                                                                                       ACCEPTED
                                                                                   03-15-00063-CR
                                                                                           5088006
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              4/29/2015 3:53:04 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                           NO. 03-15-00063-CR

                         IN THE COURT OF APPEALS          FILED IN
                     FOR THE THIRD DISTRICT OF TEXAS
                                                   3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
                              AUSTIN, TEXAS        4/29/2015 3:53:04 PM
             _________________________________________
                                                     JEFFREY D. KYLE
                                                           Clerk

                EX PARTE JAMES RICHARD “RICK” PERRY
             _________________________________________

           APPELLANT’S SUPPLEMENTAL SUBMISSION




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: 512.322.2500
Telephone: 713.223.5393              Facsimile: 512.322.2501
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
                                             TABLE OF CONTENTS

                                                                                                                   Page

Table of Contents ....................................................................................................... i

Table of Authorities .................................................................................................. ii

         1. Justiciability. ..............................................................................................1

         2. Relevance of Intervening Trial Court-Level Developments. ....................5

Prayer For Relief ........................................................................................................7

Certificate of Compliance ..........................................................................................8

Certificate of Service .................................................................................................8




                                                             i
                                         TABLE OF AUTHORITIES

                                                                                                           Page(s)

CASES

Carey v. Brown,
  447 U.S. 455 (1980) .............................................................................................. 6

Ex parte McCullough,
   966 S.W.2d 529 (Tex. Crim. App. 1998) ............................................................. 2

Org. for a Better Austin v. Keefe,
  402 U.S. 415 (1971) .............................................................................................. 6

Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
   971 S.W.2d 439 (Tex. 1998) ................................................................................ 1

Puckett v. State,
  801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).................. 6

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
  852 S.W.2d 440 (Tex. 1993) ................................................................................ 2

Virginia v. Black,
   538 U.S. 343 (2003) .............................................................................................. 6

Watts v. United States,
  394 U.S. 705 (1969) .............................................................................................. 6

Williams v. Lara,
   52 S.W.3d 171 (Tex. 2000) .................................................................................. 2




                                                          ii
                               NO. 03-15-00063-CR

                            IN THE COURT OF APPEALS
                        FOR THE THIRD DISTRICT OF TEXAS
                                 AUSTIN, TEXAS
                _________________________________________

                    EX PARTE JAMES RICHARD “RICK” PERRY
                _________________________________________

              APPELLANT’S SUPPLEMENTAL SUBMISSION



TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW Appellant, James Richard “Rick” Perry, by and through his

counsel of record, and pursuant to the Court’s directive of April 28, 2015, would

respectfully show this Honorable Court the following:

      None of the intervening trial court-level developments has any impact on the

justiciability of the constitutional issues raised in Governor Perry’s appeal. The

only possible relevance to this Court of the State’s attempt to amend its pleadings

and submit a bill of particulars comes in two admissions made by the State that are

directly relevant to Appellant’s Issues IV through VII.

      1.     Justiciability.

      Issues of justiciability, such as mootness and ripeness, implicate a court’s

subject matter jurisdiction. Patterson v. Planned Parenthood of Hous. & Se. Tex.,

Inc., 971 S.W.2d 439, 442-43 (Tex. 1998).             Because Texas courts lack


                                         1
jurisdiction to render advisory opinions, Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 444 (Tex. 1993), a controversy must exist between the parties at

every stage of a legal proceeding for Texas courts to have and retain jurisdiction.

Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000).

       This Court has jurisdiction over Governor Perry’s appeal because of the trial

court’s denial of his application for writ of habeas corpus. Ex parte McCullough,

966 S.W.2d 529, 531 (Tex. Crim. App. 1998). None of the intervening trial

court-level developments affects the cognizably or ripeness of Governor Perry’s

appeal. The issues he raises in this Court must be determined prior to any trial,

because they seek to vindicate his constitutional right not to be tried in the first

instance.    As reflected by the transcription of the February 3, 2015, pretrial

hearing, 3RR 11-12, 16-22, neither Governor Perry nor the State requested a stay

of the trial court proceedings pending resolution of this appeal. 1 The only way

that intervening trial court-level developments could have any impact on his

appellate issues would be for the trial court to quash both counts of the indictment

and the State not to appeal that order. Such a complete and final trial court

victory would, of course, moot this appeal by eliminating the illegal restraint that



       1
          Governor Perry did inform the trial court that if his appeal had not been resolved prior
to any trial date, he would seek a stay of the trial in order to protect the constitutional rights he
seeks to vindicate here. 3RR at 11-12, 16-22.


                                                 2
forms the basis of his application for writ of habeas corpus. 2

       The State’s “Bill of Particulars and Amendment of Indictment,” filed on

February 13, 2015, does not address any of the constitutional issues raised by

Governor Perry in his appeal to this Court. Nothing in Governor Perry’s appeal is

undermined or altered by the State’s purported efforts to provide further notice to

the trial court, the defendant, and the world of how Governor Perry allegedly

violated the law.

       At the outset, the Court should note that the trial court has not yet ruled upon

whether to permit the State’s “bill of particulars” or its proposed amendment of

Count II.     Governor Perry has objected to all of the State’s new pleadings

because, among other things, the “bill of particulars” is unauthorized by Texas law,

the proposed amendment of Count II conflicts with facts necessarily found by the

grand jury to support the original, current version of Count II, the proposed

amendment to Count II still fails to negate the statutory exception of Section

36.03(c), and the proposed amendment to Count II contains allegations that are

manifestly contradicted by undisputed facts and law. These objections are

important to Governor Perry, of course, but they are not relevant to this appeal. 3


       2
          If the trial court quashed only one of the two counts and the State did not appeal that
order, then the issues solely relating to the quashed count would become moot.
       3
        In response to Governor Perry’s “objections” and his January 30, 2015, “Third Motion
to Quash,” the State filed two pleadings on April 17, 2015. Thereafter, on April 28, 2015,


                                               3
Even if all of Governor Perry’s objections are overruled, the new pleadings will

not strengthen the State’s opposition to the relief Governor Perry seeks here, and

indeed they may weaken it, as discussed below in subsection 2. To respond fully

to the Court’s questions, however, Governor Perry will assume for purposes of this

discussion that the trial court will overrule his objections, allow the proposed

amendment of Count II, and conclude that the State’s” bill of particulars” resolves

his current, pending motions to quash.

       The State’s proposed amendment of Count II is merely a further attempt to

negate the statutory exception of Section 36.03(c). Nothing in Governor Perry’s

appeal relates to that exception, so nothing in the proposed amendment would

affect this Court’s resolution of Governor Perry’s constitutional claims.

Similarly, the State’s “bill of particulars” has no effect on this Court’s resolution of

the constitutional issues raised in Governor Perry’s appeal.

       In sum, there is a live controversy between the State and Governor Perry in

the context of his appeal to this Court, based on the illegal restraint imposed upon

him by virtue of the indictment and his bond. That controversy is based on


Governor Perry filed his “Consolidated Reply to the Prosecution’s Pleadings of April 17, 2015,”
which have not yet been transmitted to this Court. Nothing in any of these pleadings has any
impact upon the issues raised in Governor Perry’s appeal, except as otherwise mentioned below
in subsection 2, below. Although not necessarily reflected by the record currently before this
Court, Governor Perry represents to the Court that there are no settings currently scheduled in
the trial court and the State is in the process of producing discovery.



                                              4
constitutional issues which directly impact the State’s ability to proceed with this

prosecution.    None of those issues have been rendered moot by any of the

intervening trial court-level developments. This Court has jurisdiction and the

issues are ripe for this Court’s review.

      2.       Relevance of Intervening Trial Court-Level Developments.

      While, as discussed above, the subsequent developments in no way

compromise or diminish Governor Perry’s right to habeas corpus relief, the State

has made two admissions in its pleadings that make the outcome even clearer in

this Court.

      First, in its “bill of particulars,” the State concedes that the gravamen of

Count I was a misuse of Governor Perry’s constitutional right to veto items of

appropriation. To the extent that this Court may have shared the trial court’s

concern that Count I did not specifically utilize the term “veto,” see CR472 n.6;

CR454-457, the State’s concession should obviate that concern. This concession

adds force to, but is not necessary for, the arguments previously advanced by

Governor Perry to bar a trial on Count I.

      Second, in its April 17, 2015, “Response to Defendant’s Third Motion to

Quash” at 19, the State admitted that the alleged threat upon which Count II is

based is “not a true threat.” Supplemental Clerk’s Record filed April 27, 2015 at

88. As pointed out in Governor Perry’s April 28, 2015, “Consolidated Reply to the


                                            5
Prosecution’s Pleadings of April 17, 2015” at 8-9, this dispositive concession

mandates that Count II be quashed because prosecuting anything less than a “true

threat” violates the First Amendment and the corresponding free speech guarantee

of the Texas Constitution, 4 even where the threat is otherwise coercive. 5 This

admission thus requires this Court to sustain Issue VII, which attacks the

constitutionality of the prosecution on Count II, but it has no direct effect on Issue

I or II.


       4
          See e.g., Virginia v. Black, 538 U.S. 343, 359 (2003)(defining “true threats” as
“statements where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence”); Watts v. United States, 394 U.S. 705, 707-08 (1969)
(“What is a threat must be distinguished from what is constitutionally protected speech” because
of the “profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials”). See also Puckett v.
State, 801 S.W.2d 188, 194 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)(holding that
statements by a defendant indicted under the retaliation statute, Section 36.06(a), “could
reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,” and hence not
protected speech).
       5
           See N.A.A.C.P v. Claiborne Hardware Co., in which the Supreme Court explained that
“speech does not lose its protected character . . . simply because it may embarrass others or
coerce them into action.” 458 U.S. 886, 910 (1982) (emphasis added). There, the organizer
of a civil rights boycott had warned that boycott breakers would be “disciplined,” and that “if we
catch any of you going into any of them racist stores, we’re gonna break your damn neck.” Id.
at 902. The Court acknowledged that such statements “might have been understood as inviting
an unlawful form of discipline or, at least, as intending to create a fear of violence.” Id. at 927.
These “coercive” statements were far closer to classic, violent “threats” than anything Governor
Perry allegedly said given the allegations of Count II and the State’s concession, yet the First
Amendment still protected them because expression on public issues ‘has always rested on the
highest rung of the hierarchy of First Amendment values.” Id. at 913 (quoting Carey v. Brown,
447 U.S. 455, 467 (1980)); see also Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)
(“The claim that . . . expressions were intended to exercise a coercive impact on respondent does
not remove them from the reach of the First Amendment. Petitioners plainly intended to
influence respondent’s conduct by their activities; that is not fundamentally different from the
function of a newspaper.” (emphasis added)).


                                                 6
                                PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully

prays that this Honorable Court reverse the district court’s denial of relief, sustain

his issues as to cognizability and the merits of his constitutional issues, and bar

trial on both counts of the indictment and/or dismiss both counts of the indictment,

or for such other relief to which this Court determines he is entitled.

                                        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
600 Travis Street, Suite 7300                 Suite 1500
Houston, Texas 77002                          Austin, Texas 78701-4078
Telephone: 713.223.5393                       Telephone: 512.322.2500
Facsimile: 713.223.5909                       Facsimile: 512.322.2501
Tbuzbee@txattorneys.com                       tom.phillips@bakerbotts.com

BOTSFORD & ROARK

/ s / David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Avenue
Austin, Texas 78701
Telephone: 512.479.8030
Facsimile: 512.479.8040
dbotsford@aol.com




                                          7
                          CERTIFICATE OF COMPLIANCE

      I hereby certify that excluding the portions of this petition exempted by Tex.

R. App. P. Rule 9.4(i)(1), this brief contains 1,128 words as calculated by the word

processing program I used.

                                       / 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

emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David

Gonzalez at david@sg-llp.com on the same date that it was electronically filed

with the Clerk of the Court.

                                       / s / David L. Botsford
                                       David L. Botsford




                                         8
