                                                                                        ACCEPTED
                                                                                    03-15-00063-CR
                                                                                            4945207
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               4/20/2015 9:05:19 AM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                          Case No. 03-15-00063-CR


    In the Court of Appeals for the Third
                                                                  RECEIVED IN
                                                             3rd COURT OF APPEALS
                                                                 AUSTIN, TEXAS

      Judicial District, Austin, Texas                       4/20/2015 9:05:19 AM
                                                               JEFFREY D. KYLE
                                                                     Clerk




             EX PARTE JAMES RICHARD “RICK” PERRY

             Appeal from the Denial of the Writ of Habeas Corpus
              in the District Court for the 390th Judicial District
             Travis County, Texas, Case No. D-1-DC-14-100139


  BRIEF OF CONSTITUTIONAL AND CRIMINAL LAW EXPERTS AS AMICI CURIAE
      IN SUPPORT OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS




Eugene Volokh                             James C. Ho
   California Bar No. 194464                 Texas Bar No. 24052766
Gary T. Schwartz Professor of Law         Prerak Shah
UCLA SCHOOL OF LAW                           Texas Bar No. 24075053
385 Charles E. Young Dr. East             Bradley G. Hubbard
Los Angeles, CA 90095                        Texas Bar No. 24090174
Tel.: (310) 206-3926                      GIBSON, DUNN & CRUTCHER LLP
volokh@law.ucla.edu                       2100 McKinney Avenue, Suite 1100
                                          Dallas, TX 75201-6912
                                          Tel.: (214) 698-3264
                                          Fax: (214) 571-2917
                                          jho@gibsondunn.com
                                          pshah@gibsondunn.com
                                          bhubbard@gibsondunn.com

                         COUNSEL FOR AMICI CURIAE
                                              TABLE OF CONTENTS

                                                                                                                       Page

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

Statement of Interest of Amici .................................................................................. 1
Introduction ............................................................................................................... 5

Argument................................................................................................................... 6

         I.        Count I of the Indictment Should Be Dismissed, Because It Is
                   Both Unconstitutional and Barred by Legislative Immunity. .............. 6

                   A.        Count I Violates the Constitutional Doctrine of
                             Separation of Powers, Because the Legislature Cannot
                             Criminalize the Exercise of a Governor’s Constitutional
                             Veto Power. ................................................................................ 7
                   B.        Governor Perry Cannot Be Prosecuted for His Veto,
                             Because He Is Entitled to Absolute Legislative Immunity
                             for Any Exercise of His Veto Power. ...................................... 11

         II.       Count II of the Indictment Should Be Dismissed, Because It
                   Criminalizes Speech Protected by the First Amendment of the
                   U.S. Constitution. ............................................................................... 20
Conclusion .............................................................................................................. 31
Certificate of Compliance ....................................................................................... 33

Certificate of Service .............................................................................................. 34




                                                              i
                                            TABLE OF AUTHORITIES

                                                                                                                   Page(s)
                                                        Cases
Armadillo Bail Bonds v. State,
  802 S.W.2d 237 (Tex. Crim. App. 1990) ..............................................................7

Bond v. Floyd,
  385 U.S. 116 (1966) .............................................................................................27

Camacho v. Samaniego,
  954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) ...................................13
Clinton v. Jones,
  520 U.S. 681 (1997) ...................................................................................... 17, 18

D’Amato v. Superior Court,
  167 Cal. App. 4th 861 (Cal. Ct. App. 2008) ................................................. 14, 15
Doe v. McMillan,
  412 U.S. 306 (1973) .............................................................................................14

Dublin v. State,
  742 N.E.2d 232 (Ohio Ct. App. 2000) .................................................................14
Duncantell v. State,
  230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet.
  ref’d).....................................................................................................................26
Ex Parte Gill,
  413 S.W.3d 425 (Tex. Crim. App. 2013) ..............................................................8

Forrester v. White,
  484 U.S. 219 (1988) .............................................................................................12
Fulmore v. Lane,
  140 S.W. 405 (Tex. 1911)....................................................................................14

Garcetti v. Ceballos,
  547 U.S. 410 (2006) .............................................................................................27




                                                              ii
                                         TABLE OF AUTHORITIES
                                             (CONTINUED)

                                                                                                          Page(s)

Grayned v. City of Rockford,
  408 U.S. 104 (1972) .............................................................................................30
Hernandez v. City of Lafayette,
  643 F.2d 1188 (5th Cir. 1981) .............................................................................13

In re Perry,
   60 S.W.3d 857 (Tex. 2001)............................................................... 11, 12, 13, 15

Irons v. R.I. Ethics Comm’n,
   973 A.2d 1124 (R.I. 2009) ...................................................................................15
Jenevein v. Willing,
  493 F.3d 551 (5th Cir. 2007) ...............................................................................27

Jessen Assocs., Inc. v. Bullock,
  531 S.W.2d 593 (Tex. 1975)................................................................................14

Jorgensen v. Blagojevich,
  811 N.E.2d 652 (Ill. 2004) ............................................................................ 17, 18

Langever v. Miller,
  76 S.W.2d 1025 (1934) ..........................................................................................8
Meshell v. State,
 739 S.W.2d 246 (Tex. Crim. App. 1987) ..............................................................8

Pickering v. Bd. of Educ.,
  391 U.S. 563 (1968) .............................................................................................27
Pickle v. McCall,
  24 S.W. 265 (Tex. 1893)......................................................................................14

Rangra v. Brown,
  566 F.3d 515 (5th Cir. 2009) ...............................................................................27

State v. Dankworth,
  672 P.2d 148 (Alaska Ct. App. 1983) ..................................................................15
State v. Hanson,
  793 S.W.2d 270 (Tex. App.—Waco 1990, no writ) ......................... 20, 21, 26, 30


                                                         iii
                                         TABLE OF AUTHORITIES
                                             (CONTINUED)

                                                                                                           Page(s)

State v. Holton,
  997 A.2d 828 (Md. Ct. Spec. App. 2010) ............................................... 14, 18, 19
State v. Neufeld,
  926 P.2d 1325 (Kan. 1996) ..................................................................................14

Stockton v. Offenbach,
  336 S.W.3d 610 (Tex. 2011)................................................................................10

Tenney v. Brandhove,
  341 U.S. 367 (1951) ................................................................................ 12, 14, 15
United States v. Brewster,
  408 U.S. 501 (1972) ...............................................................................................9

United States v. Dowdy,
  479 F.2d 213 (4th Cir. 1973) ...............................................................................15

United States v. Gillock,
  445 U.S. 360 (1980) .............................................................................................17

United States v. Mandel,
  415 F. Supp. 997 (D. Md. 1976) ..........................................................................16
United States v. Mandel,
  415 F.Supp. 1025 (D. Md. 1976) .........................................................................16

United States v. Stevens,
  559 U.S. 460 (2010) .............................................................................................25
Wash. State Grange v. Wash. State Republican Party,
 552 U.S. 442 (2008) .............................................................................................25

Watts v. United States,
 394 U.S. 705 (1969) .............................................................................................20

                                                   Statutes
TEX. PENAL CODE § 36.03(a)(1) ....................................................................... 21, 27
TEX. PENAL CODE § 39.02(a)(2) ......................................................... 6, 8, 10, 11, 15


                                                         iv
                                          TABLE OF AUTHORITIES
                                              (CONTINUED)

                                                                                                             Page(s)


                                      Constitutional Provisions
TEX. CONST. art. II, § 1 ..............................................................................................7

TEX. CONST. art. III, § 21 .........................................................................................11

TEX. CONST. art. IV, § 14 ...........................................................................................7

U.S. CONST. art. I § 6 ...............................................................................................11

                                            Other Authorities
Alex Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd
  Twitter Photographs, TELEGRAPH (U.K.), June 16, 2011....................................23

Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN
  JUSTICE (Oct. 13, 2009), available at http://www.mainjustice.com/
  2009/10/13/doggett-no-retreat-on-us-attorney-picks/ .........................................30
Federalist No. 51 (Madison) ....................................................................................20

Hardball with Chris Matthews, MSNBC, Sept. 5, 2007, transcript
  available at http://www.nbcnews.com/id/20623566/ns/msnbc-
  hardball_with_chris_matthews/t/hardball-chris-matthews-sept ..........................23
Lawmakers Decry Abuses Within Texas Youth Commission, TEXAS
  SENATE NEWS, Feb. 27, 2007...............................................................................23
Neil Munro, Priebus: Obama Executive Amnesty Is A ‘Nuclear
  Threat,’ THE DAILY CALLER (Nov. 7, 2014), available at
  http://dailycaller.com/2014/11/07/priebus-obama-executive-
  amnesty-is-a-nuclear-threat .................................................................................29

Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 .....................23

President Barack Obama, Remarks by the President in a Press
  Conference (Nov. 5, 2014), available at http://www.whitehouse.gov
  /the-press-office/2014/11/05/remarks-president-press-conference .....................29




                                                           v
                        STATEMENT OF INTEREST OF AMICI

      Amici are an ideologically diverse coalition of experts in the fields of

constitutional and criminal law—including former judges, solicitors general,

prosecutors, criminal defense lawyers, constitutional litigators, and professors on

both sides of the aisle. They represent virtually the entire political spectrum and

have no personal or political stake in this case. They submit this brief for one

simple reason: They are committed to the rule of law, and do not wish to see the

law tarnished or distorted for purely partisan political purposes.

      Floyd Abrams has served as counsel in many of the highest-profile First

Amendment cases of the modern era, including representing The New York Times

in the Pentagon Papers case. His most recent book is FRIEND OF THE COURT: ON

THE FRONT LINES WITH THE FIRST AMENDMENT         (2013).

      Michael Barone is a Resident Fellow at the American Enterprise Institute

and the principal co-author of THE ALMANAC OF AMERICAN POLITICS.

      Ashutosh Bhagwat is a Professor of Law at UC Davis School of Law. He

has published extensively on issues relating to freedom of expression.

      Jeff Blackburn is the Founder and Chief Counsel of the Innocence Project

of Texas, an organization dedicated to securing the release of those wrongfully

convicted of crimes in Texas and educating the public about the causes and effects

of wrongful convictions.



                                          1
      Paul Coggins is a former United States Attorney for the Northern District of

Texas (1993-2001), appointed by President Bill Clinton.

      Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at

Harvard Law School, and is one of the most well-known civil liberties advocates in

the country.

      Raul A. Gonzalez is a former Justice on the Texas Supreme Court (1984-

1998), appointed by Governor Mark White and later elected as a Democrat.

      James C. Ho is a former Solicitor General of Texas (2008-2010) and a

former Chief Counsel to the United States Senate Subcommittee on the

Constitution (2003-2005).

      Daniel Lowenstein is a Professor of Law, Emeritus, at UCLA School of

Law. He is also the Director of the UCLA Center for the Liberal Arts and Free

Institutions and a former chair of the California Fair Political Practices

Commission, appointed by Governor Jerry Brown.

      Michael W. McConnell is the Richard and Frances Mallery Professor of

Law at Stanford Law School and the Executive Director of the Stanford

Constitutional Law Center. He is also a former Judge on the U.S. Court of

Appeals for the Tenth Circuit (2002-2009).




                                        2
      John T. Montford is a former District Attorney for Lubbock County, a

former Texas State Senator (D-Lubbock), and the first Chancellor of the Texas

Tech University System.

      Michael Mukasey is a former Attorney General of the United States (2007-

2009) and a former judge on the U.S. District Court for the Southern District of

New York (1987-2006).

      Theodore B. Olson is a former Solicitor General of the United States (2001-

2004) and a former Assistant Attorney General for the Office of Legal Counsel at

the United States Department of Justice (1981-1984).

      Harriet O’Neill is a former Justice on the Texas Supreme Court (1999-

2010), a former Justice on the Fourteenth Court of Appeals of Texas (1995-1998),

and a former Judge on the 152nd District Court of Texas (1993-1995).

      Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford

Law School and served as the Senior Research Director for the Presidential

Commission on Election Administration formed by President Barack Obama.

      Kenneth W. Starr is a former Solicitor General of the United States (1989-

1993) and a former Judge on the U.S. Court of Appeals for the D.C. Circuit (1983-

1989).




                                        3
        Johnny Sutton is a former United States Attorney for the Western District

of Texas (2001-2009), appointed by President George W. Bush, and a former

Associate Deputy Attorney General at the United States Department of Justice.

        Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School

of Law. He also runs UCLA’s First Amendment Amicus Brief Clinic and is the

author of THE FIRST AMENDMENT AND RELATED STATUTES (5th ed. 2013).1




 1   Amici’s institutional affiliations are provided only for purposes of identification. No counsel
     for a party authored this brief in whole or in part, and no counsel or party made a monetary
     contribution intended to fund the preparation or submission of this brief. No person other
     than amici or their counsel made a monetary contribution to its preparation or submission.
     See TEX. R. APP. P. 11.




                                                 4
                                     INTRODUCTION

      Governor Rick Perry announced that he would exercise his constitutional

authority to veto a bill if another political official did not do what he wanted. Then

he vetoed that bill. For these two ordinary political acts, Governor Perry has been

indicted on felony charges.

      Both counts of the indictment are unconstitutional and must be dismissed

immediately. The first count—which criminalizes Governor Perry’s veto of a

bill—violates the separation of powers enshrined in the Texas Constitution. The

Legislature is not allowed to criminalize the exercise of powers that the

Constitution specifically confers on the Governor, including the veto power.

      And the second count—which criminalizes Governor Perry’s threat to veto a

bill if Travis County District Attorney Rosemary Lehmberg did not resign her

office—violates the First Amendment of the U.S. Constitution and Article I,

Section 8 of the Texas Constitution. Governor Perry “threatened” to perform an

act that the Texas Constitution specifically reserves to him (a veto) in order to

encourage a public official to engage in a lawful act (a resignation). That is

constitutionally protected speech.

                                         ***

      We as amici take no position on the politics that led to this indictment.

Reasonable people can disagree on the political tactics employed by both Governor



                                          5
Perry and his opponents.      But to turn political disagreement into criminal

prosecution is disturbing. To do so with an indictment riddled with constitutional

infirmities is even worse.

      The indictment of Governor Perry demands this Court’s swift intervention.

The writ of habeas corpus should be granted and this prosecution should come to

an end.

                                   ARGUMENT

I.    Count I of the Indictment Should Be Dismissed, Because It Is Both
      Unconstitutional and Barred by Legislative Immunity.

      Count I of the indictment essentially alleges that Governor Perry violated

Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have

funded the continued operation of the Public Integrity Unit of the Travis County

District Attorney’s office. The prosecution alleges that Governor Perry exercised

this veto “with intent to harm another”—namely, District Attorney Rosemary

Lehmberg and the Public Integrity Unit.

      But this Count suffers from two independently fatal flaws:            (1) the

Legislature is not allowed to criminalize the Governor’s exercise of his veto power,

and (2) Governor Perry is entitled to absolute legislative immunity for any exercise

of that veto power.




                                          6
      A.     Count I Violates the Constitutional Doctrine of Separation of
             Powers, Because the Legislature Cannot Criminalize the Exercise
             of a Governor’s Constitutional Veto Power.

      1.     The Texas Constitution vests in the Governor the absolute authority to

veto appropriations bills. See TEX. CONST. art. IV, § 14. The Governor is entitled

to decide which laws he “approv[es]” and which he disapproves—without any

constraint from the Legislature, or from special prosecutors. Id.

      The Texas Constitution also includes an explicit separation of powers

provision that sets forth the structure 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.

TEX. CONST. art. II, § 1.

      This express provision “reflects a belief on the part of those who drafted and

adopted our state constitution that one of the greatest threats 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). “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




                                         7
constituted article 2 of each succeeding Constitution.” Langever v. Miller, 76

S.W.2d 1025, 1035 (Tex. 1934).

      For these reasons, courts have long been vigilant about preventing any

attempt by one branch of the government to encroach on the authority

constitutionally secured to a different branch. Accordingly, “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). The separation of

powers provision is violated “when one branch unduly interferes with another

branch so that the other branch cannot effectively exercise its constitutionally

assigned powers.” Ex Parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App.

2013).

      Yet the prosecution today claims that Section 39.02(a)(2) criminalizes

Governor Perry’s veto of an appropriations bill. If that were true, then the statute

would be plainly unconstitutional. The Legislature cannot make it a crime for the

Governor to veto appropriations bills, because that would obviously “interfere[]

with another branch so that the other branch cannot effectively exercise its

constitutionally assigned powers.” Id. Any such outlawing of the use of the veto

power would unilaterally increase the Legislature’s own power, by eviscerating the

Governor’s power to veto legislation he does not “approve” of—even though,

under the Texas Constitution, every legislative bill is subject to veto.        The



                                         8
Legislature cannot enact a statute that constrains that gubernatorial power, thereby

enlarging its own.

      Nor would the analysis be different if Governor Perry vetoed a bill “with

intent to harm another.”      The Texas Constitution places no limits on the

Governor’s exclusive power to decide which bills to give his “approval.” So the

Legislature cannot empower the Judiciary to pass judgment on the Governor’s

intent behind a veto and accordingly chill the Governor’s exercise of his veto

power through the prospect of criminal punishment.

      2.    There are, of course, constitutional limits on the Governor’s veto

power. The Legislature can override a Governor’s veto with a two-thirds vote.

The Legislature can threaten not to enact laws that the Governor supports if he

continues to exercise his veto in a manner with which it disagrees. The Legislature

even has the power to impeach a Governor for a veto. And of course, the people of

this State could always vote a Governor out of office because of a veto.

      The Legislature can also criminalize acts of political corruption, such as the

acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in

that circumstance is the acceptance of the bribe—not the veto itself. So a bribery

prosecution would not trigger any of the separation of powers issues that plague

this prosecution. See, e.g., United States v. Brewster, 408 U.S. 501, 526 (1972)

(“There is no need for the Government to show that appellee fulfilled the alleged



                                         9
illegal bargain; acceptance of the bribe is the violation of the statute, not

performance of the illegal promise.”).

      None of these constitutionally permissible acts authorizes criminal

prosecution for the Governor’s exercise of his constitutionally prescribed veto

power.

      3.    It is not necessary to read Section 39.02(a)(2) in this clearly

unconstitutional manner. There is no indication that the Legislature intended for

the statute to be so read. This reading is the prosecution’s own. This Court can,

and should, avoid this constitutional controversy entirely, by declaring that the

statute simply does not criminalize Governor Perry’s conduct. As explained in

further detail in the Governor’s application for a writ of habeas corpus and motion

to quash the indictment, a Governor simply does not have “custody or possession”

of a sum of money that starts out in the Texas Treasury, ends up in the Texas

Treasury, and remains throughout in the Texas Treasury. Those funds are always

in the custody of the Comptroller, not the Governor.

      Not only would this be the most natural reading of the statutory text, but it

would also avoid the constitutional infirmities raised by prosecuting Governor

Perry for his veto. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex.

2011) (“We presume that when enacting legislation, the Legislature intends to




                                         10
comply with the state and federal constitutions, and we are obligated to avoid

constitutional problems if possible.”) (quotations and citation omitted).

                                        ***

      The Constitution permits only two options:           either (1) read Section

39.02(a)(2) the way the prosecution does, and then declare the statute

unconstitutional, because it violates the separation of powers doctrine decreed in

the Texas Constitution; or (2) avoid the constitutional issue altogether, by

interpreting the statute not to apply to a Governor’s veto of an appropriations bill.

Either way, Count I must be dismissed.

      B.      Governor Perry Cannot Be Prosecuted for His Veto, Because He
              Is Entitled to Absolute Legislative Immunity for Any Exercise of
              His Veto Power.

      Count I also suffers from a separate yet equally fatal flaw: a Governor has

absolute legislative immunity from any prosecution based on the exercise of his

veto power.

      1.      Legislative immunity is a common law doctrine that flows from the

Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 60

S.W.3d 857, 859 (Tex. 2001) (citing U.S. CONST. art. I, § 6; TEX. CONST. art. III,

§ 21). It declares that “individuals acting in a legislative capacity are immune from

liability for those actions.” Id.




                                         11
      The reason for this immunity is simple. As the U.S. Supreme Court has

explained, and the Texas Supreme Court has endorsed:

      “[T]he threat of liability can create perverse incentives that operate to
      inhibit officials in the proper performance of their duties. In many
      contexts, government officials are expected to make decisions that are
      impartial or imaginative, and that above all are informed by
      considerations other than the personal interests of the decisionmaker.
      Because government officials are engaged by definition in governing,
      their decisions will often have adverse effects on other persons. When
      officials are threatened with personal liability for acts taken pursuant
      to their official duties, they may well be induced to act with an excess
      of caution or otherwise to skew their decisions in ways that result in
      less than full fidelity to the objective and independent criteria that
      ought to guide their conduct.”

Id. (alterations in original) (quoting Forrester v. White, 484 U.S. 219, 223 (1988)).

      And for precisely those same reasons, the motivation behind a legislative

act—be it partisan, personal, or parochial—is utterly irrelevant to the privilege of

legislative immunity:

      The claim of an unworthy purpose does not destroy the privilege.
      Legislators are immune from deterrents to the uninhibited discharge
      of their legislative duty, not for their private indulgence but for the
      public good. One must not expect uncommon courage even in
      legislators. The privilege would be of little value if they could be
      subjected to the cost and inconvenience and distractions of a trial
      upon a conclusion of the pleader, or to the hazard of a judgment
      against them based upon a jury’s speculation as to motives.

Tenney v. Brandhove, 341 U.S. 367, 377 (1951). See also Perry, 60 S.W.3d at

859-60 (“The legislative immunity doctrine recognizes that it is not consonant with




                                         12
our scheme of government for a court to inquire into the motives of legislators.”)

(quotations omitted).

      2.    Notably, legislative immunity extends to any official who is acting in

a legislative capacity, whether or not the official is a member of the Legislature.

For example, the Texas Supreme Court has held that legislative immunity protects

the Attorney General and the Comptroller (who are usually executive officials)

when they perform “legislative functions” as members of the Legislative

Redistricting Board.    Perry, 60 S.W.3d at 860.       “Courts have extended the

legislative immunity doctrine beyond federal and state legislators to other

individuals performing legitimate legislative functions,” such as mayors, city

council vice-presidents, and others. Id. Indeed, “[a]ctions to which courts have

extended absolute legislative immunity include a mayor’s veto of an ordinance

passed by a city council.” Camacho v. Samaniego, 954 S.W.2d 811, 823 (Tex.

App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 643 F.2d

1188, 1194 (5th Cir. 1981)). “[W]hen the mayor of a municipality vetoes an

ordinance passed by the city’s legislative body, he performs a legislative function

and is entitled to absolute immunity from a civil suit complaining about actions

taken in his legislative capacity.” Hernandez, 643 F.2d at 1194.

      Just as a mayoral veto is a legislative act subject to legislative immunity, so

too is a gubernatorial veto. Texas law is clear that a gubernatorial veto is a



                                        13
legislative act, not an executive act. See, e.g., Jessen Assocs., Inc. v. Bullock, 531

S.W.2d 593, 598 (Tex. 1975); Fulmore v. Lane, 140 S.W. 405, 411 (Tex. 1911);

Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). Thus, Governor Perry is immune

from liability for his veto.

        This legislative immunity applies to criminal prosecutions as well as civil

suits. Indeed, the core principle behind legislative immunity is to enable our

“representatives to execute the functions of their office without fear of

prosecutions, civil or criminal.” Tenney, 341 U.S. at 373-74 (emphasis added). As

courts have recognized, 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 “the privilege or immunity enjoyed by local legislators 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 omitted).2




 2   See also Doe v. 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 omitted); D’Amato v. Superior Court, 167
     Cal. App. 4th 861, 871 (Cal. Ct. App. 2008) (“The district attorney . . . contends immunity
     applies only to civil suits, and does not extend to criminal prosecutions. We disagree.”); City
     of Dublin v. State, 742 N.E.2d 232, 236 (Ohio Ct. App. 2000) (“‘legislative privilege’
     embodies . . . substantive immunity from civil and criminal liability”); State v. Neufeld, 926
     P.2d 1325, 1337 (Kan. 1996) (“[I]f a legislator’s conduct falls within a legitimate legislative
     sphere, legality of the conduct is not a primary concern.”).




                                                 14
        So Count I presents a particularly straightforward application of legislative

immunity.       A conviction under Section 39.02(a)(2) requires an inquiry into

Governor Perry’s subjective state of mind. See TEX. PENAL CODE § 39.02(a)(2)

(requiring “intent to harm”).           But “it is not consonant with our scheme of

government for a court to inquire into the motives of legislators.” Perry, 60

S.W.3d at 859-60 (quotations omitted). “If the motives for a legislator’s legislative

activities are suspect, the constitution requires that the remedy be public exposure;

if the suspicions are sustained, the sanction is to be administered either at the ballot

box or in the legislature itself.” State v. Dankworth, 672 P.2d 148, 152 (Alaska Ct.

App. 1983). “The claim of an unworthy purpose does not destroy the privilege. . . .

In times of political passion, dishonest or vindictive motives are readily attributed

to legislative conduct and as readily believed. Courts are not the place for such

controversies.” Tenney, 341 U.S. at 377-78.3

        3.      The special prosecutor argues that legislative immunity does not apply

to a criminal prosecution of a Governor’s exercise of the veto power, relying



 3   See also United States v. Dowdy, 479 F.2d 213, 266 (4th Cir. 1973) (“Once it was
     determined, as here, that the 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.”); Irons v. R.I. Ethics Comm’n, 973 A.2d 1124, 1131 (R.I.
     2009) (“‘[A]s 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.’”); D’Amato, 167 Cal. App. 4th at 869 (“courts cannot
     inquire into the impetus or motive behind legislative action”) (quotations omitted).




                                                 15
heavily on a single district judge’s decisions in United States v. Mandel, 415 F.

Supp. 997 (D. Md. 1976), and United States v. Mandel, 415 F. Supp. 1025 (D. Md.

1976). But that case is inapposite.

      First, a crucial aspect of Mandel is not present here. There, the district judge

reasoned that “the rationale for immunity from criminal prosecution is wholly

lacking” when a prosecution comes from the executive branch. Mandel, 415 F.

Supp. at 1031. As the judge explained, “[t]he executive has no reason to fear for

its independence as a co-equal branch of government as a consequence of any

criminal prosecution brought by itself.” Id.

      But the executive branch in Texas is not unitary. The Governor and the

Attorney General are separately elected. Moreover, the power to bring criminal

prosecutions in Texas is divided between the Attorney General and local district

attorneys, with the bulk of the authority in the hands of district attorneys. So the

chief executive of Texas does have reason to fear for his independence—as

evidenced by this very case, he is subject to criminal prosecution brought by

officials wholly outside of his authority.

      Second, Governor Mandel was not entitled to legislative immunity in any

event. Mandel concerned the federal prosecution of a state official. As the U.S.

Supreme Court has made clear, legislative immunity does not apply in that context,

because immunity derives from the separations of powers within a sovereign, not



                                             16
between sovereigns. See United States v. Gillock, 445 U.S. 360, 370 (1980).

Mandel did not involve a state prosecution of a state official and is thus

inapplicable to this case.

      The special prosecutor also cites Jorgensen v. Blagojevich, 811 N.E.2d 652

(Ill. 2004), and Clinton v. Jones, 520 U.S. 681 (1997), to argue that legislative

immunity should not apply in this case. But neither of those cases even remotely

supports that position.

      Jorgensen involved a suit against a governor in his official capacity to

declare an official act unconstitutional. It had nothing to do with holding a

governor personally liable, either civilly or criminally, for an official

act. Obviously Governor Perry can be sued in his official capacity when a plaintiff

is seeking to declare a government action unlawful. That happens all the time. But

that has nothing to do with trying to hold him personally liable for a legislative act,

as is the case here. Indeed, Jorgensen itself explicitly acknowledged this

distinction:

      We note, moreover, that the Judges have not sought to hold the
      Governor personally liable for his actions, nor are they attempting to
      force him to take or to refrain from taking any particular action. He
      was named in the litigation because he was one of the state officials
      involved in the sequence of events which led to the failure of the
      Judges to receive their FY2004 COLAs. There is nothing unusual
      about his inclusion as a party. Examples of Illinois governors being
      joined as defendants in cases seeking declaratory and injunctive relief
      based on alleged violations of state constitutional and legal
      requirements are commonplace.


                                          17
Jorgensen, 811 N.E.2d at 666 (emphasis added).

       The special prosecutor curiously omitted this passage from his discussion of

Jorgensen, even though it appears immediately before the passage that the special

prosecutor chose to block quote. See Appellee’s Br. 46-47. This omission is

telling.   After all, this passage shows that a governor would have legislative

immunity if someone were seeking to hold him “personally liable for his actions,”

id.—as the special prosecutor is attempting to do here.

       Clinton is not helpful to the special prosecutor either. The Supreme Court

there said that immunity does not apply to unofficial conduct—but that it would

apply to official acts.   As the Court explained, “[t]he principal rationale for

affording certain public servants immunity from suits for money damages arising

out of their official acts is inapplicable to unofficial conduct.” Clinton, 520 U.S. at

692-93. Here, Governor Perry is being held criminally liable for an official act (a

veto), not for any unofficial conduct, so he is entitled to immunity.

                                        ***

       Allowing Count I to proceed would utterly defeat the purpose of legislative

immunity. Just like legislators, governors acting in their legislative capacity “must

enjoy the same ability to speak and act in their legislative capacities, without fear

of retribution, either criminally or civilly, because of what they say or how they

vote.” Holton, 997 A.2d at 856. Governors “may be called upon to answer for


                                          18
their legislative conduct to the citizens who elected them, which is what democracy

is all about.” Id. “[B]ut they may not be compelled to defend their legislative

conduct to a prosecutor, to a grand jury or to a court.” Id.

      And dangerous as the prosecution’s theory originally was, it has become

even more striking with the amended indictment and bill of particulars filed on

February 13, 2015. Under the theory of that amended indictment, it is now a crime

for the Governor to veto an appropriation—or for any government official to do

any official act—for any purpose other than “for the sole benefit of the people of

the State of Texas,” such as “for the benefit of any private or individual purpose,

private business, political party, or other.”    So if a prosecutor decides that a

government official did something even in part because it benefited the official’s

prospect of election to higher office, or improved the standing of the official’s

party, or just improved his reputation—anything at all other than solely benefiting

the people of Texas—that is enough for a criminal prosecution.

      This is far removed from the wisdom of the Framers, who recognized that

politicians harbor personal ambitions as well as public-spiritedness; that

“[a]mbition must be made to counteract ambition”; that “[t]he interest of the man”

is an important aspect of defending “the constitutional rights” of his office; and

that so long as men are not angels, the law must actually rely on “the private

interest of every individual” officeholder, and not just on officeholders’ “better



                                          19
motives,” as an important part of our political system.           Federalist No. 51

(Madison).

II.   Count II of the Indictment Should Be Dismissed, Because It
      Criminalizes Speech Protected by the First Amendment of the U.S.
      Constitution.

      Count II of the indictment alleges that Governor Perry violated the law by

“threatening” to use his veto powers if a government official did not resign her

post. But he has every right to do just that. Criminalizing Governor Perry’s threat

to veto legislation violates his right to freedom of speech under the Texas and U.S.

Constitutions. This Count must also be dismissed.

      1.     A political official has the right to threaten to perform an official act

in order to persuade another government official to engage in some other official

act. That is not a crime—it is core political speech. See, e.g., Watts v. United

States, 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from

what is constitutionally protected speech.”).

      The Waco Court of Appeals said precisely that in a similar case twenty-five

years ago. See State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no

writ). In that case, a county judge “was charged with having made a threat to take

action as a public official in an attempt to coerce another public official into

performing an official act.” Id. at 272. Specifically, the defendant in Hanson

threatened to terminate some of the county’s funding in order to coerce a district



                                         20
judge to fire a county auditor and to coerce a county attorney to revoke an

individual’s probation. Id. at 271-72. Both the trial court and the court of appeals

correctly dismissed the charges. As the court explained, in this sort of political

context, “[c]oercion of a lawful act by a threat of lawful action is protected free

expression.” Id. at 272.

        So too here. Governor Perry has been charged with attempting to “coerce” a

lawful, official act (the voluntary resignation of a public official) by threatening to

take a lawful, official act (the veto of an appropriations bill).4 That is protected

free expression, and the Governor cannot be prosecuted for it.

        The prosecution attempts to distinguish Hanson by suggesting that Governor

Perry was acting unlawfully when he made his alleged “threat,” because he did not

have the authority or control to request the resignation of D.A. Lehmberg.

Appellee’s Br. 25. But government officials are obviously allowed to use their

powers to influence even those over whom they do not have direct supervision. A

Senator may condition his vote for an appropriations bill on the resignation of a

Cabinet Secretary, even though only the President can fire the Secretary.                          A

President may threaten to veto a bill unless Senators agree to ratify a treaty, even


 4   We accept here for purposes of argument the special prosecutor’s position that D.A.
     Lehmberg’s resignation would have constituted an official act. But if leaving office is not an
     official act, then the elements of Section 36.03(a)(1) would not be satisfied, since that statute
     refers only to attempts to influence the exercise of “official power” or “official duty.”




                                                  21
though the President has no authority to directly mandate the signing of the treaty.

There is nothing criminal about this sort of political hardball.

      2.     The consequences of allowing Governor Perry to be prosecuted under

this law would be both far-reaching and devastating. The prosecution’s theory of

the case would criminalize a vast swath of constitutionally protected—and

common—political speech. For example, it would make it illegal for:

       a legislator to tell the Governor, “if you appoint John Smith to this
        position, I won’t vote for this law you want me to support”;

       a Governor to tell a legislator, “if you don’t amend this bill in a particular
        way, I’ll veto it”;

       a state legislator to tell a U.S. Senator, “if you vote for this federal bill,
        I’ll vote against this state law that you like”;

       a legislator to tell the Governor, “if you don’t resign, I’ll vote to impeach
        you”; or

       a government employee to tell his supervisor, “if you don’t give me a
        raise, I’ll ask for a transfer to a different department.”

      Nor need we limit ourselves to hypotheticals. Consider, for example, what

happened during the Texas Youth Commission controversy in 2007. Countless

state legislators across the political spectrum demanded the resignation of the

commissioners—and threatened legislative action if they refused.           “[Senator]

Ogden said the Finance Committee is prepared to use the power of the purse to

influence change at TYC . . . . He said significant changes will have to occur




                                          22
within TYC, enough for him to have confidence to recommend to his committee

members that ‘any appropriation’ should go to the agency.” Lawmakers Decry

Abuses Within Texas Youth Commission, TEXAS SENATE NEWS, Feb. 27, 2007. See

also Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 (“[At] a

meeting of the joint committee charged with addressing problems at the TYC,

lawmakers asked for the resignation of the board members, going so far as to pass

a vote of no confidence against the board.”).

      Likewise, when U.S. Senator Larry Craig was arrested for indecent conduct

in a public restroom, “Republican leaders embarrassed by Craig’s behavior and

news conference threatened to conduct hearings if Craig did not resign.” Hardball

with Chris Matthews, MSNBC (Sept. 5, 2007), transcript available at

http://www.nbcnews.com/id/20623566/ns/msnbc-hardball_with_chris_matthews/t/

hardball-chris-matthews-sept.

      And when it was revealed that U.S. Representative Anthony Weiner had sent

sexually themed photographs of himself via Twitter, “his fate was sealed . . . when

party leaders in Congress and President Barack Obama began vociferously calling

for him to go and threatened to remove him from various committees.” Alex

Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd Twitter Photographs,

TELEGRAPH (U.K.), June 16, 2011.




                                         23
      According to the prosecution in this case, it would have been a crime under

Texas law for any of those officials to demand the resignation of other officials,

and then to inform the other officials of potential retaliatory legislative actions if

they refused. That cannot be correct. What the Texas legislators did in 2007, what

the U.S. Senate Republican leadership did in 2007, and what the U.S. House

Democratic leadership did in 2011 was neither criminal nor capable of being

criminalized—it was protected political speech.

      And so too here. Just as Texas legislators were entitled to demand the

resignation of the members of the Youth Commission, and just as members of

Congress were entitled to demand the resignation of a Senator and a

Representative who had disgraced their offices, Governor Perry was entitled to

demand the resignation of an official who he felt was no longer serving the best

interests of the Texans he was elected to represent—and to promise to use his

constitutionally prescribed veto power to achieve his goal.        That is protected

speech, and the State cannot criminalize any of it.

      3.     The vast amount of protected speech that would be deemed criminal

under the prosecution’s theory reveals another fundamental problem with this

Count:     the statute is unconstitutionally overbroad and therefore facially

invalid. Thus, even though Governor Perry engaged in constitutionally protected

expression, in fact no one can be prosecuted under this statute.



                                         24
        A law is unconstitutionally overbroad if “a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 449 n.6 (2008) (quotations omitted). And the possibility of prosecutorial

discretion cannot save an overbroad statute. “[T]he First Amendment protects

against the Government; it does not leave us at the mercy of noblesse oblige. We

would not uphold an unconstitutional statute merely because the Government

promised to use it responsibly.” United States v. Stevens, 559 U.S. 460, 480

(2010). Here, the law—as interpreted by the prosecution—would plainly capture

an overwhelming amount of protected speech. It is accordingly unconstitutionally

overbroad.5

        The prosecution does argue that the statute is not overbroad, because

coercive threats are not entitled to First Amendment protection. Appellee’s Br. 14

& nn. 30-32 (citing Duncantell v. State, 230 S.W.3d 835, 843-44 (Tex. App.—



 5   The prosecution argues that “if the court can identify any factual circumstance in which the
     statute is valid, the facial challenge must fail”—and accordingly provides hypothetical
     applications of the statute that it claims would not violate the First Amendment. Appellee’s
     Br. 15-16. But that is the opposite of the overbreadth doctrine, which provides that a law
     must be facially struck down so long as a “substantial number”—not all—of its applications
     are unconstitutional. “[T]he possible harm to society in permitting some unprotected speech
     to go unpunished is outweighed by the possibility that protected speech of others may be
     muted.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The overbreadth doctrine is, in
     that sense, an exception to the traditional approach to facial challenge to statutes—an
     exception that the prosecution seems to have forgotten.




                                               25
Houston [14th Dist.] 2007, pet. ref’d)). But threatening to engage in an official act

in order to “coerce” someone to take an official act is not a punishable threat; it is

protected political speech. See Hanson, 793 S.W.2d at 272.

      And Duncantell provides no different. That case made the simple point that

interfering with a police officer while he is on the street performing a law

enforcement function is not expressive activity. See Duncantell, 230 S.W.3d at

844 (addressing interference with a “peace officer performing a duty imposed by

law, such as investigating an accident or arresting a criminal suspect”). It does not

mean that, for instance, a newspaper can be punished for harshly criticizing the

police, even when that interferes with officers’ authority and thus makes it harder

for them to perform their duties. It does not mean that a legislator can be punished

for voting against a bill that would better fund police officers, because that too

would make it harder for police officers to perform their duties. Likewise, it does

not mean that a Governor can be punished for demanding the resignation of a D.A.

simply because that would mean the D.A. would no longer be performing the

duties of a D.A.

      4.     The prosecution argues, for the first time on appeal, that Governor

Perry’s speech is actually “government speech”—and thus any regulation of his

speech is wholly exempt from First Amendment scrutiny. See, e.g., Appellee’s Br.




                                         26
9-10 & nn. 11-18 (citing Garcetti v. Ceballos, 547 U.S. 410, 422 (2006); Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

        But the speech of elected officials at issue here is simply not government

speech as defined by the Garcetti line of cases.6 Indeed, common sense demands

that it not be government speech. Does the special prosecutor truly believe that the

Legislature could, with a veto-proof majority, prevent the Governor from saying

anything at all on particular topics? Of course not—yet that is precisely what the

Legislature could do if Governor Perry’s speech were deemed government speech.

        Moreover, even if this Garcetti argument is taken seriously, it is further

undermined by the fact that Section 36.03(a)(1) is not limited to speech by elected

officials. See TEX. PENAL CODE § 36.03(a)(1) (“A person commits an offense if

. . .”) (emphasis added). It would also apply to newspaper publishers, advocacy

groups, and average citizens who make legal statements in an attempt to influence

legal acts (such as what Governor Perry did here). Criminalizing such speech is




 6   See, e.g., Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir. 2007) (“We are persuaded that the
     preferable course ought not draw directly upon the Pickering-Garcetti line of cases for
     sorting the free speech rights of employees elected to state office.”); Rangra v. Brown, 566
     F.3d 515, 523-24 (5th Cir. 2009) (“None of the Supreme Court’s public employee speech
     decisions qualifies or limits the First Amendment’s protection of elected government
     officials’ speech.”), on reh’g en banc, 576 F.3d 531 (5th Cir. 2009) (mooted). “The manifest
     function of the First Amendment in a representative government requires that legislators be
     given the widest latitude to express their views on issues of policy.” Bond v. Floyd, 385 U.S.
     116, 135-37 (1966).




                                                27
plainly unconstitutional—and Section 36.03(a)(1) is thus unconstitutionally

overbroad.

      5.     The prosecution also declares that “[t]he ‘Coercion of a Public

Servant’ statute does not make the favored/disfavored expression distinction that

would raise constitutional [content-discrimination] concern.” Appellee’s Br. 20.

But the prosecution offers no explanation for this statement—which is

unsurprising, because the statute is plainly content based. It specifically singles

out speech that is intended to affect an act by a public official.

      6.     The prosecution oddly argues that the law is constitutional because

“[w]here one public servant is threatened by another public servant . . . the

possibility that the public servant speaker may assert First Amendment protection

is precisely what makes the coercive threat so effective in seeking to influence the

public servant listener.” Appellee’s Br. 8. The prosecution concludes that “[t]his

precisely is the legitimate basis for courts allowing the State to regulate and put

limits on a public servant’s speech with greater latitude than regulating speech of a

private citizen.” Id.

      But that cannot be right. Is the prosecution really arguing that if a public

official has a First Amendment right to say something, the Legislature actually has

a greater basis for regulating that speech? If anything, the opposite is true: the




                                           28
First Amendment is particularly crucial when the Legislature is trying to restrict

protected political speech in an attempt to diminish its effectiveness.

                                        ***

      Last year, President Obama threatened to issue various executive orders if

Congressional Republicans refused to pass comprehensive immigration reform.

See, e.g., President Barack Obama, Remarks by the President in a Press

Conference (Nov. 5, 2014), transcript available at http://www.whitehouse.gov/the-

press-office/2014/11/05/remarks-president-press-conference; Neil Munro, Priebus:

Obama Executive Amnesty Is A ‘Nuclear Threat,’ THE DAILY CALLER (Nov. 7,

2014), available at http://dailycaller.com/2014/11/07/priebus-obama-executive-

amnesty-is-a-nuclear-threat.

      The President later followed through on that threat.         To be sure, those

executive actions are highly controversial and are currently the subject of

litigation. But no one could seriously argue that President Obama’s political

statements regarding those actions are unprotected by the First Amendment and

subject to potential criminal prosecution.

      So too here. Just as President Obama can tell Congressional Republicans (as

he did at an official White House press conference): “You send me a bill that I can

sign, and those executive actions go away”—Governor Perry can tell a convicted




                                          29
government official essentially the same thing: “You resign, and my veto goes

away.”

        Moreover, if this prosecution is not immediately dismissed, the chilling

effect on political discourse will be disastrous. Any public official who seeks to

drive criminally or disgracefully behaving officials out of office will now rightly

fear that a district attorney from the other side of the political spectrum would

prosecute him—just as Governor Perry is being prosecuted here today.7

        If Governor Perry is forced to endure a criminal trial, then the damage will

already be done—even if he is ultimately acquitted. The mere knowledge that an

indictment can be maintained would itself chill a vast spectrum of constitutionally

protected political speech by other political officials. See Hanson, 793 S.W.2d at

273 (“A vague statute that potentially could punish protected political debate

violates due process because of its chilling effect on the exercise of that essential

right.”) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)).

        The special prosecutor argues that there is no chilling effect, both because

the statute has been on the books for decades and because no speech has been

chilled since the start of Governor Perry’s prosecution. Appellee’s Br. 16-17. As

 7   See, e.g., Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN JUSTICE (Oct.
     13, 2009), available at http://www.mainjustice.com/2009/10/13/doggett-no-retreat-on-us-
     attorney-picks/ (quoting statement of U.S. Representative Lloyd Doggett recommending
     “LULAC-supported Michael McCrum” for appointment as U.S. Attorney by President
     Obama).




                                              30
to the first reason, of course the mere existence of the statute did not chill free

speech. After all, until this special prosecutor came along, no one would have

thought that they could be prosecuted for engaging in constitutionally protected

political speech (as Hanson confirmed).

      As to the second reason, the special prosecutor might actually be correct that

Governor Perry’s prosecution has not yet chilled any speech—but that is only

because most people (though not the special prosecutor and the district court)

expect the case to promptly end because of its obvious constitutional flaws. But if

it does not end immediately, that certainty will be shattered and the constitutional

rights of public officials everywhere will be chilled.

      That is why an immediate writ of habeas corpus is necessary in this case.

This Court should announce—right now—that it is unconstitutional to prosecute

Governor Perry for his protected political speech.

                                    CONCLUSION

      The flaws in this indictment strike at the heart of the separation of powers

doctrine enshrined in the Texas Constitution, as well as the freedoms protected by

both the First Amendment of the U.S. Constitution and Article I, Section 8 of the

Texas Constitution. So this prosecution must end immediately. The application

for a writ of habeas corpus should be granted.




                                          31
DATED: April 19, 2015                    Respectfully submitted,


                                          /s/ James C. Ho
Eugene Volokh                            James C. Ho
   California Bar No. 194464                 Texas Bar No. 24052766
Gary T. Schwartz Professor of Law        Prerak Shah
UCLA SCHOOL OF LAW                           Texas Bar No. 24075053
385 Charles E. Young Dr. East            Bradley G. Hubbard
Los Angeles, CA 90095                        Texas Bar No. 24090174
Tel.: (310) 206-3926                     GIBSON, DUNN & CRUTCHER LLP
volokh@law.ucla.edu                      2100 McKinney Avenue, Suite 1100
                                         Dallas, TX 75201-6912
                                         Tel.: (214) 698-3264
                                         Fax: (214) 571-2917
                                         jho@gibsondunn.com
                                         pshah@gibsondunn.com
                                         bhubbard@gibsondunn.com

                         COUNSEL FOR AMICI CURIAE




                                    32
                          CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief satisfies the word-limit requirements for

amicus briefs contained in the Texas Rules of Appellate Procedure, because it

contains a total of 7,244 words, excluding the portions that can be excluded

pursuant to those same rules.


                                            /s/ James C. Ho
                                           James C. Ho




                                      33
                            CERTIFICATE OF SERVICE

       I hereby certify that, on April 19, 2015, a true and correct copy of the

foregoing was served via electronic mail on the following counsel of record for all

parties in this case:


 Michael McCrum                              Anthony G. Buzbee
 District Attorney Pro Tem                   THE BUZBEE LAW FIRM
 Travis County, Texas                        JPMorgan Chase Tower
 700 N. St. Mary’s St., Suite 1900           600 Travis Street, Suite 7300
 San Antonio, TX 78205                       Houston, TX 77002

 David M. Gonzalez                           Thomas R. Phillips
 Assistant District Attorney Pro Tem         BAKER BOTTS LLP
 Travis County, Texas                        98 San Jacinto Boulevard, Suite 1500
 206 East 9th Street, Suite 1511             Austin, TX 78701
 Austin, TX 78701
                                             David L. Botsford
 Counsel for the State of Texas              BOTSFORD & ROARK
                                             1307 West Avenue
                                             Austin, TX 78701

                                             Counsel for Applicant



                                              /s/ James C. Ho
                                             James C. Ho




                                        34
