IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1067-15
Ex parte JAMES RICHARD “RICK” PERRY, Appellant
ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
After reading the majority’s opinion, it seems clear to me that it has decided to employ
any means necessary in order to vacate the two felony counts against Governor Rick Perry.
The majority opinion has repealed more statutes and made more new law than Governor
Perry did in the last session of the legislature when he tried to muscle out the elected Travis
County District Attorney. I do not agree with either of the majority’s resolutions to both the
Appellant’s and State’s claims. Perry dissent - Page 2
COUNT I
Today, for the first time, the majority holds that, when a government official alleges
an as-applied separation-of-powers claim, it is an exception to cognizability and pretrial
habeas is available in order to resolve the claim before trial. As-applied challenges depend
on the particular facts and circumstances of a case to determine if a law is being
unconstitutionally applied to an individual. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910
(Tex. Crim. App. 2011). Because the resolution would be aided by the development of
evidence at trial, these claims do not have pretrial cognizability. Ex parte Doster, 303 S.W.3d
720, 724 (Tex. Crim. App. 2010). The majority, however, believes that “pretrial resolution
of this type of separation of powers claim is necessary to ensure that public officials can
effectively perform their duties.” Ex parte Perry, No. PD-1067-15, at *18. But this situation
is not comparable to those presented by other pretrial habeas exceptions, like double
jeopardy, that would truly be undermined if not considered pretrial. The majority is simply
making a special exception for public officials in order to reach its desired outcome in this
case. I do not find the majority’s arguments supporting its holding to be valid and I do not
believe this type of claim should be able to be considered in pretrial habeas.
Because I disagree with the majority’s decision on cognizability, I do not believe the
separation of powers claim needs to be addressed at this time. However, the majority does
resolve it, concluding that this prosecution violates separation of powers. Violation of the
separation of powers clause can occur in two ways: (1) “when one branch of government Perry dissent - Page 3
assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to
another branch,” and (2) “when one branch unduly interferes with another branch so that the
other branch cannot effectively exercise its constitutionally assigned powers.” Armadillo Bail
Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). I disagree with the majority’s
conclusion here for two reasons.
First, a bill of particulars is not a pleading and the admissions made within one can
be abandoned or amended and, therefore, should not be considered in pretrial habeas. Rather,
we should always rely upon what is stated in the indictment, and the indictment in this case
does not specify what the act of “misuse” by Governor Perry was. Therefore, I do not believe
that we can hold that the prosecution in this case violates separation of powers because we
do not have the information that is necessary to make that conclusion. We should allow this
case to go to trial in order to see what evidence the State presents to substantiate its
allegations in the indictment.
Second, even if the bill of particulars could be construed as a pleading and the veto
is the alleged act of misuse, there is still no violation of the separation of powers clause. A
strict examination of the language explaining when a separation of powers violation occurs
does not prohibit the prosecution in this case as the judicial branch never prevented Governor
Perry from exercising his constitutionally assigned veto power. See id. The majority’s
conclusion that the governor’s power cannot be limited by the Legislature, courts, or district
attorneys is not supported by its reference to the Texas Constitution. The sections the Perry dissent - Page 4
majority cites merely indicate the duties, elections, and terms of county judges and attorneys
and district attorneys. T EX. C ONST. art. V, §§ 21, 30. These sections in no way indicate that
the present prosecution violates the separation of powers clause. See id. at art. II § 1. Further,
this issue has never been brought before our courts before and I do not believe it should be
summarily determined pretrial.
The majority also incorrectly concludes that because Governor Perry had the
constitutional right to veto, his actions cannot be criminalized. It is clear that Governor Perry
tied his power to veto State funds to the demand for Lehmberg’s resignation, thereby
misusing his right. The Legislature has indicated that the misuse of even a constitutional right
may be criminalized–the misuse of the constitutional right to vote is criminalized by the voter
fraud statute. See id. at art. VI § 2; T EX. E LEC. C ODE § 64.012; Jenkins v. State, 468 S.W.3d
656 (Tex. App.– Houston [14th Dist.] 2015, pet. granted).
COUNT II
I also disagree with the majority’s conclusion that the coercion-of-a-public-servant
statute is facially unconstitutional because it is overbroad. The only way the majority can get
to this conclusion is by employing the overly broad definition of “threat” that it does. But this
strategy ignores both common sense and the requirement to utilize reasonable narrowing
constructions.
As suggested by the State, the most natural and logical definition of threat to employ
in this analysis is the one put forth in Black’s Law Dictionary: “A communicated intent to Perry dissent - Page 5
inflict harm or loss on another or on another’s property.” B LACK’S L AW D ICTIONARY 1203
(7th ed. 2000). We have acknowledged it as an acceptable definition in the past and I do not
agree with any of the majority’s reasoning in discounting the use of this definition here. See
Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). Using the majority’s
broader definition of threat ignores the Legislature’s intent to enact a constitutional statute,
and completely disregards our duty to use a narrow construction in order to avoid a
constitutional violation.1 I believe that the majority does this simply to be able to grant
Governor Perry relief. Because this Court should adopt the Black’s definition of threat, I
cannot agree with its analysis.
Once one employs the correct definition of threat, it becomes clear that the majority’s
argument about the “many” unconstitutional applications of the statute is no longer valid.
Each of the examples that the majority provides of “normal functioning of government” that
is criminalized by the statute would not be susceptible to prosecution when using the logical
and narrower Black’s definition of threat. None of these examples are crimes that actually
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1067-15
Ex parte JAMES RICHARD “RICK” PERRY, Appellant
ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
After reading the majority’s opinion, it seems clear to me that it has decided to employ
any means necessary in order to vacate the two felony counts against Governor Rick Perry.
The majority opinion has repealed more statutes and made more new law than Governor
Perry did in the last session of the legislature when he tried to muscle out the elected Travis
County District Attorney. I do not agree with either of the majority’s resolutions to both the
Appellant’s and State’s claims. Perry dissent - Page 2
COUNT I
Today, for the first time, the majority holds that, when a government official alleges
an as-applied separation-of-powers claim, it is an exception to cognizability and pretrial
habeas is available in order to resolve the claim before trial. As-applied challenges depend
on the particular facts and circumstances of a case to determine if a law is being
unconstitutionally applied to an individual. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910
(Tex. Crim. App. 2011). Because the resolution would be aided by the development of
evidence at trial, these claims do not have pretrial cognizability. Ex parte Doster, 303 S.W.3d
720, 724 (Tex. Crim. App. 2010). The majority, however, believes that “pretrial resolution
of this type of separation of powers claim is necessary to ensure that public officials can
effectively perform their duties.” Ex parte Perry, No. PD-1067-15, at *18. But this situation
is not comparable to those presented by other pretrial habeas exceptions, like double
jeopardy, that would truly be undermined if not considered pretrial. The majority is simply
making a special exception for public officials in order to reach its desired outcome in this
case. I do not find the majority’s arguments supporting its holding to be valid and I do not
believe this type of claim should be able to be considered in pretrial habeas.
Because I disagree with the majority’s decision on cognizability, I do not believe the
separation of powers claim needs to be addressed at this time. However, the majority does
resolve it, concluding that this prosecution violates separation of powers. Violation of the
separation of powers clause can occur in two ways: (1) “when one branch of government Perry dissent - Page 3
assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to
another branch,” and (2) “when one branch unduly interferes with another branch so that the
other branch cannot effectively exercise its constitutionally assigned powers.” Armadillo Bail
Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). I disagree with the majority’s
conclusion here for two reasons.
First, a bill of particulars is not a pleading and the admissions made within one can
be abandoned or amended and, therefore, should not be considered in pretrial habeas. Rather,
we should always rely upon what is stated in the indictment, and the indictment in this case
does not specify what the act of “misuse” by Governor Perry was. Therefore, I do not believe
that we can hold that the prosecution in this case violates separation of powers because we
do not have the information that is necessary to make that conclusion. We should allow this
case to go to trial in order to see what evidence the State presents to substantiate its
allegations in the indictment.
Second, even if the bill of particulars could be construed as a pleading and the veto
is the alleged act of misuse, there is still no violation of the separation of powers clause. A
strict examination of the language explaining when a separation of powers violation occurs
does not prohibit the prosecution in this case as the judicial branch never prevented Governor
Perry from exercising his constitutionally assigned veto power. See id. The majority’s
conclusion that the governor’s power cannot be limited by the Legislature, courts, or district
attorneys is not supported by its reference to the Texas Constitution. The sections the Perry dissent - Page 4
majority cites merely indicate the duties, elections, and terms of county judges and attorneys
and district attorneys. T EX. C ONST. art. V, §§ 21, 30. These sections in no way indicate that
the present prosecution violates the separation of powers clause. See id. at art. II § 1. Further,
this issue has never been brought before our courts before and I do not believe it should be
summarily determined pretrial.
The majority also incorrectly concludes that because Governor Perry had the
constitutional right to veto, his actions cannot be criminalized. It is clear that Governor Perry
tied his power to veto State funds to the demand for Lehmberg’s resignation, thereby
misusing his right. The Legislature has indicated that the misuse of even a constitutional right
may be criminalized–the misuse of the constitutional right to vote is criminalized by the voter
fraud statute. See id. at art. VI § 2; T EX. E LEC. C ODE § 64.012; Jenkins v. State, 468 S.W.3d
656 (Tex. App.– Houston [14th Dist.] 2015, pet. granted).
COUNT II
I also disagree with the majority’s conclusion that the coercion-of-a-public-servant
statute is facially unconstitutional because it is overbroad. The only way the majority can get
to this conclusion is by employing the overly broad definition of “threat” that it does. But this
strategy ignores both common sense and the requirement to utilize reasonable narrowing
constructions.
As suggested by the State, the most natural and logical definition of threat to employ
in this analysis is the one put forth in Black’s Law Dictionary: “A communicated intent to Perry dissent - Page 5
inflict harm or loss on another or on another’s property.” B LACK’S L AW D ICTIONARY 1203
(7th ed. 2000). We have acknowledged it as an acceptable definition in the past and I do not
agree with any of the majority’s reasoning in discounting the use of this definition here. See
Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). Using the majority’s
broader definition of threat ignores the Legislature’s intent to enact a constitutional statute,
and completely disregards our duty to use a narrow construction in order to avoid a
constitutional violation.1 I believe that the majority does this simply to be able to grant
Governor Perry relief. Because this Court should adopt the Black’s definition of threat, I
cannot agree with its analysis.
Once one employs the correct definition of threat, it becomes clear that the majority’s
argument about the “many” unconstitutional applications of the statute is no longer valid.
Each of the examples that the majority provides of “normal functioning of government” that
is criminalized by the statute would not be susceptible to prosecution when using the logical
and narrower Black’s definition of threat. None of these examples are crimes that actually
need overbreadth protection.2 Where the natural and logical definition of threat is used, and
the examples of the majority would never be prosecuted, there is no chilling effect that can
be attributed to the statute.
1 In enacting a statute, it is presumed that compliance with the constitutions of Texas and the United States is intended. TEX . GOV ’T CODE § 311.021 (2015). 2 The majority does not show that the conduct in any of these examples, if prosecuted, would be protected by the First Amendment and thus the argument that the statute has overbroad application to protected expression is baseless speculation. Perry dissent - Page 6
Because the statute is not overbroad, it should be that, where an individual is
concerned that his prosecution under this statute is not supported by the evidence, it becomes
an issue to be considered once the case has been tried and a conviction occurs. The narrower
and more natural Black’s definition of threat should be used in the sufficiency analyses on
appeal, and whether there is evidence in each individual case to show a communicated intent
to inflict harm or loss will determine that conviction’s validity.
CONCLUSION
While the majority has inaccurately concluded that the prosecution in this case is
politically motivated, it, in turn, has not shown any compunction in scripting an opinion that
establishes entirely new precedent solely in order to vacate the indictment against the former
governor. Obviously it has traded the repercussions of a challenge in the political arena for
the embarrassment of manufacturing an opinion that is not based on either law or fact. And,
unfortunately, the concurring opinions only go on to further support the fairytale authored
by the majority.
The real shame of today’s decision is that while ordinary applicants’ requests to this
Court for writs of habeas corpus are often unfairly rejected or their paths to relief narrowed,
the majority has decided, for the second time in the last two years, to give special treatment
to a government official. See Delay v. State, 465 S.W.3d 232, 234 (Tex. Crim. App. 2014).
For example, in our last session, this Court decided to employ the doctrine of laches to
prevent applicants from obtaining relief for valid constitutional claims. Ex parte Smith, 444 Perry dissent - Page 7
S.W.3d 661 (Tex. Crim. App. 2014). Also, many on this Court want to limit the ability to
obtain a writ of habeas corpus even further. See Ex parte Marascio, 471 S.W.3d 832,833-40
(Tex. Crim. App. 2015) (Keasler, J., dissenting).
In addition to reaching an incorrect conclusion in this case, the majority also fails to
grant the appropriate remedy for a pretrial habeas issue such as this. We have no authority
to instruct the district court to dismiss the indictment on remand, rather we should allow the
trial court to decide how to proceed based on our opinion.
Because I do not agree with the majority’s conclusion as to either issue before us and
would affirm the judgment of the court of appeals as to Count I and reverse its judgment as
to Count II, I respectfully dissent.
Meyers, J.
Filed: March 2, 2016
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