Ex Parte James Richard "Rick" Perry
03-15-00063-CR
| Tex. App. | May 11, 2015Background
- Indictment-related writ challenging the appointment of an attorney pro tem; trial court held hearings and issued an opinion; the State seeks to proceed with prosecution despite questions about the indictment’s sufficiency and privileges; issues hinge on facial provisions of statutes 36.03(a)(1) and 1.07(a)(9)(F) and as-applied claims; substantial factual record is lacking for appellate resolution; the court emphasizes need for facts to resolve as-applied challenges and that pretrial writs should not test indictment sufficiency; remand to develop factual record urged by the State; the case involves Perry (former Texas governor) and Lehmberg (district attorney) in Travis County.
- These issues are framed around the movants’ requests to determine facial constitutionality, as-applied challenges, and applicable privileges and immunities.
- The opinion argues that First Amendment and separation of powers questions require a concrete record and cannot be resolved purely on the indictment’s language at this stage.
- The State argues that allowing a trial to proceed with evidence after indictment will enable proper resolution of facial and as-applied challenges.
- The court ultimately indicates remand to the trial court is appropriate to develop a factual record and address the as-applied, privilege, and immunity claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability of facial overbreadth challenge | Perry—facial challenge to statute should be resolved on the indictment. | State—need factual record; overbreadth should be addressed after record development. | Remand needed; facial overbreadth unresolved pending record. |
| Vagueness challenge timing | Vagueness should be considered now. | As-applied context requires facts; postpone vagueness until after trial. | Remand appropriate; vagueness to be addressed after record development. |
| As-applied challenges require facts | Appellant must show specific facts supporting privileges/immunities. | Record development necessary to determine applicability of privileges/immunities. | Cannot resolve; remand to develop factual record for as-applied claims. |
| Speech or Debate, legislative immunity, and separation of powers defenses | Governor may possess privileges, but facts are needed to resolve applicability. | These are mixed questions; facts needed to adjudicate scope of privileges/immunities. | Need trial-record evidence; require Bill of Particulars/hearings for justiciability. |
Key Cases Cited
- Renne v. Geary, 501 U.S. 312 (1991) (ripeness/justiciability in First Amendment contexts)
- Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469 (1989) (overbreadth doctrine requires applied first; caution against premature facial ruling)
- Ex parte Boetscher, 812 S.W.2d 600 (1991) (face-of-indictment analysis for certain pure-law challenges)
- Ex parte Heilman, 456 S.W.3d 159 (2015) (overruled Phillips’ limitation in some contexts; not essential to facial-vs-applied rule here)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (illustrates necessity of record for First Amendment challenges)