Ex Parte James Richard "Rick" Perry, 03-15-00063-CR

Background

James R. “Rick” Perry, then-Governor of Texas, was indicted under Tex. Penal Code §36.03(a)(1) (coercion of a public servant) charged together with the broader statutory definition of “coercion” in Tex. Code §1.07(a)(9)(F).
The indictment arises from alleged statements and conduct concerning District Attorney Lehmberg and potential exercise of the gubernatorial veto; counts include coercion and alleged abuse of official capacity.
Perry filed a pretrial application (habeas) asserting facial and as-applied constitutional challenges: First Amendment overbreadth and vagueness, separation of powers, Speech-or-Debate/clause and legislative immunity, and that the statutes are subject to strict scrutiny or otherwise unconstitutional as applied to legislative acts (veto).
The State defended the statutes as constitutional, argued the speech at issue was unprotected (retaliation/quid pro quo/extortion or government speech), and contended Perry’s claims were not cognizable pretrial.
This document is Perry’s reply brief urging reversal of the district court’s denial of pretrial relief and dismissal/bar to trial, addressing the State’s opposing arguments point-by-point.

Issues

Issue	Perry's Argument	State's Argument	Held / Posture
Facial overbreadth of the coercion statute	Statute and coercion definition criminalize a broad range of protected political speech (not limited to unlawful or true threats) and therefore are substantially overbroad	Speech here is unprotected (retaliatory, extortionate, quid pro quo, or threats) so statute targets unprotected conduct	Lower court denied relief; Perry seeks reversal and dismissal for overbreadth
First Amendment protections of elected officials	Elected officials’ political speech is at the core of the First Amendment; Garcetti employee-speech exception and government-speech doctrine do not strip elected officials of protection	Governor’s statements were government/employee speech and thus outside ordinary First Amendment protection	Dispute remains for appellate resolution; Perry asks court to recognize his First Amendment claim and bar prosecution
Vagueness of coercion definition	Omission of the word “unlawful” and broad statutory language give inadequate notice and chill protected speech; statute ambiguous about threatening lawful action	Legislative history and other cases do not render the statute vague; Hanson is distinguishable; omission of “unlawful” was intentional	Lower court denied relief; Perry seeks ruling that statute is unconstitutionally vague on its face
Separation of powers / veto immunity	Criminalizing the exercise or threatened exercise of constitutional veto power intrudes on executive role and violates separation of powers; remedy is political (override/impeachment)	Separation-of-powers concern does not bar prosecutions for coercive or retaliatory use of official powers; prosecutions for misconduct are permissible	Lower court denied relief; Perry asks appellate court to block prosecution as unconstitutional intrusion
Speech-or-Debate / absolute legislative immunity	Governor’s veto-related communications are legislative in nature and entitled to Speech-or-Debate/legislative immunity that bars prosecution for legislative acts	Texas Speech-or-Debate is narrower and applies only to legislators; legislative immunity does not bar criminal prosecutions here	Lower court denied relief; Perry urges court to apply Speech-or-Debate and bar trial
Standard of review / cognizability pretrial	Constitutional challenges present a right not to be tried; claims are cognizable pretrial and relief should be granted without need for trial record	Constitutional defenses require trial evidence; pretrial habeas is improper for some claims; some issues are as-applied only	Procedural dispute: Perry maintains claims are ripe; State contends factual development required; trial stayed until appellate decision intended

Key Cases Cited

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) (boycott-related speech that may coerce others retains First Amendment protection)
Organizing for a Better Austin v. Keefe, 402 U.S. 415 (1971) (expressing political views intended to influence conduct is protected)
Garcetti v. Ceballos, 547 U.S. 410 (2006) (public-employee speech standard distinguishing employment-related speech)
Bond v. Floyd, 385 U.S. 116 (1966) (elected officials retain First Amendment protections)
Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government-speech doctrine and government selection of messages)
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) (government-speech principles in subsidy/marketing context)
Gravel v. United States, 408 U.S. 606 (1972) (scope of Speech or Debate protections for legislative acts and communications)
United States v. Kozminski, 487 U.S. 931 (1988) (limitations on coercion concepts for criminal statutes; physical/legal coercion standard under Thirteenth Amendment context)
United States v. Stevens, 559 U.S. 460 (2010) (facial overbreadth test: substantial number of unconstitutional applications measured against statute’s legitimate sweep)
United States v. Williams, 553 U.S. 285 (2008) (facial-challenge standards and overbreadth doctrine)
Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) (bribery prosecutions and Speech-or-Debate considerations; distinguished by Perry’s brief)
Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) (verbal extortion and official-oppression context relied on by State)
Ex parte Mattox, 683 S.W.2d 93 (Tex. App.—Austin 1984) (pretrial habeas cognizability of challenges to prosecutorial authority; examined by reply brief)