Ex parte Perry

Decision Date24 July 2015
Docket NumberNo. 03–15–00063–CR,03–15–00063–CR
Citation471 S.W.3d 63
PartiesEx parte James Richard “Rick” Perry
CourtTexas Court of Appeals

David L. Botsford, Botsford & Roark, Thomas R. Phillips, Baker Botts, L.L.P., Austin, TX, Anthony Buzbee, The Buzbee Law Firm, Houston, TX, for appellant.

David M. Gonzalez, Sumpter & Gonzalez, L.L.P., Austin, TX, Michael W. McCrum, McCrum Law Office, San Antonio, TX, for appellee.

Before Justices Puryear, Pemberton, and Field

OPINION

Bob Pemberton, Justice

This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves “unique circumstances” that “have been widely reported, argued, and discussed by many with no standing in the case.”1 Whatever the focus of such commentary, our disposition of this appeal turns on legal issues—primarily procedural in nature—that may be of somewhat less public renown.

To summarize the proceedings below, the appellantJames Richard “Rick” Perry, who until recently served as Governor of Texas—sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,”2 the district court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did—under the Court of Criminal Appeals's binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry's claims on the merits. As to this ruling we respectfully disagree with the district court—the statute on which the “coercion of a public servant” is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.

As a consequence of these holdings, we affirm the district court's denial of relief as to the “abuse of official capacity” charge, because Perry's “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed.

BACKGROUND

The indictment

Through an indictment returned by a Travis County grand jury, appellant Perry has been charged with two counts. Count I alleges that Perry violated section 39.02, subsection (a)(2) of the Texas Penal Code“Abuse of Official Capacity”— which in pertinent part makes it an offense for a “public servant,” “with intent to harm ... another,” to intentionally or knowingly “misuse government property ... that has come into the public servant's custody or possession by virtue of the public servant's office or employment.”3 Count II alleges that Perry violated Penal Code section 36.03(a)(1)“Coercion of Public Servant”—which makes it an offense for a person, “by means of coercion” (a term defined under the Penal Code to include “a threat, however communicated, ... to take or withhold action as a public servant”) to “influence” or attempt to “influence” a “public servant” to certain ends.4 Although the parties are continuing to litigate the precise content of the indictment before the district court, it suffices for present purposes to note their general agreement that both charges relate to alleged conduct by Perry preceding or relating to his line-item veto of a legislative appropriation to fund the “Public Integrity Unit,” then housed within the Travis County District Attorney's Office, while he was serving as Governor of Texas.

In response to the indictment, Perry has vigorously disputed that the alleged conduct actually equals a crime under either of the statutes under which he was charged, properly construed, and he urges that any prosecution for such conduct would infringe not only his personal free-speech rights under the Texas and federal constitutions, but also core powers vested in all Texas governors by the Texas Constitution. Were the pending criminal charges civil claims instead, Perry would have in his defensive arsenal an array of procedural mechanisms through which he could raise such challenges to the legal viability of the State's theories at the outset and possibly obtain dismissal prior to trial—e.g., special exceptions,5 motions for summary judgment,6 and the recently created motion to dismiss a cause of action that “has no basis in law or fact,”7 with possible immediate recourse to appellate courts in the event such relief was denied at the trial level.8 But the pretrial remedies presently available to defendants in Texas criminal cases are more limited9—as the Texas Court of Criminal Appeals has put it, “trial on the merits” remains ‘the main event.’10 Whether it is sound policy to draw such a distinction between defendants faced with loss of property versus loss of liberty is not a question that this intermediate appellate court is empowered to address—we are instead duty-bound to follow that existing law unless and until the Legislature or the Court of Criminal Appeals instructs us otherwise.11

Proceedings below

This appeal arises from Perry's attempt to invoke one of the pretrial remedies that potentially may be available to defendants in Texas criminal cases—an application for a pretrial writ of habeas corpus. Generally described, a criminal defendant may obtain pretrial habeas corpus relief from a trial court when he or she is (1) “restrained” or “confined” (2) illegally and (3) does not possess what is deemed an “adequate remedy by appeal” against such restraint or confinement.12 Further, an applicant who is denied that relief at the trial level, such as Perry, has a right to appeal that order,13 a potential avenue for obtaining what amounts to interlocutory appellate review regarding a pending prosecution.14

There has been no dispute that Perry is “restrained” in the sense required for pretrial habeas relief pursuant to each of the two charges alleged in the indictment.15 As for the remaining requirements for such relief, he has challenged the legality of his restraint pursuant to Count I of the indictment (“Abuse of Official Capacity”) on nine distinct constitutional grounds:

1. Section 39.02(a)(2) [of the Texas Penal Code] violates the Fifth and Fourteenth Amendments to the Constitution of the United States as applied because its prohibitions of “misuse” of “government property ... that has come into the [Governor's] custody or possession” is unconstitutionally vague as a matter of law if extended to a mere gubernatorial veto of any appropriation of State funds.

2. Section 39.02(a)(2) violates Article I, Sections 10 and 19 of the Texas Constitution as applied because its prohibition of “misuse” of “government property ... that has come into the [Governor's] custody or possession” is unconstitutionally vague as a matter of law if extended to a mere gubernatorial veto of any appropriation of State funds.

3. Section 39.02(a)(2) is unconstitutional as applied because it infringes upon the Governor's absolute constitutional right and duty to approve or disapprove “items of appropriation” under Article IV, Section 14 of the Texas Constitution.

4. Section 39.02(a)(2) is unconstitutional as applied because it violates the separation of powers between the various departments of government that is guaranteed to the People by Article II, Section 1 of the Texas Constitution.

5. Because a governor acts in a constitutionally-prescribed legislative capacity in vetoing legislation, Section 39.02(a)(2) is unconstitutional as applied because it violates the protection afforded by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution.

6. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, Count I of the indictment is void because it is necessarily based on evidence privileged by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution.

7. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, trial on Count I of the indictment is barred as a matter of law because the State could only sustain its burden, if at all, by introducing evidence privileged by the Speech and Debate Clause of Article III, Section 21 of [t]he Texas Constitution.

8. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his rights under the Free Speech guarantee of the First Amendment to the Constitution of the United States.

9. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his rights under the Free Speech guarantee of Article I, Section 8 of the Texas Constitution.

Regarding Count II (“Coercion of Public Servant”), Perry has brought the following constitutional claims:

1. Section 36.03(a)(1) violates the First and Fourteenth...

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