                                                                                 ACCEPTED
                                                                            03-15-00063-CR
                                                                                   4288674
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       2/25/2015 9:54:12 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
                                                    2/25/2015 9:54:12 PM
                                                      JEFFREY D. KYLE
                                                            Clerk
             EX PARTE JAMES RICHARD “RICK” PERRY


       ON APPEAL FROM THE 390TH JUDICIAL DISTRICT COURT,
       TRAVIS COUNTY, TEXAS, CAUSE NO. D-1-DC-14-100139


                      APPELLANT’S BRIEF



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                  San Jacinto Center
600 Travis Street, Suite 7300         98 San Jacinto Blvd., Suite 1500
Houston, Texas 77002                  Austin, Texas 78701-4078
Tbuzbee@txattorneys.com               tom.phillips@bakerbotts.com
Telephone: 713.223.5393               Telephone: 512.322.2500
Facsimile: 713.223.5909               Facsimile: 512.322.2501


BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Avenue
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512.479.8030
Facsimile: 512.479.8040
                       IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. P. 38.1(a), the following is a complete list of the

names and addresses of all parties and counsel in this case.

      Appellant: Governor James Richard “Rick” Perry.

      Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower,
      600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R.
      Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078;
      and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701.

      State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint
      Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant
      Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511,
      Austin, Texas, 78701.




                                          i
                                              TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................. i
Index of Authorities ................................................................................................. iv

Statement of the Case...............................................................................................xv

Statement Regarding Oral Argument .................................................................... xvi
Issues Presented .................................................................................................... xvii
Statement of the Facts ................................................................................................1

Summary of the Argument.........................................................................................3

Argument....................................................................................................................7

         I.        Count II must be dismissed because the coercion statute is
                   facially unconstitutional under the First Amendment. ......................... 7
                   A.       The coercion statute is facially overbroad. ...............................10

                   B.       The coercion statute is not the least restrictive means of
                            serving a compelling state interest. ...........................................17

         II.       Count II also must be dismissed because the coercion statute is
                   unconstitutionally vague on its face. .................................................. 22
         III.      Governor Perry’s other constitutional challenges are all
                   cognizable in a pretrial habeas proceeding. ....................................... 28

                   A.       General principles of cognizability ...........................................29
                   B.       Governor Perry’s claims are cognizable in a pretrial
                            habeas proceeding. ....................................................................33

         IV.       The indictment violates the constitutional separation of powers. ...... 38

         V.        The indictment violates the Texas Speech or Debate Clause and
                   the common-law doctrine of legislative immunity. ........................... 45
         VI.       The abuse-of-official-capacity statute is unconstitutionally
                                             ii
                   vague as applied to the veto alleged on the face of the
                   indictment. ......................................................................................... 53
         VII. The coercion statute is unconstitutional as applied to the veto
              threat alleged on the face of the indictment. ...................................... 55

                   A.       As applied, the coercion statute is unconstitutionally
                            vague. ........................................................................................56
                   B.       As applied, the coercion statute violates the First
                            Amendment. ..............................................................................58

Conclusion ...............................................................................................................59
Certificate of Compliance ........................................................................................62

Certificate of Service ...............................................................................................62
Index to Appendix ....................................................................................................63




                                                            iii
                                         INDEX OF AUTHORITIES

                                                                                                           Page(s)
CASES
Abney v. United States,
  431 U.S. 651 (1977) ............................................................................................ 36

Alliance to End Repression v. City of Chicago,
   742 F.2d 1007 (7th Cir. 1984) ............................................................................ 13
Armadillo Bail Bonds v. State,
  802 S.W.2d 237 (Tex. Crim. App. 1990) ........................................................... 39
Ashcroft v. Am. Civil Liberties Union,
   542 U.S. 656 (2004) ............................................................................................ 10

Baker v. Carr,
  369 U.S. 186 (1962) ............................................................................................ 43
Barnes v. Secretary of Admin.,
  586 N.E.2d 958 (Mass. 1992) ............................................................................. 42
Bogan v. Scott-Harris,
  523 U.S. 44 (1998) ............................................................................42, 48, 50, 51

Bowles v. Clipp,
  920 S.W.2d 752 (Tex. App.—Dallas 1996, writ denied) ................................... 46

Camacho v. Samaniego,
  954 S.W.2d 811 (Tex. App.—El Paso 1997, pet. denied) .................................. 48

Canfield v. Gresham,
  17 S.W. 390 (Tex. 1891)...............................................................................45, 47

Citizens United v. Fed. Election Comm’n,
   558 U.S. 320 (2010) ............................................................................................ 33

City of Seattle v. Ivan,
   856 P.2d 1116 (Wash. App. 1993) ..................................................................... 14


                                                         iv
Coffin v. Coffin,
  4 Mass. 1 (1808) ................................................................................................. 46

Colautti v. Franklin,
  439 U.S. 379 (1979) ............................................................................................ 25

Coleman v. Miller,
  307 U.S. 433 (1939) ............................................................................................ 42

Collection Consultants, Inc. v. State,
  556 S.W.2d 787 (Tex. Crim. App. 1977) ........................................................... 20

Cook v. State,
  902 S.W.2d 471 (Tex. Crim. App. 1995) ........................................................... 40

Crouch v. Civil Service Comm’n of Tex. City,
  459 S.W.2d 491 (Tex. Civ. App.CHouston [14th Dist.] 1970, writ ref’d
  n.r.e.) ................................................................................................................... 25

Cuellar v. State,
  70 S.W.3d 815 (Tex. Crim. App. 2002) ............................................................. 55
D’Amato v. Superior Court,
  167 Cal. App. 4th 861 (2008) ............................................................................. 49
Doe v. McMillan,
  412 U.S. 306 (1973) ................................................................................46, 47, 49

Dombrowksi v. Eastland,
  387 U.S. 82 (1967) .............................................................................................. 36

Ely v. State,
   582 S.W.2d 416 (Tex. Crim. App. 1979) ........................................................... 23

Ex parte Boetscher,
   812 S.W.2d 600 (Tex. Crim. App. 1991) .....................................................32, 35

Ex parte Brown,
   158 S.W.3d 449 (Tex. Crim. App. 2005) ........................................................... 29



                                                               v
Ex Parte Doster,
   303 S.W.3d 720 (Tex. Crim. App. 2010) ...............................................30, 31, 32

Ex parte Elliott,
   973 S.W.2d 737 (Tex. App—Austin 1998, pet. ref’d) .................................32, 40

Ex Parte Ellis,
   309 S.W.3d 71 (Tex. Crim. App. 2010) .......................................................31, 34

Ex parte Ferdin,
   183 S.W.2d 466 (Tex. Crim. App. 1944) ........................................................... 43

Ex parte Giles,
   502 S.W.2d 774 (Tex. Crim. App. 1974) ........................................................... 40

Ex parte Gill,
   413 S.W.3d 425 (Tex. Crim. App. 2013) ........................................................... 40

Ex parte Lo,
   424 S.W.3d 10 (Tex. Crim. App. 2013) .................................................18, 19, 40

Ex parte Meza,
   185 S.W.2d 444 (Tex. Crim. App. 1945) ........................................................... 43
Ex Parte McCullough,
   966 S.W.2d 529 (Tex. Crim. App. 1998) ........................................................... 32
Ex parte Pitt,
   206 S.W.2d 596 (Tex. Crim. App. 1947) ........................................................... 43

Ex parte Rathmell,
   717 S.W.2d 33 (Tex. Crim. App. 1986) ............................................................. 31

Ex parte Robinson,
   641 S.W.2d 552 (Tex. Crim. App. 1982) .........................................31, 32, 36, 37

Ex parte Smith,
   178 S.W.3d 797 (Tex. Crim. App. 2005) .........................................30, 31, 32, 34

Ex parte Thompson,
   442 S.W.3d 325 (Tex. Crim. App. 2014) ...................................................8, 9, 19

                                                  vi
Ex parte Watkins,
   73 S.W.3d 264 (Tex. Crim. App. 2002) .......................................................31, 33

Ex parte Weise,
   55 S.W.3d 617 (Tex. 2001).....................................................................30, 31, 32

Fulmore v. Lane,
   140 S.W. 405 (Tex. 1911)................................................................................... 41

Garrison v. La.,
  379 U.S. 64 (1964) .............................................................................................. 17

Goldwater v. Carter,
  444 U.S. 996 (1979) ............................................................................................ 42

Gooding v. Wilson,
  405 U.S. 518 (1972) ............................................................................................ 23

Gravel v. United States,
  408 U.S. 606 (1972) ......................................................................................46, 47

Grayned v. Rockford,
  408 U.S. 104 (1972) ......................................................................................22, 23
Helstoski v. Meanor,
  442 U.S. 500 (1979) ............................................................................................ 36
Henderson v. State,
  962 S.W.2d 544 (Tex. Crim. App. 1997) ........................................................... 29

Hernandez v. City of Lafayette,
  643 F.2d 1188 (5th Cir. 1981) ............................................................................ 48

Homan v. Branstad,
  812 N.W.2d 623 (Iowa 2012) ............................................................................. 42

In re Masonite Corp.,
   997 S.W.2d 194 (Tex. 1999) .............................................................................. 37

In re Perry,
   60 S.W.3d 857 (Tex. 2001)...............................................................36, 47, 49, 50

                                                         vii
Irons v. R.I. Ethics Comm’n,
   973 A.2d 1124 (R.I. 2009) .................................................................................. 50

Jessen Assocs., Inc. v. Bullock,
   531 S.W.2d 593 (Tex. 1976) ........................................................................41, 48

Karenev v. State,
  281 S.W.3d 428 (Tex. Crim. App. 2009) ........................................................... 34

Kilbourn v. Thompson,
   103 U.S. 168 (1880) ......................................................................................46, 47

Kramer v. Price,
  712 F.2d 174 (5th Cir. 1983) .............................................................................. 23

Langever v. Miller,
  76 S.W.2d 1025 (Tex. 1934) .............................................................................. 39

Long v. State,
  931 S.W.2d 285 (Tex. Crim. App. 1991) ...............................................22, 23, 25

Luther v. Borden,
   48 U.S. 1 (1849) .................................................................................................. 42
McIntyre v. Ohio Elections Comm’n,
  514 U.S. 334 (1995) .............................................................................................. 8
Meshell v. State,
  739 S.W.2d 246 (Tex. Crim. App. 1987) ........................................................... 39

Meyer v. Grant,
  486 U.S. 414 (1988) ..................................................................................8, 17, 58

Mitchell v. Forsyth,
   472 U.S. 511 (1985) ............................................................................................ 36

Mutscher v. State,
  514 S.W.2d 905 (Tex. Crim. App. 1974) ........................................................... 48

N.A.A.C.P. v. Claiborne Hardware Co.,
   458 U.S. 886 (1982) ............................................................................................ 12

                                                          viii
New York Times Co. v. Sullivan,
  376 U.S. 254 (1964) .............................................................................................. 8

Nixon v. United States,
   506 U.S. 224 (1993) ............................................................................................ 42

Olivas v. State,
   203 S.W.3d 341 (Tex. Crim. App. 2006) ........................................................... 26

Papachristou v. City of Jacksonville,
  405 U.S. 156 (1971) ............................................................................................ 23

People v. Iboa,
  207 Cal. App. 4th 111 (2012) ............................................................................. 15

Phillips v. State,
   401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d)............................. 16

Pickle v. McCall,
   24 S.W. 265 (Tex. 1893)..................................................................................... 41

Puckett v. State,
  801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)................ 19
Roberts v. State,
  278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d).......................20, 27
Sanchez v. State,
   995 S.W.2d 677 (Tex. Crim. App. 1999) .....................................................12, 20

Shade v. U.S. Congress,
   942 F. Supp. 2d 43 (D.D.C. 2013) ...................................................................... 48

Smith v. Flack,
  728 S.W.2d 784 (Tex. Crim. App. 1989) ........................................................... 37

Spokane Grain & Fuel Co. v. Lyttaker,
   109 P. 316 (Wash. 1910) .................................................................................... 42

State ex rel. Cason v. Bond,
   495 S.W.2d 385 (Mo. 1973) ............................................................................... 42

                                                         ix
State ex rel. Dickson v. Saiz,
   308 P.2d 205 (N.M. 1957) .................................................................................. 42

State ex rel. Lykos v. Fine,
   330 S.W.3d 094 (Tex. Crim App. 2011) ......................................................31, 34

State ex rel. Wis. Senate v. Thompson,
   424 N.W.2d 385 (Wisc. 1988) ............................................................................ 42

State v. Dankworth,
   672 P.2d 148 (Alaska Ct. App. 1983)................................................................. 49

State v. Hanson,
   793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ....................................passim

State v. Holton,
   997 A.2d 828, 856 (Md. Ct. Spec. App. 2010).............................................49, 50

State v. Moff,
   154 S.W.3d 599 (Tex. Crim. App. 2004) ........................................................... 29

State v. Neufeld,
   926 P.2d 1325 (Kan. 1996) ................................................................................. 49
State v. Pauling,
   69 P.3d 331 (Wash. 2003) .................................................................................. 15
State v. Robertson,
   649 P.2d 569 (Or. 1982) ..................................................................................... 14

State v. Strong,
   272 P.3d 281 (Wash. App. 2012) ....................................................................... 12

State v. Weinstein,
   898 P.2d 513 (Ariz. Ct. App. 1995)..............................................................13, 14

Tenney v. Brandhove,
   341 U.S. 367 (1951) ................................................................................46, 47, 50

Tobias v. State,
  884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ...................18, 19, 27

                                                        x
U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit,
   624 F. Supp. 68 (N.D. Ill. 1985) ...................................................................12, 14

United States v. Beery,
  678 F.2d 856 (10th Cir. 1982) ............................................................................ 52

United States v. Brewster,
  408 U.S. 501 (1972) ......................................................................................48, 52

United States v. Coss,
  677 F.3d 278 (6th Cir. 2012) .............................................................................. 12

United States v. Dowdy,
  479 F.2d 213 (4th Cir. 1973) .............................................................................. 49

United States v. Helstoski,
  442 U.S. 477 (1979) ................................................................................47, 48, 49

United States v. Jackson,
  180 F.3d 55 (2d Cir. 1999) ...........................................................................13, 15

United States v. Johnson,
  383 U.S. 169 (1966) ..........................................................................47, 49, 50, 52
United States v. Kolter,
  71 F.3d 425 (D.C. Cir. 1995) .............................................................................. 52
United States v. Lanier,
  520 U.S. 259 (1997) ............................................................................................ 54

United States v. Myers,
  635 F.2d 932 (2d Cir. 1980) .........................................................................36, 37

United States v. Nat’l Treasury Emps. Union,
  513 U.S. 454 (1995) ............................................................................................ 33

United States v. Renzi,
  686 F. Supp. 2d 956 (D. Ariz. 2010) .................................................................. 52

United States v. Rose,
  28 F.3d 181 (D.C. Cir. 1994) .............................................................................. 36

                                                         xi
United States v. Rostenkowski,
  59 F.3d 1291 (D.C. Cir. 1995) ............................................................................ 52

United States v. Stevens,
  559 U.S. 460 (2010) .............................................................................................. 9

United States v. Swindall,
  971 F.2d 1531 (11th Cir. 1992) ....................................................................51, 52

United States v. Velasquez,
  772 F.2d 1348 (7th Cir. 1985) ............................................................................ 13

United States v. Williams,
  553 U.S. 285 (2008) .............................................................................................. 9

United States v. Zielezinski,
  740 F.2d 727 (1984)............................................................................................ 52

Van Arsdel v. Texas A&M Univ.,
  628 F.2d 344 (5th Cir. 1980) .............................................................................. 26

Virginia v. Black,
   538 U.S. 343 (2003) ........................................................................................ 8, 12
Wash. State Grange v. Wash. State Republican Party,
  552 U.S. 442 (2008) .............................................................................................. 9
Watts v. United States,
  394 U.S. 705 (1969) ............................................................................................ 12

Whimbush v. People,
  869 P.2d 1245 (Colo. 1994) ................................................................................ 14

Willborn v. Deans,
   240 S.W.2d 791 (Tex. Civ. App.CAustin 1951, writ ref’d n.r.e.) ..................... 25

Wurtz v. Risley,
  719 F.2d 1438 (9th Cir. 1983) ......................................................................12, 14




                                                         xii
STATUTES
Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, Tex. Gen. Laws 3586 ....... 59
Tex. Penal Code § 1.07(a)(9) .................................................................................. 11

Tex. Penal Code § 1.07(a)(9)(F) .......................................................................... 7, 24

Tex. Penal Code § 1.07(a)(41) ................................................................................ 11

Tex. Penal Code § 1.07(a)(48) .........................................................15, 20, 21, 27, 59

Tex. Penal Code § 36.03(a)(1) .......................................................................7, 10, 24
Tex. Penal Code § 36.03(c)...................................................................................... 11
Tex. Penal Code § 36.06(a)..........................................................................15, 20, 27

Tex. Penal Code § 39.02(a)(2) ...........................................................................53, 54

Tex. Penal Code § 42.07(a)(2) ................................................................................. 20

OTHER AUTHORITIES
1 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE STATE OF TEXAS: AN
   ANNOTATED AND COMPARATIVE ANALYSIS 339 (George D. Braden ed.
   1977) ................................................................................................................... 41

G. DIX AND R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE AND
   PROCEDURE § 42.254 (Supp. 2005) .................................................................... 34

Senate Research Center, Budget 101: A Guide to the Budget Process in Texas
   at 3, 10 (Jan. 2013).............................................................................................. 55

Texas Legislative Council, Facts at a Glance: Comparison of Punishment
  and Sentencing Provisions in the 1993 and 2003 Penal Code (2005) ............... 59

LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32, 1036 (2d ed.
  1988) ..................................................................................................................... 9

Tex. Const. art. III, § 49a ......................................................................................... 55

                                                            xiii
Tex. Const. art. IV, § 14............................................................................. xvi, 44, 58

Tex. Const. art. XV, §§ 1-5 ...................................................................................... 44

U.S. Const. amend. I .................................................................................................. 8




                                                          xiv
                           STATEMENT OF THE CASE
Nature of the case:                      The State charged Governor James
                                         Richard “Rick” Perry in a two-count
                                         indictment with abuse of official
                                         capacity and coercion of a public
                                         servant. CR4. Governor Perry filed an
                                         Application for Pretrial Writ of Habeas
                                         Corpus seeking dismissal of the
                                         indictment primarily on constitutional
                                         grounds. CR11.



Trial court and judge:                   Honorable Bert Richardson, Judge
                                         Presiding, 390th Judicial District, Travis
                                         County,      Texas,       Cause       No.
                                         D1DC14-100139.


Course of proceedings and disposition    The district court signed an order on
below:                                   January 27, 2015, denying the
                                         Application. CR464. Governor Perry
                                         timely filed his notice of appeal, CR438,
                                         and the district court certified Governor
                                         Perry’s right to appeal. 1SUPPCR12-13.




                                        xv
                       STATEMENT REGARDING ORAL ARGUMENT
       Governor Perry does not seek oral argument in this appeal. The issues,

although complex and of constitutional magnitude, have been extensively briefed,

and the public interest will be best served by expedited resolution of this appeal.

Until it is resolved, the pendency of this case inevitably will have a chilling effect on

the current Governor’s potential exercise of his veto power over items in the

Legislature’s forthcoming appropriations bill. 1 Nonetheless, Governor Perry is

willing to present oral argument should the Court believe it to be helpful, and he

would only ask that any oral argument be scheduled on an expedited basis.




       1
          The Texas Constitution gives the governor ten days from presentation of a bill to sign or
veto it, although this period can be extended until up to twenty days after the regular session ends
for appropriations bills passed at the very end of the session. Tex. Const. art IV, § 14. Since the
Regular Session of the 84th Legislature will end not later than June 1, 2015, Governor Abbott will
have to exercise any veto over items in any appropriations bill passed during the regular session by
no later than about June 21, 2015, although the deadline could be sooner if the bill passes the
Legislature before the end of the session.

                                                xvi
                               ISSUES PRESENTED
1.   Free Speech. Is the offense of Coercion of a Public Servant, as defined in
     Texas Penal Code Sections 36.03(a)(1) and 1.07(a)(9)(F), facially invalid as a
     violation of the First Amendment to the U.S. Constitution?

     A.    Overbreadth. Is the offense unconstitutionally overbroad because it
           prohibits a substantial amount of protected speech, including threats to
           take lawful action?

     B.    Strict Scrutiny. Does the offense fail to survive strict-scrutiny review
           because, far from being necessary to serve a compelling state interest,
           its applications are either redundant or unconstitutional?

2.   Vagueness. Is the offense of Coercion of a Public Servant, as defined in
     Texas Penal Code Sections 36.03(a)(1) and 1.07(a)(9)(F), void for vagueness
     on its face because all of its applications are either redundant or
     unconstitutional, thus requiring guesswork about its scope?

3.   Cognizability. Did the district court err by holding that Governor Perry’s
     as-applied challenges to the indictment were not cognizable in a pretrial
     habeas proceeding, where those challenges can be decided based solely on the
     face of the indictment and the applicable statutes, and the challenges involve a
     right not to be tried which can only be vindicated by a pretrial remedy?

4.   Separation of Powers. Did the district court err by failing to dismiss the
     indictment because the prosecution unconstitutionally interferes with the
     governor’s veto power, which is entrusted to the governor’s sole discretion by
     the Texas Constitution?
5.   Immunity. Did the district court err by failing to dismiss the indictment
     because Governor Perry is immune from prosecution for the acts alleged on
     the face of the indictment under both the Texas Speech or Debate Clause and
     the related doctrine of legislative immunity?

6.   Count I As-Applied. Did the district court err by failing to dismiss Count I
     because the abuse-of-official-capacity statute does not give fair notice that it
     might apply to gubernatorial vetoes and is therefore unconstitutionally vague
     as applied to the facts alleged on the face of the indictment?

                                       xvii
7.   Count II As-Applied. Did the district court err by failing to dismiss Count II
     because the statute is unconstitutional as applied to the facts alleged on the
     face of the indictment?

     A.    Vagueness. Is the coercion statute unconstitutionally vague as applied
           to the facts alleged on the face of the indictment because it fails to give
           fair notice that it might apply to threats of lawful action?

     B.    Free speech. Is the coercion statute unconstitutionally vague
           as applied to the facts alleged on the face of the indictment because
           threats to commit lawful action are protected speech under the First
           Amendment?




                                       xviii
                            STATEMENT OF THE FACTS
      Last summer, a Travis County grand jury returned a two-count indictment

against then-Governor James Richard “Rick” Perry. CR4. Count I alleges that

Governor Perry committed Abuse of Official Capacity under Section 39.02(a) of the

Texas Penal Code. The gist of this charge is that he “misused” government property

by vetoing funding for the Travis County Public Integrity Unit (“PIU”). Id. Count II

alleges that Governor Perry committed Coercion of a Public Servant under Sections

36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code. This charge alleges that he

attempted to “influence” Travis County District Attorney Rosemary Lehmberg by

threatening to veto funding for the PIU. CR5. In short, the charges are that

Governor Perry broke the law by threatening and issuing a veto. Governor Perry

made bond and was processed by the Travis County Sheriff. CR10.

      Ten days after the indictment was returned, Governor Perry filed his

Application for Pretrial Writ of Habeas Corpus (the “Application”), which sought to

bar the prosecution and dismiss both counts of the indictment.         CR11.     The

Application made nine constitutional challenges to Count I and twelve challenges

(all of which but one were on constitutional grounds) to Count II. CR17-19. The

district court gave the State almost three months to file its response, which was not




                                         1
filed until November 7, 2014. CR274. Governor Perry promptly filed a reply in

support of the Application. CR391.

         Fourteen nationally-known constitutional scholars filed an amicus curiae

brief in support of Governor Perry’s Application. CR367-90. The amici supported

Governor Perry’s prayer for dismissal of Count I on two grounds: (1) that the

constitutional doctrine of Separation of Powers precluded the Legislature from

criminalizing the exercise of a constitutionally authorized gubernatorial veto; and

(2) that Governor Perry cannot be prosecuted for his veto because he is entitled to

absolute legislative immunity for any exercise of his veto power. CR375-84. The

amici also supported Governor Perry’s prayer for dismissal of Count II on the

ground that it criminalizes speech protected by the First Amendment. CR384-89.

         In late January 2015, the district court denied the Application without an oral

hearing.     CR464.     The court rejected on the merits Governor Perry’s facial

overbreadth and vagueness challenges to the coercion statute on which Count II is

based.     CR474-82.     The court ruled that the remainder of Governor Perry’s

constitutional challenges were not cognizable in a pretrial habeas proceeding

because they supposedly raised merely as-applied, rather than facial, constitutional

arguments. CR468-73. While the court acknowledged that these arguments were

“compelling” and “may be relevant at a later time,” it declined to reach their merits

                                            2
on the mistaken belief that “the court’s hands are tied” under existing case law

regarding cognizability. CR472-73. As a result, the district court has set this case on

a path to trial.2

                               SUMMARY OF THE ARGUMENT
       Former Governor Rick Perry is being prosecuted for a veto and an alleged

veto threat. At stake is not just the freedom of one man. The veto power will either

be preserved and continue its vital role as a check on the other branches of

government in this State, or its use will only be contemplated against the backdrop

of possible criminal prosecution. Beyond that, all Texas public officials may find

their speech stifled by an overbroad criminal statute that restricts their ability to

negotiate and manage government affairs.

       Fortunately, multiple provisions of the Texas and U.S. Constitutions

proscribe the continuance of this misguided prosecution. The constitutionally-

mandated separation of powers protects the Governor’s veto authority and

discussions related to it from interference by the other branches, such as through

penal laws enacted by the Legislature and enforced by the judiciary. Freedom of

speech protects the governor and the rest of the public from the chilling effect of

       2
         The district court also held that Governor Perry’s one statutory challenge to Count II was
not cognizable in a pretrial habeas proceeding, CR482, but the court sustained this same
statutory challenge in ruling on Governor Perry’s motion to quash. CR459-62 (sustaining
challenge to Count II for failing to negate statutory exception and granting State leave to amend).

                                                3
vague and overbroad laws that sweep up protected speech in a misguided effort to

ensure that no possible misconduct escapes punishment. On its face, without the

need for any evidence, the indictment must be dismissed because it runs afoul of

these constitutional guarantees.

      Governor Perry filed a pretrial application for habeas corpus so that dismissal

could occur immediately, before the indictment did further personal damage to him

or caused further distraction from the public’s business. He raised two facial

challenges to the coercion statute, which targets the content of speech on its face and

is presumptively unconstitutional. He also raised a number of as-applied challenges

to the coercion statute and the abuse-of-official-capacity statute. In one form or

another, these challenges all sought to vindicate the bedrock constitutional

principles of separation of powers and freedom of speech.

      The district court denied relief without fully grappling with Governor Perry’s

challenges.   The court addressed the merits of Governor Perry’s two facial

challenges to the coercion statute, but the court never acknowledged the dramatic

overbreadth of that statute, much less reconciled it with freedom of speech. The

court then disposed of Governor Perry’s other challenges, including the ones based

on separation of powers, on procedural grounds. While acknowledging that these

challenges were, in the court’s own words, “persuasive” and “compelling,” the court

                                          4
fixated on the “as-applied” label to hold that these challenges were never cognizable

in a pretrial habeas corpus proceeding and can only be brought, if at all, after the

burden of trial.

      Governor Perry now seeks relief from this Court to rectify these errors. As

shown below, the coercion statute is facially overbroad and cannot survive strict

scrutiny. By criminalizing all statements by public servants that threaten lawful

action and merely have the effect of influencing another public servant, the statute

condemns ordinary negotiation, management, and policy-making within state and

local governments across Texas. The First Amendment’s protections are at their

zenith with regard to such core political speech. Compounding this problem is the

coercion statute’s facial vagueness. Reasonable people must guess at what conduct

is prohibited by the statute’s constitutionally problematic reference to threats (which

are not statutorily required to be “unlawful”). And the statute creates a trap for the

unwary by defining the crime with reference to consequences (“influencing a public

servant”) without requiring that offenders have any intent or knowledge regarding

those consequences.

      The district court also misapprehended the nature of Governor Perry’s

as-applied challenges. Because these challenges can be decided from the face of the

indictment, unlike typical as-applied challenges which require development of a

                                          5
factual record at trial, Governor Perry’s as-applied challenges are ripe for review and

cognizable in pretrial habeas. All the factors underlying Texas habeas jurisprudence

support cognizability here. Indeed, the most wasteful and prejudicial course would

be to proceed to trial with the legally appropriate means of pre-trial resolution so

close at hand.    In addition, Governor Perry’s challenges based on the Texas

Constitution’s Separation of Powers Clause, its Speech or Debate Clause, and

legislative immunity all involve a right not to be tried, which—like challenges

based on double jeopardy—must be vindicated before trial in order to have any

meaning at all. The paramount public interest in the effective functioning of state

institutions in general, and the untrammeled exercise of the line-item veto by the

governor in particular, likewise counsels in favor of prompt resolution of these

challenges. For all these reasons, Governor Perry’s as-applied challenges are

cognizable in pretrial habeas.

      On the merits of his as-applied challenges, Governor Perry concurs with the

district court—the challenges are indeed “persuasive” and “compelling.” The Texas

Constitution requires that the governor’s veto power, including communications

about the use of that power, be kept free from interference by other branches.

And because governors act in a legislative capacity when exercising and

communicating about the veto power, they enjoy the protection of the Texas

                                          6
Speech or Debate Clause and legislative immunity, both of which bar prosecution

for legislative activity.   Finally, Governor Perry had no fair notice that the

abuse-of-official-capacity statute would apply to vetoes, nor that the coercion statute

would apply to threats of lawful action. And in any event, Texas case law squarely

holds that threats to take lawful action are protected speech under the First

Amendment and cannot be criminalized.

      For all these reasons, Governor Perry asks the Court to halt this

unconstitutional prosecution by granting his application for habeas relief and

ordering the indictment dismissed, thereby eliminating any further stifling effect on

the Office of the Governor.

                                     ARGUMENT
I.    Count II must be dismissed because the coercion statute is facially
      unconstitutional under the First Amendment.
      Despite the requirements of the First Amendment to the U.S. Constitution, the

district court’s scrutiny of the coercion statute underlying Count II was far from

strict. CR475-478. The coercion statute squarely targets speech with a certain

content—i.e., “threat[s] . . . to take or withhold official action” that “influence”

public servants. Tex. Penal Code §§ 1.07(a)(9)(F), 36.03(a)(1). The statute is

therefore subject to perhaps the most searching scrutiny known to American law.

Because of the special, almost sacred status our society accords to freedom of speech,

                                          7
even well-written statutes often fail to withstand the rigors of strict scrutiny. A

fortiori, poorly-written statutes like the one at issue here—which smothers a wide

swath of protected speech under the banner of criminality and serves no purpose not

already served by more narrowly tailored laws—must be struck down.

CR18,30-41,384-89,409-13.

      The First Amendment, which has been incorporated by the Due Process

Clause of the Fourteenth Amendment to apply to the states, e.g., Virginia v. Black,

538 U.S. 343, 358 (2003), provides that “Congress shall make no law . . . abridging

the freedom of speech.” U.S. Const. amend. I. Core political speech, such as the

alleged statement by Governor Perry that he would exercise his veto power if

Lehmberg did not resign, lies at the very heart of First Amendment protection. See

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (courts must apply

“exacting scrutiny” to laws burdening core political speech); Meyer v. Grant, 486

U.S. 414, 422 (1988) (First Amendment protection is “at its zenith” for core political

speech).    This heightened protection stems from our “profound national

commitment” to the principle that “debate on public issues should be uninhibited,

robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

“Content-based regulations are presumptively invalid, and it is rare that a regulation

restricting speech because of its content will ever be permissible.”        Ex parte

                                          8
Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014) (internal footnote and

quotation marks omitted).

      To succeed in a typical facial attack, a defendant must establish “that no set of

circumstances exists under which [the statute] would be valid.” United States v.

Stevens, 559 U.S. 460, 472 (2010). However, in the context of the First Amendment,

the Supreme Court recognizes “a second type of facial challenge,” whereby a law

may be invalidated as overbroad if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at

473 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

449, n.6 (2008) (internal quotation marks omitted)). Thus, a statute is facially

unconstitutional and violates the overbreadth doctrine if “it prohibits a substantial

amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008).

A law that is overbroad cannot be validly applied against any individual. LAWRENCE

H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32, 1036 (2d ed. 1988). Courts

must not “uphold an unconstitutional statute merely because the Government

promised to use it responsibly.” Thompson, 442 S.W.3d at 350 (quoting Stevens,

559 U.S. at 480).

      In addition, a statute regulating the content of speech—such as the coercion

statute’s prohibition of certain “threats”—is subject to “strict scrutiny” and will be

                                          9
invalidated unless it constitutes the “least restrictive means” of effectuating a

“compelling [state] interest.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656,

658, 666 (2004). A statute that prohibits protected speech “is unacceptable if less

restrictive alternatives would be at least as effective in achieving the legitimate

purpose that the statute was enacted to serve,” and “the burden is on the Government

to prove that the proposed alternatives would not be as effective as the challenged

statute.” Id. at 665.

      A.     The coercion statute is facially overbroad.
      The statutory language that forms the basis for Count II is written in broad

strokes. It begins with Section 36.03(a)(1), which makes it a crime to coerce a

public servant. An individual commits an offense if he or she, “by means of

coercion . . . influences or attempts to influence a public servant in a specific

exercise of his official power or a specific performance of his official duty or

influences or attempts to influence a public servant to violate the public servant’s

known legal duty.” Tex. Penal Code § 36.03(a)(1). “Coercion” is then defined in

the definition section of the Penal Code as

      a threat, however communicated:
      (A)    to commit an offense;

      (B)    to inflict bodily injury in the future on the person threatened or
             another;

                                         10
      (C)    to accuse a person of any offense;

      (D)    to expose a person to hatred, contempt, or ridicule;

      (E)    to harm the credit or business repute of any person; or

      (F)    to take or withhold action as a public servant, or to cause a public
             servant to take or withhold action.

Id. § 1.07(a)(9).    Governor Perry is charged with making a threat under

subpart (F)—that is, threatening to take official action. “Public servant” is also

defined broadly to encompass all aspects of state government, including any “officer,

employee, or agent of government,” “a juror or grand juror,” “an arbitrator,” a

political candidate, and even “an attorney at law or notary public when participating

in the performance of a government function.” Id. § 1.07(a)(41). The coercion

statute contains a single, narrow exception, for “member[s] of the governing body of

a governmental entity.” Id. § 36.03(c).

      To be clear, Governor Perry is challenging the facial constitutionality of

Section 36.03(a)(1) only in conjunction with the definition of coercion in Section

1.07(a)(9)(F). He is not challenging either of these provisions standing alone.

      Some applications of Sections 36.03(a)(1) and 1.07(a)(9) do not violate the

First Amendment. For example, a state can outlaw threats of violence against a

public servant without raising any First Amendment concerns.                        “True

threats”—which the U.S. Supreme Court has defined as “statements where the

                                          11
speaker means to communicate a serious expression of an intent to commit an act of

unlawful violence”—have no First Amendment protection. Black, 538 U.S. at 359

(no protection for cross burning that communicates threat of bodily harm or death);

see also Watts v. United States, 394 U.S. 705, 707-08 (1969) (no protection for

threat to assassinate the President of the United States). Threats to commit an

unlawful act are also generally not protected. See Wurtz v. Risley, 719 F.2d 1438,

1442 (9th Cir. 1983) (no protection for threat to commit rape); U.S. ex rel. Holder v.

Circuit Court of 17th Judicial Circuit, 624 F. Supp. 68, 71 (N.D. Ill. 1985) (no

protection for threat to damage property). And some courts have also held that the

First Amendment does not protect extortion (i.e., threats of harm or defamation

made to obtain a wrongful profit). See United States v. Coss, 677 F.3d 278, 289-90

(6th Cir. 2012) (no protection for threat to damage reputation made with intent to

wrongfully obtain property); cf. Sanchez v. State, 995 S.W.2d 677, 687-88 (Tex.

Crim. App. 1999) (no protection for sexual harassment made with intent to

wrongfully obtain sexual favors); see also State v. Strong, 272 P.3d 281, 287 (Wash.

App. 2012) (noting that extortion involves “compelling of the victim to give up

property” and is thus “an extension of theft”).

      “Speech does not lose its protected character, however, simply because it may

embarrass others or coerce them into action.” N.A.A.C.P. v. Claiborne Hardware

                                         12
Co., 458 U.S. 886, 910 (1982). Most threats do not fall into the categories of

unprotected speech listed above and instead enjoy “broad protection” under the First

Amendment. Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1014

(7th Cir. 1984). Non-extortionate threats to commit lawful action are protected by

the First Amendment, even if they influence another public servant. See State v.

Hanson, 793 S.W.2d 270, 273 (Tex. App.—Waco 1990, no pet.) (“Coercion of a

lawful act by a threat of lawful action is protected free expression.”). And courts

have recognized that “a threat to cause economic loss is not inherently wrongful.”

United States v. Jackson, 180 F.3d 55, 70 (2d Cir. 1999) (listing, as examples, a

consumer’s threat to sue for breach of warranty or file a complaint with a consumer

protection agency). Indeed, threats are “common in everyday business and personal

interactions.” State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 1995) (listing, as

examples, car owner’s threat to tell friends not to patronize a dealer unless repairs

are made, a store owner’s threat to report a customer to a credit reporting agency

unless bills are paid, and a mother’s threat to report her ex-husband to the court if he

fails to pay back child support). Threats are also common in American political

discourse, often being inseparable from ideas or advocacy. See United States v.

Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (giving, as an example, a threat to

picket an organization to induce social or political action). Even threats to commit

                                          13
minor criminal offenses (such as threats of civil disobedience) can be protected

speech. See Wurtz, 719 F.2d at 1442 (listing, as examples, threats of sit-ins, marches

in the street, and mass picketing); Holder, 624 F. Supp. at 70 (listing additional

examples).

      Given the broad protection accorded to threats under the First Amendment,

courts have not hesitated to strike down broadly-written coercion and extortion laws

on grounds of overbreadth. See, e.g., Wurtz, 719 F.2d at 1441-42 (striking down

Montana intimidation statute prohibiting threats “to commit any criminal offense,”

no matter how minor or the purpose of the threat); Holder, 624 F. Supp. at 71

(striking down Illinois intimidation statute prohibiting threats to “commit any

criminal offense”); Weinstein, 898 P.2d at 515 (striking down extortion statute that

prohibited obtaining property by threats to expose disreputable information, which

impinged on legitimate negotiation tactics); Whimbush v. People, 869 P.2d 1245,

1247-48 (Colo. 1994) (striking down extortion statute prohibiting making any threat

to harm with intent to induce action, which improperly “covers threats of collective

action in support of group demands”); State v. Robertson, 649 P.2d 569, 589-90 (Or.

1982) (striking down coercion statute prohibiting a wide range of threats merely

intended to induce some action by another); City of Seattle v. Ivan, 856 P.2d 1116,

1120 (Wash. App. 1993) (striking down city’s coercion ordinance which prohibited

                                         14
a wide range of threats merely intended to induce some action by another). Other

courts have given coercion and extortion statutes narrow constructions to avoid

constitutional issues. See, e.g., Jackson, 180 F.3d at 70 (construing extortion statute

to only include “wrongful” threats to obtain property from another, and recognizing

that some threats to obtain property are legitimate negotiation tactics); People v.

Iboa, 207 Cal. App. 4th 111, 120 (2012) (statute proscribing use of “threats” to

interfere with duties of executive officer construed as limited to “threats of unlawful

violence”); State v. Pauling, 69 P.3d 331, 387-89 (Wash. 2003) (narrowing

otherwise overbroad extortion statute to only include “wrongful” threats made with

intent to obtain property from another).

      As written, Sections 36.03(a)(1) and 1.07(a)(9)(F) criminalize a breathtaking

amount of constitutionally protected speech. As explained above, they purport to

criminalize (with only one exception) any threat by a public servant to take any

official action as a means of merely influencing the conduct of any other public

servant. Importantly, the statute is not limited to threats of “unlawful” conduct, see

Tex. Penal Code § 1.07(a)(48) (defining “unlawful” as “criminal or tortious or

both”), in contrast to other similar statutes. See, e.g., id. § 36.06(a) (illegal to

“intentionally or knowingly . . . threaten[] to harm another by an unlawful act” in

retaliation for public service (emphasis added)).

                                           15
        The implications are astounding, as they would render many common

scenarios in state government criminal. For instance, a manager could not threaten

to fire or demote a government employee for poor performance. A government

employee could not threaten to resign unless her pay or benefits were increased, or

to file a complaint unless workplace harassment were stopped. A judge could not

threaten to sanction an attorney for the State, to declare a mistrial if jurors did not

avoid misconduct, or to deny warrants that failed to contain certain information. An

inspector general could not threaten to investigate an agency’s financial dealings. A

prosecutor could not threaten to bring charges against another public servant. A

university administrator could not threaten to withdraw funding from a professor=s

research program. A public defender could not threaten to file a motion for

suppression of evidence to secure a better plea bargain for his client. A prosecutor

could not communicate to a judge in chambers his intent to file a potentially

embarrassing motion to recuse unless the judge voluntarily recused herself. Were it

not for the fact that members of a “governing body” are excepted from the statute,

even members of the House and Senate would presumably be breaking the law when

they negotiated among themselves to resolve differences in conference committee.3

        3
          Indeed, even a threat directed against a third party can trigger criminal liability if intended
to influence a public servant. See Phillips v. State, 401 S.W.3d 282, 289 (Tex. App.—San Antonio
2013, pet. ref’d) (upholding conviction of 911 caller who threatened to kill particular police officer
and thus influenced which officer a 911 dispatcher sent to the scene). For example, a government
                                                  16
The list is virtually endless. Statements so intrinsic to government, particularly

when they relate to matters of public policy, lie at the core of First Amendment

protection. See Meyer, 486 U.S. at 422 (First Amendment protection is “at its zenith”

for core political speech); Garrison v. La., 379 U.S. 64, 74-75 (1964) (“[S]peech

concerning public affairs is more than self-expression; it is the essence of

self-government.”).

       Inescapably, the literal words of Sections 36.03(a)(1) and 1.07(a)(9)(F)

prohibit a striking number of ordinary activities that involve constitutionally

protected speech, much of it political in nature. In fact, as written, the statutory

language would make the ordinary functioning of government impossible. This is a

textbook case of overbreadth.

       B.     The coercion statute is not the least restrictive means of serving a
              compelling state interest.
       The State cannot salvage Sections 36.03(a)(1) and 1.07(a)(9)(F) by arguing

that they are the least restrictive means of achieving a compelling state interest. Any

compelling state interests are already addressed by the other types of threats that

constitute “coercion” under Section 1.07(a)(9). The State surely has a compelling

interest in preventing threats of unlawful or criminal acts against public servants, but


employee who threatened a trespasser and thereby caused a nearby peace officer to intervene
would be a criminal under these provisions.

                                            17
Section 1.07(a)(9)(A) already covers threats “to commit an offense.” And while the

State has a compelling interest in preventing threats of violence against public

servants, Tobias v. State, 884 S.W.2d 571, 580-81 (Tex. App.—Fort Worth 1994,

pet. ref’d), this interest is already addressed by Section 1.07(a)(9)(B)’s coverage of

threats “to inflict bodily injury in the future on the person threatened or another.”

And to the extent extortionate threats against public servants are not already covered

by these prior two provisions, Sections 1.07(a)(9)(C) through (E) address threats of

defamation and invasion of privacy. In short, there is no compelling state interest

left to serve by Section 1.07(a)(9)(F)’s catch-all coverage of threats “to take or

withhold action as a public servant.” The only discrete function of this provision,

when combined with Section 36.03(a)(1), is to prohibit speech protected by the First

Amendment.

      An analogous situation was presented in Ex parte Lo, 424 S.W.3d 10 (Tex.

Crim. App. 2013), in which the Court of Criminal Appeals struck down a subsection

of the Penal Code which prohibited sex-related online communications with minors.

That statute (like the one here) was a “content-based regulation” and “presumptively

invalid.” Id. at 15. According to the court, the statute was not narrowly tailored

because “everything that [it] prohibits and punishes is speech and is either already

prohibited by other statutes (such as obscenity, distributing harmful material to

                                         18
minors, solicitation of a minor, or child pornography) or is constitutionally

protected,” such as sexually explicit works of literature and popular television shows

and movies. Id. at 20 (emphasis in original). The same logic applies to Sections

36.03(a)(1) and 1.07(a)(9)(F). See also Thompson, 442 S.W.3d at 349-50 (striking

down as overbroad a criminal photography statute because, while the statute had

some “legitimate applications,” it “appl[ied] to any non-consensual photograph,

occurring anywhere, as long as the actor ha[d] an intent to arouse or gratify sexual

desire,” including photographs of celebrities and public sunbathers).

      To support its ruling, the district court below cited several cases where Texas

courts rejected facial First Amendment challenges to statutory language that was

narrowly drawn and not constitutionally overbroad. CR475-478. But these cases

deal with different statutory sections and distinguishable facts. The Second Court of

Appeals rejected a First Amendment challenge to Sections 36.03(a)(1) and

1.07(a)(9)(A), under which a private citizen was charged with threatening to

“commit an offense” (murder and assault) against three court-of-appeals justices.

Tobias, 884 S.W.2d at 580-82. The Fourteenth Court of Appeals upheld a retaliation

statute which prohibited “threat[s] to harm another by an unlawful act.” Puckett v.

State, 801 S.W.2d 188, 192 (Tex. App.CHouston [14th Dist.] 1990, pet. ref’d)

(emphasis added) (quoting former Tex. Penal Code § 36.06(a)). The Court of

                                         19
Criminal Appeals upheld a harassment statute which prohibited “threat[s], by

telephone or in writing, to take unlawful action.” Collection Consultants, Inc. v.

State, 556 S.W.2d 787, 792 (Tex. Crim. App. 1977) (emphasis added) (quoting

former Tex. Penal Code § 42.07(a)(2)). The Fourth Court of Appeals upheld a theft

statute which prohibited extortionCi.e., “unlawfully appropriat[ing]” property by

means of “coercion” as defined in Section 1.07(a)(9)(D) and (E) (i.e., threats of

defamation). Roberts v. State, 278 S.W.3d 778, 790-93 (Tex. App.CSan Antonio

2008, pet. ref’d). Finally, the Court of Criminal Appeals upheld a sexual harassment

statute which prohibited public servants from conditioning a right or privilege on

submission to sexual advancesCconduct which the court analogized to extortion.

Sanchez, 995 S.W.2d at 687-88.

      In every one of these cases, the statutes at issue were narrowly written to focus

on unprotected speech. None of these cases stands for the broad proposition that all

threats, regardless of their content, are unprotected speech, much less that the State

has a compelling interest in preventing their communication. And none of these

cases dealt with, much less upheld, the much broader statutory language at issue here,

which is not limited to threats to “unlawfully” take or withhold official action. See

Tex. Penal Code § 1.07(a)(48) (defining “unlawful” to mean “criminal or tortious or




                                         20
both and includes what would be criminal or tortious but for a defense not

amounting to justification or privilege”).4

       The only case to address the constitutionality of the statutory language at issue

here affirmed the dismissal of an indictment which was based on a threat of lawful

conduct. See Hanson, 793 S.W.2d at 273. As discussed below in connection with

Governor Perry=s vagueness challenges, Hanson held that a prior version of Section

36.03(a)(1) was unconstitutionally vague as applied to a threat of lawful action

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

expression,” and a reasonable person could only guess whether “the term ‘threat’

encompass[ed] a threat of lawful action or only prohibit[ed] a threat of unlawful

action.” Id. at 272 (emphasis added). While Hanson expressly declined to reach the

question of the statute=s overbreadth, id. at 273, its First Amendment holding

supports that challenge as well.

       Text, precedent, and common sense all point to the same conclusion:

Sections 36.03(a)(1) and 1.07(a)(9)(F), in conjunction, would essentially

criminalize the ordinary give and take of politics as well as the administration of

state government, all in violation of the First Amendment and without serving any

compelling state interest. For these reasons, the statutory language is facially
       4
           As the district court recognized, Governor Perry intends to assert a “public duty”
justification defense at trial under Texas Penal Code Section 9.21. CR472n.7.

                                             21
unconstitutional and void; the district court erred as a matter of law in concluding

otherwise; and this Court should dismiss Count II of the indictment.

II.   Count II also must be dismissed because the coercion statute is
      unconstitutionally vague on its face.
      Besides its overbreadth, the coercion statute is fatally unclear about the

conduct it purports to prohibit. CR18,35-41,413-16. The district court reasoned,

erroneously, that because some conduct (such as threats of violence) are clearly

covered by the language of the statute, the language must survive a facial vagueness

challenge.   CR473-78.     But laws regulating speech are measured by stricter

standards of certainty. As with overbreadth, Governor Perry is challenging the

facial vagueness of Sections 36.03(a)(1) and 1.07(a)(9)(F) when read together, not

either standing alone.

      Due process requires that criminal laws be sufficiently clear in two distinct

respects. First, a person of ordinary intelligence must be given a reasonable

opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex.

Crim. App. 1991) (citing Grayned v. Rockford, 408 U.S. 104, 108 (1972)). Second,

the law must establish determinate, explicit guidelines to prevent arbitrary

enforcement by the government. Long, 931 S.W.2d at 287 (citing Grayned, 408 U.S.

at 108-09). Thus, a statute is void for vagueness if it “either forbids or requires the

doing of an act in terms so vague that men of common intelligence must guess as to

                                          22
its meaning and differ as to its application.” Ely v. State, 582 S.W.2d 416, 419 (Tex.

Crim. App. 1979); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1971).

      In addition, when First Amendment freedoms are implicated, as here, the law

must be sufficiently definite to avoid chilling protected expression. Long, 931

S.W.2d at 287-88 (citing Grayned, 408 U.S. at 109). “When a statute is capable of

reaching First Amendment freedoms, the doctrine of vagueness demands a greater

degree of specificity than in other contexts.” Long, 931 S.W.2d at 287 (quoting

Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) (quotation marks omitted)). That

heightened specificity is necessary to preserve the right of free expression because

“[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone

than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408

U.S. at 109 (internal ellipsis and quotation marks omitted). When a vagueness

challenge involves First Amendment considerations, the usual strictures of facial

challenges are relaxed; a criminal statute may be held facially invalid for vagueness

even though it may not be unconstitutional in every application or even as applied to

the defendant’s conduct. Long, 931 S.W.2d at 288 (citing Gooding v. Wilson, 405

U.S. 518 (1972)).

      Sections 36.03(a)(1) and 1.07(a)(9)(F) raise a fundamental and vexing

question for any public servant who wishes to comply with the law: does the

                                         23
statutory language actually prohibit any threat to “take or withhold action as a public

servant” that merely “influences” another public servant? As Hanson recognized,

substantial uncertainty exists about whether this language was truly intended to

embrace threats of lawful action, which are protected by the First Amendment. See

Hanson, 793 S.W.2d at 272-73 (holding this statutory language was

unconstitutionally vague as applied to threats of lawful action). 5 Moreover, a

similar uncertainty exists about whether the statute was intended to cover threats of

unlawful action, as such threats are already addressed by subparts (A) through (E) of

the “coercion” definition in Section 1.07(a)(9).

      Further compounding the vagueness of these sections is the fact that the

offense requires no culpable mental state.         Technically, an offense could be

committed under these provisions whenever a public servant makes a threat “to take

or withhold [official] action,” Tex. Penal Code § 1.07(a)(9)(F), as long as the threat

merely has the effect of “influenc[ing]” another public servant. Id. § 36.03(a)(1).

Indeed, the statutory language does not require that an offender even know about the

threat’s influence on the other public servant. Even a threat of official action

inadvertently heard and acted upon by another public servant could be a criminal

offense.   The absence of a culpable mental state means that citizens cannot
      5
       This uncertainty is heightened now because public servants might reasonably rely on
Hanson’s holding that the First Amendment protects threats of lawful action.

                                           24
determine whether their conduct is prohibited—a plain violation of due process. See

Colautti v. Franklin, 439 U.S. 379, 394 (1979) (statute that criminalized killing a

viable fetus held unconstitutionally vague where no scienter was required with

respect to fetus’s viability, thus creating “a trap for those who act in good faith”);

Long, 931 S.W.2d 285 at 290 (striking down harassment statute as

unconstitutionally vague in part because statutory requirement of a police report

“does little or nothing to inform an ordinary person that his conduct is forbidden

because the subsection contains no culpable mental state”; “[t]he wording of the

statute does not require the defendant to know that the victim has made such a report”

(emphasis in original)).

      The vagueness of the statutory language is underscored by the fact that it

confusingly appears to characterize as “coercion” a threat that does not even rise to

the level of duress. For example, a public official who resigns under duress is

allowed to rescind the resignation and recover the office. Crouch v. Civil Serv.

Comm’n of Tex. City, 459 S.W.2d 491, 494 (Tex. Civ. App.CHouston [14th Dist.]

1970, writ ref’d n.r.e.). Yet had Lehmberg resigned because of Governor Perry’s

alleged veto threat, she could not have shown duress. “[A] threat to do what one has

a legal right to do, as bringing suit in court to enforce a claimed civil right, cannot

constitute duress.”    Willborn v. Deans, 240 S.W.2d 791, 793-95 (Tex. Civ.

                                          25
App.CAustin 1951, writ ref’d n.r.e.) (emphasis added) (holding that sheriff could

not recover his office on grounds of duress after being pressured out of office by

district attorney’s threat to bring removal proceedings). Similarly, a threat that

“delineat[es] the options available” and forces a public official to make “a reasoned

choice between two validly imposed alternatives” is not duress as a matter of law.

Van Arsdel v. Tex. A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980) (holding that

university employee could not recover his position on grounds of duress after

resigning due to university’s threat to bring dismissal proceedings against him based

on accusations of sexual harassment).

      The district court rejected Governor Perry=s facial vagueness challenge to

Sections 36.03(a)(1) and 1.07(a)(9)(F) without adequately addressing the substance

of that challenge. The trial court first noted that the word “threat” has established

dictionary definitions. CR480 (quoting Olivas v. State, 203 S.W.3d 341, 345-46

(Tex. Crim. App. 2006)). Most words do. But these definitions fail to resolve the

fundamental source of vagueness in the statutory language—i.e., whether the “threat”

described in Section 1.07(a)(9)(F) refers to threats of lawful action, unlawful action,

or both. The trial court also cited two cases which held that threat-related language

was not unconstitutionally vague. CR481. But neither of those cases addressed the

language at issue here. Tobias upheld Section 36.03(a)(1) to the extent it involved

                                          26
coercion under Section 1.07(a)(9)(A) (i.e., threats to commit an offense). See 884

S.W.2d at 580-82. Roberts upheld a statute prohibiting theft by means of coercion

under Section 1.07(a)(9)(D) and (E) (i.e., threats of defamation). Roberts, 278

S.W.3d at 790-93. In short, no case has upheld the statutory language at issue

here—Section 36.03(a)(1) to the extent it involves coercion under Section

1.07(a)(9)(F) (i.e., threats to take or withhold official action). And this language is

materially broader—and vaguer—than any of the language in the other subsections

of Section 1.07(a)(9). It does not contain any limitation to threats of “unlawful”

conduct. See Tex. Penal Code § 1.07(a)(48) (defining “unlawful” to mean “criminal

or tortious or both”).

      As discussed above, the only case to address this language held that it was

unconstitutionally vague as applied to threats of lawful conduct. See Hanson, 793

S.W.2d at 273. Hanson expressly declined to reach the question of facial vagueness.

Id. However, because the vagueness identified by Hanson is a pervasive feature of

the statutory language and trenches on First Amendment freedoms to an intolerable

degree, Sections 36.03(a)(1) and 1.07(a)(9)(F) are also facially vague.

      The Legislature has enacted other statutes addressing threats against public

servants that do not suffer from these vagueness defects, if only because they require

the threats to be “unlawful.” See, e.g., Tex. Penal Code § 36.06(a) (offense to

                                          27
“intentionally or knowingly . . . threaten to harm another by an unlawful act” in

retaliation for public service or to interfere with public service (emphasis added)).

But the Legislature failed to do so when it last amended and melded Sections

36.03(a)(1) and 1.07(a)(9)(F) in 1994. For the reasons given above, these provisions

are unconstitutionally vague on their face, and Count II of Governor Perry=s

indictment is void and must be dismissed.

III.   Governor Perry’s other constitutional challenges are all cognizable in a
       pretrial habeas proceeding.
       Although the district court addressed the merits of the facial overbreadth and

vagueness challenges discussed above, the court held that the other constitutional

attacks in Governor Perry’s Application were merely as-applied challenges and thus

not cognizable in a pretrial habeas proceeding.       CR468-73.      This was error.

CR14-16,41-42,48-49,409,417-19.

       Governor Perry acknowledged in both his writ and his consolidated reply that

a true as-applied challenge to the constitutionality of a statute usually cannot be

decided in a pretrial writ. CR41-42,417-19. But although most of Governor Perry’s

challenges are “as applied” in the sense that they only attack certain applications of

the statutes, they are the functional equivalent of facial challenges. They rely only

on the indictment and the statutes, not the underlying facts or circumstances to be

proven at a hearing or trial, and so should be cognizable in a pretrial habeas

                                         28
proceeding. Moreover, because Governor Perry seeks to vindicate constitutional

rights and powers that are essential to the efficacy of his former office and of

paramount public importance, his claims should be recognized as cognizable and

addressed before trial. Any other result would compromise if not vitiate the

constitutional rights and powers he seeks to vindicate. The mere act of deferring

resolution until trial is constitutionally offensive. This Court should therefore

address the merits of Governor Perry’s claims now and, after doing so, dismiss the

indictment.

      Whether an issue can be raised in a habeas petition is a legal determination

that appellate courts review de novo. See Ex parte Brown, 158 S.W.3d 449, 453

(Tex. Crim. App. 2005); see also State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.

App. 2004) (standard of review is de novo for legal determinations that do not turn

on evaluation of witness’s credibility or demeanor or on disputed facts). De novo

review is also appropriate for questions concerning the application of law to facts

“when a court confronts important, clearly defined issues of first impression.”

Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997).

      A.      General principles of cognizability
      According to the Court of Criminal Appeals, “[p]retrial habeas should be

reserved for situations in which the protection of the applicant’s substantive rights or


                                          29
the conservation of judicial resources would be better served by interlocutory

review.” Ex parte Weise, 55 S.W.3d 617, 620 (Tex. 2001). The writ is generally

available in three categories of cases:

      First, the accused may challenge the State’s power to restrain him at all.
      Second, the accused may challenge the manner of his pretrial restraint,
      i.e., the denial of bail or conditions attached to bail. Third, the accused
      may raise certain issues which, if meritorious, would bar prosecution or
      conviction.

Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (footnotes omitted).

      The Court of Criminal Appeals has imposed prudential, but not

constitutionally-mandated, limits on the issues that are cognizable in a pretrial

habeas proceeding:

      • Pretrial habeas should not be entertained when there is an adequate
        remedy by appeal. It should be reserved for situations in which the
        protections of the applicant’s substantive rights or the conservation
        of judicial resources would be better served.6

      • Because an interlocutory appeal is an extraordinary remedy,
        appellate courts need to be careful to ensure that a pretrial writ is
        “not misused” to secure pretrial appellate review of matters that
        “should not be put before appellate courts at the pretrial stage”—a
        variation of ripeness.7

      • Aside from double-jeopardy issues, pretrial habeas is not
        appropriate when the question presented, even if resolved in the

      6
          Weise, 55 S.W.3d at 619-20.
      7
        Ex Parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (quoting Smith, 178
S.W.3d at 801); see also Weise, 55 S.W.3d at 619-21.

                                          30
              applicant’s favor, would not result in immediate release from
              restraint.8

        • Pretrial habeas should not be used when a complete factual record is
          required to address the claim, which includes most as-applied
          challenges to the constitutionality of the statute upon which the
          offense is based.9

        Issues the Court has held to be cognizable in pretrial habeas include the

following:

        • A claim of double jeopardy because, if granted, the trial would be
          barred, resulting in a conservation of judicial resources, and the
          right would be denied unless resolved prior to trial.10

        • A claim of collateral estoppel because, if granted, the relitigation of
          the issue would be barred, although it may not bar an actual trial.11

        • A claim that the face of the indictment demonstrates that any
          prosecution is barred by the statute of limitations, unless this is a
          “reparable” pleading defect.12



        8
            Weise, 55 S.W.3d at 619; Doster, 303 S.W.3d at 724.
        9
          Ellis, 308 S.W.3d at 79; see also Lykos, 330 S.W.3d at 911 (“An ‘as applied’ challenge is
brought during or after a trial on the merits, for it is only then that the trial judge and the reviewing
courts have the particular facts and circumstances of the case needed to determine whether the
statute or law has been applied in an unconstitutional manner.”).
        10
          Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982); Ex parte Rathmell,
717 S.W.2d 33, 34 (Tex. Crim. App. 1986) (noting that the Supreme Court had made it clear that
an interlocutory appeal of a double jeopardy claim “is not only a proper but a preferred remedy,”
because the right against twice being placed in jeopardy would be “significantly undermined if
appellate review of double jeopardy claims were postponed until after conviction and sentence”).
        11
             Ex Parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim App. 2002).
        12
             Weise, 55 S.W.3d at 620; see also Smith, 178 S.W.3d at 804.

                                                  31
       • A claim of illegal restraint by an order deferring adjudication of
         guilt.13

       • A claim that the statute upon which the indictment is based is
         unconstitutional on its face.14

       • A claim that a statute cannot be constitutionally applied to the facts
         alleged on the face of the indictment.15

       At least three main factors underlie the Court’s evolving jurisprudence

regarding cognizability in pretrial habeas. The first factor is whether there is an

adequate remedy at law, which also considers whether the right at stake would be

undermined unless the issues were cognizable in pretrial habeas. See Weise, 55

S.W.3d at 619-20; Ex parte Robinson, 641 S.W.2d 552, 554-55 (Tex. Crim. App.

1982). The second factor, which is closely tied to the first, is judicial economy. See

Smith, 178 S.W.3d at 802 (“There is no point in wasting scarce judicial and societal

resources or putting the defendant to great expense, inconvenience, and anxiety if

the ultimate result is never in question.”).16 The third factor is whether resolution of

the question presented, if resolved in favor of the applicant, would result in the

       13
            Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998).
       14
          See Weise, 55 S.W.3d at 620 n.17 (noting that this type of an attack involves a challenge
to the trial court’s power to proceed); Elliott, 973 S.W.2d at 738-43 (separation-of-powers
challenge).
       15
            Ex parte Boetscher, 812 S.W.2d 600, 601-04 (Tex. Crim. App. 1991).
       16
         But see Doster, 303 S.W.3d at 725 (noting that the Court has “never actually resolved
whether [judicial economy], absent a jurisdictional or constitutional defect, would be sufficient to
make a claim cognizable on pretrial habeas”).

                                                32
immediate release of the applicant. See Ex Parte Watkins, 73 S.W.3d 264, 275 (Tex.

Crim App. 2002).

      B.     Governor Perry’s claims are cognizable in a pretrial habeas
             proceeding.
      Except for the facial overbreadth and vagueness challenges discussed above

in Parts I and II, the district court failed to reach the merits of the arguments in

Governor Perry’s Application. This appears to have been a consequence of the

“as-applied” label used by Governor Perry in describing his remaining claims. See,

e.g., CR471-72 (“The trial court is without authority at this pretrial stage of the case

to consider and rule upon the merits of this particular defense because it is clearly

(and expressly stated by Defendant to be) a challenge to the constitutionality of [the

statute] as that statute is being ‘applied’ to this Defendant under this set of facts.”

(emphasis in original)).

      The district court erred by giving controlling weight to labels. As a threshold

matter, “the distinction between facial and as-applied challenges is not so well

defined that it has some automatic effect or that it must always control the pleadings

and disposition in every case involving a constitutional challenge.”           Citizens

United v. Fed. Election Comm’n, 558 U.S. 320, 331 (2010); see also United States v.

Nat’l Treasury Emps. Union, 513 U.S. 454, 477-478 (1995) (contrasting “a facial

challenge” with “a narrower remedy”).           More importantly, however, some

                                          33
as-applied challenges are cognizable in a pretrial habeas proceeding. Governor

Perry’s challenges fall into this group for at least two reasons.

       First, Governor Perry’s as-applied challenges can be decided based solely on

the face of the indictment and statutes under which he is charged. Although the

Court of Criminal Appeals has made the broad statement that pretrial habeas “may

not be used to advance an ‘as applied’ challenge,” Ex Parte Ellis, 309 S.W.3d 71, 79

(Tex. Crim. App. 2010), the rationale for this statement only applies when the

challenge “requires a recourse to evidence,” which must await trial. State ex rel.

Lykos v. Fine, 330 S.W.3d 094, 910 & n.22 (Tex. Crim App. 2011) (quoting G. DIX

AND   R. DAWSON, 43A TEX. PRAC. SERIES: CRIMINAL PRACTICE           AND   PROCEDURE

§ 42.254 (Supp. 2005)). When an as-applied challenge can be decided solely by

reference to the indictment and the statute, it stands on the same footing, insofar as

the cognizability principles described above are concerned, as a facial challenge.

See Smith, 178 S.W.3d at 802 (“There is no point in wasting scarce judicial and

societal resources or putting the defendant to great expense, inconvenience, and

anxiety if the ultimate result is never in question.”).                Indeed, such

as-applied-to-the-indictment challenges are not as-applied challenges in the true

sense of the term. See Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009)

(Cochran, J., concurring, joined by Price, Womack, and Johnson, JJ.) (emphasis

                                          34
added) (“A facial challenge is based solely upon the face of the penal statute and the

charging instrument, while an applied challenge depends upon the evidence

adduced at a trial or hearing.” (emphasis added)); see also CR417-418.

       The Court of Criminal Appeals has recognized the pretrial cognizability of

as-applied-to-the-indictment challenges. In Ex parte Boetscher, 812 S.W.2d 600

(Tex. Crim. App. 1991), the defendant was charged with criminal nonsupport of his

children, which a statute enhanced to a felony because he resided out of state. Id. at

601.   He brought a pretrial habeas proceeding to challenge the enhancement

provision of the statute on equal-protection grounds “as applied to the unusual

circumstances of his case” (i.e., his out-of-state residence at the time of the offense).

Id. at 603. The indictment specifically stated that “the defendant was then residing

in another state, to-wit: Michigan,” at the time of the offense. Id. at 602. The Court

of Criminal Appeals held that this as-applied-to-the-indictment challenge was

cognizable in pretrial habeas, sustained the challenge, and ordered the indictment

dismissed. Id. at 603-04. The Court expressly declined to consider whether the

statute would be constitutional as applied in other scenarios. Id. at 604 n.8.

       Second, because Governor Perry’s constitutional challenges involve a right

not to be tried, they cannot be adequately resolved by direct appeal after trial.

CR42,417-418. When prosecution of an official violates the doctrine of separation

                                           35
of powers, “the policies underlying that doctrine” require that the affected official

“be shielded from standing trial.” United States v. Rose, 28 F.3d 181, 186 (D.C. Cir.

1994) (quoting United States v. Myers, 635 F.2d 932, 935 (2d Cir. 1980)). Similarly,

the Speech or Debate Clause was designed to protect officials acting in a legislative

capacity “not only from the consequences of litigation’s results but also from the

burden of defending themselves.” Helstoski v. Meanor, 442 U.S. 500, 508 (1979)

(quotation marks omitted) (quoting Dombrowksi v. Eastland, 387 U.S. 82, 85

(1967)); see also Rose, 28 F.3d at 185.17 Governor Perry’s legislative-immunity

defense likewise involves a right not to be tried. See Mitchell v. Forsyth, 472 U.S.

511, 525 (1985) (absolute immunity is “an entitlement not to stand trial”); In re

Perry, 60 S.W.3d 857, 859-60 (Tex. 2001) (legislative immunity “shields legislative

actors not only from liability, but also from being required to testify about their

legislative activities” and “from the burden of defending themselves” (quoting

Dombrowski, 387 U.S. at 85)). Thus, unlike in the ordinary case, the mere pendency

of criminal proceedings is what imperils these constitutional principles, which are
       17
           The Helstoski decision is particularly persuasive authority. The Court of Criminal
Appeals has followed the U.S. Supreme Court’s decision in Abney v. United States in holding that
defendants have a right to a pretrial appeal of double-jeopardy claims. See Robinson, 641 S.W.2d
at 555 (citing Abney v. United States, 431 U.S. 651 (1977)). There is thus every reason to believe
that the Court of Criminal Appeals will follow the U.S. Supreme Court’s Helstoski decision, which
relied upon Abney to hold that government defendants have a right to a pretrial appeal of Speech or
Debate Clause claims. See Helstoski, 442 U.S. at 506 (observing that “[t]he reasoning
undergirding [Abney] applies with particular force here” in the context of Speech or Debate Clause
challenges, which must be vindicated before trial to be effective).

                                               36
designed to safeguard performance of core governmental functions. See Myers, 635

F.2d at 936 (describing the heightened dangers associated with trials of elected

officials, including impairment of representation, irreparable political damage, and

intimidation by political rivals); see also CR42. For this reason, just like a defendant

raising a pretrial double-jeopardy challenge, see Robinson, 641 S.W.2d at 555,

Governor Perry has no adequate remedy at law to protect his substantive rights other

than a pretrial habeas proceeding. CR418.

      Because the indictment implicates the powers of the Office of Governor, a

post-trial appeal is an especially inadequate remedy. The public has an acute interest

in the swift resolution of this case so that the current occupant of that office,

Governor Greg Abbott, can discharge his official responsibilities, including use of

the veto power, free from the threat of criminal liability. See Smith v. Flack, 728

S.W.2d 784, 792 (Tex. Crim. App. 1989) (“In some cases, a remedy at law may

technically exist; however, it may be nevertheless so uncertain, tedious, burdensome,

slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.”); cf. In

re Masonite Corp., 997 S.W.2d 194, 198 (Tex. 1999) (adequacy of an appellate

remedy depends in part on the public’s interest in efficient resolution of a dispute

and does not “focu[s] exclusively on whether the parties alone have an adequate

appellate remedy”).

                                          37
      The merits of Governor Perry’s remaining arguments were not reached by the

district court due to its cognizability ruling. As recognized by the district court,

however, the circumstances of this case are “unique” and Governor Perry’s

challenges are “compelling.” CR472. There is no justification for further delaying a

decision on the merits of those challenges. Since these claims seek to bar the trial,

there can be little question that Governor Perry is challenging the power of the

district court to proceed and that, if these claims are resolved in his favor, he would

immediately be released from illegal restraint. The factors guiding the Court of

Criminal Appeals’ cognizability decisions all support the conclusion that Governor

Perry’s as-applied-to-the-indictment challenges are cognizable in a pretrial habeas

proceeding. To the extent the charges are not dismissed on the grounds discussed in

Parts I and II above, Governor Perry asks the Court to hold that all his claims are

cognizable and address his remaining substantive constitutional challenges on the

merits. Only the fullest possible review will protect Governor Perry’s rights,

preserve the powers of his former office, and further the public’s interest in effective

and courageous governance from all our public officials.

IV.   The indictment violates the constitutional separation of powers.
      The district court erred by refusing to dismiss both counts of the indictment as

violations of the Separation of Powers Clause of the Texas Constitution.


                                          38
CR17-19,22-25. Article II, Section 1 of the Texas Constitution mandates a clear

separation of powers among the branches of Texas government:

      The powers of the Government of the State of Texas shall be divided
      into three distinct departments, each of which shall be confided to a
      separate body of magistracy, to wit: Those which are Legislative to one;
      those which are Executive to another; and those which are Judicial to
      another; and no person, or collection of persons, being of one of these
      departments, shall exercise any power properly attached to either of the
      others, except in the instances herein expressly permitted.

Hence, unlike in the federal system, the requirement of separated powers is

explicitly and emphatically set forth in our constitution. “So important is this

division of governmental power that it was provided for in the first section of the

first article of the Constitution of the Republic of Texas, and alone it constituted

article 2 of each succeeding Constitution.” Langever v. Miller, 76 S.W.2d 1025,

1035 (Tex. 1934). The provision “reflects a belief on the part of those who drafted

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

      The courts have long been vigilant in preventing any attempt by one branch of

government to encroach on the authority constitutionally secured to another branch.

Thus, “any attempt by one department of government to interfere with the powers of

another is null and void.” Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App.


                                         39
1987) (quoting Ex parte Giles, 502 S.W.2d 774, 780 (Tex. Crim. App. 1974)). The

Separation of Powers Clause can be violated in two ways:

      (1)    when one branch of government assumes or is delegated a power
             more properly attached to another branch, or

      (2)    when one branch unduly interferes with another branch so that
             the other branch cannot effectively exercise its constitutionally
             assigned powers.
Lo, 424 S.W.3d at 28. A statute that conflicts with any provision of the Texas

Constitution is, of course, void. See Cook v. State, 902 S.W.2d 471, 479 (Tex. Crim.

App. 1995). Claims asserting violations of the Separation of Powers Clause have

been considered in pretrial habeas cases, including by this Court. See, e.g., Ex parte

Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013) (considering but rejecting on

the merits an asserted violation of the Separation of Powers Clause); Ex parte Elliott,

973 S.W.2d 737, 738-43 (Tex. App—Austin 1998, pet. ref’d) (same).

      In this case, the actions of the judicial branch—represented here by the district

judge and the attorney pro tem he appointed—are unduly interfering with the

constitutionally-assigned powers of the executive branch by scrutinizing a

gubernatorial veto and the alleged threat preceding that veto. The power to veto,

including the line-item veto of appropriations, is one of the core duties assigned to a

Texas Governor by our Constitution. Article IV, Section 14 provides in part:

      If any bill presented to the Governor contains several items of
      appropriation he may object to one or more of such items, and approve
                                       40
       the other portion of the bill. In such case he shall append to the bill, at
       the time of signing it, a statement of the items to which he objects, and
       no item so objected to shall take effect.

This language imposes no limits on the Governor’s authority to exercise the veto in

his or her unbounded discretion. As one authority noted: “The veto, particularly the

item veto, is perhaps the most significant of the Texas governor’s constitutional

powers . . . . [B]ecause he has no significant budgetary powers . . . the item veto is

the primary method by which he exercises some control over the amounts and

purposes of state expenditures.” 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION

OF THE      STATE   OF   TEXAS: AN ANNOTATED          AND   COMPARATIVE ANALYSIS 339

(George D. Braden ed. 1977).18

       In exercising the veto power, a Governor acts in a legislative, not an executive,

capacity, and thus is a member of a governing body. See Jessen Assocs., Inc. v.

Bullock, 531 S.W.2d 593, 598 (Tex. 1976) (governor’s “veto power is a legislative

function and not an executive function”); Fulmore v. Lane, 140 S.W. 405, 411 (Tex.

1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893). Nor is this an anomalous or

outmoded view; the veto power is also characterized as a legislative act in the federal

       18
           Indeed, virtually any exercise of the veto power could be criminalized—or at least
harassed with prosecution—under the State’s interpretation of the law. For example, every
exercise of the veto, and particularly the line-item veto, will entail winners and losers. On the
State’s theory, such vetoes could nearly always be construed as a “misuse of government property”
done with “intent to harm another” under Texas Penal Code Section 39.02. At the very least, an
investigation could be opened into virtually every veto.

                                               41
system, Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998), as well as in many other

states.19

        Because the power to veto is so central to the gubernatorial office, and

because nothing in the Texas Constitution or laws permits the judicial branch to

scrutinize a governor’s political decision to veto an appropriation, this is the type of

“political question” that American courts have traditionally declined to review as

nonjusticiable.      See generally Nixon v. United States, 506 U.S. 224 (1993);

Goldwater v. Carter, 444 U.S. 996 (1979); Coleman v. Miller, 307 U.S. 433 (1939);

Luther v. Borden, 48 U.S. 1 (1849). The U.S. Supreme Court has generally

recognized the doctrine in cases with

        a textually demonstrable constitutional commitment of the issue to a
        coordinate political department; or a lack of judicially discoverable and
        manageable standards for resolving it; or the impossibility of deciding
        without an initial policy determination of a kind clearly for nonjudicial
        discretion; or the impossibility of a court’s undertaking independent

        19
           See, e.g., Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012); Barnes v. Secretary of
Admin., 586 N.E.2d 958, 961 (Mass. 1992) (“it is for the Legislature . . . to determine finally which
social objectives or programs are worthy of pursuit, the Governor may properly use his veto power
to accomplish legislative-type goals”) (citation omitted); State ex rel. Cason v. Bond, 495 S.W.2d
385, 392 (Mo. 1973) (“[W]hen the Governor takes part in appropriation procedures [by vetoing
legislation], he is participating in the legislative process . . . .”); State ex rel. Dickson v. Saiz, 308
P.2d 205, 211 (N.M. 1957) (“when the Governor exercises his right of partial veto he is exercising
a quasi-legislative function”); Spokane Grain & Fuel Co. v. Lyttaker, 109 P. 316, 320 (Wash. 1910)
(“In approving and disapproving laws, in the exercise of his constitutional prerogative, the
executive is a component part of the Legislature.”); State ex rel. Wis. Senate v. Thompson, 424
N.W.2d 385, 391 (Wisc. 1988) (“The partial veto power in this state was adopted . . . to make it
easier for the governor to exercise what this court has recognized to be his ‘quasi-legislative’ role,
and to be a pivotal part of the ‘omnibus’ budget bill process.”).

                                                  42
      resolution without expressing lack of the respect due coordinate
      branches of government; or an unusual need for unquestioning
      adherence to a political decision already made; or the potentiality of
      embarrassment from multifarious pronouncements by various
      departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). State courts, including those of Texas,

have had little need to articulate the concept as thoroughly as the U.S. Supreme

Court, but they have likewise consistently declined to decide cases that raise

political questions. The Court of Criminal Appeals has held in the context of parole

decisions that the Governor’s exercise of his discretionary constitutional authority

raises political, not judicial, questions. In Ex parte Ferdin, 183 S.W.2d 466 (Tex.

Crim. App. 1944), the Court refused to entertain jurisdiction over “what is in effect

an appeal from the act of the Governor in revoking the parole,” because courts lack

“power over the acts of the Governor so long as he is within the law and the matter

involved is one of his judgment and discretion in the performance of his duty

assigned to him by the Constitution . . . . Whether or not his acts are harsh, ill advised,

and arbitrary, is not a matter for this court to decide . . . .” Id. at 467-68. See also Ex

parte Pitt, 206 S.W.2d 596, 597 (Tex. Crim. App. 1947) (“The sole arbiter of the

wisdom of the revocation [of the Governor’s conditional pardon] is the Governor.”);

Ex parte Meza, 185 S.W.2d 444, 445 (Tex. Crim. App. 1945) (same).




                                            43
       The Texas Constitution reposes the check on a Governor’s veto power not in

the judicial branch, but in the Legislature and the people. Should either deem veto

decisions to be erroneous or improper, the Texas Constitution provides them a

legislative or political countermeasure. The Legislature may, if it remains in session,

override a gubernatorial veto. Tex. Const. art. IV, § 14. Legislators may refuse to

cooperate with the Governor on subsequent initiatives, including appointments. If

the Legislature concludes that the governor’s actions are sufficiently reprehensible,

the House may impeach and the Senate may try and, upon conviction, remove the

governor from office. Id. art. XV, §§ 1-5. And voters may have an opportunity to

defeat the re-election efforts of a governor whose policy choices they disagree with,

or they can elect legislators who will join in sufficient strength to re-enact vetoed

legislation and override any further veto attempts. These alternatives have sufficient

weight to cause most governors to exercise their veto power sparingly and

deliberately. Allowing a criminal prosecution of a political decision where there is

no allegation of bribery or demonstrable corruption undermines the basic structure

of state government.20


       20
          As discussed below in connection with the Speech or Debate Clause, the Legislature can
criminalize acts of political corruption, including the acceptance of a bribe or a promise of a bribe
in exchange for the exercise of a veto. Such a prosecution does not trigger any of the
separation-of-powers issues that plague this prosecution because the illegal act is the acceptance of
the bribe or the promise of the bribe, not the veto itself.

                                                44
       Thus, the statutes upon which this prosecution is based are void, at least to the

extent that they permit the judicial branch to interfere with Article IV, Section 14 of

the Texas Constitution, in violation of Article II, Section 1. In light of the foregoing,

the Court should hold that Claims 3 and 4 (as to Count 1) and Claims 9 and 10 (as to

Count II) of Governor Perry’s Application are cognizable, sustain these claims on

the merits, and dismiss the indictment.

V.     The indictment violates the Texas Speech or Debate Clause and the
       common-law doctrine of legislative immunity.
       The district court also erred by refusing to dismiss both counts of the

indictment as violations of the Texas Constitution’s Speech or Debate Clause and

the absolute legislative immunity that accompanies it when the Governor is

considering or exercising his veto power. CR18-19,26-30.

       Article III, Section 21 of the Texas Constitution provides that “[n]o member

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

This is Texas’s Speech or Debate Clause, which is similar to the Speech or Debate

Clause in the United States Constitution.21 On the few occasions when Texas courts

have considered the Texas Speech or Debate Clause, they have indicated that it has

the same scope as the federal clause. See Canfield v. Gresham, 17 S.W. 390, 392-93

       21
          Article I, Section 6, Clause 1 of the U.S. Constitution states in relevant part that “for any
Speech or Debate in either House [Senators and Representatives] shall not be questioned in any
other Place.”

                                                 45
(Tex. 1891) (citing Kilbourn v. Thompson, 103 U.S. 168, 204 (1880)); Bowles v.

Clipp, 920 S.W.2d 752, 758 (Tex. App.—Dallas 1996, writ denied); see also Tenney

v. Brandhove, 341 U.S. 367, 375 (1951) (noting common purpose of federal and

state Speech or Debate Clauses, including Texas’s).

      Under federal precedents, the Clause is “read broadly to effectuate its

purposes,” Doe v. McMillan, 412 U.S. 306, 311 (1973), which are “[t]o prevent

intimidation of legislators by the Executive and accountability before a possibly

hostile judiciary,” id. at 316, and to “free[] the legislator from executive and judicial

oversight that realistically threatens to control his conduct as a legislator.” Gravel v.

United States, 408 U.S. 606, 618 (1972). Stated differently, the purpose of the

principle is to secure to every member “exemption from prosecution, for every thing

said or done by him, as a representative, in the exercise of the functions of that

office.” Id. at 660 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (1808) (emphasis added)).

      The Clause originated as a response to the British Crown’s use of criminal

prosecution to harass political opponents in Parliament. See United States v.

Johnson, 383 U.S. 169, 182 (1966). As noted in Johnson, “[t]here is little doubt that

the instigation of criminal charges against critical or disfavored legislators by the

executive in a judicial forum was the chief fear prompting the long struggle for

parliamentary privilege in England and, in the context of the American system of

                                           46
separation of powers, is the predominant thrust of the Speech or Debate Clause.” Id.

The Clause therefore naturally implicates separation-of-powers considerations, as it

aims to “preserve the constitutional structure of separate, coequal, and independent

branches of government.” United States v. Helstoski, 442 U.S. 477, 491 (1979).

      Borrowing from federal analyses, Texas courts have derived from the Clause

a broad doctrine of legislative immunity. See Perry, 60 S.W.3d at 859. Not only are

oral speech and debate protected, but so are written reports and legislative votes. See

Canfield, 17 S.W. at 392-93 (citing Kilbourn, 103 U.S. at 204); McMillan, 412 U.S.

at 311. In fact, the Clause protects all communications that are “an integral part of

the deliberative and communicative processes” involved in a legislative act,

including communications with or among aides. Gravel, 408 U.S. at 625; see also

Perry, 60 S.W.3d at 860-61.

      As mentioned before, legislative activity includes a Governor’s exercise of

the veto power. See Jessen, 531 S.W.2d at 598. But the Clause also protects other

government officials besides the governor when they engage in “legitimate

legislative activity.” Tenney, 341 U.S. at 376; see also Perry, 60 S.W.3d at 860

(holding that the attorney general, comptroller, and land commissioner enjoy

legislative immunity for “legitimate legislative functions” performed while serving




                                          47
on the Legislative Redistricting Board). 22               Legislative activity also includes

executive actions involving budgetary and appropriations matters. See Bogan, 523

U.S. at 55-56 (affording legislative immunity to city mayor for “introduction of a

budget and signing into law an ordinance,” a “discretionary, policymaking decision

implicating the budgetary priorities of the city” and “formally legislative, even

though he was an executive official”); Shade v. U.S. Congress, 942 F. Supp. 2d 43,

48 (D.D.C. 2013) (appropriation of funds is “a core legislative function”).23

       Any criminal prosecution based on this protected legislative activity is barred.

“It is beyond doubt that the Speech or Debate Clause protects against inquiry into

acts that occur in the regular course of the legislative process and into the motivation

for those acts.” United States v. Brewster, 408 U.S. 501, 525 (1972). Thus,

legislative acts may not themselves be criminalized. See Helstoski, 442 U.S. at 488.

       22
           See also 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), for
proposition that absolute legislative immunity extended to a mayor’s veto of an ordinance passed
by a city council).
       23
           To be sure, the protections of the Clause and its accompanying immunity have their
limits. They do not extend to actions that are “no part of the legislative process or function,” even
if performed by legislators. United States v. Brewster, 408 U.S. 501, 526 (1972). For example, a
legislator may be prosecuted for bribery because “acceptance of the bribe is the violation of the
statute, not performance of the illegal promise,” making it “unnecessary to inquire into how [the
legislator] spoke, how he debated, how he voted, or anything he did in the chamber or in
committee.” Id. at 526. See also Mutscher v. State, 514 S.W.2d 905, 914-15 (Tex. Crim. App.
1974) (affirming a state legislator’s conviction for bribery and upholding the bribery statute
because “[t]aking a bribe is, obviously, no part of the legislative process or function; it is not, a
legislative act” (quoting Brewster, 408 U.S. 527)).

                                                48
Nor may a prosecution proceed if it necessarily depends upon evidence of legislative

acts or the motives for them. See Johnson, 383 U.S. at 184-85. In fact, evidence of

a legislative act may not even be introduced at trial in an otherwise permissible

prosecution. Helstoski, 442 U.S. at 487-88. This is because the courts have

recognized that the “level of intimidation against a local legislator arising from the

threat of a criminal proceeding is at least as great as the threat from a civil suit,” so

that legislative immunity “should be extended to criminal proceedings.” State v.

Holton, 997 A.2d 828, 856 (Md. Ct. Spec. App. 2010), aff’d, 24 A.3d 678 (Md. 2011)

(quotations and citation omitted). See also McMillan, 412 U.S. 306, 312-13 (1973)

(“Congressmen . . . are immune from liability for their actions within the ‘legislative

sphere’ even though their conduct, if performed in other than legislative contexts,

would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”

(citation omitted)). Indeed, officials cannot even be required to testify about their

legislative activities, regardless of the context in which their testimony is sought.

Perry, 60 S.W.3d at 858, 861.24


       24
           Other states provide similar protection in civil, criminal, and quasi-criminal matters. See,
e.g., State v. Dankworth, 672 P.2d 148, 151 (Alaska Ct. App. 1983) (even in a criminal case,
“[o]nce it is determined that [a] legislative function . . . was apparently being performed, the
propriety and the motivation for the action taken, as well as the detail of the acts performed, are
immune from judicial inquiry”) (quoting United States v. Dowdy, 479 F.2d 213, 226 (4th Cir.
1973)); D’Amato v. Superior Court, 167 Cal. App. 4th 861 (2008) (“The district attorney
acknowledges the principles of legislative immunity . . . but contends immunity applies only to
civil suits, and does not extend to criminal prosecutions. We disagree.”); State v. Neufeld, 926
                                                 49
       This protection is not eviscerated even by allegations of a bad motive. A

charge that legislative conduct was “improperly motivated” is “precisely what the

Speech or Debate Clause generally forecloses from executive and judicial inquiry.”

Johnson, 383 U.S. at 180. Otherwise, immunity would be held hostage to “a

conclusion of the pleader” or “a jury’s speculation as to motives.” Bogan, 523 U.S.

at 54 (observing that the Court had applied immunity even when a legislator

“singled out the plaintiff for investigation in order to intimidate and silence the

plaintiff and deter and prevent him from effectively exercising his constitutional

rights” (citing Tenney, 341 U.S. at 377)). “[I]t is ‘not consonant with our scheme of

government for a court to inquire into the motives of legislators.’” Perry, 60 S.W.3d

at 860 (quoting Bogan, 523 U.S. at 55). Simply put: “The claim of an unworthy

purpose does not destroy the privilege.” Tenney, 341 U.S. at 377. The remedy for

those who disagree with a veto, no matter how earnestly, is political, not judicial.25


P.2d 1325, 1337 (Kan. 1996) (“Congressmen . . . are immune from liability for their actions within
the legislative sphere . . . even though their conduct, if performed in other than legislative contexts,
would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.” (internal
quotation marks omitted)); Holton, 997 A.2d at 851 (“we hold that, as a matter of common law,
local legislators may invoke that same privilege in a criminal prosecution”); Irons v. R.I. Ethics
Comm’n, 973 A.2d 1124, 1131 (R.I. 2009) (“as long as [a legislator’s] challenged actions, stripped
of all considerations of intent and motive, were legislative in character, the doctrine of absolute
legislative immunity protects them from such claims”—there, an ethics agency enforcement
action).
       25
          In Bogan, the Supreme Court held that the acts of introducing, voting for, and signing an
ordinance eliminating the government office held by a health department administrator, when
“stripped of all considerations of intent and motive,” were in fact “legislative” because the
                                                  50
       For these reasons, attempts to convert inescapably political disputes into

criminal complaints must be foreclosed at the outset. A number of federal cases

have required dismissal of grand-jury indictments premised on privileged Speech or

Debate materials, thus barring a trial that would require the government to introduce

evidence of privileged Speech or Debate materials. For example, in United States v.

Swindall, 971 F.2d 1531 (11th Cir. 1992), a former congressman was prosecuted for

committing perjury before a grand jury. Id. at 1534. The central allegation was that

he lied to the grand jury about his knowledge of various money-laundering statutes.

Id. at 1535-37. To prove his knowledge, the prosecution introduced evidence before

the grand jury and at trial about the congressman’s activities in Congress, including

his activity on a banking committee. Id. at 1539-40. The court of appeals reversed

the congressman’s conviction and held that the prosecution violated the Speech or

Debate Clause for two reasons: (1) “the AUSA[] question[ed] [the congressman]

before the grand jury about his committee memberships” in an effort to show his

knowledge of money-laundering statutes, and (2) “reference [was] made to [the

congressman’s] committee memberships both in the grand jury proceedings and at

trial.” Id. at 1543. The court held that “the remedy for the violations of the privilege

“ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of
the city.” 523 U.S. at 55. Governor Perry’s decision to veto an item of appropriation and any
announcement by his staff of his intent most certainly reflects a similar “discretionary,
policymaking decision implicating the budgetary priorities” of Texas.

                                               51
is dismissal of the affected counts.” Id. at 1543. See also Johnson, 383 U.S. at 185

(holding that Speech or Debate material was improperly presented to the grand jury

and ordering a new trial “purged of elements offensive to the Speech or Debate

Clause”); Brewster, 408 U.S. at 526-27 (holding that, only because a conviction in

that case could be sustained without “inquir[y] into the [legislative] act or its

motivation,” could an indictment of a congressman which referred to legislative acts

stand, as “[t]o make a prima facie case under this indictment, the Government need

not show any act of [Brewster] subsequent to the corrupt promise for payment,” i.e.,

a bribe).26

       These principles mandate dismissal of both counts of the indictment against

Governor Perry. Count I is predicated upon a legislative act of Governor Perry—the

veto—and Count II involves the Governor’s alleged discussions regarding the

anticipated legislative act and its announcement (i.e., the threat of a veto). The

indictment therefore necessarily seeks to impose criminal liability for, and compel

evidence related to, acts that are privileged by the Speech or Debate Clause and

legislative immunity.


       26
          Dismissing an indictment that violates the federal Speech or Debate Clause is also
supported by United States v. Kolter, 71 F.3d 425 (D.C. Cir. 1995); United States v. Rostenkowski,
59 F.3d 1291 (D.C. Cir. 1995); United States v. Zielezinski, 740 F.2d 727 (9th Cir. 1984); United
States v. Beery, 678 F.2d 856 (10th Cir. 1982); and United States v. Renzi, 686 F. Supp. 2d 956
(D. Ariz. 2010).

                                               52
       In light of the foregoing, the Court should uphold the cognizability of Claims

5, 6, and 7 (as to Count 1) and Claim 11 (as to Count II) of Governor Perry’s pretrial

habeas application, sustain those claims on the merits, and dismiss both counts of the

indictment.

VI.    The abuse-of-official-capacity statute is unconstitutionally vague
       as applied to the veto alleged on the face of the indictment.
       The district court further erred by refusing to dismiss Count I of the

indictment based on Claim 10 of Governor Perry’s habeas petition. CR46-48.

Count I is based on the offense of Abuse of Official Capacity. See Tex. Penal Code

§ 39.02(a)(2). 27 In contrast to the coercion statute at Sections 36.03(a)(1) and

1.07(a)(9)(F), the statute defining Abuse of Official Capacity may not be void on its

face. It appears to be tightly-worded with graduated penalties for escalating levels

of wrongdoing. But it has no discernible relationship to any conduct alleged in the

indictment against Governor Perry. Hence, this statute either does not apply to

Governor Perry’s alleged conduct at all or is unconstitutionally vague as applied to




       27
          In pertinent part, Abuse of Official Capacity is defined as follows: “A public servant
commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he
intentionally or knowingly . . . misuses government property, services, personnel, or any other
thing of value belonging to the government that has come into the public servant’s custody or
possession by virtue of the public servant’s office or employment.” Tex. Penal Code
§ 39.02(a)(2).

                                                53
the facts alleged on the face of the indictment. In either case, Count I should be

dismissed.

      Prosecution of Governor Perry under Section 39.02(a)(2) violates all three

related manifestations of the fair-warning requirement. See United States v. Lanier,

520 U.S. 259, 266 (1997). First, the vagueness doctrine would be violated because

there was no fair warning that Governor Perry’s act of vetoing funding for the PIU

would violate that section. Second, the rule of lenity would be violated by an

interpretation of the statute bringing Governor Perry’s veto within the umbrella of

coverage. Third, the prosecution involves an entirely novel construction of these

criminal statutes which neither the text of the statutes nor any prior judicial decision

has fairly disclosed to be within their scope.

      This vagueness is evident in several respects. First, neither Governor Perry

nor any other governor could have had fair notice that he was “misus[ing]

government property” by vetoing a line-item appropriation, the effect of which was

to keep funds in the State Treasury rather than allowing funds to be transferred to

Lehmberg’s office after September 1, 2013. Second, Governor Perry did not have

fair notice that he could somehow have “custody or possession” of all the State funds

proposed to be expended in an appropriations bill merely “by virtue of [his] office or

employment” as governor. As this Court can judicially notice, the funds to be

                                          54
disbursed under the two-year budget commencing September 1, 2013, would not

have been collected by that date, let alone by June 14, 2013, the date of the

misconduct alleged in Count I of the indictment, because Texas uses a

pay-as-you-go system of raising revenue for appropriations. 28 In essence, the

special prosecutor’s interpretation of Section 39.02(a)(2) would turn the Rule of

LenityCthe principle that unclear criminal statutes should be construed in favor of

the defendant, Cuellar v. State, 70 S.W.3d 815, 819 n.6 (Tex. Crim. App. 2002)C on

its head.

       For these reasons, Count I must be dismissed as a violation of due process.

VII. The coercion statute is unconstitutional as applied to the veto threat
     alleged on the face of the indictment.
       The district court also erred by failing to dismiss Count II of the indictment

based on Claims 5 and 7 of Governor Perry’s Application. Count II relies on a

statute that is unconstitutional as applied to the facts alleged on the face of the




       28
             The Texas Constitution requires the Texas Comptroller to provide the Legislature a
biennial revenue estimate (“BRE”) at the beginning of each regular legislative session. See Tex.
Const. art. III, § 49a. Because the Legislature is constitutionally prohibited from appropriating
more revenue than will be collected, the BRE is used by the Legislature to ensure that
appropriations will not exceed the anticipated revenue. Upon final passage of an appropriations
bill, it is sent to the Texas Comptroller to certify whether the anticipated revenue will be sufficient
to cover the appropriations made by the Legislature. See Senate Research Center, Budget 101: A
Guide to the Budget Process in Texas at 3, 10 (Jan. 2013), available at
www.senate.state.tx.us/SRC/pdf/Budget101WebsiteSecured_2013.pdf.

                                                 55
indictment, both on vagueness and First Amendment grounds. CR41-46. Indeed,

this very issue has already been settled by a prior judicial decision.

      A.     As applied, the coercion statute is unconstitutionally vague.
      Twenty-five years ago, in State v. Hanson, 793 S.W.2d 270 (Tex.

App.CWaco 1990, no writ), the court of appeals found a previous but essentially

identical version of Section 36.03(a)(1) unconstitutional as applied to circumstances

very similar to those at issue in the indictment. Hanson, a constitutional county

judge, was indicted for words she allegedly spoke to other public officials. Id. at 271.

Specifically, the county judge was accused of intentionally and knowingly

threatening to “terminate the county’s funding of the salaries of a deputy district

clerk and an assistant district attorney in an attempt to coerce the district judge into

firing the county auditor and the county attorney into revoking a misdemeanant’s

probation.” Id. The court of appeals affirmed the trial court’s dismissal of two

indictments which alleged that Judge Hanson had coerced a public servant, and held

that Section 36.03(a)(1) was unconstitutionally vague as applied to Judge Hanson=s

alleged conduct.

      The court began its analysis by noting that a criminal statute that seeks to

punish threats must “clearly distinguish between an actionable or true threat and

protected speech.” Id. at 272. The definition of “coercion” at the time of Judge


                                          56
Hanson’s conduct, then set forth in Section 36.01(a)(1), is identical to the current

definition in Section 1.07(a)(9), discussed above. Because that definition, then as

now, failed to distinguish between threats of lawful and unlawful official action,

Judge Hanson “had to guess at the meaning of section 36.03(a)(1) and its application

to her official conduct.” Id. The court concluded that, in light of the “impermissibly

vague definition of ‘coercion,’” “these penal provisions violated due process

because they did not give [the county judge] fair notice of what type of threat was

prohibited, failed to provide a clear, objective standard by which those charged with

enforcement could assess her alleged conduct for its legality, and had a potential of

inhibiting the exercise of her protected free expression as a public official.” Id. at

273.

       For the exact same reason, Section 36.03(a)(1) is unconstitutionally vague as

applied to the conduct alleged on the face of the indictment. Governor Perry stands

accused of threatening to issue a veto—a lawful action within his sole discretion

under the Texas Constitution. See Tex. Const. art. IV, § 14. Just like Judge Hanson,

he is accused of threatening to partially cut off funding for a district attorney’s

office—an action within his lawful power—to influence the decisions of another

government employee not under his direct control.           Governor Perry further




                                         57
incorporates by reference his facial vagueness arguments in Part II above, which

also support this as-applied challenge.

      B.     As applied, the coercion statute violates the First Amendment.
      Beyond finding the statute unconstitutionally vague, the court noted that

Judge Hanson’s alleged “threat” was protected by the First Amendment because

“[c]oercion of a lawful act by a threat of lawful action is protected free expression.”

Hanson, 793 S.W.2d at 272. Indeed, such speech, like Governor Perry’s alleged

threat, is core political speech for which First Amendment protection “is at its

zenith.” Meyer, 486 U.S. at 425. Although the Hanson court declined to explicitly

address the question of whether the statute was overbroad, the court’s discussion

clearly indicates that, as applied to the judge’s alleged conduct, the statute prohibited

protected speech in contravention of the First Amendment. The same thing is true in

Governor Perry’s case, and Count II must be dismissed for this reason as well.

      The only difference between the statutory language at the time of Hanson and

now is that Section 36.03(c) currently contains an exception for “members of the

governing body of a governmental entity.” However, this exception does nothing to

solve the vagueness and free-speech problems identified by Hanson. If anything,

the exception strengthens the impression that threats of lawful action are not

prohibited by the statute. Governor Perry further incorporates by reference his facial


                                           58
overbreadth arguments in Part I above, which also support this as-applied

challenge.29

       In short, if Section 36.03(a)(1) makes threats of lawful action illegal, then it

lacks the clarity necessary to withstand a vagueness challenge as applied to

Governor Perry’s alleged conduct, and it certainly violates his First Amendment

right to free speech. Count II of the indictment must therefore be dismissed.

                                          CONCLUSION
       This case raises legal issues of historic significance and will affect Texas

officeholders for many years to come. Governor Perry urges the Court to preserve

the integrity of our core constitutional principles, rather than stand aside as they



       29
            In 1989, the Legislature amended the definition of coercion so that only threats to
“[u]nlawfully take or withhold official action as a public servant” were included, thereby
excluding threats to take lawful action. Hanson, 793 S.W.2d at 273. This amendment, while
inapplicable in Hanson, would have certainly reduced, if not resolved, the vagueness and
free-speech problems identified in Hanson. See Tex. Penal Code § 1.07(a)(48) (defining
“unlawful” to mean “criminal or tortious or both”). However, the word “unlawfully” was deleted
in 1994 when the definition of “coercion” was moved from Chapter 36 to Chapter 1 of the Penal
Code. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, Tex. Gen. Laws 3586-3766. This
deletion was one miniscule part of a “sweeping revision of the Texas Penal Code” that
substantially changed the way offenders were sentenced and created a new category of offense, the
state jail felony. Texas Legislative Council, Facts at a Glance: Comparison of Punishment and
Sentencing Provisions in the 1993 and 2003 Penal Code (2005), available at
http://www.tlc.state.tx.us/pubspol/penalcode.pdf. The 1994 act itself runs to over 200 pages in the
Texas Session Laws. The legislative record contains no debate or explanation for this small
change in the “coercion” definition, much less any attempt to reconcile it with the holding in
Hanson. As far as the record discloses, the change received no meaningful legislative attention.
Whatever the reason for the change, the result was to revert the statute back to its constitutionally
defective state at the time of Hanson.

                                                59
begin to erode under the threat of overreaching indictments. The health of our

republic and the liberty of our citizens depend upon it.

      For all the reasons given above, Governor Perry respectfully prays that this

Court reverse the district court’s denial of relief, sustain the constitutional issues

raised in his Application, and bar trial on both counts of the indictment and/or

dismiss both counts of the indictment. Governor Perry further prays for any other

relief to which he may be entitled.




                                         60
                                 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             San Jacinto Center
600 Travis Street, Suite 7300    98 San Jacinto Blvd., 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


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




                                61
                         CERTIFICATE OF COMPLIANCE
      I hereby certify that this document contains 14,757 words in the portions of
the document that are subject to the word limits of Texas Rule of Appellate
Procedure 9.4(i), as measured by the undersigned’s word-processing software.



                                      /s/ David L. Botsford
                                      David L. Botsford




                            CERTIFICATE OF SERVICE
      This is to certify that a true and complete copy of this document has been
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




                                        62
                                               INDEX TO APPENDIX

                                                                                                                       TAB
Indictment ................................................................................................................. A
Order Denying Defendant’s First Application for
Pretrial Writ of Habeas Corpus ................................................................................. B

Texas Penal Code excerpts ....................................................................................... C
Texas Constitution excerpts ...................................................................................... D

United States Constitution excerpts .......................................................................... E




                                                             63
APPENDIX A
4
5
APPENDIX B
464
465
466
467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
APPENDIX C
                                   TEXAS PENAL CODE § 1.07

                                          DEFINITIONS

(a) In this code:

   ...

   (9)   “Coercion” means a threat, however communicated:

         (A) to commit an offense;

         (B) to inflict bodily injury in the future on the person threatened or another;

         (C) to accuse a person of any offense;

         (D) to expose a person to hatred, contempt, or ridicule;

         (E) to harm the credit or business repute of any person; or

         (F) to take or withhold action as a public servant, or to cause a public servant to take or
              withhold action.

   ...

   (24) “Government” means:

         (A) the state;

         (B) a county, municipality, or political subdivision of the state; or

         (C) any branch or agency of the state, a county, municipality, or political subdivision.

   ...

   (39) “Possession” means actual care, custody, control, or management.

   ...

   (41) “Public servant” means a person elected, selected, appointed, employed, or otherwise
        designated as one of the following, even if he has not yet qualified for office or
        assumed his duties:

         (A) an officer, employee, or agent of government;

         (B) a juror or grand juror; or

         (C) an arbitrator, referee, or other person who is authorized by law or private written
             agreement to hear or determine a cause or controversy; or


                                                  1
      (D) an attorney at law or notary public when participating in the performance of a
          governmental function; or

      (E) a candidate for nomination or election to public office; or

      (F) a person who is performing a governmental function under a claim of right
          although he is not legally qualified to do so.

...

(48) “Unlawful” means criminal or tortious or both and includes what would be criminal or
     tortious but for a defense not amounting to justification or privilege.

...




                                            2
                                  TEXAS PENAL CODE § 36.03

                     COERCION OF PUBLIC SERVANT OR VOTER

(a) A person commits an offense if by means of coercion he:

   (1)   influences or attempts to influence a public servant in a specific exercise of his official
         power or a specific performance of his official duty or influences or attempts to
         influence a public servant to violate the public servant’s known legal duty; or

   (2)   influences or attempts to influence a voter not to vote or to vote in a particular manner.

(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to
    commit a felony, in which event it is a felony of the third degree.

(c) It is an exception to the application of Subsection (a)(1) of this section that the person who
    influences or attempts to influence the public servant is a member of the governing body of a
    governmental entity, and that the action that influences or attempts to influence the public
    servant is an official action taken by the member of the governing body. For the purposes of
    this subsection, the term “official action” includes deliberations by the governing body of a
    governmental entity.




                                                 3
                                  TEXAS PENAL CODE § 39.01

                                         DEFINITIONS

In this chapter:

    (1)   “Law relating to a public servant’s office or employment” means a law that specifically
          applies to a person acting in the capacity of a public servant and that directly or
          indirectly:

          (A) imposes a duty on the public servant; or

          (B) governs the conduct of the public servant.



    (2)   “Misuse” means to deal with property contrary to:

          (A) an agreement under which the public servant holds the property;

          (B) a contract of employment or oath of office of a public servant;

          (C) a law, including provisions of the General Appropriations Act specifically relating
              to government property, that prescribes the manner of custody or disposition of the
              property; or

          (D) a limited purpose for which the property is delivered or received.




                                                4
                                  TEXAS PENAL CODE § 39.02

                             ABUSE OF OFFICIAL CAPACITY

(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm
    or defraud another, he intentionally or knowingly:

   (1)   violates a law relating to the public servant’s office or employment; or

   (2)   misuses government property, services, personnel, or any other thing of value
         belonging to the government that has come into the public servant’s custody or
         possession by virtue of the public servant’s office or employment.

(b) An offense under Subsection (a)(1) is a Class A misdemeanor.

(c) An offense under Subsection (a)(2) is:

   (1)   a Class C misdemeanor if the value of the use of the thing misused is less than $20;

   (2)   a Class B misdemeanor if the value of the use of the thing misused is $20 or more but
         less than $500;

   (3)   a Class A misdemeanor if the value of the use of the thing misused is $500 or more but
         less than $1,500;

   (4)   a state jail felony if the value of the use of the thing misused is $1,500 or more but less
         than $20,000;

   (5)   a felony of the third degree if the value of the use of the thing misused is $20,000 or
         more but less than $100,000;

   (6)   a felony of the second degree if the value of the use of the thing misused is $100,000 or
         more but less than $200,000; or

   (7)   a felony of the first degree if the value of the use of the thing misused is $200,000 or
         more.

(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel
    discounts, or food coupons, are not things of value belonging to the government for purposes
    of this section due to the administrative difficulty and cost involved in recapturing the
    discount or award for a governmental entity.

(e) If separate transactions that violate Subsection (a)(2) are conducted pursuant to one scheme
    or continuing course of conduct, the conduct may be considered as one offense and the value
    of the use of the things misused in the transactions may be aggregated in determining the
    classification of the offense.

(f) The value of the use of a thing of value misused under Subsection (a)(2) may not exceed:



                                                 5
(1)   the fair market value of the thing at the time of the offense; or

(2)   if the fair market value of the thing cannot be ascertained, the cost of replacing the
      thing within a reasonable time after the offense.




                                              6
APPENDIX D
                                      TEXAS CONSTITUTION

                     ARTICLE 2. THE POWERS OF GOVERNMENT

Sec. 1. DIVISION OF POWERS; THREE SEPARATE DEPARTMENTS; EXERCISE OF
POWER PROPERLY ATTACHED TO OTHER DEPARTMENTS. 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.



                        ARTICLE 3. LEGISLATIVE DEPARTMENT

Sec. 21. WORDS SPOKEN IN DEBATE. No member shall be questioned in any other place
for words spoken in debate in either House.



                         ARTICLE 4. EXECUTIVE DEPARTMENT

Sec. 1. OFFICERS CONSTITUTING THE EXECUTIVE DEPARTMENT. The Executive
Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of
the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts,
Commissioner of the General Land Office, and Attorney General.

...

Sec. 9. GOVERNOR’S MESSAGE AND RECOMMENDATIONS; ACCOUNTING FOR
PUBLIC MONEY; ESTIMATES OF MONEY REQUIRED. The Governor shall, at the
commencement of each session of the Legislature, and at the close of his term of office, give to
the Legislature information, by message, of the condition of the State; and he shall recommend
to the Legislature such measures as he may deem expedient. . . .

...

Sec. 14.          APPROVAL OR DISAPPROVAL OF BILLS; RETURN AND
RECONSIDERATION; FAILURE TO RETURN; DISAPPROVAL OF ITEMS OF
APPROPRIATION. Every bill which shall have passed both houses of the Legislature shall be
presented to the Governor for his approval. If he approve he shall sign it; but if he disapprove it,
he shall return it, with his objections, to the House in which it originated, which House shall
enter the objections at large upon its journal, and proceed to reconsider it. If after such
reconsideration, two-thirds of the members present agree to pass the bill, it shall be sent, with the
objections, to the other House, by which likewise it shall be reconsidered; and, if approved by
two-thirds of the members of that House, it shall become a law; but in such cases the votes of
both Houses shall be determined by yeas and nays, and the names of the members voting for and


                                                 1
against the bill shall be entered on the journal of each House respectively. If any bill shall not be
returned by the Governor with his objections within ten days (Sundays excepted) after it shall
have been presented to him, the same shall be a law, in like manner as if he had signed it, unless
the Legislature, by its adjournment, prevent its return, in which case it shall be a law, unless he
shall file the same, with his objections, in the office of the Secretary of State and give notice
thereof by public proclamation within twenty days after such adjournment. If any bill presented
to the Governor contains several items of appropriation he may object to one or more of such
items, and approve the other portion of the bill. In such case he shall append to the bill, at the
time of signing it, a statement of the items to which he objects, and no item so objected to shall
take effect. If the Legislature be in session, he shall transmit to the House in which the bill
originated a copy of such statement and the items objected to shall be separately considered. If,
on reconsideration, one or more of such items be approved by two-thirds of the members present
of each House, the same shall be part of the law, notwithstanding the objections of the Governor.
If any such bill, containing several items of appropriation, not having been presented to the
Governor ten days (Sundays excepted) prior to adjournment, be in the hands of the Governor at
the time of adjournment, he shall have twenty days from such adjournment within which to file
objections to any items thereof and make proclamation of the same, and such item or items shall
not take effect.




                                                 2
APPENDIX E
                                UNITED STATES CONSTITUTION

FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.



FOURTEENTH AMENDMENT

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

...




                                               1
