                                                                               PD-1067-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 10/21/2015 8:53:27 PM
October 22, 2015                                              Accepted 10/22/2015 8:10:22 AM
                                                                               ABEL ACOSTA
                               No. PD-1067-15                                          CLERK

                   TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS



                      Ex parte James Richard “Rick” Perry



                          Appeal from Travis County




                                 * * * * *

              STATE’S BRIEF ON THE MERITS OF APPELLANT’S
                  PETITION FOR DISCRETIONARY REVIEW


                                 * * * * *


                              LISA C. McMINN
                          State Prosecuting Attorney
                            Bar I.D. No. 13803300

                                P.O. Box 13046
                             Austin, Texas 78711
                          information@spa.texas.gov
                          512/463-1660 (Telephone)
                              512/463-5724 (Fax)
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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?”

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?”

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?”

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?”

                                                       i
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




                                                          ii
                        IDENTITY OF THE PARTIES

Appellant: James Richard “Rick” Perry.

Appellee: The State of Texas.

Trial Judge: Hon. Bert Richardson.

Counsel for Appellant: 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; and David L. Botsford, 1307 West Avenue,
Austin, Texas, 78701.

Counsel for the State: 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; and Lisa C.
McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas
78711.




                                        iii
                                    INDEX OF AUTHORITIES

Constitutions

U.S. Const. Art. I, § 6, Cl. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. CONST. Art. III, § 21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14n

TEX. CONST. Art. IV, § 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. CONST. Art. V, § 12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6n

Cases

Abney v. United States, 431 U.S. 651 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . 6n, 7n

Baker v. Carr, 369 U.S. 186 (1962). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . 8n

Bogan v. Scott-Harris, 523 U.S. 44 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Brewster, 408 U.S. 501 (1972). . . . . . . . . . . . . . . . . . . 9, 11, 12, 18

Ex parte Castillo, __ S.W.3d __, No. PD-0545-14 (Tex. Crim. App. 2015). . . . . 13

Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . 18

Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010). . . . . . . . . . . . . 5, 7n, 13

Edwards v. United States, 286 U.S. 482 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . 16n

Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . 5, 7, 8n

Fulmore v. Lane, 140 S.W.405 (Tex. 1911). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ex parte Gill, 413 S.W.3d 424 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . 6, 8n, 20n

                                                        iv
Gravel v. United States, 408 U.S. 606 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . 4

Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . 6n

Helstoski v. Meanor, 442 U.S. 500 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . 13n, 20

United States v. Helstoski, 443 U.S. 477 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hutchinson v. Proxmire, 443 U.S. 111 (1979). . . . . . . . . . . . . . . . . . . . . . . . 12, 18n

Imbler v. Pachtman, 424 U.S. 409 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Johnson, 383 U.S. 169 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . 6n

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . 19n

State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011). . . . . . . 6, 7, 8

Meschell v. State, 739 S.W.2d 246 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20n

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . 9, 10

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . . . 6n

Perraza v. State, __S.W.3d __,
      No. PD-0100-15 & 0101-15 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . 19n

Ex parte Perry, __S.W.3d__,
      No. 03-15-00063-CR (Tex. App.–Austin 2015).. . . . . . . . . . . . . . . . . . . . 1-2

Pickle v. McCall, 24 S.W. 265 (Tex. 1893). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

State v. Rhine, 297 S.W.3d 301 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 20n

                                                  v
Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . 6n

Tenney v. Brandhove, 341 U.S. 367 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ex parte Weise, 55 S.W.3d 617 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . 6n

State v. Yount, 853 S.W.2d 8 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . 6n

Codes and Rules

TEX. CODE CRIM. PROC. art. 17.151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8n

Secondary Sources

Interpretive Commentary to Art. 4, § 14 (Vernon 1997). . . . . . . . . . . . . . . . . . . . . .

43 DIX & SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE §
35:16 at 277 (3rd ed. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .




                                                        vi
                                   No. PD-1067-15

                    TO THE COURT OF CRIMINAL APPEALS

                            OF THE STATE OF TEXAS

                        Ex parte James Richard “Rick” Perry

                                      * * * * *

           STATE’S BRIEF ON THE MERITS OF APPELLANT’S
              PETITION FOR DISCRETIONARY REVIEW

                                      * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State Prosecuting Attorney respectfully presents her Brief on the Merits

of Appellant’s Petition for Discretionary review.

              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument was granted at the State’s request.

                          STATEMENT OF THE CASE

        Appellant was charged in a two-count indictment with abuse of official

capacity (Count I) and coercion of a public servant (Count II). Appellant filed a

pretrial application for writ of habeas corpus seeking to dismiss both counts. The trial

court denied relief, and Appellant appealed. On July 25, 2015, the Third Court of

Appeals affirmed the trial court’s ruling as to Count I and reversed as to Count II. Ex


                                           1
parte Perry, __S.W.3d__, No. 03-15-00063-CR (Tex. App.–Austin 2015).

      This Court granted both Appellant’s and the State’s petitions for discretionary

review on October 7, 2015, and ordered expedited briefing and oral argument. The

deadline for filing the parties’ briefs is October 21, 2015.

                              ISSUES PRESENTED

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?”

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?”

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?”

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?”


                                           2
                             STATEMENT OF FACTS

      Appellant was charged with abuse of official capacity in Count I of the

indictment, which alleges:

      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 the defendant’s custody or possession
      by virtue of the defendant’s office as a public servant, namely, Governor
      of the State of Texas.

      Appellant filed a pretrial application for a writ of habeas corpus claiming, inter

alia, that the statute is unconstitutional as applied to him under the Separation of

Powers Clause of the Texas Constitution, the Speech or Debate Clause of the Texas

Constitution, and the common law doctrine of legislative immunity. The trial court

ruled that these claims were “as applied” challenges to the constitutionality of the

statute and, as such, were not cognizable in a pretrial habeas corpus proceeding.

                       SUMMARY OF THE ARGUMENT

      Any constitutional challenge to a penal statute that relies on the specific factual

allegations in the charging instrument or requires the development of facts in the trial

                                           3
court is an “as applied” challenge that cannot be raised in a pretrial application for

writ of habeas corpus.

       A Texas governor cannot legitimately claim the protections of the Speech or

Debate Clause because he is not a member of the legislature or the alter ego of a

member. His signature is not required for a bill to become law. The veto itself,

though part of the legislative process, is not an actual legislative function because it

cannot be exercised by a legislator. A threat to veto is even further removed; it

concerns a hypothetical future act and not a prior vote, statement, or act. Common

law legislative immunity protects against civil proceedings and does not bar criminal

prosecution. Neither the constitutional separation of powers doctrine nor the political

question theory of nonjusticiability creates a right not to stand trial or shields a

member of the executive or legislative branch from criminal prosecution.


                                     ARGUMENT

Pretrial cognizability of “as-applied” constitutional challenges to statutes

      “Habeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court

nor this Court, either in the exercise of [its] original or appellate jurisdiction, should

entertain an application for writ of habeas corpus where there is an adequate remedy

at law.” Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978). Thus,



                                            4
“appellate courts have been careful to ensure that a pretrial writ is not misused.” Ex

parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).

       “Cognizability” is a court-made doctrine that limits the availability of remedies

in an extraordinary proceeding. This Court often speaks of cognizability as a limit

on pretrial appellate review, See, e.g., Ex parte Doster, 303 S.W.3d 720, 724 (Tex.

Crim. App. 2010), but cognizability is also a question of what issues may be heard

in the trial court and when they should be heard. Thus, this Court has held, that

“pretrial habeas is unavailable when the resolution of a claim may be aided by the

development of a record at trial.” Ex parte Doster, 303 S.W.3d at 724.1

       When addressing pretrial cognizability and the availability of extraordinary

remedies, this Court must balance a defendant’s interest in having the issue

determined before trial versus the State’s interest in avoiding piecemeal litigation,

which not only delays the prosecution, but also requires the development of evidence,

resulting in a type of unjustifiable minitrial.




   1
     See also 43 DIX & SCHMOLESKY, TEXAS PRACTICE: CRIMINAL PRACTICE AND
PROCEDURE § 35:16 at 277 (3rd ed. 2011) (“The more extensive pretrial fact-finding
that must occur, and the greater the complexity and difficulty of that fact finding, the
less likely a matter is to be cognizable in pretrial habeas corpus. ... Matters that will
frequently require extensive factual inquiry likely to overlap that necessary to resolve
guilt or innocence, then, are less likely to be found appropriate for pretrial habeas
than others that generally present only simply matters for judicial resolution.”).
                                            5
           This Court has allowed pretrial habeas corpus claims for double jeopardy,2

pretrial bail,3 and the facial unconstitutionality of a statute, which “considers the

statute only as it is written, rather than how it operates in practice.” State ex rel.

Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). These types of claims

are deemed cognizable pretrial because they either challenge the trial court’s “power

to proceed” (facial constitutionality, statute of limitations),4 involve a right that is

“significantly undermined” if not resolved pretrial (double jeopardy),5 or are better

   2
       Ex parte Robinson, 641 S.W.2d 552, 554 (Tex. Crim. App. 1982).
   3
       Ex parte Gill, 413 S.W.3d 425, 426 (Tex. Crim. App. 2013).
       4
        The trial court’s “power to proceed” has been offered as a justification for
allowing facial challenges and claims that a prosecution is barred by limitations. Ex
parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). However, the
constitutionality of a statute is not jurisdictional. “[T]he presentment of an indictment
. . . to a court invests the court with jurisdiction of the cause.” TEX. CONST. article
V, § 12(b). Even an indictment that alleges a facially unconstitutional statute vests
jurisdiction in the trial court. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009). A trial court is deprived of jurisdiction in only two instances: “[i]f the
document purporting to be a charging instrument (i.e. indictment, information, or
complaint) does not satisfy the constitutional requisites of a charging instrument, ...or
[if] the trial court lacks subject matter jurisdiction over the offense charged, such as
when a misdemeanor involving official misconduct is tried in a county court at law.”
See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (discussing the “very
rare situations” in which a judgment is deemed void). Similarly, a statute of
limitations bar is not jurisdictional. State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App.
1993). Limitations is forfeited if not raised at trial. Ex parte Heilman, 456 S.W.3d
159, 162-69 (Tex. Crim. App. 2015).
   5
   Ex parte Robinson, 641 S.W.2d at 554-55, (citing Abney v. United States, 431
U.S. 651 (1977)).
                                            6
raised before trial for reasons of judicial economy.6

      On the other hand, this Court has determined that pretrial habeas is not

available for challenges to the constitutionality of a statute as applied. Ex parte Ellis,

309 S.W.3d at 79. “An ‘as applied’ challenge is brought during or after a trial on the

merits, for it is only then that the trial judge and 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.” State ex rel. Lykos, 330 S.W. 3d

at 910. “Because there is no basis under Texas law to conduct a pretrial evidentiary

hearing to the ‘as applied’ constitutionality of a state penal or criminal procedural

statute,. . . the trial judge does not have legal authority to conduct any such pretrial




  6
    Judicial economy has never been a standalone justification for cognizability. Ex
parte Doster, 303 S.W.3d at 720, 725. Furthermore, pretrial determinations slow
down, rather than speed up, the process. Id. at 726-27. “The delays and disruptions
attendant upon intermediate appeal, which the rule [that only final judgments are
appealable] is designed to avoid, are especially inimical to the effective and fair
administration of the criminal law.” Abney, 431 U.S. at 656-57 (internal citations and
quotations omitted). As in Ex parte Doster, by the time the instant appeal is finally
resolved, this case could have already been tried. If this Court rules in Appellant’s
favor on this issue, and the case is remanded to the trial court for a ruling on the
merits of the separation of powers and Speech or Debate Clause issues, that ruling
will likely be appealed by the losing party, resulting in even more “appellate orbit.”
303 S.W.3d at 727.



                                            7
evidentiary hearing and make any such pretrial declaratory judgment.” Id. at 919.7

Appellant’s claims

       Appellant contends he is being prosecuted for the exercise of his veto power

as Governor, and the Texas Speech or Debate Clause, common law legislative

immunity, and the Texas Separation of Powers Clause protect him from facing trial

for that conduct. These challenges are not facial attacks on the statutes with which

he is charged because they do not seek to invalidate the statutes themselves. Instead,

they are claims that, despite the validity of the statutes, he is immune from

prosecution because of the specific conduct alleged and his status at the time the



   7
     Appellant claims that some as-applied challenges are cognizable. He contends
that Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991), permitted an as-
applied challenge in a pretrial writ. Appellant’s Petition for Discretionary Review,
15-16. But in that case, this Court found an equal protection clause violation based
on the statutory enhancement provision. Id. at 603-04. But even if Ex parte
Boetscher implicitly held that as-applied challenges are cognizable pretrial, it was
overruled sub silencio by subsequent cases like State ex rel. Lykos and Ex parte Ellis.
        Appellant also notes that this Court addressed a separation of powers argument
in Ex parte Gill, 413 S.W. 3d 424 (Tex. Crim. App. 2013). Appellant’s Petition for
Discretionary Review, 18. Gill filed a pretrial writ of habeas corpus, claiming he was
entitled to release on bail under TEX. CODE CRIM. PROC. art. 17.151, and the trial
court denied relief. On appeal, the State argued that the trial court’s denial of relief
should be upheld on the basis that article 17.151 unconstitutionally infringed on the
trial judge’s authority. Ex parte Gill, 413 S.W.3d at 421-32. The State’s challenge
was facial, as it sought to strike down the entire statute. More importantly, the issue
Gill raised was entitlement to bail, which is undoubtably cognizable pretrial. Ex
parte Gill did not hold that a defendant may bring an as-applied constitutional
challenge under the separation of powers doctrine in a pretrial writ.
                                           8
alleged conduct was committed. In other words, the statute is unconstitutional as

applied to him. He nevertheless contends that these challenges are cognizable

because they encompass a right not to stand trial, akin to double jeopardy.

Speech or Debate Clause

      Article III, Sec. 21 of the Texas Constitution says simply, “No member shall

be questioned in any other place for words spoken in debate in either House.” In

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974), this Court determined

that this general provision did not bar prosecution of a member of the Texas

Legislature for bribery because the Article XVI, Section 41 of the Texas Constitution

explicitly allows legislative, executive, and judicial officers to be prosecuted for

bribery. Id. at 915. The Court also relied on United States v. Brewster, 408 U.S. 501,

526 (1972), which held that taking or agreeing to take a bribe is not “a thing said or

done by [a legislator], as a representative in the exercise of the functions of that

office.” Mutscher, 514 S.W.2d at 915. The Court noted that the State needed only

to show the bribe and not the legislative act itself. Id. In other words, to prove

acceptance or solicitation of a bribe, evidence that the defendant carried out the

promise to perform the legislative act was not necessary, only evidence of the promise

was needed.

      Appellant’s grounds for review are limited to the Speech or Debate provisions

                                          9
of the Texas Constitution.8 However, because Mutscher is the only opinion from this

Court addressing that provision, and because the Texas provision was likely

fashioned after the federal Speech or Debate Clause, opinions addressing the federal

provision are instructive.

Federal Speech or Debate Clause

       U.S. Const. Art. I, § 6, Cl. 1, entitled, “Compensation and Privileges of

Members,” states, in part:

       The Senators and Representatives ... shall in all Cases, except Treason,
       Felony and Breach of the Peace, be privileged from Arrest during their
       Attendance at the Session of their respective Houses, and in going to
       and returning from the same; and for any Speech or Debate in either
       House, they shall not be questioned in any other Place.

(emphasis added). This clause was designed to ensure freedom of speech and debate

in the legislature. Its origins go back to at least 1689 England, when parliamentary

privilege was strengthened in response to the prosecution by King Charles I of Sir

John Elliot for “seditious” speeches in Parliament. Tenney v. Brandhove, 341 U.S.

367, 372-73 (1951).      “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

   8
   The Federal Speech or Debate Clause that applies to members of Congress has
never been held to be applicable to state legislators in state court through the Due
Process Clause of the Fourteenth Amendment. Mutscher, 514 S.W.2d at 914.
                                         10
of the American system of separation of powers, is the predominate thrust of the

Speech or Debate Clause.” United States v. Johnson, 383 U.S. 169, 182 (1966).

        The    purpose of the Speech or        Debate Clause was to “protect the

independence of the Legislative Branch,” not to “make Members of Congress

super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 516. It

does not generally exempt members of Congress from criminal prosecution. Gravel

v. United States, 408 U.S. 606, 627 (1972). “While the Speech or Debate Clause

recognizes speech, voting and other legislative acts as exempt from liability that

might otherwise attach, it does not privilege either Senator or aide9 to violate an

otherwise valid criminal law in preparation for or implementing legislative acts.” Id.

       To claim its protections in a criminal prosecution, a member’s actions must

be “essential to legislating.” Gravel, 408 U.S. at 616-17, 621. They must be “an

integral part of the deliberative and communicative processes by which Members

participate in committee and House proceedings with respect to the consideration and

passage or rejection of proposed legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House.” Id. at 625. Brewster

explained that it would be unwise “to extend the privilege beyond its intended scope,

   9
   Legislative aides can claim immunity acting as “alter egos” of members of the
Senate or House if their actions would have been protected if performed by a member.
Gravel, 408 U.S. at 616-17, 621-22.
                                          11
its literal language, and its history, to include all things in any way related to the

legislative process,” noting, “there are few activities in which a legislator engages

that he would be unable somehow to ‘relate’ to the legislative process.” 408 U.S. at

516. The Supreme Court has distinguished between legislative and political acts.

Legislators frequently “engage in many activities other than the purely legislative

activities protected by the Speech or Debate Clause” such as “preparing so-called

‘news letters’ to constituents, news releases, and speeches delivered outside the

Congress.” Id. at 512. But the Court observed, “it has never been seriously contended

that these political matters, however appropriate, have the protection afforded by the

Speech or Debate Clause.” Id. In Hutchinson v. Proxmire, 443 U.S. 111, 127-28

(1979), the Court held that the Speech or Debate Clause did not protect libel about

wasteful government spending in a U.S. senator’s press release for his “Golden Fleece

Award.” The Court rejected the argument that Speech or Debate protections should

apply because members can exert more influence through press releases and

newsletters than speeches on the Senate floor. Id. at 131.

Are Speech or Debate Claims cognizable pretrial?

      Appellant points out that double jeopardy claims are cognizable in pretrial

habeas proceedings because they encompass a right not to be tried, and waiting until

after trial to hear and appeal these claims significantly diminishes that right. He

                                         12
contends that the Speech or Debate Clause similarly creates a right not to be tried;

therefore, those claims should also be resolved before trial.10

        This argument assumes that the only hurdle to pretrial cognizability is the

nature of the right. But this Court has also refused to allow issues to be heard pretrial

when their resolution would require the development of facts. See Ex parte Doster,

303 S.W.3d at 724 (“[P]retrial habeas is unavailable when the resolution of a claim

may be aided by the development of a record at trial.”). Even double jeopardy claims

are decided using an analysis that compares statutory elements and indictment

allegations and does not permit reliance on evidence. Ex parte Castillo, __ S.W.3d

__, No. PD-0545-14, 2015 Tex. Crim. App. LEXIS 622, *6 (Tex. Crim. App. 2015).




   10
      Appellant cites Helstoski v. Meanor, 442 U.S. 500 (1979), in support of this
claim. But Helstoski does not address Texas procedural rules; it addresses
appealability of a pretrial ruling on the merits. Helstoski, a member of the U.S. House
of Representatives, moved to dismiss his bribery indictment, relying on the federal
Speech or Debate Clause. Id. at 504. The trial court denied the motion on the merits,
after considering grand jury transcripts. Id. The Supreme Court held that mandamus
would not lie to compel dismissal because Helstoski had an adequate remedy at law.
Id. at 506. He was entitled appeal under federal procedural rules defining “final
judgment” because the Speech or Debate Clause protects members of Congress “from
the burden of defending themselves.” Id. at 506-08.
       Substantively, Helstoski holds that the Speech or Debate Clause grants a
Legislator a right not to be tried, but it does not address the procedural question of
whether, under Texas cognizability jurisprudence, a trial court must address the
merits of a claim that requires an examination of the facts of the offense.
                                           13
Does the Speech or Debate Clause apply to a gubernatorial veto or veto threat?

          Even if the Texas Speech or Debate Clause protects members of the

Legislature from “the burden of defending themselves,” and this issue is deemed

cognizable – even if it requires the development of facts to determine whether the act

in question was “essential to legislating”– this issue can be resolved without

remanding for an evidentiary hearing if this Court determines, as a threshold issue,

that the Clause does not apply to a Texas Governor. Its plain language is limited to

“members” of the Legislature.11 So there is no need to add Speech or Debate Clause

protection to the list of cognizable pretrial habeas issues if Appellant is not eligible

to raise that claim as a matter of law.

Veto

         Appellant contends that the charges in this case stem from his use of the

gubernatorial veto.12 Neither this Court nor the U.S. Supreme Court has addressed


   11
     “No member shall be questioned in any other place for words spoken in debate
in either House.” TEX. CONST. Art. III, § 21.
    12
      Count I does not allege that a veto was used. But the State filed a “Bill of
Particulars and Amendment of Indictment,” stating that Appellant “misused
government property that was subject to his custody and possession in that he used
the lawful power of the 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.” (3/2/15 Supp. CR: 3,
5). Appellant objected that a bill of particulars is not authorized in Texas and is not
binding on the State. (Id. at 13-14). In the alternative, he argued that if the bill of
                                          14
whether the executive branch is immune from prosecution under the Speech or

Debate Clause.

      In a lawsuit regarding an appropriations bill, the Texas Supreme Court held,

“The veto power when exercised is a legislative and not an executive function.”

Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911).

       And common law legislative immunity in a 42 U.S.C. § 1983 action has been

extended to officials outside the legislative branch when they perform legislative

functions. In Bogan v. Scott-Harris, 523 U.S. 44 (1998), the U. S. Supreme Court

held that a mayor, although a member of the executive branch, could claim legislative

immunity in a § 1983 civil suit, because his “introduction of a budget and signing into

law an ordinance ... were legislative because they were integral steps in the legislative

process.” Id. at 55.

      A veto is not an integral step in the legislative process in Texas. The



particulars is allowed to substitute for an amended pleading, that allegation makes
clear that the misuse of property is based on the veto, and he relies on that allegation
in support of the arguments in his petition. Id. at 14. The trial court has not ruled on
Appellant’s objections. Regardless, those allegations can be abandoned or revised
before trial, which is why factual averments in an indictment are an insufficient basis
for a pretrial habeas claim.
       While it is true that Count II (coercion of a public servant) alleges Appellant’s
threat to use the veto, Appellant’s petition addresses only Count I of the indictment.
The State will, nevertheless, address the issues raised in Appellant’s petition with
regard to both charges, in the event the Court decides to address both charges.
                                           15
governor’s legislative power is negative in the sense that he can only veto or negate

legislation. Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). But his veto can be

overridden, and although he may approve bills by signing them, absent a veto, a bill

passed by both houses becomes law after ten days without his signature. TEX. CONST.

Art. IV, § 14.13

         So while the veto, when exercised, is part of the legislative process, it is not a

legislative act and the Governor’s power is limited. The constitution grants the veto

to the governor as a check on legislative power.14 But despite the language in

Fulmore and Bogan, a veto cannot be an actual legislative act because no member of

the legislature has the authority to exercise it. Cf. Gravel, 408 U.S. at 616-17, 621-22

(1972) (legislative aides protected by Speech and Debate Clause if their actions



    13
       In Edwards v. United States, 286 U.S. 482, 490 (1932), the Supreme Court
recognized that although the president “acts legislatively under the Constitution, . .
. he is not a constituent part of the Congress.” Edwards, 286 U.S. at 490. The Court
cited “Memoirs of John Quincy Adams” (1875), vol. 6, pp. 379, 380, which noted
that while ‘no Act of Parliament could be valid without the King’s approbation . . .
the President is not a constituent part of Congress, and an Act of Congress may be
valid as law without his signature or assent.”
    14
      “[The veto] power is given to the executive, it is said, to prevent the natural
tendency of the legislative branch to intrude upon the rights and absorb the powers
of the other branches of the government. The power is also important as a additional
security against the enactment of rash, immature and improper laws. Thus it is
thought to act as a salutary check upon the legislative body.” Interpretive
Commentary to Art. IV, § 14 (Vernon 1997) p. 722.
                                             16
would have been protected if performed by a member). Therefore, the Governor’s

veto as alleged in the bill of particulars as to Count I, is not a legislative act and is not

protected by the Speech or Debate Clause.

Veto threat

       Even if the veto were a legislative act, Count II alleges the threat of a veto, i.e.,

a threat to perform a future act. In United States v. Helstoski, 443 U.S. 477 (1979),

the Supreme Court held that while the Speech or Debate Clause “precludes any

showing of how [a legislator] acted, voted, or decided, . . . [p]romises by a Member

to perform an act in the future are not legislative acts.” Id. at 488-89. Specifically,

“a promise to deliver a speech, to vote, or to solicit other votes at some future date is

not ‘speech or debate,’” Id. at 490. The Court further noted that an agreement to

perform a legislative act may be admissible even if evidence that the act was actually

performed is not. Id. at 489. This Court adopted that rationale with regard to the

Texas Speech or Debate Clause in Mutscher. 514 S.W. 2d at 915. Therefore, at least

with respect to Count II, prosecution for the veto threat is permissible even if the

Speech or Debate Clause forbids prosecution of the subsequent, actual veto.

       How does the resolution of this issue affect future proceedings?

       To expedite the matter, this Court could decide the legal question of whether

the Speech or Debate Clause can apply to a veto or veto threat by a Texas Governor

                                             17
as a matter of law. See Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App.

2013) (“When the proper resolution of the remaining issue is clear, we will sometimes

dispose of the case in the name of judicial economy.”). If neither the veto nor the

threat of the veto can be a legislative act as a matter of law, there is no reason to

remand to the trial court, regardless of cognizability.       If, however, the issue is

cognizable, and this Court does not address whether the Governor can claim it, the

case will need to be remanded for the development of facts to determine when, where,

and under what circumstances Appellant acted before it can be determined whether

his act was “essential to legislating” and not merely related to legislating or political

in nature. Brewster, 408 U.S. at 512, 516.15 Again, the need for significant record

development demonstrates the as-applied nature of Appellant’s constitutional

challenge and supports the State’s argument against cognizability.

Legislative Immunity

       Appellant also contends his legislative immunity claims are cognizable, but this

argument appears to be part of his Speech or Debate Clause argument. Legislative

immunity is a common law doctrine that is derived from the Speech or Debate Clause



  15
    Neither the indictment nor the bill of particulars sets out when or where the veto
threat was made, but Appellant’s habeas corpus petition assumed it occurred at a
press conference or press release. If so, that conduct is not covered by the Speech or
Debate clause. Brewster, 408 U.S. at 512; Hutchinson, 443 U.S. at 127-21.
                                           18
and applies in civil cases. With regard to criminal cases, the U.S. Supreme Court

held:

        This Court has never suggested that the policy considerations which
        compel civil immunity for certain governmental officials also place them
        beyond the reach of the criminal law. Even judges, cloaked with
        absolute civil immunity for centuries could be punished criminally for
        willful deprivations of constitutional rights on the strength of 18 U.S.C.
        § 242, the criminal analog of § 1983.

Imbler v. Pachtman, 424 U.S. 409, 429 (1976).

        Furthermore, this argument fails for the same reasons as Appellant’s Speech

or Debate Claims.

Separation of Powers

        Appellant claims the separation of powers clause of the Texas Constitution is

violated by this prosecution. He contends that scrutiny of the gubernatorial veto in

the courts allows the judicial branch to unduly interfere with the constitutionally

assigned powers of another branch of government. In support of this claim, he again

asserts that the veto power is a legislative function. But this case does not involve a

statute that purports to interfere with the veto power.16 It involves the facts of a

   16
     A typical separation of powers claim in a criminal case asserts that a penal or
procedural statute violates the clause on its face. See, e.g., Perraza v. State,
__S.W.3d __, No PD-0100-15 & 0101-15, 2015 Tex Crim. App. 764, *1 (Tex. Crim.
App. 2015) (Appellant claims court cost constitutes a tax and improperly delegates
tax collection authority to judicial branch); Ex parte Lo, 424 S.W.3d 10, 28-30
(opinion on rehearing) (Court held that statute requiring courts to provide notice to
                                           19
particular prosecution.

       Unlike the Speech or Debate issue, the Separation of Powers Clause was not

designed to protect a member of the legislative or executive branch “from the burden

of defending” themselves in a criminal prosecution. Cf. Helstoski v. Meanor, 442 U.S.

at 508 (discussing nature of the Speech or Debate right). It does not grant immunity.

Appellant’s claim is an impermissible bid to litigate his guilt pretrial by calling,

“King’s X.” As such, the trial court correctly held that this claim was not cognizable

pretrial.

Political Question

       In his brief in the court of appeals, Appellant claimed the legality of his actions

amounted to a political question. Appellant’s Court of Appeals’ Brief, p. 42-43. A

political question is one that is not subject to judicial review. In Baker v. Carr, 369

U.S.186 (1962), the Supreme Court explained when a political question arises:

       Prominent on the surface of any case held to involve a political question
       is found 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


attorney general unduly interferes with judicial branch); Ex parte Gill, 413 S.W.3d
at 431-32 (State argued that bail statute unduly interferes with judicial branch); State
v. Rhine, 297 S.W.3d 301, 304 (Tex. Crim. App. 2009) (Appellant argued that statute
granting rule making authority to TCEQ improperly delegates legislative power to
executive branch); Meschell v. State, 739 S.W.2d 246 256-57 (1987) (Court held that
speedy trial act unduly interferes with judicial branch).
                                           20
      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.

Id. at 217. A legal issue does not become a nonjusticiable political question merely

because it involves political actors or it “[lies] at the vortex of most fiery political

embroilment.” Id. at 215 n. 43. See also, id. at 217 (“The doctrine of which we treat

is one of ‘political questions,’ not one of ‘political cases.’).

      Most important, a political question does not confer immunity from criminal

prosecution. Whether Appellant’s conduct satisfies the elements of a penal statute

is a question of sufficiency of the evidence to be decided at trial, not a pretrial

determination that this issue cannot be decided or that he is immune from prosecution

because a political question might arise at trial.




                                           21
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that this Court affirm that part of the

court of appeals’ opinion holding that Appellant’s claims that the statutes are

unconstitutional as applied to him are not cognizable in a pre-trial habeas corpus

proceeding.



                                       Respectfully submitted,




                                     /s/ LISA C. McMINN
                                      LISA C. McMINN
                                      State Prosecuting Attorney
                                      Bar I.D. No. 13803300

                                      P.O. Box 13046
                                      Austin, Texas 78711
                                      information@spa.texas.gov
                                       512/463-1660 (Telephone)
                                      512/463-5724 (Fax)




                                       22
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 6604 words.




                                     /s/ LISA C. McMINN
                                     LISA C. McMINN
                                     State Prosecuting Attorney




                                       23
                          CERTIFICATE OF SERVICE

      The undersigned certifies that on this 21st day of October 2015, the State’s

Brief on the Merits of Appellant’s Petition for Discretionary Review was served via

certified electronic service provider to:

Anthony G. Buzbee
Tbuzbee@txattorneys.com

David L. Botsford
dbotsford@aol.com

Thomas R. Phillips
tom.phillips@bakerbotts.com

Michael McCrum
michael@McCrumlaw.com

David Gonzalez
david@sg-llp.com




                                            /s/ LISA C. McMINN
                                            LISA C. McMINN
                                            State Prosecuting Attorney




                                                 24
