Perry, Ex Parte James Richard "Rick", PD-1067-15

Background

Rick Perry was indicted on two counts: abuse of official capacity (Count I) and coercion of a public servant (Count II); he sought pretrial habeas relief to dismiss both counts.
The trial court denied relief; the Third Court of Appeals affirmed Count I but reversed Count II, holding the coercion statute facially overbroad.
Count II alleged Perry threatened to veto funding for the Public Integrity Unit unless Travis County DA Rosemary Lehmberg resigned.
The statutory provision at issue is Texas Penal Code §36.03(a)(1) as read with the Penal Code definition of “coercion” in §1.07(a)(9)(F) (threat to take or withhold action as a public servant).
The State argues the statute reaches unprotected conduct (bribery, extortion, improper influence) and that the court of appeals overstated hypothetical protected applications and misapplied overbreadth doctrine.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court of appeals conflated overbreadth and traditional facial First Amendment tests	Perry: §36.03(a)(1) (with §1.07(a)(9)(F)) is facially overbroad because it criminalizes a substantial amount of protected political speech (threats to take/withhold official action)	State: Court of appeals used unrealistic hypotheticals and misapplied overbreadth; burden rests on challenger to show substantial, realistic chill	Court of appeals reversed on Count II (found statute overbroad); State asks CCA to reverse that holding and reinstate conviction exposure pending trial
Whether the coercion statute bans a substantial amount of protected speech relative to its legitimate sweep	Perry: Threats to use official action as political bargaining are protected petitioning/speech and thus implicate overbreadth	State: Statute targets unprotected categories (bribery/extortion/improper influence); only threats communicating intent to inflict harm fall within the statute; many hypotheticals do not satisfy the statutory coercion definition	State argues the properly defined elements narrow the statute and remaining protected applications are not substantial; court of appeals disagreed
Whether the statutory definition of “coercion” requires a true threat or broader bargaining conduct	Perry: Broad reading chills political bargaining and debate	State: §1.07(a)(9)(F) incorporates a threat—defined as a communicated intent to inflict harm or loss—so ordinary political negotiation is outside the statute	State contends many cited hypotheticals lack the required communicated intent to inflict harm and thus are outside the statute
Whether facial invalidation is appropriate absent evidence of actual chill or realistic overreach	Perry: Facial remedy justified because statute can be applied to protected speech beyond the challenger	State: Overbreadth is “strong medicine”; challenger must show substantial real-world chilling and realistic hypotheticals; otherwise remedy should be as-applied	State urges case-by-case review at trial rather than facial invalidation

Key Cases Cited

Broadrick v. Oklahoma, 413 U.S. 601 (overbreadth requires substantial real-world impact)
Board of Trustees v. Fox, 492 U.S. 469 (overbreadth judged against statute's plainly legitimate sweep)
United States v. Stevens, 559 U.S. 460 (categories of unprotected speech)
Virginia v. Hicks, 539 U.S. 113 (burden on challenger in overbreadth challenges)
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (need to describe instances of arguable overbreadth)
Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (facial challenge requires realistic danger of compromising First Amendment protections)
N.Y. State Club Ass’n v. City of New York, 487 U.S. 1 (must demonstrate from text and fact substantial unconstitutional applications)
Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App.) (ordinary meaning of “threat” as communicated intent to inflict harm)
Ex parte Lo, 434 S.W.3d 10 (Tex. Crim. App.) (discussion of legitimate sweep vs. overlap with other statutes)
Garcetti v. Ceballos, 547 U.S. 410 (speech limits for public servants and employer interests)
Pickering v. Board of Education, 391 U.S. 563 (distinction between employee-as-sovereign and employee-as-citizen speech)
United States v. Williams, 553 U.S. 285 (overbreadth can invite fanciful hypotheticals)