                                                                                PD-1067-15
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 10/21/2015 9:09:44 PM
                                                               Accepted 10/22/2015 8:12:16 AM
   October 22, 2015                                                             ABEL ACOSTA
                                                                                        CLERK
                                NO. PD-1067-15
                               IN THE
                 COURT OF CRIMINAL APPEALS OF TEXAS

              EX PARTE JAMES RICHARD “RICK” PERRY,
                            Appellant

      ________________________________________________________

              On Appeal from the 390th Judicial District Court,
            Travis County, Texas, Cause No. D-1-DC-14-100139
      ________________________________________________________

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

THE BUZBEE LAW FIRM                          BAKER BOTTS L.L.P.
Anthony G. Buzbee                            Thomas R. Phillips
State Bar No. 24001820                       State Bar No. 00000102
JPMorgan Chase Tower                         98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300                Austin, Texas 78701-4078
Houston, Texas 77002                         tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com                      Telephone: 512-322-2565
Telephone: 713-223-5393                      Facsimile: 512-322-8363
Facsimile: 713-223-5909

BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040

   ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT
                     Identity of Judge, Parties, and Counsel
      The following is a complete list of the names and addresses of all parties and
counsel in this case.

      Trial Judge: Honorable Bert Richardson, sitting by appointment;
      Court of Criminal Appeals, Supreme Court Building, 201 West 14th
      Street, Austin, Texas, 78701.

      Appellant: Former Governor James Richard “Rick” Perry, c/o
      Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite
      7300, Houston, Texas 77002.

      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
      (Lead Counsel on Appeal).

      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 Judge, Parties, and Counsel...................................................................... i 

Index of Authorities ................................................................................................. iv 

Statement of the Case.................................................................................................1 

Grounds for Review ...................................................................................................3 

Statement of the Facts ................................................................................................4 

         A.        Proceedings in the district court ............................................................4 

         B.        B. Proceedings in the court of appeals ..................................................6 

Summary of the Argument.......................................................................................10 

Argument..................................................................................................................12 

         A.        Introduction .........................................................................................12 

         B.        The court of appeals opinion correctly analyzed and decided
                   Governor Perry’s First Amendment challenges ..................................13 

                   1.       First Amendment Principles .....................................................13 

                   2.       The Statutory Framework .........................................................15 

                   3.       The court of appeals was faithful to this Court’s binding
                            precedents..................................................................................18 

                   4.       Section 36.03(a)(1), as it incorporates the definition of
                            “coercion” from Section 1.07(a)(9)(F), implicates the
                            First Amendment.......................................................................20 

                   5.       The State’s arguments that the statutes do not implicate
                            the First Amendment are without merit ....................................20 

                            a.        The State’s cases are distinguishable .............................21 

                            b.        The court of appeals was correct that Governor
                                      Perry did not lose his First Amendment rights by
                                      holding public office .......................................................25 


                                                             ii
                  6.        Section 36.03(a)(1), as it incorporates the definition of
                            “coercion” from Section 1.07(a)(9)(F), is a content-based
                            restriction on speech..................................................................31 

                  7.        Section 36.03(a)(1), as it incorporates the definition of
                            “coercion” from Section 1.07(a)(9)(F), fails to satisfy
                            “strict scrutiny” .........................................................................33 

         C.       Even if the court of appeals erred in its reasoning, its judgment
                  was correct for other reasons. ..............................................................35 

                  1.        Section 36.03(a)(1), as it incorporates the definition of
                            “coercion” from Section 1.07(a)(9)(F), is overbroad ...............35 

                  2.        The statutory scheme is facially void for vagueness ................46 

Prayer for Relief .......................................................................................................52 

Certificate of Compliance ........................................................................................54 

Certificate of Service ...............................................................................................54 




                                                            iii
                                                   Index of Authorities

                                                                                                                              Page(s)

CASES

All. to End Repression v. City of Chicago,
    742 F.2d 1007 (7th Cir. 1984) .................................................................................................37

Ashcroft v. A.C.L.U.,
   535 U.S. 564 (2002) .................................................................................................................32

Ashcroft v. Am. Civil Liberties Union,
   542 U.S. 656 (2004) ...........................................................................................................14, 15

Bd. v. State,
    No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998,
    pet. ref’d) (not designated for publication) ..............................................................................22

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

Broadrick v. Oklahoma,
   413 U.S. 601 (1973) ...........................................................................................................43, 44

Brown v. Entm’t Merchants Ass’n,
   131 S. Ct. 2729 (2011) .......................................................................................................13, 33

Carey v. Brown,
   447 U.S. 455 (1980) .................................................................................................................24

City of Seattle v. Ivan,
    856 P.2d 1116 (Wash. App. 1993) ...........................................................................................38

Colautti v. Franklin,
   439 U.S. 379 (1979) .................................................................................................................49

Collection Consultants, Inc. v. State,
   556 S.W.2d 787 (Tex. Crim. App. 1977).................................................................................42

Connick v. Myers,
   461 U.S. 138 (1983) .................................................................................................................26

Crouch v. Civil Serv. Comm’n of Tex. City,
   459 S.W.2d 491 (Tex. Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.)....................50




                                                                   iv
Duncantell v. State,
   230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ...............................22, 23

Ely v. State,
    582 S.W.2d 416 (Tex. Crim. App. 1979).................................................................................47

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

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

Garcetti v. Ceballos,
   547 U.S. 410 (2006) .................................................................................................................26

Garrison v. La.,
   379 U.S. 64 (1964) ...................................................................................................................41

Gooding v. Wilson,
   405 U.S. 518 (1972) .................................................................................................................48

Grayned v. Rockford,
   408 U.S. 104 (1972) .................................................................................................................47

Jenevein v. Willing,
   493 F.3d 551 (5th Cir. 2007) ...................................................................................................27

Johanns v. Livestock Mktg. Ass’n,
   544 U.S. 550 (2005) ...........................................................................................................28, 29

Kramer v. Price,
   712 F.2d 174 (5th Cir. 1983) ...................................................................................................47

Long v. State,
   931 S.W.2d 285 (Tex. Crim. App. 1991).....................................................................47, 48, 49

McIntyre v. Ohio Elections Comm’n,
   514 U.S. 334 (1995) .................................................................................................................13

Meyer v. Grant,
   486 U.S. 414 (1988) ...........................................................................................................13, 41

N.A.A.C.P v. Claiborne Hardware Co.,
   458 U.S. 886 (1982) .....................................................................................................23, 24, 37

N.Y. Times Co. v. Sullivan,
   376 U.S. 254 (1964) .................................................................................................................13




                                                                    v
Olivas v. State,
   203 S.W.3d 341 (Tex. Crim. App. 2006)...........................................................................20, 50

Org. for a Better Austin v. Keefe,
   402 U.S. 415 (1971) ...........................................................................................................24, 30

Papachristou v. City of Jacksonville,
   405 U.S. 156 (1971) .................................................................................................................47

People v. Iboa,
   207 Cal. App. 4th 111 (2012) ..................................................................................................39

Phillips v. State,
   401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d) ............................................30, 40

Pleasant Grove City v. Summum,
   555 U.S. 460 (2009) ...........................................................................................................28, 29

Puckett v. State,
   801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) .........................21, 22, 42

R.A.V. v. City of St. Paul,
   505 U.S. 377 (1992) .....................................................................................................13, 19, 33

Reed v. Town of Gilbert, Ariz.,
   135 S. Ct. 2218 (2015) .............................................................................................................32

Reno v. Am. Civil Liberties Union,
   521 U.S. 844 (1997) .................................................................................................................15

Roberts v. State,
   278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d) ............................................42, 51

Sanchez v. State,
   995 S.W.2d 677 (Tex. Crim. App. 1999)...............................................................24, 25, 36, 42

Schaumburg v. Citizens for a Better Env’t,
   444 U.S. 620 (1980) .................................................................................................................43

Sorrell v. IMS Health,
   131 S.Ct. 2653 (2011) ........................................................................................................13, 33

State v. Hanson,
    793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.).........................................37, 45, 46, 48, 51

State v. Johnson,
    ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim. App.
    October 7, 2015) ................................................................................................................18, 19



                                                                   vi
State v. Pauling,
    69 P.3d 331 (Wash. 2003)........................................................................................................39

State v. Robertson,
    649 P.2d 569 (Or. 1982) ..........................................................................................................38

State v. Strong,
    272 P.3d 281 (Wash. App. 2012) .............................................................................................36

State v. Weinstein,
    898 P.2d 513 (Ariz. Ct. App. 1995) ...................................................................................37, 38

Tobias v. State,
   884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ..................................30, 34, 42, 51

U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit,
   624 F. Supp. 68 (N.D. Ill. 1985) ........................................................................................36, 38

United States v. Coss,
   677 F.3d 278 (6th Cir. 2012) ...................................................................................................36

United States v. Jackson,
   180 F.3d 55 (2d Cir. 1999).................................................................................................37, 39

United States v. Playboy Entm’t Grp., Inc.,
   529 U.S. 803 (2000) ...........................................................................................................13, 33

United States v. Stevens,
   559 U.S. 460 (2010) ...............................................................................................14, 20, 44, 45

United States v. Velasquez,
   772 F.2d 1348 (7th Cir. 1985) .................................................................................................37

United States v. Williams,
   553 U.S. 285 (2008) ...........................................................................................................14, 26

Van Arsdel v. Tex. A&M Univ.,
   628 F.2d 344 (5th Cir. 1980) ...................................................................................................50

Virginia v. Black,
   538 U.S. 343 (2003) .....................................................................................................13, 23, 36

Virginia v. Hicks,
   539 U.S. 113 (2003) .................................................................................................................43

Walker v. Tex. Division, Sons of Confederate Veterans, Inc.,
   135 S. Ct. 2239 (2015) .............................................................................................................28




                                                                  vii
Wash. State Grange v. Wash. State Republican Party,
  552 U.S. 442 (2008) .................................................................................................................14

Watts v. United States,
   394 U.S. 705 (1969) .....................................................................................................20, 23, 36

Whimbush v. People,
   869 P.2d 1245 (Colo. 1994) .....................................................................................................38

Willborn v. Deans,
   240 S.W.2d 791 (Tex. Civ. App.—Austin 1951, writ ref’d n.r.e.) ..........................................50

Wood v. Georgia,
  370 U.S. 375 (1962) .................................................................................................................27

Wurtz v. Risley,
  719 F.2d 1438 (9th Cir. 1983) ...........................................................................................36, 38

STATUTES

Tex. Penal Code § 1.07(a)(9)(F) ............................................................................................ passim

Tex. Penal Code § 1.07(a)(41) .......................................................................................................17

Tex. Penal Code § 1.07(a)(48) .....................................................................................21, 39, 43, 51

Tex. Penal Code § 36.03(a)(1) ............................................................................................... passim

Tex. Penal Code § 36.03(c)............................................................................................................18

Tex. Penal Code § 36.06(a)............................................................................................... 39, 42, 52

Tex. Penal Code § 42.07(a)(2) .......................................................................................................42

OTHER AUTHORITIES

Tex. R. App. P. 47.7.......................................................................................................................22

LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32 (2d ed. 1988) ..........................14

U.S. Const. amend. I ......................................................................................................................13




                                                                   viii
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
      COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry),

and pursuant to the Court’s Order of October 7, 2015, presents his brief on the

merits addressing the State’s petition for review, and would respectfully show this

Honorable Court the following:

                               Statement of the Case
      In August 2014, a two-count indictment was returned against Governor

Perry for violating Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II, coercion of public

servant), and 39.02(a)(2) (Count I, abuse of official capacity) of the Texas Penal

Code by threatening to exercise, and then actually exercising, the authority to veto

appropriations vested in the Governor by the Texas Constitution. CR4-5. Ten

days after the indictment, Governor Perry filed an application for pretrial writ of

habeas corpus contesting the legality of his restraint and seeking to bar his

prosecution on both counts, primarily on constitutional grounds. CR11-70.

      After the district court denied relief, CR464-84, Perry appealed to the Third

Court of Appeals, which ordered expedited briefing and denied the State’s request

for oral argument. In a published opinion, that court held that all nine constitutional

challenges to Count I and seven constitutional challenges to Count II were not

cognizable because they were not “facial,” merely “as applied.” Slip Op. at 10-32.

The court then granted relief on Count II because the statute was facially invalid



                                          1
under the First Amendment. Id. at 32-97. The court thus found it unnecessary to

address Perry’s cognizable, facial vagueness challenge to the statute. Id. at 97.

      Governor Perry filed his petition for discretionary review on August 18,

2015, presenting four grounds challenging the decision that Count I was not

cognizable on pretrial habeas. Two weeks later, the State Prosecuting Attorney

filed her petition for discretionary review attacking the court of appeals’ decision

that Count II was facially invalid under the First Amendment. On October 7, 2015,

this Court granted both petitions, set an expedited briefing schedule, and ordered

separate arguments on each petition.




                                          2
                            Grounds for Review
1.   Did the court of appeals incorrectly conflate the tests for First Amendment
     overbreadth and traditional First Amendment facial unconstitutionality?

2.   Applying the definition of “coercion” from Tex. Penal Code § 1.07(a)(9)(F),
     does the Coercion of a Public Servant statute ban a substantial amount of
     constitutionally protected speech relative to its plainly legitimate sweep?




                                      3
                                     Statement of Facts

          A.    Proceedings in the district court
          On August 15, 2014, a Travis County grand jury returned a two-count

indictment against then-Governor James Richard “Rick” Perry alleging that

Governor Perry broke the law by threatening to veto an item of appropriations and

subsequently issuing a veto. CR4-5.1

          Count II, alleging 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,

states:

          Beginning on or about June 10, 2013, and continuing through June 14,
          2013, in the County of Travis, Texas, by means of coercion, to wit:
          threatening to veto legislation that had been approved and authorized
          by the Legislature of the State of Texas to provide funding for the
          continued operation of the Public Integrity Unit of the Travis County
          District Attorney’s Office unless Travis County District Attorney
          Rosemary Lehmberg resigned from her official position as elected
          District Attorney, James Richard “Rick” Perry, intentionally or
          knowingly influenced or attempted to influence Rosemary Lehmberg,
          a public servant, namely, the elected District Attorney for Travis
          County, Texas, in the specific performance of her official duty, to wit:
          the duty to continue to carry out her responsibilities as the elected
          District Attorney for the county of Travis, Texas through the
          completion of her elected term of office, and the defendant and
          Rosemary Lehmberg were not members of the same governing body
          of a governmental entity, such offense having been committed by
          defendant, a public servant, while acting in such an official capacity
1
       Count I, which is not implicated by either of the grounds for review in the State’s petition
for discretionary review, alleges that Governor Perry committed Abuse of Official Capacity
under Section 39.02(a) of the Texas Penal Code. CR4-5. The gist of this count is that Governor
Perry “misused” government property by vetoing funding for the Travis County Public Integrity
Unit (“PIU”). CR4-5.


                                                4
       as a public servant.

CR5. The gist of this charge is that he attempted to “influence” Travis County

District Attorney Rosemary Lehmberg by threatening to veto funding for the PIU.

Id.2

       On August 19, 2014, Governor Perry was processed by the Travis County

Sheriff and released on bond pending trial. CR8-10.

       On August 25, 2014, Governor Perry filed an Application for Pretrial Writ

of Habeas Corpus (the “Application”). He challenged the legality of his restraint

and specifically sought “to bar the prosecution” on both counts. CR11, 49. The

Application presented eleven constitutional claims as to Count II, CR17-19.3

       The district court gave the State almost three months to respond, which it did

on November 7, 2014. CR274. Governor Perry filed a reply on November 17,

2014. 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 II on the ground that the statutory

provisions, read together, criminalize speech protected by the First Amendment


2
       In April 2015, the State conceded that the threat of the veto was “not a true threat.” See
April 27, 2015 Supplemental Clerk’s Record at 88. Furthermore, the district court has interpreted
Count II as alleging a Class A misdemeanor offense, as opposed to a third degree felony as
contended by the State. CR441.
3
       These eleven claims are also set forth in the court of appeals opinion at 7-8.


                                                5
and are facially invalid. CR384-89.

       On January 27, 2015, the district court denied the Application without a

hearing.    CR464-84.      The court rejected Governor Perry’s facial challenges to

Section 36.03(a)(1), as it incorporates the definition of “coercion” contained in

Section 1.07(a)(9)(F).4 The district court, “in an abundance of precaution,” CR475,

applied a strict scrutiny analysis because of the “presumption of invalidity”

associated with a content based restriction on speech, citing Ex parte Lo, 424

S.W.3d 10, 14-18 (Tex. Crim. App. 2013).                CR475.     Despite this heightened

standard, the court held that the provisions were not facially unconstitutional under

the First Amendment or the Fourteenth Amendment. CR474-84.5

       B.     Proceedings in the court of appeals
       Governor Perry timely appealed to the Third Court of Appeals.                       The

constitutional scholars (with some additions) who had filed an amicus curiae brief

in the district court renewed their support of Governor Perry’s prayer for dismissal

of Count II. Amici urged the same two grounds as it had in the district court. On


4
       These challenges were Governor Perry’s claims 1-4 as to Count II.
5
        The court ruled that the remainder of Governor Perry’s constitutional challenges to both
counts were not cognizable in a pretrial habeas proceeding because they supposedly raised
merely as-applied, rather than facial, constitutional challenges. 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 on the mistaken belief that “the court’s hands are tied” under
existing case law regarding cognizability. CR472-73. Furthermore, the district court held that
Governor Perry’s one statutory challenge to Count II was not cognizable in a pretrial habeas
proceeding, CR482, but the district 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

                                               6
July 24, 2015, the court of appeals issued an opinion and judgment.

       The court of appeals began its analysis by construing the challenged statutes,

noting that “it is impossible to determine whether a statute reaches too far without

first knowing what the statute covers.” Slip Op. at 39. The court’s extensive

analysis, id. at 39-61, led it to conclude that Section 36.03(a)(1) was a far more

expansive criminal prohibition on speech than the district court had believed. Id. at

60. It also concluded that “it is this vast breadth that causes section 36.03(a)(1), as it

incorporates paragraph (F), to impinge upon substantial amounts of First

Amendment-protected speech among Texas’s public servants.” Id. at 60-61.

       Then, the court considered whether the speech prohibited by the statutory

scheme was in fact protected by the First Amendment. Id. at 61 et seq. Applying

recognized First Amendment case law, it concluded that the statutory scheme

criminalized “core political speech,” which includes “speech by public servants

regarding their official actions that is aimed at prompting other public servants to

undertake official action.” Id. at 62. Because the First Amendment’s protections

are at their “zenith” for such speech, id., the court rejected the State’s arguments

that public servants like Governor Perry have either no First Amendment rights at

all or limited rights that can be restricted by law. Id. at 63-71. The court also

concluded that none of the historical exceptions to First Amendment protections,


negate statutory exception and granting State leave to amend).


                                               7
such as the exception for speech that is integral to criminal conduct, apply here.

Id. at 71-85.6

       Next, the court addressed whether the statutory scheme’s “impingement” on

First Amendment rights “can be justified.” Id. at 85. Because Section 36.03(a)(1)

“targets speech having a specified content (communicated intent to inflict one of

the six categories of harms enumerated in the ‘coercion’ definition) based on the

communicative impact the threat has or is intended to have (bringing about certain

specified conduct of a public servant),” the court concluded that it “must be

classified as a ‘content-based’ speech prohibition—on its face.” Id. at 85-86. Thus,

the State bore the burden to rebut the presumption of invalidity by showing that the

statutory scheme satisfies the applicable “strict scrutiny” standard. Id. at 86.

       Accordingly, the State had to prove that the statutory scheme “[is]

(1) necessary to serve (2) a compelling state interest and (3) [is] narrowly drawn

(i.e., that it employ[s] the least restrictive means to achieve its goal and there [is] a

close nexus between the government’s compelling interest and the restriction).”

Id. Although the court “assum[ed] without deciding” that the State’s “asserted

interests would rise to the level of ‘compelling,’“ it concluded that “section

6
        The court concluded that “[t]hese kinds of threats are ‘speech incident to criminal
conduct’ only if the basic workings of government are considered criminal conduct, a
proposition we cannot sanction.” Slip Op. at 82. The court noted that the State’s attempt to
characterize “these threats as ‘coercive’“ so as to “displace them from the First Amendment
protections” ran afoul of Supreme Court precedent that “‘offensive’ and ‘coercive’ speech [is]
nevertheless protected by the First Amendment.” Id. at 82 & n.269.


                                              8
36.03(a)(1), as it incorporates paragraph (F)” is not “‘narrowly drawn’ to achieve

those objectives.” Id. at 87. The court reasoned that it “begins to strain even

rational-basis scrutiny to conclude that a statute that goes as far as to criminalize a

public servant’s threat merely to lawfully exercise his delegated powers as a

related consequence of another public servant’s failure or refusal to comply with a

lawful demand for action would protect ‘the integrity’ of government or prevent

‘interference’ with public servants’ performance of their delegated functions.” Id.

at 87-88. Indeed, “[i]f anything, the effect of the statutes in those circumstances

would be to undermine these interests by criminalizing much of the ordinary day-

to-day workings of government. And to the extent the unique circumstances of the

judicial process might justify the prosecution as it would apply in that context,” the

statutory “proscription extends far more broadly.” Id. at 88.

      The court also concluded that Section 36.03(a)(1), as it incorporates

1.07(a)(9)(F), was not “necessary” to effectuate the State’s interests. Id. Noting

Governor Perry’s comparisons to this Court’s opinion in Ex parte Lo, 424 S.W.3d

10 (Tex. Crim. App. 2013), the court “agree[d] that while some applications of

section 36.03(a)(1) and paragraph (F) may be permissible or justified under the

First Amendment, Lo’s rationale would be an additional reason for invalidating the

statute as to other applications.” Id. at 88-89.

      The court then addressed whether the “‘alarming’ breadth” of the statutory



                                           9
scheme, “reaching even a public servant’s declared intention to take or withhold

action lawfully, aimed at bringing about another public servant’s lawful action that

the first public servant could lawfully demand or require,” id. at 88, could be saved

by any “reasonable narrowing construction.”         Id. at 91.   Finding a plausible

narrowing construction to be legally untenable, id. at 89-96, the court held that

“section 36.03(a)(1), as it incorporates paragraph (F) of the Penal Code’s

‘coercion’ definition, is facially invalid under the First Amendment and is thus

unenforceable.” Id. at 97. And “[b]ecause this holding entitles Perry to habeas

relief with respect to Court II of the indictment,” the court decided that it “need not

address his remaining arguments.” Id.

                            Summary of the Argument
      The court of appeals correctly analyzed and decided Governor Perry’s First

Amendment challenges to Section 36.03(a)(1), as it incorporates the definition of

“coercion” in Section 1.07(a)(9)(F): a “threat, however communicated” “to take or

withhold action as a public servant.” The court properly concluded that the statutory

scheme criminalizes all statements by public servants that threaten lawful action and

merely have the effect of influencing another public servant. The court properly

found this scheme criminalized only speech, not conduct. And it also properly

concluded that the statutory scheme penalizes not unprotected speech, but “core

political speech” for which First Amendment’s protections are at their “zenith.”



                                          10
      The State’s arguments that the statutory scheme does not implicate the First

Amendment were properly rebuffed by the court of appeals. The speech

criminalized by the statutes does not fall into any historical exception to the First

Amendment. The statutory scheme does not require a “true threat:” “statements

where the speaker means to communicate a serious expression of an intent to

commit an act of unlawful violence.” Nor does it require a threat of “unlawful”

action, and it does not apply to speech that is integral to criminal conduct.

      The court of appeals also properly rejected the State’s arguments that

Governor Perry’s speech was “governmental speech” exempt from the protections

of the First Amendment and that he himself has no First Amendment rights

because he was a public servant.

      Importantly, the appeals court faithfully followed this Court’s prior opinions

by concluding that the statutory scheme was a content-based restriction on First

Amendment rights. Recognizing the presumption of invalidity and corresponding

strict scrutiny standard that apply to content-based restrictions, the appeals court

properly found that the statutory scheme was not necessary to serve any state

interests. And before invalidating the statutory scheme, the appeals court properly

examined whether the breadth of its proscriptions are capable of any narrowing

construction. Simply stated, the court of appeals reached an undeniably correct

result, even without addressing Governor Perry’s facial vagueness arguments.



                                          11
                                     Argument

      A.     Introduction
      The State’s grounds for review ask whether the court of appeals erred in

holding that Section 36.03(a)(1), as it incorporates the definition of “coercion”

contained in Section 1.07(a)(9)(F), “is facially unconstitutional under the First

Amendment overbreadth doctrine.” State PDR at 2.

      Governor Perry urges this Court to affirm the judgment of the court of

appeals on precisely the grounds set forth in the court of appeals’ opinion. It

correctly mirrors the analysis used by this Court in its recent pronouncements, and

accurately analyzes the statutory scheme and legal issues attendant to its

conclusion that “section 36.03(a)(1), as it incorporates paragraph (F) of the Penal

Code’s ‘coercion’ definition, is facially invalid under the First Amendment and is

thus unenforceable.” Slip Op. at 97. Additionally, since the court of appeals

declined to address Governor Perry’s facial vagueness claims, this Court should

consider whether the grant of discretionary review was improvidently granted

since, if this Court reverses the court of appeals’ decision on Count II, the merits of

the unaddressed, cognizable and dispositive facial vagueness challenge will still

have to be addressed by this Court or the court of appeals.




                                          12
      B.    The court of appeals opinion correctly analyzed and decided
            Governor Perry’s First Amendment challenges

            1.     First Amendment Principles
      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 her office, 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, 425 (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.” N.Y. 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 Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014)

(citing Sorrell v. IMS Health, 131 S.Ct. 2653, 2667 (2011) (quoting R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992)) and Brown v. Entm’t Merchants Ass’n, 131

S. Ct. 2729 at 2738 (2011) (citing United States v. Playboy Entm’t Grp., Inc., 529


                                        13
U.S. 803, 818 (2000); Ex parte Lo, 424 S.W.3d at 15.

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

of circumstances exists under which [the statute] would be valid,” or that the

statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S.

460, 472 (2010) (citations and quotation omitted). 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 is subject to “strict

scrutiny” and will be invalidated unless it constitutes the “least restrictive means”

of effectuating a “compelling [state] interest.” Ashcroft v. Am. Civil Liberties



                                         14
Union, 542 U.S. 656, 658, 666 (2004); Ex parte Lo, 424 S.W.3d at 19; Ex parte

Thompson, 442 S.W.3d at 348.        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 will not be as

effective as the challenged statute.” Ashcroft, 542 U.S. at 665 (quoting Reno v.

Am. Civil Liberties Union, 521 U.S. 844, 874 (1997).

            2.     The Statutory Framework
      The first step in evaluating Governor Perry’s facial challenges requires an

examination of the relevant statutory language. Section 36.03, entitled “Coercion

of Public Servant or Voter,” provides the following:

      (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


                                        15
      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.

      Coercion, as used in Section 36.03(a)(1), is defined in Section 1.07(a)(9) of

the Texas Penal Code as follows:

      (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.

      The term “public servant” is defined in Section 1.07(a)(41) of the Texas

Penal Code as follows:

      (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



                                         16
             (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.

      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,” to

do six distinct things, including “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)(F). “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). Against this expansive sweep, the coercion statute contains a single,

narrow exception, for “member[s] of the governing body of a governmental entity”



                                         17
when they take “official action.” Id. § 36.03(c).

             3.    The court of appeals was faithful to this Court’s binding
                   precedents.
      The court of appeals’ opinion closely mirrors the structure and legal analysis

utilized by this Court in Ex parte Lo, supra, Ex parte Thompson, supra, and State

v. Johnson, ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim.

App. October 7, 2015).      That opinion correctly applies well established First

Amendment jurisprudence from these and other cases.

      Lo involved a pretrial writ of habeas corpus alleging that a specific

subsection of the felony offense of online solicitation of a minor (Section

33.0121(b) of the Texas Penal Code) was facially unconstitutional. 424 S.W.2d at

14-15. Lo determined that the statute was a “content-based” regulation of speech,

and therefore applied the constitutionally required presumption of invalidity and

the corresponding “strict scrutiny” test. Id. The Court concluded that the statute is

“overbroad because it prohibits a wide array of constitutionally protected speech

and is not narrowly drawn to achieve only the legitimate objective of protecting

children from sexual abuse.” Id. at 14.

      Thompson also involved a pretrial writ of habeas corpus alleging that a

specific subsection of the improper photography statute (Section 21.15(b)(1) of the

Texas Penal Code) was facially unconstitutional in violation of the First

Amendment. 442 S.W.3d at 331. This Court agreed, holding that the statute was a


                                          18
“content-based” regulation of speech that did not satisfy “strict scrutiny” because it

is not “the least restrictive means of achieving the compelling government interest

in question.” Id. at 348-349. The Court then, out of “an abundance of caution,”

engaged in an overbreadth analysis and concluded that the statute was substantially

overbroad. Id. at 349-351.

       In Johnson, this Court followed an approach similar Lo and Thompson in

striking down the flag-destruction statute, Section 42.11 of the Texas Penal Code,

as facially invalid on its face because it is unconstitutionally overbroad in violation

of the First Amendment. Johnson, 2015 WL 5853115, at *2.

       The court of appeals reached the correct result under Lo, Thompson and

Johnson. As in those cases, the court of appeals determined that the statutory

scheme was content-based, and then applied “strict scrutiny” to find it facially

invalid because it was not sufficiently narrowly drawn to achieve any legitimate

objectives behind them. Thus, far from conflating legal concepts,7 as the State’s

petition for discretionary alleges,8 the court of appeals correctly analyzed the First


7
        In R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992), the Supreme Court granted
certiorari to examine petitioner’s claim that the St. Paul ordinance “violat[es] overbreadth ...
principles of the First Amendment. The Court elected not to engage in an traditional overbreadth
analysis, observing that petitioner had advanced “not just a technical ‘overbreadth” claim—i.e., a
claim that the ordinance violated the rights of too many third parties,” but also “included the
contention that the ordinance was ‘overbroad’ in the sense of restricting more speech than the
Constitution permits, even in its application to him, because it is content based.” The Court
concluded “that the ordinance is facially unconstitutional in that it prohibits otherwise permitted
speech solely on the basis of the subjects the speech addresses.” Id.
8
       The State claims that “whether the statute is content based never enters into overbreadth

                                               19
Amendment implications of Section 36.03(a)(1), as it incorporates Section

1.079(a)(9)(F).

               4.     Section 36.03(a)(1), as it incorporates the definition of
                      “coercion” from Section 1.07(a)(9)(F), implicates the First
                      Amendment.

       “Coercion” is defined as a “threat,” “however communicated,” to do or

perform one or more of the six types of actions defined in 1.07(a)(9)(A-F). While

the term “threat” is not statutorily defined, this Court has previously defined “threat”

as “a communicated intent to inflict harm or loss on another or on another’s

property.” Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). It is

therefore clear that the Legislature has limited “coercion” to speech, excluding

conduct from the statute’s purview.             Thus, the statute on its face necessarily

implicates the First Amendment. Watts v. United States, 394 U.S. 705, 706-07 &

n.* (1969) (written or oral threats “to take the life or to inflict bodily harm upon the

President” or others in line of succession “makes criminal a form of pure speech”).

               5.     The State’s arguments that the statutes do not implicate the
                      First Amendment are without merit.
       The State argues that the court of appeals erred at the outset because

coercive threats are outside the protection of the First Amendment. This claim is


analysis, State PDR at 5, but this is inaccurate. In United States v. Stevens, 559 U.S. 460 (2010),
relied upon by the State in its petition, the Supreme Court invalidated the animal cruelty statute
because it was “substantially overbroad,” 559 U.S. 482, but it did so only after concluding that
the statute was “presumptively invalid” because it “explicitly regulates expression based on
content.” Id. at 468. The Court’s overbreadth analysis compared the presumptively

                                                20
without merit.

       In the court of appeals, the State argued that Governor Perry’s speech was

unprotected because it amounted to a “retaliatory act,” “verbal extortion,” or a

“quid pro quo threat[] made under a display of authority and power.” St. Br.at 6-7.

But the sections under challenge criminalize far more than retaliation, extortion,

and quid pro quo threats. See App.Br. at 10-17.

       The State reads both statutes in isolation to attempt to negate their actual

effect. But when Section 36.03(a)(1) is read, as it must be, in conjunction with

Section 1.07(a)(9)(F), “coercion” need not be illegal, unlawful, tortious, or even a

“true threat.” Read together, the statutes cannot be read narrowly.9

                       a.     The State’s cases are distinguishable.
       The cases cited by the State cannot save these statutes from facial invalidity.

The State’s main authority, Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston

[14th Dist.] 1990, pet. ref’d), addressed both facial and as-applied challenges to the

more narrowly drawn retaliation statute, Section 36.06(a), by a defendant who

“repeatedly stated in no uncertain terms that he would kill [the arresting officer]


impermissible as opposed to the permissible applications of the statute.
9
        Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section
36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined
by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or
tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code §
1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with
Section 1.07(a)(9)(F), covers any and all speech that can be construed as a “threat” if it otherwise
meets the requirements of Section 36.03(a)(1).


                                                21
when he got out of jail.” Id. at 194. The court said that “it is clear that these

statements by [Puckett] could reasonably be interpreted” as a “true threat”

reflecting an “intent to kill or injure,” and hence not protected speech.        Id.

Similarly, Bd. v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—

Austin May 29, 1998, pet. ref’d) (not designated for publication),10 involved a

challenge to the tampering statute, Section 36.05, in conjunction with the narrower

definition of “coercion” in Section 1.07(a)(9)(D), which criminalizes a threat “to

expose a person to hatred, contempt or ridicule.” Id. at *4 (citation and quotation

omitted). Thus, even if this unpublished opinion had any precedential value, it

does not apply to the same statutory scheme involved here. Finally, Duncantell v.

State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d),

involved the rejection of an overbreadth challenge to the “interference with public

duties” statute, Section 38.15(a)(1) of the Texas Penal Code. The Court found that

the defendant engaged in conduct which he knew or should have known would

interrupt, disrupt, impede, or interfere with a peace officer performing a duty

imposed by law, “such as investigating an accident or arresting a criminal suspect.”

230 S.W.3d at 844. That, the court held, was “not expressive conduct protected by

the First Amendment.” Id. (emphasis added). Importantly, the court specifically

noted that Section 38.15(d) “provides that it is a defense to prosecution under the

10
      Board has no precedential value under Tex. R. App. P. 47.7.


                                            22
statute if the interruption, disruption, impediment, or interference alleged consists

of speech only.” Id. at 843 (emphasis added). Accordingly, the court stated “we

must only examine the interference statute’s limitations on conduct to determine if

it restricts a substantial amount of constitutionally protected conduct.” Id. at 844-

45 (emphasis added).

      None of these cases are relevant. Governor Perry was indicted under a

materially different provision of the Penal Code, Section 36.03(a)(1), in

conjunction with the broader definition of “coercion” in Section 1.07(a)(9)(F). But

even if Puckett, Board, and Duncantell supported the State’s markedly narrow

view of First Amendment protections, they would not bind this Court because they

would be irreconcilable with the requirement that only “true threats”—which the

U.S. Supreme Court has defined as “statements where the speaker means to

communicate a serious expression of an intent to commit an act of unlawful

violence”—lack 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, 394 U.S. at 707-08 (no protection for threat to assassinate the President

of the United States).

      Moreover, the State never acknowledges, let alone distinguishes, cases cited

by Perry and expressly relied on by the court of appeals, like N.A.A.C.P v.

Claiborne Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech



                                         23
does not lose its protected character . . . simply because it may embarrass others or

coerce them into action.”       (Emphasis added).       The facts of Claiborne are

particularly instructive. There, a civil-rights boycott organizer warned that boycott

breakers would be “disciplined,” and that “if we catch any of you going into any of

them racist stores, we’re gonna break your damn neck.” Id. at 902. While such

statements “might have been understood as inviting an unlawful form of discipline

or, at least, as intending to create a fear of violence,” id. at 927, they still enjoyed

First Amendment protection because expression on public issues “has always

rested on the highest rung of the hierarchy of First Amendment values.” Id. at 913

(quoting Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Org. for a Better

Austin v. Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were

intended to exercise a coercive impact on respondent does not remove them from

the reach of the First Amendment.         Petitioners plainly intended to influence

respondent’s conduct by their activities; that is not fundamentally different from

the function of a newspaper.” (Emphasis added)).

      Furthermore, the State relies on language in Sanchez v. State, 995 S.W.2d

677, 688 (Tex. Crim. App. 1999), noting that “verbal extortion ‘has no more

constitutional protection than that uttered by a robber while ordering his victim to

hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official

oppression by sexual harassment under Section 39.03(a)(3)—merely analogized



                                          24
sexual harassment by a public servant to official extortion and bribery on the

ground that “the receipt of someone’s submission to sexual conduct” was

comparable to “the use of official power to obtain a benefit to which the official

was not otherwise entitled” in the form of “money or tangible property.” 995

S.W.2d at 688.11 Count II of the indictment does not allege extortion, bribery, or

receipt of a personal benefit. More importantly, any such allegations would be

irrelevant to Governor Perry’s facial challenge because the plain language of

Section 36.03(a)(1) and Section 1.07(a)(9)(F) extends far beyond extortionate

threats or bribery.

                      b.     The court of appeals was correct that Governor Perry
                             did not lose his First Amendment rights by holding
                             public office.
       The State also advances the novel claim that Governor Perry cannot make a

facial overbreadth challenge to Section 36.03(a)(1) and Section 1.07(a)(9)(F)

because, in exercising his official duties as Governor of Texas, he enjoyed no First

Amendment rights. See St.Br. at 8-10. The State cites two recognized instances of

prohibition: (1) certain government-employee speech, which is subject to no

greater First Amendment protection than the speech of private employees; and

11
        In Sanchez, this Court commented that if the official oppression statute were to cover
“conduct welcomed by the recipient in a corrupt bargain,” then such conduct could also be
prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 684 & n.5. Similarly, if
there were any facts supporting the State’s use of its colorful metaphors such “retaliatory act,”
“verbal extortion,” or “quid pro quo threat” then the State could have sought an indictment under
other, arguably applicable statutes.


                                               25
(2) the concept of government speech itself. Id. The court of appeals properly

rejected both of these. Slip Op. at 63-71.

      But neither of these principles has anything to do with criminalizing speech,

much less criminalizing an elected official’s political speech through the

mechanism of an overboard statute. First, from a strictly legal standpoint, facial

overbreadth analysis deals not with the statute as applied to the particular

defendant, but whether “it prohibits a substantial amount of protected speech.”

Williams, 553 U.S. at 292. Governor Perry’s own First Amendment rights are

therefore irrelevant to the resolution of his facial overbreadth challenge.

      With regard to government-employee speech, the State points out that the

First Amendment generally does not protect statements made by public servants in

the course of their employment. St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S.

410, 422 (2006)). But this employee-speech “exception” is not really an exception

at all—it just makes unelected public servants, who are employees, subject to civil

employment-law standards comparable to employees in the private sector. Just

like a private employer, governmental entities “need a sufficient degree of control

over their employees’ words and actions” to ensure the “provision of public

services.” Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143

(1983) (“[G]overnment offices could not function if every employment decision

became a constitutional matter.”).



                                             26
      The rights of those directly selected by the people to govern, such as the

Governor of Texas, are not so limited. Indeed, political speech by elected officials,

whose “relationship with [their] employer [i.e., the people] differs from that of an

ordinary state employee,” “is at the core of the First Amendment.” Jenevein v.

Willing, 493 F.3d 551, 557 (5th Cir. 2007) (Texas Judicial Conduct Commission

violated First Amendment rights by censuring elected judge for public criticism of

attorney practicing in his court). “The role that elected officials play in our society

makes it all the more imperative that they be allowed freely to express themselves

on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395

(1962) (reversing contempt conviction of elected sheriff based on criticism of

court’s grand jury investigation). The Supreme Court has expressly rejected the

idea that the First Amendment protects only the “citizen-critic” and not elected

officials as well. Bond v. Floyd, 385 U.S. 116, 136 (1966) (state legislature

violated elected representative’s First Amendment rights by refusing to seat him

based on his controversial remarks about the Vietnam War).

      The State also errs by characterizing Governor Perry’s alleged threat as

“government speech” exempt from the First Amendment—as if anything uttered

by a government employee, or the Governor himself, can be criminalized without

any First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for this

bizarre and frankly dangerous notion have nothing whatsoever to do with



                                          27
criminalizing speech.       They merely acknowledge that the First Amendment

generally allows the government to communicate its own particular viewpoints

without subsidizing or promoting other viewpoints to the same extent as its own.

See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (city could select

which monuments to place in public park); Johanns v. Livestock Mktg. Ass’n, 544

U.S. 550, 561 (2005) (federal government could choose to spend money promoting

beef consumption).       The Supreme Court recently reaffirmed this doctrine in

Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239

(2015) (Texas could constitutionally exclude from its specialty license plates

SVC’s proposed design featuring the Confederate battle flag).12 But none of these

cases authorize the government to criminalize speech by government employees or

anyone else, must less elected leaders.

       Even if First Amendment protections were somehow withdrawn from

“government speech” as a general proposition, Governor Perry’s alleged threat is

not the sort of officially-sanctioned “government speech” involved in the cited

cases. His statements—which the State in its “bill of particulars” now concedes

were never made directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were

12
       Walker holds that “specialty license plates issued pursuant to Texas’ statutory scheme
convey government speech.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct.
2239, 2246 (2015). The Court stated that because “the government can speak for itself,” and
“[w]hen the government speaks, it is not barred by the Free Speech clause from determining the
content of what it says,” Texas could constitutionally exclude from its license plate SVC’s
proposed design and logo. Id. at 2245-46.


                                             28
merely “implied or disguised,” see St.Br. at xvi—were not presented as the official

viewpoint of the State of Texas, but rather his own viewpoint as the Governor of

Texas.   Cf. Pleasant Grove, 555 U.S. at 473-74 (city spoke through a Ten

Commandments monument when it “took ownership of that monument and put it

on permanent display in a park that it owns and manages and that is linked to the

City’s identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was

government speech because the activities were “prescribed by law in their general

outline” and “developed under official government supervision”). The State wants

to have it both ways: characterizing Governor Perry’s alleged speech as the official

position of the State while at the same time prosecuting him as an individual for

expressing it.

      From its faulty premise that speech by government officials enjoys no First

Amendment rights, the State also concludes that the Legislature can always limit

the speech of its own members without running afoul of the First Amendment,

even if that requires restricting some “incidental” private speech in the process.

St.Br. at 10-11. The State argues that the specific statutory language at issue

merely restricts private speech in order to express the “viewpoint” that “official

speech should not be coerced speech.” Id.

      The State’s apparent argument is that Section 36.03(a)(1) and Section

1.07(a)(9)(F) express a government “viewpoint” and can therefore freely



                                        29
criminalize any private speech made with the intent to influence the speech (or

conduct) of a public official, regardless of the words used, without further First

Amendment concerns. Section 36.03(a)(1), it must be recalled, is applicable to any

citizen, whether that citizen is a public official, a public official acting in his

individual capacity, or a private citizen.13 Thus, under the State’s argument, a

newspaper editorial expressing the personal view of the editor, which was intended

to pressure and have a “coercive impact” on a public servant, could be

criminalized, even though the First Amendment clearly protects such speech. Org.

for a Better Austin, 402 U.S. at 419 (emphasis added).

       The State’s argument also mistakenly assumes that the coercion statute “is

the Texas Legislature regulating its own speech and actions.” St.Br. at 11. But the

State fails to account for the statutory exception of Section 36.03(c), which—far

from regulating the Legislature’s “own speech”—excludes from the purview of

Section 36.03(a)(1) “official actions” taken by “a member of the governing body of

a governmental entity” that are intended to influence another public servant. This

exception reflects a legislative determination that “coercion” by one public servant

against another public servant is not always or even necessarily a crime under


13
        Count II specifically alleges that Governor Perry was “acting in an official capacity as a
public servant.” But the statutory language allows prosecution of a private citizen as well as a
public servant, regardless of whether the public servant is speaking in his public or individual
capacity. See e.g., Tobias v. State, 884 S.W.2d 571, 577 (Tex. App.—Fort Worth 1994, pet.
ref’d); Phillips v. State, 401 S.W.3d 282, 287-89 (Tex. App.—San Antonio 2013, pet. ref’d).


                                               30
Section 36.03(a)(1). Indeed, when the defendant is himself or herself a certain

type of public servant (i.e., “a member of the governing body of a governmental

entity”) and the defendant takes “official action” that “influences or attempts to

influence a public servant” (i.e., the alleged victim of the “coercion”), there is no

crime under Section 36.03(a)(1).       The statutory exception negates the State’s

argument here that the Legislature was attempting to limit its own speech. But

even if the State’s explanation were not so obviously wrong on so many levels, the

State never explains how the Legislature, under the guise of “regulating its own

speech,” could abrogate individual members’ constitutional rights, much less those

of private citizens throughout Texas. Both have the right to say anything to a

public servant as long as it is does not constitute a “true threat.”

      Simply stated, none of the State’s arguments attempting to deflect the impact

of the First Amendment on Section 36.03(a)(1), as it incorporates the definition of

“coercion” from Section 1.07(a)(9)(F), has any merit.

             6.     Section 36.03(a)(1), as it incorporates the definition of
                    “coercion” from Section 1.07(a)(9)(F), is a content-based
                    restriction on speech.
      The coercion statute does not target all threats against a public servant, but

only those with a certain content—i.e., “threat[s] . . . to take or withhold official

action” that “attempt to influence or influence” public servants. Tex. Penal Code

§§ 1.07(a)(9)(F), 36.03(a)(1).     As such, it distinguishes “favored speech from



                                           31
disfavored speech on the basis of the ideas or views expressed” and is clearly

content-based. Ex parte Thompson, 442 S.W.3d at 345; Ex parte Lo, 424 S.W.3d

at 15-14 In the court of appeals, the State itself conceded that Section 36.03(a)(1)

and Section 1.07(a)(9)(F) are content-based restrictions on speech. St. Br. 14-15.

Thus, “strict scrutiny” is the proper standard of review, “because, ‘as a general

matter, the First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or its content.’” Ex

parte Lo, 424 S.W.2d at 16 (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573

(2002)). Under that standard, the statute is presumed invalid. Ex parte Thompson,

442 S.W.3d at 344-345; Ex parte Lo, 424 S.W.3d at 15.

       In the court of appeals, the State disputed that strict scrutiny applied for the

same reasons it proffered that Governor Perry lacked any free speech rights. It

claimed that the presumption of constitutionality applies to the statutes because

“regulating coercive threats by public officials is distinct from regulating purely

political speech by private citizens.” St.Br. at 14-15. And it suggested that strict

scrutiny is inapplicable because “only content-based regulations on private

citizen’s speech would be held presumptively invalid and subject to strict

14
        In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015), the Supreme Court
specifically observed that “a law banning the use of sound trucks for political speech—and only
political speech—would be a content-based regulation even if it imposed no limits on the
political viewpoints that could be expressed.” Reed further compels the conclusion that the
limitation the statutory scheme, proscribing communications by one public official to another
that threaten to take or withhold official action, is a content-based restriction.


                                              32
scrutiny.” St.Br. at 19-20 (emphasis in original). But these attempts to divorce the

protections of the First Amendment from the government are, as has been

discussed above, incorrect.

             7.    Section 36.03(a)(1), as it incorporates the definition of
                   “coercion” from Section 1.07(a)(9)(F), fails to satisfy “strict
                   scrutiny.”
      Under strict scrutiny, a law regulating speech or expression may be upheld

only if it is narrowly drawn to serve a compelling government interest. Ex parte

Thompson, 442 S.W.3d at 344; Ex parte Lo, 424 S.W.3d at 15-16, 19. A statute is

“narrowly drawn” if it uses the least restrictive means of achieving the government

interest.” Ex parte Thompson, 442 S.W.3d at 344; Playboy Entm’t Grp., Inc., 529

U.S. at 813; Ex parte Lo, 424 S.W.3d at 15-16, 19.             Such “content-based

regulations are presumptively invalid, and ‘[i]t is rare that a regulation restricting

speech because of its content will ever be permissible.’” Ex parte Thompson, 442

S.W.3d at 348 (citing Sorrell v. IMS Health 131 S. Ct. 2653, 2667 (2011) (quoting

R.A.V. v. City of St. Paul, 505 U.S. at 382) and Entm’t Merchants Ass’n, 131 S. Ct.

2729 at 2738 (citing Playboy Entm’t Grp., 529 U.S. at 818)).

      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



                                         33
compelling interest in preventing threats of unlawful or criminal acts against public

servants, but 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 constitutionally-protected speech.

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

Crim. App. 2013), in which this Court 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



                                         34
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).

      C.     Even if the court of appeals erred in its reasoning, its judgment
             was correct for other reasons.

             1.    Section 36.03(a)(1), as it incorporates the definition of
                   “coercion” from Section 1.07(a)(9)(F), is overbroad.
      The court of appeals’ judgment was also correct because the statutes forming

the basis for Count II, when read together, are overbroad. See Ex parte Thompson,

442 S.W.3d at 349-351.

      The court of appeals discussed the overbreadth of the statutory scheme

throughout its opinion, but did not formally declare the provisions violative of the

First Amendment overbreadth doctrine. It held only that “section 36.03(a)(1), as it

incorporates paragraph (F) of the Penal Code’s ‘coercion’ definition, is facially

invalid under the First Amendment and is thus unenforceable.” Slip Op. at 97.

      As noted above, a state can outlaw threats of violence against a public



                                         35
servant without raising any First Amendment concerns. “True threats”—which the

U.S. Supreme Court has defined as “statements where the 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, 394 U.S. at 707-08 (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 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



                                         36
may embarrass others or coerce them into action.” Claiborne Hardware Co., 458

U.S. at 886 at 910. Most threats do not fall into the categories of unprotected

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

Amendment. All. 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, 272 (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



                                         37
political action). Even threats to commit 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 a wide range of threats merely intended to induce some action by



                                         38
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, 120-21 (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.15 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 statute also applies to all citizens, even public servants acting in their individual
capacities, who attempt “to cause a public servant to take or withhold action” under the last
clause of Section 1.07(a)(9)(F).


                                               39
       The implications are astounding, as they would render criminal many

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

to fire or demote a government employee unless the employee increased his

productivity. 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 criminal 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.16 The list is virtually


16
       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

                                             40
endless.17 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 plain language 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.

       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


particular police officer and thus influenced which officer a 911 dispatcher sent to the scene).
For example, a government employee who threatened a trespasser and thereby caused a nearby
peace officer to intervene would be a criminal under these provisions.
17
       This list of potential implications was so compelling that the court of appeals
incorporated many of them into its opinion. Slip Op. at 58-60. And while the State’s petition
attempts to distinguish two of them, its petition nevertheless admits that “[s]ome of the court of
appeals’ hypotheticals may be valid.” State PDR at 12.


                                               41
“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 at 192 (quoting former Tex. Penal Code § 36.06(a)).

This Court upheld a harassment statute that 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 that

prohibited extortion i.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.—San Antonio 2008, pet.

ref’d). Finally, this Court upheld a sexual harassment statute that prohibited public

servants from conditioning a right or privilege on submission to sexual advances—

conduct that 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—even those which are not “true threats”—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



                                         42
“unlawfully” take or withhold official action. See Tex. Penal Code § 1.07(a)(48)

(defining “unlawful” to mean “criminal or tortious or both and includes what

would be criminal or tortious but for a defense not amounting to justification or

privilege”).18

       Citing Broadrick v. Oklahoma, 413 U.S. 601 (1973), the State claims the

statutory scheme’s overbreadth has not been demonstrated to be “realistic or

substantial,” because there is “no evidence that in the years since the coercion

statute was enacted, any public servant has been chilled.”               State PDR at 12.

Overbreadth is an “expansive remedy” that has been provided by the Supreme

Court “out of concern that the threat of enforcement of an overbroad law can deter

or ‘chill’ constitutionally protected speech—especially when the overbroad statute

imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citing

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980).

       But the overbreadth doctrine’s concern with “chilling” protected speech

“attenuates as the otherwise unprotected behavior that forbids the State to sanction

moves from ‘pure speech’ toward conduct.” Id. at 124 (citing Broadrick, 413 U.S.

at 615). “To put the matter another way, particularly where conduct and not

merely speech is involved, we believe that the overbreadth of a statute must not


18
        As the district court recognized, Governor Perry intends to assert a “public duty”
justification defense under Texas Penal Code Section 9.21 if this case ever proceeds to trial.
CR472 n.7.


                                             43
only be real, but substantial as well, judged in relation to the statute’s plainly

legitimate sweep.”    Broadrick, 413 U.S. at 615.       This analysis considers “a

statute’s application to real-world conduct, not fanciful hypotheticals, and there

must be a “realistic danger that the statute itself will significantly compromise

recognized First Amendment protections of parties not before the Court. Stevens,

559 U.S. at 485.

      Here,   because    Section    36.02(a)(1),   in   conjunction   with    Section

1.07(a)(9)(F), criminalizes only speech that does not constitute a “true threat,” this

particular statutory scheme has no plainly legitimate sweep. The determination by

the court of appeals that the “extent and nature” of the statutory scheme’s

alarmingly broad proscription on “First Amendment-protected territory” “cannot

merely be left to remedy through future case-by-case adjudication,” Slip Op. at 39,

is a recognition that the statutory scheme criminalizes a substantial amount of

protected speech in absolute terms.       A fortiori, the statutory overbreadth is

“realistic or substantial,” as it includes “core political speech” for which the First

Amendment’s protections are at their “zenith.” Id. at 62.

      Indeed, this is entirely consistent with United States v. Stevens, where the

Supreme Court invalidated the animal cruelty statute because it was “substantially

overbroad.” 559 U.S. 482. But it did so only after concluding that the statute was

“presumptively invalid” because it “explicitly regulates expression based on



                                         44
content.”    Id. at 468.      The Court’s overbreadth analysis examined the

presumptively impermissible applications of the statute and compared them to the

permissible ones, without examining whether there was any “evidence” of a

“chilling” effect on First Amendment rights.

      Finally, the court of appeals recognized the relative absence of criminal

prosecutions under Section 36.02(a)(1) and Section 1.07(a)(9)(F)—at least until

this misguided prosecution—is most probably because of Hanson’s declaration,

twenty-five years ago, that this exact statutory scheme is unconstitutional. Slip Op.

at 90. The State’s argument would seem to stand First Amendment jurisprudence

on its head, upholding the statute on the basis of a lack of “evidence” of an actual

chilling effect when in fact, the statute is aimed only at criminalizing speech

otherwise protected by the First Amendment.

      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. 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



                                         45
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

unconstitutional and void, as well as overbroad. The court of appeals reached the

proper result.

             2.       The statutory scheme is facially void for vagueness
      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.

CR479-82.        But laws regulating speech are measured by stricter standards of

certainty. As with his First Amendment challenges, 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



                                           46
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 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 287-88 (quoting

Kramer v. Price, 712 F.2d 174, 177 (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



                                        47
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 servant19 who wishes to comply with the law: does the

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).20 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


19
        Since the statute also applies to non-public servants, the lack of notice applies to all
citizens regardless of whether they are public servants (and regardless of the capacity in which
they speak).
20
      This uncertainty is heightened now because public servants might reasonably rely on
Hanson’s holding that the First Amendment protects threats of lawful action.


                                              48
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 determine whether their conduct is prohibited—a plain violation of due

process.   See Colautti v. Franklin, 439 U.S. 379, 395 (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



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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.—Houston [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.

App.—Austin 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



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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 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



                                        51
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 “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.

                                 Prayer for Relief
      WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully

prays that this Court affirm the court of appeals’ judgment holding that Section

36.03(a)(1), as it incorporates the definition of “coercion” contained in Section

1.07(a)(9)(F), is facially invalid under the First Amendment, either as an

impermissible content-based restriction or as overbroad. This Court should affirm

the court of appeals’ judgment or, alternatively, hold that discretionary review was

improvidently granted because of the court of appeals’ failure to reach Governor

Perry’s facial vagueness arguments. If this Court reverses the court of appeals



                                         52
holding as to Count II, Governor Perry prays that it engage in a de novo review of

Governor Perry’s facial vagueness arguments since they augment his First

Amendment facial challenges and thereafter order Count II dismissed. If this Court

were both to reverse the court of appeals holding as to Count II and decline to

review the facial vagueness challenge, then this Court should remand the case to

the court of appeals for its consideration of the facial vagueness challenges.



                                       Respectfully submitted,

THE BUZBEE LAW FIRM                     BAKER BOTTS L.L.P.

/s/ Anthony G. Buzbee                   /s/ Thomas R. Phillips
Anthony G. Buzbee                       Thomas R. Phillips
State Bar No. 24001820                  State Bar No. 00000102
JPMorgan Chase Tower                    98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300           Austin, Texas 78701-4078
Houston, Texas 77002                    tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com                 Telephone: 512-322-2565
Telephone: 713-223-5393                 Facsimile: 512-322-8363
Facsimile: 713-223-5909

BOTSFORD & ROARK
/s/ David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040




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                           Certificate of Compliance
      I hereby certify that this document contains 11,072 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
electronically emailed to Lisa McMinn, State Prosecuting Attorney, Michael
McCrum, Attorney Pro Tem, and to Mr. David Gonzalez, Assistant Attorney Pro
Tem on the same date it was electronically filed with the Clerk of the Court of
Criminal Appeals.

                                     /s/ David L. Botsford
                                     David L. Botsford




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