Texas appeals court: Felony charge against Perry violates 1st Amendment

It’s been a bad month for out-of-control state prosecutors with political axes to grind. The Wisconsin Supreme Court struck down the John Doe investigation and lambasted prosecutors and the Government Accountability Board for their vicious tactics and politically motivated persecution of conservatives. A Texas appeals court today provided a similar — but incomplete — slap-down of Travis County prosecutors and their attempt to criminalize speech and the gubernatorial veto process:


A Texas state appeals court on Friday dismissed one of two felony counts in an abuse-of-power case against former Governor Rick Perry stemming from a 2013 veto by the now-presidential candidate.

The Texas Third Court of Appeals in Austin threw out a count of coercion of a public official, saying it violated Perry’s right to free speech. However, the court let stand an abuse of official capacity charge.

In a 97-page opinion, the court said the statute on which the “coercion of a public servant” violates the First Amendment and cannot be enforced.

The court threw out one felony charge while allowing the other to stand — but that’s not an endorsement of it, either. Perry challenged the charge of coercion through speech on the basis of the First Amendment, and the court ruled that the statute is unenforceable in any context. It amounts to criminalizing speech, which the court noted might even bring them under risk of prosecution under the indictment’s reasoning after agreeing on Perry’s set of examples provided (via Baseball Crank):

And it is not difficult to think of other similar examples. Among them, it has occurred to the members of this panel that unless appellate court justices can shoehorn themselves into subsection (c)’s exception, section 36.03(a)(1) would seemingly put at risk that time-honored practice whereby one justice will seek changes to another justice’s draft majority opinion by threatening to write a dissent exposing flaws in the other’s legal reasoning. Similar concerns would arise regarding the standard letter our Clerk issues to prompt action whenever briefs or records are late, in which he warns of imminent dismissal if the deficiency is not promptly rectified, at least when the party in interest is a government entity or official.


In other words, the statute under which Travis County charged Perry with coercion cannot stand on its face under any circumstances. That’s not the case with abuse of official capacity, at least theoretically. The court seems unimpressed with that charge as well, but ruled that a habeas action couldn’t be used to vacate it:

As a final note regarding cognizability of these “as applied” challenges, we acknowledge a broader concern raised by Perry and also by amici who support him—in their view, this case represents an instance where a defendant has been made to face criminal charges of dubious legal viability (and/or politically motivated origins) and will inevitably be vindicated, the only question being at what point in the proceedings this will occur. In such circumstances, they urge, the opportunity and eventuality of obtaining a favorable judgment at trial or on appeal will often do little to rectify the harm the defendant suffers to reputation, professional standing, and the like during the meantime. In fact, they suggest, inflicting such harms may be the primary goal of those who pursue the charges. We express no opinion at this juncture as to whether these characterizations of the charges pending against Perry are accurate—the more relevant observation now is that similar things were said of the proceedings that gave rise to Ellis and related cases, yet it was only through trial and post-judgment appeals that the now-former public official at the center of the cases was able to refute the legal viability of the charges against him. Under Ellis and similar decisions of the 102 Court of Criminal Appeals, such potential harms incurred by defendants in the meantime, however considerable they may be, are simply deemed insufficient in themselves to provide a basis for relief through pretrial habeas corpus. If the Texas criminal justice system should operate differently, that change must come from the Court of Criminal Appeals or the Legislature.


Perry’s attorney seems happy to get this win, and to keep pursuing other options to end this political hack job:

Perry was indicted almost a year ago in a case that centers on his veto of state funding for the public integrity unit in the Travis County district attorney’s office. He had threatened to cut off the funding unless the district attorney, Rosemary Lehmberg, resigned following a drunk-driving arrest.

At the time, Lehmberg’s office housed the public integrity unit, which handles ethics complaints against public officials. Lehmberg refused to step down, and Perry later made good on his threat, vetoing the approximately $3.7 million per year budgeted to fund the unit.

The appeals court agreed with Perry’s lawyers that his threat was a part of the give-and-take of politics, protected by the First Amendment. In doing so, the appeals court cast doubt on how state District Judge Bert Richardson interpreted the definition of “coercion” under the law.

“The only remaining count we believe to be a misdemeanor, and the only issue is whether the governor’s veto – or any veto in the absence of bribery – can ever be illegal,” Tony Buzbee, Perry’s top lawyer in the case, said in a statement. “The appeals court made clear that this case was questionable. The remaining charge is hanging by a thread, and we are confident that once it is put before the court, it will be dismissed on its face.”


Let’s re-emphasize this again. Travis County’s DA prosecuted Perry for threatening to veto funding while a disgraced DA remained in charge of the county’s public integrity unit. He did veto funding for the office, an act allowed under the Texas constitution. Travis County officials wanted to take revenge and cooked up a corruption/abuse of power charge to embarrass Perry. When Lehmberg was in jail, however, she was the person threatening to abuse her authority to take retribution on law-enforcement officers who detained her:

Which public official attempted to abuse their official capacity, and which was trying to demand accountability?


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David Strom 12:40 PM | July 23, 2024