Perry, Ex Parte James Richard "Rick"
2016 Tex. Crim. App. LEXIS 43
| Tex. Crim. App. | 2016Background
- Rick Perry, then Governor of Texas, was indicted on two counts: (1) abuse of official capacity for allegedly misusing >$200,000 appropriated to the Travis County Public Integrity Unit (Count I), and (2) coercion of a public servant for allegedly threatening to veto that funding unless District Attorney Rosemary Lehmberg resigned (Count II).
- The trial court denied Perry’s motion to quash and his pretrial habeas petition but ordered the State to amend Count II and suggested the State specify whether the veto was the alleged act of misuse; the State filed a “Bill of Particulars & Amendment” identifying the veto as the act underlying Count I.
- Perry sought interlocutory review via pretrial habeas; the court of appeals held as-applied challenges generally not cognizable pretrial but sustained a First Amendment overbreadth challenge to §36.03(a)(1) (coercion) and dismissed Count II.
- The Court of Criminal Appeals granted review to decide (a) whether an as‑applied separation-of-powers challenge to prosecuting a governor’s veto is cognizable pretrial; (b) whether prosecuting the veto as abuse of official capacity violates the Texas Separation of Powers clause; and (c) whether the coercion statute, as defined by §1.07(a)(9)(F), is facially overbroad under the First Amendment.
- Holding: the Court allowed pretrial habeas review of the as‑applied separation‑of‑powers claim, held that prosecuting a governor for exercising a constitutional veto violates Texas separation of powers (reversing the court of appeals as to Count I), and affirmed the court of appeals that §36.03(a)(1) as linked to §1.07(a)(9)(F) is unconstitutionally overbroad (affirming dismissal of Count II). The indictment was ordered dismissed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Cognizability of as‑applied separation‑of‑powers claim via pretrial habeas | Pretrial habeas is not the vehicle for as‑applied challenges; ordinary trial process sufficient | Separation‑of‑powers claim here would be effectively undermined if not resolved pretrial (risk of chilling official duties); interlocutory review necessary | Court: pretrial habeas (with interlocutory appeal) is available for an official’s as‑applied separation‑of‑powers claim that alleges infringement of the official’s own constitutional power (e.g., veto) |
| Abuse of official capacity charge based on veto (Does prosecution of a veto violate Separation of Powers?) | Veto can be probed criminally if used as a means to harm or obtain unlawful benefit; statute applies | The governor’s veto is an absolute constitutional power; criminalizing the veto (or motives for it) unlawfully interferes with executive power | Court: No law can constitutionally make the mere act of vetoing legislation a crime; prosecution of the veto violates Texas Separation of Powers — Count I reversed/dismissed |
| Facial overbreadth of coercion statute as applied to threats to take/withhold official action (§36.03(a)(1) incorporating §1.07(a)(9)(F)) | The statute legitimately reaches unprotected threats (extortion, bribery, threats to commit crimes) and government‑speech/employee‑speech doctrines limit First Amendment protection | §36.03(a)(1) (as incorporating subsection (F)) criminalizes a substantial amount of protected political and governmental speech (including ordinary bargaining/horse‑trading and threats to veto); statute chills speech | Court: First Amendment implicated; the challenged portion is substantially overbroad relative to its legitimate sweep; §36.03(a)(1) as tied to §1.07(a)(9)(F) is facially unconstitutional and Count II must be dismissed |
| Scope/effect of State’s bill of particulars identifying the veto as the act of misuse | Bill of particulars is not a formal pleading and State should be free to change prosecutorial theory | State’s bill of particulars amounted to a pretrial admission for notice purposes; court may treat it as the State’s allegation for resolving separation‑of‑powers claim | Court: will hold State to its bill of particulars allegation that the veto was the misuse alleged in Count I for purposes of habeas review |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (U.S. 1974) (presidential‑capacity usage of title in litigation and limits on executive privilege review)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (government‑employee speech doctrine in employment context)
- Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (U.S. 2005) (government speech doctrine)
- Abney v. United States, 431 U.S. 651 (U.S. 1977) (interlocutory review justified where failure to review pretrial would undermine constitutional right — double jeopardy rationale)
- Helstoski v. Meanor, 442 U.S. 500 (U.S. 1979) (Speech and Debate/Abney rationale for pretrial review of legislative‑privilege‑type claims)
- Pocket Veto Case, 279 U.S. 655 (U.S. 1929) (executive veto is an essential constitutional power that cannot be narrowed by statute)
- Ex parte Boetscher, 812 S.W.2d 600 (Tex.Crim.App. 1991) (pretrial habeas permitted for an as‑applied constitutional claim apparent from the pleadings)
- Ex parte Weise, 55 S.W.3d 617 (Tex.Crim.App. 2001) (general rule disallowing as‑applied pretrial habeas challenges)
- Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013) (facial challenges may be cognizable pretrial)
- State v. Hanson, 793 S.W.2d 270 (Tex.Crim.App. 1990) (prior case involving cross‑entity threats and vagueness concerns under the coercion statute)