No. Pd-1067-15 in the Court of Criminal Appeals of Texas

PD-1067-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/21/2015 9:08:43 PM Accepted 10/22/2015 8:11:43 AM NO. PD-1067-15 ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE JAMES RICHARD “RICK” PERRY, Appellant ______

On Appeal from the 390th Judicial District Court, Travis County, Texas, Cause No. D-1-DC-14-100139 ______

APPELLANT’S BRIEF ON THE MERITS ADDRESSING HIS PETITION FOR DISCRETIONARY REVIEW ______

THE BUZBEE LAW FIRM BAKER BOTTS L.L.P. Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500 600 Travis Street, Suite 7300 Austin, Texas 78701-4078 Houston, Texas 77002 [email protected] [email protected] Telephone: 512-322-2565 Telephone: 713-223-5393 Facsimile: 512-322-8363 Facsimile: 713-223-5909

BOTSFORD & ROARK David L. Botsford State Bar No. 02687950 1307 West Ave. Austin, Texas 78701 [email protected] Telephone: 512-479-8030 Facsimile: 512-479-8040

ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT

Identity of Judge, Parties, and Counsel The following is a complete list of the names and addresses of all parties and counsel in this case.

Trial Judge: Honorable Bert Richardson, sitting by appointment; Court of Criminal Appeals, Supreme Court Building, 201 West 14th Street, Austin, Texas, 78701.

Appellant: Former Governor James Richard “Rick” Perry, c/o Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas, 77002

Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078; and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701 (Lead Counsel on Appeal).

State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511, Austin, Texas, 78701.

Table of Contents

Identity of Judge, Parties, and Counsel ...... i

Index of Authorities ...... iv

Statement of the Case ...... 1

Grounds for Review ...... 3

Statement of the Facts ...... 4

Summary of the Argument ...... 7

Argument...... 10

I. Governor Perry’s Claims Are Properly Cognizable ...... 10

A. The Standard of Review is De Novo...... 10

B. The court of appeals misunderstood this Court’s approach to the cognizability of pretrial habeas claims...... 11

1. This Court’s approach to cognizability is functional...... 11

2. The court of appeals adopted an erroneous “label- driven” approach to deciding cognizability...... 15

C. Under an appropriate analysis, all of Governor Perry’s claims are cognizable...... 18

1. All of Governor Perry’s challenges are the functional equivalent of a facial attack on Section 39.02(a)(2)...... 18

2. The key reasons to permit pretrial habeas review are all present here...... 20

a. Governor Perry’s challenges can be resolved on the face of the indictment...... 20

b. Governor Perry’s challenges to the State’s right to try him at all can only be vindicated in pretrial proceedings...... 21

c. Important policy considerations compel a pretrial resolution of Governor Perry’s constitutional challenges to the indictment...... 22

3. Habeas review is cognizable under the state of the record as recognized by the court of appeals ...... 23

D. If necessary, this Court should extend an exception to the cognizability doctrine...... 29

II. The State’s prosecution of Governor Perry is unconstitutional ...... 30

A. This prosecution violates the constitutional separation of powers ...... 31

B. Count I violates the Texas Speech or Debate Clause and the common-law doctrine of legislative immunity ...... 37

C. The abuse of official capacity statute is unconstitutionally vague as applied to the veto alleged on the face of the indictment ...... 45

Prayer for Relief ...... 48

Certificate of Compliance ...... 49

Certificate of Service ...... 49

TAB 1, Nine Claims Challenging Count I ...... 50

iii

Index of Authorities

Page(s)

CASES Abney v. United States, 431 U.S. 651 (1977) ...... 44, 45

Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) ...... 32

Baker v. Carr, 369 U.S. 186 (1962) ...... 35

Baraka v. McGreevey, 481 F.3d 187 (3d Cir. 2007) ...... 42

Barnes v. Secretary of Admin., 586 N.E.2d 958 (Mass. 1992) ...... 34

Bogan v. Scott-Harris, 523 U.S. 44 (1998) ...... 34, 40, 42, 43

Bowles v. Clipp, 920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ...... 38

Camacho v. Samaniego, 954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) ...... 40

Canfield v. Gresham, 17 S.W. 390 (Tex. 1891) ...... 38, 39

Coffin v. Coffin, 4 Mass. 1 (1808) ...... 38

Coleman v. Miller, 307 U.S. 433 (1939) ...... 34

Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995) ...... 32

Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) ...... 47

D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) ...... 42

Doe v. McMillan, 412 U.S. 306 (1973) ...... 38, 39, 41

Dombrowksi v. Eastland, 387 U.S. 82 (1967) ...... 21, 22, 45

Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) ...... 14, 21, 23, 24

Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005) ...... 10

Ex Parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) ...... 12, 14

Ex parte Elliott, 973 S.W.2d 737 (Tex. App—Austin 1998, pet. ref’d) ...... 13, 37

Ex Parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) ...... 12, 18, 19

Ex parte Ferdin, 183 S.W.2d 466 (Tex. Crim. App. 1944) ...... 35

Ex parte Giles, 502 S.W.2d 774 (Tex. Crim. App. 1974) ...... 32

Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013) ...... 13, 32

Ex parte Halsted, 182 S.W.2d 479 (Tex. Crim. App. 1944) ...... 32

Ex parte Humphrey, 244 S.W. 822 (Tex. Crim. App. 1922) ...... 13, 37

Ex parte Leslie, 223 S.W.2d 227 (Tex. Crim. App. 1920) ...... 13, 37

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ...... 11, 32

Ex parte Mattox, 683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ...... 24, 25

Ex Parte McCullough, 966 S.W.2d 529 (Tex. Crim. App. 1998) ...... 14

Ex parte Meza, 185 S.W.2d 444 (Tex. Crim. App. 1945) ...... 36

Ex parte Pitt, 206 S.W.2d 596 (Tex. Crim. App. 1947) ...... 35

Ex parte Rathmell, 717 S.W.2d 33 (Tex. Crim. App. 1986) ...... 13

Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982) ...... 13, 14, 45

Ex parte Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005) ...... 12, 13, 14, 20

Ex Parte Watkins, 73 S.W.3d 264 (Tex. Crim App. 2002) ...... 14

Ex parte Weise, 55 S.W.3d 617 (Tex. 2001)...... passim

Fulmore v. Lane, 140 S.W. 405 (Tex. 1911) ...... 34

Goldwater v. Carter, 444 U.S. 996 (1979) ...... 34

Gravel v. United States, 408 U.S. 606 (1972) ...... 38, 39

Helstoski v. Meanor, 442 U.S. 500 (1979) ...... 21, 44

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) ...... 11

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981) ...... 40

Homan v. Branstad, 812 N.W.2d 623 (Iowa 2012) ...... 34

In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) ...... 23

In re Perry, 60 S.W.3d 857 (Tex. 2001)...... 22, 39, 40, 42, 43

Irons v. R.I. Ethics Comm’n, 973 A.2d 1124 (R.I. 2009) ...... 42

Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1976) ...... 34, 40

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (Cochran, J., concurring, joined by Price, Womack, and Johnson, JJ.) ...... 20

Kilbourn v. Thompson, 103 U.S. 168 (1880) ...... 38, 39

Langever v. Miller, 76 S.W.2d 1025 (Tex. 1934) ...... 31

Luther v. Borden, 48 U.S. 1 (1849) ...... 34

Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) ...... 32

Mistretta v. United States, 488 U.S. 361 (1989) ...... 13

Mitchell v. Forsyth, 472 U.S. 511 (1985) ...... 22

vii

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) ...... 40

Nixon v. United States, 506 U.S. 224 (1993) ...... 34

Pickle v. McCall, 24 S.W. 265 (Tex. 1893) ...... 34

Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ...... 25

Shade v. U.S. Congress, 942 F. Supp. 2d 43 (D.D.C. 2013) ...... 40

Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1989) ...... 22

Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316 (Wash. 1910) ...... 34

State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71 (2d Cir. 2007) ...... 42

State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. 1973) ...... 34

State ex rel. Dickson v. Saiz, 308 P.2d 205 (N.M. 1957) ...... 34

State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim App. 2011) ...... 12, 19, 28

State ex rel. Wis. Senate v. Thompson, 424 N.W.2d 385 (Wis. 1988) ...... 34

State v. Dankworth, 672 P.2d 148 (Alaska Ct. App. 1983) ...... 42

State v. Holton, 997 A.2d 828 (Md. Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md. 2011) ...... 41, 42

viii

State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) ...... 10

State v. Neufeld, 926 P.2d 1325 (Kan. 1996) ...... 42

State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009) (Keller, P.J., concurring) ...... 31

Tenney v. Brandhove, 341 U.S. 367 (1951) ...... 38, 40, 43

Torres Rivera v. Calderon Serra, 412 F.3d 205 (1st Cir. 2005) ...... 42

United States v. Beery, 678 F.2d 856 (10th Cir. 1982) ...... 44

United States v. Brewster, 408 U.S. 501 (1972) ...... 40, 41, 44

United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973) ...... 42

United States v. Helstoski, 442 U.S. 477 (1979) ...... 39, 41

United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982) ...... 45

United States v. Johnson, 383 U.S. 169 (1966) ...... 39, 41, 42, 44

United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995) ...... 44

United States v. Lanier, 520 U.S. 259 (1997) ...... 46

United States v. Myers, 635 F.2d 932 (2d Cir. 1980) ...... 21, 22

United States v. Renzi, 686 F. Supp. 2d 956 (D. Ariz. 2010) ...... 44

United States v. Rose, 28 F.3d 181 (D.C. Cir. 1994) ...... 21

United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995) ...... 44

United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992) ...... 43, 44

United States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984) ...... 44

Women’s Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003) ...... 43

STATUTES Tex. Penal Code § 39.02(a)(2) ...... 45, 46

OTHER AUTHORITIES

1 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS (George D. Braden ed. 1977) ...... 33

G. DIX AND R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254 (Supp. 2005) ...... 19

Senate Research Center, Budget 101: A Guide to the Budget Process in Texas (Jan. 2013) ...... 26

Tex. Const. art. II, § 1 ...... 17

Tex. Const. art. III, § 21 ...... 18

Tex. Const. art. III, § 49a ...... 25

Tex. Const. art. IV, § 9 ...... 39

Tex. Const. art. IV, § 14 ...... 36, 40

Tex. Const. art. XV, §§ 1-5 ...... 36

TEX. PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254 (Supp. 2005) ...... 19

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry), and pursuant to the Court’s Order of October 7, 2015, presents his brief on the merits addressing his grounds for review, and would respectfully show this

Honorable Court the following:

Statement of the Case In August 2014, a two-count indictment was returned against Governor

Perry, alleging that he violated Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II,

coercion of public servant), and 39.02(a)(2) (Count I, abuse of official capacity) of

the Texas Penal Code by threatening to exercise, and then actually exercising, the

authority vested in the Governor by the Texas Constitution to veto appropriations.

CR4-5. Ten days later, Governor Perry filed an application for pretrial writ of

habeas corpus contesting the legality of his restraint and seeking to bar his

prosecution on both counts, primarily on constitutional grounds. CR11. After the

district court denied relief, CR464-84, he appealed to the Third Court of Appeals.

In a published opinion, that court held that none of Governor Perry’s nine

constitutional challenges to Count I or seven of his eleven constitutional challenges

to Count II were cognizable because they were not “facial,” but merely “as

applied.” Slip Op. at 10-32. The court then granted relief on Count II because the

statute was facially unconstitutional under the First Amendment. Id. at 32-97. The

court found it unnecessary to address Governor Perry’s cognizable, facial vagueness challenges to the statute. Id. at 97.

Governor Perry filed his petition for discretionary review on August 18,

2015, presenting four grounds to challenge the decision that Count I was not cognizable by habeas corpus review. Two weeks later, the State Prosecuting

Attorney, but not the Attorney Pro Tem that presented and sought the indictment, filed her petition for discretionary review attacking the court of appeals’ decision that Count II was unconstitutionally overbroad.1 On October 7, 2015, this Court granted both petitions.2

1 See State’s Petition for Discretionary Review at 2, citing Ex parte Perry, Slip Op. at 97. However, the court of appeals actually held that the statutory scheme “is facially invalid under the First Amendment and is thus unenforceable.” Id. 2 In light of the State’s petition, Governor Perry moved for leave to file a supplemental petition adding grounds for review 5 through 8, which complained of the court of appeals’ decision that seven of Governor Perry’s constitutional claims as to Count II were non- cognizable. This Court granted leave to file this previously-submitted supplemental petition on September 10, 2015, but did not grant review on those grounds. Telephone call from Abel Acosta, Clerk of the Court of Criminal Appeals, to David Botsford, counsel for Governor Perry on October 14, 2015. David Botsford notified Lisa McMinn, State Prosecuting Attorney, of this telephone call immediately thereafter.

Grounds for Review 1. Whether the Third Court of Appeals erred by holding that all nine of Governor Perry’s constitutional challenges to Count I were “as applied” challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?3

2. Whether the Third Court of Appeals erred by holding that Governor Perry’s challenges to Count I based upon Article II, Section I of the Texas Constitution—separation of powers—were “as applied” challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?4

3. Whether the Third Court of Appeals erred by holding that Governor Perry’s challenges to Count I based upon Article III, Section 21 of the Texas Constitution—Speech and Debate Clause and common law legislative immunity—were “as applied” challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?5

4. Whether, even if all of Governor Perry’s constitutional challenges to Count I were in fact “as applied” challenges, the Third Court of Appeals erred in failing to recognize that the same rationale that requires “exceptions” for other “as applied” challenges—specifically prosecutions that would constitute double jeopardy or would be barred by limitations—should apply, with even greater force, to a prosecution based solely on a defendant’s exercise of conduct protected by the Speech and Debate Clause and the Separation of Powers provisions of the Texas Constitution and the common law doctrine of legislative immunity?6

3 See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73. 4 See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73. 5 See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73. 6 See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73.

Statement of the Facts On August 15, 2014, a Travis County grand jury returned a two-count indictment against then-Governor James Richard “Rick” Perry. The indictment alleged that Governor Perry broke the law by threatening to veto an appropriation item and subsequently issuing a veto. CR4-5. Count I, which alleges an Abuse of

Official Capacity under Section 39.02(a) of the Texas Penal Code, states:

On or about June 14, 2013, in the County of Travis, Texas, James Richard “Rick” Perry, with intent to harm another, to wit, Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney’s Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into defendant’s custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.

CR4-5. The gist of this charge is that Governor Perry “misused” government

property by vetoing funding for the Travis County Public Integrity Unit (“PIU”).

CR4-5. If the words of the indictment left any doubt that the charge might

somehow encompass some other conduct, the State quashed that doubt by

conceding that the gravamen of Count I is the veto. In its “Bill of Particulars and

Amendment of Indictment,” filed in response to a suggestion from the trial judge,

the State explained: “Defendant Perry misused his gubernatorial power to veto a

legislatively-approved appropriation of funds for the Public Integrity Section of the

Travis County District Attorney Office.”(emphasis added).7 That document further explained that Governor Perry allegedly “misused government property that was subject to his custody and possession in that he used the lawful power of gubernatorial veto for an unlawful purpose, to wit: eliminating funding for the

Public Integrity Unit after Ms. Lehmberg refused to resign from her elected position as Travis County District Attorney.” CR5 (emphasis added).8

The indictment appears to allege that Count I is a first degree felony offense, based on the rationale that the revenues that would subsequently enter the State

Treasury but (as a result of the veto) not be expended would exceed $200,000. But the veto power is an intangible right of the Governor without discernable monetary value, and certainly not the value of the amount of whatever appropriation was vetoed. Thus, even if Governor Perry had committed a criminal offense by exercising his constitutional responsibility to exercise the veto when he thought appropriate, such offense would properly be classified a Class C misdemeanor under Section 39.02(c)(1).9

On August 19, 2014, Governor Perry was processed by the Travis County

7 March 2, 2015, Supplemental Clerk’s Record at 4. 8 A second count, which alleged that Governor Perry committed Coercion of a Public Servant under Sections 36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code, was dismissed by the court of appeals based on the facial unconstitutionality of the statute. The Court has granted the State’s petition for discretionary review challenging that judgment.

Sheriff and released on bond pending trial. CR8-10.

On August 25, 2014, Governor Perry filed an Application for Pretrial Writ of Habeas Corpus (the “Application”). He challenged the legality of his restraint and specifically sought “to bar the prosecution” on both counts. CR14. The

Application presented nine constitutional claims as to Count I. CR17-18,10 and

sought dismissal and a bar to any further prosecution as a remedy. CR49.

The district court gave the State almost three months to respond, and the

State filed its response on November 7, 2014. CR274. Governor Perry filed a reply to the State’s response on November 17, 2014. CR391.

Fourteen nationally-known constitutional scholars filed an amicus curiae brief in support of Governor Perry’s Application. CR367-90. The amici supported

Governor Perry’s prayer for dismissal of Count I on two grounds: (1) that the constitutional doctrine of Separation of Powers precluded the Legislature from criminalizing the exercise of a constitutionally authorized gubernatorial veto; and

(2) that Governor Perry cannot be prosecuted for his veto because he is entitled to absolute legislative immunity for any exercise of his veto power. CR375-84.11

On January 27, 2015, the district court denied the Application without a

9 See March 2, 2015 Supplemental Clerk’s Record at 38. 10 These nine constitutional claims are set forth in the court of appeals opinion at 6-7 and reproduced at TAB 1. 11 The amici also supported Governor Perry’s prayer for dismissal of Count II on the ground that it criminalizes speech protected by the First Amendment. CR384-89.

hearing. CR464-84. The court ruled that none of Governor Perry’s constitutional challenges to Count I were cognizable in a pretrial habeas proceeding because they raised merely as-applied, not facial, constitutional arguments. CR468-73. While the court acknowledged that Perry’s arguments were “compelling” and “may be relevant at a later time,” it declined to reach their merits, stating that “the court’s hands are tied” under its reading of this Court’s precedents regarding cognizability.

CR472-73.

Governor Perry timely appealed to the Third Court of Appeals. The constitutional scholars (with some additions) who had filed an amicus curiae brief in the district court renewed their support of Governor Perry’s prayer for dismissal of Count II. Amici urged the same two grounds as it had in the district court.

On July 24, 2015, the court issued an opinion and judgment.

Summary of the Argument

The court of appeals quoted, with seeming approval, the district court’s

observations that Governor Perry’s claims are “compelling,” “unique,”

“important,” and “certainly deserv[ing] of careful consideration in an appropriate

forum.” Slip Op. at 8 (quoting CR472-73). But like the district court, the court of

appeals believed that this Court’s “binding precedents” prevented consideration of

these claims in a pretrial habeas corpus proceeding. Id. at 2, 25-32, 97. Both

courts concluded that the label “as applied,” regardless of the context in which it is

used, requires the denial of any pretrial habeas relief (unless the claim falls into one of two discrete exceptions to the “facial/as-applied” dichotomy). See Id. at 25-

32, CR471-73. This approach was wrong at every turn.

To begin with, all of Governor Perry’s constitutional claims are cognizable under the principles and policies previously pronounced and currently employed by this Court. Far from the “label and go home” approach of the courts below, this

Court evaluates cognizability based on substance, not mere form. It makes a multi- faceted inquiry about whether considering the grant of extraordinary relief before trial would ultimately advance the sound administration of justice. When such an inquiry is conducted on the face of this record Governor Perry’s are clearly cognizable.

One important consideration for this Court has been whether a pretrial review is essential to prevent the irremediable loss of constitutional rights. Like other claims that must be considered before trial—such as double-jeopardy or limitations—Governor Perry cannot adequately assert his constitutional rights here by merely interposing them as defenses at trial. Like those claims, many of the constitutional principles Governor Perry invokes here, such as the Separation of

Powers, the Speech and Debate Clause, and legislative immunity, assert “that the trial court lacked the power to proceed” on the charges in the first instance. And like double-jeopardy and limitations, these asserted rights cannot be protected

unless they are addressed and resolved before trial.

A second consideration for this Court is judicial economy. In fact-bound cases, the outcome-determinative questions must await trial for resolution. But here the opposite is true. Judicial economy is served by considering Governor

Perry’s challenges now, because his legal arguments will wholly pretermit the need

for a trial on Count I if any of his grounds persuade the Court.

Third, and related to judicial economy, this Court has considered whether

the applicant would be entitled to immediate release from further proceedings if he

prevails to be an important justification for pretrial review. Governor Perry

certainly meets this test; if he prevails on any arguments regarding Count I, and the

lower court’s dismissal of Count II is not disturbed, then the prosecution against

him must be dismissed.

Finally, even assuming arguendo that Governor Perry’s claims were not of

the type that this Court has already recognized as cognizable, the Court should

clarify the law to permit immediate resolution of the merits of his challenges.

Governor Perry’s constitutional claims pose fundamental questions about any

governor’s authority to exercise one of that office’s core constitutional

responsibilities—the review of legislative acts, including the possibility of veto.

The basic comity that one branch of government owes to its coordinate branches

compels a prompt and conclusive answer to these questions.

When the merits of Governor Perry’s challenges are addressed, the outcome

is clear—the Constitution prohibits this prosecution against Governor Perry.

Accordingly, this Court should grant the writ of habeas corpus and dismiss this

unfortunate and misguided prosecution.

Argument

I. Governor Perry’s Claims Are Properly Cognizable The court of appeals misapprehended the nature of Governor Perry’s as-

applied challenges. Because these challenges can be decided from the face of the

indictment, unlike typical as-applied challenges which require development of a

factual record at trial, Governor Perry’s as-applied challenges are cognizable in

pretrial habeas. All the factors underlying Texas habeas jurisprudence support

cognizability here. Indeed, the most wasteful and prejudicial course would be to

proceed to trial with the legally appropriate means of pretrial resolution so close at

hand.

A. The Standard of Review is De Novo. Every aspect of this case is subject to de novo review by this Court.

First, whether an issue should be addressed by habeas review, rather than by

an appeal after trial, is a purely legal determination that appellate courts review de

novo. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005); see also

State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (standard of review is

de novo for legal determinations that do not turn on evaluation of witness’s credibility or demeanor or on disputed facts).

Second, on the merits, Governor Perry’s claims are also subject to de novo review, because the constitutionality of a statute is also a pure question of law. See

Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

Finally, any questions concerning the application of law to facts “when a

court confronts important, clearly defined issues of first impression” are considered

de novo. Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997).

For all these reasons, a trial on Count I could add no clarity to this record for

purposes of constitutional review.

B. The court of appeals misunderstood this Court’s approach to the cognizability of pretrial habeas claims.

1. This Court’s approach to cognizability is functional. This Court has recognized that “[p]retrial habeas should be reserved for

situations in which the protection of the applicant’s substantive rights or the

conservation of judicial resources would be better served by interlocutory review.”

Ex parte Weise, 55 S.W.3d 617, 620 (Tex. 2001). The Court has identified three

categories of cases in which the writ is available:

First, the accused may challenge the State’s power to restrain him at all. Second, the accused may challenge the manner of his pretrial restraint, i.e., the denial of bail or conditions attached to bail. Third, the accused may raise certain issues which, if meritorious, would bar prosecution or conviction.

Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (footnotes omitted).

The Court’s cases also impose prudential, but not constitutionally-mandated, limits on the issues that are cognizable in a pretrial habeas proceeding, none of which would be offended by entertaining Governor Perry’s claims:

 Pretrial habeas is unavailable when there is an adequate remedy by appeal. It should be reserved for situations in which the protections of the applicant’s substantive rights or the conservation of judicial resources would be better served.12

 Because an interlocutory appeal is an extraordinary remedy, appellate courts need to be careful to ensure that a pretrial writ is “not misused” to secure pretrial appellate review of matters that “should not be put before appellate courts at the pretrial stage”—a variation of ripeness.13

 Pretrial habeas is not appropriate when the question presented, even if resolved in the applicant’s favor, would not result in immediate release from restraint.14

 Pretrial habeas should not be used when a complete factual record is required to address the claim, which includes most as-applied challenges to the constitutionality of the statute upon which the offense is based.15

While this Court has cited Weise for the broad proposition that pretrial habeas

“may not be used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309

12 Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. 2001). 13 Ex Parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (quoting Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005); see also Weise, 55 S.W.3d at 619-21. 14 Weise, 55 S.W.3d at 619; Doster, 303 S.W.3d at 724. 15 Ex Parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); see also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim App. 2011) (“An ‘as applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge and the reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”).

S.W.3d 71, 79 (Tex. Crim. App. 2010) (citing Ex parte Weise, 55 S.W.3d at 620-

21), the principles underlying both decisions actually support consideration of

Governor Perry’s challenges, as discussed below. This Court’s tests serve to ensure that courts are open to proper cases as well as to ensure that they are closed to improper cases. Unsurprisingly, therefore, Texas courts have considered pretrial habeas on the merits in what were technically “as applied” challenges far afield from double jeopardy16 or limitations,17 including:

 A claim that the statute violates separation of powers because, if granted, that separate and independent constitutional provision eliminates the power of the courts to proceed.18

 A claim of collateral estoppel because, if granted, the re-litigation of the issue would be barred, although it may not bar another trial

16 Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex. Crim. App. 1986) (noting that the Supreme Court had made it clear that an interlocutory appeal of a double jeopardy claim “is not only a proper but a preferred remedy,” because the right against twice being placed in jeopardy would be “significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence”). 17 A claim that the face of the indictment demonstrates that any prosecution is barred by the statute of limitations, unless this is a “reparable” pleading defect, is cognizable in pretrial habeas. Weise, 55 S.W.3d at 620; see also Smith, 178 S.W.3d at 804. 18 In Ex parte Elliott, 973 S.W.2d 737, 738-43 (Tex. App—Austin 1998, pet. ref’d), this same court of appeals addressed the merits of a pretrial habeas challenge based on a violation of the nondelegation doctrine embodied within Texas’ separation of powers provisions. Elliott cited this Court’s opinions in Ex parte Humphrey, 244 S.W. 822 (Tex. Crim. App. 1922) and Ex parte Leslie, 223 S.W.2d 227 (Tex. Crim. App. 1920), both of which also involved pretrial habeas challenges to statutes on the basis of a violation of the nondelegation doctrine. Cf. Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013) (considering but overruling the State’s separation of powers challenge to Article 17.151 of the Texas Code of Criminal Procedure on discretionary review by a pretrial habeas applicant). The prohibition on unwarranted delegation of lawmaking power is “rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States, 488 U.S. 361, 371 (1989).

altogether.19

 A claim of illegal restraint by an order deferring adjudication of guilt.20

 A claim that a statute cannot be constitutionally applied to the facts alleged on the face of the indictment.21

From these holdings, one can glean at least three key considerations

underlying the Court’s jurisprudence regarding cognizability in pretrial habeas.

The first is whether there is an adequate remedy by appeal, which includes analysis

of whether the right at stake would be undermined unless the issues were

cognizable in pretrial habeas. See Weise, 55 S.W.3d at 619-20; Ex parte Robinson,

641 S.W.2d 552, 554-55 (Tex. Crim. App. 1982). The second consideration is judicial economy. See Smith, 178 S.W.3d at 802 (“There is no point in wasting scarce judicial and societal resources or putting the defendant to great expense, inconvenience, and anxiety if the ultimate result is never in question.”).22 The third is whether resolution of the question presented, if resolved in favor of the applicant, would result in the immediate release of the applicant. See Ex Parte

Watkins, 73 S.W.3d 264, 275 (Tex. Crim App. 2002). As discussed below, see infra Part I(C), all nine of Governor Perry’s constitutional challenges to Count I

19 Ex Parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim App. 2002). 20 Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998). 21 Ex parte Boetscher, 812 S.W.2d 600, 601-04 (Tex. Crim. App. 1991). 22 But see Doster, 303 S.W.3d at 725 (noting that the Court has “never actually resolved whether [judicial economy], absent a jurisdictional or constitutional defect, would be sufficient to make a claim cognizable on pretrial habeas”).

satisfy these principles underlying this Court’s pretrial habeas jurisprudence.

2. The court of appeals adopted an erroneous “label-driven” approach to deciding cognizability. In denying the cognizability of Governor Perry’s nine constitutional claims as to Count I, the court of appeals gave controlling weight not to the guiding principles discussed above, but to shorthand labels that sometimes, but not invariably, reflect the results when those standards are properly applied. Thus, the court below wrongly considered itself “duty-bound” to deny relief because, under the law as articulated by this Court, “such potential harms incurred” by defendants like Governor Perry “are simply deemed insufficient in themselves to provide a basis for relief through pretrial habeas corpus.” Slip Op. at 5, 32.

Governor Perry always recognized that true “as applied” challenges—those that are particular to the facts that may not even have been determined yet, rather than those that are purely legal—should not be resolved via pretrial habeas proceedings. But the court of appeals decided that further judicial inquiry was foreclosed based on this self-labeling alone. Id. at 11. Hence, the court’s only references to the Speech and Debate Clause or the Separation of Powers requirement of the Texas Constitution—other than acknowledging the district court’s characterization of those claims as “compelling”23—came in its description

23 Slip Op. at 8, citing CR472-73.

of Perry’s arguments, not in its analysis of whether those claims were cognizable.24

Despite the length of its opinion and the care it obviously devoted to this case, the court apparently failed to consider, and certainly failed to explain, why these claims were not the paradigmatic examples of claims that required pretrial resolution.

Commendably, however, the court of appeals indicated that, but for its perception of absolute bar that it understood this Court to have imposed, it would have regarded the claims as cognizable. It did so by exploring at length various functional and common-sense tests and standards that this Court has used to demarcate what is cognizable in habeas from what is not. Specifically, the court

noted that this Court will grant habeas relief when double jeopardy has attached to

a subsequent prosecution (id. at 21, 30), or when a prosecution would be barred by

limitations. (Id. at 21, 23). This analysis was correct; what was erroneous was the

court’s view that it was powerless or incompetent to examine the rationale behind

these outcomes to decide whether the same result was required here.

But had the court below explored not merely the existence of this Court’s

functional tests, but the reasons behind them, it could not have denied that mere

labels have never been and cannot be dispositive. Even though Governor Perry has

consistently conceded that his challenges would not invalidate Section 39.02(a)(2)

24 See Slip Op. at 20, 21, 22.

for all purposes against all possible defendants, he has delivered many pages of

arguments and authorities to both the trial court and the court of appeals explaining

in detail why his constitutional arguments should be cognizable now. The State’s

violation of Separation of Powers,25 the Speech and Debate Clause,26 and the doctrine of legislative immunity flowing therefrom all assert “that the trial court lacked the power to proceed” at all, the same as a normal facial challenge to the constitutionality of a statute. Rather than analyze whether the challenges here were of the type that have been and should be resolved before trial, however, the court of appeals contented itself with pointing out that Governor Perry himself had labeled “virtually all” of his claims as “as applied.” Id. at 1, 6-10.

In short, the court of appeals seemed to believe that, absent binding precedent from this Court involving the precise circumstances presented here—a prosecution of a Texas governor for threatening to exercise, and then exercising, a veto, it could take no action regardless of how much this Court’s jurisprudence justified the cognizability of Governor Perry’s claims. The inevitable consequence, of course, is that the State gets a free shot to try any governor for any veto until this Court chooses to use that case to expand its list. That cannot be the law, and the Court should make clear that the court of appeals erred in imputing that intention to this Court. Governor Perry now turns to a more comprehensive

25 Tex. Const. art. II, § 1.

analysis of how this Court’s precedents comfortably coexist with the cognizability of his claims

C. Under an appropriate analysis, all of Governor Perry’s claims are cognizable. The court of appeals employed a mistaken methodology to assess cognizability, and it consequently reached an erroneous conclusion. Proper application of this Court’s precedents makes clear why Governor Perry’s claims must be considered before trial.

1. All of Governor Perry’s challenges are the functional equivalent of a facial attack on Section 39.02(a)(2). Despite this Court’s shorthand observation that pretrial habeas “may not be used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309 S.W.3d at 79, neither the facts of that case nor the Weise case on which it relied support a conclusion that this statement is a hard and fast rule that supplants the Court’s flexible inquiry. Ellis involved a vagueness challenge to the definition of “funds”

contained in the money laundering statute. Although the applicants had labeled the

claim as a “facial” challenge and the court of appeals had determined it to be

cognizable, this Court held that it was a really an “as applied” challenge that was

not cognizable. The Court reached this conclusion because: (1) a facial vagueness

challenge, in the absence of First Amendment implications, “can succeed only if it

26 Tex. Const. art. III, § 21.

is shown that the law is unconstitutionally vague in all of its applications,” 309

S.W.3d at 80, and (2) applicants had not argued that the statute implicated the First

Amendment or was vague in all of its applications. Id. Here, of course, the first

Amendment is implicated.

Weise involved a challenge to the illegal dumping statute. The applicant claimed that the absence of a culpable mental state in the statutory scheme rendered the statute unconstitutional as applied to him. According to the Court,

Weise was not attacking the power of the trial court to proceed, but was simply raising an attack on the charging instrument that could have been raised by motion to quash. 55 S.W.3d 617 at 620-21 (Tex. Crim. App. 2001). In the course of its analysis, the Court discussed the “variety of factors” and “protections” such as limitations, double jeopardy and bail, that “would be effectively undermined if these issues were not cognizable” at the habeas stage. Id. at 619-20.

This Court’s jurisprudence as a whole make clear that the “facial/as-applied”

dichotomy applies (and makes sense) only when the challenge “requires a recourse

to evidence,” which must await trial. State ex rel. Lykos v. Fine, 330 S.W.3d 904,

910 & n.22 (Tex. Crim App. 2011) (quoting G. DIX AND R. DAWSON, 43A TEX.

PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254 (Supp. 2005)).

When, on the other hand, as-applied challenges can be decided solely by reference

to the indictment and the statute, as here, they are really legal challenges to the

statute itself. They rely only on the indictment and the statutes, not the underlying facts or circumstances to be proven at a hearing or trial. As and matter of law and logic, they stand on the same footing, insofar as the cognizability principles described above are concerned, as a facial challenge. See Smith, 178 S.W.3d at

802 (“There is no point in wasting scarce judicial and societal resources or putting the defendant to great expense, inconvenience, and anxiety if the ultimate result is never in question.”). They are, in short, functionally equivalent. See Karenev v.

State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J., concurring, joined by Price, Womack, and Johnson, JJ.) (“A facial challenge is based solely upon the face of the penal statute and the charging instrument, while an applied challenge depends upon the evidence adduced at a trial or hearing.” (emphasis added)); see also CR417-18. And, because they involve the right not to be tried at all, they are the type of claim which judicial efficiency and fairness require to be considered and resolved at the outset of the prosecution.

2. The key reasons to permit pretrial habeas review are all present here.

a. Governor Perry’s challenges can be resolved on the face of the indictment. First, Governor Perry’s challenges can be decided based solely on the face of the indictment and statutes under which he is charged—practically the definition of a “facial” challenge. He contends that those facts sufficiently demonstrate that the

statute, as applied to those facts, is unconstitutional and void as to his prosecution.

This is the essence of this Court’s opinion in Ex parte Boetscher, 812 S.W.2d 600

(Tex. Crim. App. 1991): the indictment alleged facts (i.e., that Boetscher “was then residing in another state, to wit: Michigan” id. at 602) that formed the basis of his equal protection argument, rendering the statute void as to the State’s attempted prosecution. See also infra Part I(C)(2)(discussing Boetscher in greater detail).

b. Governor Perry’s challenges to the State’s right to try him at all can only be vindicated in pretrial proceedings. Second, because Governor Perry’s constitutional challenges involve a right not to be tried, they by definition cannot be adequately resolved by direct appeal after trial. CR42, 417-18. When prosecution of a public official violates the doctrine of separation of powers, “the policies underlying that doctrine” require that the affected official “be shielded from standing trial.” United States v. Rose,

28 F.3d 181, 186 (D.C. Cir. 1994) (quoting United States v. Myers, 635 F.2d 932,

935 (2d Cir. 1980)). Similarly, the Speech or Debate Clause was designed to protect officials acting in a legislative capacity “not only from the consequences of litigation’s results but also from the burden of defending themselves.” Helstoski v.

Meanor, 442 U.S. 500, 508 (1979) (quotation marks omitted) (quoting

Dombrowksi v. Eastland, 387 U.S. 82, 85 (1967)); see also Rose, 28 F.3d at 185.

Governor Perry’s legislative-immunity defense likewise involves a right not

to be tried. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (absolute immunity is “an entitlement not to stand trial”); In re Perry, 60 S.W.3d 857, 859-60 (Tex.

2001) (legislative immunity “shields legislative actors not only from liability, but also from being required to testify about their legislative activities” and “from the burden of defending themselves” (quoting Dombrowski, 387 U.S. at 85)). The mere pendency of criminal proceedings—and not just their eventual outcome—is what imperils these constitutional principles, which are designed to safeguard performance of core governmental functions. See Myers, 635 F.2d at 936

(describing the heightened dangers associated with trials of elected officials, including impairment of representation, irreparable political damage, and intimidation by political rivals); see also CR42.

c. Important policy considerations compel a pretrial resolution of Governor Perry’s constitutional challenges to the indictment. A post-trial appeal is an especially inadequate remedy here because the indictment against Governor Perry interferes with the powers of the highest official in state government. The current governor and his successors must be able to discharge their official responsibilities, including use of the veto power, free from any uncertainty about what conduct connected thereto may be criminal and what is lawful. See Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1989) (“In some cases, a remedy at law may technically exist; however, it may be

nevertheless so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.”); cf. In re Masonite Corp., 997 S.W.2d

194, 198 (Tex. 1999) (adequacy of an appellate remedy depends in part on the

public’s interest in efficient resolution of a dispute and does not “focu[s]

exclusively on whether the parties alone have an adequate appellate remedy”). If

there is no way short of a jury trial to vindicate the constitutional responsibility to

exercise the veto power when judged necessary by a governor, the veto power will

obviously be chilled by the specter of any number of prosecutors ready to pounce

(including, as here, prosecutors appointed in response to a criminal complaint

requesting the indictment of Governor Perry from a group seeking to avenge a

vetoed bill). The respect owed by each branch of the government to its coordinate

branches demands a prompt and definitive answer to the questions raised by this

prosecution.

3. Habeas review is cognizable under the state of the record as recognized by the court of appeals The court of appeals expressed confusion that, in Ex parte Boetscher, 812

S.W.2d 600 (Tex. Crim. App. 1991), and perhaps elsewhere, this Court “employ[ed]

‘as applied’ phrasing” even as its “analysis resembled that in a conventional facial challenge.” Slip Op. at 28. But there is nothing surprising about this at all. The

Court was focused on the common-sense, functional outcome of applying meaningful principles to separate cognizable from non-cognizable claims; it did not

view the affixing of a label as the end of the inquiry. Only if the court of appeals’ faulty premise were correct—that “‘as applied’ phrasing” necessarily leads to non- cognizability, regardless of context—would Boetscher be surprising.

In Boetscher, the defendant was charged with criminal nonsupport of his children, which a statute enhanced to a felony solely because he resided out of state. Boetscher, 812 S.W.2d at 601. He brought a pretrial habeas proceeding to challenge the enhancement provision of the statute on equal-protection grounds “as applied to the unusual circumstances of his case” (i.e., his out-of-state residence at

the time of the offense). Id. at 603. The indictment specifically stated that “the

defendant was then residing in another state, to-wit: Michigan,” at the time of the

offense. Id. at 602. This Court held that this as-applied-to-the-indictment

challenge was cognizable in pretrial habeas, sustained the challenge, and ordered

the indictment dismissed. Id. at 603-04. The Court expressly declined to consider

whether the statute would be constitutional as applied in other scenarios. Id. at 604

n.8.27

27 See also Ex parte Mattox, 683 S.W.2d 93, 95-96 (Tex. App.—Austin 1984, pet. ref’d), where this same court of appeals affirmatively acknowledged its authority to consider and grant habeas relief upon a challenge to the legal authority of the State to prosecute the accused. Id. Mattox’s third and fourth issues on appeal challenged the constitutionality of the commercial bribery statute as “vague on its face and as applied to the facts alleged in the indictments.” Id. at 96. Both challenges were overruled, but only after the court addressed the arguments on the merits, stating the following regarding Mattox’s “as applied” fourth issue: For one lawyer to offer another lawyer an economic benefit in consideration for the latter’s breach of a fiduciary duty owed to a client is not a legitimate negotiating tactic; it is bribery. It is just such conduct that has been alleged

The court of appeals attempted to distinguish Boetscher from Governor

Perry’s case on the basis of that the former case “centered on the language of the

statute itself,” Slip Op. at 28-29, while Perry’s challenges “are intertwined [not

only] with disputes about what the underlying facts are” and “also with disputes

about whether those facts would constitute violations of the statutes under which

he is charged.” Id. at 29. But the facts alleged in Count I are sufficient to demonstrate that Governor Perry’s conduct was an exercise of his veto power under Article IV, Section 14 of the Texas Constitution which is protected conduct under the Speech or Debate Clause of Article III, Section 21 of the Texas

Constitution. The prosecution of Governor Perry by the judiciary—the Attorney

Pro Tem in the district court28—raises the purely legal question of whether the

prosecution violates the separation of powers expressly embodied in Article II,

Section 1 of the Texas Constitution. No other facts are necessary, although, for

instance, judicial notice of the laws governing Texas’ budget merely serve to

reinforce the utter inapplicability of Count I to a gubernatorial veto.29 Therefore,

against Mattox in the indictments pending against him. Id. at 98 (emphasis added). 28 The attorney pro tem and his assistant are part of the judicial branch, Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002), 29 The Texas Constitution requires the Texas Comptroller to provide the Legislature a biennial revenue estimate (“BRE”) at the beginning of each regular legislative session. See Tex. Const. art. III, § 49a. Because the Legislature is constitutionally prohibited from appropriating more revenue than will be collected, the BRE is used by the Legislature to ensure that appropriations will not exceed the anticipated revenue. Upon final passage of an appropriations bill, it is sent to the Texas Comptroller to certify whether the anticipated revenue will be

the court’s conclusion that Boetscher is distinguishable from Governor Perry’s separation of powers and Speech or Debate Clause related claims is untenable: no additional facts were necessary in Boetscher and none are necessary here.

Indeed, Governor Perry easily satisfies all the standards for extraordinary relief announced by this Court and actually discussed by the court of appeals:

Rest of Page Intentionally Left Blank

sufficient to cover the appropriations made by the Legislature. See Senate Research Center, Budget 101: A Guide to the Budget Process in Texas at 3, 10 (Jan. 2013), http://www.senate.state.tx.us/SRC/pdf/Budget_101-2011.pdf.

Court of Criminal Appeals standards Why Governor Perry satisfies each correctly quoted by court of appeals standard Habeas is an “extraordinary remedy (Slip The court acknowledged this to be an Op. at 9) extraordinary case (Id. at 31-32) Habeas to be used “only in very limited Prosecuting a Governor for threatening to circumstances” (Id. at 9) veto and vetoing a bill is unprecedented; remedying that abuse is a “very limited circumstance” Habeas is “reserved for situations in Not merely a governor’s own which the protection of the applicant’s constitutional rights, but the preservation substantive rights or the conservation of of each branch’s separate and enumerated judicial resources would be best served by powers are threatened when an interlocutory review” (Id.. at 9) officeholder is indicted, with no allegation of bribery or corruption, for merely doing his job Habeas is “not available to `test the Governor Perry does not challenge the sufficiency’ of the charging instrument” sufficiency of this particular indictment in (Id. at 12, 14), and thus not available to his writ, and certainly does not allege that challenge an indictment’s failure to it merely contains a technical defect; nor include an element (like mens rea) (Slip are his challenges hypothetical or Op. at 13), or a “hypothetical” complaint speculative (like a pre-trial as applied challenge to a sentencing statute) (Id. at 15-16 & n.52), or where it would function like a “declaratory judgment” (Id. at 16) Habeas is instead available “where the The gist of Governor Perry’s claims are alleged defect would bring into question that the judicial branch cannot proceed the trial court’s power to proceed” (Id. at against a Governor for threatening or 12) exercising the veto itself Examples of where habeas would lie As described below, this proves too include challenges based on limitations much—limitations and double jeopardy (Id. at 12), or on facial unconstitutionality are not less “applied” to a particular (Id. at 13) defendant than the claims urged by Governor Perry against both counts

See also Id. at 26-27 (summarizing some of these points). On every score, Perry’s

claims align with those that this Court has allowed, not those it has rejected. The

court also failed to explain why, if “a ‘facial’ constitutional challenge seeks to establish that the statute is unconstitutional and unenforceable as to any person,”

Id. at 11 (quoting State ex rel. Lykos, 330 S.W.3d 908 (emphasis added), and if only such a facial challenge can be addressed by pretrial habeas, this Court has granted such relief when neither requisite is met. Why should not an already-tried defendant just patiently await the conclusion of his second trial to point out that claim was constitutionally barred all along? And why should not a defendant who was not timely prosecuted merely sit through his trial and attempt to mount a defense, secure in the knowledge that any conviction, while perhaps temporarily aggravating, will ultimately be reversed on appeal. After all, double jeopardy and limitations are the ultimate “as applied” challenges, claiming only that one particular defendant cannot be tried in this proceeding, even if the underlying statute is valid.

Of course, the court of appeals never questioned this Court’s jurisprudence.

Instead, the court contented itself with urging this Court to examine Governor

Perry’s claim and decide whether the “array of procedural mechanisms” should be expanded for one “faced with . . . loss of liberty.” Id. at 4-5. But nothing in this

Court’s jurisprudence suggests that a lower court should confine its cognizability inquiry to whether or not a particular fact pattern has been addressed by the court of last resort, or that a lower court is powerless to apply this Court’s principles to

rectify injustice.

The court of appeals inexplicably failed to examine whether double jeopardy and limitations are preordained as the lone “exceptions,” id. at 13, or whether they are instead examples of the types of claims that courts properly resolve as a legal matter before the legal system subjects itself and the defendant (and here, the

Texas form of government itself) to the rigors of trial. Nothing in this Court’s cases requires the odd and narrow reading that isolates double jeopardy and limitations from all other claims, whether or not materially indistinguishable for the purposes of cognizability. Yet the court of appeals strained to read this Court’s cases as narrowly as possible to make itself appear powerless to rectify injustice.

The lower courts would not have, and this Court will not now, in any way undermine this Court’s jurisprudence on cognizability by reaching Governor

Perry’s constitutional claims. Few criminal defendants will have resort to Speech and Debate or Separation of Powers defenses. Holding that Governor Perry’s challenges are no less cognizable than constitutional double jeopardy or statutory limitations challenges would leave this Court’s jurisprudence wholly intact.

D. If necessary, this Court should extend an exception to the cognizability doctrine. While Governor Perry steadfastly believes that his claims are cognizable under the principles discussed above, if the Court has any reservations, then it should create an extension of the current "exceptions," allowing pretrial habeas

review of constitutional claims that seek to bar a prosecution to the same extent

that it allows review of claims under the Double Jeopardy Clause, collateral

estoppel or the statute of limitations. While it may be rare for the constitutional

impediments raised by Governor Perry to arise, and indeed they may never do so

again, they are of paramount important to the political and criminal justice system

in Texas. The issues raised here ae important not just to Governor Perry as an

accused felon, but to the entire State; the reasons proffered to justify pre-trial

review of other technically “as-applied” challenges apply with far greater force to

this case. Thus, if the circumstances attending this prosecution must be

categorized (or classified) by this Court before habeas relief can be considered,

Governor Perry urges the Court to do so in this proceeding.

II. The State’s prosecution of Governor Perry is unconstitutional Because the court of appeals believed that Governor Perry’s challenges to

Count I were not cognizable, it did not reach the merits. But it recognized the

district court’s observations that Governor Perry’s claims are “compelling,”

“unique,” “important,” and “certainly deserv[ing] of careful consideration in an

appropriate forum.” Id. at 8. It also noted the need for this Court’s review, stating

that “[i]f the Texas criminal justice system should operate differently, that change

must come from the Court of Criminal Appeals or the Legislature.” Id. at 32. For

the following reasons, the Court should not only accept the lower court’s invitation

to entertain Governor Perry’s challenges, but, having done so, it should find the prosecution against him to be void.

A. This prosecution violates the constitutional separation of powers The court of appeals erred by refusing to dismiss Count I of the indictment as violating the Separation of Powers Clause of the Texas Constitution.30 Article

II, Section 1 of the Texas Constitution mandates a clear separation of the functions

of the coordinate branches of Texas government:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Hence, unlike in the federal system, the requirement of separated powers is explicitly and emphatically set forth in our Constitution. See State v. Rhine, 297

S.W.3d 301, 314-315 (Tex. Crim. App. 2009) (Keller, P.J., concurring). “So important is this division of governmental power that it was provided for in the first section of the first article of the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding Constitution.” Langever v. Miller,

76 S.W.2d 1025, 1035 (Tex. 1934). The provision “reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats

30 This section addresses claims 3 and 4 as to Count I (i.e., Ground for Review 1, 2, and 4).

to liberty is the accumulation of excessive power in a single branch of government.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim.

App. 1990).

Texas courts have long been vigilant in preventing any attempt by one branch of government to encroach on the authority constitutionally secured to another branch. Thus, “any attempt by one department of government to interfere with the powers of another is null and void.” Meshell v. State, 739 S.W.2d 246,

252 (Tex. Crim. App. 1987) (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex.

Crim. App. 1974)). The Separation of Powers Clause can be violated in two ways:

(1) when one branch of government assumes or is delegated a power more properly attached to another branch, or

(2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.

Lo, 424 S.W.3d at 28; Ex parte Gill, 413 S.W.3d at 431-32; see also Armadillo,

802 S.W.2d at 239. A statute that conflicts with any provision of the Texas

Constitution is, of course, void. See Cook v. State, 902 S.W.2d 471, 479 (Tex.

Crim. App. 1995). Indeed, “[w]hen the constitution speaks, it is supreme” and

“[a]n enduring and lasting government requires that it so remain.” Ex parte

Halsted, 182 S.W.2d 479, 488 (Tex. Crim. App. 1944).

In this case, the actions of the judicial branch—represented here by the attorney pro tem, appointed by that district judge, and the panel of justices of the

court of appeals—unduly interfere with the constitutionally-assigned powers of the executive branch by scrutinizing a gubernatorial veto and the alleged threat preceding that veto. The power to veto, including the line-item veto of appropriations, is one of the core duties assigned to a Texas Governor by our

Constitution. Article IV, Section 14 provides in part:

If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.

This language imposes no limits on the Governor’s authority to exercise the veto in his or her unbounded discretion. As one authority noted: “The veto, particularly the item veto, is perhaps the most significant of the Texas governor’s constitutional powers . . . . [B]ecause he has no significant budgetary powers . . . the item veto is the primary method by which he exercises some control over the amounts and purposes of state expenditures.” 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION

OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 339

(George D. Braden ed. 1977).31

In exercising the veto power, a Governor acts in a legislative, not an

31 Indeed, virtually any exercise of the veto power could be criminalized—or at least harassed with prosecution—under the State’s interpretation of the law. For example, every exercise of the veto, and particularly the line-item veto, will entail winners and losers. On the State’s theory, such vetoes could nearly always be construed as a “misuse of government property” done with “intent to harm another” under Texas Penal Code Section 39.02.

executive, capacity, and thus is a member of a governing body. See Jessen

Assocs., Inc. v. Bullock, 531 S.W.2d 593, 598 (Tex. 1976) (governor’s “veto power is a legislative function and not an executive function”); Fulmore v. Lane, 140

S.W. 405, 411 (Tex. 1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). This is not an anomalous or outmoded view; the veto power is also characterized as a legislative act in the federal system, Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998), and in the jurisprudence of many other states.32

Because the power to veto is so central to the gubernatorial office, and

because nothing in the Texas Constitution or laws permits the judicial branch to

scrutinize a governor’s political decision to veto an appropriation, this is the type

of “political question” that American courts have traditionally declined to review

as nonjusticiable. See generally Nixon v. United States, 506 U.S. 224 (1993);

Goldwater v. Carter, 444 U.S. 996 (1979); Coleman v. Miller, 307 U.S. 433

(1939); Luther v. Borden, 48 U.S. 1 (1849). The U.S. Supreme Court has generally

32 See, e.g., Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012); Barnes v. Secretary of Admin., 586 N.E.2d 958, 961 (Mass. 1992) (“it is for the Legislature . . . to determine finally which social objectives or programs are worthy of pursuit, the Governor may properly use his veto power to accomplish legislative-type goals”) (citation omitted); State ex rel. Cason v. Bond, 495 S.W.2d 385, 392 (Mo. 1973) (“[W]hen the Governor takes part in appropriation procedures [by vetoing legislation], he is participating in the legislative process . . . .”); State ex rel. Dickson v. Saiz, 308 P.2d 205, 211 (N.M. 1957) (“when the Governor exercises his right of partial veto he is exercising a quasi-legislative function”); Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316, 320 (Wash. 1910) (“In approving and disapproving laws, in the exercise of his constitutional prerogative, the executive is a component part of the Legislature.”); State ex rel. Wis. Senate v. Thompson, 424 N.W.2d 385, 391 (Wis. 1988) (“The partial veto power in this state was adopted . . . to make it easier for the governor to exercise what this court has recognized to be his ‘quasi- legislative’ role, and to be a pivotal part of the ‘omnibus’ budget bill process.”).

recognized the doctrine in cases with

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962).

State courts, including those of Texas, have had little need to articulate the concept as thoroughly as the U.S. Supreme Court, but they also have consistently declined to decide cases that raise political questions. This Court has held in the context of parole decisions that the Governor’s exercise of his discretionary constitutional authority raises political, not judicial, questions. In Ex parte Ferdin,

183 S.W.2d 466 (Tex. Crim. App. 1944), this Court refused to entertain

jurisdiction over “what is in effect an appeal from the act of the Governor in

revoking the parole,” because courts lack “power over the acts of the Governor so

long as he is within the law and the matter involved is one of his judgment and

discretion in the performance of his duty assigned to him by the Constitution . . . .

Whether or not his acts are harsh, ill advised, and arbitrary, is not a matter for this

court to decide . . . .” Id. at 467-68. See also Ex parte Pitt, 206 S.W.2d 596, 597

(Tex. Crim. App. 1947) (“The sole arbiter of the wisdom of the revocation [of the

Governor’s conditional pardon] is the Governor.”); Ex parte Meza, 185 S.W.2d

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

The Texas Constitution reposes the check on a Governor’s veto power not in the judicial branch, but in the Legislature and the people. Should either deem veto decisions to be erroneous or improper, the Texas Constitution provides them with at least the possibility of a legislative or political countermeasure. The Legislature may, if it remains in session, override a gubernatorial veto. Tex. Const. art. IV, §

14. Legislators may refuse to cooperate with the Governor on subsequent initiatives, including appointments. If the Legislature concludes that the governor’s actions are sufficiently reprehensible, the House may impeach and the

Senate may try and, upon conviction, remove the governor from office. Id. art.

XV, §§ 1-5. And voters may have an opportunity to defeat the re-election of a governor whose policy choices they oppose, or to replace a retiring governor with one of a different ilk. Moreover, they can elect legislators who will join in sufficient strength to re-enact vetoed legislation and override any further veto attempts. These alternatives have sufficient weight to cause most governors to exercise their veto power sparingly and deliberately. Allowing a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.33

33 As discussed below in connection with the Speech or Debate Clause, the Legislature can

Thus, Section 39.02(a)(2) is void, at least to the extent that it permits the

judicial branch in violation of Article II, Section 1, to interfere with the intended

operation of Article IV, Section 14. Just as this Court and the court of appeals

below have accepted a separation of powers claim as cognizable in pretrial habeas,

Ex parte Humphrey, supra; Ex parte Leslie, supra; and Ex parte Elliott,34 this

Court should hold that claims 3 and 4 as to Count I of Governor Perry’s application

for writ of habeas corpus are cognizable, sustain these claims on the merits, reverse

the court of appeals’ opinion and dismiss Count I.

B. Count I violates the Texas Speech or Debate Clause and the common-law doctrine of legislative immunity The court of appeals erred by refusing to dismiss Count I of the indictment

for violating the Texas Constitution’s Speech or Debate Clause and the absolute

legislative immunity that accompanies it when the Governor is considering or

exercising his veto power.35

Article III, Section 21 of the Texas Constitution provides that “[n]o member shall be questioned in any other place for words spoken in debate in either House.”

This is Texas’s Speech or Debate Clause, which is similar to it analog in the

criminalize acts of political corruption, including the acceptance of a bribe or a promise of a bribe in exchange for the exercise of a veto. Such a prosecution does not trigger any of the separation-of-powers issues that plague this prosecution because the illegal act is the acceptance of the bribe or the promise of the bribe, not the veto itself. 34 See footnote 18, supra. 35 This section addresses claims 5, 6, and 7 as to Count I (i.e., Ground for Review 1, 3 and 4).

United States Constitution.36 On the few occasions when Texas courts have considered the Texas clause, they have indicated that its scope is the same as the federal clause. See Canfield v. Gresham, 17 S.W. 390, 392-93 (Tex. 1891) (citing

Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); Bowles v. Clipp, 920 S.W.2d

752, 758 (Tex. App.—Dallas 1996, writ denied); see also Tenney v. Brandhove,

341 U.S. 367, 375 (1951) (noting common purpose of federal and state Speech or

Debate Clauses, including Texas’s).

Under federal precedents, the Clause is “read ‘broadly to effectuate its purposes,’” Doe v. McMillan, 412 U.S. 306, 311 (1973), which are “[t]o prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,” id. at 316 (citation and quotation omitted), and to “free[] the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” Gravel v. United States, 408 U.S. 606, 618

(1972). Stated differently, the purpose of the principle is to secure to every member “exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office.” Id. at 660 (quoting

Coffin v. Coffin, 4 Mass. 1, 27 (1808) (emphasis added)).

The Clause originated as a response to the British Crown’s use of criminal

36 Article I, Section 6, Clause 1 of the U.S. Constitution states in relevant part that “for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”

prosecution to harass political opponents in Parliament. See United States v.

Johnson, 383 U.S. 169, 182 (1966). As noted in Johnson, “[t]here is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominant thrust of the Speech or Debate Clause.”

Id. The Clause therefore naturally implicates separation of powers considerations, as it aims to “preserve the constitutional structure of separate, coequal, and independent branches of government.” United States v. Helstoski, 442 U.S. 477,

491 (1979).

Borrowing from federal analyses, Texas courts have derived from the Clause a broad doctrine of legislative immunity. See Perry, 60 S.W.3d at 859. Not only are oral speech and debate protected, but so are written reports and legislative votes. See Canfield, 17 S.W. at 392-93 (citing Kilbourn, 103 U.S. at 204);

McMillan, 412 U.S. at 311. In fact, the Clause protects all communications that are “an integral part of the deliberative and communicative processes” involved in a legislative act, including communications with or among aides. Gravel, 408 U.S. at 625; see also Perry, 60 S.W.3d at 860-61.37

37 Texas governors are not detached legislative gatekeepers, but active participants in legislative discourse. Governors are constitutionally required to “recommend to the Legislature such measures as [they] may deem expedient,” Tex. Const. art. IV, § 9, and to explain their

Legislative activity includes a Governor’s exercise of the veto power. See

Jessen, 531 S.W.2d at 598. But the Clause is sufficiently broad to protect other

government officials when they engage in “legitimate legislative activity.”

Tenney, 341 U.S. at 376; see also Perry, 60 S.W.3d at 860 (holding that the

attorney general, comptroller, and land commissioner enjoy legislative immunity

for “‘legitimate legislative functions” performed while serving on the Legislative

Redistricting Board).38 Legislative activity also includes executive actions involving budgetary and appropriations matters. See Bogan, 523 U.S. at 55-56

(affording legislative immunity to city mayor for “introduction of a budget and signing into law an ordinance,” a “discretionary, policymaking decision implicating the budgetary priorities of the city” and “formally legislative, even though he was an executive official”); Shade v. U.S. Congress, 942 F. Supp. 2d 43,

48 (D.D.C. 2013) (appropriation of funds is “a “core legislative function”).39 Any

objections to bills when exercising the veto power. Id. § 14. In short, not only does it permit communication, the Texas Constitution requires communication between the Governor and legislators as an integral part of the legislative process. Such communication contributes to both sound policymaking and an informed electorate. 38 See also Camacho v. Samaniego, 954 S.W.2d 811, 823-24 (Tex. App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1194 (5th Cir. 1981), for proposition that absolute legislative immunity extended to a mayor’s veto of an ordinance passed by a city council). 39 To be sure, the protections of the Clause and its accompanying immunity have their limits. They do not extend to actions that are “no part of the legislative process or function,” even if performed by legislators. United States v. Brewster, 408 U.S. 501, 526 (1972). For example, a legislator may be prosecuted for bribery because “acceptance of the bribe is the violation of the statute, not performance of the illegal promise,” making it “[un]necessary to inquire into how [the legislator] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.” Id. at 526. See also Mutscher v. State, 514 S.W.2d 905, 914-15

criminal prosecution based on this protected legislative activity is barred. “It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” United States v. Brewster, 408 U.S. 501, 525 (1972). Thus, legislative acts may not themselves be criminalized. See United States v.

Helstoski, 442 U.S. at 488. Nor may a prosecution proceed if it necessarily depends upon evidence of legislative acts or the motives for them. See Johnson,

383 U.S. at 184-85. In fact, evidence of a legislative act may not even be introduced at trial in an otherwise permissible prosecution. Helstoski, 442 U.S. at

487-88. This is because the courts have recognized that the “level of intimidation against a local legislator arising from the threat of a criminal proceeding is at least as great as the threat from a civil suit,” so that legislative immunity “should be extended to criminal proceedings.” State v. Holton, 997 A.2d 828, 845, 856 (Md.

Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md. 2011) (quotations and citation omitted). See also McMillan, 412 U.S. 306, 312-13 (1973) (“Congressmen . . . are immune from liability for their actions within the ‘legislative sphere’ even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” (citation

(Tex. Crim. App. 1974) (affirming House Speaker’s conviction for bribery and upholding the bribery statute because “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not, a legislative act” (quoting Brewster, 408 U.S. 527)).

omitted)). Indeed, officials cannot even be required to testify about their legislative activities, regardless of the context in which their testimony is sought.

Perry, 60 S.W.3d at 858, 861.40

This protection is not eviscerated even by allegations of a bad motive. A

charge that legislative conduct was “improperly motivated” is “precisely what the

Speech or Debate Clause generally forecloses from executive and judicial inquiry.”

Johnson, 383 U.S. at 180. Otherwise, immunity would be held hostage to “a

conclusion of the pleader” or “a jury’s speculation as to motives.” Bogan, 523

U.S. at 54 (observing that the Court had applied immunity even when a legislator

“singled out the plaintiff for investigation in order to intimidate and silence the

plaintiff and deter and prevent him from effectively exercising his constitutional

40 Other states provide similar protection in civil, criminal, and quasi-criminal matters. See, e.g., State v. Dankworth, 672 P.2d 148, 151 (Alaska Ct. App. 1983) (even in a criminal case, “[o]nce it is determined that [a] legislative function . . . was apparently being performed, the propriety and the motivation for the action taken, as well as the detail of the acts performed, are immune from judicial inquiry”) (quoting United States v. Dowdy, 479 F.2d 213, 226 (4th Cir. 1973)); D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) (“The district attorney acknowledges the principles of legislative immunity . . . but contends immunity applies only to civil suits, and does not extend to criminal prosecutions. We disagree.”); State v. Neufeld, 926 P.2d 1325, 1337 (Kan. 1996) (“Congressmen . . . are immune from liability for their actions within the legislative sphere . . . even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” (internal quotation marks omitted)); Holton, 997 A.2d at 851 (“we hold that, as a matter of common law, local legislators may invoke that same privilege in a criminal prosecution”); Irons v. R.I. Ethics Comm’n, 973 A.2d 1124, 1131 (R.I. 2009) (“as long as [a legislator’s] challenged actions, stripped of all considerations of intent and motive, were legislative in character, the doctrine of absolute legislative immunity protects them from such claims”—there, an ethics agency enforcement action). Furthermore, several federal circuits have held that governors are protected by absolute legislative immunity for their legislative acts. See State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 91-92 (2d Cir. 2007); Baraka v. McGreevey, 481 F.3d 187, 196-97 (3d Cir. 2007); Torres Rivera v. Calderon Serra, 412 F.3d 205, 212-14 (1st Cir. 2005);

rights” (citing Tenney, 341 U.S. at 377)). “[I]t is ‘not consonant with our scheme of government for a court to inquire into the motives of legislators.’” Perry, 60

S.W.3d at 860 (quoting Bogan, 523 U.S. at 55). Simply put, “[t]he claim of an unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377. The remedy for those who disagree with a veto, no matter how earnestly, is political, not judicial.41

For these reasons, the courts will foreclose attempts to convert inescapably political disputes into criminal complaints. A number of federal cases have required dismissal of grand-jury indictments premised on privileged Speech or

Debate materials, thus barring a trial that would require the government to introduce evidence of privileged Speech or Debate materials. For example, in

United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992), a former congressman was prosecuted for lying to the grand jury about his knowledge of various money- laundering statutes. Id. at 1535-37. To prove his knowledge, the prosecution introduced evidence before the grand jury and at trial about the congressman’s activities in Congress, including his activity on a banking committee. Id. at 1539-

Women’s Emergency Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003). 41 In Bogan, the Supreme Court held that the acts of introducing, voting for, and signing an ordinance eliminating the government office held by a health department administrator, when “stripped of all considerations of intent and motive,” were in fact “legislative” because the “ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city.” 523 U.S. at 55. Governor Perry’s decision to veto an item of appropriation and any announcement by his staff of his intent most certainly reflects a similar “discretionary, policymaking decision implicating the budgetary priorities” of Texas.

40. The court of appeals reversed the congressman’s conviction and held that the prosecution violated the Speech or Debate Clause for two reasons: (1) “the

AUSA[] question[ed] [the congressman] before the grand jury about his committee memberships” in an effort to show his knowledge of money-laundering statutes, and (2) “reference [was] made to [the congressman’s] committee memberships both in the grand jury proceedings and at trial.” Id. at 1543. The court held that

“the remedy for the violations of the privilege is dismissal of the affected counts.”

Id. See also Johnson, 383 U.S. at 185 (holding that Speech or Debate material was improperly presented to the grand jury and ordering a new trial “purged of elements offensive to the Speech or Debate Clause”); Brewster, 408 U.S. at 527

(holding that, only because a conviction in that case could be sustained without

“inquir[y] into the [legislative] act or its motivation,” could an indictment of a congressman which referred to legislative acts stand, as “[t]o make a prima facie case under this indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment,” i.e., a bribe).42

In Helstoski v. Meanor, 442 U.S. at 506-08, the Supreme Court followed the reasoning of Abney v. United States, 431 U.S. 651 (1977) and allowed immediate

42 Dismissing an indictment that violates the federal Speech or Debate Clause is also supported by United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995); United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995); United States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984); United States v. Beery, 678 F.2d 856 (10th Cir. 1982); and United States v. Renzi, 686 F. Supp. 2d 956 (D. Ariz. 2010).

interlocutory appeal in a criminal case to assert the immunity conferred by the

Speech or Debate Clause of the U.S. Constitution. Critical to the holding was the

Supreme Court’s conclusion that the Speech or Debate Clause protects legislators

‘“not only from the consequences of litigation’s results but also from the burden of defending themselves,’” id. at 508 (quoting Dombrowski v. Eastland, 387 U.S. at

85), which right would have been lost if review did not occur prior to a trial. Just as this Court followed Supreme Court precedent on Double Jeopardy in permitting pretrial habeas review, Ex parte Robinson, 641 S.W.2d at 554-55 (following Abney v. United States, 431 U.S. 651 (1977)), so now it should follow Helstoski in this case.43

C. The abuse of official capacity statute is unconstitutionally vague as applied to the veto alleged on the face of the indictment The court of appeals further erred by refusing to dismiss Count I of the

indictment because Section 39.02(a)(2) is unconstitutionally vague. CR46-48.44

The Abuse of Official Capacity statute, Tex. Penal Code § 39.02(a)(2),45 is

43 The underlying basis of Abney was that because the Fifth Amendment right not to be put in jeopardy a second time involved “a right not to be tried” and “to “enjoy the full protection of the Clause,” the claim “must be reviewable before that subsequent exposure occurs.” United States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982) (quoting Abney, 431 U.S. at 662). The same principles obviously apply here. 44 This section addresses claims 1 and 2 as to Count I (i.e., Grounds for Review 1 and 4). 45 In pertinent part, Abuse of Official Capacity is defined as follows: “A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly . . . misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” Tex. Penal Code §

admittedly a tightly-worded provision with graduated penalties for escalating levels of wrongdoing. But it has no discernible relationship to any conduct alleged in the indictment against Governor Perry. Hence, this statute either does not apply to Governor Perry’s alleged conduct at all or is unconstitutionally vague as applied to the facts alleged on the face of the indictment. In either case, Count I should be dismissed.

Prosecution of Governor Perry under Section 39.02(a)(2) violates all three related manifestations of the fair-warning requirement. See United States v.

Lanier, 520 U.S. 259, 266 (1997). First, the vagueness doctrine would be violated because there was no fair warning that Governor Perry’s act of vetoing funding for the PIU would violate that section. Second, the rule of lenity would be violated by an interpretation of the statute bringing Governor Perry’s veto within the umbrella of coverage. Third, the prosecution involves an entirely novel construction of these criminal statutes which neither the text of the statutes nor any prior judicial decision has fairly disclosed to be within their scope.

This vagueness is evident in several respects. First, neither Governor Perry nor any other governor could have had fair notice that he was “misus[ing] government property” by vetoing a line-item appropriation, the effect of which was to keep funds in the State Treasury rather than allowing funds to be transferred to

39.02(a)(2).

Lehmberg’s office after September 1, 2013. Second, Governor Perry did not have fair notice that he could somehow have “custody or possession” of all the State funds proposed to be expended in an appropriations bill merely “by virtue of [his]

office or employment” as governor. As this Court can judicially notice, the funds

to be disbursed under the two-year budget commencing September 1, 2013, would

not have been collected by that date, let alone by June 14, 2013, the date of the

misconduct alleged in Count I of the indictment, because Texas uses a pay-as-you-

go system of raising revenue for appropriations.46 In essence, the special prosecutor’s interpretation of Section 39.02(a)(2) would turn the Rule of Lenity— that principle that unclear criminal statutes should be construed in favor of the defendant, Cuellar v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim. App. 2002)—on its head.

46 See footnote 32, supra.

Prayer for Relief WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully

prays that this Court reverse the court of appeals’ judgment holding that Governor

Perry’s constitutional claims are not cognizable, find Section 39.02(a)(2)

unconstitutional, and dismiss Count I.

Respectfully submitted,

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

/s/ Anthony G. Buzbee /s/ Thomas R. Phillips Anthony G. Buzbee Thomas R. Phillips State Bar No. 24001820 State Bar No. 00000102 JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500 600 Travis Street, Suite 7300 Austin, Texas 78701-4078 Houston, Texas 77002 [email protected] [email protected] Telephone: 512-322-2565 Telephone: 713-223-5393 Facsimile: 512-322-8363 Facsimile: 713-223-5909

BOTSFORD & ROARK /s/ David L. Botsford David L. Botsford State Bar No. 02687950 1307 West Ave. Austin, Texas 78701 [email protected] Telephone: 512-479-8030 Facsimile: 512-479-8040

Certificate of Compliance I hereby certify that this document contains 9,569 words in the portions of the document that are subject to the word limits of Texas Rule of Appellate Procedure 9.4(i), as measured by the undersigned’s word-processing software.

/s/ David L. Botsford David L. Botsford

Certificate of Service This is to certify that a true and complete copy of this document has been electronically emailed to Lisa McMinn, State Prosecuting Attorney, Michael McCrum, Attorney Pro Tem, and to Mr. David Gonzalez, Assistant Attorney Pro Tem on the same date it was electronically filed with the Clerk of the Court of Criminal Appeals.

/s/ David L. Botsford David L. Botsford

TAB 1

Nine Claims Challenging Count I 1. Section 39.02(a)(2) [of the Texas Penal Code] violates the Fifth and Fourteenth Amendments to the Constitution of the United States as applied because its prohibitions of “misuse” of “government property . . . that has come into the [Governor’s] custody or possession” is unconstitutionally vague as a matter of law if extended to a mere gubernatorial veto of any appropriation of State funds.

2. Section 39.02(a)(2) violates Article I, Sections 10 and 19 of the Texas Constitution as applied because its prohibition of “misuse” of “government property . . . that has come into the [Governor’s] custody or possession” is unconstitutionally vague as a matter of law if extended to a mere gubernatorial veto of any appropriation of State funds.

3. Section 39.02(a)(2) is unconstitutional as applied because it infringes upon the Governor’s absolute constitutional right and duty to approve or disapprove “items of appropriation” under Article IV, Section 14 of the Texas Constitution.

4. Section 39.02(a)(2) is unconstitutional as applied because it violates the separation of powers between the various departments of government that is guaranteed to the People by Article II, Section 1 of the Texas Constitution.

5. Because a governor acts in a constitutionally-prescribed legislative capacity in vetoing legislation, Section 39.02(a)(2) is unconstitutional as applied because it violates the protection afforded by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution.

6. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, Count I of the indictment is void because it is necessarily based on evidence privileged by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution.

7. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, trial on Count I of the indictment is barred as a matter of law because the State could only sustain its burden, if at all, by introducing evidence privileged by the Speech and Debate Clause of Article III, Section 21 of [t]he Texas Constitution.

8. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his rights under the Free Speech guarantee of the First Amendment to the Constitution of the United States.

9. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his rights under the Free Speech guarantee of Article I, Section 8 of the Texas Constitution.

51 PD-1067-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/21/2015 9:09:44 PM Accepted 10/22/2015 8:12:16 AM ABEL ACOSTA CLERK NO. PD-1067-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE JAMES RICHARD “RICK” PERRY, Appellant ______

On Appeal from the 390th Judicial District Court, Travis County, Texas, Cause No. D-1-DC-14-100139 ______

APPELLANT’S BRIEF ON THE MERITS ADDRESSING THE STATE’S PETITION FOR DISCRETIONARY REVIEW ______

BOTSFORD & ROARK David L. Botsford State Bar No. 02687950 1307 West Ave. Austin, Texas 78701 [email protected] Telephone: 512-479-8030 Facsimile: 512-479-8040

ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT

Identity of Judge, Parties, and Counsel The following is a complete list of the names and addresses of all parties and counsel in this case.

Trial Judge: Honorable Bert Richardson, sitting by appointment; Court of Criminal Appeals, Supreme Court Building, 201 West 14th Street, Austin, Texas, 78701.

Appellant: Former Governor James Richard “Rick” Perry, c/o Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002.

Table of Contents

Identity of Judge, Parties, and Counsel ...... i

Index of Authorities ...... iv

Statement of the Case ...... 1

Grounds for Review ...... 3

Statement of the Facts ...... 4

A. Proceedings in the district court ...... 4

B. B. Proceedings in the court of appeals ...... 6

Summary of the Argument ...... 10

Argument...... 12

A. Introduction ...... 12

B. The court of appeals opinion correctly analyzed and decided Governor Perry’s First Amendment challenges ...... 13

1. First Amendment Principles ...... 13

2. The Statutory Framework ...... 15

3. The court of appeals was faithful to this Court’s binding precedents ...... 18

4. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), implicates the First Amendment...... 20

5. The State’s arguments that the statutes do not implicate the First Amendment are without merit ...... 20

a. The State’s cases are distinguishable ...... 21

b. The court of appeals was correct that Governor Perry did not lose his First Amendment rights by holding public office ...... 25

6. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), is a content-based restriction on speech...... 31

7. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), fails to satisfy “strict scrutiny” ...... 33

C. Even if the court of appeals erred in its reasoning, its judgment was correct for other reasons...... 35

1. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), is overbroad ...... 35

2. The statutory scheme is facially void for vagueness ...... 46

Prayer for Relief ...... 52

Certificate of Compliance ...... 54

Certificate of Service ...... 54

iii

Index of Authorities

Page(s)

CASES

All. to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) ...... 37

Ashcroft v. A.C.L.U., 535 U.S. 564 (2002) ...... 32

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ...... 14, 15

Bd. v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) ...... 22

Bond v. Floyd, 385 U.S. 116 (1966) ...... 27

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...... 43, 44

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) ...... 13, 33

Carey v. Brown, 447 U.S. 455 (1980) ...... 24

City of Seattle v. Ivan, 856 P.2d 1116 (Wash. App. 1993) ...... 38

Colautti v. Franklin, 439 U.S. 379 (1979) ...... 49

Collection Consultants, Inc. v. State, 556 S.W.2d 787 (Tex. Crim. App. 1977)...... 42

Connick v. Myers, 461 U.S. 138 (1983) ...... 26

Crouch v. Civil Serv. Comm’n of Tex. City, 459 S.W.2d 491 (Tex. Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.) ...... 50

Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ...... 22, 23

Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979)...... 47

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)...... passim

Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014)...... passim

Garcetti v. Ceballos, 547 U.S. 410 (2006) ...... 26

Garrison v. La., 379 U.S. 64 (1964) ...... 41

Gooding v. Wilson, 405 U.S. 518 (1972) ...... 48

Grayned v. Rockford, 408 U.S. 104 (1972) ...... 47

Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007) ...... 27

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) ...... 28, 29

Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) ...... 47

Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1991)...... 47, 48, 49

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ...... 13

Meyer v. Grant, 486 U.S. 414 (1988) ...... 13, 41

N.A.A.C.P v. Claiborne Hardware Co., 458 U.S. 886 (1982) ...... 23, 24, 37

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ...... 13

Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006)...... 20, 50

Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ...... 24, 30

Papachristou v. City of Jacksonville, 405 U.S. 156 (1971) ...... 47

People v. Iboa, 207 Cal. App. 4th 111 (2012) ...... 39

Phillips v. State, 401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d) ...... 30, 40

Pleasant Grove City v. Summum, 555 U.S. 460 (2009) ...... 28, 29

Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) ...... 21, 22, 42

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ...... 13, 19, 33

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) ...... 32

Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997) ...... 15

Roberts v. State, 278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d) ...... 42, 51

Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999)...... 24, 25, 36, 42

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) ...... 43

Sorrell v. IMS Health, 131 S.Ct. 2653 (2011) ...... 13, 33

State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ...... 37, 45, 46, 48, 51

State v. Johnson, ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim. App. October 7, 2015) ...... 18, 19

State v. Pauling, 69 P.3d 331 (Wash. 2003)...... 39

State v. Robertson, 649 P.2d 569 (Or. 1982) ...... 38

State v. Strong, 272 P.3d 281 (Wash. App. 2012) ...... 36

State v. Weinstein, 898 P.2d 513 (Ariz. Ct. App. 1995) ...... 37, 38

Tobias v. State, 884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ...... 30, 34, 42, 51

U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit, 624 F. Supp. 68 (N.D. Ill. 1985) ...... 36, 38

United States v. Coss, 677 F.3d 278 (6th Cir. 2012) ...... 36

United States v. Jackson, 180 F.3d 55 (2d Cir. 1999)...... 37, 39

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) ...... 13, 33

United States v. Stevens, 559 U.S. 460 (2010) ...... 14, 20, 44, 45

United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) ...... 37

United States v. Williams, 553 U.S. 285 (2008) ...... 14, 26

Van Arsdel v. Tex. A&M Univ., 628 F.2d 344 (5th Cir. 1980) ...... 50

Virginia v. Black, 538 U.S. 343 (2003) ...... 13, 23, 36

Virginia v. Hicks, 539 U.S. 113 (2003) ...... 43

Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) ...... 28

vii

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ...... 14

Watts v. United States, 394 U.S. 705 (1969) ...... 20, 23, 36

Whimbush v. People, 869 P.2d 1245 (Colo. 1994) ...... 38

Willborn v. Deans, 240 S.W.2d 791 (Tex. Civ. App.—Austin 1951, writ ref’d n.r.e.) ...... 50

Wood v. Georgia, 370 U.S. 375 (1962) ...... 27

Wurtz v. Risley, 719 F.2d 1438 (9th Cir. 1983) ...... 36, 38

STATUTES

Tex. Penal Code § 1.07(a)(9)(F) ...... passim

Tex. Penal Code § 1.07(a)(41) ...... 17

Tex. Penal Code § 1.07(a)(48) ...... 21, 39, 43, 51

Tex. Penal Code § 36.03(a)(1) ...... passim

Tex. Penal Code § 36.03(c) ...... 18

Tex. Penal Code § 36.06(a) ...... 39, 42, 52

Tex. Penal Code § 42.07(a)(2) ...... 42

OTHER AUTHORITIES

Tex. R. App. P. 47.7...... 22

LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32 (2d ed. 1988) ...... 14

U.S. Const. amend. I ...... 13

viii

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry), and pursuant to the Court’s Order of October 7, 2015, presents his brief on the merits addressing the State’s petition for review, and would respectfully show this

Honorable Court the following:

Statement of the Case In August 2014, a two-count indictment was returned against Governor

Perry for violating Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II, coercion of public servant), and 39.02(a)(2) (Count I, abuse of official capacity) of the Texas Penal

Code by threatening to exercise, and then actually exercising, the authority to veto appropriations vested in the Governor by the Texas Constitution. CR4-5. Ten days after the indictment, Governor Perry filed an application for pretrial writ of habeas corpus contesting the legality of his restraint and seeking to bar his prosecution on both counts, primarily on constitutional grounds. CR11-70.

After the district court denied relief, CR464-84, Perry appealed to the Third

Court of Appeals, which ordered expedited briefing and denied the State’s request for oral argument. In a published opinion, that court held that all nine constitutional challenges to Count I and seven constitutional challenges to Count II were not cognizable because they were not “facial,” merely “as applied.” Slip Op. at 10-32.

The court then granted relief on Count II because the statute was facially invalid

under the First Amendment. Id. at 32-97. The court thus found it unnecessary to address Perry’s cognizable, facial vagueness challenge to the statute. Id. at 97.

Governor Perry filed his petition for discretionary review on August 18,

2015, presenting four grounds challenging the decision that Count I was not cognizable on pretrial habeas. Two weeks later, the State Prosecuting Attorney filed her petition for discretionary review attacking the court of appeals’ decision that Count II was facially invalid under the First Amendment. On October 7, 2015, this Court granted both petitions, set an expedited briefing schedule, and ordered separate arguments on each petition.

Grounds for Review 1. Did the court of appeals incorrectly conflate the tests for First Amendment overbreadth and traditional First Amendment facial unconstitutionality?

2. Applying the definition of “coercion” from Tex. Penal Code § 1.07(a)(9)(F), does the Coercion of a Public Servant statute ban a substantial amount of constitutionally protected speech relative to its plainly legitimate sweep?

Statement of Facts

A. Proceedings in the district court On August 15, 2014, a Travis County grand jury returned a two-count indictment against then-Governor James Richard “Rick” Perry alleging that

Governor Perry broke the law by threatening to veto an item of appropriations and

subsequently issuing a veto. CR4-5.1

Count II, alleging that Governor Perry committed Coercion of a Public

Servant under Sections 36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code,

states:

Beginning on or about June 10, 2013, and continuing through June 14, 2013, in the County of Travis, Texas, by means of coercion, to wit: threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney, James Richard “Rick” Perry, intentionally or knowingly influenced or attempted to influence Rosemary Lehmberg, a public servant, namely, the elected District Attorney for Travis County, Texas, in the specific performance of her official duty, to wit: the duty to continue to carry out her responsibilities as the elected District Attorney for the county of Travis, Texas through the completion of her elected term of office, and the defendant and Rosemary Lehmberg were not members of the same governing body of a governmental entity, such offense having been committed by defendant, a public servant, while acting in such an official capacity

1 Count I, which is not implicated by either of the grounds for review in the State’s petition for discretionary review, alleges that Governor Perry committed Abuse of Official Capacity under Section 39.02(a) of the Texas Penal Code. CR4-5. The gist of this count is that Governor Perry “misused” government property by vetoing funding for the Travis County Public Integrity Unit (“PIU”). CR4-5.

as a public servant.

CR5. The gist of this charge is that he attempted to “influence” Travis County

District Attorney Rosemary Lehmberg by threatening to veto funding for the PIU.

Id.2

On August 19, 2014, Governor Perry was processed by the Travis County

Sheriff and released on bond pending trial. CR8-10.

On August 25, 2014, Governor Perry filed an Application for Pretrial Writ

of Habeas Corpus (the “Application”). He challenged the legality of his restraint

and specifically sought “to bar the prosecution” on both counts. CR11, 49. The

Application presented eleven constitutional claims as to Count II, CR17-19.3

The district court gave the State almost three months to respond, which it did

on November 7, 2014. CR274. Governor Perry filed a reply on November 17,

2014. CR391.

Fourteen nationally-known constitutional scholars filed an amicus curiae

brief in support of Governor Perry’s Application. CR367-90. The amici supported

Governor Perry’s prayer for dismissal of Count II on the ground that the statutory

provisions, read together, criminalize speech protected by the First Amendment

2 In April 2015, the State conceded that the threat of the veto was “not a true threat.” See April 27, 2015 Supplemental Clerk’s Record at 88. Furthermore, the district court has interpreted Count II as alleging a Class A misdemeanor offense, as opposed to a third degree felony as contended by the State. CR441. 3 These eleven claims are also set forth in the court of appeals opinion at 7-8.

and are facially invalid. CR384-89.

On January 27, 2015, the district court denied the Application without a hearing. CR464-84. The court rejected Governor Perry’s facial challenges to

Section 36.03(a)(1), as it incorporates the definition of “coercion” contained in

Section 1.07(a)(9)(F).4 The district court, “in an abundance of precaution,” CR475, applied a strict scrutiny analysis because of the “presumption of invalidity” associated with a content based restriction on speech, citing Ex parte Lo, 424

S.W.3d 10, 14-18 (Tex. Crim. App. 2013). CR475. Despite this heightened standard, the court held that the provisions were not facially unconstitutional under the First Amendment or the Fourteenth Amendment. CR474-84.5

B. Proceedings in the court of appeals Governor Perry timely appealed to the Third Court of Appeals. The

constitutional scholars (with some additions) who had filed an amicus curiae brief

in the district court renewed their support of Governor Perry’s prayer for dismissal

of Count II. Amici urged the same two grounds as it had in the district court. On

4 These challenges were Governor Perry’s claims 1-4 as to Count II. 5 The court ruled that the remainder of Governor Perry’s constitutional challenges to both counts were not cognizable in a pretrial habeas proceeding because they supposedly raised merely as-applied, rather than facial, constitutional challenges. CR468-73. While the court acknowledged that these arguments were “compelling” and “may be relevant at a later time,” it declined to reach their merits on the mistaken belief that “the court’s hands are tied” under existing case law regarding cognizability. CR472-73. Furthermore, the district court held that Governor Perry’s one statutory challenge to Count II was not cognizable in a pretrial habeas proceeding, CR482, but the district court sustained this same statutory challenge in ruling on Governor Perry’s motion to quash. CR459-62 (sustaining challenge to Count II for failing to

July 24, 2015, the court of appeals issued an opinion and judgment.

The court of appeals began its analysis by construing the challenged statutes,

noting that “it is impossible to determine whether a statute reaches too far without

first knowing what the statute covers.” Slip Op. at 39. The court’s extensive

analysis, id. at 39-61, led it to conclude that Section 36.03(a)(1) was a far more

expansive criminal prohibition on speech than the district court had believed. Id. at

60. It also concluded that “it is this vast breadth that causes section 36.03(a)(1), as it

incorporates paragraph (F), to impinge upon substantial amounts of First

Amendment-protected speech among Texas’s public servants.” Id. at 60-61.

Then, the court considered whether the speech prohibited by the statutory

scheme was in fact protected by the First Amendment. Id. at 61 et seq. Applying recognized First Amendment case law, it concluded that the statutory scheme criminalized “core political speech,” which includes “speech by public servants regarding their official actions that is aimed at prompting other public servants to undertake official action.” Id. at 62. Because the First Amendment’s protections are at their “zenith” for such speech, id., the court rejected the State’s arguments that public servants like Governor Perry have either no First Amendment rights at all or limited rights that can be restricted by law. Id. at 63-71. The court also concluded that none of the historical exceptions to First Amendment protections,

negate statutory exception and granting State leave to amend).

such as the exception for speech that is integral to criminal conduct, apply here.

Id. at 71-85.6

Next, the court addressed whether the statutory scheme’s “impingement” on

First Amendment rights “can be justified.” Id. at 85. Because Section 36.03(a)(1)

“targets speech having a specified content (communicated intent to inflict one of the six categories of harms enumerated in the ‘coercion’ definition) based on the communicative impact the threat has or is intended to have (bringing about certain specified conduct of a public servant),” the court concluded that it “must be classified as a ‘content-based’ speech prohibition—on its face.” Id. at 85-86. Thus, the State bore the burden to rebut the presumption of invalidity by showing that the statutory scheme satisfies the applicable “strict scrutiny” standard. Id. at 86.

Accordingly, the State had to prove that the statutory scheme “[is]

(1) necessary to serve (2) a compelling state interest and (3) [is] narrowly drawn

(i.e., that it employ[s] the least restrictive means to achieve its goal and there [is] a close nexus between the government’s compelling interest and the restriction).”

Id. Although the court “assum[ed] without deciding” that the State’s “asserted interests would rise to the level of ‘compelling,’“ it concluded that “section

6 The court concluded that “[t]hese kinds of threats are ‘speech incident to criminal conduct’ only if the basic workings of government are considered criminal conduct, a proposition we cannot sanction.” Slip Op. at 82. The court noted that the State’s attempt to characterize “these threats as ‘coercive’“ so as to “displace them from the First Amendment protections” ran afoul of Supreme Court precedent that “‘offensive’ and ‘coercive’ speech [is] nevertheless protected by the First Amendment.” Id. at 82 & n.269.

36.03(a)(1), as it incorporates paragraph (F)” is not “‘narrowly drawn’ to achieve those objectives.” Id. at 87. The court reasoned that it “begins to strain even rational-basis scrutiny to conclude that a statute that goes as far as to criminalize a public servant’s threat merely to lawfully exercise his delegated powers as a related consequence of another public servant’s failure or refusal to comply with a lawful demand for action would protect ‘the integrity’ of government or prevent

‘interference’ with public servants’ performance of their delegated functions.” Id. at 87-88. Indeed, “[i]f anything, the effect of the statutes in those circumstances would be to undermine these interests by criminalizing much of the ordinary day- to-day workings of government. And to the extent the unique circumstances of the judicial process might justify the prosecution as it would apply in that context,” the statutory “proscription extends far more broadly.” Id. at 88.

The court also concluded that Section 36.03(a)(1), as it incorporates

1.07(a)(9)(F), was not “necessary” to effectuate the State’s interests. Id. Noting

Governor Perry’s comparisons to this Court’s opinion in Ex parte Lo, 424 S.W.3d

10 (Tex. Crim. App. 2013), the court “agree[d] that while some applications of section 36.03(a)(1) and paragraph (F) may be permissible or justified under the

First Amendment, Lo’s rationale would be an additional reason for invalidating the statute as to other applications.” Id. at 88-89.

The court then addressed whether the “‘alarming’ breadth” of the statutory

scheme, “reaching even a public servant’s declared intention to take or withhold action lawfully, aimed at bringing about another public servant’s lawful action that the first public servant could lawfully demand or require,” id. at 88, could be saved by any “reasonable narrowing construction.” Id. at 91. Finding a plausible narrowing construction to be legally untenable, id. at 89-96, the court held that

“section 36.03(a)(1), as it incorporates paragraph (F) of the Penal Code’s

‘coercion’ definition, is facially invalid under the First Amendment and is thus unenforceable.” Id. at 97. And “[b]ecause this holding entitles Perry to habeas relief with respect to Court II of the indictment,” the court decided that it “need not address his remaining arguments.” Id.

Summary of the Argument The court of appeals correctly analyzed and decided Governor Perry’s First

Amendment challenges to Section 36.03(a)(1), as it incorporates the definition of

“coercion” in Section 1.07(a)(9)(F): a “threat, however communicated” “to take or

withhold action as a public servant.” The court properly concluded that the statutory

scheme criminalizes all statements by public servants that threaten lawful action and

merely have the effect of influencing another public servant. The court properly

found this scheme criminalized only speech, not conduct. And it also properly

concluded that the statutory scheme penalizes not unprotected speech, but “core

political speech” for which First Amendment’s protections are at their “zenith.”

The State’s arguments that the statutory scheme does not implicate the First

Amendment were properly rebuffed by the court of appeals. The speech

criminalized by the statutes does not fall into any historical exception to the First

Amendment. The statutory scheme does not require a “true threat:” “statements

where the speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence.” Nor does it require a threat of “unlawful”

action, and it does not apply to speech that is integral to criminal conduct.

The court of appeals also properly rejected the State’s arguments that

Governor Perry’s speech was “governmental speech” exempt from the protections

of the First Amendment and that he himself has no First Amendment rights

because he was a public servant.

Importantly, the appeals court faithfully followed this Court’s prior opinions

by concluding that the statutory scheme was a content-based restriction on First

Amendment rights. Recognizing the presumption of invalidity and corresponding strict scrutiny standard that apply to content-based restrictions, the appeals court properly found that the statutory scheme was not necessary to serve any state interests. And before invalidating the statutory scheme, the appeals court properly examined whether the breadth of its proscriptions are capable of any narrowing construction. Simply stated, the court of appeals reached an undeniably correct result, even without addressing Governor Perry’s facial vagueness arguments.

Argument

A. Introduction The State’s grounds for review ask whether the court of appeals erred in holding that Section 36.03(a)(1), as it incorporates the definition of “coercion” contained in Section 1.07(a)(9)(F), “is facially unconstitutional under the First

Amendment overbreadth doctrine.” State PDR at 2.

Governor Perry urges this Court to affirm the judgment of the court of appeals on precisely the grounds set forth in the court of appeals’ opinion. It correctly mirrors the analysis used by this Court in its recent pronouncements, and accurately analyzes the statutory scheme and legal issues attendant to its conclusion that “section 36.03(a)(1), as it incorporates paragraph (F) of the Penal

Code’s ‘coercion’ definition, is facially invalid under the First Amendment and is thus unenforceable.” Slip Op. at 97. Additionally, since the court of appeals declined to address Governor Perry’s facial vagueness claims, this Court should consider whether the grant of discretionary review was improvidently granted since, if this Court reverses the court of appeals’ decision on Count II, the merits of the unaddressed, cognizable and dispositive facial vagueness challenge will still have to be addressed by this Court or the court of appeals.

B. The court of appeals opinion correctly analyzed and decided Governor Perry’s First Amendment challenges

1. First Amendment Principles The First Amendment, which has been incorporated by the Due Process

Clause of the Fourteenth Amendment to apply to the states, e.g., Virginia v. Black,

538 U.S. 343, 358 (2003), provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. Core political speech, such as the alleged statement by Governor Perry that he would exercise his veto power if

Lehmberg did not resign her office, lies at the very heart of First Amendment protection. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)

(courts must apply “exacting scrutiny” to laws burdening core political speech);

Meyer v. Grant, 486 U.S. 414, 425 (1988) (First Amendment protection is “at its zenith” for core political speech). This heightened protection stems from our

“profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376

U.S. 254, 270 (1964). “Content-based regulations are presumptively invalid, and it is rare that a regulation restricting speech because of its content will ever be permissible.” Ex parte Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014)

(citing Sorrell v. IMS Health, 131 S.Ct. 2653, 2667 (2011) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)) and Brown v. Entm’t Merchants Ass’n, 131

S. Ct. 2729 at 2738 (2011) (citing United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 818 (2000); Ex parte Lo, 424 S.W.3d at 15.

To succeed in a typical facial attack, a defendant must establish “that no set of circumstances exists under which [the statute] would be valid,” or that the statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S.

460, 472 (2010) (citations and quotation omitted). However, in the context of the

First Amendment, the Supreme Court recognizes “a second type of facial challenge,” whereby a law may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 473 (quoting Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation marks omitted)). Thus, a statute is facially unconstitutional and violates the overbreadth doctrine if “it prohibits a substantial amount of protected speech.” United States v.

Williams, 553 U.S. 285, 292 (2008). A law that is overbroad cannot be validly applied against any individual. LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL

LAW § 12-32, 1036 (2d ed. 1988). Courts must not “uphold an unconstitutional

statute merely because the Government promised to use it responsibly.”

Thompson, 442 S.W.3d at 350 (quoting Stevens, 559 U.S. at 480).

In addition, a statute regulating the content of speech is subject to “strict

scrutiny” and will be invalidated unless it constitutes the “least restrictive means”

of effectuating a “compelling [state] interest.” Ashcroft v. Am. Civil Liberties

Union, 542 U.S. 656, 658, 666 (2004); Ex parte Lo, 424 S.W.3d at 19; Ex parte

Thompson, 442 S.W.3d at 348. A statute that prohibits protected speech “is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve,” and “the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute.” Ashcroft, 542 U.S. at 665 (quoting Reno v.

Am. Civil Liberties Union, 521 U.S. 844, 874 (1997).

2. The Statutory Framework The first step in evaluating Governor Perry’s facial challenges requires an examination of the relevant statutory language. Section 36.03, entitled “Coercion of Public Servant or Voter,” provides the following:

(a) A person commits an offense if by means of coercion he:

(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or

(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.

(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.

(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an

official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.

Coercion, as used in Section 36.03(a)(1), is defined in Section 1.07(a)(9) of the Texas Penal Code as follows:

(9) “Coercion” means a threat, however communicated:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

The term “public servant” is defined in Section 1.07(a)(41) of the Texas

Penal Code as follows:

(41) “Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:

(A) an officer, employee, or agent of government;

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.

The statutory language that forms the basis for Count II is written in broad strokes. It begins with Section 36.03(a)(1), which makes it a crime to coerce a public servant. An individual commits an offense if he or she, “by means of coercion . . . influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.” Tex. Penal Code § 36.03(a)(1). “Coercion” is then defined in the definition section of the Penal Code as “a threat, however communicated,” to do six distinct things, including “to take or withhold action as a public servant, or to cause a public servant to take or withhold action.” Id. § 1.07(a)(9)(F). “Public servant” is also defined broadly to encompass all aspects of state government, including any “officer, employee, or agent of government,” “a juror or grand juror,” “an arbitrator,” a political candidate, and even “an attorney at law or notary public when participating in the performance of a government function.” Id. §

1.07(a)(41). Against this expansive sweep, the coercion statute contains a single, narrow exception, for “member[s] of the governing body of a governmental entity”

when they take “official action.” Id. § 36.03(c).

3. The court of appeals was faithful to this Court’s binding precedents. The court of appeals’ opinion closely mirrors the structure and legal analysis utilized by this Court in Ex parte Lo, supra, Ex parte Thompson, supra, and State

v. Johnson, ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim.

App. October 7, 2015). That opinion correctly applies well established First

Amendment jurisprudence from these and other cases.

Lo involved a pretrial writ of habeas corpus alleging that a specific

subsection of the felony offense of online solicitation of a minor (Section

33.0121(b) of the Texas Penal Code) was facially unconstitutional. 424 S.W.2d at

14-15. Lo determined that the statute was a “content-based” regulation of speech, and therefore applied the constitutionally required presumption of invalidity and

the corresponding “strict scrutiny” test. Id. The Court concluded that the statute is

“overbroad because it prohibits a wide array of constitutionally protected speech

and is not narrowly drawn to achieve only the legitimate objective of protecting

children from sexual abuse.” Id. at 14.

Thompson also involved a pretrial writ of habeas corpus alleging that a

specific subsection of the improper photography statute (Section 21.15(b)(1) of the

Texas Penal Code) was facially unconstitutional in violation of the First

Amendment. 442 S.W.3d at 331. This Court agreed, holding that the statute was a

“content-based” regulation of speech that did not satisfy “strict scrutiny” because it is not “the least restrictive means of achieving the compelling government interest in question.” Id. at 348-349. The Court then, out of “an abundance of caution,” engaged in an overbreadth analysis and concluded that the statute was substantially overbroad. Id. at 349-351.

In Johnson, this Court followed an approach similar Lo and Thompson in

striking down the flag-destruction statute, Section 42.11 of the Texas Penal Code,

as facially invalid on its face because it is unconstitutionally overbroad in violation

of the First Amendment. Johnson, 2015 WL 5853115, at *2.

The court of appeals reached the correct result under Lo, Thompson and

Johnson. As in those cases, the court of appeals determined that the statutory

scheme was content-based, and then applied “strict scrutiny” to find it facially

invalid because it was not sufficiently narrowly drawn to achieve any legitimate

objectives behind them. Thus, far from conflating legal concepts,7 as the State’s petition for discretionary alleges,8 the court of appeals correctly analyzed the First

7 In R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992), the Supreme Court granted certiorari to examine petitioner’s claim that the St. Paul ordinance “violat[es] overbreadth ... principles of the First Amendment. The Court elected not to engage in an traditional overbreadth analysis, observing that petitioner had advanced “not just a technical ‘overbreadth” claim—i.e., a claim that the ordinance violated the rights of too many third parties,” but also “included the contention that the ordinance was ‘overbroad’ in the sense of restricting more speech than the Constitution permits, even in its application to him, because it is content based.” The Court concluded “that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” Id. 8 The State claims that “whether the statute is content based never enters into overbreadth

Amendment implications of Section 36.03(a)(1), as it incorporates Section

1.079(a)(9)(F).

4. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), implicates the First Amendment. “Coercion” is defined as a “threat,” “however communicated,” to do or perform one or more of the six types of actions defined in 1.07(a)(9)(A-F). While the term “threat” is not statutorily defined, this Court has previously defined “threat” as “a communicated intent to inflict harm or loss on another or on another’s property.” Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). It is therefore clear that the Legislature has limited “coercion” to speech, excluding conduct from the statute’s purview. Thus, the statute on its face necessarily implicates the First Amendment. Watts v. United States, 394 U.S. 705, 706-07 & n.* (1969) (written or oral threats “to take the life or to inflict bodily harm upon the

President” or others in line of succession “makes criminal a form of pure speech”).

5. The State’s arguments that the statutes do not implicate the First Amendment are without merit. The State argues that the court of appeals erred at the outset because coercive threats are outside the protection of the First Amendment. This claim is

analysis, State PDR at 5, but this is inaccurate. In United States v. Stevens, 559 U.S. 460 (2010), relied upon by the State in its petition, the Supreme Court invalidated the animal cruelty statute because it was “substantially overbroad,” 559 U.S. 482, but it did so only after concluding that the statute was “presumptively invalid” because it “explicitly regulates expression based on content.” Id. at 468. The Court’s overbreadth analysis compared the presumptively

without merit.

In the court of appeals, the State argued that Governor Perry’s speech was unprotected because it amounted to a “retaliatory act,” “verbal extortion,” or a

“quid pro quo threat[] made under a display of authority and power.” St. Br.at 6-7.

But the sections under challenge criminalize far more than retaliation, extortion, and quid pro quo threats. See App.Br. at 10-17.

The State reads both statutes in isolation to attempt to negate their actual

effect. But when Section 36.03(a)(1) is read, as it must be, in conjunction with

Section 1.07(a)(9)(F), “coercion” need not be illegal, unlawful, tortious, or even a

“true threat.” Read together, the statutes cannot be read narrowly.9

a. The State’s cases are distinguishable. The cases cited by the State cannot save these statutes from facial invalidity.

The State’s main authority, Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston

[14th Dist.] 1990, pet. ref’d), addressed both facial and as-applied challenges to the

more narrowly drawn retaliation statute, Section 36.06(a), by a defendant who

“repeatedly stated in no uncertain terms that he would kill [the arresting officer]

impermissible as opposed to the permissible applications of the statute. 9 Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section 36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code § 1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with Section 1.07(a)(9)(F), covers any and all speech that can be construed as a “threat” if it otherwise meets the requirements of Section 36.03(a)(1).

when he got out of jail.” Id. at 194. The court said that “it is clear that these statements by [Puckett] could reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,” and hence not protected speech. Id.

Similarly, Bd. v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—

Austin May 29, 1998, pet. ref’d) (not designated for publication),10 involved a

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

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

expose a person to hatred, contempt or ridicule.” Id. at *4 (citation and quotation

omitted). Thus, even if this unpublished opinion had any precedential value, it

does not apply to the same statutory scheme involved here. Finally, Duncantell v.

State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d), involved the rejection of an overbreadth challenge to the “interference with public duties” statute, Section 38.15(a)(1) of the Texas Penal Code. The Court found that the defendant engaged in conduct which he knew or should have known would interrupt, disrupt, impede, or interfere with a peace officer performing a duty imposed by law, “such as investigating an accident or arresting a criminal suspect.”

230 S.W.3d at 844. That, the court held, was “not expressive conduct protected by the First Amendment.” Id. (emphasis added). Importantly, the court specifically noted that Section 38.15(d) “provides that it is a defense to prosecution under the

10 Board has no precedential value under Tex. R. App. P. 47.7.

statute if the interruption, disruption, impediment, or interference alleged consists of speech only.” Id. at 843 (emphasis added). Accordingly, the court stated “we must only examine the interference statute’s limitations on conduct to determine if it restricts a substantial amount of constitutionally protected conduct.” Id. at 844-

45 (emphasis added).

None of these cases are relevant. Governor Perry was indicted under a materially different provision of the Penal Code, Section 36.03(a)(1), in

conjunction with the broader definition of “coercion” in Section 1.07(a)(9)(F). But

even if Puckett, Board, and Duncantell supported the State’s markedly narrow

view of First Amendment protections, they would not bind this Court because they

would be irreconcilable with the requirement that only “true threats”—which the

U.S. Supreme Court has defined as “statements where the speaker means to

communicate a serious expression of an intent to commit an act of unlawful

violence”—lack First Amendment protection. Black, 538 U.S. at 359 (no

protection for cross burning that communicates threat of bodily harm or death); see

also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President

of the United States).

Moreover, the State never acknowledges, let alone distinguishes, cases cited

by Perry and expressly relied on by the court of appeals, like N.A.A.C.P v.

Claiborne Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech

does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” (Emphasis added). The facts of Claiborne are particularly instructive. There, a civil-rights boycott organizer warned that boycott breakers would be “disciplined,” and that “if we catch any of you going into any of them racist stores, we’re gonna break your damn neck.” Id. at 902. While such statements “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence,” id. at 927, they still enjoyed

First Amendment protection because expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Id. at 913

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

Austin v. Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; that is not fundamentally different from the function of a newspaper.” (Emphasis added)).

Furthermore, the State relies on language in Sanchez v. State, 995 S.W.2d

677, 688 (Tex. Crim. App. 1999), noting that “verbal extortion ‘has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official oppression by sexual harassment under Section 39.03(a)(3)—merely analogized

sexual harassment by a public servant to official extortion and bribery on the ground that “the receipt of someone’s submission to sexual conduct” was comparable to “the use of official power to obtain a benefit to which the official was not otherwise entitled” in the form of “money or tangible property.” 995

S.W.2d at 688.11 Count II of the indictment does not allege extortion, bribery, or

receipt of a personal benefit. More importantly, any such allegations would be

irrelevant to Governor Perry’s facial challenge because the plain language of

Section 36.03(a)(1) and Section 1.07(a)(9)(F) extends far beyond extortionate

threats or bribery.

b. The court of appeals was correct that Governor Perry did not lose his First Amendment rights by holding public office. The State also advances the novel claim that Governor Perry cannot make a

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

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

Amendment rights. See St.Br. at 8-10. The State cites two recognized instances of

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

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

11 In Sanchez, this Court commented that if the official oppression statute were to cover “conduct welcomed by the recipient in a corrupt bargain,” then such conduct could also be prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 684 & n.5. Similarly, if there were any facts supporting the State’s use of its colorful metaphors such “retaliatory act,” “verbal extortion,” or “quid pro quo threat” then the State could have sought an indictment under other, arguably applicable statutes.

(2) the concept of government speech itself. Id. The court of appeals properly rejected both of these. Slip Op. at 63-71.

But neither of these principles has anything to do with criminalizing speech, much less criminalizing an elected official’s political speech through the mechanism of an overboard statute. First, from a strictly legal standpoint, facial overbreadth analysis deals not with the statute as applied to the particular defendant, but whether “it prohibits a substantial amount of protected speech.”

Williams, 553 U.S. at 292. Governor Perry’s own First Amendment rights are therefore irrelevant to the resolution of his facial overbreadth challenge.

With regard to government-employee speech, the State points out that the

First Amendment generally does not protect statements made by public servants in the course of their employment. St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S.

410, 422 (2006)). But this employee-speech “exception” is not really an exception at all—it just makes unelected public servants, who are employees, subject to civil employment-law standards comparable to employees in the private sector. Just like a private employer, governmental entities “need a sufficient degree of control over their employees’ words and actions” to ensure the “provision of public services.” Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143

(1983) (“[G]overnment offices could not function if every employment decision became a constitutional matter.”).

The rights of those directly selected by the people to govern, such as the

Governor of Texas, are not so limited. Indeed, political speech by elected officials, whose “relationship with [their] employer [i.e., the people] differs from that of an ordinary state employee,” “is at the core of the First Amendment.” Jenevein v.

Willing, 493 F.3d 551, 557 (5th Cir. 2007) (Texas Judicial Conduct Commission violated First Amendment rights by censuring elected judge for public criticism of attorney practicing in his court). “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395

(1962) (reversing contempt conviction of elected sheriff based on criticism of court’s grand jury investigation). The Supreme Court has expressly rejected the idea that the First Amendment protects only the “citizen-critic” and not elected officials as well. Bond v. Floyd, 385 U.S. 116, 136 (1966) (state legislature violated elected representative’s First Amendment rights by refusing to seat him based on his controversial remarks about the Vietnam War).

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

“government speech” exempt from the First Amendment—as if anything uttered by a government employee, or the Governor himself, can be criminalized without any First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for this bizarre and frankly dangerous notion have nothing whatsoever to do with

criminalizing speech. They merely acknowledge that the First Amendment generally allows the government to communicate its own particular viewpoints without subsidizing or promoting other viewpoints to the same extent as its own.

See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (city could select which monuments to place in public park); Johanns v. Livestock Mktg. Ass’n, 544

U.S. 550, 561 (2005) (federal government could choose to spend money promoting beef consumption). The Supreme Court recently reaffirmed this doctrine in

Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239

(2015) (Texas could constitutionally exclude from its specialty license plates

SVC’s proposed design featuring the Confederate battle flag).12 But none of these

cases authorize the government to criminalize speech by government employees or

anyone else, must less elected leaders.

Even if First Amendment protections were somehow withdrawn from

“government speech” as a general proposition, Governor Perry’s alleged threat is

not the sort of officially-sanctioned “government speech” involved in the cited

cases. His statements—which the State in its “bill of particulars” now concedes

were never made directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were

12 Walker holds that “specialty license plates issued pursuant to Texas’ statutory scheme convey government speech.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015). The Court stated that because “the government can speak for itself,” and “[w]hen the government speaks, it is not barred by the Free Speech clause from determining the content of what it says,” Texas could constitutionally exclude from its license plate SVC’s proposed design and logo. Id. at 2245-46.

merely “implied or disguised,” see St.Br. at xvi—were not presented as the official viewpoint of the State of Texas, but rather his own viewpoint as the Governor of

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

Commandments monument when it “took ownership of that monument and put it on permanent display in a park that it owns and manages and that is linked to the

City’s identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was government speech because the activities were “prescribed by law in their general outline” and “developed under official government supervision”). The State wants to have it both ways: characterizing Governor Perry’s alleged speech as the official position of the State while at the same time prosecuting him as an individual for

expressing it.

From its faulty premise that speech by government officials enjoys no First

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

the speech of its own members without running afoul of the First Amendment, even if that requires restricting some “incidental” private speech in the process.

St.Br. at 10-11. The State argues that the specific statutory language at issue merely restricts private speech in order to express the “viewpoint” that “official speech should not be coerced speech.” Id.

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

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

criminalize any private speech made with the intent to influence the speech (or conduct) of a public official, regardless of the words used, without further First

Amendment concerns. Section 36.03(a)(1), it must be recalled, is applicable to any citizen, whether that citizen is a public official, a public official acting in his individual capacity, or a private citizen.13 Thus, under the State’s argument, a

newspaper editorial expressing the personal view of the editor, which was intended

to pressure and have a “coercive impact” on a public servant, could be

criminalized, even though the First Amendment clearly protects such speech. Org.

for a Better Austin, 402 U.S. at 419 (emphasis added).

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

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

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

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

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

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

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

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

13 Count II specifically alleges that Governor Perry was “acting in an official capacity as a public servant.” But the statutory language allows prosecution of a private citizen as well as a public servant, regardless of whether the public servant is speaking in his public or individual capacity. See e.g., Tobias v. State, 884 S.W.2d 571, 577 (Tex. App.—Fort Worth 1994, pet. ref’d); Phillips v. State, 401 S.W.3d 282, 287-89 (Tex. App.—San Antonio 2013, pet. ref’d).

Section 36.03(a)(1). Indeed, when the defendant is himself or herself a certain type of public servant (i.e., “a member of the governing body of a governmental entity”) and the defendant takes “official action” that “influences or attempts to influence a public servant” (i.e., the alleged victim of the “coercion”), there is no crime under Section 36.03(a)(1). The statutory exception negates the State’s argument here that the Legislature was attempting to limit its own speech. But even if the State’s explanation were not so obviously wrong on so many levels, the

State never explains how the Legislature, under the guise of “regulating its own speech,” could abrogate individual members’ constitutional rights, much less those of private citizens throughout Texas. Both have the right to say anything to a public servant as long as it is does not constitute a “true threat.”

Simply stated, none of the State’s arguments attempting to deflect the impact of the First Amendment on Section 36.03(a)(1), as it incorporates the definition of

“coercion” from Section 1.07(a)(9)(F), has any merit.

6. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), is a content-based restriction on speech. The coercion statute does not target all threats against a public servant, but only those with a certain content—i.e., “threat[s] . . . to take or withhold official action” that “attempt to influence or influence” public servants. Tex. Penal Code

§§ 1.07(a)(9)(F), 36.03(a)(1). As such, it distinguishes “favored speech from

disfavored speech on the basis of the ideas or views expressed” and is clearly content-based. Ex parte Thompson, 442 S.W.3d at 345; Ex parte Lo, 424 S.W.3d at 15-14 In the court of appeals, the State itself conceded that Section 36.03(a)(1) and Section 1.07(a)(9)(F) are content-based restrictions on speech. St. Br. 14-15.

Thus, “strict scrutiny” is the proper standard of review, “because, ‘as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Ex parte Lo, 424 S.W.2d at 16 (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573

(2002)). Under that standard, the statute is presumed invalid. Ex parte Thompson,

442 S.W.3d at 344-345; Ex parte Lo, 424 S.W.3d at 15.

In the court of appeals, the State disputed that strict scrutiny applied for the same reasons it proffered that Governor Perry lacked any free speech rights. It claimed that the presumption of constitutionality applies to the statutes because

“regulating coercive threats by public officials is distinct from regulating purely political speech by private citizens.” St.Br. at 14-15. And it suggested that strict scrutiny is inapplicable because “only content-based regulations on private citizen’s speech would be held presumptively invalid and subject to strict

14 In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015), the Supreme Court specifically observed that “a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation even if it imposed no limits on the political viewpoints that could be expressed.” Reed further compels the conclusion that the limitation the statutory scheme, proscribing communications by one public official to another that threaten to take or withhold official action, is a content-based restriction.

scrutiny.” St.Br. at 19-20 (emphasis in original). But these attempts to divorce the protections of the First Amendment from the government are, as has been discussed above, incorrect.

7. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), fails to satisfy “strict scrutiny.” Under strict scrutiny, a law regulating speech or expression may be upheld only if it is narrowly drawn to serve a compelling government interest. Ex parte

Thompson, 442 S.W.3d at 344; Ex parte Lo, 424 S.W.3d at 15-16, 19. A statute is

“narrowly drawn” if it uses the least restrictive means of achieving the government interest.” Ex parte Thompson, 442 S.W.3d at 344; Playboy Entm’t Grp., Inc., 529

U.S. at 813; Ex parte Lo, 424 S.W.3d at 15-16, 19. Such “content-based regulations are presumptively invalid, and ‘[i]t is rare that a regulation restricting speech because of its content will ever be permissible.’” Ex parte Thompson, 442

S.W.3d at 348 (citing Sorrell v. IMS Health 131 S. Ct. 2653, 2667 (2011) (quoting

R.A.V. v. City of St. Paul, 505 U.S. at 382) and Entm’t Merchants Ass’n, 131 S. Ct.

2729 at 2738 (citing Playboy Entm’t Grp., 529 U.S. at 818)).

The State cannot salvage Sections 36.03(a)(1) and 1.07(a)(9)(F) by arguing that they are the least restrictive means of achieving a compelling state interest.

Any compelling state interests are already addressed by the other types of threats that constitute “coercion” under Section 1.07(a)(9). The State surely has a

compelling interest in preventing threats of unlawful or criminal acts against public servants, but Section 1.07(a)(9)(A) already covers threats “to commit an offense.”

And while the State has a compelling interest in preventing threats of violence against public servants, Tobias v. State, 884 S.W.2d 571, 580-81 (Tex. App.—Fort

Worth 1994, pet. ref’d), this interest is already addressed by Section

1.07(a)(9)(B)’s coverage of threats “to inflict bodily injury in the future on the person threatened or another.” And to the extent extortionate threats against public servants are not already covered by these prior two provisions, Sections

1.07(a)(9)(C) through (E) address threats of defamation and invasion of privacy.

In short, there is no compelling state interest left to serve by Section

1.07(a)(9)(F)’s catch-all coverage of threats “to take or withhold action as a public servant.” The only discrete function of this provision, when combined with

Section 36.03(a)(1), is to prohibit constitutionally-protected speech.

An analogous situation was presented in Ex parte Lo, 424 S.W.3d 10 (Tex.

Crim. App. 2013), in which this Court struck down a subsection of the Penal Code which prohibited sex-related online communications with minors. That statute

(like the one here) was a “content-based regulation” and “presumptively invalid.”

Id. at 15. According to the Court, the statute was not narrowly tailored because

“everything that [it] prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to

minors, solicitation of a minor, or child pornography) or is constitutionally protected,” such as sexually explicit works of literature and popular television shows and movies. Id. at 20 (emphasis in original). The same logic applies to

Sections 36.03(a)(1) and 1.07(a)(9)(F). See also Thompson, 442 S.W.3d at 349-50

(striking down as overbroad a criminal photography statute because, while the statute had some “legitimate applications,” it “appl[ied] to any non-consensual photograph, occurring anywhere, as long as the actor ha[d] an intent to arouse or gratify sexual desire,” including photographs of celebrities and public sunbathers).

C. Even if the court of appeals erred in its reasoning, its judgment was correct for other reasons.

1. Section 36.03(a)(1), as it incorporates the definition of “coercion” from Section 1.07(a)(9)(F), is overbroad. The court of appeals’ judgment was also correct because the statutes forming the basis for Count II, when read together, are overbroad. See Ex parte Thompson,

442 S.W.3d at 349-351.

The court of appeals discussed the overbreadth of the statutory scheme throughout its opinion, but did not formally declare the provisions violative of the

First Amendment overbreadth doctrine. It held only that “section 36.03(a)(1), as it incorporates paragraph (F) of the Penal Code’s ‘coercion’ definition, is facially invalid under the First Amendment and is thus unenforceable.” Slip Op. at 97.

As noted above, a state can outlaw threats of violence against a public

servant without raising any First Amendment concerns. “True threats”—which the

U.S. Supreme Court has defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence”—have no First Amendment protection. Black, 538 U.S. at 359 (no

protection for cross burning that communicates threat of bodily harm or death); see

also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President

of the United States). Threats to commit an unlawful act are also generally not

protected. See Wurtz v. Risley, 719 F.2d 1438, 1442 (9th Cir. 1983) (no protection

for threat to commit rape); U.S. ex rel. Holder v. Circuit Court of 17th Judicial

Circuit, 624 F. Supp. 68, 71 (N.D. Ill. 1985) (no protection for threat to damage

property). And courts have also held that the First Amendment does not protect

extortion (i.e., threats of harm or defamation made to obtain a wrongful profit).

See United States v. Coss, 677 F.3d 278, 289-90 (6th Cir. 2012) (no protection for

threat to damage reputation made with intent to wrongfully obtain property); cf.

Sanchez v. State, 995 S.W.2d 677, 687-88 (Tex. Crim. App. 1999) (no protection

for sexual harassment made with intent to wrongfully obtain sexual favors); see

also State v. Strong, 272 P.3d 281, 287 (Wash. App. 2012) (noting that extortion

involves “compelling of the victim to give up property” and is thus “an extension

of theft”).

“Speech does not lose its protected character, however, simply because it

may embarrass others or coerce them into action.” Claiborne Hardware Co., 458

U.S. at 886 at 910. Most threats do not fall into the categories of unprotected speech listed above and instead enjoy “broad protection” under the First

Amendment. All. to End Repression v. City of Chicago, 742 F.2d 1007, 1014 (7th

Cir. 1984). Non-extortionate threats to commit lawful action are protected by the

First Amendment, even if they influence another public servant. See State v.

Hanson, 793 S.W.2d 270, 272 (Tex. App.—Waco 1990, no pet.) (“Coercion of a lawful act by a threat of lawful action is protected free expression.”). And courts have recognized that “a threat to cause economic loss is not inherently wrongful.”

United States v. Jackson, 180 F.3d 55, 70 (2d Cir. 1999) (listing, as examples, a consumer’s threat to sue for breach of warranty or file a complaint with a consumer protection agency). Indeed, threats are “common in everyday business and personal interactions.” State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App.

1995) (listing, as examples, car owner’s threat to tell friends not to patronize a dealer unless repairs are made, a store owner’s threat to report a customer to a credit reporting agency unless bills are paid, and a mother’s threat to report her ex- husband to the court if he fails to pay back child support). Threats are also common in American political discourse, often being inseparable from ideas or advocacy. See United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985)

(giving, as an example, a threat to picket an organization to induce social or

political action). Even threats to commit minor criminal offenses (such as threats of civil disobedience) can be protected speech. See Wurtz, 719 F.2d at 1442

(listing, as examples, threats of sit-ins, marches in the street, and mass picketing);

Holder, 624 F. Supp. at 70 (listing additional examples).

Given the broad protection accorded to threats under the First Amendment, courts have not hesitated to strike down broadly-written coercion and extortion laws on grounds of overbreadth. See, e.g., Wurtz, 719 F.2d at 1441-42 (striking down Montana intimidation statute prohibiting threats “to commit any criminal offense,” no matter how minor or the purpose of the threat); Holder, 624 F. Supp. at 71 (striking down Illinois intimidation statute prohibiting threats to “commit any criminal offense”); Weinstein, 898 P.2d at 515 (striking down extortion statute that prohibited obtaining property by threats to expose disreputable information, which impinged on legitimate negotiation tactics); Whimbush v. People, 869 P.2d 1245,

1247-48 (Colo. 1994) (striking down extortion statute prohibiting making any threat to harm with intent to induce action, which improperly “covers threats of collective action in support of group demands”); State v. Robertson, 649 P.2d 569,

589-90 (Or. 1982) (striking down coercion statute prohibiting a wide range of threats merely intended to induce some action by another); City of Seattle v. Ivan,

856 P.2d 1116, 1120 (Wash. App. 1993) (striking down city’s coercion ordinance which prohibited a wide range of threats merely intended to induce some action by

another). Other courts have given coercion and extortion statutes narrow constructions to avoid constitutional issues. See, e.g., Jackson, 180 F.3d at 70

(construing extortion statute to only include “wrongful” threats to obtain property from another, and recognizing that some threats to obtain property are legitimate negotiation tactics); People v. Iboa, 207 Cal. App. 4th 111, 120-21 (2012) (statute proscribing use of “threats” to interfere with duties of executive officer construed as limited to “threats of unlawful violence”); State v. Pauling, 69 P.3d 331, 387-89

(Wash. 2003) (narrowing otherwise overbroad extortion statute to only include

“wrongful” threats made with intent to obtain property from another).

As written, Sections 36.03(a)(1) and 1.07(a)(9)(F) criminalize a breathtaking amount of constitutionally protected speech. As explained above, they purport to criminalize (with only one exception) any threat by a public servant to take any official action as a means of merely influencing the conduct of any other public servant.15 Importantly, the statute is not limited to threats of “unlawful” conduct,

see Tex. Penal Code § 1.07(a)(48) (defining “unlawful” as “criminal or tortious or

both”), in contrast to other similar statutes. See, e.g., id. § 36.06(a) (illegal to

“intentionally or knowingly . . . threaten[] to harm another by an unlawful act” in retaliation for public service (emphasis added)).

15 The statute also applies to all citizens, even public servants acting in their individual capacities, who attempt “to cause a public servant to take or withhold action” under the last clause of Section 1.07(a)(9)(F).

The implications are astounding, as they would render criminal many common scenarios in state government. For instance, a manager could not threaten to fire or demote a government employee unless the employee increased his productivity. A government employee could not threaten to resign unless her pay or benefits were increased, or to file a complaint unless workplace harassment were stopped. A judge could not threaten to sanction an attorney for the State, to declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed to contain certain information. An inspector general could not threaten to investigate an agency’s financial dealings. A prosecutor could not threaten to bring criminal charges against another public servant. A university administrator could not threaten to withdraw funding from a professor’s research program. A public defender could not threaten to file a motion for suppression of evidence to secure a better plea bargain for his client. A prosecutor could not communicate to a judge in chambers his intent to file a potentially embarrassing motion to recuse unless the judge voluntarily recused herself. Were it not for the fact that members of a “governing body” are excepted from the statute, even members of the House and Senate would presumably be breaking the law when they negotiated among themselves to resolve differences in conference committee.16 The list is virtually

16 Indeed, even a threat directed against a third party can trigger criminal liability if intended to influence a public servant. See Phillips v. State, 401 S.W.3d 282, 289 (Tex. App.— San Antonio 2013, pet. ref’d) (upholding conviction of 911 caller who threatened to kill

endless.17 Statements so intrinsic to government, particularly when they relate to

matters of public policy, lie at the core of First Amendment protection. See Meyer,

486 U.S. at 422 (First Amendment protection is “at its zenith” for core political speech); Garrison v. La., 379 U.S. 64, 74-75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).

Inescapably, the plain language of Sections 36.03(a)(1) and 1.07(a)(9)(F) prohibit a striking number of ordinary activities that involve constitutionally

protected speech, much of it political in nature. In fact, as written, the statutory

language would make the ordinary functioning of government impossible. This is

a textbook case of overbreadth.

To support its ruling, the district court below cited several cases where

Texas courts rejected facial First Amendment challenges to statutory language that

was narrowly drawn and not constitutionally overbroad. CR475-478. But these

cases deal with different statutory sections and distinguishable facts. The Second

Court of Appeals rejected a First Amendment challenge to Sections 36.03(a)(1)

and 1.07(a)(9)(A), under which a private citizen was charged with threatening to

particular police officer and thus influenced which officer a 911 dispatcher sent to the scene). For example, a government employee who threatened a trespasser and thereby caused a nearby peace officer to intervene would be a criminal under these provisions. 17 This list of potential implications was so compelling that the court of appeals incorporated many of them into its opinion. Slip Op. at 58-60. And while the State’s petition attempts to distinguish two of them, its petition nevertheless admits that “[s]ome of the court of appeals’ hypotheticals may be valid.” State PDR at 12.

“commit an offense” (murder and assault) against three court-of-appeals justices.

Tobias, 884 S.W.2d at 580-82. The Fourteenth Court of Appeals upheld a retaliation statute which prohibited “threat[s] to harm another by an unlawful act.”

Puckett v. State, 801 S.W.2d at 192 (quoting former Tex. Penal Code § 36.06(a)).

This Court upheld a harassment statute that prohibited “threat[s], by telephone or in writing, to take unlawful action.” Collection Consultants, Inc. v. State, 556

S.W.2d 787, 792 (Tex. Crim. App. 1977) (emphasis added) (quoting former Tex.

Penal Code § 42.07(a)(2)). The Fourth Court of Appeals upheld a theft statute that prohibited extortion i.e., “unlawfully appropriat[ing]” property by means of

“coercion” as defined in Section 1.07(a)(9)(D) and (E) (i.e., threats of defamation).

Roberts v. State, 278 S.W.3d 778, 790-93 (Tex. App.—San Antonio 2008, pet. ref’d). Finally, this Court upheld a sexual harassment statute that prohibited public servants from conditioning a right or privilege on submission to sexual advances— conduct that the court analogized to extortion. Sanchez, 995 S.W.2d at 687-88.

In every one of these cases, the statutes at issue were narrowly written to focus on unprotected speech. None of these cases stands for the broad proposition that all threats—even those which are not “true threats”—are unprotected speech, much less that the State has a compelling interest in preventing their communication. And none of these cases dealt with, much less upheld, the much broader statutory language at issue here, which is not limited to threats to

“unlawfully” take or withhold official action. See Tex. Penal Code § 1.07(a)(48)

(defining “unlawful” to mean “criminal or tortious or both and includes what

would be criminal or tortious but for a defense not amounting to justification or

privilege”).18

Citing Broadrick v. Oklahoma, 413 U.S. 601 (1973), the State claims the statutory scheme’s overbreadth has not been demonstrated to be “realistic or substantial,” because there is “no evidence that in the years since the coercion statute was enacted, any public servant has been chilled.” State PDR at 12.

Overbreadth is an “expansive remedy” that has been provided by the Supreme

Court “out of concern that the threat of enforcement of an overbroad law can deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citing

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980).

But the overbreadth doctrine’s concern with “chilling” protected speech

“attenuates as the otherwise unprotected behavior that forbids the State to sanction moves from ‘pure speech’ toward conduct.” Id. at 124 (citing Broadrick, 413 U.S. at 615). “To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not

18 As the district court recognized, Governor Perry intends to assert a “public duty” justification defense under Texas Penal Code Section 9.21 if this case ever proceeds to trial. CR472 n.7.

only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. This analysis considers “a statute’s application to real-world conduct, not fanciful hypotheticals, and there must be a “realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. Stevens,

559 U.S. at 485.

Here, because Section 36.02(a)(1), in conjunction with Section

1.07(a)(9)(F), criminalizes only speech that does not constitute a “true threat,” this particular statutory scheme has no plainly legitimate sweep. The determination by the court of appeals that the “extent and nature” of the statutory scheme’s alarmingly broad proscription on “First Amendment-protected territory” “cannot merely be left to remedy through future case-by-case adjudication,” Slip Op. at 39, is a recognition that the statutory scheme criminalizes a substantial amount of protected speech in absolute terms. A fortiori, the statutory overbreadth is

“realistic or substantial,” as it includes “core political speech” for which the First

Amendment’s protections are at their “zenith.” Id. at 62.

Indeed, this is entirely consistent with United States v. Stevens, where the

Supreme Court invalidated the animal cruelty statute because it was “substantially overbroad.” 559 U.S. 482. But it did so only after concluding that the statute was

“presumptively invalid” because it “explicitly regulates expression based on

content.” Id. at 468. The Court’s overbreadth analysis examined the presumptively impermissible applications of the statute and compared them to the permissible ones, without examining whether there was any “evidence” of a

“chilling” effect on First Amendment rights.

Finally, the court of appeals recognized the relative absence of criminal prosecutions under Section 36.02(a)(1) and Section 1.07(a)(9)(F)—at least until this misguided prosecution—is most probably because of Hanson’s declaration, twenty-five years ago, that this exact statutory scheme is unconstitutional. Slip Op. at 90. The State’s argument would seem to stand First Amendment jurisprudence on its head, upholding the statute on the basis of a lack of “evidence” of an actual chilling effect when in fact, the statute is aimed only at criminalizing speech otherwise protected by the First Amendment.

The only case to address the constitutionality of the statutory language at issue here affirmed the dismissal of an indictment which was based on a threat of

lawful conduct. See Hanson, 793 S.W.2d at 273. Hanson held that a prior version

of Section 36.03(a)(1) was unconstitutionally vague as applied to a threat of lawful

action because “[c]oercion of a lawful act by a threat of lawful action is protected

free expression,” and a reasonable person could only guess whether “the term

‘threat’ encompass[ed] a threat of lawful action or only prohibit[ed] a threat of

unlawful action.” Id. at 272 (emphasis added). While Hanson expressly declined

to reach the question of the statute’s overbreadth, id. at 273, its First Amendment holding supports that challenge as well.

Text, precedent, and common sense all point to the same conclusion:

Sections 36.03(a)(1) and 1.07(a)(9)(F), in conjunction, would essentially criminalize the ordinary give and take of politics as well as the administration of state government, all in violation of the First Amendment and without serving any compelling state interest. For these reasons, the statutory language is facially unconstitutional and void, as well as overbroad. The court of appeals reached the proper result.

2. The statutory scheme is facially void for vagueness The coercion statute is fatally unclear about the conduct it purports to prohibit. CR18, 35-41, 413-16. The district court reasoned, erroneously, that because some conduct (such as threats of violence) are clearly covered by the language of the statute, the language must survive a facial vagueness challenge.

CR479-82. But laws regulating speech are measured by stricter standards of certainty. As with his First Amendment challenges, Governor Perry is challenging the facial vagueness of Sections 36.03(a)(1) and 1.07(a)(9)(F) when read together, not either standing alone.

Due process requires that criminal laws be sufficiently clear in two distinct respects. First, a person of ordinary intelligence must be given a reasonable

opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex.

Crim. App. 1991) (citing Grayned v. Rockford, 408 U.S. 104, 108 (1972)).

Second, the law must establish determinate, explicit guidelines to prevent arbitrary enforcement by the government. Long, 931 S.W.2d at 287 (citing Grayned, 408

U.S. at 108-09). Thus, a statute is void for vagueness if it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application.” Ely v. State, 582

S.W.2d 416, 419 (Tex. Crim. App. 1979); Papachristou v. City of Jacksonville,

405 U.S. 156, 162 (1971).

In addition, when First Amendment freedoms are implicated, as here, the law must be sufficiently definite to avoid chilling protected expression. Long, 931

S.W.2d at 287-88 (citing Grayned, 408 U.S. at 109). “When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness demands a greater degree of specificity than in other contexts.” Long, 931 S.W.2d at 287-88 (quoting

Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983) (quotation marks omitted)).

That heightened specificity is necessary to preserve the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.”

Grayned, 408 U.S. at 109 (internal ellipsis and quotation marks omitted). When a vagueness challenge involves First Amendment considerations, the usual strictures

of facial challenges are relaxed; a criminal statute may be held facially invalid for vagueness even though it may not be unconstitutional in every application or even as applied to the defendant’s conduct. Long, 931 S.W.2d at 288 (citing Gooding v.

Wilson, 405 U.S. 518 (1972)).

Sections 36.03(a)(1) and 1.07(a)(9)(F) raise a fundamental and vexing question for any public servant19 who wishes to comply with the law: does the statutory language actually prohibit any threat to “take or withhold action as a

public servant” that merely “influences” another public servant? As Hanson

recognized, substantial uncertainty exists about whether this language was truly

intended to embrace threats of lawful action, which are protected by the First

Amendment. See Hanson, 793 S.W.2d at 272-73 (holding this statutory language

was unconstitutionally vague as applied to threats of lawful action).20 Moreover, a

similar uncertainty exists about whether the statute was intended to cover threats of

unlawful action, as such threats are already addressed by subparts (A) through (E)

of the “coercion” definition in Section 1.07(a)(9).

Further compounding the vagueness of these sections is the fact that the

offense requires no culpable mental state. Technically, an offense could be

19 Since the statute also applies to non-public servants, the lack of notice applies to all citizens regardless of whether they are public servants (and regardless of the capacity in which they speak). 20 This uncertainty is heightened now because public servants might reasonably rely on Hanson’s holding that the First Amendment protects threats of lawful action.

committed under these provisions whenever a public servant makes a threat “to take or withhold [official] action,” Tex. Penal Code § 1.07(a)(9)(F), as long as the threat merely has the effect of “influenc[ing]” another public servant. Id. §

36.03(a)(1). Indeed, the statutory language does not require that an offender even know about the threat’s influence on the other public servant. Even a threat of official action inadvertently heard and acted upon by another public servant could be a criminal offense. The absence of a culpable mental state means that citizens cannot determine whether their conduct is prohibited—a plain violation of due process. See Colautti v. Franklin, 439 U.S. 379, 395 (1979) (statute that criminalized killing a viable fetus held unconstitutionally vague where no scienter was required with respect to fetus’s viability, thus creating “a trap for those who act in good faith”); Long, 931 S.W.2d 285 at 290 (striking down harassment statute as unconstitutionally vague in part because statutory requirement of a police report

“does little or nothing to inform an ordinary person that his conduct is forbidden because the subsection contains no culpable mental state”; “[t]he wording of the statute does not require the defendant to know that the victim has made such a report” (emphasis in original)).

The vagueness of the statutory language is underscored by the fact that it confusingly appears to characterize as “coercion” a threat that does not even rise to the level of duress. For example, a public official who resigns under duress is

allowed to rescind the resignation and recover the office. Crouch v. Civil Serv.

Comm’n of Tex. City, 459 S.W.2d 491, 494 (Tex. Civ. App.—Houston [14th Dist.]

1970, writ ref’d n.r.e.). Yet had Lehmberg resigned because of Governor Perry’s alleged veto threat, she could not have shown duress. “[A] threat to do what one has a legal right to do, as bringing suit in court to enforce a claimed civil right, cannot constitute duress.” Willborn v. Deans, 240 S.W.2d 791, 793-95 (Tex. Civ.

App.—Austin 1951, writ ref’d n.r.e.) (emphasis added) (holding that sheriff could not recover his office on grounds of duress after being pressured out of office by district attorney’s threat to bring removal proceedings). Similarly, a threat that

“delineat[es] the options available” and forces a public official to make “a reasoned choice between two validly imposed alternatives” is not duress as a matter of law. Van Arsdel v. Tex. A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980)

(holding that university employee could not recover his position on grounds of duress after resigning due to university’s threat to bring dismissal proceedings against him based on accusations of sexual harassment).

The district court rejected Governor Perry’s facial vagueness challenge to

Sections 36.03(a)(1) and 1.07(a)(9)(F) without adequately addressing the substance of that challenge. The trial court first noted that the word “threat” has established dictionary definitions. CR480 (quoting Olivas v. State, 203 S.W.3d 341, 345-46

(Tex. Crim. App. 2006)). Most words do. But these definitions fail to resolve the

fundamental source of vagueness in the statutory language—i.e., whether the

“threat” described in Section 1.07(a)(9)(F) refers to threats of lawful action, unlawful action, or both. The trial court also cited two cases which held that threat-related language was not unconstitutionally vague. CR481. But neither of those cases addressed the language at issue here. Tobias upheld Section

36.03(a)(1) to the extent it involved coercion under Section 1.07(a)(9)(A) (i.e., threats to commit an offense). See 884 S.W.2d at 580-82. Roberts upheld a statute prohibiting theft by means of coercion under Section 1.07(a)(9)(D) and (E) (i.e.,

threats of defamation). Roberts, 278 S.W.3d at 790-93. In short, no case has

upheld the statutory language at issue here—Section 36.03(a)(1) to the extent it

involves coercion under Section 1.07(a)(9)(F) (i.e., threats to take or withhold

official action). And this language is materially broader—and vaguer—than any of

the language in the other subsections of Section 1.07(a)(9). It does not contain any

limitation to threats of “unlawful” conduct. See Tex. Penal Code § 1.07(a)(48)

(defining “unlawful” to mean “criminal or tortious or both”).

As discussed above, the only case to address this language held that it was

unconstitutionally vague as applied to threats of lawful conduct. See Hanson, 793

S.W.2d at 273. Hanson expressly declined to reach the question of facial

vagueness. Id. However, because the vagueness identified by Hanson is a

pervasive feature of the statutory language and trenches on First Amendment

freedoms to an intolerable degree, Sections 36.03(a)(1) and 1.07(a)(9)(F) are also facially vague.

The Legislature has enacted other statutes addressing threats against public servants that do not suffer from these vagueness defects, if only because they require the threats to be “unlawful.” See, e.g., Tex. Penal Code § 36.06(a) (offense to “intentionally or knowingly . . . threaten to harm another by an unlawful act” in retaliation for public service or to interfere with public service (emphasis added)).

But the Legislature failed to do so when it last amended and melded Sections

36.03(a)(1) and 1.07(a)(9)(F) in 1994. For the reasons given above, these provisions are unconstitutionally vague on their face, and Count II of Governor

Perry’s indictment is void and must be dismissed.

Prayer for Relief WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully prays that this Court affirm the court of appeals’ judgment holding that Section

36.03(a)(1), as it incorporates the definition of “coercion” contained in Section

1.07(a)(9)(F), is facially invalid under the First Amendment, either as an impermissible content-based restriction or as overbroad. This Court should affirm the court of appeals’ judgment or, alternatively, hold that discretionary review was

improvidently granted because of the court of appeals’ failure to reach Governor

Perry’s facial vagueness arguments. If this Court reverses the court of appeals

holding as to Count II, Governor Perry prays that it engage in a de novo review of

Governor Perry’s facial vagueness arguments since they augment his First

Amendment facial challenges and thereafter order Count II dismissed. If this Court were both to reverse the court of appeals holding as to Count II and decline to review the facial vagueness challenge, then this Court should remand the case to the court of appeals for its consideration of the facial vagueness challenges.

Respectfully submitted,

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

BOTSFORD & ROARK /s/ David L. Botsford David L. Botsford State Bar No. 02687950 1307 West Ave. Austin, Texas 78701 [email protected] Telephone: 512-479-8030 Facsimile: 512-479-8040

Certificate of Compliance I hereby certify that this document contains 11,072 words in the portions of the document that are subject to the word limits of Texas Rule of Appellate Procedure 9.4(i), as measured by the undersigned’s word-processing software.

/s/ David L. Botsford David L. Botsford

54 PD-1067-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/21/2015 8:55:03 PM Accepted 10/22/2015 8:10:59 AM No. PD-1067-15 ABEL ACOSTA CLERK TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

Ex parte James Richard “Rick” Perry

Appeal from Travis County

* * * * *

STATE’S BRIEF ON THE MERITS OF THE STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

P.O. Box 13046 Austin, Texas 78711 [email protected] 512/463-1660 (Telephone) 512/463-5724 (Fax) TABLE OF CONTENTS

INDEX OF AUTHORITIES...... ii

STATEMENT REGARDING ORAL ARGUMENT...... 1

STATEMENT OF THE CASE...... 1

ISSUES PRESENTED...... 2

1) Did the court of appeals incorrectly conflate the tests for First Amendment overbreadth and traditional First Amendment facial unconstitutionality?

2) Applying the definition of “coercion” from TEX. PENAL CODE §1.07(a)(9)(F), does the coercion of a public servant statute ban a substantial amount of constitutionally protected speech relative to its plainly legitimate sweep?

STATEMENT OF FACTS...... 2

SUMMARY OF THE ARGUMENT...... 3

ARGUMENT...... 4

PRAYER FOR RELIEF...... 17

CERTIFICATE OF COMPLIANCE...... 18

CERTIFICATE OF SERVICE...... 19

i IDENTITY OF THE PARTIES

Appellant: James Richard “Rick” Perry.

Appellee: The State of Texas.

Trial Judge: Hon. Bert Richardson.

Counsel for Appellant: Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078; and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701.

Counsel for the State: Attorney Pro Tem Michael McCrum, 700 N. Saint Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511, Austin, Texas, 78701; and Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.

ii INDEX OF AUTHORITIES

Cases

Board of Trustees v. Fox, 492 U.S. 469 (1989)...... 5, 7

Broadrick v. Oklahoma, 413 U.S. 601 (1973)...... 5, 15

Garcetti v. Ceballos, 547 U.S. 410 (2006)...... 11n

State v. Hanson, 793 S.W.2d 270 (Tex. App. –Waco, 1990, no pet.)...... 10n

State v. Johnson, __S.W.3d __, No. PD- 0228-14 (Tex. Crim. App. 2015)...... 8

Ex parte Lo, 434 S.W.3d 10 (Tex. Crim. App. 2013)...... 5n, 7

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)...... 12-13

N.Y. State Club Ass’n v. City of New York, 487 U.S. 1 (1988)...... 12

Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343 (2011)...... 4

Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006)...... 9, 14

Ex parte Perry, __S.W.3d__ No. 03-15-00063-CR (Tex. App.–Austin July 24, 2015)...... 2, 7, 10, 13, 14

Pickering v. Board of Education, 391 U.S. 563 (1968)...... 13

Sanchez v. State, 995 S.W.2d 677 (1999) ...... 8

United States v. Stevens, 559 U.S. 460 (2010)...... 4

Virginia v. Hicks, 539 U.S. 113 (2003)...... 5

Washington State Grange v. Washington State

iii Republican Party, 552 U.S. 442 (2008)...... 5

Watts v. United States, 394 U.S. 705 (1969)...... 10n

United States v. Williams, 553 U.S. 285 (2008)...... 15n

Codes and Rules

TEX. PENAL CODE §1.07(a)(9)(F)...... 6, 14

TEX. PENAL CODE §22.02(b)(1)...... 11

TEX. PENAL CODE §31.03(f)(1)...... 11

TEX. PENAL CODE §36.02...... 9, 11

TEX. PENAL CODE § 36.03(a)(1)...... 6

TEX. PENAL CODE §36.04...... 11

TEX. PENAL CODE §36.07...... 11

TEX. PENAL CODE §36.08...... 11

TEX. PENAL CODE §39.02...... 11

TEX. PENAL CODE §39.03...... 11

TEX. PENAL CODE §39.06...... 11

Secondary Sources

Model Penal Code, Comment to §240.1, Vol 3, at 7-8 (American Law Institute 1980)...... 9

iv Model Penal Code, Comment to §240.2, Vol 3, at 49 (American Law Institute 1980)...... 9

v No. PD-1067-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

Ex parte James Richard “Rick” Perry

* * * * *

STATE’S BRIEF ON THE MERITS OF THE STATE’S

PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully presents her Brief on the Merits of the State’s Petition for Discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

The State’s request for oral argument was granted.

STATEMENT OF THE CASE

Appellant was charged in a two-count indictment with abuse of official capacity (Count I) and coercion of a public servant (Count II). Appellant filed a pretrial application for a writ of habeas corpus seeking to dismiss both counts. The

1 trial court denied relief, and Appellant appealed. On July 24, 2015, the Third Court of Appeals affirmed the trial court’s ruling as to Count I and reversed as to Count II.

Ex parte Perry, __S.W.3d__, No. 03-15-00063-CR (Tex. App.–Austin 2015). This

Court granted both Appellant’s and the State’s petitions for discretionary review on

October 7, 2015 and ordered expedited briefing and submission. The deadline for filing the State’s brief is October 21, 2015.

ISSUES PRESENTED

1) Did the court of appeals incorrectly conflate the tests for First Amendment overbreadth and traditional First Amendment facial unconstitutionality?

2) Applying the definition of “coercion” from TEX. PENAL CODE § 1.07(a)(9)(F), does the coercion of a public servant statute ban a substantial amount of constitutionally protected speech relative to its plainly legitimate sweep?

STATEMENT OF FACTS

Count II of the indictment alleges:

Beginning on about June 10, 2013, and continuing through June 14, 2013, in the County of Travis, Texas, by means of coercion, to-wit: threatening to veto legislation that had been approved and authorized by the Legislature of the State of Texas to provide funding for the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office unless Travis County District Attorney Rosemary Lehmberg resigned from her official position as elected District Attorney, James Richard “Rick” Perry, intentionally or knowingly influenced or attempted to influence Rosemary Lehmberg, a public servant, namely, the elected District Attorney for Travis County, Texas, in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected

2 District Attorney for the County of Travis, Texas through the completion of her elected term of office, and the defendant and Rosemary Lehmberg were not members of the same governing body of a governmental entity, such offense having been committed by defendant, a public servant, while acting in an official capacity as a public servant.

Appellant filed a pretrial writ of habeas corpus arguing, among other things, that the coercion of a public servant statute is unconstitutionally overbroad. The trial court denied relief, and the court of appeals held that the statute is unconstitutional.

SUMMARY OF THE ARGUMENT

In recent years, this Court has repeated the mantra that the application of the

First Amendment overbreadth doctrine is “strong medicine” to be applied rarely and sparingly. Yet this “strong medicine” has become more common. It bears repeating that an overbroad challenge allows a person to whom the statute operates constitutionally to stand in for a hypothetical defendant for whom it does not. For that reason, the claimant justifiably bears the burden of proof. He must prove that the statute not only covers but would “chill” such a substantial amount of protected speech that invalidating the statute to protect hypothetical speakers is preferable to addressing the statute on a case by case, as-applied basis.

Appellant cannot carry that burden. The legitimate sweep of the statute includes unprotected speech in the nature of bribery and extortion. Especially with

3 respect to public servants who speak on behalf of the government and hold positions of public trust, the State has a substantial interest in ensuring they do not exert undue, coercive influence over other public servants by operating outside the realm of their authority. To carry his burden of proof, Appellant must pose a substantial number of realistic hypothetical unconstitutional applications of the statute. Of those he and the court of appeals devised, most fall outside the statute because they do not meet the definition of coercion. What protected speech remains insubstantial when compared to the plainly legitimate sweep of the statute. For that reason, any invalidation of this statute must await a circumstance in which it actually applies unconstitutionally.

ARGUMENT

First Amendment Overbreadth Doctrine

The First Amendment protects against the government’s attempt to “restrict expression because of its message, its ideas, its subject matter, or its content.”

Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343, 2347 (2011). However, content restrictions on certain categories of speech have been historically permitted and are excluded from First Amendment protections. United States v. Stevens, 559

U.S. 460, 468 (2010). Those categories include, among others: obscenity, incitement, and speech integral to criminal conduct. Id.

4 The First Amendment overbreadth doctrine acknowledges that, even though a statute regulates speech that is categorically unprotected, it is nevertheless overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S.

601, 610, 613 (1973). In other words, overbreadth occurs when the statute indisputably covers speech that is not protected by the First Amendment but also includes within its reach a substantial amount of protected speech.

This doctrine “enable[s] persons who are themselves unharmed by the defect in a statute nevertheless to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the

Court.” Board of Trustees v. Fox, 492 U.S. 469, 484 (1989) (internal citations and quotations omitted). “We generally do not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law. ” Washington State Grange v. Washington State Republican Party,

552 U.S. 442, 449 n. 6 (2008). In an overbreadth challenge, the claimant bears the burden of proving substantial overreach. Virginia v. Hicks, 539 U.S. 113, 122

(2003).1

1In Ex parte Lo, 434 S.W.3d 10 (Tex. Crim. App. 2013), this Court improperly placed the burden of proof on the State. Id. at 14.

5 The statute

Penal Code Section 36.03(a)(1) provides:

A person commits an offense if by means of coercion he influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.

TEX. PENAL CODE §1.07(a)(9) defines coercion as “a threat, however communicated,” followed by six alternative definitions. Subsection (a)(9)(F) – “to take or withhold action as a public servant...” – is at issue in this case. “Threat,” in the definition of coercion, is not defined, but this Court has found “a communicated intent to inflict harm or loss on another or on another’s property” to be an acceptable “ordinary meaning” definition of the term in the assault statute. Olivas v. State, 203 S.W.3d

341, 345-46 (Tex. Crim. App. 2006). Applying these definitions, § 36.03(a)(1) provides:

A person commits an offense if by means of a communicated intent to inflict harm or loss on another or another’s property, however communicated, to take or withhold action as a public servant, he influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty. (emphasis added).2

2The italicized text is the plain meaning definition of threat. The underlined text is the §1.07 definition of coercion.

6 A public servant’s taking or withholding of an official act is not inherently coercive. But the coercive nature of this definition becomes clear with the insertion of “threat.” The “communicated intent to inflict harm or loss” is what makes the

“tak[ing] or withhold[ing] [of an official] action” forceful, abusive, and sufficient to overbear the will of another, i.e., coercive.

Plainly legitimate sweep

“[T]he overbreadth question...requires determination whether the statute’s overreach is substantial, not only as an absolute matter, but judged in relation to the statute’s plainly legitimate sweep.”

Fox, 492 U.S. at 485. The court of appeals acknowledged that the statute has a legitimate sweep, i.e., it proscribes some speech outside the reach of the First

Amendment. See Ex parte Perry, Slip op. at 79. (“To be sure, section 36.03(a)(1), as it incorporates paragraph (F), would reach some threats aimed at achieving illicit ends that the State could properly proscribe criminally.”). It noted that the statute’s legitimate sweep includes solicitation of crimes, some forms of extortion, and bribery.

Id. at 74-80.

Examples of speech that is not protected by the First Amendment are correctly considered as part of the coercion statute’s legitimate sweep, even if that speech could also be legitimately prosecuted under another statute. In Ex parte Lo, this Court held that “everything Section 33.021(b) prohibits and punishes is speech and is either

7 already prohibited by other statutes... or is constitutionally protected.” 424 S.W. 3d at 20 (emphasis added). This passage correctly acknowledges the plainly legitimate sweep of the online solicitation of a minor statute, but then erroneously excludes from that sweep any conduct that is covered by other statutes. The Court made a similar mistake in State v. Johnson, __S.W.3d __, No. PD-0228-14, 2015 Tex. Crim. App.

LEXIS 1057 *40-41 (Tex. Crim. App. 2015), regarding the flag desecration statute.

It refused to consider the act of damaging another person’s flag in the statute’s legitimate sweep because that conduct is covered by the criminal mischief statute.

Id. But the fact that statutes might overlap is not a basis for an appellate court to eliminate conduct from the coverage of the statute being challenged. There is no apparent reason to disregard those legitimate applications, except to suggest that the criminal jurisprudence would not be diminished by the statute’s absence. But that is a question for the legislature, not the courts.

This Court has recognized that bribery is outside the protection of the First

Amendment because it concerns the use of official power to obtain a benefit to which the official is not otherwise entitled. Sanchez v. State, 995 S.W.2d 677, 688 (Tex.

Crim. App. 1999). Similarly, coercion occurs when a public servant illegally threatens to do indirectly what he does not have the power to do directly. In that sense, coercion and bribery are opposite sides of the same coin. According to the

8 comment to Section 240.2 of the Model Penal Code, “[Threats and Other Improper

Influences in Official and Political Matters] is a complement to the crime of bribery.”

Model Penal Code, Comment to § 240.2, Vol 3, at 49 (American Law Institute

1980).3 Bribery uses the promise of a benefit to influence the action of a public official, while coercion, like extortion, uses the threat of harm. Compare TEX. PENAL

CODE §36.02 with §36.03. Both the carrot and the stick can be used as an inducement and can, as the court of appeals recognized, be used simultaneously both to threaten harm and to offer freedom from the threatened harm. In this regard, the court of appeals observed:

The State can validly prohibit the use of threats in situations where the parties relationship does not provide the threatener a legitimate basis for seeking conduct of the recipient (i.e., he had no right to demand or require it) and where the recipient would have no underlying obligation to consider performing the conduct aside from the threat. Such use of threats might also be said to seek or effect a sort of transaction in which a public servant interjects a threat to take or withhold official action, then offers freedom from the threatened harm solely to exchange for some otherwise-unrelated desired conduct by another public servant whose sole rationale or justification would be avoidance of the threatened harm. In this respect, such threats would achieve an effect

3The comment to the bribery provision of the Model Penal Code, explains: An attempt to influence official decision by offer of personal gain to the official is corrupt even if the outcome sought by the briber is the lawful and proper one, since the gist of the offense is the effort to secure an improper advantage in the decision-making process. Model Penal Code, Comment to § 240.1, Vol 3, at 7-8 (American Law Institute 1980).

9 similar to bribery of the recipient.

Ex parte Perry, Slip op. at 80.4 The State’s brief in the court of appeals pointed out legitimate hypotheticals, like a legislator’s vote or governor’s veto that punishes a police department, district attorney’s office, or judicial district if a traffic ticket is not torn up or a prosecution is not dismissed. State’s Court of Appeals’ Brief, p. 15-16.

Similarly, a district judge could threaten to dismiss a lawsuit that a legislator filed if he did not vote for judicial pay raises.

The State has an interest in holding public servants to a higher standard due to the positions of power they hold. This interest is expressed by offenses, in addition to the one at issue, that apply specifically to or increase the penalty if committed by

4Despite acknowledging the similarity between bribery and coercion, and recognizing the legitimate sweep of the statute, the court of appeals nevertheless followed the rationale of State v. Hanson, 793 S.W.2d 270 (Tex. App. –Waco, 1990, no pet.). In that case the defendant, a Bosque County Judge who presided over the commissioners’ court, threatened to eliminate funding for the salary of: 1) a district clerk, to coerce the district judge into firing the county auditor; and 2) an assistant district attorney, to coerce the county attorney into revoking a defendant’s probation. Id. at 271. The Waco Court deemed the threat to withhold funding to be protected by the First Amendment, because it was not a “true threat.” Id. at 272, (citing Watts v. United States, 394 U.S. 705, 708 (1969)). But true threats are not the only type of speech that is not protected by the First Amendment. The Waco Court did not address the bribery/extortion theory the State argues here. The Waco Court ultimately found the coercion statute vague because it did not distinguish between a threat to use lawful authority as opposed to a threat to use unlawful authority. Id. at 272-73. It concluded that the coercion statute was unconstitutionally vague as applied, and did not address the overbreadth doctrine. Id .

10 public servants. See TEX. PENAL CODE §22.02(b)(1) (increased penalty for aggravated assault); TEX. PENAL CODE §31.03(f)(1) (increased penalty for theft); TEX. PENAL

CODE 36.02 Bribery; TEX. PENAL CODE §36.04 Improper influence; TEX. PENAL

CODE §36.07 Acceptance of Honorarium; TEX. PENAL CODE §36.08 Gift to Public

Servant by Person Subject to his Jurisdiction; TEX. PENAL CODE §39.02 Abuse of

Official Capacity, TEX. PENAL CODE §39.03 (Official Oppression); TEX. PENAL CODE

§39.06 (Misuse of Official Information). In addition, public servants are required to take oaths of office and abide by ethical rules and codes of conduct that do not apply to private citizens.5

5“When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Garcetti explained that,“Employers have heightened interests in controlling speech made by an employee in his or her professional capacity.” Id. at 422. It also noted that, while a “delicate balancing of the competing interests surrounding the speech and its consequences” must occur when an employee speaks as a citizen, “when... the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny.” Id. at 423. Garcetti was an employment law case, and arguably, when the State criminalizes speech, it is acting not as an employer, but as a sovereign. But when only the speech of public officials is being criminalized and the prosecution involves a State employee, the State is acting in the dual role of sovereign/employer and the public servant, as a citizen/employee.

11 It is noteworthy that the exception to the coercion statute exempts only members of the same governing body.6 This expresses the legislature’s view that coercion may be appropriate between members of the same branch of government on a level playing field. But the Legislature drew the line at using coercion outside a public servant’s sphere of influence, in areas where he would normally have no leverage over another public servant’s exercise of power.

Overbreadth is not realistic or substantial

“To succeed in [an overbreadth] challenge, appellant must demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally.” N.Y. State Club Ass’n v.

City of New York, 487 U.S. 1, 14 (1988). “There must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466

6“It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term ‘official action’ includes deliberations by the governing body of a governmental entity.” TEX. PENAL CODE §36.03(c).

12 U.S. 789, 801 (1984).

The court of appeals discussed several instances of constitutionally-protected speech that would be included in the statute’s plainly legitimate sweep. Ex parte

Perry, Slip op. at 58-60. Not only were most unrealistic, many were not covered by the statute and there has been no showing in “actual fact” of any chilling effect.

For example, the court of appeals held that as a result of this statute, “A manager could not threaten to file or demote a government employee for poor performance.” Id. at 58. This situation is not covered by the statute because it does not fit the definition of “coercion.” The manager is not “tak[ing] or withhold action as a public servant;” he is taking action as an employer or manager over his subordinate. See Pickering v. Board of Education, 391 U.S. 563, 568 (1968)

(discussing various roles played by both the employer and the employee as either employer/sovereign or employee/private citizen).7 And the manager is not attempting to influence the employee in “a specific exercise of his official power or a specific performance of his official duty.” As the court of appeals noted, by referring to a specific exercise of power or performance of duty, the statute demonstrates “that some particular action or conduct by the public servant must be sought and not merely

7The employer/employee status would also apply to the court of appeals’ hypothetical about a university administrator threatening to withdraw funding from a professor’s research program. Ex parte Perry, Slip op. at 59.

13 some effect on the public servant’s general comportment in office.” Ex parte Perry,

Slip op. at 49-50. An employee’s job performance fits the description of “general comportment in office.”8

Finally, the hypotheticals regarding a trial judge’s threat to declare a mistrial or an appellate judge’s threat to file a dissenting opinion are also not compelling.

They do not meet the Penal Code § 1.07 definition of coercion, which requires a threat. These actions would not likely be taken as threats because they do not

“communicate[] [an] intent to inflict harm or loss on another or another’s property.”

Olivas, 203 S.W.3d at 345-46. Any other type of bargaining tool commonly used in the governmental realm is not covered by the statute; only those threats that portend harm sufficient to cause duress are included. Appellate judges make changes to proposed opinions to gain consensus or because they have been persuaded that the would-be dissenter’s legal argument is more correct than the view originally proposed, not because they have been forced to take a different stance under threat of harm or loss of property. Only by exceeding the plain meaning of threat can the court of appeals claim such a large amount of constitutionally protected speech.

8The court of appeals’ hypotheticals about an inspector general threatening to investigate an agency’s financial dealings and a prosecutor’s threat to prosecute a public servant are also invalid for this reason. The threats are not aimed at influencing the exercise of a specific power or duty.

14 Chilling effect is not realistic

Even assuming the validity of some of the court of appeals’ hypotheticals,9 there is no evidence that in the years since the coercion statute was enacted, any public servant has been chilled, i.e., has abstained from any of the valid speech the court of appeals maintains is covered by the statute. The overreach of the statute has not been demonstrated to be realistic or substantial. “Although [broadly worded laws], may deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face.” Broadrick, 413 U.S. at 615. When a law is not substantially overbroad, “whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.”

Id. at 615-16.

There is no debate that the plainly legitimate sweep of the statute includes acts of influence peddling, bribery, and extortion. But its plain language criminalizes few of the hypotheticals relied upon by the court of appeals to establish a substantial amount of protected speech relative to that legitimate sweep. If, as applied to

Appellant, the statute is unconstitutional, that determination can be made at trial after

9See United States v. Williams, 553 U.S. 285, 301 (2008) (noting “the tendency of our overbreadth doctrine to summon forth an endless stream of fanciful hypotheticals.”).

15 the evidence is known instead of speculating about whether unknown parties’ First

Amendment rights have been chilled.

16 PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that this Court reverse that part of the decision of the court of appeals holding TEX. PENAL CODE § 36.03(a)(1), incorporating TEX. PENAL CODE §1.07(a)(9)(F) facially unconstitutional and otherwise affirm its decision.

Respectfully submitted,

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

P.O. Box 13046 Austin, Texas 78711 [email protected] 512/463-1660 (Telephone) 512/463-5724 (Fax)

17 CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this document contains 4446 words.

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney

18 CERTIFICATE OF SERVICE

The undersigned certifies that on this 21st day of October 2015, the State’s

Brief on the Merits of the State’s Petition for Discretionary Review was served via certified electronic service provider to:

Anthony G. Buzbee [email protected]

David L. Botsford [email protected]

Thomas R. Phillips [email protected]

Michael McCrum [email protected]

David Gonzalez [email protected]

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney

19 PD-1067-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/21/2015 8:53:27 PM Accepted 10/22/2015 8:10:22 AM No. PD-1067-15 ABEL ACOSTA CLERK TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

Ex parte James Richard “Rick” Perry

Appeal from Travis County

* * * * *

STATE’S BRIEF ON THE MERITS OF APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

P.O. Box 13046 Austin, Texas 78711 [email protected] 512/463-1660 (Telephone) 512/463-5724 (Fax) TABLE OF CONTENTS

INDEX OF AUTHORITIES...... ii

STATEMENT REGARDING ORAL ARGUMENT...... 1

STATEMENT OF THE CASE...... 1

ISSUES PRESENTED...... 2

1) “Whether the Third Court of Appeals erred by holding that all nine of Governor Perry’s constitutional challenges to Count I were ‘as applied’ challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?”

2) “Whether the Third Court of Appeals erred by holding that Governor Perry’s challenges to Count I based upon Article II, Section I of the Texas Constitution — separation of powers — were ‘as applied’ challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?”

3) “Whether the Third Court of Appeals erred by holding that Governor Perry’s challenges to Count I based upon Article III, Section 21 of the Texas Constitution — Speech and Debate Clause and common law legislative immunity — were ‘as applied’ challenges to the abuse of official capacity statute and therefore not cognizable in a pretrial application for writ of habeas corpus?”

4) “Whether, even if all of Governor Perry’s constitutional challenges to Count I were in fact ‘as applied’ challenges, the Third Court of Appeals erred in failing to recognize that the same rationale that requires ‘exceptions’ for other ‘as applied’ challenges — specifically prosecutions that would constitute double jeopardy or would be barred by limitations — should apply, with even greater force, to a prosecution based solely on a defendant’s exercise of conduct protected by the Speech and Debate Clause and the Separation of Powers provisions of the Texas Constitution and the common law doctrine of legislative immunity?”

i STATEMENT OF FACTS...... 3

SUMMARY OF THE ARGUMENT...... 3

ARGUMENT...... 4

PRAYER FOR RELIEF...... 22

CERTIFICATE OF COMPLIANCE...... 23

CERTIFICATE OF SERVICE...... 24

ii IDENTITY OF THE PARTIES

Appellant: James Richard “Rick” Perry.

Appellee: The State of Texas.

Trial Judge: Hon. Bert Richardson.

Counsel for Appellant: Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701; and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701.

iii INDEX OF AUTHORITIES

Constitutions

U.S. Const. Art. I, § 6, Cl. 1...... 10

TEX. CONST. Art. III, § 21...... 9, 14n

TEX. CONST. Art. IV, § 14...... 16

TEX. CONST. Art. V, § 12(b)...... 6n

Cases

Abney v. United States, 431 U.S. 651 (1977)...... 6n, 7n

Baker v. Carr, 369 U.S. 186 (1962)...... 20, 21

Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991)...... 8n

Bogan v. Scott-Harris, 523 U.S. 44 (1998)...... 15

United States v. Brewster, 408 U.S. 501 (1972)...... 9, 11, 12, 18

Ex parte Castillo, __ S.W.3d __, No. PD-0545-14 (Tex. Crim. App. 2015). . . . . 13

Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013)...... 18

Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010)...... 5, 7n, 13

Edwards v. United States, 286 U.S. 482 (1932)...... 16n

Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010)...... 5, 7, 8n

Fulmore v. Lane, 140 S.W.405 (Tex. 1911)...... 15

Ex parte Gill, 413 S.W.3d 424 (Tex. Crim. App. 2013)...... 6, 8n, 20n

iv Gravel v. United States, 408 U.S. 606 (1972)...... 11, 16

Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978)...... 4

Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015)...... 6n

Helstoski v. Meanor, 442 U.S. 500 (1979)...... 13n, 20

United States v. Helstoski, 443 U.S. 477 (1979)...... 17

Hutchinson v. Proxmire, 443 U.S. 111 (1979)...... 12, 18n

Imbler v. Pachtman, 424 U.S. 409 (1976)...... 19

United States v. Johnson, 383 U.S. 169 (1966)...... 11

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009)...... 6n

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014)...... 19n

State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011)...... 6, 7, 8

Meschell v. State, 739 S.W.2d 246 (1987)...... 20n

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974)...... 9, 10

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001)...... 6n

Perraza v. State, __S.W.3d __, No. PD-0100-15 & 0101-15 (Tex. Crim. App. 2015)...... 19n

Ex parte Perry, __S.W.3d__, No. 03-15-00063-CR (Tex. App.–Austin 2015)...... 1-2

Pickle v. McCall, 24 S.W. 265 (Tex. 1893)...... 16

State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009)...... 20n

v Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982)...... 6n

Tenney v. Brandhove, 341 U.S. 367 (1951)...... 10

Ex parte Weise, 55 S.W.3d 617 (Tex. Crim. App. 2001)...... 6n

State v. Yount, 853 S.W.2d 8 (Tex. Crim. App. 1993)...... 6n

Codes and Rules

TEX. CODE CRIM. PROC. art. 17.151...... 8n

Secondary Sources

Interpretive Commentary to Art. 4, § 14 (Vernon 1997)......

43 DIX & SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 35:16 at 277 (3rd ed. 2011)......

vi No. PD-1067-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

Ex parte James Richard “Rick” Perry

* * * * *

STATE’S BRIEF ON THE MERITS OF APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully presents her Brief on the Merits of Appellant’s Petition for Discretionary review.

STATEMENT REGARDING ORAL ARGUMENT

Oral argument was granted at the State’s request.

STATEMENT OF THE CASE

Appellant was charged in a two-count indictment with abuse of official capacity (Count I) and coercion of a public servant (Count II). Appellant filed a pretrial application for writ of habeas corpus seeking to dismiss both counts. The trial court denied relief, and Appellant appealed. On July 25, 2015, the Third Court of

Appeals affirmed the trial court’s ruling as to Count I and reversed as to Count II. Ex

1 parte Perry, __S.W.3d__, No. 03-15-00063-CR (Tex. App.–Austin 2015).

This Court granted both Appellant’s and the State’s petitions for discretionary review on October 7, 2015, and ordered expedited briefing and oral argument. The deadline for filing the parties’ briefs is October 21, 2015.

ISSUES PRESENTED

2 STATEMENT OF FACTS

Appellant was charged with abuse of official capacity in Count I of the indictment, which alleges:

On or about June 14, 2013 in the County of Travis, Texas, James Richard “Rick” Perry, with intent to harm another, to-wit, Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney’s Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into the defendant’s custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.

Appellant filed a pretrial application for a writ of habeas corpus claiming, inter alia, that the statute is unconstitutional as applied to him under the Separation of

Powers Clause of the Texas Constitution, the Speech or Debate Clause of the Texas

Constitution, and the common law doctrine of legislative immunity. The trial court ruled that these claims were “as applied” challenges to the constitutionality of the statute and, as such, were not cognizable in a pretrial habeas corpus proceeding.

SUMMARY OF THE ARGUMENT

Any constitutional challenge to a penal statute that relies on the specific factual allegations in the charging instrument or requires the development of facts in the trial

3 court is an “as applied” challenge that cannot be raised in a pretrial application for writ of habeas corpus.

A Texas governor cannot legitimately claim the protections of the Speech or

Debate Clause because he is not a member of the legislature or the alter ego of a member. His signature is not required for a bill to become law. The veto itself, though part of the legislative process, is not an actual legislative function because it cannot be exercised by a legislator. A threat to veto is even further removed; it concerns a hypothetical future act and not a prior vote, statement, or act. Common law legislative immunity protects against civil proceedings and does not bar criminal prosecution. Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution.

ARGUMENT

Pretrial cognizability of “as-applied” constitutional challenges to statutes

“Habeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of [its] original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law.” Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978). Thus,

4 “appellate courts have been careful to ensure that a pretrial writ is not misused.” Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).

“Cognizability” is a court-made doctrine that limits the availability of remedies in an extraordinary proceeding. This Court often speaks of cognizability as a limit on pretrial appellate review, See, e.g., Ex parte Doster, 303 S.W.3d 720, 724 (Tex.

Crim. App. 2010), but cognizability is also a question of what issues may be heard in the trial court and when they should be heard. Thus, this Court has held, that

“pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial.” Ex parte Doster, 303 S.W.3d at 724.1

When addressing pretrial cognizability and the availability of extraordinary remedies, this Court must balance a defendant’s interest in having the issue determined before trial versus the State’s interest in avoiding piecemeal litigation, which not only delays the prosecution, but also requires the development of evidence, resulting in a type of unjustifiable minitrial.

1See also 43 DIX & SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 35:16 at 277 (3rd ed. 2011) (“The more extensive pretrial fact-finding that must occur, and the greater the complexity and difficulty of that fact finding, the less likely a matter is to be cognizable in pretrial habeas corpus. ... Matters that will frequently require extensive factual inquiry likely to overlap that necessary to resolve guilt or innocence, then, are less likely to be found appropriate for pretrial habeas than others that generally present only simply matters for judicial resolution.”).

5 This Court has allowed pretrial habeas corpus claims for double jeopardy,2 pretrial bail,3 and the facial unconstitutionality of a statute, which “considers the statute only as it is written, rather than how it operates in practice.” State ex rel.

Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). These types of claims are deemed cognizable pretrial because they either challenge the trial court’s “power to proceed” (facial constitutionality, statute of limitations),4 involve a right that is

“significantly undermined” if not resolved pretrial (double jeopardy),5 or are better

2Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982).

3Ex parte Gill, 413 S.W.3d 425, 426 (Tex. Crim. App. 2013).

4The trial court’s “power to proceed” has been offered as a justification for allowing facial challenges and claims that a prosecution is barred by limitations. Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). However, the constitutionality of a statute is not jurisdictional. “[T]he presentment of an indictment . . . to a court invests the court with jurisdiction of the cause.” TEX. CONST. article V, § 12(b). Even an indictment that alleges a facially unconstitutional statute vests jurisdiction in the trial court. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). A trial court is deprived of jurisdiction in only two instances: “[i]f the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, ...or [if] the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law.” See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (discussing the “very rare situations” in which a judgment is deemed void). Similarly, a statute of limitations bar is not jurisdictional. State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993). Limitations is forfeited if not raised at trial. Ex parte Heilman, 456 S.W.3d 159, 162-69 (Tex. Crim. App. 2015).

5Ex parte Robinson, 641 S.W.2d at 554-55, (citing Abney v. United States, 431 U.S. 651 (1977)).

6 raised before trial for reasons of judicial economy.6

On the other hand, this Court has determined that pretrial habeas is not available for challenges to the constitutionality of a statute as applied. Ex parte Ellis,

309 S.W.3d at 79. “An ‘as applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.” State ex rel. Lykos, 330 S.W. 3d at 910. “Because there is no basis under Texas law to conduct a pretrial evidentiary hearing to the ‘as applied’ constitutionality of a state penal or criminal procedural statute,. . . the trial judge does not have legal authority to conduct any such pretrial

6Judicial economy has never been a standalone justification for cognizability. Ex parte Doster, 303 S.W.3d at 720, 725. Furthermore, pretrial determinations slow down, rather than speed up, the process. Id. at 726-27. “The delays and disruptions attendant upon intermediate appeal, which the rule [that only final judgments are appealable] is designed to avoid, are especially inimical to the effective and fair administration of the criminal law.” Abney, 431 U.S. at 656-57 (internal citations and quotations omitted). As in Ex parte Doster, by the time the instant appeal is finally resolved, this case could have already been tried. If this Court rules in Appellant’s favor on this issue, and the case is remanded to the trial court for a ruling on the merits of the separation of powers and Speech or Debate Clause issues, that ruling will likely be appealed by the losing party, resulting in even more “appellate orbit.” 303 S.W.3d at 727.

7 evidentiary hearing and make any such pretrial declaratory judgment.” Id. at 919.7

Appellant’s claims

Appellant contends he is being prosecuted for the exercise of his veto power as Governor, and the Texas Speech or Debate Clause, common law legislative immunity, and the Texas Separation of Powers Clause protect him from facing trial for that conduct. These challenges are not facial attacks on the statutes with which he is charged because they do not seek to invalidate the statutes themselves. Instead, they are claims that, despite the validity of the statutes, he is immune from prosecution because of the specific conduct alleged and his status at the time the

7Appellant claims that some as-applied challenges are cognizable. He contends that Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991), permitted an as- applied challenge in a pretrial writ. Appellant’s Petition for Discretionary Review, 15-16. But in that case, this Court found an equal protection clause violation based on the statutory enhancement provision. Id. at 603-04. But even if Ex parte Boetscher implicitly held that as-applied challenges are cognizable pretrial, it was overruled sub silencio by subsequent cases like State ex rel. Lykos and Ex parte Ellis. Appellant also notes that this Court addressed a separation of powers argument in Ex parte Gill, 413 S.W. 3d 424 (Tex. Crim. App. 2013). Appellant’s Petition for Discretionary Review, 18. Gill filed a pretrial writ of habeas corpus, claiming he was entitled to release on bail under TEX. CODE CRIM. PROC. art. 17.151, and the trial court denied relief. On appeal, the State argued that the trial court’s denial of relief should be upheld on the basis that article 17.151 unconstitutionally infringed on the trial judge’s authority. Ex parte Gill, 413 S.W.3d at 421-32. The State’s challenge was facial, as it sought to strike down the entire statute. More importantly, the issue Gill raised was entitlement to bail, which is undoubtably cognizable pretrial. Ex parte Gill did not hold that a defendant may bring an as-applied constitutional challenge under the separation of powers doctrine in a pretrial writ.

8 alleged conduct was committed. In other words, the statute is unconstitutional as applied to him. He nevertheless contends that these challenges are cognizable because they encompass a right not to stand trial, akin to double jeopardy.

Speech or Debate Clause

Article III, Sec. 21 of the Texas Constitution says simply, “No member shall be questioned in any other place for words spoken in debate in either House.” In

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974), this Court determined that this general provision did not bar prosecution of a member of the Texas

Legislature for bribery because the Article XVI, Section 41 of the Texas Constitution explicitly allows legislative, executive, and judicial officers to be prosecuted for bribery. Id. at 915. The Court also relied on United States v. Brewster, 408 U.S. 501,

526 (1972), which held that taking or agreeing to take a bribe is not “a thing said or done by [a legislator], as a representative in the exercise of the functions of that office.” Mutscher, 514 S.W.2d at 915. The Court noted that the State needed only to show the bribe and not the legislative act itself. Id. In other words, to prove acceptance or solicitation of a bribe, evidence that the defendant carried out the promise to perform the legislative act was not necessary, only evidence of the promise was needed.

Appellant’s grounds for review are limited to the Speech or Debate provisions

9 of the Texas Constitution.8 However, because Mutscher is the only opinion from this

Court addressing that provision, and because the Texas provision was likely fashioned after the federal Speech or Debate Clause, opinions addressing the federal provision are instructive.

Federal Speech or Debate Clause

U.S. Const. Art. I, § 6, Cl. 1, entitled, “Compensation and Privileges of

Members,” states, in part:

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

(emphasis added). This clause was designed to ensure freedom of speech and debate in the legislature. Its origins go back to at least 1689 England, when parliamentary privilege was strengthened in response to the prosecution by King Charles I of Sir

John Elliot for “seditious” speeches in Parliament. Tenney v. Brandhove, 341 U.S.

367, 372-73 (1951). “The instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context

8The Federal Speech or Debate Clause that applies to members of Congress has never been held to be applicable to state legislators in state court through the Due Process Clause of the Fourteenth Amendment. Mutscher, 514 S.W.2d at 914.

10 of the American system of separation of powers, is the predominate thrust of the

Speech or Debate Clause.” United States v. Johnson, 383 U.S. 169, 182 (1966).

The purpose of the Speech or Debate Clause was to “protect the independence of the Legislative Branch,” not to “make Members of Congress super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 516. It does not generally exempt members of Congress from criminal prosecution. Gravel v. United States, 408 U.S. 606, 627 (1972). “While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide9 to violate an otherwise valid criminal law in preparation for or implementing legislative acts.” Id.

To claim its protections in a criminal prosecution, a member’s actions must be “essential to legislating.” Gravel, 408 U.S. at 616-17, 621. They must be “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House.” Id. at 625. Brewster explained that it would be unwise “to extend the privilege beyond its intended scope,

9Legislative aides can claim immunity acting as “alter egos” of members of the Senate or House if their actions would have been protected if performed by a member. Gravel, 408 U.S. at 616-17, 621-22.

11 its literal language, and its history, to include all things in any way related to the legislative process,” noting, “there are few activities in which a legislator engages that he would be unable somehow to ‘relate’ to the legislative process.” 408 U.S. at

516. The Supreme Court has distinguished between legislative and political acts.

Legislators frequently “engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause” such as “preparing so-called

‘news letters’ to constituents, news releases, and speeches delivered outside the

Congress.” Id. at 512. But the Court observed, “it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the

Speech or Debate Clause.” Id. In Hutchinson v. Proxmire, 443 U.S. 111, 127-28

(1979), the Court held that the Speech or Debate Clause did not protect libel about wasteful government spending in a U.S. senator’s press release for his “Golden Fleece

Award.” The Court rejected the argument that Speech or Debate protections should apply because members can exert more influence through press releases and newsletters than speeches on the Senate floor. Id. at 131.

Are Speech or Debate Claims cognizable pretrial?

Appellant points out that double jeopardy claims are cognizable in pretrial habeas proceedings because they encompass a right not to be tried, and waiting until after trial to hear and appeal these claims significantly diminishes that right. He

12 contends that the Speech or Debate Clause similarly creates a right not to be tried; therefore, those claims should also be resolved before trial.10

This argument assumes that the only hurdle to pretrial cognizability is the nature of the right. But this Court has also refused to allow issues to be heard pretrial when their resolution would require the development of facts. See Ex parte Doster,

303 S.W.3d at 724 (“[P]retrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial.”). Even double jeopardy claims are decided using an analysis that compares statutory elements and indictment allegations and does not permit reliance on evidence. Ex parte Castillo, __ S.W.3d

__, No. PD-0545-14, 2015 Tex. Crim. App. LEXIS 622, *6 (Tex. Crim. App. 2015).

10Appellant cites Helstoski v. Meanor, 442 U.S. 500 (1979), in support of this claim. But Helstoski does not address Texas procedural rules; it addresses appealability of a pretrial ruling on the merits. Helstoski, a member of the U.S. House of Representatives, moved to dismiss his bribery indictment, relying on the federal Speech or Debate Clause. Id. at 504. The trial court denied the motion on the merits, after considering grand jury transcripts. Id. The Supreme Court held that mandamus would not lie to compel dismissal because Helstoski had an adequate remedy at law. Id. at 506. He was entitled appeal under federal procedural rules defining “final judgment” because the Speech or Debate Clause protects members of Congress “from the burden of defending themselves.” Id. at 506-08. Substantively, Helstoski holds that the Speech or Debate Clause grants a Legislator a right not to be tried, but it does not address the procedural question of whether, under Texas cognizability jurisprudence, a trial court must address the merits of a claim that requires an examination of the facts of the offense.

13 Does the Speech or Debate Clause apply to a gubernatorial veto or veto threat?

Even if the Texas Speech or Debate Clause protects members of the

Legislature from “the burden of defending themselves,” and this issue is deemed cognizable – even if it requires the development of facts to determine whether the act in question was “essential to legislating”– this issue can be resolved without remanding for an evidentiary hearing if this Court determines, as a threshold issue, that the Clause does not apply to a Texas Governor. Its plain language is limited to

“members” of the Legislature.11 So there is no need to add Speech or Debate Clause protection to the list of cognizable pretrial habeas issues if Appellant is not eligible to raise that claim as a matter of law.

Veto

Appellant contends that the charges in this case stem from his use of the gubernatorial veto.12 Neither this Court nor the U.S. Supreme Court has addressed

11“No member shall be questioned in any other place for words spoken in debate in either House.” TEX. CONST. Art. III, § 21.

12Count I does not allege that a veto was used. But the State filed a “Bill of Particulars and Amendment of Indictment,” stating that Appellant “misused government property that was subject to his custody and possession in that he used the lawful power of the gubernatorial veto for an unlawful purpose, to-wit: eliminating funding for the Public Integrity Unit after Ms. Lehmberg refused to resign from her elected position as Travis County District Attorney.” (3/2/15 Supp. CR: 3, 5). Appellant objected that a bill of particulars is not authorized in Texas and is not binding on the State. (Id. at 13-14). In the alternative, he argued that if the bill of

14 whether the executive branch is immune from prosecution under the Speech or

Debate Clause.

In a lawsuit regarding an appropriations bill, the Texas Supreme Court held,

“The veto power when exercised is a legislative and not an executive function.”

Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911).

And common law legislative immunity in a 42 U.S.C. § 1983 action has been extended to officials outside the legislative branch when they perform legislative functions. In Bogan v. Scott-Harris, 523 U.S. 44 (1998), the U. S. Supreme Court held that a mayor, although a member of the executive branch, could claim legislative immunity in a § 1983 civil suit, because his “introduction of a budget and signing into law an ordinance ... were legislative because they were integral steps in the legislative process.” Id. at 55.

A veto is not an integral step in the legislative process in Texas. The

particulars is allowed to substitute for an amended pleading, that allegation makes clear that the misuse of property is based on the veto, and he relies on that allegation in support of the arguments in his petition. Id. at 14. The trial court has not ruled on Appellant’s objections. Regardless, those allegations can be abandoned or revised before trial, which is why factual averments in an indictment are an insufficient basis for a pretrial habeas claim. While it is true that Count II (coercion of a public servant) alleges Appellant’s threat to use the veto, Appellant’s petition addresses only Count I of the indictment. The State will, nevertheless, address the issues raised in Appellant’s petition with regard to both charges, in the event the Court decides to address both charges.

15 governor’s legislative power is negative in the sense that he can only veto or negate legislation. Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). But his veto can be overridden, and although he may approve bills by signing them, absent a veto, a bill passed by both houses becomes law after ten days without his signature. TEX. CONST.

Art. IV, § 14.13

So while the veto, when exercised, is part of the legislative process, it is not a legislative act and the Governor’s power is limited. The constitution grants the veto to the governor as a check on legislative power.14 But despite the language in

Fulmore and Bogan, a veto cannot be an actual legislative act because no member of the legislature has the authority to exercise it. Cf. Gravel, 408 U.S. at 616-17, 621-22

(1972) (legislative aides protected by Speech and Debate Clause if their actions

13In Edwards v. United States, 286 U.S. 482, 490 (1932), the Supreme Court recognized that although the president “acts legislatively under the Constitution, . . . he is not a constituent part of the Congress.” Edwards, 286 U.S. at 490. The Court cited “Memoirs of John Quincy Adams” (1875), vol. 6, pp. 379, 380, which noted that while ‘no Act of Parliament could be valid without the King’s approbation . . . the President is not a constituent part of Congress, and an Act of Congress may be valid as law without his signature or assent.”

14“[The veto] power is given to the executive, it is said, to prevent the natural tendency of the legislative branch to intrude upon the rights and absorb the powers of the other branches of the government. The power is also important as a additional security against the enactment of rash, immature and improper laws. Thus it is thought to act as a salutary check upon the legislative body.” Interpretive Commentary to Art. IV, § 14 (Vernon 1997) p. 722.

16 would have been protected if performed by a member). Therefore, the Governor’s veto as alleged in the bill of particulars as to Count I, is not a legislative act and is not protected by the Speech or Debate Clause.

Veto threat

Even if the veto were a legislative act, Count II alleges the threat of a veto, i.e., a threat to perform a future act. In United States v. Helstoski, 443 U.S. 477 (1979), the Supreme Court held that while the Speech or Debate Clause “precludes any showing of how [a legislator] acted, voted, or decided, . . . [p]romises by a Member to perform an act in the future are not legislative acts.” Id. at 488-89. Specifically,

“a promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate,’” Id. at 490. The Court further noted that an agreement to perform a legislative act may be admissible even if evidence that the act was actually performed is not. Id. at 489. This Court adopted that rationale with regard to the

Texas Speech or Debate Clause in Mutscher. 514 S.W. 2d at 915. Therefore, at least with respect to Count II, prosecution for the veto threat is permissible even if the

Speech or Debate Clause forbids prosecution of the subsequent, actual veto.

How does the resolution of this issue affect future proceedings?

To expedite the matter, this Court could decide the legal question of whether the Speech or Debate Clause can apply to a veto or veto threat by a Texas Governor

17 as a matter of law. See Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App.

2013) (“When the proper resolution of the remaining issue is clear, we will sometimes dispose of the case in the name of judicial economy.”). If neither the veto nor the threat of the veto can be a legislative act as a matter of law, there is no reason to remand to the trial court, regardless of cognizability. If, however, the issue is cognizable, and this Court does not address whether the Governor can claim it, the case will need to be remanded for the development of facts to determine when, where, and under what circumstances Appellant acted before it can be determined whether his act was “essential to legislating” and not merely related to legislating or political in nature. Brewster, 408 U.S. at 512, 516.15 Again, the need for significant record development demonstrates the as-applied nature of Appellant’s constitutional challenge and supports the State’s argument against cognizability.

Legislative Immunity

Appellant also contends his legislative immunity claims are cognizable, but this argument appears to be part of his Speech or Debate Clause argument. Legislative immunity is a common law doctrine that is derived from the Speech or Debate Clause

15Neither the indictment nor the bill of particulars sets out when or where the veto threat was made, but Appellant’s habeas corpus petition assumed it occurred at a press conference or press release. If so, that conduct is not covered by the Speech or Debate clause. Brewster, 408 U.S. at 512; Hutchinson, 443 U.S. at 127-21.

18 and applies in civil cases. With regard to criminal cases, the U.S. Supreme Court held:

This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242, the criminal analog of § 1983.

Imbler v. Pachtman, 424 U.S. 409, 429 (1976).

Furthermore, this argument fails for the same reasons as Appellant’s Speech or Debate Claims.

Separation of Powers

Appellant claims the separation of powers clause of the Texas Constitution is violated by this prosecution. He contends that scrutiny of the gubernatorial veto in the courts allows the judicial branch to unduly interfere with the constitutionally assigned powers of another branch of government. In support of this claim, he again asserts that the veto power is a legislative function. But this case does not involve a statute that purports to interfere with the veto power.16 It involves the facts of a

16A typical separation of powers claim in a criminal case asserts that a penal or procedural statute violates the clause on its face. See, e.g., Perraza v. State, __S.W.3d __, No PD-0100-15 & 0101-15, 2015 Tex Crim. App. 764, *1 (Tex. Crim. App. 2015) (Appellant claims court cost constitutes a tax and improperly delegates tax collection authority to judicial branch); Ex parte Lo, 424 S.W.3d 10, 28-30 (opinion on rehearing) (Court held that statute requiring courts to provide notice to

19 particular prosecution.

Unlike the Speech or Debate issue, the Separation of Powers Clause was not designed to protect a member of the legislative or executive branch “from the burden of defending” themselves in a criminal prosecution. Cf. Helstoski v. Meanor, 442 U.S. at 508 (discussing nature of the Speech or Debate right). It does not grant immunity.

Appellant’s claim is an impermissible bid to litigate his guilt pretrial by calling,

“King’s X.” As such, the trial court correctly held that this claim was not cognizable pretrial.

Political Question

In his brief in the court of appeals, Appellant claimed the legality of his actions amounted to a political question. Appellant’s Court of Appeals’ Brief, p. 42-43. A political question is one that is not subject to judicial review. In Baker v. Carr, 369

U.S.186 (1962), the Supreme Court explained when a political question arises:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of attorney general unduly interferes with judicial branch); Ex parte Gill, 413 S.W.3d at 431-32 (State argued that bail statute unduly interferes with judicial branch); State v. Rhine, 297 S.W.3d 301, 304 (Tex. Crim. App. 2009) (Appellant argued that statute granting rule making authority to TCEQ improperly delegates legislative power to executive branch); Meschell v. State, 739 S.W.2d 246 256-57 (1987) (Court held that speedy trial act unduly interferes with judicial branch).

20 deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. A legal issue does not become a nonjusticiable political question merely because it involves political actors or it “[lies] at the vortex of most fiery political embroilment.” Id. at 215 n. 43. See also, id. at 217 (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’).

Most important, a political question does not confer immunity from criminal prosecution. Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial.

21 PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that this Court affirm that part of the court of appeals’ opinion holding that Appellant’s claims that the statutes are unconstitutional as applied to him are not cognizable in a pre-trial habeas corpus proceeding.

Respectfully submitted,

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

P.O. Box 13046 Austin, Texas 78711 [email protected] 512/463-1660 (Telephone) 512/463-5724 (Fax)

22 CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool this document contains 6604 words.

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney

23 CERTIFICATE OF SERVICE

The undersigned certifies that on this 21st day of October 2015, the State’s

Brief on the Merits of Appellant’s Petition for Discretionary Review was served via certified electronic service provider to:

Anthony G. Buzbee [email protected]

David L. Botsford [email protected]

Thomas R. Phillips [email protected]

Michael McCrum [email protected]

David Gonzalez [email protected]

/s/ LISA C. McMINN LISA C. McMINN State Prosecuting Attorney