Rick Perry Writ of Habeas Corpus

8/11/2019 Rick Perry Writ of Habeas Corpus

1/60

NO. DlDC14-100139

EX PARTE

$

$

$

$

$

IN THE DISTRICT

COURT

OFTRAVISCOI.]NTY

39OTHuDICIAL DISTRICT

THE BUZBEELAW FIRM

AnthonyG. Buzbee

State

arNo.24001820

JPMorganChase

ower

600TravisStreet,Suite7300

Houston, exas 7002

(713)223-s393

phone)

(7r3)223-s909fax)

[email protected]

BAKERBOTTSL.L.P.

ThomasR. Phillips

State arNo. 00000102

98 San acinto

lvd.,

Suite

1500

Austin,Texas 870l-4078

(slz)

322-2565

phone)

(5r2)

322-8363

fax)

[email protected]

BOTSFORD

&

ROARK

David L. Botsford

State arNo.02687950

1307West

Ave.

Austin,Texas 8701

(sr2)

479-8030

phone)

(sr2)

479-80a0

fax)

F tr"i

-

T't

llls:

':*

UO

of

T;'.'i-

:':::'|;,

Texa

AUe 5

20llr

^,

.-

q'.|1e

Arnaiia

toungu'ez'itrend

JAMES

RICHARD

UR[CK''

PERRY

APPLICATION

FOR

PRETRIAL

WRIT

OF

HABEAS

CORPUS


2/60

INDEX

TO

APPLICATION

FOR

PRETRIAL

WRIT

OF HABEAS

CORPUS

I .

Na tu reOfRe l ie fSough t

. . . . .1

II.

What

s

At

Stake

n This

Case

. . . . .

3

m. Jur isdict ionAndRestra int . . .

. . . .3

IV.

Claims

For

Relief

A.

Cla imsAsTo

oun t lOfThe lnd ic f inen t

. . . . . . .4

B.

Cla imsAsToCount I IOf

he lnd ic tment

. . . . . . .5

V .

P rocedu ra lH is to ry

. . . . . . . . . 7

VI. ThelndictmentviolatesTheconstitutionalseparationofPowers .......9

VII .

ThelndictmentVio latesTheSpeechOrDebateClause

.. . . . . .13

VIII.

Section

6.03(a)(l)

s Unconstitutional

n ts Face .

.

. . .l7

A.Section36.03(a)(l)IsUnconstitutionallyOverbroad

.......

18

B.

Section

6.03(a)(l)

s Void

for

Vagueness.

.

. .22

1. The

vagueness

f the

statutes highlighted

y the

fact thata threat o do a legalact doesnot

constitute

duressorcoerc ion

.. . .23

2.

Section

6.03(a)(1)'s

ack

of scienter equirement

rende rs i t vague

. . . . . . 26

3. The

vagueness

f Section

6.03(a)(1)s

further

illustrated

by

otherstatutes

n

the same hapter fthe

TexasPenalCode.

. . . .27

IX.

Section

6.03(a)(1)

s

Unconstitutionals Applied . . . . .Zg

A.

An

As-Applied

Challenge

Is Appropriate,

Given

the

Circumstances

f

ThisCase

.. . . . . .28

B.

Section

36.03(a)(1)

s

Unconstitutional

s Applied To The

Circumstances

f

this Indictment

. . .

30


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X.

Section

39.02(a)(2)

s

Unconstitutional

s Applied

. . . . . . 33

X I .

Conc lus ion

. . . . . .35

XII. Prayer orRelief . . . .36

XII .

Ver i f icat ion

.. . . . . . .36

XII I .

Cert i f icateOfService

.. . . . .37

Exhibit

l: Indictment

& Redacted

ersonal

ond

.

Tab

1

Exhibit

2:Text

Of Relevant

enal

CodeProvisions

. . Tab2

Exhibit

3: June

14,2013

ProclamationVeto

& Veto Statement)

. . . . . Tab 3

Exhibit

4:

June

0,20I3

Austin

American

Statesman

rticle

. . Tab 4

ii


4/60

NO.

D1DC14-100139

EX

PARTE

JAMES

RICHARD

URICKU

PERRY

$

$

$

$

$

IN THE

DISTRICTCOURT

OF TRAVIS

COIINTY

39OTH UDICIAL

DISTRICT

APPLICATION

FOR

PRETRIAL

WRIT OF HABEAS CORPUS

TO THE

HONORABLE

uDGE

OF SAID

COURT:

Comes

ow,

APPLICANT,

AMES

RICHARD

TRICK''

PERRY, yand hrough

iscounsel

of record,

David

L. Botsford,t

nd

pursuant

o Texas

Code

of

CriminalProcedure,

rticles11.05

t

seq.,presentshisApplicationFor PretrialWrit of Habeas orpus, ndasgroundshereforwould

respectfully

how

his

Honorable

Court

he ollowing:

I.

NATURE

OF RELIEF

SOUGHT

This

is

a

pretrial

application

or writ

of habeas

orpusseeking o bar

the

prosecution

f

Applicant,

Govemor

ames

Richard

Rick"

Perry,

on multiple

constitutional

rounds.

Some

of

these

grounds

elate

o defects

apparent

n the aceof the statutes

pon

which

this

indictment

was

based,

nd

hey

could

be raised

by any

person

harged

with

an alleged iolation

of

their

erms.

As

Applicantwill

demonstrate,

ection

6.03(a)(1)

f

the TexasPenal

Code s fatally

vague

and

overbroad,

ailing

to

give

reasonable

otice

o any official aboutwhat s

permissible

conduct

n the

onehand

andwhat

s felonious

onduct n the other. For hese easons.

he

relief

soughtn

this

application

hould

e

granted

nd

he ndictment

ismissed s o Count

I,

regardless

of whether

Section

36.03(a)(1)

s vague

or

overbroad

s o GovemorPerry n

particular

SeeEx

I

For

purposes

fthis

petition,

David

L. Botsford

s

actingas he

petitioner.

SeeTex.CodeCrim.

Proc.,

rt. 1

I2,11.13,

nd11.14.


5/60

parte

ll'eise,55

S.W.3d

617,620

Tex.

Crim.App.

2001)

defendant

s entitled o file

for

pretrial

habeas

eliefwhen

he

alleges

that hestatute

nder

whichheor she s

prosecuted

s

unconstitutional

on its

face; consequently,

here s

no valid

statuteand

he charging nstrument s void").

In addition

both

Section

6.03(a)(l

and

Section 9 lz(a)arevague

ndoverbroad

sapplied

to this

case, nd

hat

s rue

egardless

f whether

hey

might

pass

onstitutional ustern some ther

circumstances.

The

statements

nd actions

alleged

n the indictrnent, f

made, were

made n

Governor

Perry's

fficial

capacity.

orcing

Texas'

head f stateo

standrial on charges

f violating

provisions

hat

are

clearly

unconstitutional

s applied

o any Governorwould have he same

deleteriousmpacton he efficientoperation f state overnment,ow and n the uture,as orcing

him to

stand rial

on charges

ased

n statutes

hat are

unconstitutionaln all instances.

hus, or

reasons

f

constitutional

magnitude,

ncluding

heseparation

f

powers

octrineundamental

o our

democratic

ystemof

government,

overnor

Perry

shouldhave he

sameopportunity

or relief

through

habeas orpus

n

this case

f the

provisions

remerely oid asapplied

as

he would

have f

they

were

acially

unconstitutional.

Even

f the

statutes

nderwhich

the

Governor s indictedwere

not unconstitutional

n their

face

or as

applied, he

facts

alleged

by the State

still fail

on

heir ace

o set orth anyviolation

of

those

tatutes. hose

rguments

ill not

beaddressed

ow,because

retrial

habeas

orpuss

not he

remedy

or

factual nadequacy,

venwhen

hat inadequacys

asblatantas t is here. Rather,

f

this

case

were

o

go

forward,

hey

will

be raised n

a motion o

quash

he

ndictment.

his application,

therefore,

ssumes

or

purposes

f securing

mmediate elief

that the facts hat arealleged

n the

indictment

did occur,

but nothing

n

this application

houldbe construed

san admission

1)

that

Govemor

Perry

did in fact

commit such

acts,or

(2)

that

proof

beyonda reasonableoubt

hat he


6/60

committed

some

or all

of suchactswould

constitute

nyevidencehat

anv

aw

of this State

had

been

violated.

il .

WHAT IS AT

STAKE

IN THIS CASE

Texans

deserve

hat

heir State's

onstitution

uarantees:

Governorwith the

power

o

approve

r disapprove

f

bills,

or disapprove f

certain temsof appropriatedunds,based n his

considered

udgment

of what

bestserves

he

public

nterest. The exercise

f this

veto

power

s

perhaps

hekey

imitation

on egislative

ower;

ndeed,

he

veto

power

s

an ntegral omponent f

the checksandbalanceshatassure ur freedom

y

limiting

the

powers

of eachdepartment f

government.

Subjecting

ny

sitting

Govemor o

a criminal

prosecution

nd njecting he

udiciary

into

a

political

disputewould

be

an unprecedented

ssault n this cherished eparation f

powers,

andwould

mpose

n ntolerable

nd ncalculable

hilling effecto4 the reeexercise f legitimate

constitutional owers

y

future

governors.

By seeking

o criminalizenotmerelyhe

veto

tself,but

the

Governor's

xplanationfor

t aswell, thisprosecutionlsoviolates heGovemor'sightsunder

the Free

Speech

Clauses

f the United

States ndTexas

Constitution nd he

Speech

r

Debate

Clause

f theTexas

Constitution.

hese iolations

re

contrary oth o

Texas' ommihnent

o

open,

transparent ovemment

nd

o the People's

ight to be

ully

informed

about

heir

Govemor's

hough

processes

n

fulfilling

one

of his core

goveming

duties. Accordingly, he relief sought n this

application

s

urgent, ecessary,

ndentirely

warranted, nd he Courtshould

grant

t forthwith.

ilI.

JURISDICTION

AND

RESTRAINT

This

Court

has

urisdiction

over he subject

matterof this

writ by virtue of the authority


7/60

vested

n the

district

courts

of the

Stateby Article

V,

Section

8

of the TexasConstitution

nd

Chapter

1

of the

Texas

Code

of

CriminalProcedure.

GovemorPerry

s under estraint

y virtue

of the ndictrnent

eturned

n August

15,2014,

nd

by the bondsetby this Court.

See

Tex.

Code

Crim.

Proc.

art.

11.22.

Copies f

bothare

attached

s

Exhibit 1.

ry.

CLAIMS FOR

RELIEF

Govemor

Perry

s indicted

underSection

39.02(a)(2)

Count

) and

Section36.03(a)(1)

(Count

I)

of

the Texas

Penal

Code. The

full text

of these tatutes,ogetherwith the

definitions

relating hereto rom othersections f theTexasPenalCode,are attached s Exhibit 2. These

particular

rovisions

re

unconstitutional

n heir

aceand,

given

he acts

allegedn the ndictment,

unconstitutional

sa matter

of law

asapplied

o GovemorPerry.The ndictment

mustbe dismissed

as fatally

defective

and

void,

and he

prosecution

arred or theseor the other easons

et

orth

herein:

A.

As

to Count

I

of the Indictment:

1.

Section

39.02(a)(2)

iolates

he Fifth

and FourteenthAmendments

o the

Constitution

f the

United

States

sapplied

because

ts

prohibition

of

"misuse"

f

"govemment

roperty

. . thathas

ome nto

he

Governor's]

ustody r

possession"

is

unconstitutionally

ague

as a matter

of law if extendedo a mere

gubernatorial

veto

of any

appropriation

f State

unds.

2.

Section

9.02(a)(2)violates

rticle ,

Sections0

and

19oftheTexas

Constitution

as

applied

because

ts

prohibition

of

"misuse"

f

"government

roperty

.

.

that

has

come nto

the

[Governor's]

ustody

r

possession"

s unconstitutionally

agueasa

matterof law if extendedo a meregubernatorialeto of anyappropriation f State

funds.

3.

Section

39.02(a)(2)

s unconstitutional

s appliedbecauset infringesupon

he

Governor's

bsolute

onstifutional

ight

andduty o approve r disapprove

items

of

appropriation"

nder

Article IV,

Section14

of the TexasConstitution.


8/60

4. Section

9

02(a)(2)

s

unconstitutional

sapplied ecause

t violates

heseparation

of

powers

between

he

various

departments

f

government

hat s

guaranteed

o the

People

y

Article

II,

Section

1

of the

Texas

Constitution.

5.

Because

govemor

acts n

a constitutionally-prescribed

egislative

apacityn

vetoing egislation,Section39.02(a)(2)s unconstitutionals appliedbecauset

violates

he

protection

fforded

y

heSpeech

r

Debate

lause

fArticle

II, Section

2l of

the

Texas

Constitution.

6.

Because

he

Govemor

was

acting

in

a

legislative

capacity n

vetoing the

appropriation

t issue,

Count

of

the ndictment

s void

becauset is

necessarily

based n

evidence rivileged

by

the Speech

r

DebateClause

f Article II,

Section

21 of

the Texas

Constitution.

7. Because

he

Govemor

was

acting

in a legislative

capacity

n

vetoing

he

appropriation

t ssue,

rial

on

Count

of the ndictment

s barred s

a matter

of

law

becausehe Statecouldonly sustaints burden, f at all, by introducing vidence

privileged

by

the Speech

r Debate

Clause

f

Article

III,

Section T

of TheTexas

Constitution.

8. Section

9.02(a)(2)

s

unconstitutional

s

applied

ecause overnor

erry ad

he

right

to

do any

and

all

acts

of which

he s

charged

n the

exercise f his rights

under

the Free

Speech

uarantee

fthe First

Amendment

o the

Constitution

ofthe United

States.

9.

Section

9.02(a)(2)

s unconstitutional

s

applied ecause

ovemor

erry ad

he

right to

do

any

and

all acts

of which

he

s charged

n

theexercise

f his rights

under

the FreeSpeech uaranteef Article

I,

Section

of the Texas

Constitution.

B.

As to

Count

II

of

the Indictment:

l.

Section

6.03(a)(1)

iolates

he First

andFourteenth

mendments

o the United

States

Constitution

ecause,

senacted

nto

aw it is

unconstitutionallv

verbroad

on its face.

2.

Section 6.03(a)(1)

iolates

Article

, Section

oftheTexasConstitution

ecause,

asenacted

nto

aw,

t is

unconstitutionally

verbroad

n ts face.

3.

Section 6.03(a)(1)

iolates

he

First

andFourteenth

mendments

o the

United

States

Constitution

ecause,

s

enactednto

aw, t

is unconstitutionally

ague

n ts

face.

4.

Section

6.03(a)(1)

iolates

rticle

,

Section

oftheTexasConstitution

ecause,

as

enactednto

law,

t

is unconstitutionally

ague

on ts face


9/60

5.

Section

6.03(a)(1)

iolates

he

First,

Fifth,

andFourteenth

mendments

o

the

United

States

Constitution

ecause

t

is

unconstitutionally

ague

asapplied.

6.

Section

36.03(a)(l)

violates

Anicle

I,

Sections

, 10, and 19

of

the

Texas

Constitution

ecause

t is

unconstitutionally

ague

asapplied.

7.

Section

6.03(a)(l)

violates

he First,

Fifth,

andFourteenth

mendments

o the

United

States

Constitution

ecause

t

is

unconstitutionally

verbroad s

applied.

8. Section

36.03(a)(1)

iolates

Article

I,

Sections

, 10, and

19 of

the

Texas

constitution

because

t

is

unconstitutionally

verbroad

sapplied.

9.

Section

36.03(a)(1)

s unconstitutional

s applied

becauset

infringes

upon he

Governor's

bsolute

onstitutional

ight

andduty

o approve r

disapprove

items

of

appropriation"

nder

Article

[V, Section

14

of the Texas

Constitution.

10. Section36.03(a)(1)s unconstitutional

s

applied

becauset

violates he

separation

f

powers

between

he

various

departments

f

government

hat is

guaranteed

o

the People

y

Article

I,

Section

of

the

Texas

Constitution.

11.

Section

6.03(a)(1)

s

unconstitutional

s

applied ecauset

violates

heSpeech

or Debate

Clause

f Article

III,

Section

1 of

the Texas

Constitution.

12.

Count

II

of

the Indictment

s

void

as

a matter

of

law

because,

ontrary o

requisites

f

Section

.02(b)

of the Penal

Code, t makes

o

attempt o negate

he

statutoryexception

etforthin

Section

6.03(c)

or"amemberofthe overningbody

of

a

governmental

ntity,"

which ncludesGovemorPerry'sactions sa member f

the Legislative

Department

ith

regard

o his actions

n approving

r

disapproving

of

"items

of

appropriation"

nder

Article

IV,

Section14

of the Texas

Constitution.

Because

ection

9.02(a)(2)and

ection

6.03(a)(1)

reunconstitutional,

itherontheirface

or

as

applied,

r

both,

he

ndictment

gainst

Governor

Perrymust

bedismissed

nd he

prosecution

bared. Additionally,

as

o

Count I,

the ailure

o negate

heexception

ontained

n Section 6.03(c)

renders

t

fatally

defective.

The

elief

sought

hould

be

granted,

he ndictment

ismissed, nd he

prosecution

arred.


10/60

v.

PROCEDURAL

HISTORY

The

State

iled

his

wo-count

ndictrnent

nAugust15,2014.

See xhibit

1. In

a

nutshell,

the two

counts

collectively

allege hat

on

or about

June 10 through 14,2013,

GovernorPerq,

threatened

o veto

funding

hat had

been

appropriated

y the Texas

Legislatureor

continued

operation

f the

Public

ntegrity

Unit

(PU)

of the Travis

CountyDistrict Attorney's

Office unless

Rosemary

ehmberg

esigned

er

office

as District

Attorney,

and hat he did veto

hat funding.

Despite

being

convicted

f driving

under

he nfluence

with

a bloodalcohol evel

of almost

hree

times he egal imit, engagingn egregious ost-arrestonduct isrespectfulf law

enforcement,

pleading

guilty

andbeing

sentenced

o 45

days n

ail,

shedid not

resign,eitherbefore

or after he

Governor

n

fact

exercised

is veto

on June14,2013.

SeeExhibit

3

(Proclamation,

eflecting

Veto

and

Veto

Statement).

ndeed,

Lehmberg

emains

n

offrce

oday.

According

o

Count

ofthe

ndictment,

hemere

actofthe veto

violatedSection

9.02(a)(2)

because

overnor

Perry

intentionally r knowinglymisused" ver$200,000 f governmentunds

by

"dealing

with

such

property

contrary

o an

agreement nder

which

[he]

held

such

properry

or

contrary

o the

oath

of

office he

ook

asa

public

servant."

SeeExhibit 1. But,

asa matterof law,

Governor

Perry

never

had

"custody

r

possession"

f

anyof

property,

et

alone he rrndswhich he

Legislature

ppropriated

uring

he egislative

ession.

As definedby

Section1.07(a)(39) f the

Texas

Penal

Code,

possession"

s

"actual

care,

custody, ontrol,

or management." t no

point

during

he

appropriations

rocess

o

undsappropriated

y he

Legislature

ome nto

heGovemor's

care,

ustody,

ontrol,

or management.

ndeed,

s

his Courtcan

udicially

notice, budget oes ot

even

exist

until

the

Govemor

pproves

nd

signs t, and

even hen, t does ot

become ffective ntil


11/60


12/60

allegations:

hat

Governor

Perry

determined

o veto

he unding

of thePIU;

that at east

onemember

of his

staff

communicated

hat ntention

o State

Senator

irk Watson,

whose

district ncludes

portion

of

Travis

County;

hat

a reporter,

fter eaming

f that ntention

n

or about

une10, 2013,

published

storythat

ame

veningthatthe

overnorhadallegedly

threatened"

o veto

he unding

unless

ehmberg

esigned,

ee

Exhibit

4;

andthat

n June14,2013,Governor

erry

exercised

is

constitutional

ower

and

vetoed

he ine-item

appropriation

or thePIU.

Even aking

each

f these

allegations

s

rue,

both

counts

fthe

indictment

iolate

he

United

States ndTexas

Constitutions.

vI.

THE INDICTMENT VIOLATES THE CONSTITUTIONAL

SEPARATION

OF POWERS

Both

counts

f

the ndictment

revoid

under

Article

I, Section

of theTexas

Constitution,

which provides:

The powers

of

the

Government

f the

State

of Texasshall

be divided

nto three

distinct

departments,

ach

of which

shall

be confided

o a

separate ody

of

magistracy,

o

wit:

Those

which

are Legislative

o

one; hosewhich

areExecutive

to

another;

nd

hose

which

are

Judicial

o another;

ndno

person,

r collection

f

persons, eing of oneof these

departments,

hall exercise

ny

power

properly

attached

o

either

of

the

others,

xcept

n

the nstances

ereinexpressly ermitted.

Under

his

provision,

"any

attempt

by one

department

f

government

o interfere

with the

powers

ofanotherisnullandvoid."

eshellv.

tate,739

.W.2d

46,252(Tex.

rim.App.

g}T)(quoting

Ex

parte

Giles,502

S.W.2d

74,780 Tex.

Crim.App.

1974)).

ln

Ex

parte

Lo,424

S.W.3d

0,28

(Tex.

Crim.

App. 2014),the

ourt

of CriminalAppeals

recognized

hat

Article

II,

Section

is

"generally

usceptible

o violation n

oneof two ways:"

(1)

when

one

branch

f

government

ssumes

r

s

delegated

power

more

properly

attached

o

another

branch,

or

(2)

when

one

branch

unduly

nterferes

with

another ranch

so hat the

otherbranch


13/60

cannot

ffectively

exercise

ts constitutionally

ssigned

owers.

By requiring

he

udiciary

o scrutinize

gubernatorial

eto,

his

prosecution

nduly

nterferes

ith

the

constitutionally-assigned

owers

of

another

branch, hus violating he Texas

Constitution's

explicit

separation-of-powers

uarantee.

he

power

to veto, including he line-item

veto of

appropriations,

s

oneof the

coreduties

ssigned

o a Texas

Governor y the Constitution.

Article

IV,

Section

14

provides

n

part:

If any

bill

presented

o the

Governor ontains

everal

tems

of appropriationemay

object

o one

or more

of

such tems,

ndapprove

heother

portion

of the

bill.

In

such

case e

shallappend

o thebill,

at he ime

of signing t, a

statement f the tems o

which

he

objects,

ndno item

so objectedo

shall akeeffect.

.

Article

IV,

Section

14 imposes

o limits

on the

Governor's

ight

and duty to veto; he

exercises

nbounded

iscretion

n exercising

is veto

power,

subject

nly o the egislature'sight

to override

hat

veto. As

one

scholar

oted:

The

veto,

particularly

he

tem

veto, s

perhaps

hemost

significant

of the

Texasgovernor's

onstitutional owers

.

. .

[B]ecause

e has no significant

budgetary owers

. . the tem

veto

s the

primary

method

by which he exercises

omecontrol over

theamounts ndpurposes

f

state xpenditures."

GeorgeD. Braden,

heConstitution f

theState

of Texas:

An

Annotated

ndComparative

nalysis

339

1977).

For

over

100

years,

t has

beenestablished

hat n

exercising is veto

power,

he

Governor

is

acting

nalegislative

capacity,

nd hus

asa member

f a

goveming

ody.

See essen

Assocs.,

Inc.

v. Bullock,531

S.W.2d

93,

598

Tex.

1976)

Governor's

veto

power

s

a egislativeunction

andnotanexecutivefunction");Fulmorev.ane,l40S.W.405,411Tex.1911); icklev.McCall,

24

S.W.

265,268

Tex.

1893).

The

veto

power

s also charactenzed

sa

egislative

ctby federal

law,

Boganv.

Scott-Harris,523

.S.44,55 1998),

ndby he aws

of other tates. ee, .g.,Homan

l 0


14/60

v. Branstad,812

.W.2d

623,629

lowa}}l2).2

Nothing

n

the

Texas

Constitution

r

laws

permits

he

udicial

department

o

scrutinize

Governor

Perry's

olitical

decision

o veto

he

PIU's

unding.

This

s, ndeed,

he

ypeof

"political

question"

hat

Courts,

ncluding

he

Supreme

ourt

ofthe

United

States,

ave

raditionally

eclined

to

review

as

nonjusticiable.

ee

enerally

Nixon

v.

United

States,

06U.5.224

1993);

Goldwater

v.

Carter,444

.S.

996

1979);

olemanv.

iller,307

U.S.

433

1939);

uther

.Borden,48

.S.

I

(1

How'

l)

(1849).

As

explainedinBaker

.

Carr,369

U.S. 186,2171g62),the

upreme

ourt

hasgenerally

ecognized

he

doctrine

n

cases

with

a textuallydemonstrableonstitutionalommitment f the ssue o a co-ordinate

political

department;

r a ack

ofjudicially

discoverable

ndmanageable

tandards

for

resolving

it;

or the

impossibility

of

deciding

without

an

initial

policy

determination

f

a kind

clearly

or nonjudicial

iscretion;

r the mpossibility

f

a

court's

ndertaking

ndependent

esolution

ithout

expressing

ack

ofthe

espect

ue

co-ordinate

ranches

f

government;

r anunusual

eed

or unquestioning

dherence

to

a

political

decision

already

made;

or

the

potentiality

of

embarrassment

rom

multifarious

pronouncements

y various

departments

n one

question.

Texas

courts

have

had

lifile

need

to

articulate

the

concept

as thoroughly

as the

United States

SupremeCourt,but theyhave ikewiseconsistentlyeclinedo decidecases

hat raise

political

questions.

The

Court

of

Criminal

Appeals

as

held

hat he

Governor's

evocation

f

pardons

nd

"

See

lso,

e.g.,

Barnes

.

Secretary

f

Admin.,586

N.E.2d

958,961

Mass.1992)

"it

is

for

the

Legislature...to

etermine

inally

which

social

objectives

r

programs

re

worthy

of

pursuit,

he

Governor

mayproperly

se

hisvetopower

o accomplish

egislative-type

oals);

State x el.

Cason

v. Bond,495

S.W.2d

385,

392

(Mo.

1973) "[W]hen

he

Governoi

akes

part

n

appropriation

procedures

[by

vetoing

egislation],

e s

participating

n

the egislative to".ir

. . . .");

Stal" ex el.Diclaonv.Saiz,308P.2d205,211 N.M.

1957)

"when

heGovernor

xercises

is

ight

of

partial

veto

he s

exercising

quasi-legislative

unction");

Spoknne

rain

& Fuel Co.

v. Lyttaker,109

p.

316'320 (Wash.

1910)

"ln

approving

nd

disapproving

aws,

n the

exercise

f his

constitutional

prerogative,

he

executive

s

a component

art

of the

Legislature

");

State

ex rel.

Ws. Senate .

Thompson,424N.W.2d385,39l

Wisc.1988)("Thepartialvetopowerinthisstatewasadopted...to

make

t

easier

or

thegovernor

o

exercise

hat

his

court

has ecognized

o

be

his

quasi-legislative'

role,

and

o

be

a

pivotal

part

of

the

omnibus'budget

bill

process.").

l l


15/60

paroles

aises olitical,

not

udicial,

questions.

n Ex

parte

Ferdin,

183

S.W.2d466,467-68

Tex.

Crim.

App.

l9a4),

it

refused

o

entertain

urisdiction

over

a complaint

about

what

s in

effectan

appealrom

he

act

ofthe

Governorn revoking

he

parole,"

ecause

ourtsack

"power

over

heacts

of

the

Govemor

so ong

ashe

s within the aw

and

he matter nvolved s one

of

his

udgment

and

discretion

n

the

performance

f his duty

assigned

o him

by the Constitution . . . Whether

r not

his acts

areharsh,

ll

advised,

ndarbitrary,

s not

a matter or

this court

o decide

. . ." See

lso

Ex

parte

Pitt,

206

S.W.2d

596,

597

Tex.

Crim.

App. lg47)

("The

sole

arbiterof the

wisdomof the

revocation

of

the

Governor's

onditional

ardon]

s

the Governor");

x

parte

Meza,185

S.W.2d

444,445Tex.Crim.App.1945)same).

The

Texas

Constitution

eposeshecheck

on

a Governor's

eto

power

not

n the

udiciary,

but in

the

Legislature

nd

the

people.

Should

either

deemveto decisionso be erroneous

r

improper,

he

Texas

Constitution

rovides

hem

a legislative

or

political

countermeasure.

he

Legislature

may,

f it

remains

n

session, verride

gubernatorial

eto.

Tex.

Const., rt. V,

$

14.

If the

Legislature

oncludes

hat

he

governoCs

ctions

resuffrcientlyeprehensible,

heHousemay

impeach

nd

he

Senate

ay

ry and,upon

conviction,

emove im or her rom office.

Tex.Const.,

art. XV,

$$

1-5.

And

voters

candefeat t

he next

electiona

Governor

with whose

olicy

choices

theydisagree,

r

they

canelect

egislators ho

will

join

in

sufficient

trength

o override npopular

vetoes.

Allowing

a

criminal prosecution

f a

political

decisionwhere here s no allegation

f

briberyor

demonstrable

omrption

undermines

he basic

structure

f state

overnment.

The

ndictment

onflicts

and

nterferes

ith

Article I,

Section

andArticle V.

Section

14

of

the Texas

Constitution.

t must

be dismissed.

t2


16/60

VII.

THE

INDICTMENT

VIOLATES

THE

''SPEECH

OR

DEBATE''

CLAUSE

Article

III,

Section

2l

of the

Texas

Constitution

rovides

hat

"[n]o

member

shall

be

questioned

n any

otherplace

or words

spoken

n

debaten eitherHouse."

This s Texas'

Speech

or Debate

Clause,

hich

s similarto

Article

,

Section ,Clause

oftheUnitedStates onstitution.3

On

the ew

occasions

hen

Texas

ourts

aveconsidered

he state

Speech r DebateClause,

hey

have

ndicated

hat

t has

he

same cope

s he federal

lause.

SeeCanfieldv.Gresham,7

S.V/.

390,392-93

Tex.

1891)

citing

Kilbournv.

Thompson,l03

.S.168,204

18S0));

owles . Clipp,

920S.W.2d,752,758Tex.App.-Dallas1996, rit denied);ee lsoTenney.Brandhove,34l

U.S.

367,

375

1951)

noting

ommon

urpose

f Texas

nd ederal peech

r

Debate

lauses).

The

Clause

s

"read

broadly

o effectuate

ts

purpos

s,"Doev.McMillan,4l2

U.S.306,

3 1

(1973),which

re

[t]o

prevent

ntimidation

f legislators

ythe

Executive

ndaccountabilitybefore

a

possibly

hostile

udiciary,"

d. at

316,and o

"free[] the egislator

rom executive

nd

udicial

oversight

hat

ealistically

hreatens

o controlhis

conduct

sa

egislator."

Gravelv.

(Jnited

tates,

408

U.S.

606,

618

(1972).

The

Clause

originated

s a responseo the British

Crown's

use of

criminal

prosecution

o harass olitical

opponents

n Parliame t. See

Jnited

tates . Johnson,383

u.s. 169,

81

1966).

Borrowing

rom ederal

nalyses,exas

ourtshaveerivedromthe

Clause broad

octrine

of

egislative

mmunity.

Seenre

Perry,60

S.W.3d

57,859

Tex.

2001).

Not onlyareoral

speech

and

debate rotected,

ut so

arewritten

eports

nd egislative otes.

SeeCanfield,l7 S.W.

at392-

93

(citing

Ktlbourn,l03

U.S.at204);McMillan,4l2

.S.at 311.

nfact,

heClauseprotects

ll

'Article

I, Section

,

Clause

ofthe U.S.

Constitution

tates

n relevant

art

hat

"for

any

Speech

or Debate

n

either

House

Senators

ndRepresentatives]

hallnotbe

questioned

n

anyother

Place."

13


17/60

communications

hat

are

an ntegralpart

ofthe

deliberative

ndcommunicative

rocesses"

nvolved

in

a legislative

ct,

ncluding

communications

ith

or among

aides.Gravel,408

U.S. at625;

see

also n

re Perry,60

S.W.3d

t 860-61.

The

Clause

lso

protects

ny

government

fficial,

evenmembers

f the executive

ranch,

insofar

s hey

engage

n

"legitimate

egislative

ctivity."

Tenney,341

.S. at376

see lso n re

Pery,60

S.W.3d

at

860

holding

hat

heAttorney

General,

omptroller,

ndLandCommissioner

enjoy

egislative

mmunity

or

"legitimate

egislative

unctions"

performed

while

servingon the

Legislative

Redistricting

oard).

Legislative

ctivity

ncludes

udgetaryndappropriations

atters.

SeeBogan,523U.S.at 55-56 affordingegislativemmunity o citymayor or "introduction f a

budget

and

signing

nto

aw

anordinance,"

"discretionary,

olicymaking

ecisionmplicating

he

budgetarypriorities

fthe

city"

and

formallylegislative,

venthoughhe

asanexecutive

fficial");

Shade

.

US. Congress,942F.

upp.

d43,43

(D.D.C.

2013)

alpropriation

f funds sooa

ore

legislative

unction").

As already

hownn

Section

I above,

egislative ctivity ncludes

xercises

of the

Governor's

eto

power.

See essen,53I

.W.2d t 598.a

Any

criminal

prosecution

ased

n his

protected

egislative

ctivity s

barred.

[t

is beyond

doubt

that

the

Speech

r Debate

Clause

protects

against

nquiry into acts

hat occur n the regular

a

To

be sure,

he

protection

of the

Clause

nd ts

accompanyingmmunity

has imits. It

doesnot

apply

o actions

hat

are

"no

part

of the

legislative

process

r function,"even f

performed

y

legislators.

United

States

.

Brewster,

08

U.S. 501,526

1972).

For

example, legislatorwho

takes

a bribe

may

be

prosecuted

ecause

acceptance

f

the

bribe s theviolation

of thestatute, otperformance

fthe

llegal

promise,"

husmaking

t

"unnecessaryto

nquire

nto how

the

egislator]

spoke,

ow

he

debated,

ow

he voted,

or

anything

e did in the

chamber r

in

committee." d.

at

527

See lso

Mutcher

.

State,5l4

S.W.2d 05,

914-15

Tex.

Crim.App. 1974)

affirming

state

legislator's

onviction

or

bribery;

holding

hat he

criminalstatute, rticle 159,

wasauthorized

y

Article

XVI,

Section

4l

of the

Texas

Constitution

nd hat Article XVI, Section41

was not in

conflict

with

the

Article

III,

Section

1

of the Texas

Constitution;

nd ejectingSpeech

r

Debate

Clause

rotection

ased

n

United

States .

Brewster).

l 4


18/60

conrse

f the

egislative

rocess

nd nto hemotivation

orthoseacts." UnitedStates

. Brewster,

408

U.S.501,

525

1972).

Thus, egislative

ctsmaynot hemselvesecriminalized. eeUnited

States

. Helstoski,

442

U.S. 477, 488

1979).

Nor may a

prosecution roceed

f it necessarily

dependsuponevidenceoflegislativeactsorthemotivesforthem.

eeJohnson,383U.S.atl84-85.

In fact,

evidence

f a legislative

ct may not

even

be

introducednto evidencen an otherwise

permissible

rosecution.

elstoski,442U.S.

t 488. Nor canofficialsbe equiredo testiff

about

their egislative

ctivities. n

re Perry,60

S.W.3d t 858,861.5

This

protection

s not

eviscerated ven

by allegations f

a bad motive. A charge hat

legislative

onduct

was

"improperly

motivated"

s

"precisely

what he Speech r

DebateClause

generally

orecloses

rom

executive nd

udicial

nquiry."

Johnson,383

.S.at 180. Otherwise,

immunity

would

be held hostage

o

"a

conclusion

f

the

pleader"

or

"a

ury's

speculation s

to

motives."

Bogan,523

U.S. at 54

(observing

hat he Court

had

applied

mmunity evenwhen

a

legislator

singled

out the

plaintifffor

investigation

n order o

intimidateandsilencehe

plaintiff

5

Other

States

rovide

similar

protection

n civil, criminal,and

quasi-criminal

atters.See,

.g.,

State

. Danla,vorth,672P.2d

48, 5l

(Alaska

Ct. App. 1983)

even

n a criminal ase,

[o]nce

t

is

determined

hat

[a]

legislative

unction . . was

apparently

eing

performed,

he

propriety

and he

motivation

or

theaction

aken, swell as

hedetailof theacts

erformed,

re

mmune rom

udicial

inquiry"

quoting

UnitedStatesv.owdy,479F.2d213,226

4thCir.

1973)));

'Amatov. uperior

Court,

167 CaI.

App. 4th

861

(2008) ('The

district attomey

acknowledgeshe

principles

of

legislative

mmunity

.

. but contendsmmunity

applies nly

o civil suits,anddoesnot

extend o

criminal

prosecutions.

e

disagree."); tatev. Neufeld,926 P.zd 1325,

1337

(Kan.

1996)

("Congressmen

. . are mmune

rom iability for their

actions

within he egislative phere

. . even

though their conduct, f performed n other than legislative contexts,would in itself be

unconstitutional

or otherwise

contrary o criminal

or civil

statutes."

internal quotation

marks

omitted));

tatev.

Holton,gg7

A.2d828,851

Md.

Ct. Spec.

pp.2010)

"we

holdthat,

s

amatter

of common

aw, ocal

egislators

may nvoke hat same

rivilege

n a criminal

prosecution");

rons

v. R.L Ethics

Comm'n,973

.zd

1124, 131

(R.I.

2009)

"as

ong

as

[a

legislator's]hallenged

actions,

tripped

f all considerations

f ntentandmotive,were egislativen character,

hedoctrine

of absolute egislative

mmunity

protects

hem from such

claimsrr there, an ethics

agency

enforcement

ction).

1 5


19/60

and

deter

and

prevent

im

from

effectively

xercising

is constitutional

ights"

citing

Tenney,34l

U.S.

at

377)).

"[]t

is

'not

consonant

ith

our scheme

f

government

or a

court o inquire nto

the

motives

f legislators."'

nre

Perry,60

S.W.3d

t 860

quoting

ogan,523

U.S.at 55). Simply

put:

"The

claim

of

anunworthy

urpose

oes

ot

destroy

he

privilege."

Tenney.

41U.S.

at377.

The

remedy

or

those

who

disagree

ith a

veto,no

matter

how

earnestly,s

political,

not

udicial.

Forthese

easons,

ttempts

o convert

nescapablypolitical

isputes

ntocriminal

complaints

must

be foreclosed

t

once

without

urther

udicial

proceedings.

number

f federal

ases ave

required

ismissal

f

a

grand

ury

indictment

remised

n

privileged

Speech

r Debate

materials,

thusbarringa rial hatwould equirehegovernmento introduce vidence fprivilegedSpeechr

Debate

materials.

For

example,

n United

States

. Swindall,

7I

F 2d

1531

1

th

Cir. 1992),

former

congressman

asprosecuted

or committing

erjury

before

a

grand

ury.

Id. at 1534.

The

central

allegation

was

that

he

lied

to the

grand

ury

abouthis

knowledge

f various

money-

launderings

tatutes.

d.

atl535-37.

To

prove

his

knowledge,

he

prosecution

ntroduced

vidence

before

he

grand

ury

and

at trial

about

he

congressman's

ctivities n

Congress,ncluding

his

activity

on

a banking

ommittee.

d.

at 1539-40.

The

courtof appeals

eversed

he congressman's

conviction

and

held

hat

he

prosecution

iolated

he

Speech

r

Debate

Clauseor

two

reasons:

l)

"the

AUSA[] question[ed]

[the

congressman]

efore the

grand

ury

about his

committee

memberships"

n

an

effortto

showhis

knowledge

f money-laundering

tatutes,

nd(2)

reference

[was]

made

o

[the

congressman's]

ommittee

memberships

oth n the

grand

ury

proceedings

nd

at

rial."

Id.

at

1543.

The

courtheld

hat

"the

emedy

or

theviolations

f the

privilege

s

dismissal

of the

affected

ounts."

d.

at1543.

See

lso

Johnson,383

.S.at 185

holding

hatSpeech

r

Debate

material

was mproperly

resented

o the

grand

ury

and hus

ordered new

rial

"purged

f

t 6


20/60

elements

ffensive

o

the

Speech

r

DebateClause");

rewster,408

U.S.

at 526-27

holding

hat,

onlybecause

conviction

n

that

case ouldbe

sustained

ithout inquir[y]

nto he

egislative]

act

or

ts

motivation,"

ould

an ndictment

f

a congressman

hich eferred

o legislative cts

stand, s

"[t]o

make

a

prima

facie

case

under

his

indictment,

he

Government eednot show any

act of

[Brewster]

ubsequent

o the

comrptpromise

or

payment,"

.e.,

a bribe).

Theseprinciples

equire

mmediate ismissal

f the

ndictment

againstGovernor

Perq'.

Count

is

predicated

pon

a egislative

ct

of

Governor

erry theveto

andCount I involves

the

Governor's

lleged

discussions

ith

his

staff

regardinghe

anticipatedegislative

ct and ts

announcement.hus, he ndictment ecessarilyeekso impose riminal iability for, andcompel

evidence

elated

o, acts

hatare

privileged

y he

Speech

r Debate lause nd

egislative

mmunity.

The

broad

hield

erected

y

heSpeech

r

Debate

lause

nd egislativemmunitycannot

e

pierced

by the ndictment.

Should

he face

of the

ndictment

not

be sufficient

o

sustain

his

assertion,

he

Court

should

eview

he ranscripts

f

the

grand

ury

testimonyn camera.But

in

either

event,

he

indictrnent

must

be

dismissed

nd

he

prosecution

aned.

vIII.

SECTION

36.03(a)(1)

S T

NCONSTITUTIONAL

ON ITS FACE

Count

I

of the ndictment

llegeshat

GovernorPerryviolated

Section 6.03(a)(1)

f the

TexasPenal

Code

by

"threatening"

o veto unding

or

the PIU

if

Lehmberg

id not

resign

her

post

as

District

Attorney.

For

the reasons

iscussed

elow,

Section

36.03(a)(1) s facially

unconstitutional,

he

Governor's

ndictment

or its

alleged

iolation

s

therefore oid, andCount II

mustbe

dismissed.

As

articulated

n

the

separate

pinionof four

udges

n

Karenev

. State,281S.W.3d 28

l 7


21/60

(Tex.

Crim.

App.

2009)

Cochran,

.,concurring),

[a]

facialchallenges based olelyupon he

ace

ofthe

penal

statue

nd hecharging

nstrument"

nd

considers

nly he ext"ofthe

statute

nd

not

itsapplicationtotheparticularcircumstancesofanindividual."

d.at435(quotinginpartl6C.J.S.

Constitutional

Law

$

113,

at 149

(2005).

Thus,

a

party

makinga facial

challenge

seeks

o

vindicatenot

only

his own

rights,

but also hose

of otherswho maybe adverselympacted y the

statuten

question."

d.

footnote

mitted)

See lsoComm'nfor awyerDisciplinev.Benton,9il}

S.W.2d 25,437-438

Tex.

1998).

Section

36.03(a)(1)

s

unconstitutional

n ts face. It is

overbroad ndvoid for vagueness,

as hose ermshavebeenarticulated y the UnitedStates upreme ourt, he Courtof Criminal

Appeals, nd

many

other

courts

n Texas

ndacross

he

nation.

A.

Section

6.03(a)(1)

s

Unconstitutionally

verbroad.

The

First

Amendment,

hich s

applicable

o the stateshrough heDueProcess lause

f

the Fourteenth

mendment,

irginia

v. Black,538

U.S. 343,358

2003),

rovides

hat

"Congress

shall

makeno aw

.

. . abridging

he reedom

f speech."

Statutesegulatinghecontent f

protected

speech r expression

ue subject

o

"strict

scrutiny,"

meaninghat o avoidbeingdeclarednvalid,

such

egulations

must

constifute

he

"least

estrictive

means"

f effectuating

"compelling

state]

interest."

Ashcroft

.Am.

Civil

Liberties Jnion,535

.S. 564

200D.6

6

The

First

Amendment

demands

hat

content-basedestrictions

n speech e

presumed

nvalid

.

. . and

hat

the

Govemment

ear

he burden

of showing heir constitutionality."Ashuoft v. Am.

Civil LibertiesUnion,542US.656,660 2000;ExparteLo,424S.W.3d 0, 5 (Tex.Crim.App.

2014),reh'gdenied(Mar.

9,2014).

Aspeechregulationiscontent-basedifitdefinestheregulated

speechbyreferencetoitscontent."

angrav.Brown,566F.3d5I5,52ln.15(5thCir.2009)(citing

Supreme ourt

opinions);

x

parte

Lo,424

S.W.3d

t

15n.12. A regulation

r statute

s content-

based

[i]f

it is necessary

o look

at the

content f the speechn

question

o decide f the speaker

violatedthelaw."

xparteLo,424

.W.3d

t15n.I2;Rangra,566F.3dt52ln.15;.Sincehere

it

is necessary

o look

at he

content

f

the

speech the alleged

threat"

hat he ndictment sserts

to be

"coersi6nr'-

Section 6.03

s a

content-basedestriction n FirstAmendment peech.

1 8


22/60

Corepolitical

speech,

uch

as heveto

andalleged

eto hreat

at ssuen

thiscase,ies

at he

very

heart

of

First

Amendment

rotection.

See

Mclntyre

v. OhioElections

Comm'n,

14

U.S.334,

347

(1995)

a

court

must

apply

exacting

crutiny"

o any aw

burdening

ore

political

speech);

Meyer

v.

Grant,486

U.S.

4I4,422 (1983)

First

Amendment rotection

s

'oat

its

zenith"

when

applied

o

core political

speech,

nd

statutes

urdening

uch speech

re subject

o

"exacting

scrutiny'').

To

succeed

n

a ypical

acial

attack,

defendant

ustestablish

that

no set

of circumstances

existsunderwhich

[thestatute]

ouldbevalid."

nitedStatesv.

alerno,481U.S.

3g,745(1987);

Stevens,559 .S.at 472- However,n thecontext f the FirstAmendment,heSupreme

ourt

recognizes

a

second

ype

of facial

challenge,"

hereby

aw may

be nvalidated

soverbroad

f

"a

substantial

umber

f its

applications

re

unconstitutional,

udged

n relation

o the

statute's

lainly

legitimate

weep."

Stevens,559

.S.

at473

quoting

Wash.

tateGrangev.

Wash.

tateRepublican

Party,552

U.S.

442,449,

.6

(2003)

internal

uotation

marks

mitted)).

Thus,a

statutes facially

unconstitutional

ndviolative

of the

overbreadth

octrine f

"it

prohibits

a substantial

mount

of

protected

peech."

united

states .

williams,

553

u.s. 285, 292

200s).

The

overbreadth

octrine

'seeks

to

strike

a balance

etween ompeting

ocial

costs." 1d

(citing

Virginiav.

Hicks,539U.S.

13, I

19-120(2003).

Ontheonehand,thethreatofenforcement

of

an overbroad

aw

deters

eople

rom

engaging

n

constitutionally

rotected

peech,nhibiting

he

free

exchange

f

ideas.

On

the other

hand,

nvalidating

a law that n

someof its applications

s

perfectly

onstitutional

particularly

a aw

directed

t conduct o

antisocialhat t has

beenmade

criminal

has

obvious

harmful

effects.

n

order

o maintain

nappropriate

alance,he Supreme

Court

has

vigorously

enforced

he equirement

hat

a statute's

verbreadthe

substantial, otonLy

t 9


23/60

in

anabsolute

ense,

ut

also elative

o the

statute's

lainly

egitimate

weep.

SeeBoardofTrustees

of

State

Univ.

fN.Y.

.Fox,492

U.S.

469,485

1989);

roadrickv.

Hahoma,4l3

.S.601,615

(1973).

A law

that s

overbroad

annot

be validly

applied

against ny

ndividual. Lawrence

H.

Tribe,

American

Constitutional

aw

512-32,1036

zded.

1988).

Section

36.03(a)(1)

makes

t

an

offense or

an individual

o,

"by

means

f

coercion

. .

influencef]

or attempt

o influence

public

servant

n

a specific

exercise f his

official

power

or a

specific erfonnance

fhis

official

duty

or

[to]

nfluence[]

r attempt[]o nfluence

public

servant

to violate

he

public

servant's

nown

egal

duty."

Under

Section1.07(aX9)

f the Penal

Code,

"coercion"s definedas"athreat, owever ommunicated:"

(A)

to

commit

an

offense;

(B)

to inflict

bodily

njury

n

the

uture

on he

person

hreatened

r another;

(C)

to

accuse person

f

anyoffense;

(D)

to

expose person

o hatred,

ontempt,

r ridicule;

(E)

to

harm

he

credit

or

business

epute

f

any

person;

r

(F)

to take

or withhold

action

asa

public

servant, r

to cause

public

servant o

take

or withhold

action.

Some

pplications

f Section

6.03(a)(1)

nd1.07(a)(9)

reclearlyegitimate.

or

example,

riminalizing

he

coercion

of a

public

official

through

he threatof violence aises

no

serious irst

Amendment

oncerns,

ince

state

maycriminalize

true

lreats"

that s,

"statements

where he speakermeanso communicate serious xpression f an intent o commit an actof

unlawfulviolence"-withoutviolatingtheFirstAmendment.

irginiav.Black,538U.S.343,359

(2003);

Watts

v.

United

States,394

U.S.

705,

707-08

1969) "[w]hat

is

a

threat must

be

distinguished

rom

what is

constitutionally

rotected

peech" ecause

f the

"profound

national

20


24/60


25/60

legislative

rocess

n

dealings

ith

he

departments

ndagencies

f

state

ovemment,

nd n

dealing

with

members

fthe

other egislative

ranch,

would,

were

his

aw

o

beapplied

swritten,give

way

to

a

rigid,

silent

formalism

n

the

legislativeprocess

cast

your

votes,

yea

or nay,

without

complaint,

explanation,

r negotiation,

r else isk going

o

prison.

Because

he iteral

wordsof

Section

6'03(a)(1)

rohibit

a

substantial

mount

f constitutionallyrotected

olitical

speech,

nd

the

State

annot

ustain

ts

burden

o

prove

hat

hispresumptively

nconstitutional,

ontent-based

statute

atisfies

strict

scrutiny,"

t is

overbroad

n its

faceand

cannot

be validly

applied

o

any

individual.

Count

I

mustbe

dismissed.

B. Section 6.03(a)(1)sVoid for Vagueness

A

statute

s

void for

vagueness

f it

"either

orbids

or

requires

hedoingof

anact n

terms

so

vague

hat

men

of

common

ntelligence

must

guess

s

o ts meaning

nd

differ

as

o ts

application."

EIyv.

State,

82

S.W.2

416,419 Tex.

Crim.App.

1979);

apachristouv.

ityofJocksonville,405

u.s.

156

1971);

onnallyv.

General

onstruction

o.,269

u.s.

3s5

(1926).

Overwhelming

aseaw

demonstrates

hat

criminal

awsmust

be

sufficiently lear

n

at east

three espects.

First,

a

person

f

ordinary

ntelligence

mustbe

given

a reasonable

pportunity

o

knowwhatisprohibited.

raynedv.

ocl{ord,408U.S.

04,108

1 72);Kramerv.

rice,7lZF.2d

174,

180

5th

Cir.

1983),ehearing

n

banc

ranted,716F.2d,2S4

5th

Cir. 1983),

rant

of

relief

ffirmed,723

F.2d

164

5th

Cir.

1984);

tate

.Markovich,

7S.W.3d

74,279

Tex.

Crim.

App.

2002);

ong

v.

State,93

S.W.2d

85,287

Tex.

Crim.

App. 99

).

Second,

he

aw

must

establish

determinate,xplicitguidelinesor awenforcementoprevent rbitrary

nforcement

Grayned,4)B

exception

y

alleging

hatGovemor

Perry

ndLehmberg

were

not

members

fthe same

governing

body

of a

govemmental

ntity,"

see

Exhibit

I

at

page

2

(emphasis

dded), hus

reflecting

an

interpretation

uite

different

rom

the iteral

anguage

f the exception.

22


26/60

U.S.

at 108-109;

ramer,7l2F.2d.

t176-177;

arkovich,

7

S.W.3d

t279; ong,931

.W.2d

at 287.

Finally,

where

First

Amendment

reedoms

are implicated,

as here, he

law

must be

sufiEciently

efinite

o avoid

chilling

protected

xpression.

Grayned,408

.S.at 109;

Markovich,

77

S.W.3d

at279;

Long,931

S.W.2d

at287.

"When

a

statute

s capable

f reaching

irst

Amendment

reedoms,

he

doctrine

f

vagueness

demands

a greater

egree

f specificity

han n

othercontexts."'

ramen

Tl2 F.2d

at I77

(citations

nd

quotation

mitted).

Greater

pecificitys

required

o

preserve

dequately

he ight

of free

expression

ecause

u]ncertain

meanings

nevitably

lead

citizens

o

steer

ar

wider

of the

unlawful

zone

han

f the

boundaries

f the forbidden

reas

wereclearlymarked."Grayned,408 .S.at 109 internal llipsis ndquotationmarks mitted).

Moreover,

when

a

vagueness

hallenge

nvolves

First

Amendment

onsiderations,

criminal

statute

may

beheld

acially

nvalid

even

hough

t may

not

beunconstitutional

sappliedo

the

defendant's

conduct.

Gooding

.

wlson, 405

u.s.

5ls

(1972);

Kramer,

7

12

F.2dat 176n.3.s

As

illustrated

elow,

Section

6.03(l)(a)

ails

to

give

air notice

of the

prohibited

onduct

and acks

definite

guidelines

or

enforcement,

iven

hedefinition

f

"coercion"

ontained

n Section

1 07(a)(9)(F).

herefore,

t is

unconstitutionally

ague.

1.

The

vagueness

f the

statute

s highlighted

by the

fact

that a

threat

to do

a legal

act

does

not

constitute

duress

or coercion.

Section

36.03(a)(1)

makes

t

an

offense or

an individual

to,

"by

means

of coercion

...influence[]

r

attempt

o influence

public

servant

n a

specific

xercise f his

official

power

or

a specificperformance

f his

official

duty

or

[to]

influence[]

or attempt[] o influence

a

public

servant

o violate

he

public

servant's

nown

egal

duty." The

ndictment

llegeshat

Governor erry

8

This

s,

of course,

ontrary

o

the

normal

hierarchy

f burdens,

san

"asapplied"

hallenges

normally

considered

asier

o sustain

han

a

"facial"

challenge.

23


27/60

violated

Section

36.03(a)(1)

nd

1.07(a)(9XF)

y "threatening"

o

veto funding or

the Public

Integrity

Unit

unless

ehmberg

greed

o resign.

Even

assuming

for purposes

f argument

nly)

that

Govemor

Perry

did

in fact

"threateno'

veto

n this

case, ndeven

assuming

hat Lehmberg

ad

resigned

under

a

such

hreat,Texas

courts

have

repeatedly eld that resignation

nder

such

circumstances

oesnot

constituteduress."

InCrouchv.

Civil

ServiceCommission

fTexas

City,thecourtnotedhat, f apublic

official

is actually

orced

o resign

rom office

under

duress,

hat esignation'omay,f course, ewithdrawn

or

avoided

'

45g

S.W.2d

4gl,4g4(Tex.

Civ.App.-Houston

14th

Dist.]1970,

rit refd n.r.e.)

(citingWillbornv.Deans,240 .W.2d

91,793

Tex.

Civ.App.-Austin

1951,

rit refd n.r.e.)).

However,

where

a

parly

threatens"o remove public

official from

ofhce

by doingwhat

he

party

has

a egal

ight

o do,

he

public

seryant's

esignation

annot onstitute uress.Willborn,240

S.W.

2d

at795

("[A]

threat

o

do what one

hasa legal

ight

o do, asbringingsuit

n

court o

enforcea

claimedcivilright,cannotconstituteduress.");

eealsoDannellyv.Bard,62S.W.2d301,308(Tex.

Civ.

App.-Beaumont

1933,

writ refd)

(citing

additional ases).

ln

Willborn,

wo

individuals

Mr.

Montgomery

andMr.

Whitehead),

cting

at the specific

request

of

the

county

udge,

the

county

attorney

and the district attorney,attempted o

procure

Willborn's

resignation

s the

Sheriff of

McCulloch

County. In doing so, Montgomeryand

Whitehead

urged

Willborn

to resign as

Sheriff.

They stated

hat

if he refused o do so, legal

proceedings

ould

bebrought

o remove im from

office. Willborn did

resign,

ut

he

subsequently

brought

egal

proceedings

o recover is

office,

claiming isresignation adbeennduced

y duress.

The

court

of

appeals

ffirmed

he rial court's

denial

of relief on the basis hat herewasno duress

asa

matter

of

law

because

he requesting

fficial had

a egal ight to

bring

such

proceedings.

24


28/60


29/60

346. Because

anArsdel

made

reasonedhoice

etweentwo

alidly mposed

lternatives,

uress

wasabsent

sa matterof law." Id.

(citingWillbornv.

Deans,

upro;Molinar v.

Western

lectric

Co.,525F.2d521(1stCir.

975);Cosbyv.UnitedStates,4t7F.2dl345(Fed.Ct.969);andAutera

v. United

tates,389.2d

815

Fed.

Ct. 1968).

2. Seetion

6.03(a)(1)'sack of

scienter

equirement enders

t

vague.

The anguage

f Section 6.03(a)(1)

ndSection .07(aX9XF)

defrning

coercion")

eflects

that

the statutes

o

not require

a culpablemental

state.

The anguage lso

eflects

hat they do not

plainly

dispensewith

a culpablemental

state. Theseomissions

eighten he

unconstitutional

vagueness

f Section 6.03(a)(1).

he ndictment's ssertion

hat

Governor

Perry

n fact had wo

culpablemental

states

eveals

hat

he

prosecutor

ecognized

he

statute's

efect,

ut his effort to

curethe agueness

y mposinghis

wnopinionofwhatmental

tatestheprovisions

ctuallyrequire

cannot

aveSection 6.03(a)(l).

Section

6.02 of the TexasPenal

Code

provides

n subsection

a)

that

a

person

does

not

commitan

offense nless e

engages

n

conductwith oneof four

culpablemental

tates.

Subsection

(b)

provides

hat

"if

the definitionof

an offense oes ot

prescribe

culpable

mental

state, ne

s

nevertheless

equired nless he

definition

plainly

dispenses

ith any mentalelement."

When

a

culpable

mental

state

s required,

ection .02(c)

rovides

hat

"intent,

knowledge, r

recklessness

suffices

o establish riminal esponsibility."

These hreeculpable

mentalstates

re defined

n

Section .03(a)n terms f "nature fconduct,"circumstancesurroundtheonduct," nd/or result

of conduct." The

precise

ssuesaised

y

this ndictment whether

Section 6.03(a)(1)

equires

a

culpable

mental

state, smandated y Section

.02(a)

ndasdefined

by Section

.03,

and

f so,

whethert

relates

o the

nature

fthe conduct,hecircumstances

urrounding

heconduct,

nd/or he

26


30/60

result

of the

conduct

have

not been

ecided

y any

appellate

ourt n Texas.

The

ack of

clarity

regarding

he culpable

mental

state equired

or a violationof

Section

36.03(a)(1)

upports

he

proposition

hat t is

unconstitutionally

ague.

[T]he

constitutionality f

a vague

statutory

tandard

s

closely elated

o whether

hat standard

ncorporatesrequirement

f

mens ea."

Colautti

. Franklin,

39

U.S.379,394 1979) Act's

vaguenessas

compoundedy

the fact

that

the Act

subjects

a

party]

to

potential

criminal iability

without regard o faulf');

Morissette

v. United

States,342

U.S. 246

(1952)

(requiring

scienter xcept n

public

welfare

offenses).

According

o the

United

States

upreme

ourt, he standard

resumption

n favor

of a

scienterequirement a culpablementalstate shouldapply o eachstatutoryelementhat

criminalizes

therwise

nnocent

onduct

n order

o

complywith

due

process.

UnitedStates .

X-

CitementVideo,

nc.,513U.S.64,70(199$;Staplesv.UnitedStates,s11U.S.600,618

1999;

Morissette

.

United

States,342

U.S. 246,270 (1952).

The absence

f a culpable

mental

state

supports

he

proposition

hat

he

statutes

void for

vagueness,

s t fails

o

give

a

person

air

notice

of what

conduct

s

prohibited

by the

statute

and

allows

or completely

rbitrary

enforcement

f

the

statute),

oupled

s

t is

with

the absence

f

any equirement

hat

he

"coercion"

e unlawful.

3.

The

vagueness

f Section

36.03(a)(1)

s further

illustrated

by

other statutes

n

the same

hapter

of the Texas

PenalCode.

The

language

of two

other

statutes

n

Chapter36

of the Texas Penal

Code

should

be

compared

o

Section

6.03(a)(l),given

he ndictment's

tilization

of the definition

of

"coercion"

in

Section

1.07(a)(9)(F).

ection36.04 impropernfluence) nd36.06 obstructionr retaliation)

both

contain

imiting

language

hich

doesnot

appearn

Section 6.03(a)(1). irst,

Section36.04

requires

hat

he

accused

ct

"with

an

ntent

o influence

heoutcome

fthe

proceeding

n hebasis

ofconsiderations

ther han

hose

uthorized

y

aw "

(Emphasis

dded).Considerations

other

han

27


31/60

those

authorized

y

law"

equate

o

"unlawful"

considerations.

econd, ection 6.06 equireshat

the

accused

harms

r hreatens

o harm

another

y anunlawful

ct,"

In

otherwords,Section

6.03

stripped

s t

was

n 1994

of the

equirement

hat

"coercion"

e

"unlawful,"

standsn

stark ontrast

to Sections

6.04

and

36.06,which

both equire

unlawful"

conduct.e

Section

6.03(a)(1),iven

hedefinition

f

"coercion"n Section .07(a)(9)(F)

ponwhich

Count I

is

based,

s unconstitutionally

ague

n ts face.

Count

I

mustbe dismissed.

IX.

SECTION

36.03(a)(1)

S

UNCONSTITUTIONAL

AS

APPLIED

A. An As-AppliedChallenges Appropriate,Given he Circumstancesf this

Case.

In

addition

o being

unconstitutional

n ts

face,Section

6.03(aX1)s unconstitutionals

applied,

given

he

definition

of

"coercion"

n

Section1.07(a)(9)(F).

n

"as

applied"

hallenge,

n

contrastto

afacial challenge,

depends

ponthe

evidence

dduced tatrialorhearing,"

asapplied

to the

party's

articular

ircumstances.

arenev

.

State,281S.W.3d428,435

Tex.

Crim.App.

2009XCochran, .,concurring).Typically,an "asapplied" hallengeo the constitutionality f a

statute

annot

e raised

n a

pretrial

habeas pplication.

Ex

parte

Weise,55S.W.3d617,619-620

(Tex.

Crim.App.

2001).

This

general

ule of

practice

must

give

way n this casebecause f the

constitutional

concerns

eaching

he very

heart

of our

governmental

tructure.

A

full

blown

"as

applied"

hallenge

typically

available nly after he

evidence

asbeen

adduced

t

a hearing

r at

rial

-

is

not necessary,

ecausehe acts eflectedn

the

ndictment

re

suffrcient

o demonstrate

hat

he

statutes

unconstitutional

sapplied.A

pretrial

writ is the only

e

Section

1.07(a)(a8)

fthe Texas

Penal

Codedefines

unlawful"

as

criminal

or tortiousor both

and

ncludes

what

would

be criminal

or tortious

but for

a defense

ot

amountingo

ustification

or

privilege."

28


32/60

adequate

emedy

o

rectifu

he

serious

onstitutional

eficiencies

n

the

current ndictment.

See

Smithv'

Flack,728

S.W.2d

84,792

Tex.

Crim.App.

1989)

orig.

proceeding)"In

some

ases,

remedy

at

law

may

technically

exist;

however,

t may

be nevertheless

o uncertain,

edious,

burdensome,

low,

nconvenient,

nappropriate

r neffective

s o be

deemed

nadequate.").

nlike

in the

ordinary

ase,

he

mere

pendency

fjudicial proceedings

s what mperils

he

constitutional

principles

at

stake;

he

separation

f

powers

s not

threatened

y a

conviction,

ut by injecting

judicial

scrutiny

nto

a

political

dispute.ro

ikewise,

heFree

Speechmplicationsor

this

and uture

Govemors

um

on

whether

riminal

proceedings

an

evenbe

brought, ot on

what heir

ultimate

resultmightbe. ThisCourtshouldaddresshese ubstantiveonstitutionalightson themerits n

order

o

conserve

udicial

resources.

merits

eview

would

alsobe consistent

ith the

prinicple,

well

established

n

federal

onstitutional

aw,

hat

he

overbreadth

octrine hould ot

be

applied o

a statute

under

attack

f

that

statute

s unconstitutional

sapplied

o the

ndividual

challenging

he

statute.

oardofTrustees

fstate(Jniv.

fN.Y.v.

ox,492U.S.+eg,+g+-+g-519S9);

tevens,559

U.S.

at 484

Alito,

J.,

dissenting)

citing

Ohratikv.

OhioStateBarAssn.,436

.S. 447,462

.20

(re78)).

t0

A

trial

without

pretrial

eview

of these

erious

onstitutional

ssueswouldbe

a denial

of the

very

rights

sought

o

be vindicated.

t

is for

this

reason,or

instance,hat

he Supreme

ourthas

created

xceptions

llowing retrial

ppeals

f

denials

f bail,

Stackv.

oyle,342

.S.1,6

(1951),

denials

f

motions

o

dismiss

n

double

eopardy

laims,

bney .

UnitedStates,43l

.S. 651,659

(1977),

and

denials

of

motions

o dismiss

under

he

Speech

r DebateClause. United

States

.

Helstoski,

42U.5.

477,

500

1979).

The

ationale

f

these xceptionss

simple: he ight

o bail

wouldbecomemoot ftherewasnopretrialappeal,

ndbothAbney

nd4elstoskiinvolvedthe

ight

not

to

be ried,

which

could

not be

vindicated

after

atrial. Because

overnorPerry's

as

applied"

challenges

nder

he

Texas

Constitution

ocus

primarily

upon

he ightnot o be ried,he

s n

effect

challenging

he rial

court's

ower

o

procee

. See

Weise,55

.W.3dat620.Accordingly,

his Court

should

hold

that

each

of these

laimsare

cognizable

n this

pretrial

wit

andaddress

hem

on the

merits,

as

opposed

o

postponing

heir consideration

n

connection

ith a

motion

o

quash,

which

is

only

mmediately

ppealable

y

the

state f

the

court were

o

grant

hem.

29

Rick Perry Writ of Habeas Corpus

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