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)
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)
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
8/11/2019 Rick Perry 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
8/11/2019 Rick Perry Writ of Habeas Corpus
3/60
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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.
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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.
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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.
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
11/60
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
24/60
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
28/60
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
8/11/2019 Rick Perry Writ of Habeas Corpus
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
Top Related