Ex Parte James Richard "Rick" Perry

Opinion

ACCEPTED 03-15-00063-CR 4835037 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/9/2015 5:27:50 PM JEFFREY D. KYLE CLERK NO. 03-15-00063-CR IN THE COURT OF APPEALS FILED IN FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 4/9/2015 5:27:50 PM JEFFREY D. KYLE Clerk EX PARTE JAMES RICHARD “RICK” PERRY

ON APPEAL FROM THE 390TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS, CAUSE NO. D-1-DC-14-100139

APPELLANT’S REPLY BRIEF

THE BUZBEE LAW FIRM BAKER BOTTS L.L.P. Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower San Jacinto Center 600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500 Houston, Texas 77002 Austin, Texas 78701-4078 Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com Telephone: 713.223.5393 Telephone: 512.322.2565 Facsimile: 713.223.5909 Facsimile: 512.322.8363

BOTSFORD & ROARK David L. Botsford State Bar No. 02687950 1307 West Avenue Austin, Texas 78701 dbotsford@aol.com Telephone: 512.479.8030 Facsimile: 512.479.8040 TABLE OF CONTENTS Page INDEX OF AUTHORITIES............................................................................................. iii ARGUMENT .................................................................................................................1

I. Reply to the State’s Arguments Regarding the Facial Unconstitutionality of the Coercion Statute. ........................................ 1

II. Reply to the State’s Arguments Regarding Governor Perry’s First Amendment Protections. ...................................................................... 5

III. Reply to the State’s Arguments that the Legislature Can Limit the Speech of Its Own Members. ............................................................... 8

IV. Reply to the State’s Arguments that the Face of the Statute Is Not Overbroad. .......................................................................................... 10

V. Reply to the State’s Arguments On Strict Scrutiny Review. ............. 12 VI. Reply to the State’s Arguments Regarding “Least Restrictive Means” of Serving a Compelling State Interest. ................................ 13

VII. Reply to the State’s Arguments on Facial Vagueness. ...................... 15

VIII. Reply to the State’s Arguments on the Cognizability of Governor Perry’s Constitutional Arguments. ..................................................... 18 IX. Reply to the State’s Arguments Regarding Separation of Powers .... 22

X. Reply to the State’s Arguments on Speech or Debate and Absolute Legislative Immunity. ......................................................... 24

A. The State Mischaracterizes Mutscher v. State ..........................24

B. Texas’s Speech or Debate Clause Does Not Apply Only to Members of the Legislature ......................................................26 C. Governor Perry’s Alleged Conduct Was All Legislative in Nature ........................................................................................28

D. The State Misstates Federal Law Regarding the Effect of

i Legislative Immunity ................................................................30

CONCLUSION .............................................................................................................31

CERTIFICATE OF COMPLIANCE ..................................................................................34

CERTIFICATE OF SERVICE ..........................................................................................34

ii INDEX OF AUTHORITIES

Page(s) CASES Baraka v. McGreevey, 481 F.3d 187 (3d Cir. 2007) ...............................................................................28 Board v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d).................................................................................................2, 3 Bond v. Floyd, 385 U.S. 116 (1966) ..............................................................................................7 Bowles v. Clipp, 920 S.W.2d 752 (Tex. Civ. App.—Dallas 1996, writ denied) ...........................24 Canfield v. Gresham, 17 S.W. 390 (Tex. 1891).....................................................................................24 Carey v. Brown, 447 U.S. 455 (1980) ..............................................................................................4 Connick v. Myers, 461 U.S. 138 (1983) ..............................................................................................6 Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........2, 3, 10 Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003) ............................................................................28 Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir. 2011) ..............................................................................28

Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) ...........................................................18

Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) ...........................................................20

iii Ex parte Mattox, 683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..................................21, 22

Ex parte Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) ................................20

Garcetti v. Ceballos, 547 U.S. 410 (2006) ..............................................................................................6

Gravel v. United States, 408 U.S. 606 (1972) ......................................................................................29, 31

Helstoski v. Meanor, 442 U.S. 500 (1979) ............................................................................................19

Hutchinson v. Proxmire, 443 U.S. 111 (1979) ............................................................................................29 Imbler v. Pachtman, 424 U.S. 409 (1976) ............................................................................................31 In re Perry, 60 S.W.3d 857 (Tex. 2001).................................................................................27 Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007) ................................................................................ 6 Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) ..........................................................................................7, 8 Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004) ..................................................................................28 Karenev v. State, 281 SW.3d 428 (Tex. Crim. App. 2008) ............................................................19

Kilbourn v. Thompson, 103 U.S. 168 (1880) ............................................................................................24 Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) ...............................................24, 25, 26

iv N.A.A.C.P v. Claiborne Hardware Co., 458 U.S. 886 (1982) ..........................................................................................3, 4

O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................................................31

Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ..........................................................................................4, 9

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ..........................................................................................7, 8

Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)..........1, 2, 3

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) .............................................................28 Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) ............................................................. 4 State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71 (2d Cir. 2007) .................................................................................28 State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) .....................................15, 16 State v. Holton, 997 A.2d 828 (Md. Ct. Spec. App. 2010) ...........................................................30 Tenney v. Brandhove, 341 U.S. 367 (1951) ............................................................................................24 Torres Rivera v. Calderon Serra, 412 F.3d 205 (1st Cir. 2005) ...............................................................................28

United States v. Gillock, 445 U.S. 360 (1980) ............................................................................................31 United States v. Kozminski, 487 U.S. 931 (1988) ......................................................................................13, 14

v United States v. Mandel, 415 F. Supp. 1025 (D. Md. 1976) ...........................................................27, 28, 30

United States v. Stevens, 559 U.S. 460 (2010) ............................................................................................11

United States v. Williams, 553 U.S. 285 (2008) ..............................................................................................5

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ............................................................................................11

Wood v. Georgia, 370 U.S. 375 (1962) ..............................................................................................6

STATUTES Tex. Code Crim. Proc. art. 21.03 .............................................................................19 Tex. Penal Code § 1.07(a)(48) .............................................................................1, 17

OTHER AUTHORITIES Tex. Const. art. IV, § 9.......................................................................................27, 29 Tex. Const. art. IV, § 14.....................................................................................27, 29

vi ARGUMENT

I. Reply to the State’s Arguments Regarding the Facial Unconstitutionality of the Coercion Statute. 1 Instead of beginning its facial challenge with a textual analysis of

Section 36.03(a)(1) and Section 1.07(a)(9)(F), as Governor Perry did in his brief,

App.Br. at 17-22, the State leads with the truism that the First Amendment is not

absolute. St.Br. at 6. Having shown that not every utterance is automatically

protected, the State then claims that Governor Perry’s speech was unprotected

because it amounted to a “retaliatory act,” “verbal extortion,” or a “quid pro quo

threat[] made under a display of authority and power.” Id. at 7. But the text of the

sections under challenge criminalizes far more than retaliation, extortion, and quid

pro quo threats. See App.Br. at 10-17. Indeed, the constitutional issues of

overbreadth (and also vagueness) arise only when Section 36.03(a)(1) is read, as it

must be, in conjunction with Section 1.07(a)(9)(F); together, they do not require the

“coercion” to be illegal, unlawful, tortious, or even a “true threat.” 2

The State’s cases do not save these provisions. Its main authority, Puckett v.

State, 801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d), 1 See State’s Issue I(A) at 6-7, 14. 2 Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section 36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code § 1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with Section 1.07(a)(9)(F), covers any and all conduct or speech that can be construed as a “threat” if it otherwise meets the requirements of Section 36.03(a)(1).

1 addressed both facial and as-applied challenges to the more narrowly drawn

retaliation statute, Section 36.06(a), by a defendant who “repeatedly stated in no

uncertain terms that he would kill [the arresting officer] when he got out of jail.” Id.

at 194. The court said that “it is clear that these statements by [Puckett] could

reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,”

and hence not protected speech. Id. Similarly, Board v. State, No. 03-96-00024-CR,

1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d), involved a

challenge to the tampering statute, Section 36.05, in conjunction with the narrower

definition of “coercion” in Section 1.07(a)(9)(D), which criminalizes a threat “to

expose a person to hatred, contempt or ridicule.” Finally, the State points to

Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d), which it says involves “the same type of unprotected conduct Section 36.03

regulates.” St.Br. at 14. There, the court rejected an overbreadth challenge to the

“interference with public duties” statute, Section 38.15(a)(1), after finding that the

defendant engaged in conduct which he 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.” 230 S.W.3d at

844. That, the court held, “was not expressive conduct protected by the First

Amendment.” Id. (emphasis added). Importantly, the court specifically noted that

Section 38.15(d) “provides that it is a defense to prosecution under the statute if the

2 interruption, disruption, impediment, or interference alleged consists of speech only.”

Id. at 843 (emphasis added). Accordingly, the court stated “we must only examine

the interference statute’s limitations on conduct to determine if it restricts a

substantial amount of constitutionally protected conduct.” Id. at 844-845 (emphasis

added).

Governor Perry, of course, was indicted under a materially different provision

of the Penal Code, Section 36.03(a)(1), in conjunction with the broader definition of

“coercion” in Section 1.07(a)(9)(F). But even if Puckett, Board, and Duncantell

supported the State’s frighteningly narrow view of First Amendment protections,

they would not bind this Court because they would be irreconcilable with the U.S.

Supreme Court authority cited in Governor Perry’s brief. App.Br. at 11-15. The

State never acknowledges, let alone distinguishes, cases like N.A.A.C.P v. Claiborne

Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech does not

lose its protected character . . . simply because it may embarrass others or coerce

them into action.” (Emphasis added). The facts of Claiborne are particularly

instructive. There, a civil-rights boycott organizer warned that boycott breakers

would be “disciplined,” and that “if we catch any of you going into any of them

racist stores, we’re gonna break your damn neck.” Id. at 902. While such statements

“might have been understood as inviting an unlawful form of discipline or, at least,

as intending to create a fear of violence,” id. at 927, they still enjoyed First

3 Amendment protection because expression on public issues “has always rested on

the highest rung of the hierarchy of First Amendment values.” Id. at 913 (quoting

Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Org. for a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were intended to

exercise a coercive impact on respondent does not remove them from the reach of

the First Amendment. Petitioners plainly intended to influence respondent’s

conduct by their activities; that is not fundamentally different from the function of a

newspaper.” (emphasis added)).

The State then points to the language of Sanchez v. State, 995 S.W.2d 677,

687-88 (Tex. Crim. App. 1999), which noted that “verbal extortion ‘has no more

constitutional protection than that uttered by a robber while ordering his victim to

hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official

oppression by sexual harassment under Section 39.03(a)(3)—merely analogized

sexual harassment by a public servant to official extortion and bribery on the ground

that “the receipt of someone’s submission to sexual conduct” was comparable to

“the use of official power to obtain a benefit to which the official was not otherwise

entitled” in the form of “money or tangible property.” 995 S.W.2d at 688. 3 Count II

3 In Sanchez, the Court of Criminal Appeals commented that if the official oppression statute were to cover “conduct welcomed by the recipient in a corrupt bargain,” then such conduct could also be prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 675 n.5. Similarly, if there were any facts supporting the State’s use of its colorful metaphors such as quid pro quo, extortion, or indirect benefits, then the State could have sought an indictment under statutes applicable to that type of conduct.

4 of the indictment does not allege extortion, bribery, or receipt of a personal benefit.

More importantly, any such allegations would be irrelevant to Governor Perry’s

facial challenge because the plain language of Section 36.03(a)(1) and Section

1.07(a)(9)(F) extends far beyond extortionate threats or bribery.

II. Reply to the State’s Arguments Regarding Governor Perry’s First Amendment Protections.4 The State also advances the novel claim that Governor Perry cannot make a

facial overbreadth challenge to Section 36.03(a)(1) and Section 1.07(a)(9)(F)

because, in exercising his official duties as Governor of Texas, he enjoyed no First

Amendment rights. See St.Br. at 8-10. The State points to two recognized instances

of prohibition: (1) certain government-employee speech, which is subject to no

greater First Amendment protection than the speech of private employees; and

(2) the concept of government speech itself. Id. But neither situation has anything

to do with criminalizing speech, much less criminalizing an elected official’s

political speech through the mechanism of an overboard statute. Furthermore,

because facial overbreadth analysis deals not with the statute as applied to the

particular defendant, but whether “it prohibits a substantial amount of protected

speech,” United States v. Williams, 553 U.S. 285, 292 (2008), Governor Perry’s own

First Amendment rights are irrelevant to the resolution of his facial overbreadth

challenge.

4 See State’s Issue I(B) at 8-10.

5 The State begins by pointing out that the First Amendment generally does not

protect statements made by public servants in the course of their employment.

St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S. 410, 422 (2006)). But this

employee-speech “exception” is not really an exception at all—it just makes

unelected public servants, who are employees, subject to civil employment-law

standards comparable to employees in the private sector. Just like a private

employer, governmental entities “need a sufficient degree of control over their

employees’ words and actions” to ensure the “provision of public services.”

Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143 (1983)

(“[G]overnment offices could not function if every employment decision became a

constitutional matter.”).

The rights of those directly elected by the people, such as the Governor of

Texas, are not so limited. Indeed, political speech by elected officials, whose

“relationship with [their] employer [i.e., the people] differs from that of an ordinary

state employee,” “is at the core of the First Amendment.” Jenevein v. Willing, 493

F.3d 551, 557 (5th Cir. 2007) (finding First Amendment violation by Texas judicial

conduct commission when censuring elected judge for public criticism of attorney

practicing in his court). “The role that elected officials play in our society makes it

all the more imperative that they be allowed freely to express themselves on matters

of current public importance.” Wood v. Georgia, 370 U.S. 375, 395 (1962)

6 (reversing contempt conviction of elected sheriff based on criticism of court’s grand

jury investigation). The Supreme Court has expressly rejected the idea that the First

Amendment protects only the “citizen-critic” and not elected officials as well. Bond

v. Floyd, 385 U.S. 116, 136 (1966) (state legislature violated elected representative’s

First Amendment rights by refusing to seat him based on his controversial remarks

about the Vietnam War).

The State also errs by characterizing Governor Perry’s alleged threat as

“government speech” exempt from the First Amendment—as if anything uttered by

a government employee, or the Governor himself, can be criminalized without any

First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for that

bizarre and dangerous notion have nothing whatsoever to do with criminalizing

speech. They merely acknowledge that the First Amendment generally allows the

government to communicate its own particular viewpoints without subsidizing or

promoting other viewpoints to the same extent as its own. See Pleasant Grove City v.

Summum, 555 U.S. 460, 467 (2009) (city could select which monuments to place in

public park); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 561 (2005) (federal

government could choose to spend money promoting beef consumption). These

cases do not authorize the government to criminalize speech by government

employees or anyone else, must less elected leaders.

Even if “government speech” did amount to a wholesale withdrawal of First

7 Amendment rights, Governor Perry’s alleged threat is not the sort of

officially-sanctioned “government speech” involved in the cases the State cites. His

statements—which the State in its “bill of particulars” now asserts were never made

directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were allegedly “implied

or disguised,” see St.Br. at xvi—were not presented as the official viewpoint of the

State of Texas. Cf. Pleasant Grove, 555 U.S. at 473-74 (city spoke through a Ten

Commandments monument when it “took ownership of that monument and put it on

permanent display in a park that it owns and manages and that is linked to the City’s

identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was government

speech because the activities were “prescribed by law in their general outline” and

“developed under official government supervision”). The State wants to have it both

ways: characterizing Governor Perry’s alleged speech as the official position of the

State while at the same time prosecuting him as an individual for expressing it.

III. Reply to the State’s Arguments that the Legislature Can Limit the Speech of Its Own Members.5 From its faulty premise that speech by government officials enjoys no First

Amendment rights, the State then concludes that the Legislature can always limit the

speech of its own members without running afoul of the First Amendment, even if

that requires restricting some “incidental” private speech in the process. St.Br. at

10-11. The State argues that the specific statutory language at issue merely restricts

5 See State’s Issue I(C) at 10-11.

8 private speech in order to express the “viewpoint” that “official speech should not be

coerced speech.” Id.

The State’s apparent argument is that Section 36.03(a)(1) and Section

1.07(a)(9)(F) express a government “viewpoint” and can therefore freely criminalize

any private speech made with the intent to influence the speech (or conduct) of a

public official, regardless of the words used, without further First Amendment

concerns. Thus, under the State’s argument, a newspaper editorial expressing the

personal view of the editor, which was intended to pressure and have a “coercive

impact” on a public servant, could be criminalized, even though the First

Amendment clearly protects such speech. Org. for a Better Austin, 402 U.S. at 419

(emphasis added).

The State’s argument also mistakenly assumes that the coercion statute “is the

Texas Legislature regulating its own speech and actions.” St.Br. at 11. But the State

fails to account for the statutory exception of Section 36.03(c), which—far from

regulating the Legislature’s “own speech”—excludes from the purview of Section

36.03(a)(1) “official actions” taken by “a member of the governing body of a

governmental entity” that are intended to influence another public servant. This

exception reflects a legislative determination that “coercion” by one public servant

against another public servant is not always or even necessarily a crime under

Section 36.03(a)(1). Indeed, when the defendant is himself or herself a public

9 servant (i.e., “a member of the governing body of a governmental entity”) and the

defendant takes “official action” that “influences or attempts to influence a public

servant” (i.e., the alleged victim of the “coercion”), there is no crime under Section

36.03(a)(1). The statutory exception negates the State’s argument here that the

Legislature was attempting to limit its own speech. But even if the State’s

explanation were not so obviously wrong on so many levels, the State never explains

how the Legislature, under the guise of “regulating its own speech,” could abrogate

individual members’ constitutional rights (much less those of anyone else).

IV. Reply to the State’s Arguments that the Face of the Statute Is Not Overbroad.6 In responding to Governor Perry’s overbreadth arguments, the State initially

relies on Duncantell, discussed above, to argue that a statute cannot be overbroad if

the defendant is entitled to no constitutional protection. St.Br. at 14. As discussed

above, this argument lacks any merit.

The State also claims that even though Section 36.03(a)(1) and Section

1.07(a)(9)(F) are content-based restrictions on speech, the presumption of

constitutionality applies because “regulating coercive threats by public officials is

distinct from regulating purely political speech by private citizens.” Id. at 14-15.

This illusory distinction is built on the same false premise discussed above, that

speech by a government official inherently lacks First Amendment protection. It has

6 See State’s Issue I(C)(1) at 13-19.

10 absolutely no probative value in relation to Governor Perry’s facial overbreadth

The State also misstates the applicable test for Governor Perry’s facial

overbreadth challenge in saying that, whether his claim is based on the First

Amendment or not, he “must prove that a prosecution can never be constitutionally

applied to any Texas defendant charged with the statute at issue.” Id. at 15. In other

words, says the State, “if the court can identify any factual circumstances in which

the statute is valid, the facial challenge must fail.” Id. The State is wrong; this is a

First Amendment challenge and the chilling effect of an overbroad restriction

justifies the invalidation of a statute if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v.

Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation

marks omitted)); see also App.Br. at 9.

After misstating the proper test, the State tenders five “hypothetical factual

circumstances” in an effort to demonstrate the statute’s lack of overbreadth. St.Br.

at 15-16. These “hypotheticals” have no bearing on the overbreadth of Section

36.03(a)(1) and Section 1.07(a)(9)(F), because, even if a statute happens to have a

few valid applications, the proper test requires an examination of whether the

statutory language sweeps up a substantial amount of protected speech. The

11 statutory language at issue is in no way narrowly tailored to prohibit only

unprotected speech, and the State never argues otherwise. In any event, and for any

number of reasons, while some of the hypotheticals appear to violate various statutes,

none actually reflects a violation of the provisions at issue here—Section 36.03(a)(1)

and Section 1.07(a)(9)(F)—even disregarding the statutory exception of Section

36.03(c). The first three potentially reflect violations of Section 36.04 (the improper

influence statute) and Section 39.03 (the official oppression statute), while the last

two do not reflect a violation of any criminal statute.

V. Reply to the State’s Arguments On Strict Scrutiny Review.7 The State suggests that strict scrutiny is inapplicable because “only

content-based regulation on private citizen’s speech would be held presumptively

invalid and subject to strict scrutiny.” St.Br. at 19-20 (emphasis in original). This

argument again draws upon the inaccurate premise that, despite prosecuting

Governor Perry as an individual, his speech was “employee” or “government”

speech outside the purview of the First Amendment. Furthermore, the State does not

address the fact that Section 36.03(a)(1) and Section 1.07(a)(9)(F) prohibit threats

with a certain content and are thus plainly content-based restrictions. In fact, the

State’s assertion that Section 36.03 “only criminalizes two categories of

coercion—physical threats and threats of official action,” St.Br. at 22 (emphasis

7 See State’s Issue I(C)(2) at 19-21.

12 added), essentially admits that the statute is content based.

VI. Reply to the State’s Arguments Regarding “Least Restrictive Means” of Serving a Compelling State Interest. 8 The State does not directly respond to Governor Perry’s arguments that

Section 36.03(a)(1) and Section 1.07(a)(9)(F) are not the least restrictive means of

serving a compelling state interest. See App.Br. at 17-22. Rather, it argues by

analogy to extortion that “Texas has a singular interest in intervening when public

officials try to leverage the power of government for their personal or political

whims.” St.Br. at 21.

But other statutes criminalize the factual scenarios (i.e., hypotheticals) that the

State believes are covered by Section 36.03(a)(1) and Section 1.07(a)(9)(F). See id.

at 15-16. This only further illustrates that Section 36.03(a)(1) and Section

1.07(a)(9)(F) cannot be the least restrictive means for accomplishing the State’s

purpose.

Additionally, the State asserts that the statutory language merely prohibits

“physical and legal coercion,” which it claims can be constitutionally prohibited

under United States v. Kozminski, 487 U.S. 931 (1988). But the State never explains

how the statutory language can be construed as limited to “physical or legal

coercion.” Kozminski certainly does not stand for that proposition. It holds only that

the Thirteenth Amendment’s definition of “involuntary servitude”—which would be

8 See State’s Issue I(C)(2) at 21-22.

13 applied to two federal criminal statutes, 18 U.S.C. Section 241 (conspiracy against

rights) and 18 U.S.C. Section 1584 (the involuntary servitude statute)—includes

work forced upon a person by “physical or legal coercion.”9

The definition of “coercion” under Section 36.03(a)(1) and Section

1.07(a)(9)(F) is far broader than the coercion barred by the Thirteenth Amendment.

Kozminski lends no support to the State’s argument that these Texas statutes are the

least restrictive means to achieve a compelling legislative purpose consistent with

the First Amendment. 10

9 Even less persuasive is the State’s reliance on Justice Brennan’s concurring opinion in Kozminski, which contained the proposed holding—explicitly rejected by the full Court—that the term “involuntary servitude” should include “any means of coercion that actually succeeds in reducing the victim to a condition of servitude resembling that in which slaves were held before the Civil War.” Kozminski, 487 U.S. at 950 (emphasis added; internal quotation marks omitted). 10 Significantly, the Kozminski Court carefully preserved ample space for free speech by greatly limiting what counted as “legal coercion” for purposes of the Thirteenth Amendment and the two statutes involved. The Court rejected the government’s argument that a broad construction of “involuntary servitude” should be adopted that would “prohibit the compulsion of services by any means that, from the victim’s point of view, either leaves the victim with no tolerable alternative but to serve the defendant or deprives the victim of the power of choice.” Kozminski, 487 U.S. at 949. According to the Court, under the government’s proposed interpretation, “involuntary servitude would include compulsion through psychological coercion as well as almost any other type of speech or conduct intentionally employed to persuade a reluctant person to work.” Id. The Court stated that the government’s proposed interpretation “would appear to criminalize a broad range of day-to-day activity,” including “a parent who coerced an adult son or daughter into working in the family business by threatening withdrawal of affection,” as well as “a political leader who uses charisma to induce others to work without pay.” Id. According to the Court, the government’s hypotheticals “suggest” that its proposed construction would “delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes,” and “would also subject individuals to the risk of arbitrary or discriminatory prosecution and conviction” while “fail[ing] to provide fair notice to ordinary people who are required to conform their conduct to the law.” Id.

14 VII. Reply to the State’s Arguments on Facial Vagueness.11 The State’s response to Governor Perry’s facial vagueness challenge contains

two propositions: (1) State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no

pet.), relied upon by Governor Perry, is distinguishable; and (2) the Legislature

intended the statute to criminalize threats of lawful action due to the insertion and

subsequent deletion of the requirement that the threat be “unlawful.” St.Br. at 24-30.

These arguments lack merit.

The State’s contention that Hanson is distinguishable because Governor Perry

allegedly did not have the “legal authority to demand an elected district attorney’s

resignation,” St.Br. at 25, is short of the mark for multiple reasons. The State cites

no authority for its bald assertion that a Governor cannot call for any elected official

to resign. Indeed, it is beyond dispute that anyone, whether a private citizen or an

elected public servant, has an unfettered First Amendment right to call for the

resignation of any elected public servant. The State’s contrary position

demonstrates the broad, chilling effect of its interpretation: no one in

government—indeed no one at all—could call for the resignation of an elected

official unless he or she has the right to remove that elected public official from

office, which is a power rarely if ever in the possession of those who demand

resignations. If in fact Governor Perry did call for Lehmberg’s resignation, that

11 See State’s Issue II at 23-30.

15 would have been entirely appropriate, given Lehmberg’s egregious conduct, the

Legislature’s response, the public debate regarding her potential resignation, and the

pendency of the removal lawsuit(s) filed against her. These are core political issues,

and merely voicing one’s views on such matters in an effort to produce a political

result cannot be a criminal act in any true democracy, much less one governed by the

First Amendment.

But the very premise of the State’s purported distinction also fails. Judge

Hanson, as a county judge, had no authority on her own to terminate the county’s

funding of the salaries of a deputy district clerk and an assistant district attorney.

Thus, the State’s test cannot even explain the result in Hanson, much less distinguish

it from this case. In fact, that test has the opposite effect, as here Governor Perry had

the unfettered right to veto funding for the PIU. Rather, Judge Hanson’s threat to

terminate the county’s funding of the two positions was an effort to coerce: (a) the

district judge into firing the county auditor; and (b) the country attorney into

revoking a misdemeanant’s probation—two actions which she did not have the

authority to take herself. The State’s effort to distinguish Hanson, even disregarding

the State’s utilization of the incorrect vagueness standard, wholly lacks merit.

The State’s second assertion, that the Legislature intended to allow threats of

lawful action to be criminalized under Section 1.07(a)(9)(F), also fails. While it is

true that the term “unlawful” was included and then subsequently omitted from the

16 definition of “coercion,” the State’s assertion of the legislative purpose is based

solely on speculation about a change that occurred at conference committee as one

small part of a massive overhaul of the Penal Code. Nothing in any testimony or

written bill analysis makes the State’s hypothesis about the members’ motives any

more likely than the hypothesis that the word “unlawful” was simply omitted by

oversight when the conference committee rejected the House’s new approach. 12

As argued by Governor Perry, the case law is clear that a threat to do what one

has a legal right to do cannot even constitute duress, and thus would not fall within

the definition of “unlawful.” App.Br. at 25-26. So even if the State is correct that

the word “unlawful” was intentionally omitted at conference committee, it cannot be

concluded that the Legislature intended the statute to cover non-tortious conduct.13

Rather, the omission of the requirement that the threat be “unlawful” serves to

demonstrate the extreme overbreadth of the statute as well as its insoluble vagueness,

as no individual is placed on notice that Section 36.03(a)(1) and Section 1.07(a)(9)(F)

criminalize otherwise “lawful” threats.

12 The definition of “coercion” was originally a portion of Section 36.03, but it was subsequently moved to Section 1.07 so that it would be applicable to all crimes in the Penal Code that include or rely upon a definition of “coercion,” such as theft. 13 This follows because “unlawful” under Section 1.07(a)(48) includes “tortious conduct,” including what would be tortious “but for a defense not amounting to justification or privilege.” Obviously, the term “unlawful” does not cover “lawful” conduct.

17 VIII. Reply to the State’s Arguments on the Cognizability of Governor Perry’s Constitutional Arguments. 14 The State responds that “evidence” must be presented at a trial on the merits

before any court can address Governor Perry’s constitutional claims. St.Br. at 31.

But whether the State chooses to address them or not, numerous cases compel the

conclusion that his constitutional claims are cognizable and currently ripe for

adjudication. The State never responds to Governor Perry’s arguments that his

separation of powers, Speech or Debate, and legislative immunity challenges all

involve a right not to be tried which can only be vindicated before trial occurs.

App.Br. at 35-37.15

Judge Richardson, at the State’s urging, followed a rigidly mechanical

approach, reasoning that because Governor Perry conceded that the coercion statutes

can in some circumstances and in conjunction with some definitions be

constitutional, it follows that his constitutional rights cannot be vindicated short of a

full trial on the merits. But Governor Perry in no way “conceded himself” out of

court, because his complaints here—all of which can be decided based on the face of

14 See State’s Issue III at 31-43. 15 Even when the State does address Governor Perry’s authorities, it does so without probative force. For instance, in attempting to distinguish Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991), St.Br.at 33-34, the State fails to acknowledge that the Boetscher court relied upon the facts alleged in the indictment to resolve the issues raised in the pretrial writ of habeas corpus and, based on the statute and the indictment facts, ordered the indictment dismissed. See 812 S.W.2d at 604. Also, Boetscher explicitly reserved for another day the question of the statute’s constitutionality as applied to a different set of facts, the hallmark of an as-applied challenge. See id. at 604 n.8.

18 the indictment—are not true “as applied” challenges.16

Three critical principles, to which the State tellingly never responds, compel

the conclusion that all of Governor Perry’s issues are cognizable. These are: the

absence of an adequate remedy of law in light of his claims seeking to prevent a trial;

that a favorable resolution by the court would result in the immediate release of

Governor Perry from his illegal restraint; and that the current resolution of his issues

would certainly result in judicial economy. See App.Br. at 32, 35-37 (citing, in

particular, Helstoski v. Meanor, 442 U.S. 500 (1979)).

Additionally, the State’s insistence that “the resolution of [these claims] may

be aided by the development of a record at trial,” St.Br. at 37, ignores common sense.

If the statutes and indictment currently demonstrate that the prosecution is

unconstitutional and should be barred, the “development of a record at trial” can

make the prosecution no less deficient—indeed, a trial would only exacerbate the

violation of Governor Perry’s constitutional rights. The law requires that

“everything should be stated in an indictment which is necessary to be proved.” Tex.

Code Crim. Proc. art. 21.03.

The State’s effort to deflect Governor Perry’s argument that his claims are the

16 The State fails to address the language of Karenev v. State, 281 SW.3d 428, 435 (Tex. Crim. App. 2008), which directly supports the proposition that Governor Perry’s claims are not true “as applied” challenges. Governor Perry made this proposition clear in his application for writ, CR41, in his reply to the State’s answer to his writ, CR417-419, and in his brief to this Court. App.Br. at 34.

19 functional equivalent of facial attacks again fails to address the policy considerations

noted above. See St.Br. at 37-43. More importantly, the State’s reliance on Ex parte

Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013), aff’d on other

grounds sub nom., Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014), is

completely misplaced. Although the defendant could not constitutionally be

sentenced to death because he was under eighteen years of age at the time he

allegedly committed the murder, the court correctly noted that Ragston made no

challenge to the capital murder statute under which he was charged. 402 S.W.3d at

476. His constitutional challenge to the potential punishment would arise only if and

when he was convicted and the death sentence imposed. Id. Thus, his claim, “even

if successful, would not result in [his] immediate release because it is directed to the

sentence to be imposed after conviction, not the validity of the present indictment.”

Id. (citing Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). He

would then have the opportunity for a full, adequate, and timely remedy on direct

appeal. Thus, the Ragston court properly sustained the State’s challenge to the

cognizability of his constitutional issue.

The State also asserts that “[t]hirty years ago, lawyers for Jim Mattox

advanced the same arguments as [Governor Perry] now urges” and that this Court

“summarily dismiss[ed]” the appeal. St.Br. at 40. But that case strongly supports

this Court’s authority to reach Governor Perry’s present claims.

20 First, the Court did not “summarily dismiss” the appeal; rather, it denied relief

on claims that were materially different from what Governor Perry raises. Mattox’s

first two appellate issues, which the Court “overrule[d],” “were that the indictments

were fundamentally defective.” Ex parte Mattox, 683 S.W.2d 93, 95-96 (Tex.

App.—Austin 1984, pet. ref’d). This Court relied upon a long line of cases that

habeas corpus is not available to test the sufficiency of the charging instrument. Id.

at 96.

Second, even as it overruled Mattox’s first two claims, this Court

affirmatively acknowledged its authority to consider and grant habeas relief upon a

challenge to the legal authority of the State to prosecute the accused. Id. This is

exactly the challenge that Governor Perry has made.

Third, this Court in fact did examine the merits of Mattox’s third and fourth

issues, which challenged the constitutionality of the commercial bribery statute as

“vague on its face and as applied to the facts alleged in the indictment.” Id. Both

challenges were overruled, but only after the Court addressed the arguments and

stated the following regarding Mattox’s “as applied” contention. As the Court

explained with regard to the fourth issue:

For one lawyer to offer another lawyer an economic benefit in consideration for the latter’s breach of a fiduciary duty owed to a client is not a legitimate negotiating tactic; it is bribery. It is just such conduct that has been alleged against Mattox in the indictments pending against him.

21 Id. at 98 (emphasis added). Contrary to the State’s argument, there was no

“summary dismissal” on the ground that the issues were not cognizable in pretrial

habeas, and this Court should likewise reach Governor Perry’s challenges to the

State’s legal authority to prosecute him.

Finally, as to Count I, the State contends that “[t]here are limitless ways in

which a public servant may use government property in unauthorized way [sic]. In

this case, the State will prove that a coercive threat followed by a retaliatory action

constitutes both Coercion of a Public Servant and Abuse of Office.” St.Br. at 43-43.

Governor Perry is at a loss to understand how this statement has any impact on the

cognizability of his constitutional claims. The “government property” to which the

State refers is the gubernatorial right to veto an item of appropriation. See March 2,

2015 SuppCR at 4 (the State’s so-called “bill of particulars”). Whether an intangible

right can form the basis of the abuse of official capacity statute has been raised by

Governor Perry but not yet addressed or resolved by Judge Richardson, and has no

bearing upon this appeal or the cognizability of Governor Perry’s constitutional

issues.

IX. Reply to the State’s Arguments Regarding Separation of Powers. 17 The State’s responses to Governor Perry’s Separation of Powers challenge,

App.Br. at 38-45, fundamentally misapprehend that challenge. Governor Perry does

17 See State’s Issue IV at 43-48.

22 not seek “two extensions of law,” does not “ask[] that this court grant him more

power,” and most assuredly does not argue that the Governor “is the most powerful

branch” of Texas’ government. St.Br. at 43. Quite the contrary, Governor Perry

merely relies on Article II, Section I of the Texas Constitution, which mandates a

clear separation of powers between the three departments of state government, and

well-established case law setting forth the appropriate legal test to ascertain whether

a statute violates it. App.Br. at 38-40. That includes two cases where violations of

the Separation of Powers Clause have been considered in pretrial habeas cases. Id.

at 40.

No mere statute can criminalize a governor’s exercise of his Article IV,

Section 14 veto power. The Texas Constitution gives the governor that right, just as

it provides the remedy for the misguided use of that veto: the legislative override and

impeachment.

The State claims that Governor Perry believes “he could never be prosecuted

for a threat or promise made in connection with his power to veto,” which

“surely . . . . cannot be true. Otherwise, every bribery or extortion prosecution

would be barred by the separation of powers doctrine.” St.Br. at 44 (emphasis

added). Of course, Governor Perry has advanced no such proposition. Neither

count of the indictment alleges bribery. And an act of bribery can be prosecuted

under the appropriate provision of the Texas Penal Code, as expressly provided by

23 Article XVI, Section 41 of the Texas Constitution. See Mutscher v. State, 514

S.W.2d 905, 914-15 (Tex. Crim. App. 1974). But allowing a criminal prosecution of

a political decision constitutionally committed to a particular branch of government,

including the discretionary decision to veto an item of appropriation, impermissibly

violates the Separation of Powers Clause.

X. Reply to the State’s Arguments on Speech or Debate and Absolute Legislative Immunity. 18 The State argues that Texas’s Speech or Debate Clause and the related

doctrine of absolute legislative immunity provide no protection to Governor Perry

(or any Texas governor) because: (1) the Texas Speech or Debate Clause is narrower

than the federal Speech or Debate Clause; (2) the Texas Speech or Debate Clause

only applies to members of the Legislature; (3) the Texas Speech or Debate Clause

does not protect all legislative speech; and (4) legislative immunity does not bar

criminal prosecution. St.Br. at 48-60. None of these arguments have merit.

A. The State Mischaracterizes Mutscher v. State Contrary to the State’s assertion, Mutscher v. State, 514 S.W.2d 905 (Tex.

Crim. App. 1974), did not hold that the Texas Speech or Debate Clause is narrower

than its federal counterpart, and other cases have confirmed that it is not. 19 Nor did

18 See State’s Issue V at 48-60. 19 See Canfield v. Gresham, 17 S.W. 390, 392-93 (Tex. 1891) (citing Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); Bowles v. Clipp, 920 S.W.2d 752, 758 (Tex. Civ. App.—Dallas 1996, writ denied); see also Tenney v. Brandhove, 341 U.S. 367, 375 (1951) (noting common purpose of Texas and federal Speech or Debate Clauses).

24 Mutscher explicitly reject the broad application of the Speech or Debate Clause

advanced by the U.S. Supreme Court.

Mutscher involved a conspiracy where two legislators “accept[ed] a bribe

with the understanding that [they] would use their vote, influence and powers of

their office to procure and assist in the passage of certain legislation.” 514 S.W.2d at

909. The then-current bribery statute applied to “[a]ny legislative, executive or

judicial officer” who accepted or agreed to accept a “bribe” for any “act, vote,

opinion or judgment” regarding something that might be brought before him in his

official capacity. Id. at 914-15. The indictment alleged in rich factual detail how the

legislators accepted bribes from a bank in exchange for procuring and attempting to

procure legislation for the bank’s benefit. Id. at 914.

Mutscher held that the bribery prosecutions did not violate the Texas Speech

or Debate Clause for two reasons: (1) because the Texas Constitution contains a

“specific mandate” for bribery prosecutions of public officials (Article XVI, Section

41), which “is not in conflict with” Texas’s Speech or Debate Clause, id. at 915; and

(2) because “[t]aking a bribe is obviously no part of the legislative process or

function; it is not a legislative act.” Id. at 915 (quoting Brewster, 408 U.S. at 501).

Thus, far from “explicitly reject[ing] the broad application of the Speech or Debate

Clause as advanced by the U.S. Supreme Court,” St.Br. at 51, Mutscher in fact

embraced federal authority on that provision.

25 Unlike in Mutscher, the indictment against Governor Perry contains no

allegation of bribery, nor that Governor Perry obtained anything from his actions.

Unlike in Mutscher, where the bribe was not part of the legislative process,

Governor Perry’s approval or veto is expressly authorized by the Constitution as an

essential step in the legislative process. The indictment itself makes this clear.

Count I is based solely on Governor Perry’s exercise of his constitutional veto power.

Count II is based on an allegation that Governor Perry’s intention to exercise his

constitutional veto power was communicated to Lehmberg as a “threat.” Neither

count remotely alleges bribery. As such, the Texas Constitution’s authorization of

bribery prosecutions in Article XVI, Section 41 is irrelevant to this indictment or

prosecution, and Mutscher offers the State no aid.

B. Texas’s Speech or Debate Clause Does Not Apply Only to Members of the Legislature The State also asserts that the protections of the Texas Speech or Debate

Clause only apply to members of the Legislature, not to the Governor. St.Br. at

53-55. But the State is wrong; it ignores a century of authoritative case law holding

that governors act in a legislative capacity when exercising their constitutional veto.

See App.Br. at 41, 47.

Moreover, Texas governors are not detached legislative gatekeepers, but

active participants in legislative discourse. Governors are constitutionally required

to “recommend to the Legislature such measures as [they] may deem expedient,”

26 Tex. Const. art. IV, § 9, and to explain their objections to bills when exercising the

veto power. Id. § 14. In short, not only does it permit communication, the Texas

Constitution requires communication between the Governor and legislators as an

integral part of the legislative process. Such communication contributes to both

sound policymaking and an informed electorate.

The State also ignores cases cited by Governor Perry, App.Br. at 47-48,

addressing the scope of legislative immunity, which “derives largely from the

Speech and Debate Clauses of the Texas and federal constitutions.” In re Perry, 60

S.W.3d 857, 859 (Tex. 2001). While Texas is not bound by federal practice with

respect to the Speech or Debate Cause, Texas courts have chosen to follow

analogous federal authority regarding this clause, like many others. App.Br. at

47-48 (collecting cases).

The State attempts to undermine this authority with two inapposite cases. In

the first, Governor Marvin Mandel of Maryland was denied the protection of

legislative immunity because, in the eyes of one federal judge, a governor=s

“criminal prosecution by his own branch . . . simply does not pose the separation of

powers conflict that is the basis for the immunity.” United States v. Mandel, 415 F.

Supp. 1025, 1031 (D. Md. 1976) (emphasis added). But the structure of Texas

government is very different from Maryland’s: our executive is divided, and

prosecutors are members of the judicial branch, and not accountable to the governor.

27 See Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002). Moreover, since

Mandel was decided in 1976, several federal circuits have held that governors are

protected by absolute legislative immunity for their legislative acts. See State Emps.

Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 91-92 (2d Cir. 2007); Baraka v.

McGreevey, 481 F.3d 187, 196-97 (3d Cir. 2007); Torres Rivera v. Calderon Serra,

412 F.3d 205, 212-14 (1st Cir. 2005); Women=s Emergency Network v. Bush, 323

F.3d 937, 950 (11th Cir. 2003). In the second case cited by the State, Governor Rod

Blagojevich was denied the protection of Illinois’s Speech or Debate Clause in a suit

against him in his official capacity for declaratory and injunctive relief—a class of

cases wholly distinct from the prosecution here. See Empress Casino Joliet Corp. v.

Blagojevich, 638 F.3d 519, 528 (7th Cir. 2011) (citing Jorgensen v. Blagojevich, 811

N.E.2d 652, 654-59 (Ill. 2004)), rehearing en banc granted, vacated on other

grounds, 651 F.3d 722 (7th Cir. 2011). While the Seventh Circuit had no

opportunity to consider immunity from criminal prosecution, the court nevertheless

acknowledged the former governor’s entitlement to absolute legislative immunity

under federal law from personal civil liability. 638 F.3d at 530-32.

C. Governor Perry’s Alleged Conduct Was All Legislative in Nature The State argues that any communication with a governor is not “an ‘essential

part’ of the process of a bill becoming a law” and thus is not entitled to Speech or

Debate Clause protection. St.Br. at 55-56. But as noted in the preceding subsection

28 of this reply, the Texas Constitution does in fact make communications with the

governor an essential part of the legislative process. See Tex. Const. art IV, § 9

(governor “shall recommend to the Legislature such measures as he may deem

expedient”); id. § 14 (governors must explain their objections to bills when

exercising the veto power).

The State misunderstands the distinction between the governor’s role in

legislating and his role in enforcing the law. A governor’s administration of a statute

after enactment, depending on the circumstances, may not be protected by the

Clause, but the “deliberative and communicative processes” involved in “the

consideration and passage or rejection of proposed legislation” fall squarely within

the ambit of the Clause. Gravel v. United States, 408 U.S. 606, 625 (1972). And one

such “deliberative and communicative process” is the expression by legislators and

governors of their intention to vote or veto a certain way. The State would have the

Court believe that even legislators are vulnerable to prosecution every time they take

a position on a bill prior to a formal vote. But legislating is a clash between

competing positions and intentions, not a university seminar exploring abstract

policy questions. The Speech or Debate Clause recognizes this practical reality. See

Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979) (observing that “the Court has

given the Clause a practical rather than a strictly literal reading” in order to further

its core purpose of protecting the legislative process).

29 D. The State Misstates Federal Law Regarding the Effect of Legislative Immunity The State’s final argument is that legislative immunity merely applies to civil

suits, not criminal prosecutions. St.Br. at 58-60. But as the cases cited by Governor

Perry demonstrate, many state courts have applied legislative immunity to bar both

civil and criminal proceedings. App.Br. at 49. As these courts have recognized, the

“level of intimidation against a local legislator arising from the threat of a criminal

proceeding is at least as great as the threat from a civil suit.” State v. Holton, 997

A.2d 828, 856 (Md. Ct. Spec. App. 2010), aff=d, 24 A.3d 678 (Md. 2011). Indeed,

the decision in United States v. Mandel, 415 F. Supp. 1025 (D. Md. 1976), upon

which the State so heavily relies, St.Br. at 53, is directly contrary to the State’s

position at pages 58-60 of its brief. Mandel notes that “[t]he various state and

federal provisions guaranteeing freedom of speech and debate in the legislature are

specific codifications of the common law doctrine of legislative immunity,” and

acknowledges that the “doctrine has both substantive and evidentiary aspects.” Id.

at 1027. It then states that “[t]he substantive aspect of the doctrine affords

legislators immunity from both civil and criminal liability arising from legislative

acts such as speech or debate in legislative proceedings,” citing nine Supreme Court

cases and four other federal or state cases. Id. at 1027 n.1 & 2 (emphasis in original).

Instead of candidly acknowledging that language from a case the State itself

invokes, the State cites snippets from federal cases that leave an incomplete, if not

30 misleading impression. Although the U.S. Supreme Court did say in Gravel that the

federal Speech or Debate Clause “does not purport to confer a general exemption

upon Members of Congress from liability for process in criminal cases,” St.Br. at 58

(quoting Gravel, 408 U.S. at 627) (emphasis added), the Court also observed that the

Clause provides a specific exemption that “protects Members against prosecutions

that directly impinge upon or threaten the legislative process.” 408 U.S. at 616; see

also Johnson, 383 U.S. at 184-85 (“[P]rosecution under a general criminal statute

dependent on such inquiries [into legislative speech or its preparation] necessarily

contravenes the Speech or Debate Clause.”). And in the State’s three other cases,

St.Br.at 58-59 (quoting United States v. Gillock, 445 U.S. 360, 371-72 (1980);

Imbler v. Pachtman, 424 U.S. 409, 429 (1976); O’Shea v. Littleton, 414 U.S. 488,

503 (1974)), all the Court addressed was whether a state official was immune from

federal criminal prosecution—a straightforward application of the U.S.

Constitution’s Supremacy Clause, which is irrelevant when a state official is

subjected to a state criminal prosecution.

CONCLUSION For all the reasons given above and in his opening brief, Governor Perry

respectfully prays that this Court reverse the district court’s denial of relief, sustain

the constitutional issues raised in his Application, and bar trial on both counts of the

indictment and/or dismiss both counts of the indictment. Governor Perry further

31 prays for any other relief to which he may be entitled.

32 Respectfully submitted,

THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.

/ s / Anthony G. Buzbee / s / Thomas R. Phillips Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500 600 Travis Street, Suite 7300 Austin, Texas 78701-4078 Houston, Texas 77002 Telephone: 512.322.2565 Telephone: 713.223.5393 Facsimile: 512.322.8363 Facsimile: 713.223.5909 tom.phillips@bakerbotts.com Tbuzbee@txattorneys.com

BOTSFORD & ROARK

/ s / David L. Botsford David L. Botsford State Bar No. 02687950 1307 West Avenue Austin, Texas 78701 Telephone: 512.479.8030 Facsimile: 512.479.8040 dbotsford@aol.com

33 CERTIFICATE OF COMPLIANCE I hereby certify that this document contains 7,028 words in the portions of the

document that are subject to the word limits of Texas Rule of Appellate Procedure

9.4(i), as measured by the undersigned’s word-processing software.

/ s / David L. Botsford David L. Botsford

CERTIFICATE OF SERVICE This is to certify that a true and complete copy of this document has been

emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David

Gonzalez at david@sg-llp.com on April 9, 2015, the date that it was electronically

filed with the Clerk of the Court.