Ex Parte James Richard "Rick" Perry
Opinion
ACCEPTED 03-15-00063-CR 4682610 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/27/2015 10:57:05 PM JEFFREY D. KYLE CLERK
No. 13-15-00063-CR 0 FILED IN 3rd COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS 3/27/2015 10:57:05 PM for the Third District of Texas at Austin JEFFREY D. KYLE Clerk
____________________________________
EX PARTE JAMES RICHARD “RICK” PERRY ____________________________________
APPEAL FROM THE DENIAL OF APPLICATION FOR WRIT OF HABEAS CORPUS
STATE OF TEXAS V. JAMES RICHARD “RICK” PERRY
D-1-DC-14-100139
IN THE DISTRICT COURT FOR THE 390TH JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS ___________________________________
APPELLEE’S BRIEF ____________________________________
ORAL ARGUMENT REQUESTED
MICHAEL MCCRUM DAVID GONZALEZ TEXAS BAR NO. 13493200 TEXAS BAR NO. 24012711 DISTRICT ATTORNEY PRO TEM ASST. DISTRICT ATTORNEY PRO TEM TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS 700 N. St. Mary’s St., Ste. 1900 206 East 9th Street, Ste. 1511 San Antonio, Texas 78205 Austin, Texas 78701 Tel: (210) 225-2285 Tel.: (512) 381-9955 Fax: (210) 225-7045 Fax: (512) 485-3121
ATTORNEYS FOR THE STATE OF TEXAS TABLE OF CONTENTS
Statement Regarding Oral Argument .................................................................... xvi
Index of Authorities ................................................................................................. iv
Statement of Facts ......................................................................................................1 Summary of the Argument.........................................................................................2
Argument....................................................................................................................3
I. The First Amendment Does Not Protect All Forms of Speech. ..........................6 A. Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression. ................................................6 B. The Constitution allows the Legislature to put some limits on speech when regulating a public servant’s speech. ....................................8 C. The Constitution allows the Legislature to regulate a public servant’s speech, even though it would necessarily put some limits on private speech. ...........................................................................10
1. The face of the statute at issue is not overbroad. ............................13 2. The statute is not subject to strict scrutiny because it does not distinguish between favored and disfavored speech. .....................19 3. Even if heightened scrutiny were applied, “Coercion of a Public Servant” statute withstands that scrutiny. .................................21 II. The coercion statute provides adequate notice consistent with due process. ......................................................................................................23
A. The context of the statutory meaning of the word “coercion” provides fair warning. ..............................................................................24
B. The Legislature intended to cover threats of lawful action......................26
i III. District Court Properly Held As-Applied Challenges Not Cognizable in Pretrial Habeas Proceeding......................................................31
A. Appellant’s Improper Reliance on Speculation. ......................................31
B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review. ....................................................................................................32 1. The Claims Are Not Ripe For Review. ............................................34
2. There must first be facts in evidence before this Court can decide Appellant’s “as applied” challenges. .......................................35
C. All of Appellant’s Remaining Claims Are “As Applied” Challenges. ...............................................................................................37
IV. Separation of Powers Doctrine Allows Judicial Branch to Check Coercive Use of Executive Power. ......................................................43
V. A Governor is Not Immune from Criminal Prosecution. ................................48 A. Texas state Speech or Debate Privilege Narrower than federal Speech or Debate Privilege. .................................................50
B. The Speech or Debate Privilege applies to Members of the Legislature, not a Governor. .....................................................................53
1. No governor ever has been afforded Speech or Debate privilege or legislative immunity from criminal prosecution...............53
2. The privilege does not extend to all legislative-related topics of conversation. .........................................................................................55
C. The common law doctrine of legislative immunity does not make a Texas governor above the law. .............................................................56
Prayer .......................................................................................................................61
Certificate of Compliance ........................................................................................62 Certificate of Service ...............................................................................................63
ii Appendix ............................................................................................................... A-1
Exhibit A: 1973 version of §§ 36.01, 36.03.......................................................... A-1
Exhibit B: 1989 revision of §§ 36.01, 36.03 ......................................................... A-5
Exhibit C: 1993 revision of §§ 36.01, 36.03 - Naishtat Amendment ................. A-37
Exhibit D: 1993 revision of §§ 36.01, 36.03 ...................................................... A-39 Exhibit E: Speech or Debate Privilege Chart...................................................... A-48
iii INDEX OF AUTHORITIES Texas Cases Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980) .....................................................13
Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) .............................................................44
Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) .................................... 7, 25, 26, 35
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) .............................................................24
Briggs v. State, 740 S.W.2d 803 (Tex. Crim. App. 1987) .............................................................23
Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989) .............................................................24
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) ...............................................................42
Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........... 14, 24
Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) .............................................................33
Ex parte Cross, 69 S.W.3d 810 (Tex. App.—El Paso 2002, pet. ref’d).........................................35
Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .............................................................41 iv Ex parte Delbert, 582 S.W.2d 145 (Tex. Crim. App. 1979) .............................................................36
Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) .............................................................37
Ex parte Ellis, 309 S.W.3d 71 (Tex.
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ACCEPTED 03-15-00063-CR 4682610 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/27/2015 10:57:05 PM JEFFREY D. KYLE CLERK
No. 13-15-00063-CR 0 FILED IN 3rd COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS 3/27/2015 10:57:05 PM for the Third District of Texas at Austin JEFFREY D. KYLE Clerk
____________________________________
EX PARTE JAMES RICHARD “RICK” PERRY ____________________________________
APPEAL FROM THE DENIAL OF APPLICATION FOR WRIT OF HABEAS CORPUS
STATE OF TEXAS V. JAMES RICHARD “RICK” PERRY
D-1-DC-14-100139
IN THE DISTRICT COURT FOR THE 390TH JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS ___________________________________
APPELLEE’S BRIEF ____________________________________
ORAL ARGUMENT REQUESTED
MICHAEL MCCRUM DAVID GONZALEZ TEXAS BAR NO. 13493200 TEXAS BAR NO. 24012711 DISTRICT ATTORNEY PRO TEM ASST. DISTRICT ATTORNEY PRO TEM TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS 700 N. St. Mary’s St., Ste. 1900 206 East 9th Street, Ste. 1511 San Antonio, Texas 78205 Austin, Texas 78701 Tel: (210) 225-2285 Tel.: (512) 381-9955 Fax: (210) 225-7045 Fax: (512) 485-3121
ATTORNEYS FOR THE STATE OF TEXAS TABLE OF CONTENTS
Statement Regarding Oral Argument .................................................................... xvi
Index of Authorities ................................................................................................. iv
Statement of Facts ......................................................................................................1 Summary of the Argument.........................................................................................2
Argument....................................................................................................................3
I. The First Amendment Does Not Protect All Forms of Speech. ..........................6 A. Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression. ................................................6 B. The Constitution allows the Legislature to put some limits on speech when regulating a public servant’s speech. ....................................8 C. The Constitution allows the Legislature to regulate a public servant’s speech, even though it would necessarily put some limits on private speech. ...........................................................................10
1. The face of the statute at issue is not overbroad. ............................13 2. The statute is not subject to strict scrutiny because it does not distinguish between favored and disfavored speech. .....................19 3. Even if heightened scrutiny were applied, “Coercion of a Public Servant” statute withstands that scrutiny. .................................21 II. The coercion statute provides adequate notice consistent with due process. ......................................................................................................23
A. The context of the statutory meaning of the word “coercion” provides fair warning. ..............................................................................24
B. The Legislature intended to cover threats of lawful action......................26
i III. District Court Properly Held As-Applied Challenges Not Cognizable in Pretrial Habeas Proceeding......................................................31
A. Appellant’s Improper Reliance on Speculation. ......................................31
B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review. ....................................................................................................32 1. The Claims Are Not Ripe For Review. ............................................34
2. There must first be facts in evidence before this Court can decide Appellant’s “as applied” challenges. .......................................35
C. All of Appellant’s Remaining Claims Are “As Applied” Challenges. ...............................................................................................37
IV. Separation of Powers Doctrine Allows Judicial Branch to Check Coercive Use of Executive Power. ......................................................43
V. A Governor is Not Immune from Criminal Prosecution. ................................48 A. Texas state Speech or Debate Privilege Narrower than federal Speech or Debate Privilege. .................................................50
B. The Speech or Debate Privilege applies to Members of the Legislature, not a Governor. .....................................................................53
1. No governor ever has been afforded Speech or Debate privilege or legislative immunity from criminal prosecution...............53
2. The privilege does not extend to all legislative-related topics of conversation. .........................................................................................55
C. The common law doctrine of legislative immunity does not make a Texas governor above the law. .............................................................56
Prayer .......................................................................................................................61
Certificate of Compliance ........................................................................................62 Certificate of Service ...............................................................................................63
ii Appendix ............................................................................................................... A-1
Exhibit A: 1973 version of §§ 36.01, 36.03.......................................................... A-1
Exhibit B: 1989 revision of §§ 36.01, 36.03 ......................................................... A-5
Exhibit C: 1993 revision of §§ 36.01, 36.03 - Naishtat Amendment ................. A-37
Exhibit D: 1993 revision of §§ 36.01, 36.03 ...................................................... A-39 Exhibit E: Speech or Debate Privilege Chart...................................................... A-48
iii INDEX OF AUTHORITIES Texas Cases Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980) .....................................................13
Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) .............................................................44
Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) .................................... 7, 25, 26, 35
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) .............................................................24
Briggs v. State, 740 S.W.2d 803 (Tex. Crim. App. 1987) .............................................................23
Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989) .............................................................24
Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) ...............................................................42
Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........... 14, 24
Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) .............................................................33
Ex parte Cross, 69 S.W.3d 810 (Tex. App.—El Paso 2002, pet. ref’d).........................................35
Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .............................................................41 iv Ex parte Delbert, 582 S.W.2d 145 (Tex. Crim. App. 1979) .............................................................36
Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) .............................................................37
Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) ....................................................... passim
Ex parte Firmin, 60 Tex.Crim. 368 (Tex. Crim. App. 1910) ...........................................................38
Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) .............................................................24
Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) .............................................................36
Ex parte Hopkins, 610 S.W.2d 479 (Tex. Crim. App. 1980) .............................................................36
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ...............................................................20
Ex parte Mattox, 683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..........................................41
Ex parte Powell, 558 S.W.2d 480 (Tex. Crim. App. 1977) .............................................................36
Ex parte Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) ..................................38
v Ex parte Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006) .............................................................35
Ex parte Tamez, 4 S.W.3d 366 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ............................35
Ex Parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013), aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014) ....................................................13
Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) ...............................................................41
Ex parte Weise, 55 S.W. 3d 617 (Tex. Crim. App. 2001) ........................................... 32, 33, 35, 41
FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)...................................................................................15
Gant v. State, 814 S.W.2d 444 (Tex. App.—Austin 1991, no pet.) ............................................18
Gillenwaters v. State, 205 S.W.3d 534 (Tex. Crim. App. 2006) .............................................................15
Karenev v. State, 281 S.W.3d 429 (Tex. Crim. App. 2009) .............................................................37
Langever v. Miller, 76 S.W.2d 1025 (Tex. 1934) ................................................................................44
Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) ..............................................................42
vi Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) ................................................................................35
Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) ................................ 50, 51, 52, 53, A-49
Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006) ...................................................... 17, 18
Parent v. State, 621 S.W.2d 796 (Tex. Crim. App. 1981) .............................................................39
Puckett v. State, 801 S.W.2d 188 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d), cert. denied, 502 U.S. 990 (1991) ...........................................................................6
Roberts v. State, 278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d)............ 17, 18, 19, 24
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) .................................................................24
Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) ..................................................... passim
Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992) (op. on reh’g) ............................... 15, 39
State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) ................................................ 15, 32, 36
State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ...................................... 24, 25
vii State v. Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013) .....................................................15
Federal Cases Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564 (2002) ..............................................................................................13
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ................................................................................................9
Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000) ................................................................................................9
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..............................................................................................13
Brown v. Walker, 161 U.S. 591 (1896) ..............................................................................................12
Cano v. Davis, 193 F.Supp.2d 1177 (C.D.Calif. 2002) ........................................................... A-51
City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004) ..................................................................................................9
Clinton v. Jones, 520 U.S. 681 (1997) ....................................................................................... 47, 48
Coates v. City of Cincinnati, 402 U.S. 611 (1971) ..............................................................................................23
Coleman v. Miller, 307 U.S. 433 (1939) ..............................................................................................46
viii Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) ..............................................................................................23
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) ..................................................................................................9
Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir. 2011) ................................................................................54
Ex parte Virginia, 100 U.S. 339 (1879) ..............................................................................................46
Ferguson v. Estelle, 718 F.2d 730 (5th Cir. 1983) ................................................................................23
Ford v. Tenn. Senate, 2007 WL 5659414 (W.D.Tenn. 2007)............................................................. A-51
Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................................................9
Goldwater v. Carter, 444 U.S. 996 (1979) ..............................................................................................46
Gravel v. United States, 408 U.S. 606 (1972) ............................................................................. 55, 58, A-49
Grayned v. City of Rockford, 408 U.S. 104 (1972) ..............................................................................................23
Hutchinson v. Proxmire, 443 U.S. 111 (1979) ................................................................................... 59, A-49
Imbler v. Pachtman, 424 U.S. 409 (1976) ..............................................................................................59
ix In re Grand Jury (Cianfrani), 563 F.2d 577 (3d Cir. 1977) A-51
In re Grand Jury (Colafela), 821 F.2d 946 (3d Cir. 1987, reh'g en banc) .................................................... A-50
In re Grand Jury (Eilberg), 587 F.2d 589 (3d Cir. 1978) ............................................................................ A-50
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) ..........................................................................................9, 10
Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011) ..................................................................................9
Kilbourn v. Thompson, 103 U.S. 168 (1880) ........................................................................................ A-49
Meyer v. Grant, 486 U.S. 414 (1988) ..............................................................................................20
Miller v. Alabama, 132 S.Ct. 2455 (2012) ...........................................................................................38
Miller v. California, 413 U.S. 15 (1973) ..................................................................................................6
Miranda v. Arizona, 384 U.S. 436, 458–60 (1966)................................................................................12
Nixon v. United States, 506 U.S. 224 (1993) ..............................................................................................45
x O’Shea v. Littleton, 414 U.S. 488 (1974) ..............................................................................................59
Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ................................................................................................9
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ..........................................................................................8, 11
Police Dep’t v. Mosley, 408 U.S. 92 (1972) ............................................................................................9, 10
Pulliam v. Allen, 466 U.S. 522 (1984) ..............................................................................................57
Roper v. Simmons, 543 U.S. 551 (2005) ..............................................................................................38
Roth v. United States, 354 U.S. 476 (1957) ..............................................................................................21
Rust v. Sullivan, 500 U.S. 173 (1991) ..............................................................................................11
Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980) ..............................................................................................57
Tenney v. Brandhove, 341 U.S. 367 .................................................................................................... A-49
Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014) ..............................................................................................8
xi United States v. Bass, 404 U.S. 336 (1971) ..............................................................................................42
United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988) ............................................................................. A-50
United States v. Brewster, 408 U.S. 501 (1972) ............................................................................. 49, 51, A-49
United States v. Brown, 381 U.S. 437 (1965) ..............................................................................................45
United States v. Craig, 573 F.2d 455 (7th Cir. 1977, reh'g en banc den.) ........................................... A-51
United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977) ........................................................................... A-50
United States v. Eilberg, 507 F.Supp. 267 (E.D.Penn. 1980) ................................................................. A-51
United States v. Gillock, 445 U.S. 360 (1980) ....................................................................... 55, 57, 59, A-49
United States v. Helstoski, 442 U.S. 477 (1979) ................................................................................... 56, A-49
United States v. Hutson, 843 F.2d 1232 (9th Cir. 1988) ................................................................................7
United States v. Johnson, 383 U.S. 169 (1966) ................................................................................... 51, A-49
United States v. Kozminski, 487 U.S. 931 (1988) ..............................................................................................22
xii United States v. Mandel, 415 F.Supp. 1025 (D.Md. 1976) (May 4, 1976 supplemented opinion) ...................................................... 46, 53, 56
United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976) ...................................................................... 53, 54
United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972) ......................7
United States v.Nelson, 486 F.Supp. 464 (W.D.Mich. 1980) ............................................................... A-51
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) ..............................................................................................20
United States v. Quinn, 514 F.2d 1250 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976) ........................7
United States v. Renzi, 2014 WL 5032356 (9th Cir 2014) .................................................................. A-50
United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992) ...........................................................................57
United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) ..............................................................................13
United States Football League v. National Football League, 1986 WL 6341 (S.D.N.Y. 1986) (not reported) ............................................. A-51
Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) ..................................................................................9
xiii Village of Hoffman Estates, 455 U.S. 489 (1982) ..............................................................................................24
Virginia v. Black, 538 U.S. 343 (2003) ..............................................................................................20
Wainwright v. Sykes, 433 U.S. 72 (1977) ................................................................................................36
Watts v. U.S., 394 U.S. 705 (1969) ................................................................................................6
State Cases --Other Jurisdictions Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004) ....................................................................................46
Constitutional Provisions TEX. CONST. art. II, § 1 .............................................................................................60 TEX. CONST. art. IV, § 12 .........................................................................................45 TEX. CONST. art. XVI, § 41 ......................................................................................52
U.S. CONST. amend. I .................................................................................................9 U.S. CONST. amend. V .............................................................................................12
Statutes TEX. GOV’T CODE ANN. § 311.011 ..........................................................................24 TEX. PENAL CODE ANN. § 1.07(a)(9) .............................................................. passim TEX. PENAL CODE ANN. § 36.03 ..................................................................... passim TEX. PENAL CODE ANN. § 38.12(b) .........................................................................22 TEX. PENAL CODE ANN. § 6.03.................................................................................26
xiv Other Authorities Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C.L. REV. 695, 695 (2011) .......................................................................9, 10
Maury Maverick Jr., “Leave First Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997).......10
xv STATEMENT REGARDING ORAL ARGUMENT
Typically, prosecutions for extortionate acts are against persons without
power trying to influence or threaten a person with power. By contrast, this case
presents the application of a criminal statute for extortionate and abusive acts
committed by a public official with power.
This case necessarily requires discussion and thought of nuanced questions
about what restraint, if any, should be placed on the exercise of power by our
government, particularly where such exercise of power enters the domain of
definitions of criminal conduct. This case also addresses the extent our State can
restrict what public officials say to avoid the public official unlawfully using the
imprimatur of government speech to escape prosecution for criminal acts.
Questions about threats, extortion, and other forms of harm may be addressed in
oral argument to discuss the parameters of remedy when a public official
unlawfully abuses the power of his office for benefit other than pecuniary gain.
All citizens of Texas have a common interest in the outcome of this matter
and in the answers to such complex questions. There is a compelling interest for
oral argument to allow a discussion about a law that is broad enough to capture
implied or disguised, yet very real, threats without being so specific that it limits its
application. Oral argument will likely involve a discussion of the limits—and
abuses—of power in our representative democracy and how it can be regulated.
xvi This case cuts to the heart of what citizens believe about government and politics
and power.
Oral argument is appropriate to address the complexity of these important
issues.
xvii STATEMENT OF FACTS
This case is about a public servant’s commission of two crimes in violation
of two Texas statutes: “Coercion of a Public Servant,” based on an illegal quid pro
quo threat made by then-Governor Perry against an elected public servant of a
distinct jurisdiction, and “Abuse of Official Capacity,” based on Mr. Perry’s
corresponding abuse of the power granted to his office in retaliation against that
public servant for refusing to accede to his threat. Appellant filed motions to quash
the indictment, yet also filed applications for writ of habeas corpus on the same
grounds so that pretrial appeals could be filed. Other than the allegations in the
indictment, however, there is no evidence or presentation of facts yet in the record.
Then-District Judge Bert Richardson (now Texas Court of Criminal Appeals Judge
Richardson) said it best in ruling upon Appellant’s pleadings:
The unique circumstances involved in this case have been widely reported, argued, and discussed by many with no standing in the case, including the amicus briefs and many other self-appointed ‘experts.’ The alleged and speculated upon facts are not properly before this court at this time, and the court has no authority at this stage to examine the evidence that was presented to the Grand Jury. 1
The district court’s rejection of Appellant’s constitutional challenges to each of the
criminal statutes were without evidentiary hearing. Contrary to Appellant’s critique
of Judge Richardson for purportedly failing to “fully grapple” with Appellant’s
1 C.R. 468, n. 3. 1 challenges, the district court’s lengthy and well-thought-out order rejecting
Appellant’s assertions demonstrate a correct application of legal precedent.2
SUMMARY OF THE ARGUMENT
In carrying out their assigned responsibility, our elected representatives
passed and entered as law Texas Penal Code Sections 36.03 (Coercion of a Public
Servant) and 39.02 (Abuse of Official Capacity). These are not statutes designed to
guard against blatant bribes or unmistakable forms of corruption. Rather, these
statutes are designed to protect the democratic process from more dangerous,
sometimes less obvious, forms of corruption. They are designed to protect against
the abuse of government power.
The face of the “Coercion of a Public Servant” statute does not violate our
constitutional Free Speech clause for three reasons: it regulates a category of
unprotected speech; the State has a compelling need to criminalize extortion
committed under color of public office; and, the statute does not prohibit a
substantial amount of protected speech.
In addition, the statutes at issue are not unconstitutionally vague on their
face. Courts have held that statutory definitions and common usage of the terms
“coercion” and “threat” provide sufficient notice to satisfy Due Process vagueness
concerns.
2 C.R. 464–483. 2 Further, courts are without authority, and have repeatedly rejected requests,
to consider “as-applied” constitutional challenges to statutes in a pretrial habeas
context, particularly where the court would be required to speculate as to the facts
made the basis of the prosecution. Such is the situation in the instant case, where
Appellant’s “as-applied” challenges to both statutes are replete with speculation.
Appellant plainly misapplies the legal principle of separation of powers in
his effort to avoid prosecution for his criminal acts. Courts have repeatedly rejected
similar pleas from public officials, including governors, who have been charged
with committing crimes in connection with the abusive exercise of their
governance.
Similarly, Appellant is not immune from criminal prosecution as a result of
his previous occupation as governor. The Texas constitutional Speech and Debate
Clause has never been, and cannot be, used to insulate a governor from criminal
prosecution. Finally, the principle of legislative immunity simply does not apply to
the instant criminal case, as it has never been applied to allow immunity from
criminal acts.
ARGUMENT
Coercion is a word that our society does not use lightly.
When we think of coercion, one knee-jerk connotation is “government
coercion.” Nobody wants the government to tell us what to do. Our society is
3 founded upon notions of freedom of expression, freedom of speech, and freedom
of choice. Coercion is the antithesis of all of these values—especially when it
involves government coercion.
The most devastating aspect of coercion is that it deceptively makes the
victim believe she is responsible for her own demise. Coercion creates the
appearance of choice, the appearance of responsibility for the choice, and the
punishment and moral blameworthiness for making the “wrong” choice. As is
evident in this case, coercion happens when some may wonder aloud why
Rosemary Lehmberg did not just resign so the Public Integrity Unit legislatively-
authorized funding would not be eliminated, criminal investigations would not
have to be terminated, and people would not have to lose their jobs. Coercion
achieves his objective when a public servant in power need only make a threat and
then allow the victim to suffer the consequences.
When an elected body recognizes the danger of coercion, and when they
recognize that public servants are those with the greatest opportunity to take
coercive actions, they are right to place limits on conduct and proscribe it. Criminal
coercion has a rich context that is much deeper than “threat.” You can make an
“idle threat.” There is no analogy for criminal coercion. Coercion is specific.
Coercion is not idle, but intentional. Unlike conduct that amounts to general
pressure resulting from “duress” or “harassment” or “intimidation” or “undue
4 influence,” coercion implies not just intent, but a malicious intent to induce another
to act. Coercion destroys effective consent. Coercion crosses a line, landing firmly
outside of the First Amendment protection of free expression and well within the
authority of the Legislature to regulate and criminalize it. In defining the term
coercion and otherwise describing that which crosses the line into unacceptable
conduct, the Legislature placed limits on and proscribed coercion without limiting
application from the many factual scenarios that persons can conceive to inflict
upon another.
5 I. The First Amendment Does Not Protect All Forms of Speech.
A. Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression.
Appellant Perry seeks dismissal of the indictment because it purportedly
seeks to penalize his constitutional right to free speech. The criminal statute
“Coercion of a Public Servant” protects against extortionate conduct and quid pro
quo threats made against public servants. After fourteen years as governor of our
state and numerous prosecutions against Texas citizens under this statute, Mr.
Perry asserts for the first time that this statute, on its face, is unconstitutional under
the First Amendment to the U.S. Constitution. Appellant is wrong.
There are categories of speech that do not deserve nor receive First
Amendment protection. First Amendment jurisprudence is filled with nuances that
rely entirely upon the words spoken, the identity of the speaker, the relationship
between the speaker and the listener, and the venue of the dialogue. For example,
profanity may be included in a speech protected by the First Amendment—but it
does not mean that regulations against profanity are vague or overbroad. A
legislature may prohibit materials that are obscene,3 threats of violence,4 and
retaliatory acts without running afoul of the Constitution.5
3 Miller v. California, 413 U.S. 15 (1973). 4 Watts v. U.S., 394 U.S. 705 (1969). 5 Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d), cert. denied, 502 U.S. 990 (1991) (“Section 36.06 [Obstruction or Retaliation] implicates no First 6 The litmus test of unprotected speech is not simply threats of physical
violence, but include threats made that would expose a witness to “hatred, contempt
or ridicule.”6 Verbal extortion “has no more constitutional protection than that
uttered by a robber while ordering his victim to hand over the money.” 7 Similarly,
quid pro quo threats made under a display of authority and power are equally
prohibited, particularly where the relationship of power between the speaker and the
listener gives rise to unlawfulness of the threat.8
Amendment protections. By its terms, the statute punishes only those individuals who intentionally or knowingly harm or threaten to harm another person by an unlawful act.”). 6 Board v. State, 03-96-00024-CR, 1998 WL 271043, at *5 (Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) (“Appellant reasons that Section 36.05 [Tampering with Witness] is unconstitutional in that it allows prosecution for protected speech and writing . . . . We believe the State of Texas has a very substantial interest in protecting witnesses from threats of exposure to hatred, contempt or ridicule.”). 7 Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (citing United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976); and United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988). 8 Sanchez, 995 S.W.2d at 688 (First Amendment does not give public official right to trade official acts for submission to conduct the official was not otherwise entitled). 7 B. The Constitution allows the Legislature to put some limits on speech when regulating a public servant’s speech.
At issue is whether the State has a compelling interest in regulating what an
elected public servant may say or do under the umbrella of powers entrusted to him
by the people. Appellant’s facial challenge raises the thorny question: When a
public official conveys a threat to use his power to accomplish an objective that he
otherwise could not achieve, does he speak as a private individual or as a
representative of the government? This difficulty of interpreting what is considered
government speech or private speech has recently been addressed in several cases.9
Where one public servant is threatened by another public servant, however, the
possibility that the public servant speaker may assert First Amendment protection
is precisely what makes the coercive threat so effective in seeking to influence the
public servant listener. This precisely is the legitimate basis for courts allowing the
State to regulate and put limits on a public servant’s speech with greater latitude
than regulating speech of a private citizen.
9 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009) & Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014). 8 Clearly, the government cannot restrict expression merely because of its
message, ideas, subject matter, or content.”10 However, a restriction on “the
Government’s own speech . . . is exempt from First Amendment scrutiny,”11 even
when such restriction has the effect of limiting speech. Indeed, the government
may restrict what its agents say, and how and when they say it,12 for the
constitutional protection for free speech restricts government regulation of private
speech; it does not regulate government speech.13 The U.S. Supreme Court has
held that “[w]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes
…”14 The basis for the distinction is that the State has a different interest in
regulating what public servants and government employees may do or say that
differs greatly from regulation or restriction of private citizens.15 The First
Amendment was designed as a means of insulating power or control by those in
10 Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring in the judgment) (“Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional.”). 11 Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005); see also Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C.L. REV. 695, 695 (2011). 12 See, e.g., City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004); Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011); Garcetti v. Ceballos, 547 U.S. 410, 422 (2006). 13 See Johanns 544 U.S. at 553 (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139 n.7 (1973) (Stewart, J., concurring); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000). 14 Garcetti, 547 U.S. at 421. 15 See City of San Diego v. Roe, 543 U.S. at 80; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000).
9 positions of governmental authority, not the other way around.16 Statements made
by public officials to other public officials are unprotected under Garcetti and its
progeny and are no more entitled to First Amendment protection than criminal
threats or extortion.
C. The Constitution allows the Legislature to regulate a public servant’s speech, even though it would necessarily put some limits on private speech.
Appellant argues that § 36.03(A)(1) and § 1.07(a)(9)(F) may also curtail
private speech. But the State can limit private speech when it has the effect of
coercing a public servant. “The Government’s own speech . . . is exempt from First
Amendment scrutiny,”17 even when such regulation has the effect of limiting
private speech. As the government may restrict what its agents say, and how and
when they say it, it stands to reason, then, that the “government may be able to
restrict [some] private expression ‘because of its message, its ideas, its subject
matter, or its content,’ so long as in so doing it is expressing its own viewpoint.” 18
That is, some private speech may be burdened by the very nature of
regulating government speech. If the government does not prefer its subsidized
16 Famed Texas Free Speech advocate, lawyer, and legislator, Maury Maverick Jr., noted that, at its core, the First Amendment is a tool to protect the minority from the majority, and not the other way around: “Madison, Jefferson, George Mason and others explained that the purpose [of the First Amendment] was to limit and qualify power, guard against legislative and executive abuses, and protect the minority against the majority.” Maury Maverick Jr., “Leave First Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997). 17 Johanns, 544 U.S. at 553; Blocher, supra note 11, at 695. 18 See Blocher, supra note 11, at 696 (citing Mosley, 408 U.S. 92–95). 10 doctors discussing abortion in the same clinic that uses government funding, it is
well within its power to prohibit those abortion discussions.19 Likewise, by
choosing certain types of monuments it prefers in its parks, the government is well
within its power to prohibit private parties from erecting other types of
monuments.20 These limits on private speech are constitutionally permissible, as
they are incidental to the Government’s regulation of its own speech.
At its core, § 36.03(A)(1) and § 1.07(a)(9)(F) is the Texas Legislature
regulating its own speech and actions: it is taking affirmative action to prevent its
public officials from speaking or acting as a result of coercion. Its viewpoint is
simple: official speech should not be coerced speech. As is expected, the
Legislature believes it ill-advised for its officials to speak when they are coerced
into doing so.
But proclaiming that potential victims of coercion should not be coerced is a
fool’s errand. Due to the coercive nature of coercion, the Legislature cannot
achieve its goal by just placing restrictions on the private citizen speaking to the
government. To achieve its preferred government speech, the Legislature has to
burden the coercer, whoever that may be.
19 See Rust v. Sullivan, 500 U.S. 173, 193 (1991). 20 See Summum, 555 U.S. at 467. 11 The Framers also sought to prevent coercion in certain respects. In fact, they
thought it foundational to only allow criminal confessions if they were free from
coercion.21 Coerced confessions, history proved, were unreliable and
untrustworthy: only serving the ends of the coercer and not that of justice.22 This
cornerstone proved difficult to build upon, as coercion was tricky. Coercers
constantly changed and evolved their coercion-tactics—seeking to optimize both
their effectiveness and their societal palatability.23 Through the centuries of
struggle combatting coerced confessions, one truth was evident: restraining the
coercer was the only way to prevent coerced statements.24
And so it was with public officials. A rule to public officials stating: “If you
are coerced to speak, do not speak” would be absurd—the only effective way to
prevent coerced official speech is to restrict the coercer. As such, the Legislature is
posed with a dilemma: either refuse to restrict any private speech and allow,
unfettered, its public officials to give coerced speech, or prevent all coercers from
influencing official speech and action. The first choice allows corruption of
government, while the second necessarily places some limits on private speech.
Both choices are constitutionally permissible.
21 See U.S. CONST. amend. V. 22 See Brown v. Walker, 161 U.S. 591, 596–597 (1896); Miranda v. Arizona, 384 U.S. 436, 458– 60 (1966). 23 See Miranda, 384 U.S. at 448–458. 24 See Miranda, 384 U.S. at 467–70. 12 1. The face of the statute at issue is not overbroad.
Historically, courts have been extremely hesitant to rule that a criminal
statute is overbroad and facially unconstitutional—even when the government is
restricting expression by private citizens. It has been said by our State’s highest
criminal court that the “overbreadth” doctrine is “strong medicine” that should be
employed “sparingly” and “only as a last resort.”25 “[T]he overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.”26 That is, the court is to determine whether “the statute
reaches a substantial amount of constitutionally protected conduct” and whether a
“substantial number of the statute’s applications are unconstitutional judged in
relation to the statute’s plainly legitimate sweep.”27 If the statute cannot be shown
to restrict a substantial amount of constitutionally protected conduct, the
overbreadth challenge must fail.28 That is, the fact that the enforcement of a statute
operates to prohibit or restrain a private citizen’s right to speak does not itself
mean that the statute is invalid.29 If such a principle applies to the speech of a
25 Ex parte Ellis, 309 S.W.3d 71, 91 (Tex. Crim. App. 2010). 26 Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); see also Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 585 (2002). 27 Ex Parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013), aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014) (citations omitted). 28 Id. 29 See Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980); see also United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (threatening a person is not an opinion or idea that is needed in marketplace of ideas). 13 private citizen, than it would certainly follow that this same principle would apply
to a public servant’s speech.
There are several reasons Appellant’s overbreadth challenge must fail. First,
the statute cannot be overbroad if coercive threats are not entitled to First
Amendment protection. In Duncantell v. State, the appellant asserted that the
Interference of a Public Servant statute [Section 38.15] is overbroad because it
“impermissibly restricts a person’s right to walk about freely and the right to not
remain silent.”30 The court examined whether the interference statute’s limitations
on conduct restricted a substantial amount of constitutionally protected
expression.31 In denying the overbreadth challenge, the court noted:
The interference statute at issue here prohibits a person, acting with criminal negligence, from interrupting, disrupting, impeding, or otherwise interfering with a peace officer, while the peace officer is performing a duty or exercising authority imposed or granted by law. . . Appellant has cited no authority, and we are aware of none, holding that conduct, which a person knew or should have known would interrupt, disrupt, impede, or interfere with a peace officer performing a duty imposed by law, such as investigating an accident or arresting a criminal suspect, is expressive conduct protected by the First Amendment.32
This is the same type of unprotected conduct Section 36.03 regulates.
Second, because regulating coercive threats by public officials is distinct
from regulating purely political speech by private citizens, the presumption of the 30 Duncantell v. State, 230 S.W.3d 835, 843–44 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). 31 Id. 32 Id. at 844 (emphasis added). 14 statute’s validity remains. Further, even if there may be a slight amount of
expressive conduct nestled within a coercive threat, the statute does not restrict a
substantial amount of protected speech. When lodging a facial challenge, it is not
enough to argue that a statute might operate unconstitutionally in a single
circumstance, much less an extreme one.33 He must prove that a prosecution can
never be constitutionally applied to any Texas defendant charged with the statute at
issue, no matter what the individual facts and circumstances of the particular
case.34 In reviewing a facial challenge, the court considers the statute only as it is
written, rather than how it operates in practice.35 And if the court can identify any
factual circumstance in which the statute is valid, the facial challenge must fail.36
The following hypothetical factual circumstances demonstration the validity
of the statute:
-May a Governor call a police chief and inform him that if he does not tear up a ticket that was wrongfully issued against a family friend he might find that the funding for his entire police department be eliminated via line-item veto?
-May a Senator call an elected district attorney and suggest that if a “misguided prosecution” is not dropped against his son he will strip funding for her office from his appropriations bill?
33 See Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (op. on reh’g). 34 See Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex. Crim. App. 2006). 35 See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). 36 State v. Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013). 15 -May a Representative e-mail a judge and suggest that if a groundless case in her court is not dismissed he would eliminate her judicial district?
-May a Governor threaten to veto funding for all highway monies in Travis County if the elected District Attorney does not resign?
-May a Governor threaten to veto state funding for all elected State District Court Judges in Travis County if the elected District Attorney does not resign?
Third, Appellant proposes a definition of “threaten” akin to “negotiate.”
Under this lens, Appellant ignores the words in context to make an overbreadth
challenge. Derivations of the word “threat” are found 62 times in the Penal Code
and 64 times in the Code of Criminal Procedure. In not a single instance is “threat”
used in the context of “negotiation.” It is the coercive control that provides the
context for the threat. Coercion implies intimidation to violate any choice or free
will of the listener. Coercion depends on a listener acting against his own interest
to avoid a greater harm. Coercive threats are in the same category of extortion and
blackmail—they cross a societal line between acceptable and unacceptable areas
for negotiation.
Appellant proposes hypotheticals that would result in a “chilling effect.”
Coercion of a Public Servant has been illegal for over four decades. This case has
been ongoing for a year and a half. No bill has been filed in the current legislative
session seeking to modify, clarify or eliminate either Section 36.03 or 1.07(a)(9).
And there is no evidence of any chilling effect. Appellant, himself, publicly 16 announces over and over again he would repeat his actions. Alarmist assertions of
chilled expression notwithstanding, the State has an interest in chilling coercive
threats to public servants because it is not expressive, and these threats chill
legitimate speech.
Sections 36.03 and 1.07(a)(9) of the Texas Penal Code address acts of
“coercion” which, by statutory definition, include “threats.”37 This statutory
language necessarily limits the application of the statute to criminal behavior, and
does not render it overbroad to substantially include innocent behavior.
Additionally, the Texas Court of Criminal Appeals has addressed the scope of the
term “threat,” by indicating its “common, ordinary meaning” is the following:
1. to declare an intention of hurting or punishing; to make threats against; 2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds threaten rain or a storm; 3. to express intention to inflict (injury, retaliation, etc.); 4. to be a source of danger, harm, etc., to.38
37 See TEX. PENAL CODE ANN. § 1.07(a)(9) (West 2011). 38 Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006); see also Roberts v. State, 278 S.W.3d 778, 790 (Tex. App.—San Antonio 2008, pet. ref’d). 17 The Court noted that Black’s Law Dictionary defines “threat” as: “A
communicated intent to inflict harm or loss on another or on another’s
property…”39 The Court’s analysis is consistent with the principle that words or
phrases must be read also in the context in which they are used.40 Thus, the word
“threat” does not stand alone. It must be read in the context of the statutory
meaning of the word “coerce” or “coercion” as that term is defined in the Penal
Code, section 1.07(a)(9). To require further definition of the term “coerce,” as
Appellant apparently argues should have been done, is to reach the point of
defining definitions.
Accordingly, section 36.03 cannot be said to be substantially overbroad
judged in relation to the statute's plainly legitimate sweep.41 Moreover, the
challenged statute is presumed valid if “closely drawn to match a sufficiently
important interest.”42
Coercion occurs when a person illegally threatens to do indirectly what he
does not have the power to do directly.43 No public official can hide under the
cloak of official authority or the First Amendment in order to commit the crime of
39 Olivas, 203 S.W.3d at 345–46. 40 See Gant v. State, 814 S.W.2d 444, 454 (Tex. App.—Austin 1991, no pet.). 41 Ellis, 309 S.W. at 91. 42 Id. 43 See Roberts v. State, 278 S.W.3d at 790 (court rejects overbreadth and vagueness challenges; attorney’s otherwise legitimate right to file lawsuit still actionable under criminal “coercion” statute); Sanchez, 995 S.W.2d at 687 (court rejects overbreadth and vagueness challenges; threats have no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money). 18 coercion of a public servant and abuse of office, nor should he be able to assert that
statutory definitions of criminal coercive conduct are overbroad. Threats of this
nature are simply not protected by the First Amendment and are not
unconstitutional in their clarity.44 The statute puts limits on a person’s conduct,
which must necessarily include any person’s (including a public official’s) exercise
of his duties under his employment. Coercion occurs when a public official
illegally threatens to do indirectly what he does not have the power to do directly.
Whether the underlying action is within the public official’s power (lawful) or
unlawful and criminally coercive, the statute is designed to protect the integrity of
the political process and not the end result.
2. The statute is not subject to strict scrutiny because it does not distinguish between favored and disfavored speech.
Before any level of judicial scrutiny is applied to determine the
constitutionality of a statute under the First Amendment, the challenger must clear
three preliminary hurdles: 1) demonstrate that the regulated activity has an
expressive component deserving of protection, 2) demonstrate that the speaker is
protected under the First Amendment, and 3) demonstrate that the speech should
be afforded a high degree of protection. Even if all of such hurdles were overcome,
only content-based regulation on private citizens’ speech would be held
44 See Roberts, 278 S.W.3d at 790; Sanchez, 995 S.W.2d at 687. 19 presumptively invalid and subject to strict scrutiny. 45 Moreover, strict scrutiny is
applied in facial challenges only to laws that distinguish between favored and
disfavored speech based on the ideas expressed.46
Appellant cuts a wide swath in asserting that merely because the statute at
issue addresses speech, it necessarily is subject to strict scrutiny review. Such is
not in accord with precedent. Appellant fails to address precedent that addresses
private versus public servant speech, and favored versus disfavored expression.
The “Coercion of a Public Servant” statute does not make the favored/disfavored
expression distinction that would raise constitutional concern. Also, Appellant fails
to demonstrate why he should receive the benefit of heightened scrutiny where the
statute at issue is being enforced against a public servant’s threat. Appellant is not
entitled to a presumption of invalidity subject to the most severe judicial scrutiny.
Appellant’s argument that § 36.03(a)(1) and § 1.07(a)(9)(F) prohibit and burden
core political speech and, thus, should be analyzed under exacting scrutiny, is
unfounded. Core political speech involves “interactive communication concerning
political change.”47 The First Amendment affords the broadest protection to this
type of political expression in order “to assure [the] unfettered interchange of ideas
45 See, e.g., Virginia v. Black, 538 U.S. 343, 361 (2003). 46 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). 47 See Meyer v. Grant, 486 U.S. 414, 421–22 (1988). 20 for the bringing about of political and social changes desired by the people.”48 It
would be an unreasonable and unwarranted stretch to find that the founders of our
Constitution, our Legislature, and our courts should consider coercion and
extortion, which § 36.03 proscribes, as interactive communication deserving
constitutional protection. Moreover, Appellant failed to clear the substantial
hurdles necessary to invoke such a level of scrutiny.
3. Even if heightened scrutiny were applied, “Coercion of a Public Servant” statute withstands that scrutiny.
Judge Richardson concluded that the Coercion of a Public Servant statute
serves a compelling state interest to protect the integrity of the political process.49
The State of Texas has a singular interest in intervening when public officials try to
leverage the power of government for their personal or political whims. The State
of Texas undoubtedly has a valid and substantial interest in self-regulation. There
is also a close nexus between the compelling interest and the restriction. The
statute does not substantially include innocent behavior or criminalize protected
speech. Similar to the conduct in Sanchez, it criminalizes extortion (“either do
what I want or else something bad will happen to you”)50 which is not protected
expression.
48 See Roth v. United States, 354 U.S. 476, 484 (1957). 49 C.R. 477-78. 50 Sanchez, 995 S.W.2d at 691–92 (Mansfield, J., concurring). 21 Moreover, the statute is narrowly drawn in order to include the abuse of
public authority and to employ the least restrictive means to achieve its goal. The
legislative exception under Section 36.03(c) provides a limitation that the daily
operations of government negotiation are not criminalized. Furthermore, the statute
only criminalizes two categories of coercion - physical threats and threats of
official action. In United States v. Kozminski the Supreme Court wrestled with
narrowing the definition of coercion as applied to a prosecution for involuntary
servitude. Justice Brennan recognized that “certain psychological, economic, and
social means of coercion can be just as effective as physical or legal means.” But
out of concerns for vagueness, the Court determined that the jury charge should
have been limited to “the use or threatened use of physical or legal coercion.”51
These are precisely the narrow two categories—physical or legal coercion—
defined in Section 1.07(a)(9). The Legislature could have chosen to criminalize
conduct that influences a public servant as broadly as “duress, fraud, overreaching,
harassment, intimidation, or undue influence.”52 Instead, it chose a substantially
more narrow definition.
51 United States v. Kozminski, 487 U.S. 931, 955 (1988). 52 See TEX. PENAL CODE § 38.12(b) (Barratry and Solicitation of Professional Employment). 22 II. The coercion statute provides adequate notice consistent with due process.
Appellant asserts the face of the statute is unconstitutionally vague. An
enactment is not vague merely because it is imprecise.53 In drafting a criminal
statute, there is an inevitable balance that legislators must make between drafting it
“general enough to take into account a variety of human conduct and sufficiently
specific to provide fair warning that certain kinds of conduct are prohibited.”54 In
determining whether a statute is unconstitutionally vague, a two-part inquiry is
applied: (1) determine whether an ordinary law-abiding person receives sufficient
information from the statute that his conduct risks violating the criminal law, and
(2) determine whether the statute provides law enforcement with sufficient notice
to avoid arbitrary or discriminatory enforcement.55 In this regard, a statute is not
required to be “mathematically precise; it need only give fair warning.”56 Notably,
a statute is unconstitutionally vague “when no core of prohibited activity is
defined.”57
When a statute does not implicate constitutionally-protected conduct, a
reviewing court should sustain the vagueness challenge only if the statute is
53 Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir. 1983). 54 Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972). 55 Grayned v. City of Rockford, 408 U.S. 104 (1972). 56 Id. at 110. 57 Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987). 23 impermissibly vague in all its applications.58 A person who engages in conduct that
is clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.59
In making its analysis, the same presumption of statutory validity is applied
when evaluating an overbreadth challenge.60 The statutory words and phrases are
to be read in context, and construed according to the rules of grammar and
common usage.61 Words and phrases that have acquired a particular meaning
through legislative definition are construed accordingly.62 Importantly, a statute
must be upheld if a reasonable construction can be determined that will render it
constitutional.63
A. The context of the statutory meaning of the word “coercion” provides fair warning.
Appellant relies primarily on the Waco Court of Appeals’ decision in State
v. Hanson64 to argue that the statute is unconstitutionally vague. The case is
distinguishable.
In Hanson, the public official charged with violating section 36.03 had the
lawful authority to take lawful action against the persons who were victimized by
58 Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). 59 Id. (citing Village of Hoffman Estates, 455 U.S. 489, 494 (1982)). 60 Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Duncantell, 230 S.W.3d at 835; Sanchez, 995 S.W.2d at 683; Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991). 61 TEX. GOV’T CODE ANN. § 311.011(a) (West 2005); Sanchez, 995 S.W.2d at 683. 62 TEX. GOV’T CODE ANN. § 311.011(b) (West 2005). 63 Roberts 278 S.W.3d at 778; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) 64 State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.). 24 her threat to cut funding.65 Bosque County could legally terminate funding of
employees in the district attorney’s office or district clerk’s office, and Judge
Hanson could legally request that the county attorney institute proceedings to
revoke a misdemeanant’s probation. That is, the act requested by the defendant as
part of her threat was an act that was within the scope of the lawful authority that
she, the defendant, otherwise had. In that instance, the Waco Court of Appeals
found that it was impossible for Judge Hanson to predict that her threat was
criminal, as she was demanding action that was within her purview to demand.
Such is not the situation in the instant case, as then-Governor Perry did not have
the legal authority to demand an elected district attorney’s resignation.
But even the court in Hanson could not conclude that Section 36.03 was
vague on its face. The context of Section 36.03 and the other statutes within
Chapter 36 of the Penal Code focus on conduct to coerce a public official to act or
violate their known duty when the actor has no control or authority to do so. This is
the crux of two decisions by the Texas Court of Criminal Appeals.66
In Board v. State, the Court explained that the context of the terms
“coercion” and “threat” provide sufficient notice because “the word ‘threat’ does
not stand alone. It must be read in the context of the statutory meaning of the word
65 Id. at 272. 66 See Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) & Sanchez, 995 S.W.2d at 677. 25 ‘coerce’ or ‘coercion’ as that term is defined in Penal Code Section 1.07(a)(9).”67
Otherwise, no public official could ever be prosecuted because he could claim he
didn’t intend for his comments to be viewed as a threat. This is precisely the
harm—and the difficulty in prosecuting the harm—the the Legislature sought to
remedy. Sections 6.02 and 6.03 of the Penal Code provide further clarification and
notice in terms of what makes a potential act criminal in nature.68 All of these
statutes, when considered in the context of ordinary usage and definitions, prevent
all persons, including a public official, from feigning ignorance that his threat was
not intended to be criminally coercive.
B. The Legislature intended to cover threats of lawful action.
In addressing statutes involving abusive practices and coercive actions taken
by and against public officials, who better to understand the problems with the
abuse of power in political office than elected officials themselves? Members of
the Texas House, Texas Senate, and Office of the Governor all agreed in 1989 that
while power dynamics are a necessity of politics, there must be boundaries.
The main text of Sections 36.01 and 36.03 of the Texas Penal Code have
remained the same for over forty years, and each have included threats related to
67 Board, 1998 WL 271043 at *6; see also Sanchez, 995 S.W.2d at 689 (phrase “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” a reasonably specific phrase for Due Process purposes). 68 TEX. PENAL CODE ANN. § 6.03 (West 2011) (distinct, clear definitions of culpable mental states). 26 action taken by public servants.69 Notably, however, the text of Section 36.03 has
gone through extensive review, amendments, and proposed amendments during the
past 20+ years.
On January 24, 1989 Representative Wolens filed House Bill 594 (“H.B.
594”) to propose a two-word change to how cases would be prosecuted under
Section 36.03.70 The initial draft of the bill relating to the definition of “coercion”
added the adverb “unlawfully” twice to Section 36.01(1):
(1) “Coercion” means a threat, however communicated: (F) to unlawfully take or withhold action as a public servant, or to cause a public servant to unlawfully take or withhold action.71
Before being voted out of committee, the definition of what constitutes
“coercion” was narrowed further. Representative Guerrero introduced a committee
substitute for H.B. 594 adding the “same governing body” exception that can be
found in the current version of Section 36.03.72 During the 2nd Reading of the bill
on the House floor, Representative Parker made two additional changes to
C.S.H.B. 594:
1) He added Wolens’ “unlawfully” language back into the definition of ‘coercion’ in Section 36.01(1)(F), Penal Code; and
2) He enlarged the scope of what constitutes an offense under Section 36.03 by adding that: 69 See Exhibit A. 70 See Exhibit B. 71 See Exhibit B at A-8. 72 See Exhibit B at A-6. 27 A person commits an offense if by means of coercion he 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.73
On April 27, 1989, H.B. 594 was passed by the Senate by a 31-0 vote. The
bill became law.
But only for four years.
In 1993 the Penal Code was re-writen to create State Jail Felonies, and SB
1067 included an entire rewrite of the Penal Code. The original draft of SB 1067
left 36.01 and 36.03 untouched.74 After S.B. 1067 passed the Senate, it was subject
to 58 adopted amendments on the House floor during second reading. Two changes
occurred. First, Amendment No. 28 by Naishtat would have limited prosecution of
coercion of a public servant only to the narrow category of bribery-type conduct
and not the broader version of extortionate conduct.75 The Naishtat re-write of
36.03 was passed by the House.
73 See Exhibit B at A-14. 74 The enrolled version of SB 1067 is 475 pages long. The full legislative history is 4,395 pages long and can be found at: Legislative Reference Library of Texas, “SB 1067,” available at http://www.lrl.state.tx.us/LASDOCS/73R/SB1067/SB1067_73R.pdf#page=1 The relevant pages are included in Exhibit D. 75 See Exhibit C. 28 Because the bills passed by each chamber differed, a conference committee
was formed to adjust the differences between the Senate and the House on S.B.
1067. This resulted in a second change to the statute. The House version
eliminated the word “unlawfully” in the definition that had just been added several
years before. A summary of the legislative changes to that one word are as follows:
Action History of “Unlawfully” Rep. Wolens adds language in HB 594 “Unlawfully” added to definition of coercion in 36.01(F) Rep. Guerrero removes language in HB “Unlawfully” removed from to 594 definition of coercion in 36.01(F) Rep. Parker adds language in HB 594 “Unlawfully” added to definition of coercion in 36.01(F) Rep. Place consolidates definitions into “Unlawfully” still in definition of one section of the Penal code and coercion. moves the definition of “coercion” to Section 1.07 Rep. Place removes language in “Unlawfully” removed from definition C.S.S.B. 106776 of coercion in 1.07(F)
The Conference Committee accepted the definition of “coercion” without
“unlawfully” and rejected Naishtat’s changes to the statute. Ultimately, the Texas
Legislature and the Texas Governor decided to approve the removal of the word
“unlawfully” from the definition of “coercion,” reject the proposed limitation of
this statute to bribery, and continue to criminalize extortionate conduct. For a
76 See Exhibit D. 29 period of time, the word unlawfully was in the definition of coercion. The effect of
adding the word unlawfully, however, is that it would have drastically reduced the
scope of public officials who could be prosecuted. Both the Legislative and
Executive Branch rejected the interpretation that a public official must commit an
illegal act as a prerequisite for prosecution of coercion of a public official, and
intentionally removed the word from the definition. Otherwise, a public official
could always hide behind a cloak of “official authority.” Thus, the current statute
was an intentional effort by our State governance to adequately define prohibited
criminal conduct.
Elected officials in the legislative branch are the most knowledgeable
participants in the market of political power. They are the best persons to regulate
it. This is precisely why facial challenges to a statute should be difficult to mount
successfully.77 Often, such claims rest on speculation and exaggeration—such as in
this facial challenge. While this statute has been the law for at least four decades
there is no historical evidence of any chilling effect on any public officials’
actions.
Our state officials passed a law to limit their own power.
77 See Santikos, 836 S.W.2d at 633 (“A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Since a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the appellant to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient.”) (internal citations and quotations omitted). 30 III. District Court Properly Held As-Applied Challenges Not Cognizable in Pretrial Habeas Proceeding.
A. Appellant’s Improper Reliance on Speculation.
The trial court properly determined that a pretrial writ is not the appropriate
forum to decide whether Texas Penal Code Sections 39.02(a)(2) and 36.03(a)(1)
are being unconstitutionally applied to Appellant.78 This is not because these were
simply labeled “as applied” challenges. The entire Application for Writ of Habeas
Corpus is permeated with the assumption that Appellant is being prosecuted for
statements made at a press conference and acts in conformity with those
statements. But as the trial court explained, “The alleged and speculated upon facts
are not properly before the court at this time, and the court has no authority at this
stage to examine the evidence that was presented to the Grand Jury.”79 An “as-
applied” challenge necessarily challenges the invocation of a criminal statute “as
applied” to the particular facts of the instant case.
The district court in the instant case has not heard any testimony, admitted
any evidence, nor taken judicial notice of any fact related to the substantive
charges against Appellant. Even so, Appellant injects a number of proposed,
78 Order Denying Defendant’s Writ, p. 10 [C.R. 473]. 79 Order Denying Defendant’s Writ, p. 5, fn. 3 [C.R. 468]. 31 speculative facts in his writ application and brief. The State disagrees with
assumptions made by Appellant in his brief and writ applications, but legal
pleadings filed in habeas proceedings are not the place to present or litigate factual
evidence. That is reserved for trial. The trial court properly denied addressing the
“as applied” claims.
B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review.
Appellant inaccurately argues that his claims are the “functional equivalent”
of facial challenges.80 The litmus test of an “as-applied” challenge is whether a
person is arguing that the statute is being unconstitutionally applied to this
defendant under this set of facts.81 The district court correctly cited three different
Court of Criminal Appeals opinions, each expressly prohibiting trial courts from
considering the merits of an “as applied” challenge.82 In State ex rel. Lykos v. Fine,
the Court held that an “‘as-applied’ challenge is brought during or after a trial on
the merits, for it is only then that the trial judge and 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.”83 Similarly, in Ex
80 Appellant’s “as-applied” challenges are set forth in three sections of his appellate brief: Sections III, VI and VII. These will all be addressed in this section of the State’s Brief. 81 Order Denying Defendant’s Writ, p. 9 [C.R. 472]. 82 Order Denying Defendant’s Writ, p. 5 fn.4 [C.R. 468–69]; Id., p. 6 [C.R. 469], citing Lykos, 330 S.W. 3d at 911; Ellis, 309 S.W.3d at 79; Ex parte Weise, 55 S.W. 3d 617, 620 (Tex. Crim. App. 2001). 83 Lykos, 330 S.W.3d at 911. 32 parte Ellis, the Court held that pretrial habeas is an extraordinary remedy that may
not be “misused to secure pretrial appellate review of matters that in actual fact
should not be put before appellate courts at the pretrial stage.”84 Finally, in Ex
parte Weise contains the Court of Criminal Appeals explicitly pronounces: “We
granted review on our own motion to decide whether a pretrial writ of habeas
corpus may issue on the ground that a penal statute is being unconstitutionally
applied because of the allegations in the indictment or information. We conclude
that it may not.”85
Appellant argues that he advances the same type of “as-applied-to-the-
indictment challenge” as in Ex parte Boetscher. It is not. In Ex parte Boetscher the
court did not analyze conduct about whether the defendant did or did not pay child
support. Instead, it looked only to the face of the statute to find an equal protection
clause violation:
Unlike the previous statute, however, which increased the punishment to a felony for defendants who committed the offense in Texas and then fled the state, § 25.05(g)(2) provides a felony penalty for all defendants who commit the offense while simply residing in another state. The previous punishment classification scheme did not offend the equal protection clause, [], but the classification scheme in § 25.05 plainly implicates one of the basic rights of all Americans.86
84 Ellis, 309 S.W.3d at 79. 85 Weise, 55 S.W.3d at 620. 86 Ex parte Boetscher, 812 S.W.2d 600, 603 (Tex. Crim. App. 1991) (citation omitted) (emphasis in original). 33 This was far closer to what we consider a facial challenge than an “as applied”
challenge.
Similarly, Appellant advances that Ex parte Gill and Ex parte Elliot enable
this Court to analyze separation of powers violations in pretrial habeas. But neither
of these cases are the type of “as applied” challenges presented in Appellant’s writ.
Ex parte Gill was not an “as applied” challenge but a facial challenge to the bail
statute, Article 17.151. Ex parte Elliot was not an “as applied” challenge but a
facial challenge to the Texas Solid Waste Disposal Act. The facts in the cases are
irrelevant in analyzing whether the Legislature has the power to pass the
regulations. Appellant never asserts that the Texas Legislature lacks this authority;
he just reiterates that the application of the law is inapplicable as to him.
1. The Claims Are Not Ripe For Review.
Although Judge Richardson and this Court may have a general idea of the
facts of this case based on the indictment and the media interpretation of the events
giving rise to the indictment, the State has more evidence to present. In civil
proceedings, the theory behind the ripeness doctrine is straightforward—if
plaintiff's injury is not concrete and depends on contingent, remote, or hypothetical
facts, courts should avoid deciding the dispute. This theory has similarly been
34 applied to pretrial writs of habeas corpus.87 Ripeness presents a threshold issue that
implicates the court's subject matter jurisdiction, not its discretionary authority.88
Until the State has introduced or attempted to introduce evidence regarding
the threats which Appellant claims would violate the Speech or Debate Clause, the
separation of powers doctrine, or the constitutional application of the Abuse of
Office statute to Appellant’s conduct, these matters are not yet ripe for review.
2. There must first be facts in evidence before this Court can decide Appellant’s “as applied” challenges.
Even facial challenges can be better addressed with some factual basis in the
record. One of Appellant’s central arguments is that he is being prosecuted for
“core political speech.” However, much of the body of First Amendment caselaw
comes from the appellate court having the benefit of the words spoken, the context
of the threat, and the relationship between the parties. This is especially true in
cases involving indirect threats, retaliation, or extortion.
87 See, e.g., Weise, 55 S.W.3d at 621 (defendant’s claim not cognizable in pretrial writ of habeas corpus because not yet ripe for review); Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (in pari material claim premature before State has had opportunity to develop complete factual record during trial); Ex parte Cross, 69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, pet. ref’d) (“as applied” challenge to criminal trespass prosecution on First Amendment grounds not ripe for review); Ex parte Tamez, 4 S.W.3d 366, 368 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (as applied challenge to constitutionality of perjury statutes not ripe for adjudication when defendant had not yet been tried but claimed that unconstitutional harm was that trial court would be unable to issue fair jury instruction). 88 See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). 35 Appellant has been charged with abuse of office and coercion of a public
official. A trial on the merits is “the main event” in our American system of justice
in which the prosecution and defense present evidence and do battle to reach a
presumptively accurate and reliable result in each particular case. 89 At a trial on the
merits, “[i]f a criminal defendant thinks that an action of the state trial court is
about to deprive him of a federal constitutional right there is every reason for his
following state procedure in making known his objection.”90 There is no evidence
for the Court to review Appellant’s claim that the two statutes are unconstitutional
as applied to him.
The writ of habeas corpus is an extraordinary writ. The Texas Constitution
establishes an appellate system and the highest courts in Texas have developed
rules of appellate procedure where criminal matters can be reviewed and remedied.
Because of our modern appellate system, writ applications should be restricted to
only the issues which the ordinary appellate process is not capable of reviewing.
“Neither a trial court nor an appellate court should entertain an application for writ
of habeas corpus when there is an adequate remedy by appeal.”91 Moreover,
89 Lykos, 330 S.W.3d at 919 (citing Wainwright v. Sykes, 433 U.S. 72, 97 (1977). 90 Id. 91 Ex parte Hopkins, 610 S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d 480, 481 (Tex. Crim. App. 1977); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte Delbert, 582 S.W.2d 145, 145 (Tex. Crim. App. 1979). 36 “pretrial habeas is unavailable when the resolution of a claim may be aided by the
development of a record at trial.”92
C. All of Appellant’s Remaining Claims Are “As Applied” Challenges.
Knowing that the Court of Criminal Appeals has repeatedly refused to
consider the merits of an “as applied” challenge in pretrial habeas review, litigants
have sought to stretch “as applied” challenges under the label of a “facial”
challenge. Writing for a unanimous Court in Ex parte Ellis, Presiding Judge Keller
explained that “appellants did not really advance a facial challenge, but advanced
an ‘as applied’ claim that was disguised as a facial challenge. Addressing the ‘as
applied’ substance of the claim resulted in a circumvention of the pretrial habeas
cognizability limitations.”93 Appellant’s writ application does not advance the
“functional equivalent of a facial challenge.” Judge Richardson properly treated
them as “as-applied” challenges because they are “as-applied” challenges.
Lacking the facts at trial, Appellant refers to the “facts alleged in the
indictment” and seeks to resolve an as-applied challenge on the face of the
indictment alone. As beneficial as this perspective would be for the State, an
indictment is not evidence:
92 Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); see also Ex parte Smith, 185 S.W.3d at 893. 93 Ellis, 309 S.W.3d at 81; see also Karenev v. State, 281 S.W.3d 429, 441 (Tex. Crim. App. 2009) (Cochran, J. concurring) (“I think the court of appeals was mistaken in transforming appellant’s subterranean sufficiency of evidence argument into a full-fledged First Amendment attack upon the facial constitutionality of the harassment statute.”). 37 If the introduction of the indictment constituted a prima facie case of guilt, then it would seem that the State would be justified before the jury in making out a prima facie case of murder in the first degree by simply introducing the indictment and resting its case, requiring thereby that the accused party should introduce evidence to disprove the finding of the grand jury. This under no authority would be correct.94
Under our rules, the fact that Appellant was indicted is not evidence. Neither are
interpretations of the indictment by counsel, assumptions made in motions, or
recitation of assumed “facts” in briefs. Lawyers cannot create facts through
pleadings.
As a corollary, Petitioner cannot argue that allegations in an indictment
provide facts for pretrial habeas relief. This tact was recently tried and rejected in
Ex parte Ragston. Ragston involved an attempt to raise an “as-applied” challenge
in a pretrial writ based on the holdings in Roper v. Simmons and Miller v.
Alabama, two United States Supreme Court decisions restricting the types of
punishments available for those under the age of 18.95 The State conceded that
Texas’ sentencing statute would be unconstitutional in light of Roper and Miller.96
However, the State argued and the court upheld that the complaint was not
cognizable in an application for a pretrial writ of habeas corpus.97 The only fact
that needed to be addressed was Ragston’s age, and the constitutional principle had 94 Ex parte Firmin, 60 Tex.Crim. 368, 375 (Tex. Crim. App. 1910). 95 Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.—Houston [14th Dist.] 2013), citing Roper v. Simmons, 543 U.S. 551, 574–75 (2005); Miller v. Alabama, 132 S.Ct. 2455 (2012). 96 Ragston, 402 S.W.3d at 475. 97 Id. at 476. 38 already been settled by the Supreme Court. Yet, both the trial court and court of
appeals properly denied the application for pretrial writ as the issue could be
properly addressed on appeal if he was convicted. Any challenge in the writ that
relies upon language in the indictment or media is inappropriate..
Because a statute may be valid as applied to one set of facts and invalid as
applied to a different set of facts, a litigant must show that, in its operation, the
challenged statute was unconstitutionally applied to him; that it may be
unconstitutional as to others is not sufficient, or relevant. 98
Appellant heavily relies upon his role as Governor of the State of Texas—
and the assumptions about why he is being prosecuted—to advance each of his
claims:
1) Separation of powers -“By requiring the judiciary to scrutinize a gubernatorial veto, this prosecution unduly interferes. . .”99
-“Allowing a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption. . .”100
2) Speech or Debate clause -“Count I is predicated upon a legislative act of Governor Perry—the veto— and Count II involves the Governor’s alleged discussions with his staff regarding the anticipated legislative act and its announcement.”101
98 See Santikos, 836 S.W.2d at 633; Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. 1981). 99 Application for Writ, [C.R. 21]. 100 C.R. 23. 101 C.R. 28. 39 -“Should the face of the indictment not be sufficient to sustain this assertion, the Court should review the transcripts of the grand jury in camera.”102
3) Facial challenge to the constitutionality of Texas Penal Code § 36.03(a)(1) (Coercion of Public Servant or Voter) -“Core political speech, such as the veto and the alleged veto threat in this case, lies at the very heart of First Amendment protection.”103
-“Even assuming (for purposes of argument only) that [Appellant] did in fact “threaten” a veto in this case, and even assuming that Lehmberg had resigned under such a threat, Texas courts have repeatedly held that resignation under such circumstances does not constitute ‘duress.’” 104
All of these claims are substantively “as-applied” challenges, carrying
factual assumptions that Appellant is making to support his challenge. “If a claim
designated as a facial challenge is in fact an as-applied challenge, courts should
refuse to consider the merits of the claim.”105
Thirty years ago, lawyers for Jim Mattox advanced the same arguments as
Appellant now urges. Mattox was accused of threatening to delay and deny
approval of municipal bonds that were within his power to approve as acting
Attorney General.106 In summarily dismissing his pretrial habeas corpus
proceeding, which sought to sidestep a trial, the court of appeals treated the
Attorney General the same as every other citizen: “Mattox does not assert any
102 Id. 103 C.R. 30. 104 C.R. 35. 105 Ellis, 309 S.W.3d at 80 (reversing Third Court of Appeals for improperly resolving “as applied” challenge on pretrial habeas review under auspices of facial challenge). 106 Jim Mattox’s case proceeded to jury trial, and a Travis County jury acquitted him of commercial bribery. 40 extraordinary interest that would justify the delay and judicial wheelspinning that
would result were defendants authorized to institute pretrial collateral proceedings,
complete with interlocutory appeals, to test the sufficiency of the allegations in a
charging instrument.”107 The court explained that Mattox was legally entitled to
challenge the sufficiency of the indictment in a motion to quash, and like every
other defendant accused of a crime, should the motion be overruled and he be
convicted, he could take the issue up on appeal.108
Moreover, “[h]abeas corpus is an extraordinary remedy and is available only
when there is no other adequate remedy at law.”109 Neither a trial court nor an
appellate court should entertain a petition for writ of habeas corpus when there is
an adequate remedy by appeal.110 The fact that the defendant has filed a Motion to
Quash raising grounds identical to those in the writ of habeas corpus—the trial
court granted relief on one of the grounds—is the best illustration why the
remaining claims were properly denied at this point in the process. Because the
issues raised by the writ are better addressed on direct appeal, Appellant has an
adequate remedy at law. The trial court properly denied relief.
Appellant sought a declaratory judgment from the trial court that the Abuse
of Office statute (Section 39.02) should not apply to his conduct. Judge Richardson 107 Ex parte Mattox, 683 S.W.2d 93, 96 (Tex. App.—Austin 1984, pet. ref’d). 108 Id. 109 Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007) (citing Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004)). 110 Weise, 55 S.W.3d at 619. 41 properly refused to make this determination as the statute is constitutional.111
Although construing a former version of Section 39.02, the court in Margraves v.
State determined the statute was not unconstitutionally vague: “The statute requires
that a public servant use government property only in ways that are authorized.”112
However, under Appellant’s interpretation of the Rule of Lenity, it would be unfair
to prosecute him for an illegal use of his veto because it has never been done
before.
The Rule of Lenity is a rule of statutory interpretation—not one of
interpreting a defendant’s conduct. “When [the] choice has to be made between
two readings of what conduct Congress has made a crime, it is appropriate, before
we choose the harsher alternative, to require that Congress should have spoken in
language that is clear and definite.”113 Section 39.02 is clear and definite. As the
Court of Criminal Appeals noted in Cuellar v. State, “Fortunately, Texas courts
rarely need resort to the Rule of Lenity to construe its penal provisions. By and
large, the Texas Legislature drafted the Texas Penal Code with clarity, precision,
and straightforward, well-defined language.”114 There are limitless ways in which a
public servant may use government property in unauthorized way. In this case, the
State will prove that a coercive threat followed by a retaliatory action constitutes 111 Order Denying Defendant’s Writ, p. 2 [C.R. 464]. 112 Margraves v. State, 34 S.W.3d 912, 921 (Tex. Crim. App. 2000) (overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)). 113 United States v. Bass, 404 U.S. 336, 347 (1971). 114 Cuellar v. State, 70 S.W.3d 815, 822 (Tex. Crim. App. 2002). 42 both Coercion of a Public Servant and Abuse of Office. The grand jury indicted
Appellant, and Appellant has the absolute right to dispute whether or not his
actions constitute a crime at trial. But this necessarily requires witnesses and
evidence and, most importantly, context that can only happen at trial.
IV. Separation of Powers Doctrine Allows Judicial Branch to Check Coercive Use of Executive Power.
Appellant seeks two extensions of law.
First, he asks that this court grant him more power. While arguing one side
of the separation of powers doctrine, he seeks dismissal of the indictment because
this branch may not scrutinize gubernatorial action. But Appellant further argues
that he is entitled to legislative powers such as Speech or Debate privilege and
legislative immunity—precisely the type of assumption of power the separation of
powers doctrine protects against. Although Texas is a weak governor state,
Appellant argues that it is the most powerful branch.
Second, Appellant argues that he has a right “not to be tried” akin to double
jeopardy. The only possible source for this right would be the political question
doctrine, and this is not a case involving political question. Appellant advocates
that the separation of powers doctrine be both a shield and a sword.
The State posits that the judicial branch is the only proper division of
government to resolve a criminal allegation that Appellant illegally abused his
43 power against a specific individual for an unlawful purpose. Applicant argues that
allowing a criminal prosecution where there is no allegation of bribery undermines
the basic structure of state government. Applicant’s claim is that the indictment –
not the Coercion of a Public Official statute – is unconstitutional. This is either an
“as applied” challenge or, interpreted in the strongest light, a challenge to the trial
court’s jurisdiction. If either of these arguments were correct, the Legislature or the
Texas Constitution would exempt a governor from prosecution.
The Texas separation of powers 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.”115 The authority cited in Appellant’s brief discusses the importance
of the separation of powers doctrine as it pertains to legislative encroachment on
the judicial branch. Appellant fails to cite any authority, however, of how a
criminal investigation and an indictment against a public official is a violation of
the separation of powers. In Appellant’s view, he could never be prosecuted for a
threat or promise made in connection with his power to veto. Surely, this cannot be
true. Otherwise, every bribery or extortion prosecution would be barred by the
separation of powers doctrine. If, for example, evidence is presented at trial 115 Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990); see also Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1035 (Tex. 1934) (“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.”). 44 demonstrating that Appellant exchanged his power to veto for money, or Appellant
vetoed funding of a special prosecution unit because the unit was investigating
allegations of his own misdeeds, the judicial branch would unquestionably have
the power to prosecute. Similarly, the Texas Constitution also allows the Governor
to fill “all vacancies in State or district offices.”116 Like the veto power, this is a
power exclusive to the Governor. If evidence was brought to light that the
Governor was soliciting bribes to fill these positions would Appellant’s separation
of powers argument prohibit judicial intervention?
Here, the Legislature defined the crime and specifically delegated to the
judicial branch the discretion to prosecute the crime. This is a proper delegation of
constitutional authority. “[The] Legislative Branch is not so well suited as
politically independent judges and juries to the task of ruling upon the
blameworthiness of, and levying appropriate punishment upon, specific
persons.”117
In the same vein, Appellant also argues that this issue is a nonjusticiable
political question. The argument is misplaced. The political question doctrine
commonly arises when the judiciary is asked to intervene in the legislature’s
impeachment process.118 The political question doctrine also arises when one
116 TEX. CONST. art. IV, § 12. 117 United States v. Brown, 381 U.S. 437, 445 (1965). 118 See Nixon v. United States, 506 U.S. 224, 228 (1993) (Supreme Court declined to intervene and interpret whether full evidentiary impeachment hearing constituted a “trial” in the Senate). 45 branch of government seeks the judiciary to resolve a dispute within its own
branch or with another branch.119 In addition to being nonjusticiable political
questions, these matters are often not ripe for review.
Appellant asserts the same separation of powers argument that Governor
Mandel asserted when he was prosecuted for his official acts as governor of
Maryland.120 This argument was rejected. The United States Supreme Court
rejected the same type of argument posed by a judge prosecuted for committing a
crime in connection with his official duties:121 “Whether the act done by him was
judicial or not is to be determined by its character, and not by the character of the
agent. Whether he was a county judge or not is of no importance.” As noted by the
Court, even if the complained-of act is an otherwise “lawful” act by a public
official, can the act charged be considered lawful when he acted in direct violation
of the spirit of the statute?
Again, the same argument made by Governor Blagojevich of Illinois was
rejected:122
Distilled to its essence, the Governor's position is that the constitutionality of his official actions is simply not subject to judicial
119 See Coleman v. Miller, 307 U.S. 433, 436 (1939) (dispute within the state senate of Kansas about whether the lieutenant governor could cast the deciding vote in the senate); Goldwater v. Carter, 444 U.S. 996, 997 (1979) (political disagreement about whether the President could unilaterally terminate a treaty with Taiwan). 120 See United States v. Mandel, 415 F.Supp. 997, 1003 (D.Md. 1976) (overruled on other grounds) (separation of powers argument rejected). 121 See Ex parte Virginia, 100 U.S. 339 (1879). 122 See Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004). 46 oversight. No Illinois court has ever so held. Such a claim is, in fact, incompatible with the principles of separation of powers and checks and balances that are the foundation for our tripartite system of government. The executive branch, no less than the legislative branch, is bound by the commands of our constitution. The judicial power of the State of Illinois is vested in the courts (Ill. Const.1970, art. VI, § 1), and it is the duty of the judiciary to construe the constitution and determine whether its provisions have been disregarded by either of the other branches of government. If officials of the executive branch have exceeded their lawful authority, the courts have not hesitated and must not hesitate to say so.
The separation of powers doctrine does not cloak a public official with
immunity from prosecution for abusing his authority.
The instant case is not a political question, nor a matter of whether a veto is
proper. It is a matter of whether Appellant committed criminal acts in abusing the
power that had been bestowed upon him as governor. The grand jury applied the
facts to the law and returned an indictment. Appellant argues he did not break the
law. The State alleges he did. This is precisely why the justice system exists: to
resolve these types of disputes.
Appellant’s final argument that relief must be granted to avoid a “deleterious
impact on the efficient operation of state government” should also be rejected. This
same argument was raised – and rejected – by the United States Supreme Court in
Clinton v. Jones.123 In rejecting President Bill Clinton’s request to temporarily stay
123 Clinton v. Jones, 520 U.S. 681, 697–98 (1997) (“[P]etitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest 47 civil proceedings until he completed his term of office, the Supreme Court
concluded “if Congress deems it appropriate to afford the President stronger
protection, it may respond with appropriate legislation.”124 “The Federal District
Court has jurisdiction to decide this case. Like every other citizen who properly
invokes that jurisdiction, respondent has a right to an orderly disposition of her
claims.”125
The Texas Constitution could have provided an express provision that a
governor is immune from prosecution during his term of office. The Texas
Legislature could specifically exempt a governor from prosecution for Abuse of
Office or Coercion of a Public Official. It has not done so. . Barring a specific
prohibition, the separation of powers doctrine requires the judiciary branch to
fulfill its constitutional duty under Article 5 of the Texas Constitution.
V. A Governor is Not Immune from Criminal Prosecution.
Appellant claims he is immune from prosecution because everything he
and/or his staff said is privileged from prosecution under the Speech or Debate
Clause of the Constitution and/or through the related doctrine of legislative
immunity. The United States Supreme Court made it clear in stating “the
demands that he devote his undivided time and attention to his public duties. He submits that— given the nature of the office—the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed.”). 124 Id. at 709. 125 Id. at 710. 48 immunities of the Speech or Debate Clause were not written into the Constitution
simply for the personal or private benefit of Members of Congress, but to protect
the integrity of the legislative process by insuring the independence of individual
legislators.”126 And it was particularly not intended to make legislators “super-
citizens, immune from criminal responsibility.”127 Moreover, the text of the clause
makes it evident that it was intended for legislative discourse, not executive vetoes.
The Speech or Debate Clause was intended to apply to legislators
communicating with each other and their staffs about the legislative acts they were
involved in considering. The instant case, conversely, focuses on a criminal threat
made by a member of the executive branch to a public official of a different
jurisdiction in an attempt to force that public official to resign. The criminal threat
was not a part of a debate among legislators, and the State is not attempting to look
behind any piece of legislation. Additionally, the facts at issue may prove to be
statements made for political reasons, rather than in consideration of a legislative
act, which would place it outside the purview of protection that the Speech or
Debate Clause was designed to protect.128
126 United States v. Brewster, 408 U.S. 501, 507 (1972). 127 Brewster, 408 U.S. at 516 & 521 (“It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e. all criminal acts.”). 128 Brewster, 408 U.S. at 512. 49 A. Texas state Speech or Debate Privilege Narrower than federal Speech or Debate Privilege.
The Texas Court of Criminal Appeals has analyzed the scope of the Texas
Speech or Debate Clause only once. In Mutscher v. State,129 two Members of the
House of Representatives and a state employee were convicted of conspiracy to
accept a bribe. The testimony at trial included evidence about bills presented at
committee meetings, how bills were approved by the committee, and how bills
were passed by the House.130 The theory of the prosecution was that the two
Members used their vote, influence and powers of their office to procure and assist
in the passage of certain legislation.131
Prior to trial, the Members moved to quash the indictment on Speech or
Debate privilege grounds.132 The trial court overruled the motion prior to any
evidence being produced.133 On appeal, the Members of the Texas Legislature
argued that the Speech or Debate provisions of the State and Federal Constitutions
barred any inquiry into the vote of a legislator or the motivations behind that
vote.134 Unlike the federal constitution, the Texas Constitution has a specific
provision directed against abuse of office by public officials. In denying Speech or
Debate privilege for the Texas legislators accused of bribery, the Court cited 129 Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974). 130 Mutscher, 514 S.W.2d at 911. 131 Id. at 909. 132 Id. at 913. 133 Id. at 914. 134 Id. 50 Article XVI, Section 41 of the Texas Constitution. The court reasoned that this
specific constitutional provision provides the mandate for prosecution of members
of the Legislature, executive officials and judicial officers.135 The court rejected the
defendants’ proposition that the general provisions of the Speech or Debate clause
would bar prosecution.136 Most significantly, the Court of Criminal Appeals
decided Mutscher in 1974. The court had the benefit of two of the most important
United States Supreme Court cases on this issue: United States v. Johnson137 and
United States v. Brewster.138 The more prudent perspective is to acknowledge the
Court of Criminal Appeals’ interpretation of the Clause in 1974 after the seminal
United States Supreme Court cases were decided in 1966 and 1972. Our Texas
court explicitly rejected the broad application of the Speech or Debate Clause as
advanced by the U.S. Supreme Court. Appellant’s broad and dated application
should equally be rejected.
In Texas, our constitutional Speech or Debate privilege cannot be viewed as
a protective bar to criminal prosecution given our state’s specific constitutional
provision requiring prosecution of public officials. This interpretation is consistent
with the Speech or Debate Clause protecting Members from civil liability, but is
not the type of absolute protection posited by the Appellant.
135 Id. at 915. 136 Id. 137 United States v. Johnson, 383 U.S. 169 (1966). 138 Brewster, 408 U.S. at 501. 51 Appellant may respond that the crime of bribery is different than Abuse of
Official Capacity or Coercion of a Public Servant, and that Mutscher should be
read to restrict the Speech or Debate privilege only to bribery offenses. But the
principle relied upon by the court was that a criminal act of bribery could not
conceivably be interpreted as a legislative act.139 The same principle is applicable
to criminal threats and coercion. Additionally, such an argument would still not
explain how a governor would be entitled to assert the Speech or Debate privilege
when the court read the provision so narrowly for two members of the Legislature.
Further, Article XVI, Section 41 is incredibly broad. It reaches conduct far beyond
the vagueness complained about in Appellant’s writ, such as “indirect
testimonials,” “privileges,” and “personal advantages.”140 It even criminalizes
“implied” conduct.141 Moreover, the bribery statute cited in Mutscher was
recodified from Article 159 of Vernon’s Annotated Penal Code to Section 36.02 of
the Texas Penal Code. The Governor is indicted for violating Section 36.03 of the
Texas Penal Code. The court’s analysis in Mutscher would apply to the offenses
charged.
After analyzing Brewster, the court held that illegal conduct is not part of the
legislative process and is not deserving of privilege.142 The trial court allowed
139 Mutscher, 514 S.W.2d at 915. 140 TEX. CONST. art. XVI, § 41. 141 Id. 142 Mutscher, 514 S.W.2d at 905. 52 legislative acts of the defendant to come into evidence.143
B. The Speech or Debate Privilege applies to Members of the Legislature, not a Governor.
1. No governor ever has been afforded Speech or Debate privilege or legislative immunity from criminal prosecution.
In 1976, Governor Marvin Mandel of Maryland filed a motion to dismiss his
indictment arguing that he was entitled to invoke the doctrine of legislative
immunity as a bar to prosecution.144 Governor Mandel argued that “the Maryland
Constitution allocates to him as Governor certain legislative functions, among
them the discretionary power to recommend legislative matters for the
consideration of the General Assembly and the power to approve and veto bills
passed by the legislature.”145 Because he participates in the legislative process,
Governor Mandel argued that he was entitled to invoke legislative privilege to
forbid inquiry into his legislative acts or the motivation behind them. 146 He further
argued that the doctrine of legislative immunity should bar the prosecution of his
case.147
The trial court denied Governor Mandel’s motion to dismiss and rejected his
143 Id. 144 The trial court addressed this argument in two separate opinions: United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976) (March 31, 1976 opinion) and United States v. Mandel, 415 F.Supp. 1025, 1026–27 (D.Md. 1976) (May 4, 1976 supplemented opinion). 145 Mandel, 415 F.Supp. at 1030. 146 Mandel, 415 F.Supp. at 1030–1031. 147 Mandel, 415 F.Supp. at 997. 53 claim for legislative immunity:148
[A] criminal prosecution of a chief executive officer based on that officer's legislative acts does not threaten the independence of the legislature. No legislator is here being called upon to explain his acts before a ‘hostile judiciary’ as a consequence of a prosecution brought by an ‘unfriendly executive’; no acts of any legislator or of the legislature itself are being called into question. The only alleged legislative acts before the Court are those of the Governor.
That is not to say, of course, that exposing the executive to criminal liability for his legislative acts does not indirectly affect the legislative process; it is merely to say that it does not interfere with the due functioning of the legislative process, and that it does not threaten the independence of the legislature.
Similarly, when Governor Rod Blagojevich tried this same argument in defense of
a civil suit that arose in conjunction with his federal criminal prosecution, the
Seventh Circuit Court of Appeals flatly rejected his argument:149
The state constitution’s speech-and-debate provision is limited by its terms to members of the Illinois General Assembly and is plainly inapplicable to Blagojevich. The same would be true of the U.S. Constitution’s Speech or Debate Clause, which applies only to legislators and their aides.150
In the history of Speech or Debate clause jurisprudence, the privilege has not
148 Mandel, 415 F.Supp. at 1031 (citation omitted) (emphasis added). 149 Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 531 (7th Cir. 2011). 150 In this case, the court found that Blagojevich was entitled to legislative immunity based upon federal common law. Judge Posner wrote a lengthy dissent. Citing U.S. v. Gillock, Judge Posner observed that under federal common law of legislative immunity for state officials, criminal prosecution is not barred. Empress Casino, 638 F.3d at 543. Thus, he suggested certifying the question of whether the common law of official immunity in Illinois should permits a suit to go forward against a governor when the suit is based on his performing a legislative act for a criminal purpose to the Supreme Court of Illinois. Id. at 544. 54 been afforded to every legislator who raised it. But in nearly every single federal
case cited by Appellant it is a member of the legislature who claims the Speech or
Debate privilege.151 The defendants and parties listed are exclusively members of
the legislative branch. This is why court opinions refer to the applicability of the
Clause to “members” and “legislators.”152 In the history of the Speech or Debate
clause jurisprudence, the privilege has never been extended to a governor.
2. The privilege does not extend to all legislative-related topics of conversation.
In United States v. Gravel, the Supreme Court held that a United States
Senator had no testimonial privilege from being questioned by a federal grand jury
about whether he distributed classified government documents because the
communications were outside the scope of legislative activity.153 The court also
focused on whether the communication was “essential to the deliberations of the
Senate” and whether the request by the grand jury would “threaten the integrity or
independence of the Senate by impermissibly exposing its deliberations to
executive influence.”154
Conversely, a governor may sign a bill into law, but a governor cannot
introduce a bill, hold a committee hearing on a bill, or amend a bill if he wants to 151 See Exhibit E. 152 U. S. v. Gillock, 445 U.S. 360, 366 n.5 (1980) (“ . . . benefits of the Federal Speech or Debate Clause, which by its terms applies only to ‘Senators and Representatives’”). 153 Gravel v. United States, 408 U.S. 606, 624–625 (1972). 154 Id. at 625. 55 alter it before signing it into law. He simply may sign the bill or veto it. Any
communication with the governor is not as “essential part” of the process of a bill
becoming a law. It is more similar to the administration of the law. Moreover, even
where a member can assert the Speech or Debate privilege, it is limited to past
legislative acts. “[I]t is clear from the language of the Clause that protection
extends only to an act that has already been performed. A promise to deliver a
speech, to vote, or to solicit other votes at some future date is not ‘speech or
debate.’ Likewise, a promise to introduce a bill is not a legislative act.”155 For
example, in the trial of Governor Mandel, the trial court rejected the governor’s
argument that the privilege applied to any and all discussion relative to his
actions.156
C. The common law doctrine of legislative immunity does not make a Texas governor above the law.
The Speech or Debate privilege is an evidentiary privilege that may be
asserted in both civil and criminal complaints. Legislative immunity, however,
prevents public officials from being held civilly liable for their official acts.
Appellant infers that legislative immunity and the Speech or Debate
privilege are substantially the same, and that legislative immunity may apply to the
instant case. The structure of his argument appears to have several steps:
155 United States v. Helstoski, 442 U.S. 477, 490 (1979). 156 Mandel, 415 F.Supp. at 1024. 56 1. Members of the legislature enjoy legislative immunity from civil suits;
2. One of the sources of legislative immunity is the Speech or Debate Clause Privilege;
3. A line-item veto is a legislative activity;
4. Governor enjoys legislative immunity for civil suits because his veto is a legislative activity;
5. Therefore, the Governor should also enjoy Speech or Debate Clause privilege because his veto is a legislative activity.
Appellant’s flow is flawed.
Several factors have created confusion about the applicability of each. First,
the two doctrines are similar in that both protect public officials from being
compelled to testify about their past legislative acts. Second, the concepts are
intertwined, and the terms are used interchangeably when invoked by a member of
the legislature. “Despite the frequent invocation of the federal Speech or Debate
Clause in Tenney, the Court has made clear that the holding was grounded on its
interpretation of federal common law, not on the Speech or Debate Clause.”157
State courts in Illinois, Maryland and New York have also recognized a
distinction.158 Things are further complicated by the interpretation of federal vs.
state common law. State courts may look to the federal interpretation of the Speech
157 Gillock, 445 U.S. at 372 n.10. 158 Pulliam v. Allen, 466 U.S. 522, 536–38 (1984); Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719, 736–37 (1980). 57 or Debate Clause, but the process quickly becomes muddled when you combine
the state common law on legislative immunity.
Characterizing a veto as a legislative act may be sufficient to prevent a
governor from being deposed in a civil suit. But no court has ever held the civil
immunity provides a privilege against criminal prosecution. Every United States
Supreme Court that addresses legislative immunity in the context of the Speech or
Debate privilege confirms: immunity is not a bar to criminal prosecution. Instead,
the fact that the public official enjoys legislative immunity is precisely why
criminal prosecution is the only avenue for justice.
In United States v. Gravel, the Supreme Court directly addressed this issue:
Article I, s 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.159
In Gillock, the Supreme Court held that “[t]he cases in this Court which have
recognized an immunity from civil suit for state officials have presumed the
existence of federal criminal liability as a restraining factor on the conduct of state
159 Gravel, 408 U.S. at 627. 58 officials.”160 In O’Shea v. Littleton the Supreme Court explained:
Whatever may be the case with respect to civil liability generally, . . . or civil liability for willful corruption, . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. . . . On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress . . . .’161
The Supreme Court repeated this principle again in Imbler v. Pachtman.162
Appellant provides no legal basis for departing from that long-established rule.163
The executive power of veto is powerful, but it cannot be the basis for
immunity from prosecution for criminal acts committed in connection with his
exercise of such veto. Because it is a specifically enumerated privilege for the
legislative department, an expressly enumerated provision of the Texas
Constitution is the only grounds for his right to assert that privilege. To hold
160 Gillock, 445 U.S. at 372. 161 O’Shea v. Littleton, 414 U.S. 488 (1974) (emphasis added) (citations omitted). 162 Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights…”). 163 Hutchinson v. Proxmire, 443 U.S. 111, 127–128 (1979) (speech or debate clause did not protect transmittal of defamatory material about wasteful government spending in press release issued by senator). 59 otherwise would be a violation of Texas’ separation of powers clause.164 The text
of the Constitution underlies the practical reality: the Speech or Debate privilege is
simply not applicable to the work performed by a governor. The Texas
Constitution provides this privilege to “members.” While the Lt. Governor is an
active member of the Senate and would be afforded the Speech or Debate
privilege, the governor is not and should not be afforded the privilege.
164 See TEX. CONST. art. II, § 1 (“[N]o 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.”). 60 PRAYER
Appellee respectfully prays that this Court uphold the constitutionality of the
statutes at issue and the trial court’s decision.
Respectfully submitted,
/s/ Michael McCrum MICHAEL MCCRUM State Bar No. 13493200 District Attorney Pro Tem Travis County, Texas 700 N. St. Mary’s St., Suite 1900 San Antonio, TX 78205 Telephone: (210) 225-2285 Facsimile: (210) 225-7045 michael@mccrumlegal.com
/s/ David M. Gonzalez DAVID M. GONZALEZ Assistant District Attorney Pro Tem Travis County, Texas 206 East 9th Street, Suite 1511 Austin, Texas 78701 Telephone: (512) 381-9955 Facsimile: (512) 485-3121 david@sg-llp.com
ATTORNEYS FOR THE STATE OF TEXAS
61 CERTIFICATE OF COMPLIANCE
I hereby certify that this document was generated by a computer using
Microsoft Word which indicates that the word count of this document except the
following: caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix is
14,899 per Tex.R.App. P. 9.4(i).
/s/ Michael McCrum Michael McCrum
62 CERTIFICATE OF SERVICE
I hereby certify that on March 27, 2015, a true and correct copy of
Appellee’s Brief was served on the following parties in accordance with the
requirement of the Texas Rules of Appellate Procedure via electronic filing:
David L. Botsford Botsford & Roark 1307 West Ave. Austin, TX 78701 (512) 479-8040 Facsimile dbotsford@aol.com
Thomas R. Phillips Baker Botts, L.L.P. 98 San Jacinto Blvd., Ste. 1500 Austin, TX 78701 (512) 322-8363 Facsimile Tom.phillips@bakerbotts.com
Anthony G. Buzbee The Buzbee Law Firm 600 Travis St., Ste. 7300 Houston, TX 77002 (713) 223-5909 Facsimile tbuzbee@txattorneys.com
63 EXHIBIT A TEX. PENAL CODE § 36.01 TEX. PENAL CODE § 36.03
1973 Version
A-1 A-2 A-3 A-4 EXHIBIT B TEX. PENAL CODE § 36.01 TEX. PENAL CODE § 36.03
1989 Revisions
A-5 A-6 A-7 A-8 A-9 A-10 A-11 A-12 A-13 A-14 A-15 A-16 A-17 A-18 A-19 A-20 A-21 A-22 A-23 A-24 A-25 A-26 A-27 A-28 A-29 A-30 A-31 A-32 A-33 A-34 A-35 A-36 EXHIBIT C TEX. PENAL CODE § 36.03
1993 Revisions Rep. Naishtat Amendment
A-37 A-38 EXHIBIT D TEX. PENAL CODE § 36.01 TEX. PENAL CODE § 36.03
1993 Revisions
A-39 1993 REVISIONS TO CHAPTER 36 BY THE HOUSE OF REPRESENTATIVES
C.S.S.B. NO. 1067 Pages 191 – 194
A-40 "Unlawfully" correctly cited in current law. All definitions are slated for removal from this section
A-41 A-42 A-43 A-44 1993 REVISIONS TO SECTION 1.07 BY THE HOUSE OF REPRESENTATIVES
C.S.S.B. NO. 1067 Pages 5 – 6
A-45 A-46 Definitions from Section 36 are relocated to Section 1.07. However, "unlawfully" is removed from the definition.
A-47 EXHIBIT E SPEECH OR DEBATE PRIVILEGE CHART
A-48 SPEECH OR DEBATE PRIVILEGE: MEMBERSHIP OF POLITICAL BRANCH AFFORDED THE PRIVILEGE
CASE JURISDICTION POLITICAL BRANCH OF DEFENDANT Mutscher v. State, COURT OF CRIMINAL Gus F. Mutscher, Jr.: Speaker of the Texas House of 514 S.W.2d 905 APPEALS OF TEXAS Representatives (Tex.Crim.App.1974) S. Rush McGinty: Executive Assistant to Speaker Mutscher Thomas C. Shannon: Member of the Texas House of Representatives
United States v. Gillock, UNITED STATES Tennessee state senator 445 U.S. 360 (1980) SUPREME COURT
Hutchinson v. Proxmire, UNITED STATES United States Senator from Wisconsin 443 U.S. 111 (1979) SUPREME COURT
United States v. UNITED STATES Member of United States House of Representatives from New Helstoski, SUPREME COURT Jersey 442 U.S. 477 (1979)
United States v. UNITED STATES United States Senator from Maryland Brewster, SUPREME COURT 408 U.S. 501 (1972)
Gravel v. United States, UNITED STATES United States Senator of Alaska 408 U.S. 606 (1972) SUPREME COURT
United States v. Johnson, UNITED STATES United States Congressman from Maryland 383 U.S. 169 (1966) SUPREME COURT
Tenney v. Brandhove, UNITED STATES Member of the California Legislature and other members of a 341 U.S. 367 (1951) SUPREME COURT committee of the California Legislature. (Mayor of San Francisco included in lawsuit, but Supreme Court severed his claim and limited “legislative immunity” discussion only to members of the legislature.)
Kilbourn v. Thompson, UNITED STATES John G. Thompson: Sergeant-at-arms of the House of 103 U.S. 168 (1880) SUPREME COURT Representative
Michael C. Kerr: Member of United States House of Representatives
John M. Glover: Member of United States House of Representatives
Burwell P. Lewis: Member of United States House of Representatives
A-49 Jeptha D. New: Member of United States House of Representatives
A. Herr Smith: Member of United States House of Representatives
United States v. Renzi, NINTH CIRCUIT Member of United States House of Representatives from __F.3d __, 2014 WL Arizona 5032356 (9th Cir. 2014)
United States v. Swindall, ELEVENTH CIRCUIT Member of United States House of Representatives from 971 F.2d 1531 (11th Cir. Georgia 1992)
United States v. Biaggi, SECOND CIRCUIT Member of United States House of Representatives from New 853 F.2d 89 (2nd Cir. York 1988)
In re Grand Jury THIRD CIRCUIT Nicholas Colafella: Chairman of investigative committee of (Colafella), Pennsylvania House of Representatives 821 F.2d 946 (3rd Cir. 1987) (rehearing in banc) Reizdan Moore: Committee counsel and records custodian of the Committee
Speaker of the Pennsylvania House of Representatives (unnamed)
Majority leader of the Pennsylvania House of Representatives (unnamed)
Minority leader of the Pennsylvania House of Representatives (unnamed)
Bipartisan Committee of the Administration of the Pennsylvania House
In re Grand Jury THIRD CIRCUIT Edmund L. Hensaw: Clerk of the Pennsylvania House of (Eilberg), Representatives 587 F.2d 589 (3rd Cir. 1978) Joshua Eilberg: Member of the Pennsylvania House of Representatives
United States v. DiCarlo, FIRST CIRCUIT Francis J. DiMento: Member of the Massachusetts State Senate 565F.2d 802 (1st Cir. 1977) Earle C. Cooley: Member of the Massachusetts State Senate
A-50 United States v. Craig, SEVENTH CIRCUIT Robert Craig: Member of the Illinois House of 573 F.2d 455 (7th Cir. Representatives; Minority Whip 1977) (rehearing in banc denied) Frank P. North: Member of the Illinois House of Representatives
Jack Walker: Member of the Illinois Senate Peter V. Pappas: Attorney and lobbyist for Secretaries of State Paul Powell, John Lewis and Michael Hewlett
In re Grand Jury THIRD CIRCUIT Henry Cianfrani: Pennsylvania state senator (Cianfrani), 563 F.2d 577 (3rd Cir. 1977) Thomas Kalman: Chief Clerk of the Pennsylvania Senate Ford v. Tennessee DISTRICT COURT – Every member of the Tennessee Senate Senate, 2007 WL WESTERN DIVISION OF TENNESSEE 5659414 (W.D. Tenn. 2007) (not reported) John S. Wilder: Lt. Governor (in his official capacity)
Cano v. Davis, DISTRICT COURT – Antonio Gonzalez – third party non-legislator 193 F.Supp.2d 1177 CENTRAL DIVISION CALIFORNIA (C.D. Calif. 2002) Juan Vargas – Member of the California General Assembly
United States v. Eilberg, DISTRICT COURT – Member of United States House of Representatives from 507 F.Supp. 267 (E.D. EASTERN DIVISION Pennsylvania PENNSYLVANIA Penn. 1980)
United States Football DISTRICT COURT – United States Senator Alfonse D’Amato League v. National SOUTH DISTRICT OF NEW YORK Football League, 1986 WL 6341 (S.D.N.Y. 1986) (not reported)
United States v. Nelson, DISTRICT COURT – Earl E. Nelson: State senator from Michigan 486 F.Supp. 464 (W.D. WESTERN DIVISION OF MICHIGAN Mich. 1980)
A-51
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