Ex Parte James Richard "Rick" Perry
03-15-00063-CR
| Tex. App. | Apr 20, 2015Background
- Gov. Rick Perry announced he would veto funding for the Travis County Public Integrity Unit unless DA Rosemary Lehmberg resigned; he then vetoed the appropriations bill.
- Perry was indicted on two counts: (I) violating Tex. Penal Code §39.02(a)(2) by vetoing an appropriation “with intent to harm” and (II) coercing a public servant by threatening to veto to induce Lehmberg’s resignation.
- Amici are a diverse group of constitutional and criminal-law experts submitting a brief urging dismissal on separation-of-powers, legislative-immunity, and First Amendment grounds.
- Amici argue Count I unlawfully criminalizes the Governor’s constitutionally granted veto power and/or is covered by absolute legislative immunity.
- Amici argue Count II criminalizes protected political speech (threat to perform a lawful official act to persuade another official), is overbroad, and would chill core First Amendment activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I lawfully criminalizes a gubernatorial veto under separation of powers | The indictment alleges Perry used his veto with criminal intent to harm, invoking §39.02(a)(2) | The veto is a constitutionally conferred legislative function; the Legislature may not criminalize the Governor’s exercise of that power | Amici argue Count I is unconstitutional under separation of powers and must be dismissed |
| Whether Count I is barred by legislative immunity | Prosecutor contends immunity does not shield the Governor from criminal prosecution for this conduct | Perry (amici) contend absolute legislative immunity protects legislative acts (including vetoes) from inquiry into motive or criminal prosecution | Amici argue legislative immunity forecloses Count I and requires dismissal |
| Whether Count II (coercion) criminalizes protected speech | State contends threat/coercion of a public servant to influence official action is criminal (Tex. Penal Code §36.03/§36.03(a)(1)) | Perry (amici) contend threatening to perform a lawful official act to induce a lawful official act is core political speech protected by the First Amendment and Texas Constitution | Amici argue Count II is unconstitutional: protected speech and facially overbroad, so it must be dismissed |
| Whether the statute can be saved by treating the Governor’s statements as government speech or by narrowing construction | State suggests Garcetti-style government-speech analysis or limiting prosecutions to unprotected threats | Amici respond elected officials’ political advocacy is not unreviewable government speech and the statute, as applied, is content-based and overbroad | Amici urge the court to reject government-speech characterization and strike/decline to apply the statute to this conduct |
Key Cases Cited
- Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) (discusses separation of powers and constitutional structure)
- Tenney v. Brandhove, 341 U.S. 367 (1951) (absolute legislative immunity protects legislators from inquiry into motives)
- In re Perry, 60 S.W.3d 857 (Tex. 2001) (legislative-immunity doctrine applied to nonlegislators performing legislative functions)
- United States v. Brewster, 408 U.S. 501 (1972) (distinguishes bribery as prosecutable where the illegal act is acceptance of a bribe, not the official act itself)
- State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no writ) (threat to take lawful official action to coerce another public official is protected political expression)
- Clinton v. Jones, 520 U.S. 681 (1997) (distinguishes official acts from unofficial conduct for immunity analysis)
- Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) (overbreadth doctrine principles)
- United States v. Stevens, 559 U.S. 460 (2010) (government cannot rely on prosecutorial restraint to save an overbroad statute)