Perry, Ex Parte James Richard "Rick" ( 2015 )

PD-1067-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/21/2015 9:08:43 PM
October 22, 2015 Accepted 10/22/2015 8:11:43 AM
ABEL ACOSTA
NO. PD-1067-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
EX PARTE JAMES RICHARD “RICK” PERRY,
Appellant
________________________________________________________
On Appeal from the 390th Judicial District Court,
Travis County, Texas, Cause No. D-1-DC-14-100139
________________________________________________________
APPELLANT’S BRIEF ON THE MERITS ADDRESSING
HIS PETITION FOR DISCRETIONARY REVIEW
________________________________________________________
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com Telephone: 512-322-2565
Telephone: 713-223-5393 Facsimile: 512-322-8363
Facsimile: 713-223-5909
BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040
ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT
Identity of Judge, Parties, and Counsel
The following is a complete list of the names and addresses of all parties and
counsel in this case.
Trial Judge: Honorable Bert Richardson, sitting by appointment;
Court of Criminal Appeals, Supreme Court Building, 201 West 14th
Street, Austin, Texas, 78701.
Appellant: Former Governor James Richard “Rick” Perry, c/o
Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite
7300, Houston, Texas, 77002
Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower,
600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R.
Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078;
and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701
(Lead Counsel on Appeal).
State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint
Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant
Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511,
Austin, Texas, 78701.
i
Table of Contents
Identity of Judge, Parties, and Counsel...................................................................... i
Index of Authorities ................................................................................................. iv
Statement of the Case.................................................................................................1
Grounds for Review ...................................................................................................3
Statement of the Facts ................................................................................................4
Summary of the Argument.........................................................................................7
Argument..................................................................................................................10
I.  Governor Perry’s Claims Are Properly Cognizable ...........................10
A.  The Standard of Review is De Novo. ...................................... 10
B.  The court of appeals misunderstood this Court’s
approach to the cognizability of pretrial habeas claims........... 11
1.  This Court’s approach to cognizability is
functional. .......................................................................11
2.  The court of appeals adopted an erroneous “label-
driven” approach to deciding cognizability....................15
C.  Under an appropriate analysis, all of Governor Perry’s
claims are cognizable. .............................................................. 18
1.  All of Governor Perry’s challenges are the
functional equivalent of a facial attack on Section
39.02(a)(2). .....................................................................18
2.  The key reasons to permit pretrial habeas review
are all present here. .........................................................20
a.  Governor Perry’s challenges can be resolved
on the face of the indictment. ...............................20
ii
b.  Governor Perry’s challenges to the State’s
right to try him at all can only be vindicated
in pretrial proceedings. .........................................21
c.  Important policy considerations compel a
pretrial resolution of Governor Perry’s
constitutional challenges to the indictment. .........22
3.  Habeas review is cognizable under the state of the
record as recognized by the court of appeals .................23
D.  If necessary, this Court should extend an exception to the
cognizability doctrine............................................................... 29
II.  The State’s prosecution of Governor Perry is unconstitutional ..........30
A.  This prosecution violates the constitutional separation of
powers ...................................................................................... 31
B.  Count I violates the Texas Speech or Debate Clause and
the common-law doctrine of legislative immunity .................. 37
C.  The abuse of official capacity statute is unconstitutionally
vague as applied to the veto alleged on the face of the
indictment................................................................................. 45
Prayer for Relief .......................................................................................................48
Certificate of Compliance ........................................................................................49
Certificate of Service ...............................................................................................49
TAB 1, Nine Claims Challenging Count I ...............................................................50
iii
Index of Authorities
Page(s)
CASES
Abney v. United States,
431 U.S. 651 (1977) ......................................................................................44, 45
Armadillo Bail Bonds v. State,
802 S.W.2d 237 (Tex. Crim. App. 1990) ........................................................... 32
Baker v. Carr,
369 U.S. 186 (1962) ............................................................................................ 35
Baraka v. McGreevey,
481 F.3d 187 (3d Cir. 2007) ............................................................................... 42
Barnes v. Secretary of Admin.,
586 N.E.2d 958 (Mass. 1992) ............................................................................. 34
Bogan v. Scott-Harris,
523 U.S. 44 (1998) ............................................................................34, 40, 42, 43
Bowles v. Clipp,
920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ................................... 38
Camacho v. Samaniego,
954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) .................................. 40
Canfield v. Gresham,
17 S.W. 390 (Tex. 1891)...............................................................................38, 39
Coffin v. Coffin,
4 Mass. 1 (1808) ................................................................................................. 38
Coleman v. Miller,
307 U.S. 433 (1939) ............................................................................................ 34
Cook v. State,
902 S.W.2d 471 (Tex. Crim. App. 1995) ........................................................... 32
Cuellar v. State,
70 S.W.3d 815 (Tex. Crim. App. 2002) ............................................................. 47
iv
D’Amato v. Superior Court,
167 Cal. App. 4th 861 (2008) ............................................................................. 42
Doe v. McMillan,
412 U.S. 306 (1973) ................................................................................38, 39, 41
Dombrowksi v. Eastland,
387 U.S. 82 (1967) ..................................................................................21, 22, 45
Ex parte Boetscher,
812 S.W.2d 600 (Tex. Crim. App. 1991) .........................................14, 21, 23, 24
Ex parte Brown,
158 S.W.3d 449 (Tex. Crim. App. 2005) ........................................................... 10
Ex Parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) .....................................................12, 14
Ex parte Elliott,
973 S.W.2d 737 (Tex. App—Austin 1998, pet. ref’d) .................................13, 37
Ex Parte Ellis,
309 S.W.3d 71 (Tex. Crim. App. 2010) .................................................12, 18, 19
Ex parte Ferdin,
183 S.W.2d 466 (Tex. Crim. App. 1944) ........................................................... 35
Ex parte Giles,
502 S.W.2d 774 (Tex. Crim. App. 1974) ........................................................... 32
Ex parte Gill,
413 S.W.3d 425 (Tex. Crim. App. 2013) .....................................................13, 32
Ex parte Halsted,
182 S.W.2d 479 (Tex. Crim. App. 1944) ........................................................... 32
Ex parte Humphrey,
244 S.W. 822 (Tex. Crim. App. 1922) .........................................................13, 37
Ex parte Leslie,
223 S.W.2d 227 (Tex. Crim. App. 1920) .....................................................13, 37
v
Ex parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013) .......................................................11, 32
Ex parte Mattox,
683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..................................24, 25
Ex Parte McCullough,
966 S.W.2d 529 (Tex. Crim. App. 1998) ........................................................... 14
Ex parte Meza,
185 S.W.2d 444 (Tex. Crim. App. 1945) ........................................................... 36
Ex parte Pitt,
206 S.W.2d 596 (Tex. Crim. App. 1947) ........................................................... 35
Ex parte Rathmell,
717 S.W.2d 33 (Tex. Crim. App. 1986) ............................................................. 13
Ex parte Robinson,
641 S.W.2d 552 (Tex. Crim. App. 1982) ...............................................13, 14, 45
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005) .........................................12, 13, 14, 20
Ex Parte Watkins,
73 S.W.3d 264 (Tex. Crim App. 2002) .............................................................. 14
Ex parte Weise,
55 S.W.3d 617 (Tex. 2001)..........................................................................passim
Fulmore v. Lane,
140 S.W. 405 (Tex. 1911)................................................................................... 34
Goldwater v. Carter,
444 U.S. 996 (1979) ............................................................................................ 34
Gravel v. United States,
408 U.S. 606 (1972) ......................................................................................38, 39
Helstoski v. Meanor,
442 U.S. 500 (1979) ......................................................................................21, 44
vi
Henderson v. State,
962 S.W.2d 544 (Tex. Crim. App. 1997) ........................................................... 11
Hernandez v. City of Lafayette,
643 F.2d 1188 (5th Cir. 1981) ............................................................................ 40
Homan v. Branstad,
812 N.W.2d 623 (Iowa 2012) ............................................................................. 34
In re Masonite Corp.,
997 S.W.2d 194 (Tex. 1999) .............................................................................. 23
In re Perry,
60 S.W.3d 857 (Tex. 2001).........................................................22, 39, 40, 42, 43
Irons v. R.I. Ethics Comm’n,
973 A.2d 1124 (R.I. 2009) .................................................................................. 42
Jessen Assocs., Inc. v. Bullock,
531 S.W.2d 593 (Tex. 1976) ........................................................................34, 40
Karenev v. State,
281 S.W.3d 428 (Tex. Crim. App. 2009) (Cochran, J., concurring,
joined by Price, Womack, and Johnson, JJ.) ...................................................... 20
Kilbourn v. Thompson,
103 U.S. 168 (1880) ......................................................................................38, 39
Langever v. Miller,
76 S.W.2d 1025 (Tex. 1934) .............................................................................. 31
Luther v. Borden,
48 U.S. 1 (1849) .................................................................................................. 34
Meshell v. State,
739 S.W.2d 246 (Tex. Crim. App. 1987) ........................................................... 32
Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................................ 13
Mitchell v. Forsyth,
472 U.S. 511 (1985) ............................................................................................ 22
vii
Mutscher v. State,
514 S.W.2d 905 (Tex. Crim. App. 1974) ........................................................... 40
Nixon v. United States,
506 U.S. 224 (1993) ............................................................................................ 34
Pickle v. McCall,
24 S.W. 265 (Tex. 1893)..................................................................................... 34
Saldano v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002) ............................................................. 25
Shade v. U.S. Congress,
942 F. Supp. 2d 43 (D.D.C. 2013) ...................................................................... 40
Smith v. Flack,
728 S.W.2d 784 (Tex. Crim. App. 1989) ........................................................... 22
Spokane Grain & Fuel Co. v. Lyttaker,
109 P. 316 (Wash. 1910) .................................................................................... 34
State Emps. Bargaining Agent Coal. v. Rowland,
494 F.3d 71 (2d Cir. 2007) ................................................................................. 42
State ex rel. Cason v. Bond,
495 S.W.2d 385 (Mo. 1973) ............................................................................... 34
State ex rel. Dickson v. Saiz,
308 P.2d 205 (N.M. 1957) .................................................................................. 34
State ex rel. Lykos v. Fine,
330 S.W.3d 904 (Tex. Crim App. 2011) ................................................12, 19, 28
State ex rel. Wis. Senate v. Thompson,
424 N.W.2d 385 (Wis. 1988).............................................................................. 34
State v. Dankworth,
672 P.2d 148 (Alaska Ct. App. 1983) ................................................................. 42
State v. Holton,
997 A.2d 828 (Md. Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md.
2011) .............................................................................................................41, 42
viii
State v. Moff,
154 S.W.3d 599 (Tex. Crim. App. 2004) ........................................................... 10
State v. Neufeld,
926 P.2d 1325 (Kan. 1996) ................................................................................. 42
State v. Rhine,
297 S.W.3d 301 (Tex. Crim. App. 2009) (Keller, P.J., concurring) .................. 31
Tenney v. Brandhove,
341 U.S. 367 (1951) ................................................................................38, 40, 43
Torres Rivera v. Calderon Serra,
412 F.3d 205 (1st Cir. 2005) ............................................................................... 42
United States v. Beery,
678 F.2d 856 (10th Cir. 1982) ............................................................................ 44
United States v. Brewster,
408 U.S. 501 (1972) ................................................................................40, 41, 44
United States v. Dowdy,
479 F.2d 213 (4th Cir. 1973) .............................................................................. 42
United States v. Helstoski,
442 U.S. 477 (1979) ......................................................................................39, 41
United States v. Hollywood Motor Car Co.,
458 U.S. 263 (1982) ............................................................................................ 45
United States v. Johnson,
383 U.S. 169 (1966) ..........................................................................39, 41, 42, 44
United States v. Kolter,
71 F.3d 425 (D.C. Cir. 1995) .............................................................................. 44
United States v. Lanier,
520 U.S. 259 (1997) ............................................................................................ 46
United States v. Myers,
635 F.2d 932 (2d Cir. 1980) .........................................................................21, 22
ix
United States v. Renzi,
686 F. Supp. 2d 956 (D. Ariz. 2010) .................................................................. 44
United States v. Rose,
28 F.3d 181 (D.C. Cir. 1994) .............................................................................. 21
United States v. Rostenkowski,
59 F.3d 1291 (D.C. Cir. 1995) ............................................................................ 44
United States v. Swindall,
971 F.2d 1531 (11th Cir. 1992) .................................................................... 43, 44
United States v. Zielezinski,
740 F.2d 727 (9th Cir. 1984) .............................................................................. 44
Women’s Emergency Network v. Bush,
323 F.3d 937 (11th Cir. 2003) ............................................................................ 43
STATUTES
Tex. Penal Code § 39.02(a)(2) ...........................................................................45, 46
OTHER AUTHORITIES
1 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF
TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS (George D.
Braden ed. 1977) ................................................................................................. 33
G. DIX AND R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE
AND PROCEDURE § 42.254 (Supp. 2005) ............................................................. 19
Senate Research Center, Budget 101: A Guide to the Budget Process
in Texas (Jan. 2013) ............................................................................................ 26
Tex. Const. art. II, § 1 .............................................................................................. 17
Tex. Const. art. III, § 21 ........................................................................................... 18
Tex. Const. art. III, § 49a ......................................................................................... 25
Tex. Const. art. IV, § 9............................................................................................. 39
Tex. Const. art. IV, § 14.....................................................................................36, 40
x
Tex. Const. art. XV, §§ 1-5 ...................................................................................... 36
TEX. PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254
(Supp. 2005) ........................................................................................................ 19
xi
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry),
and pursuant to the Court’s Order of October 7, 2015, presents his brief on the
merits addressing his grounds for review, and would respectfully show this
Honorable Court the following:
Statement of the Case
In August 2014, a two-count indictment was returned against Governor
Perry, alleging that he violated Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II,
coercion of public servant), and 39.02(a)(2) (Count I, abuse of official capacity) of
the Texas Penal Code by threatening to exercise, and then actually exercising, the
authority vested in the Governor by the Texas Constitution to veto appropriations.
CR4-5. Ten days later, Governor Perry filed an application for pretrial writ of
habeas corpus contesting the legality of his restraint and seeking to bar his
prosecution on both counts, primarily on constitutional grounds. CR11. After the
district court denied relief, CR464-84, he appealed to the Third Court of Appeals.
In a published opinion, that court held that none of Governor Perry’s nine
constitutional challenges to Count I or seven of his eleven constitutional challenges
to Count II were cognizable because they were not “facial,” but merely “as
applied.” Slip Op. at 10-32. The court then granted relief on Count II because the
statute was facially unconstitutional under the First Amendment. Id. at 32-97. The
1
court found it unnecessary to address Governor Perry’s cognizable, facial
vagueness challenges to the statute. Id. at 97.
Governor Perry filed his petition for discretionary review on August 18,
2015, presenting four grounds to challenge the decision that Count I was not
cognizable by habeas corpus review. Two weeks later, the State Prosecuting
Attorney, but not the Attorney Pro Tem that presented and sought the indictment,
filed her petition for discretionary review attacking the court of appeals’ decision
that Count II was unconstitutionally overbroad.1 On October 7, 2015, this Court
granted both petitions.2
1
See State’s Petition for Discretionary Review at 2, citing Ex parte Perry, Slip Op. at 97.
However, the court of appeals actually held that the statutory scheme “is facially invalid under
the First Amendment and is thus unenforceable.” Id.
2
In light of the State’s petition, Governor Perry moved for leave to file a supplemental
petition adding grounds for review 5 through 8, which complained of the court of appeals’
decision that seven of Governor Perry’s constitutional claims as to Count II were non-
cognizable. This Court granted leave to file this previously-submitted supplemental petition on
September 10, 2015, but did not grant review on those grounds. Telephone call from Abel
Acosta, Clerk of the Court of Criminal Appeals, to David Botsford, counsel for Governor Perry
on October 14, 2015. David Botsford notified Lisa McMinn, State Prosecuting Attorney, of this
telephone call immediately thereafter.
2
Grounds for Review
1. Whether the Third Court of Appeals erred by holding that all nine of
Governor Perry’s constitutional challenges to Count I were “as applied”
challenges to the abuse of official capacity statute and therefore not
cognizable in a pretrial application for writ of habeas corpus?3
2. Whether the Third Court of Appeals erred by holding that Governor Perry’s
challenges to Count I based upon Article II, Section I of the Texas
Constitution—separation of powers—were “as applied” challenges to the
abuse of official capacity statute and therefore not cognizable in a pretrial
application for writ of habeas corpus?4
3. Whether the Third Court of Appeals erred by holding that Governor Perry’s
challenges to Count I based upon Article III, Section 21 of the Texas
Constitution—Speech and Debate Clause and common law legislative
immunity—were “as applied” challenges to the abuse of official capacity
statute and therefore not cognizable in a pretrial application for writ of
habeas corpus?5
4. Whether, even if all of Governor Perry’s constitutional challenges to Count I
were in fact “as applied” challenges, the Third Court of Appeals erred in
failing to recognize that the same rationale that requires “exceptions” for
other “as applied” challenges—specifically prosecutions that would
constitute double jeopardy or would be barred by limitations—should apply,
with even greater force, to a prosecution based solely on a defendant’s
exercise of conduct protected by the Speech and Debate Clause and the
Separation of Powers provisions of the Texas Constitution and the common
law doctrine of legislative immunity?6
3
See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73.
4
See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73.
5
See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73.
6
See CR14-16, 41-42, 48-49, 409, 417-19 and 464-73.
3
Statement of the Facts
On August 15, 2014, a Travis County grand jury returned a two-count
indictment against then-Governor James Richard “Rick” Perry. The indictment
alleged that Governor Perry broke the law by threatening to veto an appropriation
item and subsequently issuing a veto. CR4-5. Count I, which alleges an Abuse of
Official Capacity under Section 39.02(a) of the Texas Penal Code, states:
On or about June 14, 2013, in the County of Travis, Texas, James
Richard “Rick” Perry, with intent to harm another, to wit, Rosemary
Lehmberg and the Public Integrity Unit of the Travis County District
Attorney’s Office, intentionally or knowingly misused government
property by dealing with such property contrary to an agreement
under which defendant held such property or contrary to the oath of
office he took as a public servant, such government property being
monies having a value of in excess of $200,000 which were approved
and authorized by the Legislature of the State of Texas to fund the
continued operation of the Public Integrity Unit of the Travis County
District Attorney’s Office, and which had come into defendant’s
custody or possession by virtue of the defendant’s office as a public
servant, namely, Governor of the State of Texas.
CR4-5. The gist of this charge is that Governor Perry “misused” government
property by vetoing funding for the Travis County Public Integrity Unit (“PIU”).
CR4-5. If the words of the indictment left any doubt that the charge might
somehow encompass some other conduct, the State quashed that doubt by
conceding that the gravamen of Count I is the veto. In its “Bill of Particulars and
Amendment of Indictment,” filed in response to a suggestion from the trial judge,
the State explained: “Defendant Perry misused his gubernatorial power to veto a
4
legislatively-approved appropriation of funds for the Public Integrity Section of the
Travis County District Attorney Office.”(emphasis added).7 That document further
explained that Governor Perry allegedly “misused government property that was
subject to his custody and possession in that he used the lawful power of
gubernatorial veto for an unlawful purpose, to wit: eliminating funding for the
Public Integrity Unit after Ms. Lehmberg refused to resign from her elected
position as Travis County District Attorney.” CR5 (emphasis added).8
The indictment appears to allege that Count I is a first degree felony offense,
based on the rationale that the revenues that would subsequently enter the State
Treasury but (as a result of the veto) not be expended would exceed $200,000. But
the veto power is an intangible right of the Governor without discernable monetary
value, and certainly not the value of the amount of whatever appropriation was
vetoed. Thus, even if Governor Perry had committed a criminal offense by
exercising his constitutional responsibility to exercise the veto when he thought
appropriate, such offense would properly be classified a Class C misdemeanor
under Section 39.02(c)(1).9
On August 19, 2014, Governor Perry was processed by the Travis County
7
March 2, 2015, Supplemental Clerk’s Record at 4.
8
A second count, which alleged that Governor Perry committed Coercion of a Public
Servant under Sections 36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code, was dismissed by
the court of appeals based on the facial unconstitutionality of the statute. The Court has granted
the State’s petition for discretionary review challenging that judgment.
5
Sheriff and released on bond pending trial. CR8-10.
On August 25, 2014, Governor Perry filed an Application for Pretrial Writ
of Habeas Corpus (the “Application”). He challenged the legality of his restraint
and specifically sought “to bar the prosecution” on both counts. CR14. The
Application presented nine constitutional claims as to Count I. CR17-18,10 and
sought dismissal and a bar to any further prosecution as a remedy. CR49.
The district court gave the State almost three months to respond, and the
State filed its response on November 7, 2014. CR274. Governor Perry filed a
reply to the State’s response on November 17, 2014. CR391.
Fourteen nationally-known constitutional scholars filed an amicus curiae
brief in support of Governor Perry’s Application. CR367-90. The amici supported
Governor Perry’s prayer for dismissal of Count I on two grounds: (1) that the
constitutional doctrine of Separation of Powers precluded the Legislature from
criminalizing the exercise of a constitutionally authorized gubernatorial veto; and
(2) that Governor Perry cannot be prosecuted for his veto because he is entitled to
absolute legislative immunity for any exercise of his veto power. CR375-84.11
On January 27, 2015, the district court denied the Application without a
9
See March 2, 2015 Supplemental Clerk’s Record at 38.
10
These nine constitutional claims are set forth in the court of appeals opinion at 6-7 and
reproduced at TAB 1.
11
The amici also supported Governor Perry’s prayer for dismissal of Count II on the ground
that it criminalizes speech protected by the First Amendment. CR384-89.
6
hearing. CR464-84. The court ruled that none of Governor Perry’s constitutional
challenges to Count I were cognizable in a pretrial habeas proceeding because they
raised merely as-applied, not facial, constitutional arguments. CR468-73. While
the court acknowledged that Perry’s arguments were “compelling” and “may be
relevant at a later time,” it declined to reach their merits, stating that “the court’s
hands are tied” under its reading of this Court’s precedents regarding cognizability.
CR472-73.
Governor Perry timely appealed to the Third Court of Appeals. The
constitutional scholars (with some additions) who had filed an amicus curiae brief
in the district court renewed their support of Governor Perry’s prayer for dismissal
of Count II. Amici urged the same two grounds as it had in the district court.
On July 24, 2015, the court issued an opinion and judgment.
Summary of the Argument
The court of appeals quoted, with seeming approval, the district court’s
observations that Governor Perry’s claims are “compelling,” “unique,”
“important,” and “certainly deserv[ing] of careful consideration in an appropriate
forum.” Slip Op. at 8 (quoting CR472-73). But like the district court, the court of
appeals believed that this Court’s “binding precedents” prevented consideration of
these claims in a pretrial habeas corpus proceeding. Id. at 2, 25-32, 97. Both
courts concluded that the label “as applied,” regardless of the context in which it is
7
used, requires the denial of any pretrial habeas relief (unless the claim falls into
one of two discrete exceptions to the “facial/as-applied” dichotomy). See Id. at 25-
32, CR471-73. This approach was wrong at every turn.
To begin with, all of Governor Perry’s constitutional claims are cognizable
under the principles and policies previously pronounced and currently employed
by this Court. Far from the “label and go home” approach of the courts below, this
Court evaluates cognizability based on substance, not mere form. It makes a multi-
faceted inquiry about whether considering the grant of extraordinary relief before
trial would ultimately advance the sound administration of justice. When such an
inquiry is conducted on the face of this record Governor Perry’s are clearly
cognizable.
One important consideration for this Court has been whether a pretrial
review is essential to prevent the irremediable loss of constitutional rights. Like
other claims that must be considered before trial—such as double-jeopardy or
limitations—Governor Perry cannot adequately assert his constitutional rights here
by merely interposing them as defenses at trial. Like those claims, many of the
constitutional principles Governor Perry invokes here, such as the Separation of
Powers, the Speech and Debate Clause, and legislative immunity, assert “that the
trial court lacked the power to proceed” on the charges in the first instance. And
like double-jeopardy and limitations, these asserted rights cannot be protected
8
unless they are addressed and resolved before trial.
A second consideration for this Court is judicial economy. In fact-bound
cases, the outcome-determinative questions must await trial for resolution. But
here the opposite is true. Judicial economy is served by considering Governor
Perry’s challenges now, because his legal arguments will wholly pretermit the need
for a trial on Count I if any of his grounds persuade the Court.
Third, and related to judicial economy, this Court has considered whether
the applicant would be entitled to immediate release from further proceedings if he
prevails to be an important justification for pretrial review. Governor Perry
certainly meets this test; if he prevails on any arguments regarding Count I, and the
lower court’s dismissal of Count II is not disturbed, then the prosecution against
him must be dismissed.
Finally, even assuming arguendo that Governor Perry’s claims were not of
the type that this Court has already recognized as cognizable, the Court should
clarify the law to permit immediate resolution of the merits of his challenges.
Governor Perry’s constitutional claims pose fundamental questions about any
governor’s authority to exercise one of that office’s core constitutional
responsibilities—the review of legislative acts, including the possibility of veto.
The basic comity that one branch of government owes to its coordinate branches
compels a prompt and conclusive answer to these questions.
9
When the merits of Governor Perry’s challenges are addressed, the outcome
is clear—the Constitution prohibits this prosecution against Governor Perry.
Accordingly, this Court should grant the writ of habeas corpus and dismiss this
unfortunate and misguided prosecution.
Argument
I. Governor Perry’s Claims Are Properly Cognizable
The court of appeals misapprehended the nature of Governor Perry’s as-
applied challenges. Because these challenges can be decided from the face of the
indictment, unlike typical as-applied challenges which require development of a
factual record at trial, Governor Perry’s as-applied challenges are cognizable in
pretrial habeas. All the factors underlying Texas habeas jurisprudence support
cognizability here. Indeed, the most wasteful and prejudicial course would be to
proceed to trial with the legally appropriate means of pretrial resolution so close at
hand.
A. The Standard of Review is De Novo.
Every aspect of this case is subject to de novo review by this Court.
First, whether an issue should be addressed by habeas review, rather than by
an appeal after trial, is a purely legal determination that appellate courts review de
novo. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005); see also
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (standard of review is
10
de novo for legal determinations that do not turn on evaluation of witness’s
credibility or demeanor or on disputed facts).
Second, on the merits, Governor Perry’s claims are also subject to de novo
review, because the constitutionality of a statute is also a pure question of law. See
Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
Finally, any questions concerning the application of law to facts “when a
court confronts important, clearly defined issues of first impression” are considered
de novo. Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997).
For all these reasons, a trial on Count I could add no clarity to this record for
purposes of constitutional review.
B. The court of appeals misunderstood this Court’s approach to the
cognizability of pretrial habeas claims.
1. This Court’s approach to cognizability is functional.
This Court has recognized that “[p]retrial habeas should be reserved for
situations in which the protection of the applicant’s substantive rights or the
conservation of judicial resources would be better served by interlocutory review.”
Ex parte Weise, 55 S.W.3d 617, 620 (Tex. 2001). The Court has identified three
categories of cases in which the writ is available:
First, the accused may challenge the State’s power to restrain him at
all. Second, the accused may challenge the manner of his pretrial
restraint, i.e., the denial of bail or conditions attached to bail. Third,
the accused may raise certain issues which, if meritorious, would bar
prosecution or conviction.
11
Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (footnotes omitted).
The Court’s cases also impose prudential, but not constitutionally-mandated, limits
on the issues that are cognizable in a pretrial habeas proceeding, none of which
would be offended by entertaining Governor Perry’s claims:
 Pretrial habeas is unavailable when there is an adequate remedy by
appeal. It should be reserved for situations in which the protections of
the applicant’s substantive rights or the conservation of judicial
resources would be better served.12
 Because an interlocutory appeal is an extraordinary remedy, appellate
courts need to be careful to ensure that a pretrial writ is “not misused”
to secure pretrial appellate review of matters that “should not be put
before appellate courts at the pretrial stage”—a variation of ripeness.13
 Pretrial habeas is not appropriate when the question presented, even if
resolved in the applicant’s favor, would not result in immediate
release from restraint.14
 Pretrial habeas should not be used when a complete factual record is
required to address the claim, which includes most as-applied
challenges to the constitutionality of the statute upon which the
offense is based.15
While this Court has cited Weise for the broad proposition that pretrial habeas
“may not be used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309
12
Ex parte Weise, 55 S.W.3d 617, 619-20 (Tex. 2001).
13
Ex Parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (quoting Ex parte Smith,
178 S.W.3d 797, 801 (Tex. Crim. App. 2005); see also Weise, 55 S.W.3d at 619-21.
14
Weise, 55 S.W.3d at 619; Doster, 303 S.W.3d at 724.
15
Ex Parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010); see also State ex rel. Lykos v.
Fine, 330 S.W.3d 904, 910 (Tex. Crim App. 2011) (“An ‘as applied’ challenge is brought during
or after a trial on the merits, for it is only then that the trial judge and the reviewing courts have
the particular facts and circumstances of the case needed to determine whether the statute or law
has been applied in an unconstitutional manner.”).
12
S.W.3d 71, 79 (Tex. Crim. App. 2010) (citing Ex parte Weise, 55 S.W.3d at 620-
21), the principles underlying both decisions actually support consideration of
Governor Perry’s challenges, as discussed below. This Court’s tests serve to
ensure that courts are open to proper cases as well as to ensure that they are closed
to improper cases. Unsurprisingly, therefore, Texas courts have considered pretrial
habeas on the merits in what were technically “as applied” challenges far afield
from double jeopardy16 or limitations,17 including:
 A claim that the statute violates separation of powers because, if
granted, that separate and independent constitutional provision
eliminates the power of the courts to proceed.18
 A claim of collateral estoppel because, if granted, the re-litigation of
the issue would be barred, although it may not bar another trial
16
Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982); Ex parte Rathmell, 717
S.W.2d 33, 34 (Tex. Crim. App. 1986) (noting that the Supreme Court had made it clear that an
interlocutory appeal of a double jeopardy claim “is not only a proper but a preferred remedy,”
because the right against twice being placed in jeopardy would be “significantly undermined if
appellate review of double jeopardy claims were postponed until after conviction and sentence”).
17
A claim that the face of the indictment demonstrates that any prosecution is barred by the
statute of limitations, unless this is a “reparable” pleading defect, is cognizable in pretrial habeas.
Weise, 55 S.W.3d at 620; see also Smith, 178 S.W.3d at 804.
18
In Ex parte Elliott, 973 S.W.2d 737, 738-43 (Tex. App—Austin 1998, pet. ref’d), this
same court of appeals addressed the merits of a pretrial habeas challenge based on a violation of
the nondelegation doctrine embodied within Texas’ separation of powers provisions. Elliott cited
this Court’s opinions in Ex parte Humphrey, 244 S.W. 822 (Tex. Crim. App. 1922) and Ex parte
Leslie, 223 S.W.2d 227 (Tex. Crim. App. 1920), both of which also involved pretrial habeas
challenges to statutes on the basis of a violation of the nondelegation doctrine. Cf. Ex parte Gill,
413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013) (considering but overruling the State’s
separation of powers challenge to Article 17.151 of the Texas Code of Criminal Procedure on
discretionary review by a pretrial habeas applicant). The prohibition on unwarranted delegation
of lawmaking power is “rooted in the principle of separation of powers that underlies our
tripartite system of Government.” Mistretta v. United States, 488 U.S. 361, 371 (1989).
13
altogether.19
 A claim of illegal restraint by an order deferring adjudication of
guilt.20
 A claim that a statute cannot be constitutionally applied to the facts
alleged on the face of the indictment.21
From these holdings, one can glean at least three key considerations
underlying the Court’s jurisprudence regarding cognizability in pretrial habeas.
The first is whether there is an adequate remedy by appeal, which includes analysis
of whether the right at stake would be undermined unless the issues were
cognizable in pretrial habeas. See Weise, 55 S.W.3d at 619-20; Ex parte Robinson,
641 S.W.2d 552, 554-55 (Tex. Crim. App. 1982). The second consideration is
judicial economy. See Smith, 178 S.W.3d at 802 (“There is no point in wasting
scarce judicial and societal resources or putting the defendant to great expense,
inconvenience, and anxiety if the ultimate result is never in question.”).22 The third
is whether resolution of the question presented, if resolved in favor of the
applicant, would result in the immediate release of the applicant. See Ex Parte
Watkins, 73 S.W.3d 264, 275 (Tex. Crim App. 2002). As discussed below, see
infra Part I(C), all nine of Governor Perry’s constitutional challenges to Count I
19
Ex Parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim App. 2002).
20
Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998).
21
Ex parte Boetscher, 812 S.W.2d 600, 601-04 (Tex. Crim. App. 1991).
22
But see Doster, 303 S.W.3d at 725 (noting that the Court has “never actually resolved
whether [judicial economy], absent a jurisdictional or constitutional defect, would be sufficient
to make a claim cognizable on pretrial habeas”).
14
satisfy these principles underlying this Court’s pretrial habeas jurisprudence.
2. The court of appeals adopted an erroneous “label-driven”
approach to deciding cognizability.
In denying the cognizability of Governor Perry’s nine constitutional claims
as to Count I, the court of appeals gave controlling weight not to the guiding
principles discussed above, but to shorthand labels that sometimes, but not
invariably, reflect the results when those standards are properly applied. Thus, the
court below wrongly considered itself “duty-bound” to deny relief because, under
the law as articulated by this Court, “such potential harms incurred” by defendants
like Governor Perry “are simply deemed insufficient in themselves to provide a
basis for relief through pretrial habeas corpus.” Slip Op. at 5, 32.
Governor Perry always recognized that true “as applied” challenges—those
that are particular to the facts that may not even have been determined yet, rather
than those that are purely legal—should not be resolved via pretrial habeas
proceedings. But the court of appeals decided that further judicial inquiry was
foreclosed based on this self-labeling alone. Id. at 11. Hence, the court’s only
references to the Speech and Debate Clause or the Separation of Powers
requirement of the Texas Constitution—other than acknowledging the district
court’s characterization of those claims as “compelling”23—came in its description
23
Slip Op. at 8, citing CR472-73.
15
of Perry’s arguments, not in its analysis of whether those claims were cognizable.24
Despite the length of its opinion and the care it obviously devoted to this case, the
court apparently failed to consider, and certainly failed to explain, why these
claims were not the paradigmatic examples of claims that required pretrial
resolution.
Commendably, however, the court of appeals indicated that, but for its
perception of absolute bar that it understood this Court to have imposed, it would
have regarded the claims as cognizable. It did so by exploring at length various
functional and common-sense tests and standards that this Court has used to
demarcate what is cognizable in habeas from what is not. Specifically, the court
noted that this Court will grant habeas relief when double jeopardy has attached to
a subsequent prosecution (id. at 21, 30), or when a prosecution would be barred by
limitations. (Id. at 21, 23). This analysis was correct; what was erroneous was the
court’s view that it was powerless or incompetent to examine the rationale behind
these outcomes to decide whether the same result was required here.
But had the court below explored not merely the existence of this Court’s
functional tests, but the reasons behind them, it could not have denied that mere
labels have never been and cannot be dispositive. Even though Governor Perry has
consistently conceded that his challenges would not invalidate Section 39.02(a)(2)
24
See Slip Op. at 20, 21, 22.
16
for all purposes against all possible defendants, he has delivered many pages of
arguments and authorities to both the trial court and the court of appeals explaining
in detail why his constitutional arguments should be cognizable now. The State’s
violation of Separation of Powers,25 the Speech and Debate Clause,26 and the
doctrine of legislative immunity flowing therefrom all assert “that the trial court
lacked the power to proceed” at all, the same as a normal facial challenge to the
constitutionality of a statute. Rather than analyze whether the challenges here were
of the type that have been and should be resolved before trial, however, the court
of appeals contented itself with pointing out that Governor Perry himself had
labeled “virtually all” of his claims as “as applied.” Id. at 1, 6-10.
In short, the court of appeals seemed to believe that, absent binding
precedent from this Court involving the precise circumstances presented here—a
prosecution of a Texas governor for threatening to exercise, and then exercising, a
veto, it could take no action regardless of how much this Court’s jurisprudence
justified the cognizability of Governor Perry’s claims. The inevitable
consequence, of course, is that the State gets a free shot to try any governor for any
veto until this Court chooses to use that case to expand its list. That cannot be the
law, and the Court should make clear that the court of appeals erred in imputing
that intention to this Court. Governor Perry now turns to a more comprehensive
25
Tex. Const. art. II, § 1.
17
analysis of how this Court’s precedents comfortably coexist with the cognizability
of his claims
C. Under an appropriate analysis, all of Governor Perry’s claims are
cognizable.
The court of appeals employed a mistaken methodology to assess
cognizability, and it consequently reached an erroneous conclusion. Proper
application of this Court’s precedents makes clear why Governor Perry’s claims
must be considered before trial.
1. All of Governor Perry’s challenges are the functional
equivalent of a facial attack on Section 39.02(a)(2).
Despite this Court’s shorthand observation that pretrial habeas “may not be
used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309 S.W.3d at 79,
neither the facts of that case nor the Weise case on which it relied support a
conclusion that this statement is a hard and fast rule that supplants the Court’s
flexible inquiry. Ellis involved a vagueness challenge to the definition of “funds”
contained in the money laundering statute. Although the applicants had labeled the
claim as a “facial” challenge and the court of appeals had determined it to be
cognizable, this Court held that it was a really an “as applied” challenge that was
not cognizable. The Court reached this conclusion because: (1) a facial vagueness
challenge, in the absence of First Amendment implications, “can succeed only if it
26
Tex. Const. art. III, § 21.
18
is shown that the law is unconstitutionally vague in all of its applications,” 309
S.W.3d at 80, and (2) applicants had not argued that the statute implicated the First
Amendment or was vague in all of its applications. Id. Here, of course, the first
Amendment is implicated.
Weise involved a challenge to the illegal dumping statute. The applicant
claimed that the absence of a culpable mental state in the statutory scheme
rendered the statute unconstitutional as applied to him. According to the Court,
Weise was not attacking the power of the trial court to proceed, but was simply
raising an attack on the charging instrument that could have been raised by motion
to quash. 55 S.W.3d 617 at 620-21 (Tex. Crim. App. 2001). In the course of its
analysis, the Court discussed the “variety of factors” and “protections” such as
limitations, double jeopardy and bail, that “would be effectively undermined if
these issues were not cognizable” at the habeas stage. Id. at 619-20.
This Court’s jurisprudence as a whole make clear that the “facial/as-applied”
dichotomy applies (and makes sense) only when the challenge “requires a recourse
to evidence,” which must await trial. State ex rel. Lykos v. Fine, 330 S.W.3d 904,
910 & n.22 (Tex. Crim App. 2011) (quoting G. DIX AND R. DAWSON, 43A TEX.
PRAC. SERIES: CRIMINAL PRACTICE AND PROCEDURE § 42.254 (Supp. 2005)).
When, on the other hand, as-applied challenges can be decided solely by reference
to the indictment and the statute, as here, they are really legal challenges to the
19
statute itself. They rely only on the indictment and the statutes, not the underlying
facts or circumstances to be proven at a hearing or trial. As and matter of law and
logic, they stand on the same footing, insofar as the cognizability principles
described above are concerned, as a facial challenge. See Smith, 178 S.W.3d at
802 (“There is no point in wasting scarce judicial and societal resources or putting
the defendant to great expense, inconvenience, and anxiety if the ultimate result is
never in question.”). They are, in short, functionally equivalent. See Karenev v.
State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009) (Cochran, J., concurring,
joined by Price, Womack, and Johnson, JJ.) (“A facial challenge is based solely
upon the face of the penal statute and the charging instrument, while an applied
challenge depends upon the evidence adduced at a trial or hearing.” (emphasis
added)); see also CR417-18. And, because they involve the right not to be tried at
all, they are the type of claim which judicial efficiency and fairness require to be
considered and resolved at the outset of the prosecution.
2. The key reasons to permit pretrial habeas review are all
present here.
a. Governor Perry’s challenges can be resolved on the
face of the indictment.
First, Governor Perry’s challenges can be decided based solely on the face of
the indictment and statutes under which he is charged—practically the definition of
a “facial” challenge. He contends that those facts sufficiently demonstrate that the
20
statute, as applied to those facts, is unconstitutional and void as to his prosecution.
This is the essence of this Court’s opinion in Ex parte Boetscher, 812 S.W.2d 600
(Tex. Crim. App. 1991): the indictment alleged facts (i.e., that Boetscher “was then
residing in another state, to wit: Michigan” id. at 602) that formed the basis of his
equal protection argument, rendering the statute void as to the State’s attempted
prosecution. See also infra Part I(C)(2)(discussing Boetscher in greater detail).
b. Governor Perry’s challenges to the State’s right to try
him at all can only be vindicated in pretrial
proceedings.
Second, because Governor Perry’s constitutional challenges involve a right
not to be tried, they by definition cannot be adequately resolved by direct appeal
after trial. CR42, 417-18. When prosecution of a public official violates the
doctrine of separation of powers, “the policies underlying that doctrine” require
that the affected official “be shielded from standing trial.” United States v. Rose,
28 F.3d 181, 186 (D.C. Cir. 1994) (quoting United States v. Myers, 635 F.2d 932,
935 (2d Cir. 1980)). Similarly, the Speech or Debate Clause was designed to
protect officials acting in a legislative capacity “not only from the consequences of
litigation’s results but also from the burden of defending themselves.” Helstoski v.
Meanor, 442 U.S. 500, 508 (1979) (quotation marks omitted) (quoting
Dombrowksi v. Eastland, 387 U.S. 82, 85 (1967)); see also Rose, 28 F.3d at 185.
Governor Perry’s legislative-immunity defense likewise involves a right not
21
to be tried. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (absolute immunity
is “an entitlement not to stand trial”); In re Perry, 60 S.W.3d 857, 859-60 (Tex.
2001) (legislative immunity “shields legislative actors not only from liability, but
also from being required to testify about their legislative activities” and “from the
burden of defending themselves” (quoting Dombrowski, 387 U.S. at 85)). The
mere pendency of criminal proceedings—and not just their eventual outcome—is
what imperils these constitutional principles, which are designed to safeguard
performance of core governmental functions. See Myers, 635 F.2d at 936
(describing the heightened dangers associated with trials of elected officials,
including impairment of representation, irreparable political damage, and
intimidation by political rivals); see also CR42.
c. Important policy considerations compel a pretrial
resolution of Governor Perry’s constitutional
challenges to the indictment.
A post-trial appeal is an especially inadequate remedy here because the
indictment against Governor Perry interferes with the powers of the highest official
in state government. The current governor and his successors must be able to
discharge their official responsibilities, including use of the veto power, free from
any uncertainty about what conduct connected thereto may be criminal and what is
lawful. See Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1989) (“In
some cases, a remedy at law may technically exist; however, it may be
22
nevertheless so uncertain, tedious, burdensome, slow, inconvenient, inappropriate
or ineffective as to be deemed inadequate.”); cf. In re Masonite Corp., 997 S.W.2d
194, 198 (Tex. 1999) (adequacy of an appellate remedy depends in part on the
public’s interest in efficient resolution of a dispute and does not “focu[s]
exclusively on whether the parties alone have an adequate appellate remedy”). If
there is no way short of a jury trial to vindicate the constitutional responsibility to
exercise the veto power when judged necessary by a governor, the veto power will
obviously be chilled by the specter of any number of prosecutors ready to pounce
(including, as here, prosecutors appointed in response to a criminal complaint
requesting the indictment of Governor Perry from a group seeking to avenge a
vetoed bill). The respect owed by each branch of the government to its coordinate
branches demands a prompt and definitive answer to the questions raised by this
prosecution.
3. Habeas review is cognizable under the state of the record as
recognized by the court of appeals
The court of appeals expressed confusion that, in Ex parte Boetscher, 812
S.W.2d 600 (Tex. Crim. App. 1991), and perhaps elsewhere, this Court “employ[ed]
‘as applied’ phrasing” even as its “analysis resembled that in a conventional facial
challenge.” Slip Op. at 28. But there is nothing surprising about this at all. The
Court was focused on the common-sense, functional outcome of applying
meaningful principles to separate cognizable from non-cognizable claims; it did not
23
view the affixing of a label as the end of the inquiry. Only if the court of appeals’
faulty premise were correct—that “‘as applied’ phrasing” necessarily leads to non-
cognizability, regardless of context—would Boetscher be surprising.
In Boetscher, the defendant was charged with criminal nonsupport of his
children, which a statute enhanced to a felony solely because he resided out of
state. Boetscher, 812 S.W.2d at 601. He brought a pretrial habeas proceeding to
challenge the enhancement provision of the statute on equal-protection grounds “as
applied to the unusual circumstances of his case” (i.e., his out-of-state residence at
the time of the offense). Id. at 603. The indictment specifically stated that “the
defendant was then residing in another state, to-wit: Michigan,” at the time of the
offense. Id. at 602. This Court held that this as-applied-to-the-indictment
challenge was cognizable in pretrial habeas, sustained the challenge, and ordered
the indictment dismissed. Id. at 603-04. The Court expressly declined to consider
whether the statute would be constitutional as applied in other scenarios. Id. at 604
n.8.27
27
See also Ex parte Mattox, 683 S.W.2d 93, 95-96 (Tex. App.—Austin 1984, pet. ref’d),
where this same court of appeals affirmatively acknowledged its authority to consider and grant
habeas relief upon a challenge to the legal authority of the State to prosecute the accused. Id.
Mattox’s third and fourth issues on appeal challenged the constitutionality of the commercial
bribery statute as “vague on its face and as applied to the facts alleged in the indictments.” Id. at
96. Both challenges were overruled, but only after the court addressed the arguments on the
merits, stating the following regarding Mattox’s “as applied” fourth issue:
For one lawyer to offer another lawyer an economic benefit in consideration for
the latter’s breach of a fiduciary duty owed to a client is not a legitimate
negotiating tactic; it is bribery. It is just such conduct that has been alleged
24
The court of appeals attempted to distinguish Boetscher from Governor
Perry’s case on the basis of that the former case “centered on the language of the
statute itself,” Slip Op. at 28-29, while Perry’s challenges “are intertwined [not
only] with disputes about what the underlying facts are” and “also with disputes
about whether those facts would constitute violations of the statutes under which
he is charged.” Id. at 29. But the facts alleged in Count I are sufficient to
demonstrate that Governor Perry’s conduct was an exercise of his veto power
under Article IV, Section 14 of the Texas Constitution which is protected conduct
under the Speech or Debate Clause of Article III, Section 21 of the Texas
Constitution. The prosecution of Governor Perry by the judiciary—the Attorney
Pro Tem in the district court28—raises the purely legal question of whether the
prosecution violates the separation of powers expressly embodied in Article II,
Section 1 of the Texas Constitution. No other facts are necessary, although, for
instance, judicial notice of the laws governing Texas’ budget merely serve to
reinforce the utter inapplicability of Count I to a gubernatorial veto.29 Therefore,
against Mattox in the indictments pending against him.
Id. at 98 (emphasis added).
28
The attorney pro tem and his assistant are part of the judicial branch, Saldano v. State, 70
S.W.3d 873, 876 (Tex. Crim. App. 2002),
29
The Texas Constitution requires the Texas Comptroller to provide the Legislature a
biennial revenue estimate (“BRE”) at the beginning of each regular legislative session. See Tex.
Const. art. III, § 49a. Because the Legislature is constitutionally prohibited from appropriating
more revenue than will be collected, the BRE is used by the Legislature to ensure that
appropriations will not exceed the anticipated revenue. Upon final passage of an appropriations
bill, it is sent to the Texas Comptroller to certify whether the anticipated revenue will be
25
the court’s conclusion that Boetscher is distinguishable from Governor Perry’s
separation of powers and Speech or Debate Clause related claims is untenable: no
additional facts were necessary in Boetscher and none are necessary here.
Indeed, Governor Perry easily satisfies all the standards for extraordinary
relief announced by this Court and actually discussed by the court of appeals:
Rest of Page Intentionally Left Blank
sufficient to cover the appropriations made by the Legislature. See Senate Research Center,
Budget 101: A Guide to the Budget Process in Texas at 3, 10 (Jan. 2013),
http://www.senate.state.tx.us/SRC/pdf/Budget_101-2011.pdf.
26
Court of Criminal Appeals standards Why Governor Perry satisfies each
correctly quoted by court of appeals standard
Habeas is an “extraordinary remedy (Slip The court acknowledged this to be an
Op. at 9) extraordinary case (Id. at 31-32)
Habeas to be used “only in very limited Prosecuting a Governor for threatening to
circumstances” (Id. at 9) veto and vetoing a bill is unprecedented;
remedying that abuse is a “very limited
circumstance”
Habeas is “reserved for situations in Not merely a governor’s own
which the protection of the applicant’s constitutional rights, but the preservation
substantive rights or the conservation of of each branch’s separate and enumerated
judicial resources would be best served by powers are threatened when an
interlocutory review” (Id.. at 9) officeholder is indicted, with no allegation
of bribery or corruption, for merely doing
his job
Habeas is “not available to ``test the Governor Perry does not challenge the
sufficiency’ of the charging instrument” sufficiency of this particular indictment in
(Id. at 12, 14), and thus not available to his writ, and certainly does not allege that
challenge an indictment’s failure to it merely contains a technical defect; nor
include an element (like mens rea) (Slip are his challenges hypothetical or
Op. at 13), or a “hypothetical” complaint speculative
(like a pre-trial as applied challenge to a
sentencing statute) (Id. at 15-16 & n.52),
or where it would function like a
“declaratory judgment” (Id. at 16)
Habeas is instead available “where the The gist of Governor Perry’s claims are
alleged defect would bring into question that the judicial branch cannot proceed
the trial court’s power to proceed” (Id. at against a Governor for threatening or
12) exercising the veto itself
Examples of where habeas would lie As described below, this proves too
include challenges based on limitations much—limitations and double jeopardy
(Id. at 12), or on facial unconstitutionality are not less “applied” to a particular
(Id. at 13) defendant than the claims urged by
Governor Perry against both counts
See also Id. at 26-27 (summarizing some of these points). On every score, Perry’s
claims align with those that this Court has allowed, not those it has rejected. The
27
court also failed to explain why, if “a ‘facial’ constitutional challenge seeks to
establish that the statute is unconstitutional and unenforceable as to any person,”
Id. at 11 (quoting State ex rel. Lykos, 330 S.W.3d 908 (emphasis added), and if
only such a facial challenge can be addressed by pretrial habeas, this Court has
granted such relief when neither requisite is met. Why should not an already-tried
defendant just patiently await the conclusion of his second trial to point out that
claim was constitutionally barred all along? And why should not a defendant who
was not timely prosecuted merely sit through his trial and attempt to mount a
defense, secure in the knowledge that any conviction, while perhaps temporarily
aggravating, will ultimately be reversed on appeal. After all, double jeopardy and
limitations are the ultimate “as applied” challenges, claiming only that one
particular defendant cannot be tried in this proceeding, even if the underlying
statute is valid.
Of course, the court of appeals never questioned this Court’s jurisprudence.
Instead, the court contented itself with urging this Court to examine Governor
Perry’s claim and decide whether the “array of procedural mechanisms” should be
expanded for one “faced with . . . loss of liberty.” Id. at 4-5. But nothing in this
Court’s jurisprudence suggests that a lower court should confine its cognizability
inquiry to whether or not a particular fact pattern has been addressed by the court
of last resort, or that a lower court is powerless to apply this Court’s principles to
28
rectify injustice.
The court of appeals inexplicably failed to examine whether double jeopardy
and limitations are preordained as the lone “exceptions,” id. at 13, or whether they
are instead examples of the types of claims that courts properly resolve as a legal
matter before the legal system subjects itself and the defendant (and here, the
Texas form of government itself) to the rigors of trial. Nothing in this Court’s
cases requires the odd and narrow reading that isolates double jeopardy and
limitations from all other claims, whether or not materially indistinguishable for
the purposes of cognizability. Yet the court of appeals strained to read this Court’s
cases as narrowly as possible to make itself appear powerless to rectify injustice.
The lower courts would not have, and this Court will not now, in any way
undermine this Court’s jurisprudence on cognizability by reaching Governor
Perry’s constitutional claims. Few criminal defendants will have resort to Speech
and Debate or Separation of Powers defenses. Holding that Governor Perry’s
challenges are no less cognizable than constitutional double jeopardy or statutory
limitations challenges would leave this Court’s jurisprudence wholly intact.
D. If necessary, this Court should extend an exception to the
cognizability doctrine.
While Governor Perry steadfastly believes that his claims are cognizable
under the principles discussed above, if the Court has any reservations, then it
should create an extension of the current "exceptions," allowing pretrial habeas
29
review of constitutional claims that seek to bar a prosecution to the same extent
that it allows review of claims under the Double Jeopardy Clause, collateral
estoppel or the statute of limitations. While it may be rare for the constitutional
impediments raised by Governor Perry to arise, and indeed they may never do so
again, they are of paramount important to the political and criminal justice system
in Texas. The issues raised here ae important not just to Governor Perry as an
accused felon, but to the entire State; the reasons proffered to justify pre-trial
review of other technically “as-applied” challenges apply with far greater force to
this case. Thus, if the circumstances attending this prosecution must be
categorized (or classified) by this Court before habeas relief can be considered,
Governor Perry urges the Court to do so in this proceeding.
II. The State’s prosecution of Governor Perry is unconstitutional
Because the court of appeals believed that Governor Perry’s challenges to
Count I were not cognizable, it did not reach the merits. But it recognized the
district court’s observations that Governor Perry’s claims are “compelling,”
“unique,” “important,” and “certainly deserv[ing] of careful consideration in an
appropriate forum.” Id. at 8. It also noted the need for this Court’s review, stating
that “[i]f the Texas criminal justice system should operate differently, that change
must come from the Court of Criminal Appeals or the Legislature.” Id. at 32. For
the following reasons, the Court should not only accept the lower court’s invitation
30
to entertain Governor Perry’s challenges, but, having done so, it should find the
prosecution against him to be void.
A. This prosecution violates the constitutional separation of powers
The court of appeals erred by refusing to dismiss Count I of the indictment
as violating the Separation of Powers Clause of the Texas Constitution.30 Article
II, Section 1 of the Texas Constitution mandates a clear separation of the functions
of the coordinate branches of Texas government:
The powers of the Government of the State of Texas shall be divided
into three distinct departments, each of which shall be confided to a
separate body of magistracy, to wit: Those which are Legislative to
one; those which are Executive to another; and those which are
Judicial to another; and no person, or collection of persons, being of
one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly
permitted.
Hence, unlike in the federal system, the requirement of separated powers is
explicitly and emphatically set forth in our Constitution. See State v. Rhine, 297
S.W.3d 301, 314-315 (Tex. Crim. App. 2009) (Keller, P.J., concurring). “So
important is this division of governmental power that it was provided for in the
first section of the first article of the Constitution of the Republic of Texas, and
alone it constituted article 2 of each succeeding Constitution.” Langever v. Miller,
76 S.W.2d 1025, 1035 (Tex. 1934). The provision “reflects a belief on the part of
those who drafted and adopted our state constitution that one of the greatest threats
30
This section addresses claims 3 and 4 as to Count I (i.e., Ground for Review 1, 2, and 4).
31
to liberty is the accumulation of excessive power in a single branch of
government.” Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim.
App. 1990).
Texas courts have long been vigilant in preventing any attempt by one
branch of government to encroach on the authority constitutionally secured to
another branch. Thus, “any attempt by one department of government to interfere
with the powers of another is null and void.” Meshell v. State, 739 S.W.2d 246,
252 (Tex. Crim. App. 1987) (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex.
Crim. App. 1974)). The Separation of Powers Clause can be violated in two ways:
(1) when one branch of government assumes or is delegated a power
more properly attached to another branch, or
(2) when one branch unduly interferes with another branch so that the
other branch cannot effectively exercise its constitutionally assigned
powers.
Lo, 424 S.W.3d at 28; Ex parte Gill, 413 S.W.3d at 431-32; see also Armadillo,
802 S.W.2d at 239. A statute that conflicts with any provision of the Texas
Constitution is, of course, void. See Cook v. State, 902 S.W.2d 471, 479 (Tex.
Crim. App. 1995). Indeed, “[w]hen the constitution speaks, it is supreme” and
“[a]n enduring and lasting government requires that it so remain.” Ex parte
Halsted, 182 S.W.2d 479, 488 (Tex. Crim. App. 1944).
In this case, the actions of the judicial branch—represented here by the
attorney pro tem, appointed by that district judge, and the panel of justices of the
32
court of appeals—unduly interfere with the constitutionally-assigned powers of the
executive branch by scrutinizing a gubernatorial veto and the alleged threat
preceding that veto. The power to veto, including the line-item veto of
appropriations, is one of the core duties assigned to a Texas Governor by our
Constitution. Article IV, Section 14 provides in part:
If any bill presented to the Governor contains several items of
appropriation he may object to one or more of such items, and
approve the other portion of the bill. In such case he shall append to
the bill, at the time of signing it, a statement of the items to which he
objects, and no item so objected to shall take effect.
This language imposes no limits on the Governor’s authority to exercise the veto in
his or her unbounded discretion. As one authority noted: “The veto, particularly
the item veto, is perhaps the most significant of the Texas governor’s constitutional
powers . . . . [B]ecause he has no significant budgetary powers . . . the item veto is
the primary method by which he exercises some control over the amounts and
purposes of state expenditures.” 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION
OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 339
(George D. Braden ed. 1977).31
In exercising the veto power, a Governor acts in a legislative, not an
31
Indeed, virtually any exercise of the veto power could be criminalized—or at least
harassed with prosecution—under the State’s interpretation of the law. For example, every
exercise of the veto, and particularly the line-item veto, will entail winners and losers. On the
State’s theory, such vetoes could nearly always be construed as a “misuse of government
property” done with “intent to harm another” under Texas Penal Code Section 39.02.
33
executive, capacity, and thus is a member of a governing body. See Jessen
Assocs., Inc. v. Bullock, 531 S.W.2d 593, 598 (Tex. 1976) (governor’s “veto power
is a legislative function and not an executive function”); Fulmore v. Lane, 140
S.W. 405, 411 (Tex. 1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). This
is not an anomalous or outmoded view; the veto power is also characterized as a
legislative act in the federal system, Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998),
and in the jurisprudence of many other states.32
Because the power to veto is so central to the gubernatorial office, and
because nothing in the Texas Constitution or laws permits the judicial branch to
scrutinize a governor’s political decision to veto an appropriation, this is the type
of “political question” that American courts have traditionally declined to review
as nonjusticiable. See generally Nixon v. United States, 506 U.S. 224 (1993);
Goldwater v. Carter, 444 U.S. 996 (1979); Coleman v. Miller, 307 U.S. 433
(1939); Luther v. Borden, 48 U.S. 1 (1849). The U.S. Supreme Court has generally
32
See, e.g., Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012); Barnes v. Secretary of
Admin., 586 N.E.2d 958, 961 (Mass. 1992) (“it is for the Legislature . . . to determine finally
which social objectives or programs are worthy of pursuit, the Governor may properly use his
veto power to accomplish legislative-type goals”) (citation omitted); State ex rel. Cason v. Bond,
495 S.W.2d 385, 392 (Mo. 1973) (“[W]hen the Governor takes part in appropriation procedures
[by vetoing legislation], he is participating in the legislative process . . . .”); State ex rel. Dickson
v. Saiz, 308 P.2d 205, 211 (N.M. 1957) (“when the Governor exercises his right of partial veto he
is exercising a quasi-legislative function”); Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316,
320 (Wash. 1910) (“In approving and disapproving laws, in the exercise of his constitutional
prerogative, the executive is a component part of the Legislature.”); State ex rel. Wis. Senate v.
Thompson, 424 N.W.2d 385, 391 (Wis. 1988) (“The partial veto power in this state was adopted .
. . to make it easier for the governor to exercise what this court has recognized to be his ‘quasi-
legislative’ role, and to be a pivotal part of the ‘omnibus’ budget bill process.”).
34
recognized the doctrine in cases with
a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
Baker v. Carr, 369 U.S. 186, 217 (1962).
State courts, including those of Texas, have had little need to articulate the
concept as thoroughly as the U.S. Supreme Court, but they also have consistently
declined to decide cases that raise political questions. This Court has held in the
context of parole decisions that the Governor’s exercise of his discretionary
constitutional authority raises political, not judicial, questions. In Ex parte Ferdin,
183 S.W.2d 466 (Tex. Crim. App. 1944), this Court refused to entertain
jurisdiction over “what is in effect an appeal from the act of the Governor in
revoking the parole,” because courts lack “power over the acts of the Governor so
long as he is within the law and the matter involved is one of his judgment and
discretion in the performance of his duty assigned to him by the Constitution . . . .
Whether or not his acts are harsh, ill advised, and arbitrary, is not a matter for this
court to decide . . . .” Id. at 467-68. See also Ex parte Pitt, 206 S.W.2d 596, 597
(Tex. Crim. App. 1947) (“The sole arbiter of the wisdom of the revocation [of the
35
Governor’s conditional pardon] is the Governor.”); Ex parte Meza, 185 S.W.2d
444, 445 (Tex. Crim. App. 1945) (same).
The Texas Constitution reposes the check on a Governor’s veto power not in
the judicial branch, but in the Legislature and the people. Should either deem veto
decisions to be erroneous or improper, the Texas Constitution provides them with
at least the possibility of a legislative or political countermeasure. The Legislature
may, if it remains in session, override a gubernatorial veto. Tex. Const. art. IV, §
14. Legislators may refuse to cooperate with the Governor on subsequent
initiatives, including appointments. If the Legislature concludes that the
governor’s actions are sufficiently reprehensible, the House may impeach and the
Senate may try and, upon conviction, remove the governor from office. Id. art.
XV, §§ 1-5. And voters may have an opportunity to defeat the re-election of a
governor whose policy choices they oppose, or to replace a retiring governor with
one of a different ilk. Moreover, they can elect legislators who will join in
sufficient strength to re-enact vetoed legislation and override any further veto
attempts. These alternatives have sufficient weight to cause most governors to
exercise their veto power sparingly and deliberately. Allowing a criminal
prosecution of a political decision where there is no allegation of bribery or
demonstrable corruption undermines the basic structure of state government.33
33
As discussed below in connection with the Speech or Debate Clause, the Legislature can
36
Thus, Section 39.02(a)(2) is void, at least to the extent that it permits the
judicial branch in violation of Article II, Section 1, to interfere with the intended
operation of Article IV, Section 14. Just as this Court and the court of appeals
below have accepted a separation of powers claim as cognizable in pretrial habeas,
Ex parte Humphrey, supra; Ex parte Leslie, supra; and Ex parte Elliott,34 this
Court should hold that claims 3 and 4 as to Count I of Governor Perry’s application
for writ of habeas corpus are cognizable, sustain these claims on the merits, reverse
the court of appeals’ opinion and dismiss Count I.
B. Count I violates the Texas Speech or Debate Clause and the
common-law doctrine of legislative immunity
The court of appeals erred by refusing to dismiss Count I of the indictment
for violating the Texas Constitution’s Speech or Debate Clause and the absolute
legislative immunity that accompanies it when the Governor is considering or
exercising his veto power.35
Article III, Section 21 of the Texas Constitution provides that “[n]o member
shall be questioned in any other place for words spoken in debate in either House.”
This is Texas’s Speech or Debate Clause, which is similar to it analog in the
criminalize acts of political corruption, including the acceptance of a bribe or a promise of a
bribe in exchange for the exercise of a veto. Such a prosecution does not trigger any of the
separation-of-powers issues that plague this prosecution because the illegal act is the acceptance
of the bribe or the promise of the bribe, not the veto itself.
34
See footnote 18, supra.
35
This section addresses claims 5, 6, and 7 as to Count I (i.e., Ground for Review 1, 3 and 4).
37
United States Constitution.36 On the few occasions when Texas courts have
considered the Texas clause, they have indicated that its scope is the same as the
federal clause. See Canfield v. Gresham, 17 S.W. 390, 392-93 (Tex. 1891) (citing
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); Bowles v. Clipp, 920 S.W.2d
752, 758 (Tex. App.—Dallas 1996, writ denied); see also Tenney v. Brandhove,
341 U.S. 367, 375 (1951) (noting common purpose of federal and state Speech or
Debate Clauses, including Texas’s).
Under federal precedents, the Clause is “read ‘broadly to effectuate its
purposes,’” Doe v. McMillan, 412 U.S. 306, 311 (1973), which are “[t]o prevent
intimidation of legislators by the Executive and accountability before a possibly
hostile judiciary,” id. at 316 (citation and quotation omitted), and to “free[] the
legislator from executive and judicial oversight that realistically threatens to
control his conduct as a legislator.” Gravel v. United States, 408 U.S. 606, 618
(1972). Stated differently, the purpose of the principle is to secure to every
member “exemption from prosecution, for every thing said or done by him, as a
representative, in the exercise of the functions of that office.” Id. at 660 (quoting
Coffin v. Coffin, 4 Mass. 1, 27 (1808) (emphasis added)).
The Clause originated as a response to the British Crown’s use of criminal
36
Article I, Section 6, Clause 1 of the U.S. Constitution states in relevant part that “for any
Speech or Debate in either House [Senators and Representatives] shall not be questioned in any
other Place.”
38
prosecution to harass political opponents in Parliament. See United States v.
Johnson, 383 U.S. 169, 182 (1966). As noted in Johnson, “[t]here is little doubt
that the instigation of criminal charges against critical or disfavored legislators by
the executive in a judicial forum was the chief fear prompting the long struggle for
parliamentary privilege in England and, in the context of the American system of
separation of powers, is the predominant thrust of the Speech or Debate Clause.”
Id. The Clause therefore naturally implicates separation of powers considerations,
as it aims to “preserve the constitutional structure of separate, coequal, and
independent branches of government.” United States v. Helstoski, 442 U.S. 477,
491 (1979).
Borrowing from federal analyses, Texas courts have derived from the Clause
a broad doctrine of legislative immunity. See Perry, 60 S.W.3d at 859. Not only
are oral speech and debate protected, but so are written reports and legislative
votes. See Canfield, 17 S.W. at 392-93 (citing Kilbourn, 103 U.S. at 204);
McMillan, 412 U.S. at 311. In fact, the Clause protects all communications that
are “an integral part of the deliberative and communicative processes” involved in
a legislative act, including communications with or among aides. Gravel, 408 U.S.
at 625; see also Perry, 60 S.W.3d at 860-61.37
37
Texas governors are not detached legislative gatekeepers, but active participants in
legislative discourse. Governors are constitutionally required to “recommend to the Legislature
such measures as [they] may deem expedient,” Tex. Const. art. IV, § 9, and to explain their
39
Legislative activity includes a Governor’s exercise of the veto power. See
Jessen, 531 S.W.2d at 598. But the Clause is sufficiently broad to protect other
government officials when they engage in “legitimate legislative activity.”
Tenney, 341 U.S. at 376; see also Perry, 60 S.W.3d at 860 (holding that the
attorney general, comptroller, and land commissioner enjoy legislative immunity
for “‘legitimate legislative functions” performed while serving on the Legislative
Redistricting Board).38 Legislative activity also includes executive actions
involving budgetary and appropriations matters. See Bogan, 523 U.S. at 55-56
(affording legislative immunity to city mayor for “introduction of a budget and
signing into law an ordinance,” a “discretionary, policymaking decision
implicating the budgetary priorities of the city” and “formally legislative, even
though he was an executive official”); Shade v. U.S. Congress, 942 F. Supp. 2d 43,
48 (D.D.C. 2013) (appropriation of funds is “a “core legislative function”).39 Any
objections to bills when exercising the veto power. Id. § 14. In short, not only does it permit
communication, the Texas Constitution requires communication between the Governor and
legislators as an integral part of the legislative process. Such communication contributes to both
sound policymaking and an informed electorate.
38
See also Camacho v. Samaniego, 954 S.W.2d 811, 823-24 (Tex. App.—El Paso 1997,
pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1194 (5th Cir. 1981), for
proposition that absolute legislative immunity extended to a mayor’s veto of an ordinance passed
by a city council).
39
To be sure, the protections of the Clause and its accompanying immunity have their
limits. They do not extend to actions that are “no part of the legislative process or function,”
even if performed by legislators. United States v. Brewster, 408 U.S. 501, 526 (1972). For
example, a legislator may be prosecuted for bribery because “acceptance of the bribe is the
violation of the statute, not performance of the illegal promise,” making it “[un]necessary to
inquire into how [the legislator] spoke, how he debated, how he voted, or anything he did in the
chamber or in committee.” Id. at 526. See also Mutscher v. State, 514 S.W.2d 905, 914-15
40
criminal prosecution based on this protected legislative activity is barred. “It is
beyond doubt that the Speech or Debate Clause protects against inquiry into acts
that occur in the regular course of the legislative process and into the motivation
for those acts.” United States v. Brewster, 408 U.S. 501, 525 (1972). Thus,
legislative acts may not themselves be criminalized. See United States v.
Helstoski, 442 U.S. at 488. Nor may a prosecution proceed if it necessarily
depends upon evidence of legislative acts or the motives for them. See Johnson,
383 U.S. at 184-85. In fact, evidence of a legislative act may not even be
introduced at trial in an otherwise permissible prosecution. Helstoski, 442 U.S. at
487-88. This is because the courts have recognized that the “level of intimidation
against a local legislator arising from the threat of a criminal proceeding is at least
as great as the threat from a civil suit,” so that legislative immunity “should be
extended to criminal proceedings.” State v. Holton, 997 A.2d 828, 845, 856 (Md.
Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md. 2011) (quotations and citation
omitted). See also McMillan, 412 U.S. 306, 312-13 (1973) (“Congressmen . . . are
immune from liability for their actions within the ‘legislative sphere’ even though
their conduct, if performed in other than legislative contexts, would in itself be
unconstitutional or otherwise contrary to criminal or civil statutes.” (citation
(Tex. Crim. App. 1974) (affirming House Speaker’s conviction for bribery and upholding the
bribery statute because “[t]aking a bribe is, obviously, no part of the legislative process or
function; it is not, a legislative act” (quoting Brewster, 408 U.S. 527)).
41
omitted)). Indeed, officials cannot even be required to testify about their
legislative activities, regardless of the context in which their testimony is sought.
Perry, 60 S.W.3d at 858, 861.40
This protection is not eviscerated even by allegations of a bad motive. A
charge that legislative conduct was “improperly motivated” is “precisely what the
Speech or Debate Clause generally forecloses from executive and judicial inquiry.”
Johnson, 383 U.S. at 180. Otherwise, immunity would be held hostage to “a
conclusion of the pleader” or “a jury’s speculation as to motives.” Bogan, 523
U.S. at 54 (observing that the Court had applied immunity even when a legislator
“singled out the plaintiff for investigation in order to intimidate and silence the
plaintiff and deter and prevent him from effectively exercising his constitutional
40
Other states provide similar protection in civil, criminal, and quasi-criminal matters. See,
e.g., State v. Dankworth, 672 P.2d 148, 151 (Alaska Ct. App. 1983) (even in a criminal case,
“[o]nce it is determined that [a] legislative function . . . was apparently being performed, the
propriety and the motivation for the action taken, as well as the detail of the acts performed, are
immune from judicial inquiry”) (quoting United States v. Dowdy, 479 F.2d 213, 226 (4th Cir.
1973)); D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) (“The district attorney
acknowledges the principles of legislative immunity . . . but contends immunity applies only to
civil suits, and does not extend to criminal prosecutions. We disagree.”); State v. Neufeld, 926
P.2d 1325, 1337 (Kan. 1996) (“Congressmen . . . are immune from liability for their actions
within the legislative sphere . . . even though their conduct, if performed in other than legislative
contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”
(internal quotation marks omitted)); Holton, 997 A.2d at 851 (“we hold that, as a matter of
common law, local legislators may invoke that same privilege in a criminal prosecution”); Irons
v. R.I. Ethics Comm’n, 973 A.2d 1124, 1131 (R.I. 2009) (“as long as [a legislator’s] challenged
actions, stripped of all considerations of intent and motive, were legislative in character, the
doctrine of absolute legislative immunity protects them from such claims”—there, an ethics
agency enforcement action). Furthermore, several federal circuits have held that governors are
protected by absolute legislative immunity for their legislative acts. See State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 91-92 (2d Cir. 2007); Baraka v. McGreevey, 481 F.3d 187,
196-97 (3d Cir. 2007); Torres Rivera v. Calderon Serra, 412 F.3d 205, 212-14 (1st Cir. 2005);
42
rights” (citing Tenney, 341 U.S. at 377)). “[I]t is ‘not consonant with our scheme
of government for a court to inquire into the motives of legislators.’” Perry, 60
S.W.3d at 860 (quoting Bogan, 523 U.S. at 55). Simply put, “[t]he claim of an
unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377. The
remedy for those who disagree with a veto, no matter how earnestly, is political,
not judicial.41
For these reasons, the courts will foreclose attempts to convert inescapably
political disputes into criminal complaints. A number of federal cases have
required dismissal of grand-jury indictments premised on privileged Speech or
Debate materials, thus barring a trial that would require the government to
introduce evidence of privileged Speech or Debate materials. For example, in
United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992), a former congressman
was prosecuted for lying to the grand jury about his knowledge of various money-
laundering statutes. Id. at 1535-37. To prove his knowledge, the prosecution
introduced evidence before the grand jury and at trial about the congressman’s
activities in Congress, including his activity on a banking committee. Id. at 1539-
Women’s Emergency Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003).
41
In Bogan, the Supreme Court held that the acts of introducing, voting for, and signing an
ordinance eliminating the government office held by a health department administrator, when
“stripped of all considerations of intent and motive,” were in fact “legislative” because the
“ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities
of the city.” 523 U.S. at 55. Governor Perry’s decision to veto an item of appropriation and any
announcement by his staff of his intent most certainly reflects a similar “discretionary,
policymaking decision implicating the budgetary priorities” of Texas.
43
40. The court of appeals reversed the congressman’s conviction and held that the
prosecution violated the Speech or Debate Clause for two reasons: (1) “the
AUSA[] question[ed] [the congressman] before the grand jury about his committee
memberships” in an effort to show his knowledge of money-laundering statutes,
and (2) “reference [was] made to [the congressman’s] committee memberships
both in the grand jury proceedings and at trial.” Id. at 1543. The court held that
“the remedy for the violations of the privilege is dismissal of the affected counts.”
Id. See also Johnson, 383 U.S. at 185 (holding that Speech or Debate material was
improperly presented to the grand jury and ordering a new trial “purged of
elements offensive to the Speech or Debate Clause”); Brewster, 408 U.S. at 527
(holding that, only because a conviction in that case could be sustained without
“inquir[y] into the [legislative] act or its motivation,” could an indictment of a
congressman which referred to legislative acts stand, as “[t]o make a prima facie
case under this indictment, the Government need not show any act of [Brewster]
subsequent to the corrupt promise for payment,” i.e., a bribe).42
In Helstoski v. Meanor, 442 U.S. at 506-08, the Supreme Court followed the
reasoning of Abney v. United States, 431 U.S. 651 (1977) and allowed immediate
42
Dismissing an indictment that violates the federal Speech or Debate Clause is also
supported by United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995); United States v.
Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995); United States v. Zielezinski, 740 F.2d 727 (9th Cir.
1984); United States v. Beery, 678 F.2d 856 (10th Cir. 1982); and United States v. Renzi, 686 F.
Supp. 2d 956 (D. Ariz. 2010).
44
interlocutory appeal in a criminal case to assert the immunity conferred by the
Speech or Debate Clause of the U.S. Constitution. Critical to the holding was the
Supreme Court’s conclusion that the Speech or Debate Clause protects legislators
‘“not only from the consequences of litigation’s results but also from the burden of
defending themselves,’” id. at 508 (quoting Dombrowski v. Eastland, 387 U.S. at
85), which right would have been lost if review did not occur prior to a trial. Just as
this Court followed Supreme Court precedent on Double Jeopardy in permitting
pretrial habeas review, Ex parte Robinson, 641 S.W.2d at 554-55 (following Abney
v. United States, 431 U.S. 651 (1977)), so now it should follow Helstoski in this
case.43
C. The abuse of official capacity statute is unconstitutionally vague
as applied to the veto alleged on the face of the indictment
The court of appeals further erred by refusing to dismiss Count I of the
indictment because Section 39.02(a)(2) is unconstitutionally vague. CR46-48.44
The Abuse of Official Capacity statute, Tex. Penal Code § 39.02(a)(2),45 is
43
The underlying basis of Abney was that because the Fifth Amendment right not to be put
in jeopardy a second time involved “a right not to be tried” and “to “enjoy the full protection of
the Clause,” the claim “must be reviewable before that subsequent exposure occurs.” United
States v. Hollywood Motor Car Co., 458 U.S. 263, 266 (1982) (quoting Abney, 431 U.S. at 662).
The same principles obviously apply here.
44
This section addresses claims 1 and 2 as to Count I (i.e., Grounds for Review 1 and 4).
45
In pertinent part, Abuse of Official Capacity is defined as follows: “A public servant
commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another,
he intentionally or knowingly . . . misuses government property, services, personnel, or any other
thing of value belonging to the government that has come into the public servant’s custody or
possession by virtue of the public servant’s office or employment.” Tex. Penal Code §
45
admittedly a tightly-worded provision with graduated penalties for escalating
levels of wrongdoing. But it has no discernible relationship to any conduct alleged
in the indictment against Governor Perry. Hence, this statute either does not apply
to Governor Perry’s alleged conduct at all or is unconstitutionally vague as applied
to the facts alleged on the face of the indictment. In either case, Count I should be
dismissed.
Prosecution of Governor Perry under Section 39.02(a)(2) violates all three
related manifestations of the fair-warning requirement. See United States v.
Lanier, 520 U.S. 259, 266 (1997). First, the vagueness doctrine would be violated
because there was no fair warning that Governor Perry’s act of vetoing funding for
the PIU would violate that section. Second, the rule of lenity would be violated by
an interpretation of the statute bringing Governor Perry’s veto within the umbrella
of coverage. Third, the prosecution involves an entirely novel construction of
these criminal statutes which neither the text of the statutes nor any prior judicial
decision has fairly disclosed to be within their scope.
This vagueness is evident in several respects. First, neither Governor Perry
nor any other governor could have had fair notice that he was “misus[ing]
government property” by vetoing a line-item appropriation, the effect of which was
to keep funds in the State Treasury rather than allowing funds to be transferred to
39.02(a)(2).
46
Lehmberg’s office after September 1, 2013. Second, Governor Perry did not have
fair notice that he could somehow have “custody or possession” of all the State
funds proposed to be expended in an appropriations bill merely “by virtue of [his]
office or employment” as governor. As this Court can judicially notice, the funds
to be disbursed under the two-year budget commencing September 1, 2013, would
not have been collected by that date, let alone by June 14, 2013, the date of the
misconduct alleged in Count I of the indictment, because Texas uses a pay-as-you-
go system of raising revenue for appropriations.46 In essence, the special
prosecutor’s interpretation of Section 39.02(a)(2) would turn the Rule of Lenity—
that principle that unclear criminal statutes should be construed in favor of the
defendant, Cuellar v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim. App. 2002)—on
its head.
46
See footnote 32, supra.
47
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully
prays that this Court reverse the court of appeals’ judgment holding that Governor
Perry’s constitutional claims are not cognizable, find Section 39.02(a)(2)
unconstitutional, and dismiss Count I.
Respectfully submitted,
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
/s/ Anthony G. Buzbee /s/ Thomas R. Phillips
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com Telephone: 512-322-2565
Telephone: 713-223-5393 Facsimile: 512-322-8363
Facsimile: 713-223-5909
BOTSFORD & ROARK
/s/ David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040
48
Certificate of Compliance
I hereby certify that this document contains 9,569 words in the portions of
the document that are subject to the word limits of Texas Rule of Appellate
Procedure 9.4(i), as measured by the undersigned’s word-processing software.
/s/ David L. Botsford
David L. Botsford
Certificate of Service
This is to certify that a true and complete copy of this document has been
electronically emailed to Lisa McMinn, State Prosecuting Attorney, Michael
McCrum, Attorney Pro Tem, and to Mr. David Gonzalez, Assistant Attorney Pro
Tem on the same date it was electronically filed with the Clerk of the Court of
Criminal Appeals.
/s/ David L. Botsford
David L. Botsford
49
TAB 1
Nine Claims Challenging Count I
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.
50
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.
51