                                                                     November 24, 2015

                                 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 POST-ORAL ARGUMENT SUBMISSION
          IN CONNECTION WITH HIS BRIEF ON THE MERITS
     ADDRESSING HIS PETITION FOR DISCRETIONARY REVIEW
      ________________________________________________________

TO THE HONORABLE JUDGES OF SAID COURT:

      In light of questions from the bench at oral argument, the following is

submitted to assist the Court in its disposition of Governor Perry's challenges to

Count I of the indictment.

A. The State, having repeatedly admitted that the veto is the basis of count I,
should be estopped from suggesting otherwise.

      The State's pleadings in the court of appeals and the trial court, only some of

which were specifically identified by counsel during oral argument, reflect repeated

and unambiguous admissions which should estop the State from claiming that Count

I is not based upon the veto and from asserting that any further factual development

is necessary for Governor Perry's challenges to Count I to be fully cognizable in this
Court:1

       State's Supplemental Brief filed in the court of appeals on May 11,
       2015 at page 3:

               The parties have established entrenched positions.
               Appellant argues he has a constitutional right to make
               coercive threats and veto prosecutorial appropriations, and
               the State argues it has an absolute right to prosecute him
               for doing so based on his motives.

       State's Brief filed in the court of appeals on March 27, 2015, at page
       42-43:

               There are limitless ways in which a public servant may use
               government property in unauthorized way. In this case, the
               State will prove that a coercive threat followed by a
               retaliatory action constitutes both Coercion of a Public
               Servant and Abuse of Office.

       State's Response To Defendant's Third Motion To Quash, filed in
       the trial court on April 17, 2015 (contained in Clerk's Supplemental
       Record dated April 27, 2015 at page 18 (Supp.CR at 87)):

               The challenges to Count One should be denied, and a jury
               should determine whether or not the veto of the Public
               Integrity Unit funds was a misuse of the Defendant's
               Power.


   1
     See e.g., Brito-Carrasco v. State, 154 S.W.3d 127, 130 n. 10 (Tex. Crim. App. 2005)(Cochran,
J., concurring)(discussing judicial admissions and their conclusive effect). See also Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001), citing Houston First Am. Sav. v.
Musick, 650 S.W.2d 764, 767 (Tex. 1983))("Assertions of fact, not plead in the alternative, in the
live pleadings of a party are regarded as formal judicial admissions."). Additionally, the doctrine of
quasi-estoppel should prevent the State from asserting that the veto was not the gravamen of Count
I. See Schmidt v. State, 278 S.W.3d 353, 358-359 (Tex. Crim. App. 2009); Matthews v. State, 165
S.W.3d 104, 109-111 (Tex. App.—Fort Worth 2005, no pet.); Clark v. Cotten Schmidt, L.L.P., 327
S.W.3d 765, 700 (Tex. App.—Fort Worth 2010, no pet.).

                                                  2
State's Response To Defendant's Third Motion To Quash, filed in
the trial court on April 17, 2015 (contained in Clerk's Supplemental
Record dated March 2, 2015 at pages 2 and 3 (Supp.CR at 4, 5)):

      On or about June 14, 2013, Defendant Perry misused his
      gubernatorial power to veto a legislatively-approved
      appropriation of funds for the Public Integrity Unit. . . .

      Contrary . . . Defendant Perry misused government
      property that was subject to his custody and control and
      possession in that he used the lawful power of
      gubernatorial veto for an unlawful purpose, to wit:
      eliminating funding for the Public Integrity Unit. . . .

      Second, . . . Defendant Perry misused government property
      that was subject to his custody and possession in that he
      used the lawful power of gubernatorial veto for an
      unlawful purpose, to wit: eliminating funding for the
      Public Integrity Unit. . . .

State's Response To Defendant's Motion For Immediate
Transcription Of Grand Jury Testimony" filed in the trial court on
October 31, 2014 (contained in Clerk's Supplemental Record dated
January 28, 2015 at pages 14, 15, 20-21 (Supp.CR at 252, 253, 258-
259)):

      But a governor can veto a bill while sitting at his kitchen
      table.

      A governor can talk about the veto before making a
      decision. He can remain close-lipped and keep his cards to
      his chest. A governor may give an explanation for the veto,
      or, offer no explanation at all. The veto power is his
      regardless.

      This doctrine notwithstanding, Defendant Perry argues that
      his power to veto magnifies and incorporates the powers
      delegated to the other two branches of government . . . The

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             Executive veto is incredibly powerful, but it cannot be the
             basis for Speech or Debate immunity.

These quotations simply illustrate what everyone has understood from the very

beginning — that Count I is based exclusively on the Governor's exercise of his

constitutional veto authority. Any effort by the State to contend otherwise now would

harm the integrity of our legal system, and this Court should hold the State estopped

from doing so.

B. Section 39.02 violates Separation of Powers and this claim is cognizable.

      During oral argument, Appellant's counsel referred to Ex parte Jones, 803

S.W.2d 712 (Tex. Crim. App. 1991), a case not cited in Appellant's brief, and

compared it to Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) to elaborate

on what constitutes a violation of the Separation of Powers doctrine and why this case

poses a far graver threat. In both Jones and Meshell, statutes allegedly infringed or

unduly interfered with a prosecutor's absolute discretion. The key consideration in

both cases was the consequences of the statutory schemes. Jones upheld the statute,

which provided a salutary impact on a citizen by allowing bail, yet posed no obstacle

to the prosecutor's ability to prosecute. But in Meshell, the statute required dismissal

of the charging instrument, thus preventing the prosecutor from proceeding

altogether, and this Court struck down that statute as an undue interference by one

branch into the discretion of another.

                                           4
      This case, by contrast, concerns whether the prosecution of a governor under

Section 39.02 for the exercise of a veto would unduly interfere with the Executive

Branch's core responsibility. The separation-of-powers consequences in this case are

far more dramatic than in either Jones or Meshell. The threat of criminal prosecution

under a general statute, such as Section 39.02, constitutes a chilling, undue

interference with and encroachment upon the exercise of the Governor's Article IV,

Section 14 discretion (limited only as it is by the express language of Article IV,

Section 14 itself). Indeed, the Legislature may not make a law that, whether directly

or by implication, the Texas Constitution prohibits. See e.g., Shepherd v. San Jacinto

Junior Coll. Dist., 363 S.W.2d 742, 743 (Tex. 1962); State v. Brownson, 61 S.W. 114

(Tex. 1901). Furthermore, "[w]hen the Constitution defines the circumstances under

which a right may be exercised, the specification is an implied prohibition against

legislative interference to add to the condition." Ex parte Myer, 84 Tex.Crim. 288,

297, 207 S.W. 100 (Tex. Crim. App. 1918)(citing Cooley, Const. Lim. (4th Ed.) p. 78;

Parks v. West, 102 Tex. 11, 111 S.W. 726 (Tex. 1908)).

      Accordingly, the prosecutor's attempt to use a general statute, Section 39.02,

to prosecute the gubernatorial veto when the Legislature could not validly pass a

statute limiting, let alone criminalizing, any exercise of that veto power in the first

instance, demonstrates the Separation of Powers violation inherent in the instant


                                          5
indictment.

C. Cognizability under this Court's original habeas jurisdiction (and/or original
mandamus/prohibition jurisdiction) provides an alternative basis for relief.

      As suggested by Appellant's counsel, if the Court has any lingering concerns

regarding cognizability, it has the right to consider this appeal as an original writ of

habeas corpus and/or as an original writ of prohibition under Article V, Section V of

the Texas Constitution. This right is illustrated in the following cases:

      Ex parte Johnson, 876 S.W.2d 340 (Tex. Crim. App. 1994);
      Ex parte Clore, 690 S.W.2d 899 (Tex. Crim. App. 1985);
      Ex parte Payne, 618 S.W.2d 380 (Tex. Crim. App. 1981);
      Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1997); and
      Ex parte Giles, 502 S.W.2d 744 (Tex. Crim. App. 1973).

                                               Respectfully submitted,

                                               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

                                               THE BUZBEE LAW FIRM
                                               /s/ Anthony G. Buzbee
                                               Anthony G. Buzbee
                                               State Bar No. 24001820
                                               JPMorgan Chase Tower
                                               600 Travis Street, Suite 7300
                                               Houston, Texas 77002

                                           6
                                            Tbuzbee@txattorneys.com
                                            Telephone: 713-223-5393
                                            Facsimile: 713-223-5909

                                            BAKER BOTTS L.L.P.
                                            /s/ Thomas R. Phillips
                                            Thomas R. Phillips
                                            State Bar No. 00000102
                                            98 San Jacinto Blvd., Suite 1500
                                            Austin, Texas 78701-4078
                                            tom.phillips@bakerbotts.com
                                            Telephone: 512-322-2565
                                            Facsimile: 512-322-8363

                             Certificate of Service

      I hereby certify that a true and correct copy of the above and foregoing has
been delivered to all counsel at the time it was electronically filed.

                                            BOTSFORD & ROARK
                                            /s/ David L. Botsford




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