance of the bribe is the violation of the statute, not performance of the illegal promise,” making it “unnecessary to inquire into how [the legislator] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.” Id. at 526. See also Mutscher v. State, 514 S.W.2d 905, 914-15 (Tex. Crim. App. 1974) (affirming a state legislator’s conviction for bribery and upholding the bribery statute because “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not, a legislative act” (quoting Brewster, 408 U.S. 527)).
48 Nor may a prosecution proceed if it necessarily depends upon evidence of legislative
acts or the motives for them. See Johnson, 383 U.S. at 184-85. In fact, evidence of
a legislative act may not even be introduced at trial in an otherwise permissible
prosecution. Helstoski, 442 U.S. at 487-88. This is because the courts have
recognized that the “level of intimidation against a local legislator arising from the
threat of a criminal proceeding is at least as great as the threat from a civil suit,” so
that legislative immunity “should be extended to criminal proceedings.” State v.
Holton, 997 A.2d 828, 856 (Md. Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md. 2011)
(quotations and citation omitted). See also McMillan, 412 U.S. 306, 312-13 (1973)
(“Congressmen . . . are immune from liability for their actions within the ‘legislative
sphere’ even though their conduct, if performed in other than legislative contexts,
would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”
(citation omitted)). Indeed, officials cannot even be required to testify about their
legislative activities, regardless of the context in which their testimony is sought.
Perry, 60 S.W.3d at 858, 861.24
24 Other states provide similar protection in civil, criminal, and quasi-criminal matters. See, e.g., State v. Dankworth, 672 P.2d 148, 151 (Alaska Ct. App. 1983) (even in a criminal case, “[o]nce it is determined that [a] legislative function . . . was apparently being performed, the propriety and the motivation for the action taken, as well as the detail of the acts performed, are immune from judicial inquiry”) (quoting United States v. Dowdy, 479 F.2d 213, 226 (4th Cir. 1973)); D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) (“The district attorney acknowledges the principles of legislative immunity . . . but contends immunity applies only to civil suits, and does not extend to criminal prosecutions. We disagree.”); State v. Neufeld, 926 49 This protection is not eviscerated even by allegations of a bad motive. A
charge that legislative conduct was “improperly motivated” is “precisely what the
Speech or Debate Clause generally forecloses from executive and judicial inquiry.”
Johnson, 383 U.S. at 180. Otherwise, immunity would be held hostage to “a
conclusion of the pleader” or “a jury’s speculation as to motives.” Bogan, 523 U.S.
at 54 (observing that the Court had applied immunity even when a legislator
“singled out the plaintiff for investigation in order to intimidate and silence the
plaintiff and deter and prevent him from effectively exercising his constitutional
rights” (citing Tenney, 341 U.S. at 377)). “[I]t is ‘not consonant with our scheme of
government for a court to inquire into the motives of legislators.’” Perry, 60 S.W.3d
at 860 (quoting Bogan, 523 U.S. at 55). Simply put: “The claim of an unworthy
purpose does not destroy the privilege.” Tenney, 341 U.S. at 377. The remedy for
those who disagree with a veto, no matter how earnestly, is political, not judicial.25
P.2d 1325, 1337 (Kan. 1996) (“Congressmen . . . are immune from liability for their actions within the legislative sphere . . . even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” (internal quotation marks omitted)); Holton, 997 A.2d at 851 (“we hold that, as a matter of common law, local legislators may invoke that same privilege in a criminal prosecution”); Irons v. R.I. Ethics Comm’n, 973 A.2d 1124, 1131 (R.I. 2009) (“as long as [a legislator’s] challenged actions, stripped of all considerations of intent and motive, were legislative in character, the doctrine of absolute legislative immunity protects them from such claims”—there, an ethics agency enforcement action). 25 In Bogan, the Supreme Court held that the acts of introducing, voting for, and signing an ordinance eliminating the government office held by a health department administrator, when “stripped of all considerations of intent and motive,” were in fact “legislative” because the 50 For these reasons, attempts to convert inescapably political disputes into
criminal complaints must be foreclosed at the outset. A number of federal cases
have required dismissal of grand-jury indictments premised on privileged Speech or
Debate materials, thus barring a trial that would require the government to introduce
evidence of privileged Speech or Debate materials. For example, in United States v.
Swindall, 971 F.2d 1531 (11th Cir. 1992), a former congressman was prosecuted for
committing perjury before a grand jury. Id. at 1534. The central allegation was that
he lied to the grand jury about his knowledge of various money-laundering statutes.
Id. at 1535-37. To prove his knowledge, the prosecution introduced evidence before
the grand jury and at trial about the congressman’s activities in Congress, including
his activity on a banking committee. Id. at 1539-40. The court of appeals reversed
the congressman’s conviction and held that the prosecution violated the Speech or
Debate Clause for two reasons: (1) “the AUSA[] question[ed] [the congressman]
before the grand jury about his committee memberships” in an effort to show his
knowledge of money-laundering statutes, and (2) “reference [was] made to [the
congressman’s] committee memberships both in the grand jury proceedings and at
trial.” Id. at 1543. The court held that “the remedy for the violations of the privilege
“ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city.” 523 U.S. at 55. Governor Perry’s decision to veto an item of appropriation and any announcement by his staff of his intent most certainly reflects a similar “discretionary, policymaking decision implicating the budgetary priorities” of Texas.
51 is dismissal of the affected counts.” Id. at 1543. See also Johnson, 383 U.S. at 185
(holding that Speech or Debate material was improperly presented to the grand jury
and ordering a new trial “purged of elements offensive to the Speech or Debate
Clause”); Brewster, 408 U.S. at 526-27 (holding that, only because a conviction in
that case could be sustained without “inquir[y] into the [legislative] act or its
motivation,” could an indictment of a congressman which referred to legislative acts
stand, as “[t]o make a prima facie case under this indictment, the Government need
not show any act of [Brewster] subsequent to the corrupt promise for payment,” i.e.,
a bribe).26
These principles mandate dismissal of both counts of the indictment against
Governor Perry. Count I is predicated upon a legislative act of Governor Perry—the
veto—and Count II involves the Governor’s alleged discussions regarding the
anticipated legislative act and its announcement (i.e., the threat of a veto). The
indictment therefore necessarily seeks to impose criminal liability for, and compel
evidence related to, acts that are privileged by the Speech or Debate Clause and
legislative immunity.
26 Dismissing an indictment that violates the federal Speech or Debate Clause is also supported by United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995); United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995); United States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984); United States v. Beery, 678 F.2d 856 (10th Cir. 1982); and United States v. Renzi, 686 F. Supp. 2d 956 (D. Ariz. 2010).
52 In light of the foregoing, the Court should uphold the cognizability of Claims
5, 6, and 7 (as to Count 1) and Claim 11 (as to Count II) of Governor Perry’s pretrial
habeas application, sustain those claims on the merits, and dismiss both counts of the
VI. The abuse-of-official-capacity statute is unconstitutionally vague as applied to the veto alleged on the face of the indictment. The district court further erred by refusing to dismiss Count I of the
indictment based on Claim 10 of Governor Perry’s habeas petition. CR46-48.
Count I is based on the offense of Abuse of Official Capacity. See Tex. Penal Code
§ 39.02(a)(2). 27 In contrast to the coercion statute at Sections 36.03(a)(1) and
1.07(a)(9)(F), the statute defining Abuse of Official Capacity may not be void on its
face. It appears to be tightly-worded with graduated penalties for escalating levels
of wrongdoing. But it has no discernible relationship to any conduct alleged in the
indictment against Governor Perry. Hence, this statute either does not apply to
Governor Perry’s alleged conduct at all or is unconstitutionally vague as applied to
27 In pertinent part, Abuse of Official Capacity is defined as follows: “A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly . . . misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” Tex. Penal Code § 39.02(a)(2).
53 the facts alleged on the face of the indictment. In either case, Count I should be
dismissed.
Prosecution of Governor Perry under Section 39.02(a)(2) violates all three
related manifestations of the fair-warning requirement. See United States v. Lanier,
520 U.S. 259, 266 (1997). First, the vagueness doctrine would be violated because
there was no fair warning that Governor Perry’s act of vetoing funding for the PIU
would violate that section. Second, the rule of lenity would be violated by an
interpretation of the statute bringing Governor Perry’s veto within the umbrella of
coverage. Third, the prosecution involves an entirely novel construction of these
criminal statutes which neither the text of the statutes nor any prior judicial decision
has fairly disclosed to be within their scope.
This vagueness is evident in several respects. First, neither Governor Perry
nor any other governor could have had fair notice that he was “misus[ing]
government property” by vetoing a line-item appropriation, the effect of which was
to keep funds in the State Treasury rather than allowing funds to be transferred to
Lehmberg’s office after September 1, 2013. Second, Governor Perry did not have
fair notice that he could somehow have “custody or possession” of all the State funds
proposed to be expended in an appropriations bill merely “by virtue of [his] office or
employment” as governor. As this Court can judicially notice, the funds to be
54 disbursed under the two-year budget commencing September 1, 2013, would not
have been collected by that date, let alone by June 14, 2013, the date of the
misconduct alleged in Count I of the indictment, because Texas uses a
pay-as-you-go system of raising revenue for appropriations. 28 In essence, the
special prosecutor’s interpretation of Section 39.02(a)(2) would turn the Rule of
LenityCthe principle that unclear criminal statutes should be construed in favor of
the defendant, Cuellar v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim. App. 2002)C on
its head.
For these reasons, Count I must be dismissed as a violation of due process.
VII. The coercion statute is unconstitutional as applied to the veto threat alleged on the face of the indictment. The district court also erred by failing to dismiss Count II of the indictment
based on Claims 5 and 7 of Governor Perry’s Application. Count II relies on a
statute that is unconstitutional as applied to the facts alleged on the face of the
28 The Texas Constitution requires the Texas Comptroller to provide the Legislature a biennial revenue estimate (“BRE”) at the beginning of each regular legislative session. See Tex. Const. art. III, § 49a. Because the Legislature is constitutionally prohibited from appropriating more revenue than will be collected, the BRE is used by the Legislature to ensure that appropriations will not exceed the anticipated revenue. Upon final passage of an appropriations bill, it is sent to the Texas Comptroller to certify whether the anticipated revenue will be sufficient to cover the appropriations made by the Legislature. See Senate Research Center, Budget 101: A Guide to the Budget Process in Texas at 3, 10 (Jan. 2013), available at www.senate.state.tx.us/SRC/pdf/Budget101WebsiteSecured_2013.pdf.
55 indictment, both on vagueness and First Amendment grounds. CR41-46. Indeed,
this very issue has already been settled by a prior judicial decision.
A. As applied, the coercion statute is unconstitutionally vague. Twenty-five years ago, in State v. Hanson, 793 S.W.2d 270 (Tex.
App.CWaco 1990, no writ), the court of appeals found a previous but essentially
identical version of Section 36.03(a)(1) unconstitutional as applied to circumstances
very similar to those at issue in the indictment. Hanson, a constitutional county
judge, was indicted for words she allegedly spoke to other public officials. Id. at 271.
Specifically, the county judge was accused of intentionally and knowingly
threatening to “terminate the county’s funding of the salaries of a deputy district
clerk and an assistant district attorney in an attempt to coerce the district judge into
firing the county auditor and the county attorney into revoking a misdemeanant’s
probation.” Id. The court of appeals affirmed the trial court’s dismissal of two
indictments which alleged that Judge Hanson had coerced a public servant, and held
that Section 36.03(a)(1) was unconstitutionally vague as applied to Judge Hanson=s
alleged conduct.
The court began its analysis by noting that a criminal statute that seeks to
punish threats must “clearly distinguish between an actionable or true threat and
protected speech.” Id. at 272. The definition of “coercion” at the time of Judge
56 Hanson’s conduct, then set forth in Section 36.01(a)(1), is identical to the current
definition in Section 1.07(a)(9), discussed above. Because that definition, then as
now, failed to distinguish between threats of lawful and unlawful official action,
Judge Hanson “had to guess at the meaning of section 36.03(a)(1) and its application
to her official conduct.” Id. The court concluded that, in light of the “impermissibly
vague definition of ‘coercion,’” “these penal provisions violated due process
because they did not give [the county judge] fair notice of what type of threat was
prohibited, failed to provide a clear, objective standard by which those charged with
enforcement could assess her alleged conduct for its legality, and had a potential of
inhibiting the exercise of her protected free expression as a public official.” Id. at
273.
For the exact same reason, Section 36.03(a)(1) is unconstitutionally vague as
applied to the conduct alleged on the face of the indictment. Governor Perry stands
accused of threatening to issue a veto—a lawful action within his sole discretion
under the Texas Constitution. See Tex. Const. art. IV, § 14. Just like Judge Hanson,
he is accused of threatening to partially cut off funding for a district attorney’s
office—an action within his lawful power—to influence the decisions of another
government employee not under his direct control. Governor Perry further
57 incorporates by reference his facial vagueness arguments in Part II above, which
also support this as-applied challenge.
B. As applied, the coercion statute violates the First Amendment. Beyond finding the statute unconstitutionally vague, the court noted that
Judge Hanson’s alleged “threat” was protected by the First Amendment because
“[c]oercion of a lawful act by a threat of lawful action is protected free expression.”
Hanson, 793 S.W.2d at 272. Indeed, such speech, like Governor Perry’s alleged
threat, is core political speech for which First Amendment protection “is at its
zenith.” Meyer, 486 U.S. at 425. Although the Hanson court declined to explicitly
address the question of whether the statute was overbroad, the court’s discussion
clearly indicates that, as applied to the judge’s alleged conduct, the statute prohibited
protected speech in contravention of the First Amendment. The same thing is true in
Governor Perry’s case, and Count II must be dismissed for this reason as well.
The only difference between the statutory language at the time of Hanson and
now is that Section 36.03(c) currently contains an exception for “members of the
governing body of a governmental entity.” However, this exception does nothing to
solve the vagueness and free-speech problems identified by Hanson. If anything,
the exception strengthens the impression that threats of lawful action are not
prohibited by the statute. Governor Perry further incorporates by reference his facial
58 overbreadth arguments in Part I above, which also support this as-applied
challenge.29
In short, if Section 36.03(a)(1) makes threats of lawful action illegal, then it
lacks the clarity necessary to withstand a vagueness challenge as applied to
Governor Perry’s alleged conduct, and it certainly violates his First Amendment
right to free speech. Count II of the indictment must therefore be dismissed.
CONCLUSION This case raises legal issues of historic significance and will affect Texas
officeholders for many years to come. Governor Perry urges the Court to preserve
the integrity of our core constitutional principles, rather than stand aside as they
29 In 1989, the Legislature amended the definition of coercion so that only threats to “[u]nlawfully take or withhold official action as a public servant” were included, thereby excluding threats to take lawful action. Hanson, 793 S.W.2d at 273. This amendment, while inapplicable in Hanson, would have certainly reduced, if not resolved, the vagueness and free-speech problems identified in Hanson. See Tex. Penal Code § 1.07(a)(48) (defining “unlawful” to mean “criminal or tortious or both”). However, the word “unlawfully” was deleted in 1994 when the definition of “coercion” was moved from Chapter 36 to Chapter 1 of the Penal Code. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, Tex. Gen. Laws 3586-3766. This deletion was one miniscule part of a “sweeping revision of the Texas Penal Code” that substantially changed the way offenders were sentenced and created a new category of offense, the state jail felony. Texas Legislative Council, Facts at a Glance: Comparison of Punishment and Sentencing Provisions in the 1993 and 2003 Penal Code (2005), available at http://www.tlc.state.tx.us/pubspol/penalcode.pdf. The 1994 act itself runs to over 200 pages in the Texas Session Laws. The legislative record contains no debate or explanation for this small change in the “coercion” definition, much less any attempt to reconcile it with the holding in Hanson. As far as the record discloses, the change received no meaningful legislative attention. Whatever the reason for the change, the result was to revert the statute back to its constitutionally defective state at the time of Hanson.
59 begin to erode under the threat of overreaching indictments. The health of our
republic and the liberty of our citizens depend upon it.
For all the reasons given above, Governor Perry respectfully prays that this
Court reverse the district court’s denial of relief, sustain the constitutional issues
raised in his Application, and bar trial on both counts of the indictment and/or
dismiss both counts of the indictment. Governor Perry further prays for any other
relief to which he may be entitled.
60 Respectfully submitted,
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
/s/ Anthony G. Buzbee /s/ Thomas R. Phillips Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower San Jacinto Center 600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500 Houston, Texas 77002 Austin, Texas 78701-4078 Telephone: 713.223.5393 Telephone: 512.322.2500 Facsimile: 713.223.5909 Facsimile: 512.322.2501
BOTSFORD & ROARK
/s/ David L. Botsford David L. Botsford State Bar No. 02687950 1307 West Avenue Austin, Texas 78701 Telephone: 512.479.8030 Facsimile: 512.479.8040
61 CERTIFICATE OF COMPLIANCE I hereby certify that this document contains 14,757 words in the portions of the document that are subject to the word limits of Texas Rule of Appellate Procedure 9.4(i), as measured by the undersigned’s word-processing software.
/s/ David L. Botsford David L. Botsford
CERTIFICATE OF SERVICE This is to certify that a true and complete copy of this document has been emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David Gonzalez at david@sg-llp.com on the same date that it was electronically filed with the Clerk of the Court.
62 INDEX TO APPENDIX
TAB Indictment ................................................................................................................. A Order Denying Defendant’s First Application for Pretrial Writ of Habeas Corpus ................................................................................. B
Texas Penal Code excerpts ....................................................................................... C Texas Constitution excerpts ...................................................................................... D
United States Constitution excerpts .......................................................................... E
63 APPENDIX A 4 5 APPENDIX B 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 APPENDIX C TEXAS PENAL CODE § 1.07
DEFINITIONS
(a) In this code:
...
(9) “Coercion” means a threat, however communicated:
(A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or another;
(C) to accuse a person of any offense;
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.
(24) “Government” means:
(A) the state;
(B) a county, municipality, or political subdivision of the state; or
(C) any branch or agency of the state, a county, municipality, or political subdivision.
(39) “Possession” means actual care, custody, control, or management.
(41) “Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:
(A) an officer, employee, or agent of government;
(B) a juror or grand juror; or
(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or
1 (D) an attorney at law or notary public when participating in the performance of a governmental function; or
(E) a candidate for nomination or election to public office; or
(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.
(48) “Unlawful” means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.
2 TEXAS PENAL CODE § 36.03
COERCION OF PUBLIC SERVANT OR VOTER
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.
3 TEXAS PENAL CODE § 39.01
In this chapter:
(1) “Law relating to a public servant’s office or employment” means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly:
(A) imposes a duty on the public servant; or
(B) governs the conduct of the public servant.
(2) “Misuse” means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant;
(C) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
(D) a limited purpose for which the property is delivered or received.
4 TEXAS PENAL CODE § 39.02
ABUSE OF OFFICIAL CAPACITY
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500;
(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;
(4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.
(e) If separate transactions that violate Subsection (a)(2) are conducted pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense and the value of the use of the things misused in the transactions may be aggregated in determining the classification of the offense.
(f) The value of the use of a thing of value misused under Subsection (a)(2) may not exceed:
5 (1) the fair market value of the thing at the time of the offense; or
(2) if the fair market value of the thing cannot be ascertained, the cost of replacing the thing within a reasonable time after the offense.
6 APPENDIX D TEXAS CONSTITUTION
ARTICLE 2. THE POWERS OF GOVERNMENT
Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
ARTICLE 3. LEGISLATIVE DEPARTMENT
Sec. 21. WORDS SPOKEN IN DEBATE. No member shall be questioned in any other place for words spoken in debate in either House.
ARTICLE 4. EXECUTIVE DEPARTMENT
Sec. 1. OFFICERS CONSTITUTING THE EXECUTIVE DEPARTMENT. The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General.
Sec. 9. GOVERNOR’S MESSAGE AND RECOMMENDATIONS; ACCOUNTING FOR PUBLIC MONEY; ESTIMATES OF MONEY REQUIRED. The Governor shall, at the commencement of each session of the Legislature, and at the close of his term of office, give to the Legislature information, by message, of the condition of the State; and he shall recommend to the Legislature such measures as he may deem expedient. . . .
Sec. 14. APPROVAL OR DISAPPROVAL OF BILLS; RETURN AND RECONSIDERATION; FAILURE TO RETURN; DISAPPROVAL OF ITEMS OF APPROPRIATION. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it, he shall return it, with his objections, to the House in which it originated, which House shall enter the objections at large upon its journal, and proceed to reconsider it. If after such reconsideration, two-thirds of the members present agree to pass the bill, it shall be sent, with the objections, to the other House, by which likewise it shall be reconsidered; and, if approved by two-thirds of the members of that House, it shall become a law; but in such cases the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and
1 against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the Governor with his objections within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent its return, in which case it shall be a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment. If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect. If the Legislature be in session, he shall transmit to the House in which the bill originated a copy of such statement and the items objected to shall be separately considered. If, on reconsideration, one or more of such items be approved by two-thirds of the members present of each House, the same shall be part of the law, notwithstanding the objections of the Governor. If any such bill, containing several items of appropriation, not having been presented to the Governor ten days (Sundays excepted) prior to adjournment, be in the hands of the Governor at the time of adjournment, he shall have twenty days from such adjournment within which to file objections to any items thereof and make proclamation of the same, and such item or items shall not take effect.
2 APPENDIX E UNITED STATES CONSTITUTION
FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
FOURTEENTH AMENDMENT
SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Cite This Page — Counsel Stack
Ex Parte James Richard "Rick" Perry, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-james-richard-rick-perry-texapp-2015.