Perry, Ex Parte James Richard "Rick"
PD-1067-15
| Tex. App. | Oct 22, 2015Background
- Rick Perry, former Texas governor, indicted on two counts: Count I (abuse of official capacity) and Count II (coercion of a public servant). He moved pretrial for habeas relief seeking dismissal based on constitutional immunities.
- Perry argued the prosecution arises from his exercise (or threat) of the gubernatorial veto and asserted protections under: the Texas Speech or Debate Clause (Art. III §21), common-law legislative immunity, and the Texas separation-of-powers doctrine.
- The trial court treated these claims as “as-applied” constitutional challenges and denied pretrial habeas relief. The Third Court of Appeals affirmed as to Count I and reversed as to Count II.
- The State (via the State Prosecuting Attorney) filed a brief urging the Court of Criminal Appeals to affirm the Third Court’s ruling that as-applied challenges to penal statutes requiring factual development are not cognizable pretrial.
- The State further argues: the Speech or Debate Clause applies to legislative members (not the governor); vetoes (and veto threats) are not legislative acts protected by the Clause; common-law legislative immunity does not bar criminal prosecution; and separation-of-powers concerns do not create a pretrial immunity from criminal prosecution.
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (State) | Held (as urged by State / practice at issue) |
|---|---|---|---|
| 1. Cognizability of as-applied constitutional challenges pretrial | Perry: his constitutional immunities (Speech or Debate, legislative immunity, separation of powers) create a right not to stand trial and thus are cognizable pretrial | State: As-applied challenges that depend on the charging facts or factual development are not cognizable in pretrial habeas | As-applied challenges to penal statutes that rely on alleged facts are not cognizable pretrial; should be raised at or after trial |
| 2. Applicability of Texas Speech or Debate Clause to governor’s veto | Perry: veto (and threats) are part of legislative process and thus protected from prosecution | State: Clause protects "members" of legislature; governor is not a member or alter ego; veto is not a legislative act protected by the Clause | Speech or Debate protection does not extend to gubernatorial acts as a matter of law for pretrial purposes (thus not a basis for pretrial dismissal) |
| 3. Protection for veto threats (future acts) under Speech or Debate | Perry: threat tied to veto is immunized as part of legislative-related conduct | State: Promises or threats to perform future legislative acts are not "speech or debate" and thus not protected | Veto threats/promises are not protected legislative acts and may be prosecuted |
| 4. Legislative immunity and separation of powers as immunity from criminal prosecution | Perry: common-law legislative immunity and separation-of-powers principles bar prosecution here | State: Legislative immunity is a civil doctrine and does not bar criminal liability; separation-of-powers does not create a right not to be tried | Legislative immunity does not shield from criminal prosecution; separation-of-powers claims are not a pretrial basis for immunity |
Key Cases Cited
- Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) (pretrial habeas is an extraordinary remedy and not available when adequate legal remedies exist)
- Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) (pretrial habeas unavailable when resolution may be aided by development of record at trial)
- State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) (distinguishing facial vs. as-applied challenges; facial challenges cognizable pretrial)
- Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) (as-applied challenges generally not cognizable pretrial)
- Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) (Texas Speech or Debate provision did not bar bribery prosecution of legislator)
- United States v. Brewster, 408 U.S. 501 (1972) (Speech or Debate Clause does not protect all acts related to legislative function; bribery not protected)
- Gravel v. United States, 408 U.S. 606 (1972) (Speech or Debate protects acts integral to legislative deliberation but not political acts or preparation/implementation of criminal conduct)
- Helstoski v. Meanor, 442 U.S. 500 (1979) (federal Speech or Debate Clause creates substantive right but procedural availability of pretrial relief depends on forum rules)
- Hutchinson v. Proxmire, 443 U.S. 111 (1979) (press releases and outside-the-chamber statements are not protected by Speech or Debate)
- Imbler v. Pachtman, 424 U.S. 409 (1976) (civil immunity doctrines do not imply criminal immunity)