                                                                                            ACCEPTED
                                                                                       03-15-00063-CR
                                                                                              4682610
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                 3/27/2015 10:57:05 PM
                                                                                      JEFFREY D. KYLE
                                                                                                CLERK


                                   No. 13-15-00063-CR
                                       0
                                                                      FILED IN
                                                               3rd COURT OF APPEALS
                    In the Court of Appeals                         AUSTIN, TEXAS
                                                               3/27/2015 10:57:05 PM
           for the Third District of Texas at Austin               JEFFREY D. KYLE
                                                                        Clerk

                      ____________________________________

                 EX PARTE JAMES RICHARD “RICK” PERRY
                      ____________________________________

     APPEAL FROM THE DENIAL OF APPLICATION FOR WRIT OF HABEAS CORPUS

                   STATE OF TEXAS V. JAMES RICHARD “RICK” PERRY

                                   D-1-DC-14-100139

                         IN THE DISTRICT COURT FOR THE 390TH
                       JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS
                       ___________________________________

                         APPELLEE’S BRIEF
                      ____________________________________

                             ORAL ARGUMENT REQUESTED



MICHAEL MCCRUM                                      DAVID GONZALEZ
TEXAS BAR NO. 13493200                              TEXAS BAR NO. 24012711
DISTRICT ATTORNEY PRO TEM                           ASST. DISTRICT ATTORNEY PRO TEM
TRAVIS COUNTY, TEXAS                                TRAVIS COUNTY, TEXAS
700 N. St. Mary’s St., Ste. 1900                    206 East 9th Street, Ste. 1511
San Antonio, Texas 78205                            Austin, Texas 78701
Tel: (210) 225-2285                                 Tel.: (512) 381-9955
Fax: (210) 225-7045                                 Fax: (512) 485-3121


                     ATTORNEYS FOR THE STATE OF TEXAS
                                          TABLE OF CONTENTS

Statement Regarding Oral Argument .................................................................... xvi

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

Statement of Facts ......................................................................................................1
Summary of the Argument.........................................................................................2

Argument....................................................................................................................3


  I. The First Amendment Does Not Protect All Forms of Speech. ..........................6
     A.       Extortion and quid pro quo threats issued by a public servant
              are not forms of protected free expression. ................................................6
      B.      The Constitution allows the Legislature to put some limits on
              speech when regulating a public servant’s speech. ....................................8
     C.       The Constitution allows the Legislature to regulate a public
              servant’s speech, even though it would necessarily put some
              limits on private speech. ...........................................................................10

                   1. The face of the statute at issue is not overbroad. ............................13
                   2. The statute is not subject to strict scrutiny because it does
                  not distinguish between favored and disfavored speech. .....................19
                   3. Even if heightened scrutiny were applied, “Coercion of a
                  Public Servant” statute withstands that scrutiny. .................................21
  II. The coercion statute provides adequate notice consistent with
      due process. ......................................................................................................23

     A.       The context of the statutory meaning of the word “coercion”
              provides fair warning. ..............................................................................24

     B.       The Legislature intended to cover threats of lawful action......................26




                                                              i
   III. District Court Properly Held As-Applied Challenges Not
        Cognizable in Pretrial Habeas Proceeding......................................................31

      A.       Appellant’s Improper Reliance on Speculation. ......................................31

      B.      “As Applied” Challenge Not Cognizable in Pretrial Habeas
               Review. ....................................................................................................32
                  1. The Claims Are Not Ripe For Review. ............................................34

                  2. There must first be facts in evidence before this Court can
                  decide Appellant’s “as applied” challenges. .......................................35

        C. All of Appellant’s Remaining Claims Are “As Applied”
           Challenges. ...............................................................................................37

   IV. Separation of Powers Doctrine Allows Judicial Branch to
       Check Coercive Use of Executive Power. ......................................................43

   V. A Governor is Not Immune from Criminal Prosecution. ................................48
      A.      Texas state Speech or Debate Privilege Narrower
              than federal Speech or Debate Privilege. .................................................50

      B.      The Speech or Debate Privilege applies to Members of the
              Legislature, not a Governor. .....................................................................53

                  1. No governor ever has been afforded Speech or Debate
                  privilege or legislative immunity from criminal prosecution...............53

                  2. The privilege does not extend to all legislative-related topics of
                  conversation. .........................................................................................55

      C.      The common law doctrine of legislative immunity does not make
              a Texas governor above the law. .............................................................56


Prayer .......................................................................................................................61

Certificate of Compliance ........................................................................................62
Certificate of Service ...............................................................................................63


                                                              ii
Appendix ............................................................................................................... A-1

Exhibit A: 1973 version of §§ 36.01, 36.03.......................................................... A-1

Exhibit B: 1989 revision of §§ 36.01, 36.03 ......................................................... A-5

Exhibit C: 1993 revision of §§ 36.01, 36.03 - Naishtat Amendment ................. A-37

Exhibit D: 1993 revision of §§ 36.01, 36.03 ...................................................... A-39
Exhibit E: Speech or Debate Privilege Chart...................................................... A-48




                                                            iii
                                INDEX OF AUTHORITIES
Texas Cases
Allen v. State,
  604 S.W.2d 191, 192 (Tex. Crim. App. 1980) .....................................................13

Armadillo Bail Bonds v. State,
 802 S.W.2d 237 (Tex. Crim. App. 1990) .............................................................44

Board v. State,
 03-96-00024-CR, 1998 WL 271043
 (Tex. App.—Austin May 29, 1998, pet. ref’d) .................................... 7, 25, 26, 35

Boykin v. State,
 818 S.W.2d 782 (Tex. Crim. App. 1991) .............................................................24

Briggs v. State,
 740 S.W.2d 803 (Tex. Crim. App. 1987) .............................................................23

Bynum v. State,
 767 S.W.2d 769 (Tex. Crim. App. 1989) .............................................................24

Cuellar v. State,
 70 S.W.3d 815 (Tex. Crim. App. 2002) ...............................................................42

Duncantell v. State,
 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........... 14, 24

Ex parte Boetscher,
 812 S.W.2d 600 (Tex. Crim. App. 1991) .............................................................33

Ex parte Cross,
 69 S.W.3d 810 (Tex. App.—El Paso 2002, pet. ref’d).........................................35

Ex parte Cruzata,
 220 S.W.3d 518 (Tex. Crim. App. 2007) .............................................................41
                                                  iv
Ex parte Delbert,
 582 S.W.2d 145 (Tex. Crim. App. 1979) .............................................................36

Ex parte Doster,
 303 S.W.3d 720 (Tex. Crim. App. 2010) .............................................................37

Ex parte Ellis,
 309 S.W.3d 71 (Tex. Crim. App. 2010) ....................................................... passim

Ex parte Firmin,
 60 Tex.Crim. 368 (Tex. Crim. App. 1910) ...........................................................38

Ex parte Granviel,
 561 S.W.2d 503 (Tex. Crim. App. 1978) .............................................................24

Ex parte Groves,
 571 S.W.2d 888 (Tex. Crim. App. 1978) .............................................................36

Ex parte Hopkins,
 610 S.W.2d 479 (Tex. Crim. App. 1980) .............................................................36

Ex parte Lo,
 424 S.W.3d 10 (Tex. Crim. App. 2013) ...............................................................20

Ex parte Mattox,
 683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..........................................41

Ex parte Powell,
 558 S.W.2d 480 (Tex. Crim. App. 1977) .............................................................36

Ex parte Ragston,
 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) ..................................38



                                                  v
Ex parte Smith,
 185 S.W.3d 887 (Tex. Crim. App. 2006) .............................................................35

Ex parte Tamez,
 4 S.W.3d 366 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ............................35

Ex Parte Thompson,
 414 S.W.3d 872 (Tex. App.—San Antonio 2013),
 aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014) ....................................................13

Ex parte Townsend,
 137 S.W.3d 79 (Tex. Crim. App. 2004) ...............................................................41

Ex parte Weise,
 55 S.W. 3d 617 (Tex. Crim. App. 2001) ........................................... 32, 33, 35, 41

FM Properties Operating Co. v. City of Austin,
 22 S.W.3d 868 (Tex. 2000)...................................................................................15

Gant v. State,
 814 S.W.2d 444 (Tex. App.—Austin 1991, no pet.) ............................................18

Gillenwaters v. State,
 205 S.W.3d 534 (Tex. Crim. App. 2006) .............................................................15

Karenev v. State,
 281 S.W.3d 429 (Tex. Crim. App. 2009) .............................................................37

Langever v. Miller,
 76 S.W.2d 1025 (Tex. 1934) ................................................................................44

Margraves v. State,
 34 S.W.3d 912 (Tex. Crim. App. 2000) ..............................................................42



                                                      vi
Mayhew v. Town of Sunnyvale,
 964 S.W.2d 922 (Tex. 1998) ................................................................................35

Mutscher v. State,
 514 S.W.2d 905 (Tex. Crim. App. 1974) ................................ 50, 51, 52, 53, A-49

Olivas v. State,
 203 S.W.3d 341 (Tex. Crim. App. 2006) ...................................................... 17, 18

Parent v. State,
 621 S.W.2d 796 (Tex. Crim. App. 1981) .............................................................39

Puckett v. State,
 801 S.W.2d 188 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d),
 cert. denied, 502 U.S. 990 (1991) ...........................................................................6

Roberts v. State,
 278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d)............ 17, 18, 19, 24

Rodriguez v. State,
 93 S.W.3d 60 (Tex. Crim. App. 2002) .................................................................24

Sanchez v. State,
  995 S.W.2d 677 (Tex. Crim. App. 1999) ..................................................... passim

Santikos v. State,
  836 S.W.2d 631 (Tex. Crim. App. 1992) (op. on reh’g) ............................... 15, 39

State ex rel. Lykos v. Fine,
  330 S.W.3d 904 (Tex. Crim. App. 2011) ................................................ 15, 32, 36

State v. Hanson,
  793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ...................................... 24, 25



                                                     vii
State v. Rosseau,
  396 S.W.3d 550, 558 (Tex. Crim. App. 2013) .....................................................15


Federal Cases
Ashcroft v. Am. Civil Liberties Union,
 535 U.S. 564 (2002) ..............................................................................................13

Barnes v. Glen Theatre, Inc.,
 501 U.S. 560 (1991) ................................................................................................9

Board of Regents of Univ. of Wis. System v. Southworth,
 529 U.S. 217 (2000) ................................................................................................9

Broadrick v. Oklahoma,
 413 U.S. 601 (1973) ..............................................................................................13

Brown v. Walker,
 161 U.S. 591 (1896) ..............................................................................................12

Cano v. Davis,
 193 F.Supp.2d 1177 (C.D.Calif. 2002) ........................................................... A-51

City of San Diego, Cal. v. Roe,
 543 U.S. 77 (2004) ..................................................................................................9

Clinton v. Jones,
 520 U.S. 681 (1997) ....................................................................................... 47, 48

Coates v. City of Cincinnati,
 402 U.S. 611 (1971) ..............................................................................................23

Coleman v. Miller,
 307 U.S. 433 (1939) ..............................................................................................46


                                                         viii
Colten v. Commonwealth of Kentucky,
 407 U.S. 104 (1972) ..............................................................................................23

Columbia Broadcasting System, Inc. v. Democratic National Committee,
 412 U.S. 94 (1973) ..................................................................................................9

Empress Casino Joliet Corp. v. Blagojevich,
 638 F.3d 519 (7th Cir. 2011) ................................................................................54

Ex parte Virginia,
 100 U.S. 339 (1879) ..............................................................................................46

Ferguson v. Estelle,
 718 F.2d 730 (5th Cir. 1983) ................................................................................23

Ford v. Tenn. Senate,
 2007 WL 5659414 (W.D.Tenn. 2007)............................................................. A-51

Garcetti v. Ceballos,
 547 U.S. 410 (2006) ................................................................................................9

Goldwater v. Carter,
 444 U.S. 996 (1979) ..............................................................................................46

Gravel v. United States,
 408 U.S. 606 (1972) ............................................................................. 55, 58, A-49

Grayned v. City of Rockford,
 408 U.S. 104 (1972) ..............................................................................................23

Hutchinson v. Proxmire,
 443 U.S. 111 (1979) ................................................................................... 59, A-49

Imbler v. Pachtman,
  424 U.S. 409 (1976) ..............................................................................................59

                                                          ix
In re Grand Jury (Cianfrani),
       563 F.2d 577 (3d Cir. 1977)                    A-51

In re Grand Jury (Colafela),
  821 F.2d 946 (3d Cir. 1987, reh'g en banc) .................................................... A-50

In re Grand Jury (Eilberg),
  587 F.2d 589 (3d Cir. 1978) ............................................................................ A-50

Johanns v. Livestock Mktg. Ass’n,
  544 U.S. 550 (2005) ..........................................................................................9, 10

Johnson v. Poway Unified Sch. Dist.,
  658 F.3d 954 (9th Cir. 2011) ..................................................................................9

Kilbourn v. Thompson,
 103 U.S. 168 (1880) ........................................................................................ A-49

Meyer v. Grant,
 486 U.S. 414 (1988) ..............................................................................................20

Miller v. Alabama,
 132 S.Ct. 2455 (2012) ...........................................................................................38

Miller v. California,
 413 U.S. 15 (1973) ..................................................................................................6

Miranda v. Arizona,
 384 U.S. 436, 458–60 (1966)................................................................................12

Nixon v. United States,
 506 U.S. 224 (1993) ..............................................................................................45




                                                          x
O’Shea v. Littleton,
 414 U.S. 488 (1974) ..............................................................................................59

Pickering v. Bd. of Educ.,
  391 U.S. 563 (1968) ................................................................................................9

Pleasant Grove City, Utah v. Summum,
  555 U.S. 460 (2009) ..........................................................................................8, 11

Police Dep’t v. Mosley,
 408 U.S. 92 (1972) ............................................................................................9, 10

Pulliam v. Allen,
 466 U.S. 522 (1984) ..............................................................................................57

Roper v. Simmons,
 543 U.S. 551 (2005) ..............................................................................................38

Roth v. United States,
 354 U.S. 476 (1957) ..............................................................................................21

Rust v. Sullivan,
 500 U.S. 173 (1991) ..............................................................................................11

Supreme Court of Virginia v. Consumers Union of U.S., Inc.,
  446 U.S. 719 (1980) ..............................................................................................57

Tenney v. Brandhove,
  341 U.S. 367 .................................................................................................... A-49

Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff,
  759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub nom.
  Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
  135 S. Ct. 752 (2014) ..............................................................................................8


                                                          xi
United States v. Bass,
 404 U.S. 336 (1971) ..............................................................................................42

United States v. Biaggi,
 853 F.2d 89 (2d Cir. 1988) ............................................................................. A-50

United States v. Brewster,
 408 U.S. 501 (1972) ............................................................................. 49, 51, A-49

United States v. Brown,
 381 U.S. 437 (1965) ..............................................................................................45

United States v. Craig,
 573 F.2d 455 (7th Cir. 1977, reh'g en banc den.) ........................................... A-51

United States v. DiCarlo,
 565 F.2d 802 (1st Cir. 1977) ........................................................................... A-50

United States v. Eilberg,
 507 F.Supp. 267 (E.D.Penn. 1980) ................................................................. A-51

United States v. Gillock,
 445 U.S. 360 (1980) ....................................................................... 55, 57, 59, A-49

United States v. Helstoski,
 442 U.S. 477 (1979) ................................................................................... 56, A-49

United States v. Hutson,
 843 F.2d 1232 (9th Cir. 1988) ................................................................................7

United States v. Johnson,
 383 U.S. 169 (1966) ................................................................................... 51, A-49

United States v. Kozminski,
 487 U.S. 931 (1988) ..............................................................................................22

                                                        xii
United States v. Mandel,
 415 F.Supp. 1025 (D.Md. 1976)
 (May 4, 1976 supplemented opinion) ...................................................... 46, 53, 56

United States v. Mandel,
 415 F.Supp. 997 (D.Md. 1976) ...................................................................... 53, 54

United States v. Marchetti,
 466 F.2d 1309 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972) ......................7

United States v.Nelson,
 486 F.Supp. 464 (W.D.Mich. 1980) ............................................................... A-51

United States v. Playboy Entm’t Group, Inc.,
 529 U.S. 803 (2000) ..............................................................................................20

United States v. Quinn,
 514 F.2d 1250 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976) ........................7

United States v. Renzi,
 2014 WL 5032356 (9th Cir 2014) .................................................................. A-50

United States v. Swindall,
 971 F.2d 1531 (11th Cir. 1992) ...........................................................................57

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

United States Football League v. National Football League,
 1986 WL 6341 (S.D.N.Y. 1986) (not reported) ............................................. A-51

Urofsky v. Gilmore,
 216 F.3d 401 (4th Cir. 2000) ..................................................................................9


                                                        xiii
Village of Hoffman Estates,
  455 U.S. 489 (1982) ..............................................................................................24

Virginia v. Black,
  538 U.S. 343 (2003) ..............................................................................................20

Wainwright v. Sykes,
 433 U.S. 72 (1977) ................................................................................................36

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

State Cases --Other Jurisdictions
Jorgensen v. Blagojevich,
  811 N.E.2d 652 (Ill. 2004) ....................................................................................46



Constitutional Provisions
TEX. CONST. art. II, § 1 .............................................................................................60
TEX. CONST. art. IV, § 12 .........................................................................................45
TEX. CONST. art. XVI, § 41 ......................................................................................52

U.S. CONST. amend. I .................................................................................................9
U.S. CONST. amend. V .............................................................................................12


Statutes
TEX. GOV’T CODE ANN. § 311.011 ..........................................................................24
TEX. PENAL CODE ANN. § 1.07(a)(9) .............................................................. passim
TEX. PENAL CODE ANN. § 36.03 ..................................................................... passim
TEX. PENAL CODE ANN. § 38.12(b) .........................................................................22
TEX. PENAL CODE ANN. § 6.03.................................................................................26




                                                         xiv
Other Authorities
Joseph Blocher,
  Viewpoint Neutrality and Government Speech,
  52 B.C.L. REV. 695, 695 (2011) .......................................................................9, 10

Maury Maverick Jr.,
 “Leave First Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997).......10




                                                    xv
               STATEMENT REGARDING ORAL ARGUMENT

      Typically, prosecutions for extortionate acts are against persons without

power trying to influence or threaten a person with power. By contrast, this case

presents the application of a criminal statute for extortionate and abusive acts

committed by a public official with power.

      This case necessarily requires discussion and thought of nuanced questions

about what restraint, if any, should be placed on the exercise of power by our

government, particularly where such exercise of power enters the domain of

definitions of criminal conduct. This case also addresses the extent our State can

restrict what public officials say to avoid the public official unlawfully using the

imprimatur of government speech to escape prosecution for criminal acts.

Questions about threats, extortion, and other forms of harm may be addressed in

oral argument to discuss the parameters of remedy when a public official

unlawfully abuses the power of his office for benefit other than pecuniary gain.

      All citizens of Texas have a common interest in the outcome of this matter

and in the answers to such complex questions. There is a compelling interest for

oral argument to allow a discussion about a law that is broad enough to capture

implied or disguised, yet very real, threats without being so specific that it limits its

application. Oral argument will likely involve a discussion of the limits—and

abuses—of power in our representative democracy and how it can be regulated.

                                          xvi
This case cuts to the heart of what citizens believe about government and politics

and power.

      Oral argument is appropriate to address the complexity of these important

issues.




                                        xvii
                              STATEMENT OF FACTS

          This case is about a public servant’s commission of two crimes in violation

of two Texas statutes: “Coercion of a Public Servant,” based on an illegal quid pro

quo threat made by then-Governor Perry against an elected public servant of a

distinct jurisdiction, and “Abuse of Official Capacity,” based on Mr. Perry’s

corresponding abuse of the power granted to his office in retaliation against that

public servant for refusing to accede to his threat. Appellant filed motions to quash

the indictment, yet also filed applications for writ of habeas corpus on the same

grounds so that pretrial appeals could be filed. Other than the allegations in the

indictment, however, there is no evidence or presentation of facts yet in the record.

Then-District Judge Bert Richardson (now Texas Court of Criminal Appeals Judge

Richardson) said it best in ruling upon Appellant’s pleadings:

          The unique circumstances involved in this case have been widely
          reported, argued, and discussed by many with no standing in the case,
          including the amicus briefs and many other self-appointed ‘experts.’
          The alleged and speculated upon facts are not properly before this
          court at this time, and the court has no authority at this stage to
          examine the evidence that was presented to the Grand Jury. 1

The district court’s rejection of Appellant’s constitutional challenges to each of the

criminal statutes were without evidentiary hearing. Contrary to Appellant’s critique

of Judge Richardson for purportedly failing to “fully grapple” with Appellant’s


1
    C.R. 468, n. 3.
                                            1
challenges, the district court’s lengthy and well-thought-out order rejecting

Appellant’s assertions demonstrate a correct application of legal precedent.2


                         SUMMARY OF THE ARGUMENT

         In carrying out their assigned responsibility, our elected representatives

passed and entered as law Texas Penal Code Sections 36.03 (Coercion of a Public

Servant) and 39.02 (Abuse of Official Capacity). These are not statutes designed to

guard against blatant bribes or unmistakable forms of corruption. Rather, these

statutes are designed to protect the democratic process from more dangerous,

sometimes less obvious, forms of corruption. They are designed to protect against

the abuse of government power.

         The face of the “Coercion of a Public Servant” statute does not violate our

constitutional Free Speech clause for three reasons: it regulates a category of

unprotected speech; the State has a compelling need to criminalize extortion

committed under color of public office; and, the statute does not prohibit a

substantial amount of protected speech.

         In addition, the statutes at issue are not unconstitutionally vague on their

face. Courts have held that statutory definitions and common usage of the terms

“coercion” and “threat” provide sufficient notice to satisfy Due Process vagueness

concerns.

2
    C.R. 464–483.
                                             2
      Further, courts are without authority, and have repeatedly rejected requests,

to consider “as-applied” constitutional challenges to statutes in a pretrial habeas

context, particularly where the court would be required to speculate as to the facts

made the basis of the prosecution. Such is the situation in the instant case, where

Appellant’s “as-applied” challenges to both statutes are replete with speculation.

      Appellant plainly misapplies the legal principle of separation of powers in

his effort to avoid prosecution for his criminal acts. Courts have repeatedly rejected

similar pleas from public officials, including governors, who have been charged

with committing crimes in connection with the abusive exercise of their

governance.

      Similarly, Appellant is not immune from criminal prosecution as a result of

his previous occupation as governor. The Texas constitutional Speech and Debate

Clause has never been, and cannot be, used to insulate a governor from criminal

prosecution. Finally, the principle of legislative immunity simply does not apply to

the instant criminal case, as it has never been applied to allow immunity from

criminal acts.

                                   ARGUMENT

      Coercion is a word that our society does not use lightly.

      When we think of coercion, one knee-jerk connotation is “government

coercion.” Nobody wants the government to tell us what to do. Our society is

                                          3
founded upon notions of freedom of expression, freedom of speech, and freedom

of choice. Coercion is the antithesis of all of these values—especially when it

involves government coercion.

      The most devastating aspect of coercion is that it deceptively makes the

victim believe she is responsible for her own demise. Coercion creates the

appearance of choice, the appearance of responsibility for the choice, and the

punishment and moral blameworthiness for making the “wrong” choice. As is

evident in this case, coercion happens when some may wonder aloud why

Rosemary Lehmberg did not just resign so the Public Integrity Unit legislatively-

authorized funding would not be eliminated, criminal investigations would not

have to be terminated, and people would not have to lose their jobs. Coercion

achieves his objective when a public servant in power need only make a threat and

then allow the victim to suffer the consequences.

      When an elected body recognizes the danger of coercion, and when they

recognize that public servants are those with the greatest opportunity to take

coercive actions, they are right to place limits on conduct and proscribe it. Criminal

coercion has a rich context that is much deeper than “threat.” You can make an

“idle threat.” There is no analogy for criminal coercion. Coercion is specific.

Coercion is not idle, but intentional. Unlike conduct that amounts to general

pressure resulting from “duress” or “harassment” or “intimidation” or “undue


                                          4
influence,” coercion implies not just intent, but a malicious intent to induce another

to act. Coercion destroys effective consent. Coercion crosses a line, landing firmly

outside of the First Amendment protection of free expression and well within the

authority of the Legislature to regulate and criminalize it. In defining the term

coercion and otherwise describing that which crosses the line into unacceptable

conduct, the Legislature placed limits on and proscribed coercion without limiting

application from the many factual scenarios that persons can conceive to inflict

upon another.




                                          5
I. The First Amendment Does Not Protect All Forms of Speech.

           A. Extortion and quid pro quo threats issued by a public servant are
              not forms of protected free expression.

       Appellant Perry seeks dismissal of the indictment because it purportedly

seeks to penalize his constitutional right to free speech. The criminal statute

“Coercion of a Public Servant” protects against extortionate conduct and quid pro

quo threats made against public servants. After fourteen years as governor of our

state and numerous prosecutions against Texas citizens under this statute, Mr.

Perry asserts for the first time that this statute, on its face, is unconstitutional under

the First Amendment to the U.S. Constitution. Appellant is wrong.

       There are categories of speech that do not deserve nor receive First

Amendment protection. First Amendment jurisprudence is filled with nuances that

rely entirely upon the words spoken, the identity of the speaker, the relationship

between the speaker and the listener, and the venue of the dialogue. For example,

profanity may be included in a speech protected by the First Amendment—but it

does not mean that regulations against profanity are vague or overbroad. A

legislature may prohibit materials that are obscene,3 threats of violence,4 and

retaliatory acts without running afoul of the Constitution.5

3
  Miller v. California, 413 U.S. 15 (1973).
4
  Watts v. U.S., 394 U.S. 705 (1969).
5
  Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d), cert.
denied, 502 U.S. 990 (1991) (“Section 36.06 [Obstruction or Retaliation] implicates no First
                                               6
       The litmus test of unprotected speech is not simply threats of physical

violence, but include threats made that would expose a witness to “hatred, contempt

or ridicule.”6 Verbal extortion “has no more constitutional protection than that

uttered by a robber while ordering his victim to hand over the money.” 7 Similarly,

quid pro quo threats made under a display of authority and power are equally

prohibited, particularly where the relationship of power between the speaker and the

listener gives rise to unlawfulness of the threat.8




Amendment protections. By its terms, the statute punishes only those individuals who
intentionally or knowingly harm or threaten to harm another person by an unlawful act.”).
6
  Board v. State, 03-96-00024-CR, 1998 WL 271043, at *5 (Tex. App.—Austin May 29, 1998,
pet. ref’d) (not designated for publication) (“Appellant reasons that Section 36.05 [Tampering
with Witness] is unconstitutional in that it allows prosecution for protected speech and writing . .
. . We believe the State of Texas has a very substantial interest in protecting witnesses from
threats of exposure to hatred, contempt or ridicule.”).
7
  Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (citing United States v.
Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972); United
States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976); and
United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988).
8
  Sanchez, 995 S.W.2d at 688 (First Amendment does not give public official right to trade
official acts for submission to conduct the official was not otherwise entitled).
                                                 7
              B. The Constitution allows the Legislature to put some limits on
                 speech when regulating a public servant’s speech.

       At issue is whether the State has a compelling interest in regulating what an

elected public servant may say or do under the umbrella of powers entrusted to him

by the people. Appellant’s facial challenge raises the thorny question: When a

public official conveys a threat to use his power to accomplish an objective that he

otherwise could not achieve, does he speak as a private individual or as a

representative of the government? This difficulty of interpreting what is considered

government speech or private speech has recently been addressed in several cases.9

Where one public servant is threatened by another public servant, however, the

possibility that the public servant speaker may assert First Amendment protection

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

public servant listener. This precisely is the legitimate basis for courts allowing the

State to regulate and put limits on a public servant’s speech with greater latitude

than regulating speech of a private citizen.




9
 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009) & Texas Div., Sons of
Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub
nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014).
                                                8
       Clearly, the government cannot restrict expression merely because of its

message, ideas, subject matter, or content.”10 However, a restriction on “the

Government’s own speech . . . is exempt from First Amendment scrutiny,”11 even

when such restriction has the effect of limiting speech. Indeed, the government

may restrict what its agents say, and how and when they say it,12 for the

constitutional protection for free speech restricts government regulation of private

speech; it does not regulate government speech.13 The U.S. Supreme Court has

held that “[w]hen public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment purposes

…”14 The basis for the distinction is that the State has a different interest in

regulating what public servants and government employees may do or say that

differs greatly from regulation or restriction of private citizens.15 The First

Amendment was designed as a means of insulating power or control by those in



10
   Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972); Barnes v. Glen Theatre, Inc., 501 U.S. 560,
577 (1991) (Scalia, J., concurring in the judgment) (“Where the government prohibits conduct
precisely because of its communicative attributes, we hold the regulation unconstitutional.”).
11
   Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005); see also Joseph Blocher,
Viewpoint Neutrality and Government Speech, 52 B.C.L. REV. 695, 695 (2011).
12
   See, e.g., City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004); Johnson v. Poway Unified
Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011); Garcetti v. Ceballos, 547 U.S. 410, 422 (2006).
13
   See Johanns 544 U.S. at 553 (“[T]he Government’s own speech . . . is exempt from First
Amendment scrutiny”); Columbia Broadcasting System, Inc. v. Democratic National Committee,
412 U.S. 94, 139 n.7 (1973) (Stewart, J., concurring); Board of Regents of Univ. of Wis. System
v. Southworth, 529 U.S. 217, 229 (2000).
14
   Garcetti, 547 U.S. at 421.
15
   See City of San Diego v. Roe, 543 U.S. at 80; Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968); see also Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000).

                                              9
positions of governmental authority, not the other way around.16 Statements made

by public officials to other public officials are unprotected under Garcetti and its

progeny and are no more entitled to First Amendment protection than criminal

threats or extortion.

             C. The Constitution allows the Legislature to regulate a public
                servant’s speech, even though it would necessarily put some
                limits on private speech.

       Appellant argues that § 36.03(A)(1) and § 1.07(a)(9)(F) may also curtail

private speech. But the State can limit private speech when it has the effect of

coercing a public servant. “The Government’s own speech . . . is exempt from First

Amendment scrutiny,”17 even when such regulation has the effect of limiting

private speech. As the government may restrict what its agents say, and how and

when they say it, it stands to reason, then, that the “government may be able to

restrict [some] private expression ‘because of its message, its ideas, its subject

matter, or its content,’ so long as in so doing it is expressing its own viewpoint.” 18

       That is, some private speech may be burdened by the very nature of

regulating government speech. If the government does not prefer its subsidized


16
   Famed Texas Free Speech advocate, lawyer, and legislator, Maury Maverick Jr., noted that, at
its core, the First Amendment is a tool to protect the minority from the majority, and not the
other way around: “Madison, Jefferson, George Mason and others explained that the purpose [of
the First Amendment] was to limit and qualify power, guard against legislative and executive
abuses, and protect the minority against the majority.” Maury Maverick Jr., “Leave First
Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997).
17
   Johanns, 544 U.S. at 553; Blocher, supra note 11, at 695.
18
   See Blocher, supra note 11, at 696 (citing Mosley, 408 U.S. 92–95).
                                              10
doctors discussing abortion in the same clinic that uses government funding, it is

well within its power to prohibit those abortion discussions.19 Likewise, by

choosing certain types of monuments it prefers in its parks, the government is well

within its power to prohibit private parties from erecting other types of

monuments.20 These limits on private speech are constitutionally permissible, as

they are incidental to the Government’s regulation of its own speech.


          At its core, § 36.03(A)(1) and § 1.07(a)(9)(F) is the Texas Legislature

regulating its own speech and actions: it is taking affirmative action to prevent its

public officials from speaking or acting as a result of coercion. Its viewpoint is

simple: official speech should not be coerced speech. As is expected, the

Legislature believes it ill-advised for its officials to speak when they are coerced

into doing so.


          But proclaiming that potential victims of coercion should not be coerced is a

fool’s errand. Due to the coercive nature of coercion, the Legislature cannot

achieve its goal by just placing restrictions on the private citizen speaking to the

government. To achieve its preferred government speech, the Legislature has to

burden the coercer, whoever that may be.




19
     See Rust v. Sullivan, 500 U.S. 173, 193 (1991).
20
     See Summum, 555 U.S. at 467.
                                                 11
       The Framers also sought to prevent coercion in certain respects. In fact, they

thought it foundational to only allow criminal confessions if they were free from

coercion.21 Coerced confessions, history proved, were unreliable and

untrustworthy: only serving the ends of the coercer and not that of justice.22 This

cornerstone proved difficult to build upon, as coercion was tricky. Coercers

constantly changed and evolved their coercion-tactics—seeking to optimize both

their effectiveness and their societal palatability.23 Through the centuries of

struggle combatting coerced confessions, one truth was evident: restraining the

coercer was the only way to prevent coerced statements.24


       And so it was with public officials. A rule to public officials stating: “If you

are coerced to speak, do not speak” would be absurd—the only effective way to

prevent coerced official speech is to restrict the coercer. As such, the Legislature is

posed with a dilemma: either refuse to restrict any private speech and allow,

unfettered, its public officials to give coerced speech, or prevent all coercers from

influencing official speech and action. The first choice allows corruption of

government, while the second necessarily places some limits on private speech.

Both choices are constitutionally permissible.


21
   See U.S. CONST. amend. V.
22
   See Brown v. Walker, 161 U.S. 591, 596–597 (1896); Miranda v. Arizona, 384 U.S. 436, 458–
60 (1966).
23
   See Miranda, 384 U.S. at 448–458.
24
   See Miranda, 384 U.S. at 467–70.
                                            12
       1. The face of the statute at issue is not overbroad.

       Historically, courts have been extremely hesitant to rule that a criminal

statute is overbroad and facially unconstitutional—even when the government is

restricting expression by private citizens. It has been said by our State’s highest

criminal court that the “overbreadth” doctrine is “strong medicine” that should be

employed “sparingly” and “only as a last resort.”25 “[T]he overbreadth of a statute

must not only be real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.”26 That is, the court is to determine whether “the statute

reaches a substantial amount of constitutionally protected conduct” and whether a

“substantial number of the statute’s applications are unconstitutional judged in

relation to the statute’s plainly legitimate sweep.”27 If the statute cannot be shown

to restrict a substantial amount of constitutionally protected conduct, the

overbreadth challenge must fail.28 That is, the fact that the enforcement of a statute

operates to prohibit or restrain a private citizen’s right to speak does not itself

mean that the statute is invalid.29 If such a principle applies to the speech of a



25
   Ex parte Ellis, 309 S.W.3d 71, 91 (Tex. Crim. App. 2010).
26
   Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); see also Ashcroft v. Am. Civil
Liberties Union, 535 U.S. 564, 585 (2002).
27
   Ex Parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013), aff’d, 442 S.W.3d 325
(Tex. Crim. App. 2014) (citations omitted).
28
   Id.
29
   See Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980); see also United States v.
Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (threatening a person is not an opinion or idea
that is needed in marketplace of ideas).
                                              13
private citizen, than it would certainly follow that this same principle would apply

to a public servant’s speech.

       There are several reasons Appellant’s overbreadth challenge must fail. First,

the statute cannot be overbroad if coercive threats are not entitled to First

Amendment protection. In Duncantell v. State, the appellant asserted that the

Interference of a Public Servant statute [Section 38.15] is overbroad because it

“impermissibly restricts a person’s right to walk about freely and the right to not

remain silent.”30 The court examined whether the interference statute’s limitations

on conduct restricted a substantial amount of constitutionally protected

expression.31 In denying the overbreadth challenge, the court noted:

       The interference statute at issue here prohibits a person, acting with
       criminal negligence, from interrupting, disrupting, impeding, or
       otherwise interfering with a peace officer, while the peace officer is
       performing a duty or exercising authority imposed or granted by law. .
       . Appellant has cited no authority, and we are aware of none, holding
       that conduct, which a person 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, is expressive conduct protected by the First
       Amendment.32

This is the same type of unprotected conduct Section 36.03 regulates.

       Second, because regulating coercive threats by public officials is distinct

from regulating purely political speech by private citizens, the presumption of the
30
   Duncantell v. State, 230 S.W.3d 835, 843–44 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d).
31
   Id.
32
   Id. at 844 (emphasis added).
                                             14
statute’s validity remains. Further, even if there may be a slight amount of

expressive conduct nestled within a coercive threat, the statute does not restrict a

substantial amount of protected speech. When lodging a facial challenge, it is not

enough to argue that a statute might operate unconstitutionally in a single

circumstance, much less an extreme one.33 He must prove that a prosecution can

never be constitutionally applied to any Texas defendant charged with the statute at

issue, no matter what the individual facts and circumstances of the particular

case.34 In reviewing a facial challenge, the court considers the statute only as it is

written, rather than how it operates in practice.35 And if the court can identify any

factual circumstance in which the statute is valid, the facial challenge must fail.36

       The following hypothetical factual circumstances demonstration the validity

of the statute:


       -May a Governor call a police chief and inform him that if he does not tear
       up a ticket that was wrongfully issued against a family friend he might find
       that the funding for his entire police department be eliminated via line-item
       veto?

       -May a Senator call an elected district attorney and suggest that if a
       “misguided prosecution” is not dropped against his son he will strip funding
       for her office from his appropriations bill?



33
   See Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (op. on reh’g).
34
   See Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex. Crim. App. 2006).
35
   See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); FM Properties
Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).
36
   State v. Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013).
                                              15
      -May a Representative e-mail a judge and suggest that if a groundless case in
      her court is not dismissed he would eliminate her judicial district?

      -May a Governor threaten to veto funding for all highway monies in Travis
      County if the elected District Attorney does not resign?

      -May a Governor threaten to veto state funding for all elected State District
      Court Judges in Travis County if the elected District Attorney does not
      resign?


      Third, Appellant proposes a definition of “threaten” akin to “negotiate.”

Under this lens, Appellant ignores the words in context to make an overbreadth

challenge. Derivations of the word “threat” are found 62 times in the Penal Code

and 64 times in the Code of Criminal Procedure. In not a single instance is “threat”

used in the context of “negotiation.” It is the coercive control that provides the

context for the threat. Coercion implies intimidation to violate any choice or free

will of the listener. Coercion depends on a listener acting against his own interest

to avoid a greater harm. Coercive threats are in the same category of extortion and

blackmail—they cross a societal line between acceptable and unacceptable areas

for negotiation.

      Appellant proposes hypotheticals that would result in a “chilling effect.”

Coercion of a Public Servant has been illegal for over four decades. This case has

been ongoing for a year and a half. No bill has been filed in the current legislative

session seeking to modify, clarify or eliminate either Section 36.03 or 1.07(a)(9).

And there is no evidence of any chilling effect. Appellant, himself, publicly
                                          16
announces over and over again he would repeat his actions. Alarmist assertions of

chilled expression notwithstanding, the State has an interest in chilling coercive

threats to public servants because it is not expressive, and these threats chill

legitimate speech.



       Sections 36.03 and 1.07(a)(9) of the Texas Penal Code address acts of

“coercion” which, by statutory definition, include “threats.”37 This statutory

language necessarily limits the application of the statute to criminal behavior, and

does not render it overbroad to substantially include innocent behavior.

Additionally, the Texas Court of Criminal Appeals has addressed the scope of the

term “threat,” by indicating its “common, ordinary meaning” is the following:



        1. to declare an intention of hurting or punishing; to make threats against;
        2. to be a menacing indication of (something dangerous, evil, etc.); as the
            clouds threaten rain or a storm;
        3. to express intention to inflict (injury, retaliation, etc.);
        4. to be a source of danger, harm, etc., to.38




37
  See TEX. PENAL CODE ANN. § 1.07(a)(9) (West 2011).
38
  Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006); see also Roberts v. State, 278
S.W.3d 778, 790 (Tex. App.—San Antonio 2008, pet. ref’d).
                                              17
The Court noted that Black’s Law Dictionary defines “threat” as: “A

communicated intent to inflict harm or loss on another or on another’s

property…”39 The Court’s analysis is consistent with the principle that words or

phrases must be read also in the context in which they are used.40 Thus, the word

“threat” does not stand alone. It must be read in the context of the statutory

meaning of the word “coerce” or “coercion” as that term is defined in the Penal

Code, section 1.07(a)(9). To require further definition of the term “coerce,” as

Appellant apparently argues should have been done, is to reach the point of

defining definitions.

       Accordingly, section 36.03 cannot be said to be substantially overbroad

judged in relation to the statute's plainly legitimate sweep.41 Moreover, the

challenged statute is presumed valid if “closely drawn to match a sufficiently

important interest.”42

       Coercion occurs when a person illegally threatens to do indirectly what he

does not have the power to do directly.43 No public official can hide under the

cloak of official authority or the First Amendment in order to commit the crime of

39
   Olivas, 203 S.W.3d at 345–46.
40
   See Gant v. State, 814 S.W.2d 444, 454 (Tex. App.—Austin 1991, no pet.).
41
   Ellis, 309 S.W. at 91.
42
   Id.
43
   See Roberts v. State, 278 S.W.3d at 790 (court rejects overbreadth and vagueness challenges;
attorney’s otherwise legitimate right to file lawsuit still actionable under criminal “coercion”
statute); Sanchez, 995 S.W.2d at 687 (court rejects overbreadth and vagueness challenges; threats
have no more constitutional protection than that uttered by a robber while ordering his victim to
hand over the money).
                                               18
coercion of a public servant and abuse of office, nor should he be able to assert that

statutory definitions of criminal coercive conduct are overbroad. Threats of this

nature are simply not protected by the First Amendment and are not

unconstitutional in their clarity.44 The statute puts limits on a person’s conduct,

which must necessarily include any person’s (including a public official’s) exercise

of his duties under his employment. Coercion occurs when a public official

illegally threatens to do indirectly what he does not have the power to do directly.

Whether the underlying action is within the public official’s power (lawful) or

unlawful and criminally coercive, the statute is designed to protect the integrity of

the political process and not the end result.

                 2. The statute is not subject to strict scrutiny because it does not
                 distinguish between favored and disfavored speech.

         Before any level of judicial scrutiny is applied to determine the

constitutionality of a statute under the First Amendment, the challenger must clear

three preliminary hurdles: 1) demonstrate that the regulated activity has an

expressive component deserving of protection, 2) demonstrate that the speaker is

protected under the First Amendment, and 3) demonstrate that the speech should

be afforded a high degree of protection. Even if all of such hurdles were overcome,

only content-based regulation on private citizens’ speech would be held



44
     See Roberts, 278 S.W.3d at 790; Sanchez, 995 S.W.2d at 687.
                                               19
presumptively invalid and subject to strict scrutiny. 45 Moreover, strict scrutiny is

applied in facial challenges only to laws that distinguish between favored and

disfavored speech based on the ideas expressed.46

       Appellant cuts a wide swath in asserting that merely because the statute at

issue addresses speech, it necessarily is subject to strict scrutiny review. Such is

not in accord with precedent. Appellant fails to address precedent that addresses

private versus public servant speech, and favored versus disfavored expression.

The “Coercion of a Public Servant” statute does not make the favored/disfavored

expression distinction that would raise constitutional concern. Also, Appellant fails

to demonstrate why he should receive the benefit of heightened scrutiny where the

statute at issue is being enforced against a public servant’s threat. Appellant is not

entitled to a presumption of invalidity subject to the most severe judicial scrutiny.

Appellant’s argument that § 36.03(a)(1) and § 1.07(a)(9)(F) prohibit and burden

core political speech and, thus, should be analyzed under exacting scrutiny, is

unfounded. Core political speech involves “interactive communication concerning

political change.”47 The First Amendment affords the broadest protection to this

type of political expression in order “to assure [the] unfettered interchange of ideas




45
   See, e.g., Virginia v. Black, 538 U.S. 343, 361 (2003).
46
   United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000); Ex parte Lo, 424 S.W.3d
10 (Tex. Crim. App. 2013).
47
   See Meyer v. Grant, 486 U.S. 414, 421–22 (1988).
                                              20
for the bringing about of political and social changes desired by the people.”48 It

would be an unreasonable and unwarranted stretch to find that the founders of our

Constitution, our Legislature, and our courts should consider coercion and

extortion, which § 36.03 proscribes, as interactive communication deserving

constitutional protection. Moreover, Appellant failed to clear the substantial

hurdles necessary to invoke such a level of scrutiny.

3. Even if heightened scrutiny were applied, “Coercion of a Public Servant”
statute withstands that scrutiny.

       Judge Richardson concluded that the Coercion of a Public Servant statute

serves a compelling state interest to protect the integrity of the political process.49

The State of Texas has a singular interest in intervening when public officials try to

leverage the power of government for their personal or political whims. The State

of Texas undoubtedly has a valid and substantial interest in self-regulation. There

is also a close nexus between the compelling interest and the restriction. The

statute does not substantially include innocent behavior or criminalize protected

speech. Similar to the conduct in Sanchez, it criminalizes extortion (“either do

what I want or else something bad will happen to you”)50 which is not protected

expression.


48
   See Roth v. United States, 354 U.S. 476, 484 (1957).
49
   C.R. 477-78.
50
   Sanchez, 995 S.W.2d at 691–92 (Mansfield, J., concurring).
                                              21
         Moreover, the statute is narrowly drawn in order to include the abuse of

public authority and to employ the least restrictive means to achieve its goal. The

legislative exception under Section 36.03(c) provides a limitation that the daily

operations of government negotiation are not criminalized. Furthermore, the statute

only criminalizes two categories of coercion - physical threats and threats of

official action. In United States v. Kozminski the Supreme Court wrestled with

narrowing the definition of coercion as applied to a prosecution for involuntary

servitude. Justice Brennan recognized that “certain psychological, economic, and

social means of coercion can be just as effective as physical or legal means.” But

out of concerns for vagueness, the Court determined that the jury charge should

have been limited to “the use or threatened use of physical or legal coercion.”51

These are precisely the narrow two categories—physical or legal coercion—

defined in Section 1.07(a)(9). The Legislature could have chosen to criminalize

conduct that influences a public servant as broadly as “duress, fraud, overreaching,

harassment, intimidation, or undue influence.”52 Instead, it chose a substantially

more narrow definition.




51
     United States v. Kozminski, 487 U.S. 931, 955 (1988).
52
     See TEX. PENAL CODE § 38.12(b) (Barratry and Solicitation of Professional Employment).
                                               22
II.    The coercion statute provides adequate notice consistent with due
       process.

       Appellant asserts the face of the statute is unconstitutionally vague. An

enactment is not vague merely because it is imprecise.53 In drafting a criminal

statute, there is an inevitable balance that legislators must make between drafting it

“general enough to take into account a variety of human conduct and sufficiently

specific to provide fair warning that certain kinds of conduct are prohibited.”54 In

determining whether a statute is unconstitutionally vague, a two-part inquiry is

applied: (1) determine whether an ordinary law-abiding person receives sufficient

information from the statute that his conduct risks violating the criminal law, and

(2) determine whether the statute provides law enforcement with sufficient notice

to avoid arbitrary or discriminatory enforcement.55 In this regard, a statute is not

required to be “mathematically precise; it need only give fair warning.”56 Notably,

a statute is unconstitutionally vague “when no core of prohibited activity is

defined.”57

       When a statute does not implicate constitutionally-protected conduct, a

reviewing court should sustain the vagueness challenge only if the statute is



53
   Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Ferguson v. Estelle, 718 F.2d 730, 735
(5th Cir. 1983).
54
   Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972).
55
   Grayned v. City of Rockford, 408 U.S. 104 (1972).
56
   Id. at 110.
57
   Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987).
                                               23
impermissibly vague in all its applications.58 A person who engages in conduct that

is clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others.59

       In making its analysis, the same presumption of statutory validity is applied

when evaluating an overbreadth challenge.60 The statutory words and phrases are

to be read in context, and construed according to the rules of grammar and

common usage.61 Words and phrases that have acquired a particular meaning

through legislative definition are construed accordingly.62 Importantly, a statute

must be upheld if a reasonable construction can be determined that will render it

constitutional.63

          A. The context of the statutory meaning of the word “coercion”
             provides fair warning.

       Appellant relies primarily on the Waco Court of Appeals’ decision in State

v. Hanson64 to argue that the statute is unconstitutionally vague. The case is

distinguishable.

       In Hanson, the public official charged with violating section 36.03 had the

lawful authority to take lawful action against the persons who were victimized by

58
   Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989).
59
   Id. (citing Village of Hoffman Estates, 455 U.S. 489, 494 (1982)).
60
   Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Duncantell, 230 S.W.3d at 835;
Sanchez, 995 S.W.2d at 683; Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991).
61
   TEX. GOV’T CODE ANN. § 311.011(a) (West 2005); Sanchez, 995 S.W.2d at 683.
62
   TEX. GOV’T CODE ANN. § 311.011(b) (West 2005).
63
   Roberts 278 S.W.3d at 778; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978)
64
   State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.).
                                             24
her threat to cut funding.65 Bosque County could legally terminate funding of

employees in the district attorney’s office or district clerk’s office, and Judge

Hanson could legally request that the county attorney institute proceedings to

revoke a misdemeanant’s probation. That is, the act requested by the defendant as

part of her threat was an act that was within the scope of the lawful authority that

she, the defendant, otherwise had. In that instance, the Waco Court of Appeals

found that it was impossible for Judge Hanson to predict that her threat was

criminal, as she was demanding action that was within her purview to demand.

Such is not the situation in the instant case, as then-Governor Perry did not have

the legal authority to demand an elected district attorney’s resignation.

      But even the court in Hanson could not conclude that Section 36.03 was

vague on its face. The context of Section 36.03 and the other statutes within

Chapter 36 of the Penal Code focus on conduct to coerce a public official to act or

violate their known duty when the actor has no control or authority to do so. This is

the crux of two decisions by the Texas Court of Criminal Appeals.66

      In Board v. State, the Court explained that the context of the terms

“coercion” and “threat” provide sufficient notice because “the word ‘threat’ does

not stand alone. It must be read in the context of the statutory meaning of the word


65
  Id. at 272.
66
  See Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998,
pet. ref’d) (not designated for publication) & Sanchez, 995 S.W.2d at 677.
                                          25
‘coerce’ or ‘coercion’ as that term is defined in Penal Code Section 1.07(a)(9).”67

Otherwise, no public official could ever be prosecuted because he could claim he

didn’t intend for his comments to be viewed as a threat. This is precisely the

harm—and the difficulty in prosecuting the harm—the the Legislature sought to

remedy. Sections 6.02 and 6.03 of the Penal Code provide further clarification and

notice in terms of what makes a potential act criminal in nature.68 All of these

statutes, when considered in the context of ordinary usage and definitions, prevent

all persons, including a public official, from feigning ignorance that his threat was

not intended to be criminally coercive.

       B.      The Legislature intended to cover threats of lawful action.


       In addressing statutes involving abusive practices and coercive actions taken

by and against public officials, who better to understand the problems with the

abuse of power in political office than elected officials themselves? Members of

the Texas House, Texas Senate, and Office of the Governor all agreed in 1989 that

while power dynamics are a necessity of politics, there must be boundaries.

       The main text of Sections 36.01 and 36.03 of the Texas Penal Code have

remained the same for over forty years, and each have included threats related to

67
   Board, 1998 WL 271043 at *6; see also Sanchez, 995 S.W.2d at 689 (phrase “unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual
nature” a reasonably specific phrase for Due Process purposes).
68
   TEX. PENAL CODE ANN. § 6.03 (West 2011) (distinct, clear definitions of culpable mental
states).
                                               26
action taken by public servants.69 Notably, however, the text of Section 36.03 has

gone through extensive review, amendments, and proposed amendments during the

past 20+ years.

       On January 24, 1989 Representative Wolens filed House Bill 594 (“H.B.

594”) to propose a two-word change to how cases would be prosecuted under

Section 36.03.70 The initial draft of the bill relating to the definition of “coercion”

added the adverb “unlawfully” twice to Section 36.01(1):

       (1) “Coercion” means a threat, however communicated:
             (F) to unlawfully take or withhold action as a public servant, or to
             cause a public servant to unlawfully take or withhold action.71


       Before being voted out of committee, the definition of what constitutes

“coercion” was narrowed further. Representative Guerrero introduced a committee

substitute for H.B. 594 adding the “same governing body” exception that can be

found in the current version of Section 36.03.72 During the 2nd Reading of the bill

on the House floor, Representative Parker made two additional changes to

C.S.H.B. 594:

       1)      He added Wolens’ “unlawfully” language back into the definition of
               ‘coercion’ in Section 36.01(1)(F), Penal Code; and

       2)      He enlarged the scope of what constitutes an offense under Section
               36.03 by adding that:
69
   See Exhibit A.
70
   See Exhibit B.
71
   See Exhibit B at A-8.
72
   See Exhibit B at A-6.
                                           27
       A person commits an offense if by means of coercion he 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.73


       On April 27, 1989, H.B. 594 was passed by the Senate by a 31-0 vote. The

bill became law.

       But only for four years.

       In 1993 the Penal Code was re-writen to create State Jail Felonies, and SB

1067 included an entire rewrite of the Penal Code. The original draft of SB 1067

left 36.01 and 36.03 untouched.74 After S.B. 1067 passed the Senate, it was subject

to 58 adopted amendments on the House floor during second reading. Two changes

occurred. First, Amendment No. 28 by Naishtat would have limited prosecution of

coercion of a public servant only to the narrow category of bribery-type conduct

and not the broader version of extortionate conduct.75 The Naishtat re-write of

36.03 was passed by the House.




73
   See Exhibit B at A-14.
74
   The enrolled version of SB 1067 is 475 pages long. The full legislative history is 4,395 pages
long and can be found at: Legislative Reference Library of Texas, “SB 1067,” available at
http://www.lrl.state.tx.us/LASDOCS/73R/SB1067/SB1067_73R.pdf#page=1
The relevant pages are included in Exhibit D.
75
   See Exhibit C.
                                                28
          Because the bills passed by each chamber differed, a conference committee

was formed to adjust the differences between the Senate and the House on S.B.

1067. This resulted in a second change to the statute. The House version

eliminated the word “unlawfully” in the definition that had just been added several

years before. A summary of the legislative changes to that one word are as follows:

Action                                     History of “Unlawfully”
Rep. Wolens adds language in HB 594        “Unlawfully” added to definition of
                                           coercion in 36.01(F)
Rep. Guerrero removes language in HB “Unlawfully” removed from to
594                                  definition of coercion in 36.01(F)
Rep. Parker adds language in HB 594        “Unlawfully” added to definition of
                                           coercion in 36.01(F)
Rep. Place consolidates definitions into “Unlawfully” still in definition of
one section of the Penal code and        coercion.
moves the definition of “coercion” to
Section 1.07
Rep. Place removes language in             “Unlawfully” removed from definition
C.S.S.B. 106776                            of coercion in 1.07(F)


          The Conference Committee accepted the definition of “coercion” without

“unlawfully” and rejected Naishtat’s changes to the statute. Ultimately, the Texas

Legislature and the Texas Governor decided to approve the removal of the word

“unlawfully” from the definition of “coercion,” reject the proposed limitation of

this statute to bribery, and continue to criminalize extortionate conduct. For a

76
     See Exhibit D.
                                          29
period of time, the word unlawfully was in the definition of coercion. The effect of

adding the word unlawfully, however, is that it would have drastically reduced the

scope of public officials who could be prosecuted. Both the Legislative and

Executive Branch rejected the interpretation that a public official must commit an

illegal act as a prerequisite for prosecution of coercion of a public official, and

intentionally removed the word from the definition. Otherwise, a public official

could always hide behind a cloak of “official authority.” Thus, the current statute

was an intentional effort by our State governance to adequately define prohibited

criminal conduct.

        Elected officials in the legislative branch are the most knowledgeable

participants in the market of political power. They are the best persons to regulate

it. This is precisely why facial challenges to a statute should be difficult to mount

successfully.77 Often, such claims rest on speculation and exaggeration—such as in

this facial challenge. While this statute has been the law for at least four decades

there is no historical evidence of any chilling effect on any public officials’

actions.

       Our state officials passed a law to limit their own power.


77
   See Santikos, 836 S.W.2d at 633 (“A facial challenge to a statute is the most difficult challenge
to mount successfully because the challenger must establish that no set of circumstances exists
under which the statute will be valid. Since a statute may be valid as applied to one set of facts
and invalid as applied to another, it is incumbent upon the appellant to show that in its operation
the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to
others is not sufficient.”) (internal citations and quotations omitted).
                                                30
III. District Court Properly Held As-Applied Challenges Not Cognizable in
Pretrial Habeas Proceeding.


             A. Appellant’s Improper Reliance on Speculation.

          The trial court properly determined that a pretrial writ is not the appropriate

forum to decide whether Texas Penal Code Sections 39.02(a)(2) and 36.03(a)(1)

are being unconstitutionally applied to Appellant.78 This is not because these were

simply labeled “as applied” challenges. The entire Application for Writ of Habeas

Corpus is permeated with the assumption that Appellant is being prosecuted for

statements made at a press conference and acts in conformity with those

statements. But as the trial court explained, “The alleged and speculated upon facts

are not properly before the court at this time, and the court has no authority at this

stage to examine the evidence that was presented to the Grand Jury.”79 An “as-

applied” challenge necessarily challenges the invocation of a criminal statute “as

applied” to the particular facts of the instant case.



          The district court in the instant case has not heard any testimony, admitted

any evidence, nor taken judicial notice of any fact related to the substantive

charges against Appellant. Even so, Appellant injects a number of proposed,


78
     Order Denying Defendant’s Writ, p. 10 [C.R. 473].
79
     Order Denying Defendant’s Writ, p. 5, fn. 3 [C.R. 468].
                                                 31
speculative facts in his writ application and brief. The State disagrees with

assumptions made by Appellant in his brief and writ applications, but legal

pleadings filed in habeas proceedings are not the place to present or litigate factual

evidence. That is reserved for trial. The trial court properly denied addressing the

“as applied” claims.

       B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review.


       Appellant inaccurately argues that his claims are the “functional equivalent”

of facial challenges.80 The litmus test of an “as-applied” challenge is whether a

person is arguing that the statute is being unconstitutionally applied to this

defendant under this set of facts.81 The district court correctly cited three different

Court of Criminal Appeals opinions, each expressly prohibiting trial courts from

considering the merits of an “as applied” challenge.82 In State ex rel. Lykos v. Fine,

the Court held that an “‘as-applied’ challenge is brought during or after a trial on

the merits, for it is only then that the trial judge and reviewing courts have the

particular facts and circumstances of the case needed to determine whether the

statute or law has been applied in an unconstitutional manner.”83 Similarly, in Ex


80
   Appellant’s “as-applied” challenges are set forth in three sections of his appellate brief:
Sections III, VI and VII. These will all be addressed in this section of the State’s Brief.
81
   Order Denying Defendant’s Writ, p. 9 [C.R. 472].
82
   Order Denying Defendant’s Writ, p. 5 fn.4 [C.R. 468–69]; Id., p. 6 [C.R. 469], citing Lykos,
330 S.W. 3d at 911; Ellis, 309 S.W.3d at 79; Ex parte Weise, 55 S.W. 3d 617, 620 (Tex. Crim.
App. 2001).
83
   Lykos, 330 S.W.3d at 911.
                                               32
parte Ellis, the Court held that pretrial habeas is an extraordinary remedy that may

not be “misused to secure pretrial appellate review of matters that in actual fact

should not be put before appellate courts at the pretrial stage.”84 Finally, in Ex

parte Weise contains the Court of Criminal Appeals explicitly pronounces: “We

granted review on our own motion to decide whether a pretrial writ of habeas

corpus may issue on the ground that a penal statute is being unconstitutionally

applied because of the allegations in the indictment or information. We conclude

that it may not.”85

       Appellant argues that he advances the same type of “as-applied-to-the-

indictment challenge” as in Ex parte Boetscher. It is not. In Ex parte Boetscher the

court did not analyze conduct about whether the defendant did or did not pay child

support. Instead, it looked only to the face of the statute to find an equal protection

clause violation:

       Unlike the previous statute, however, which increased the punishment
       to a felony for defendants who committed the offense in Texas and
       then fled the state, § 25.05(g)(2) provides a felony penalty for all
       defendants who commit the offense while simply residing in another
       state. The previous punishment classification scheme did not offend
       the equal protection clause, [], but the classification scheme in § 25.05
       plainly implicates one of the basic rights of all Americans.86



84
   Ellis, 309 S.W.3d at 79.
85
   Weise, 55 S.W.3d at 620.
86
   Ex parte Boetscher, 812 S.W.2d 600, 603 (Tex. Crim. App. 1991) (citation omitted) (emphasis
in original).
                                             33
This was far closer to what we consider a facial challenge than an “as applied”

challenge.

      Similarly, Appellant advances that Ex parte Gill and Ex parte Elliot enable

this Court to analyze separation of powers violations in pretrial habeas. But neither

of these cases are the type of “as applied” challenges presented in Appellant’s writ.

Ex parte Gill was not an “as applied” challenge but a facial challenge to the bail

statute, Article 17.151. Ex parte Elliot was not an “as applied” challenge but a

facial challenge to the Texas Solid Waste Disposal Act. The facts in the cases are

irrelevant in analyzing whether the Legislature has the power to pass the

regulations. Appellant never asserts that the Texas Legislature lacks this authority;

he just reiterates that the application of the law is inapplicable as to him.

             1. The Claims Are Not Ripe For Review.

      Although Judge Richardson and this Court may have a general idea of the

facts of this case based on the indictment and the media interpretation of the events

giving rise to the indictment, the State has more evidence to present. In civil

proceedings, the theory behind the ripeness doctrine is straightforward—if

plaintiff's injury is not concrete and depends on contingent, remote, or hypothetical

facts, courts should avoid deciding the dispute. This theory has similarly been




                                           34
applied to pretrial writs of habeas corpus.87 Ripeness presents a threshold issue that

implicates the court's subject matter jurisdiction, not its discretionary authority.88

       Until the State has introduced or attempted to introduce evidence regarding

the threats which Appellant claims would violate the Speech or Debate Clause, the

separation of powers doctrine, or the constitutional application of the Abuse of

Office statute to Appellant’s conduct, these matters are not yet ripe for review.

               2. There must first be facts in evidence before this Court can
               decide Appellant’s “as applied” challenges.


       Even facial challenges can be better addressed with some factual basis in the

record. One of Appellant’s central arguments is that he is being prosecuted for

“core political speech.” However, much of the body of First Amendment caselaw

comes from the appellate court having the benefit of the words spoken, the context

of the threat, and the relationship between the parties. This is especially true in

cases involving indirect threats, retaliation, or extortion.



87
   See, e.g., Weise, 55 S.W.3d at 621 (defendant’s claim not cognizable in pretrial writ of habeas
corpus because not yet ripe for review); Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App.
2006) (in pari material claim premature before State has had opportunity to develop complete
factual record during trial); Ex parte Cross, 69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, pet.
ref’d) (“as applied” challenge to criminal trespass prosecution on First Amendment grounds not
ripe for review); Ex parte Tamez, 4 S.W.3d 366, 368 (Tex. App.—Houston [1st Dist.] 1999, no
pet.) (as applied challenge to constitutionality of perjury statutes not ripe for adjudication when
defendant had not yet been tried but claimed that unconstitutional harm was that trial court
would be unable to issue fair jury instruction).
88
   See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
                                                35
       Appellant has been charged with abuse of office and coercion of a public

official. A trial on the merits is “the main event” in our American system of justice

in which the prosecution and defense present evidence and do battle to reach a

presumptively accurate and reliable result in each particular case. 89 At a trial on the

merits, “[i]f a criminal defendant thinks that an action of the state trial court is

about to deprive him of a federal constitutional right there is every reason for his

following state procedure in making known his objection.”90 There is no evidence

for the Court to review Appellant’s claim that the two statutes are unconstitutional

as applied to him.

       The writ of habeas corpus is an extraordinary writ. The Texas Constitution

establishes an appellate system and the highest courts in Texas have developed

rules of appellate procedure where criminal matters can be reviewed and remedied.

Because of our modern appellate system, writ applications should be restricted to

only the issues which the ordinary appellate process is not capable of reviewing.

“Neither a trial court nor an appellate court should entertain an application for writ

of habeas corpus when there is an adequate remedy by appeal.”91 Moreover,




89
   Lykos, 330 S.W.3d at 919 (citing Wainwright v. Sykes, 433 U.S. 72, 97 (1977).
90
   Id.
91
   Ex parte Hopkins, 610 S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d
480, 481 (Tex. Crim. App. 1977); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App.
1978); Ex parte Delbert, 582 S.W.2d 145, 145 (Tex. Crim. App. 1979).
                                            36
“pretrial habeas is unavailable when the resolution of a claim may be aided by the

development of a record at trial.”92

C. All of Appellant’s Remaining Claims Are “As Applied” Challenges.

       Knowing that the Court of Criminal Appeals has repeatedly refused to

consider the merits of an “as applied” challenge in pretrial habeas review, litigants

have sought to stretch “as applied” challenges under the label of a “facial”

challenge. Writing for a unanimous Court in Ex parte Ellis, Presiding Judge Keller

explained that “appellants did not really advance a facial challenge, but advanced

an ‘as applied’ claim that was disguised as a facial challenge. Addressing the ‘as

applied’ substance of the claim resulted in a circumvention of the pretrial habeas

cognizability limitations.”93 Appellant’s writ application does not advance the

“functional equivalent of a facial challenge.” Judge Richardson properly treated

them as “as-applied” challenges because they are “as-applied” challenges.

       Lacking the facts at trial, Appellant refers to the “facts alleged in the

indictment” and seeks to resolve an as-applied challenge on the face of the

indictment alone. As beneficial as this perspective would be for the State, an

indictment is not evidence:

92
   Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); see also Ex parte Smith, 185
S.W.3d at 893.
93
   Ellis, 309 S.W.3d at 81; see also Karenev v. State, 281 S.W.3d 429, 441 (Tex. Crim. App.
2009) (Cochran, J. concurring) (“I think the court of appeals was mistaken in transforming
appellant’s subterranean sufficiency of evidence argument into a full-fledged First Amendment
attack upon the facial constitutionality of the harassment statute.”).
                                              37
       If the introduction of the indictment constituted a prima facie case of
       guilt, then it would seem that the State would be justified before the
       jury in making out a prima facie case of murder in the first degree by
       simply introducing the indictment and resting its case, requiring
       thereby that the accused party should introduce evidence to disprove
       the finding of the grand jury. This under no authority would be
       correct.94

Under our rules, the fact that Appellant was indicted is not evidence. Neither are

interpretations of the indictment by counsel, assumptions made in motions, or

recitation of assumed “facts” in briefs. Lawyers cannot create facts through

pleadings.

       As a corollary, Petitioner cannot argue that allegations in an indictment

provide facts for pretrial habeas relief. This tact was recently tried and rejected in

Ex parte Ragston. Ragston involved an attempt to raise an “as-applied” challenge

in a pretrial writ based on the holdings in Roper v. Simmons and Miller v.

Alabama, two United States Supreme Court decisions restricting the types of

punishments available for those under the age of 18.95 The State conceded that

Texas’ sentencing statute would be unconstitutional in light of Roper and Miller.96

However, the State argued and the court upheld that the complaint was not

cognizable in an application for a pretrial writ of habeas corpus.97 The only fact

that needed to be addressed was Ragston’s age, and the constitutional principle had
94
   Ex parte Firmin, 60 Tex.Crim. 368, 375 (Tex. Crim. App. 1910).
95
   Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.—Houston [14th Dist.] 2013), citing Roper
v. Simmons, 543 U.S. 551, 574–75 (2005); Miller v. Alabama, 132 S.Ct. 2455 (2012).
96
   Ragston, 402 S.W.3d at 475.
97
   Id. at 476.
                                            38
already been settled by the Supreme Court. Yet, both the trial court and court of

appeals properly denied the application for pretrial writ as the issue could be

properly addressed on appeal if he was convicted. Any challenge in the writ that

relies upon language in the indictment or media is inappropriate..

        Because a statute may be valid as applied to one set of facts and invalid as

applied to a different set of facts, a litigant must show that, in its operation, the

challenged statute was unconstitutionally applied to him; that it may be

unconstitutional as to others is not sufficient, or relevant. 98

        Appellant heavily relies upon his role as Governor of the State of Texas—

and the assumptions about why he is being prosecuted—to advance each of his

claims:

     1) Separation of powers
        -“By requiring the judiciary to scrutinize a gubernatorial veto, this
        prosecution unduly interferes. . .”99

        -“Allowing a criminal prosecution of a political decision where there is no
        allegation of bribery or demonstrable corruption. . .”100

     2) Speech or Debate clause
        -“Count I is predicated upon a legislative act of Governor Perry—the veto—
        and Count II involves the Governor’s alleged discussions with his staff
        regarding the anticipated legislative act and its announcement.”101



98
   See Santikos, 836 S.W.2d at 633; Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App.
1981).
99
   Application for Writ, [C.R. 21].
100
    C.R. 23.
101
    C.R. 28.
                                              39
         -“Should the face of the indictment not be sufficient to sustain this assertion,
         the Court should review the transcripts of the grand jury in camera.”102

      3) Facial challenge to the constitutionality of Texas Penal Code § 36.03(a)(1)
         (Coercion of Public Servant or Voter)
         -“Core political speech, such as the veto and the alleged veto threat in this
         case, lies at the very heart of First Amendment protection.”103

         -“Even assuming (for purposes of argument only) that [Appellant] did in fact
         “threaten” a veto in this case, and even assuming that Lehmberg had
         resigned under such a threat, Texas courts have repeatedly held that
         resignation under such circumstances does not constitute ‘duress.’” 104

         All of these claims are substantively “as-applied” challenges, carrying

factual assumptions that Appellant is making to support his challenge. “If a claim

designated as a facial challenge is in fact an as-applied challenge, courts should

refuse to consider the merits of the claim.”105

         Thirty years ago, lawyers for Jim Mattox advanced the same arguments as

Appellant now urges. Mattox was accused of threatening to delay and deny

approval of municipal bonds that were within his power to approve as acting

Attorney General.106 In summarily dismissing his pretrial habeas corpus

proceeding, which sought to sidestep a trial, the court of appeals treated the

Attorney General the same as every other citizen: “Mattox does not assert any


102
    Id.
103
    C.R. 30.
104
    C.R. 35.
105
    Ellis, 309 S.W.3d at 80 (reversing Third Court of Appeals for improperly resolving “as
applied” challenge on pretrial habeas review under auspices of facial challenge).
106
    Jim Mattox’s case proceeded to jury trial, and a Travis County jury acquitted him of
commercial bribery.
                                               40
extraordinary interest that would justify the delay and judicial wheelspinning that

would result were defendants authorized to institute pretrial collateral proceedings,

complete with interlocutory appeals, to test the sufficiency of the allegations in a

charging instrument.”107 The court explained that Mattox was legally entitled to

challenge the sufficiency of the indictment in a motion to quash, and like every

other defendant accused of a crime, should the motion be overruled and he be

convicted, he could take the issue up on appeal.108

       Moreover, “[h]abeas corpus is an extraordinary remedy and is available only

when there is no other adequate remedy at law.”109 Neither a trial court nor an

appellate court should entertain a petition for writ of habeas corpus when there is

an adequate remedy by appeal.110 The fact that the defendant has filed a Motion to

Quash raising grounds identical to those in the writ of habeas corpus—the trial

court granted relief on one of the grounds—is the best illustration why the

remaining claims were properly denied at this point in the process. Because the

issues raised by the writ are better addressed on direct appeal, Appellant has an

adequate remedy at law. The trial court properly denied relief.

       Appellant sought a declaratory judgment from the trial court that the Abuse

of Office statute (Section 39.02) should not apply to his conduct. Judge Richardson
107
    Ex parte Mattox, 683 S.W.2d 93, 96 (Tex. App.—Austin 1984, pet. ref’d).
108
    Id.
109
    Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007) (citing Ex parte Townsend,
137 S.W.3d 79, 81 (Tex. Crim. App. 2004)).
110
    Weise, 55 S.W.3d at 619.
                                             41
properly refused to make this determination as the statute is constitutional.111

Although construing a former version of Section 39.02, the court in Margraves v.

State determined the statute was not unconstitutionally vague: “The statute requires

that a public servant use government property only in ways that are authorized.”112

However, under Appellant’s interpretation of the Rule of Lenity, it would be unfair

to prosecute him for an illegal use of his veto because it has never been done

before.

       The Rule of Lenity is a rule of statutory interpretation—not one of

interpreting a defendant’s conduct. “When [the] choice has to be made between

two readings of what conduct Congress has made a crime, it is appropriate, before

we choose the harsher alternative, to require that Congress should have spoken in

language that is clear and definite.”113 Section 39.02 is clear and definite. As the

Court of Criminal Appeals noted in Cuellar v. State, “Fortunately, Texas courts

rarely need resort to the Rule of Lenity to construe its penal provisions. By and

large, the Texas Legislature drafted the Texas Penal Code with clarity, precision,

and straightforward, well-defined language.”114 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
111
    Order Denying Defendant’s Writ, p. 2 [C.R. 464].
112
    Margraves v. State, 34 S.W.3d 912, 921 (Tex. Crim. App. 2000) (overruled on other grounds
by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)).
113
    United States v. Bass, 404 U.S. 336, 347 (1971).
114
    Cuellar v. State, 70 S.W.3d 815, 822 (Tex. Crim. App. 2002).
                                             42
both Coercion of a Public Servant and Abuse of Office. The grand jury indicted

Appellant, and Appellant has the absolute right to dispute whether or not his

actions constitute a crime at trial. But this necessarily requires witnesses and

evidence and, most importantly, context that can only happen at trial.



IV. Separation of Powers Doctrine Allows Judicial Branch to Check
    Coercive Use of Executive Power.

      Appellant seeks two extensions of law.

      First, he asks that this court grant him more power. While arguing one side

of the separation of powers doctrine, he seeks dismissal of the indictment because

this branch may not scrutinize gubernatorial action. But Appellant further argues

that he is entitled to legislative powers such as Speech or Debate privilege and

legislative immunity—precisely the type of assumption of power the separation of

powers doctrine protects against. Although Texas is a weak governor state,

Appellant argues that it is the most powerful branch.

      Second, Appellant argues that he has a right “not to be tried” akin to double

jeopardy. The only possible source for this right would be the political question

doctrine, and this is not a case involving political question. Appellant advocates

that the separation of powers doctrine be both a shield and a sword.

      The State posits that the judicial branch is the only proper division of

government to resolve a criminal allegation that Appellant illegally abused his

                                         43
power against a specific individual for an unlawful purpose. Applicant argues that

allowing a criminal prosecution where there is no allegation of bribery undermines

the basic structure of state government. Applicant’s claim is that the indictment –

not the Coercion of a Public Official statute – is unconstitutional. This is either an

“as applied” challenge or, interpreted in the strongest light, a challenge to the trial

court’s jurisdiction. If either of these arguments were correct, the Legislature or the

Texas Constitution would exempt a governor from prosecution.

       The Texas separation of powers provision “reflects a belief on the part of

those who drafted and adopted our state constitution that one of the greatest threats

to liberty is the accumulation of excessive power in a single branch of

government.”115 The authority cited in Appellant’s brief discusses the importance

of the separation of powers doctrine as it pertains to legislative encroachment on

the judicial branch. Appellant fails to cite any authority, however, of how a

criminal investigation and an indictment against a public official is a violation of

the separation of powers. In Appellant’s view, he could never be prosecuted for a

threat or promise made in connection with his power to veto. Surely, this cannot be

true. Otherwise, every bribery or extortion prosecution would be barred by the

separation of powers doctrine. If, for example, evidence is presented at trial
115
   Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990); see also
Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1035 (Tex. 1934) (“So important is this
division of governmental power that it was provided for in the first section of the first article of
the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding
Constitution.”).
                                                 44
demonstrating that Appellant exchanged his power to veto for money, or Appellant

vetoed funding of a special prosecution unit because the unit was investigating

allegations of his own misdeeds, the judicial branch would unquestionably have

the power to prosecute. Similarly, the Texas Constitution also allows the Governor

to fill “all vacancies in State or district offices.”116 Like the veto power, this is a

power exclusive to the Governor. If evidence was brought to light that the

Governor was soliciting bribes to fill these positions would Appellant’s separation

of powers argument prohibit judicial intervention?

       Here, the Legislature defined the crime and specifically delegated to the

judicial branch the discretion to prosecute the crime. This is a proper delegation of

constitutional authority. “[The] Legislative Branch is not so well suited as

politically independent judges and juries to the task of ruling upon the

blameworthiness of, and levying appropriate punishment upon, specific

persons.”117

       In the same vein, Appellant also argues that this issue is a nonjusticiable

political question. The argument is misplaced. The political question doctrine

commonly arises when the judiciary is asked to intervene in the legislature’s

impeachment process.118 The political question doctrine also arises when one

116
    TEX. CONST. art. IV, § 12.
117
    United States v. Brown, 381 U.S. 437, 445 (1965).
118
    See Nixon v. United States, 506 U.S. 224, 228 (1993) (Supreme Court declined to intervene
and interpret whether full evidentiary impeachment hearing constituted a “trial” in the Senate).
                                               45
branch of government seeks the judiciary to resolve a dispute within its own

branch or with another branch.119 In addition to being nonjusticiable political

questions, these matters are often not ripe for review.

       Appellant asserts the same separation of powers argument that Governor

Mandel asserted when he was prosecuted for his official acts as governor of

Maryland.120 This argument was rejected. The United States Supreme Court

rejected the same type of argument posed by a judge prosecuted for committing a

crime in connection with his official duties:121 “Whether the act done by him was

judicial or not is to be determined by its character, and not by the character of the

agent. Whether he was a county judge or not is of no importance.” As noted by the

Court, even if the complained-of act is an otherwise “lawful” act by a public

official, can the act charged be considered lawful when he acted in direct violation

of the spirit of the statute?

       Again, the same argument made by Governor Blagojevich of Illinois was

rejected:122

               Distilled to its essence, the Governor's position is that the
               constitutionality of his official actions is simply not subject to judicial

119
    See Coleman v. Miller, 307 U.S. 433, 436 (1939) (dispute within the state senate of Kansas
about whether the lieutenant governor could cast the deciding vote in the senate); Goldwater v.
Carter, 444 U.S. 996, 997 (1979) (political disagreement about whether the President could
unilaterally terminate a treaty with Taiwan).
120
    See United States v. Mandel, 415 F.Supp. 997, 1003 (D.Md. 1976) (overruled on other
grounds) (separation of powers argument rejected).
121
    See Ex parte Virginia, 100 U.S. 339 (1879).
122
    See Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004).
                                               46
               oversight. No Illinois court has ever so held. Such a claim is, in fact,
               incompatible with the principles of separation of powers and checks
               and balances that are the foundation for our tripartite system of
               government. The executive branch, no less than the legislative branch,
               is bound by the commands of our constitution. The judicial power of
               the State of Illinois is vested in the courts (Ill. Const.1970, art. VI, §
               1), and it is the duty of the judiciary to construe the constitution and
               determine whether its provisions have been disregarded by either of
               the other branches of government. If officials of the executive branch
               have exceeded their lawful authority, the courts have not hesitated and
               must not hesitate to say so.


       The separation of powers doctrine does not cloak a public official with

immunity from prosecution for abusing his authority.

       The instant case is not a political question, nor a matter of whether a veto is

proper. It is a matter of whether Appellant committed criminal acts in abusing the

power that had been bestowed upon him as governor. The grand jury applied the

facts to the law and returned an indictment. Appellant argues he did not break the

law. The State alleges he did. This is precisely why the justice system exists: to

resolve these types of disputes.

       Appellant’s final argument that relief must be granted to avoid a “deleterious

impact on the efficient operation of state government” should also be rejected. This

same argument was raised – and rejected – by the United States Supreme Court in

Clinton v. Jones.123 In rejecting President Bill Clinton’s request to temporarily stay


123
   Clinton v. Jones, 520 U.S. 681, 697–98 (1997) (“[P]etitioner contends that he occupies a
unique office with powers and responsibilities so vast and important that the public interest
                                               47
civil proceedings until he completed his term of office, the Supreme Court

concluded “if Congress deems it appropriate to afford the President stronger

protection, it may respond with appropriate legislation.”124 “The Federal District

Court has jurisdiction to decide this case. Like every other citizen who properly

invokes that jurisdiction, respondent has a right to an orderly disposition of her

claims.”125

       The Texas Constitution could have provided an express provision that a

governor is immune from prosecution during his term of office. The Texas

Legislature could specifically exempt a governor from prosecution for Abuse of

Office or Coercion of a Public Official. It has not done so. . Barring a specific

prohibition, the separation of powers doctrine requires the judiciary branch to

fulfill its constitutional duty under Article 5 of the Texas Constitution.

V.     A Governor is Not Immune from Criminal Prosecution.

       Appellant claims he is immune from prosecution because everything he

and/or his staff said is privileged from prosecution under the Speech or Debate

Clause of the Constitution and/or through the related doctrine of legislative

immunity. The United States Supreme Court made it clear in stating “the


demands that he devote his undivided time and attention to his public duties. He submits that—
given the nature of the office—the doctrine of separation of powers places limits on the authority
of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by
allowing this action to proceed.”).
124
    Id. at 709.
125
    Id. at 710.
                                               48
immunities of the Speech or Debate Clause were not written into the Constitution

simply for the personal or private benefit of Members of Congress, but to protect

the integrity of the legislative process by insuring the independence of individual

legislators.”126 And it was particularly not intended to make legislators “super-

citizens, immune from criminal responsibility.”127 Moreover, the text of the clause

makes it evident that it was intended for legislative discourse, not executive vetoes.

       The Speech or Debate Clause was intended to apply to legislators

communicating with each other and their staffs about the legislative acts they were

involved in considering. The instant case, conversely, focuses on a criminal threat

made by a member of the executive branch to a public official of a different

jurisdiction in an attempt to force that public official to resign. The criminal threat

was not a part of a debate among legislators, and the State is not attempting to look

behind any piece of legislation. Additionally, the facts at issue may prove to be

statements made for political reasons, rather than in consideration of a legislative

act, which would place it outside the purview of protection that the Speech or

Debate Clause was designed to protect.128




126
    United States v. Brewster, 408 U.S. 501, 507 (1972).
127
    Brewster, 408 U.S. at 516 & 521 (“It can hardly be thought that the Speech or Debate Clause
totally protects what the sentence preceding it has plainly left open to prosecution, i.e. all
criminal acts.”).
128
    Brewster, 408 U.S. at 512.
                                              49
      A. Texas state Speech or Debate Privilege Narrower than federal Speech or
         Debate Privilege.

        The Texas Court of Criminal Appeals has analyzed the scope of the Texas

Speech or Debate Clause only once. In Mutscher v. State,129 two Members of the

House of Representatives and a state employee were convicted of conspiracy to

accept a bribe. The testimony at trial included evidence about bills presented at

committee meetings, how bills were approved by the committee, and how bills

were passed by the House.130 The theory of the prosecution was that the two

Members used their vote, influence and powers of their office to procure and assist

in the passage of certain legislation.131

        Prior to trial, the Members moved to quash the indictment on Speech or

Debate privilege grounds.132 The trial court overruled the motion prior to any

evidence being produced.133 On appeal, the Members of the Texas Legislature

argued that the Speech or Debate provisions of the State and Federal Constitutions

barred any inquiry into the vote of a legislator or the motivations behind that

vote.134 Unlike the federal constitution, the Texas Constitution has a specific

provision directed against abuse of office by public officials. In denying Speech or

Debate privilege for the Texas legislators accused of bribery, the Court cited
129
    Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974).
130
    Mutscher, 514 S.W.2d at 911.
131
    Id. at 909.
132
    Id. at 913.
133
    Id. at 914.
134
    Id.
                                             50
Article XVI, Section 41 of the Texas Constitution. The court reasoned that this

specific constitutional provision provides the mandate for prosecution of members

of the Legislature, executive officials and judicial officers.135 The court rejected the

defendants’ proposition that the general provisions of the Speech or Debate clause

would bar prosecution.136 Most significantly, the Court of Criminal Appeals

decided Mutscher in 1974. The court had the benefit of two of the most important

United States Supreme Court cases on this issue: United States v. Johnson137 and

United States v. Brewster.138 The more prudent perspective is to acknowledge the

Court of Criminal Appeals’ interpretation of the Clause in 1974 after the seminal

United States Supreme Court cases were decided in 1966 and 1972. Our Texas

court explicitly rejected the broad application of the Speech or Debate Clause as

advanced by the U.S. Supreme Court. Appellant’s broad and dated application

should equally be rejected.

       In Texas, our constitutional Speech or Debate privilege cannot be viewed as

a protective bar to criminal prosecution given our state’s specific constitutional

provision requiring prosecution of public officials. This interpretation is consistent

with the Speech or Debate Clause protecting Members from civil liability, but is

not the type of absolute protection posited by the Appellant.

135
    Id. at 915.
136
    Id.
137
    United States v. Johnson, 383 U.S. 169 (1966).
138
    Brewster, 408 U.S. at 501.
                                               51
       Appellant may respond that the crime of bribery is different than Abuse of

Official Capacity or Coercion of a Public Servant, and that Mutscher should be

read to restrict the Speech or Debate privilege only to bribery offenses. But the

principle relied upon by the court was that a criminal act of bribery could not

conceivably be interpreted as a legislative act.139 The same principle is applicable

to criminal threats and coercion. Additionally, such an argument would still not

explain how a governor would be entitled to assert the Speech or Debate privilege

when the court read the provision so narrowly for two members of the Legislature.

Further, Article XVI, Section 41 is incredibly broad. It reaches conduct far beyond

the vagueness complained about in Appellant’s writ, such as “indirect

testimonials,” “privileges,” and “personal advantages.”140 It even criminalizes

“implied” conduct.141 Moreover, the bribery statute cited in Mutscher was

recodified from Article 159 of Vernon’s Annotated Penal Code to Section 36.02 of

the Texas Penal Code. The Governor is indicted for violating Section 36.03 of the

Texas Penal Code. The court’s analysis in Mutscher would apply to the offenses

charged.

       After analyzing Brewster, the court held that illegal conduct is not part of the

legislative process and is not deserving of privilege.142 The trial court allowed

139
    Mutscher, 514 S.W.2d at 915.
140
    TEX. CONST. art. XVI, § 41.
141
    Id.
142
    Mutscher, 514 S.W.2d at 905.
                                          52
legislative acts of the defendant to come into evidence.143


      B. The Speech or Debate Privilege applies to Members of the Legislature,
         not a Governor.

               1. No governor ever has been afforded Speech or Debate privilege
                  or legislative immunity from criminal prosecution.


        In 1976, Governor Marvin Mandel of Maryland filed a motion to dismiss his

indictment arguing that he was entitled to invoke the doctrine of legislative

immunity as a bar to prosecution.144 Governor Mandel argued that “the Maryland

Constitution allocates to him as Governor certain legislative functions, among

them the discretionary power to recommend legislative matters for the

consideration of the General Assembly and the power to approve and veto bills

passed by the legislature.”145 Because he participates in the legislative process,

Governor Mandel argued that he was entitled to invoke legislative privilege to

forbid inquiry into his legislative acts or the motivation behind them. 146 He further

argued that the doctrine of legislative immunity should bar the prosecution of his

case.147

        The trial court denied Governor Mandel’s motion to dismiss and rejected his

143
    Id.
144
    The trial court addressed this argument in two separate opinions: United States v. Mandel,
415 F.Supp. 997 (D.Md. 1976) (March 31, 1976 opinion) and United States v. Mandel, 415
F.Supp. 1025, 1026–27 (D.Md. 1976) (May 4, 1976 supplemented opinion).
145
    Mandel, 415 F.Supp. at 1030.
146
    Mandel, 415 F.Supp. at 1030–1031.
147
    Mandel, 415 F.Supp. at 997.
                                               53
claim for legislative immunity:148

       [A] criminal prosecution of a chief executive officer based on that
       officer's legislative acts does not threaten the independence of the
       legislature. No legislator is here being called upon to explain his acts
       before a ‘hostile judiciary’ as a consequence of a prosecution brought
       by an ‘unfriendly executive’; no acts of any legislator or of the
       legislature itself are being called into question. The only alleged
       legislative acts before the Court are those of the Governor.

       That is not to say, of course, that exposing the executive to criminal
       liability for his legislative acts does not indirectly affect the legislative
       process; it is merely to say that it does not interfere with the due
       functioning of the legislative process, and that it does not threaten the
       independence of the legislature.


Similarly, when Governor Rod Blagojevich tried this same argument in defense of

a civil suit that arose in conjunction with his federal criminal prosecution, the

Seventh Circuit Court of Appeals flatly rejected his argument:149

       The state constitution’s speech-and-debate provision is limited by its
       terms to members of the Illinois General Assembly and is plainly
       inapplicable to Blagojevich. The same would be true of the U.S.
       Constitution’s Speech or Debate Clause, which applies only to
       legislators and their aides.150

       In the history of Speech or Debate clause jurisprudence, the privilege has not


148
    Mandel, 415 F.Supp. at 1031 (citation omitted) (emphasis added).
149
    Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 531 (7th Cir. 2011).
150
    In this case, the court found that Blagojevich was entitled to legislative immunity based upon
federal common law. Judge Posner wrote a lengthy dissent. Citing U.S. v. Gillock, Judge Posner
observed that under federal common law of legislative immunity for state officials, criminal
prosecution is not barred. Empress Casino, 638 F.3d at 543. Thus, he suggested certifying the
question of whether the common law of official immunity in Illinois should permits a suit to go
forward against a governor when the suit is based on his performing a legislative act for a
criminal purpose to the Supreme Court of Illinois. Id. at 544.
                                                54
been afforded to every legislator who raised it. But in nearly every single federal

case cited by Appellant it is a member of the legislature who claims the Speech or

Debate privilege.151 The defendants and parties listed are exclusively members of

the legislative branch. This is why court opinions refer to the applicability of the

Clause to “members” and “legislators.”152 In the history of the Speech or Debate

clause jurisprudence, the privilege has never been extended to a governor.


               2. The privilege does not extend to all legislative-related topics of
                  conversation.

       In United States v. Gravel, the Supreme Court held that a United States

Senator had no testimonial privilege from being questioned by a federal grand jury

about whether he distributed classified government documents because the

communications were outside the scope of legislative activity.153 The court also

focused on whether the communication was “essential to the deliberations of the

Senate” and whether the request by the grand jury would “threaten the integrity or

independence of the Senate by impermissibly exposing its deliberations to

executive influence.”154

       Conversely, a governor may sign a bill into law, but a governor cannot

introduce a bill, hold a committee hearing on a bill, or amend a bill if he wants to
151
    See Exhibit E.
152
    U. S. v. Gillock, 445 U.S. 360, 366 n.5 (1980) (“ . . . benefits of the Federal Speech or Debate
Clause, which by its terms applies only to ‘Senators and Representatives’”).
153
    Gravel v. United States, 408 U.S. 606, 624–625 (1972).
154
    Id. at 625.
                                                55
alter it before signing it into law. He simply may sign the bill or veto it. Any

communication with the governor is not as “essential part” of the process of a bill

becoming a law. It is more similar to the administration of the law. Moreover, even

where a member can assert the Speech or Debate privilege, it is limited to past

legislative acts. “[I]t is clear from the language of the Clause that protection

extends only to an act that has already been performed. A promise to deliver a

speech, to vote, or to solicit other votes at some future date is not ‘speech or

debate.’ Likewise, a promise to introduce a bill is not a legislative act.”155 For

example, in the trial of Governor Mandel, the trial court rejected the governor’s

argument that the privilege applied to any and all discussion relative to his

actions.156

          C. The common law doctrine of legislative immunity does not make a
             Texas governor above the law.

          The Speech or Debate privilege is an evidentiary privilege that may be

asserted in both civil and criminal complaints. Legislative immunity, however,

prevents public officials from being held civilly liable for their official acts.

          Appellant infers that legislative immunity and the Speech or Debate

privilege are substantially the same, and that legislative immunity may apply to the

instant case. The structure of his argument appears to have several steps:


155
      United States v. Helstoski, 442 U.S. 477, 490 (1979).
156
      Mandel, 415 F.Supp. at 1024.
                                                  56
 1.    Members of the legislature enjoy legislative immunity from civil suits;

 2.    One of the sources of legislative immunity is the Speech or Debate Clause
       Privilege;

 3.    A line-item veto is a legislative activity;

 4.    Governor enjoys legislative immunity for civil suits because his veto is a
       legislative activity;

 5.    Therefore, the Governor should also enjoy Speech or Debate Clause
       privilege because his veto is a legislative activity.


       Appellant’s flow is flawed.

       Several factors have created confusion about the applicability of each. First,

the two doctrines are similar in that both protect public officials from being

compelled to testify about their past legislative acts. Second, the concepts are

intertwined, and the terms are used interchangeably when invoked by a member of

the legislature. “Despite the frequent invocation of the federal Speech or Debate

Clause in Tenney, the Court has made clear that the holding was grounded on its

interpretation of federal common law, not on the Speech or Debate Clause.”157

State courts in Illinois, Maryland and New York have also recognized a

distinction.158 Things are further complicated by the interpretation of federal vs.

state common law. State courts may look to the federal interpretation of the Speech


157
  Gillock, 445 U.S. at 372 n.10.
158
  Pulliam v. Allen, 466 U.S. 522, 536–38 (1984); Supreme Court of Virginia v. Consumers
Union of U.S., Inc., 446 U.S. 719, 736–37 (1980).
                                            57
or Debate Clause, but the process quickly becomes muddled when you combine

the state common law on legislative immunity.

          Characterizing a veto as a legislative act may be sufficient to prevent a

governor from being deposed in a civil suit. But no court has ever held the civil

immunity provides a privilege against criminal prosecution. Every United States

Supreme Court that addresses legislative immunity in the context of the Speech or

Debate privilege confirms: immunity is not a bar to criminal prosecution. Instead,

the fact that the public official enjoys legislative immunity is precisely why

criminal prosecution is the only avenue for justice.

          In United States v. Gravel, the Supreme Court directly addressed this issue:

          Article I, s 6, cl. 1, as we have emphasized, does not purport to confer
          a general exemption upon Members of Congress from liability or
          process in criminal cases. Quite the contrary is true. While the Speech
          or Debate Clause recognizes speech, voting, and other legislative acts
          as exempt from liability that might otherwise attach, it does not
          privilege either Senator or aide to violate an otherwise valid criminal
          law in preparing for or implementing legislative acts. If republication
          of these classified papers would be a crime under an Act of Congress,
          it would not be entitled to immunity under the Speech or Debate
          Clause. It also appears that the grand jury was pursuing this very
          subject in the normal course of a valid investigation.159

          In Gillock, the Supreme Court held that “[t]he cases in this Court which have

recognized an immunity from civil suit for state officials have presumed the

existence of federal criminal liability as a restraining factor on the conduct of state


159
      Gravel, 408 U.S. at 627.
                                            58
officials.”160 In O’Shea v. Littleton the Supreme Court explained:

       Whatever may be the case with respect to civil liability generally, . . .
       or civil liability for willful corruption, . . . we have never held that the
       performance of the duties of judicial, legislative, or executive officers,
       requires or contemplates the immunization of otherwise criminal
       deprivations of constitutional rights. . . . On the contrary, the
       judicially fashioned doctrine of official immunity does not reach ‘so
       far as to immunize criminal conduct proscribed by an Act of Congress
       . . . .’161


       The Supreme Court repeated this principle again in Imbler v. Pachtman.162

Appellant provides no legal basis for departing from that long-established rule.163


       The executive power of veto is powerful, but it cannot be the basis for

immunity from prosecution for criminal acts committed in connection with his

exercise of such veto. Because it is a specifically enumerated privilege for the

legislative department, an expressly enumerated provision of the Texas

Constitution is the only grounds for his right to assert that privilege. To hold




160
    Gillock, 445 U.S. at 372.
161
    O’Shea v. Littleton, 414 U.S. 488 (1974) (emphasis added) (citations omitted).
162
    Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never suggested that the
policy considerations which compel civil immunity for certain governmental officials also place
them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity
for centuries, could be punished criminally for willful deprivations of constitutional rights…”).
163
    Hutchinson v. Proxmire, 443 U.S. 111, 127–128 (1979) (speech or debate clause did not
protect transmittal of defamatory material about wasteful government spending in press release
issued by senator).
                                               59
otherwise would be a violation of Texas’ separation of powers clause.164 The text

of the Constitution underlies the practical reality: the Speech or Debate privilege is

simply not applicable to the work performed by a governor. The Texas

Constitution provides this privilege to “members.” While the Lt. Governor is an

active member of the Senate and would be afforded the Speech or Debate

privilege, the governor is not and should not be afforded the privilege.




164
   See TEX. CONST. art. II, § 1 (“[N]o person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others, except in the
instances herein expressly permitted.”).
                                                60
                                       PRAYER

      Appellee respectfully prays that this Court uphold the constitutionality of the

statutes at issue and the trial court’s decision.



                                         Respectfully submitted,

                                         /s/ Michael McCrum
                                         MICHAEL MCCRUM
                                         State Bar No. 13493200
                                         District Attorney Pro Tem
                                         Travis County, Texas
                                         700 N. St. Mary’s St., Suite 1900
                                         San Antonio, TX 78205
                                         Telephone: (210) 225-2285
                                         Facsimile: (210) 225-7045
                                         michael@mccrumlegal.com

                                         /s/ David M. Gonzalez
                                         DAVID M. GONZALEZ
                                         Assistant District Attorney Pro Tem
                                         Travis County, Texas
                                         206 East 9th Street, Suite 1511
                                         Austin, Texas 78701
                                         Telephone: (512) 381-9955
                                         Facsimile: (512) 485-3121
                                         david@sg-llp.com

                                         ATTORNEYS FOR
                                         THE STATE OF TEXAS




                                           61
                      CERTIFICATE OF COMPLIANCE

       I hereby certify that this document was generated by a computer using

Microsoft Word which indicates that the word count of this document except the

following: caption, identity of parties and counsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance, and appendix is

14,899 per Tex.R.App. P. 9.4(i).




                                               /s/ Michael McCrum
                                               Michael McCrum




                                          62
                         CERTIFICATE OF SERVICE

            I hereby certify that on March 27, 2015, a true and correct copy of

Appellee’s Brief was served on the following parties in accordance with the

requirement of the Texas Rules of Appellate Procedure via electronic filing:



David L. Botsford
Botsford & Roark
1307 West Ave.
Austin, TX 78701
(512) 479-8040 Facsimile
dbotsford@aol.com

Thomas R. Phillips
Baker Botts, L.L.P.
98 San Jacinto Blvd., Ste. 1500
Austin, TX 78701
(512) 322-8363 Facsimile
Tom.phillips@bakerbotts.com

Anthony G. Buzbee
The Buzbee Law Firm
600 Travis St., Ste. 7300
Houston, TX 77002
(713) 223-5909 Facsimile
tbuzbee@txattorneys.com

                                             /s/ Michael McCrum
                                             Michael McCrum




                                        63
EXHIBIT A
TEX. PENAL CODE § 36.01
TEX. PENAL CODE § 36.03

     1973 Version




          A-1
A-2
A-3
A-4
EXHIBIT B
TEX. PENAL CODE § 36.01
TEX. PENAL CODE § 36.03

    1989 Revisions




          A-5
A-6
A-7
A-8
A-9
A-10
A-11
A-12
A-13
A-14
A-15
A-16
A-17
A-18
A-19
A-20
A-21
A-22
A-23
A-24
A-25
A-26
A-27
A-28
A-29
A-30
A-31
A-32
A-33
A-34
A-35
A-36
 EXHIBIT C
TEX. PENAL CODE § 36.03

     1993 Revisions
Rep. Naishtat Amendment




          A-37
A-38
EXHIBIT D
TEX. PENAL CODE § 36.01
TEX. PENAL CODE § 36.03

    1993 Revisions




          A-39
1993 REVISIONS TO CHAPTER 36
      BY THE HOUSE OF
      REPRESENTATIVES


   C.S.S.B. NO. 1067
      Pages 191 – 194




             A-40
       "Unlawfully"
       correctly cited in
       current law. All
       definitions are
       slated for removal
       from this section




A-41
A-42
A-43
A-44
1993 REVISIONS TO SECTION 1.07
       BY THE HOUSE OF
      REPRESENTATIVES


   C.S.S.B. NO. 1067
         Pages 5 – 6




              A-45
A-46
       Definitions from
       Section 36 are
       relocated to
       Section 1.07.
       However,
       "unlawfully" is
       removed from the
       definition.




A-47
     EXHIBIT E
SPEECH OR DEBATE PRIVILEGE CHART




              A-48
                                SPEECH OR DEBATE PRIVILEGE:
               MEMBERSHIP OF POLITICAL BRANCH AFFORDED THE PRIVILEGE


CASE                        JURISDICTION        POLITICAL BRANCH OF DEFENDANT
Mutscher v. State,          COURT OF CRIMINAL   Gus F. Mutscher, Jr.: Speaker of the Texas House of
514 S.W.2d 905              APPEALS OF TEXAS    Representatives
(Tex.Crim.App.1974)
                                                S. Rush McGinty: Executive Assistant to Speaker Mutscher
                                                Thomas C. Shannon: Member of the Texas House of
                                                Representatives

United States v. Gillock,    UNITED STATES      Tennessee state senator
445 U.S. 360 (1980)          SUPREME COURT


Hutchinson v. Proxmire,      UNITED STATES      United States Senator from Wisconsin
443 U.S. 111 (1979)          SUPREME COURT


United States v.             UNITED STATES      Member of United States House of Representatives from New
Helstoski,                   SUPREME COURT      Jersey
442 U.S. 477 (1979)

United States v.             UNITED STATES      United States Senator from Maryland
Brewster,                    SUPREME COURT
408 U.S. 501 (1972)

Gravel v. United States,     UNITED STATES      United States Senator of Alaska
408 U.S. 606 (1972)          SUPREME COURT


United States v. Johnson,    UNITED STATES      United States Congressman from Maryland
383 U.S. 169 (1966)          SUPREME COURT


Tenney v. Brandhove,         UNITED STATES      Member of the California Legislature and other members of a
341 U.S. 367 (1951)          SUPREME COURT      committee of the California Legislature. (Mayor of San
                                                Francisco included in lawsuit, but Supreme Court severed his
                                                claim and limited “legislative immunity” discussion only to
                                                members of the legislature.)

Kilbourn v. Thompson,        UNITED STATES      John G. Thompson: Sergeant-at-arms of the House of
103 U.S. 168 (1880)          SUPREME COURT      Representative

                                                Michael C. Kerr: Member of United States House of
                                                Representatives

                                                John M. Glover: Member of United States House of
                                                Representatives

                                                Burwell P. Lewis: Member of United States House of
                                                Representatives

                                                    A-49
                                                Jeptha D. New: Member of United States House of
                                                Representatives

                                                A. Herr Smith: Member of United States House of
                                                Representatives

United States v. Renzi,       NINTH CIRCUIT     Member of United States House of Representatives from
__F.3d __, 2014 WL                              Arizona
5032356 (9th Cir. 2014)

United States v. Swindall,   ELEVENTH CIRCUIT   Member of United States House of Representatives from
971 F.2d 1531 (11th Cir.                        Georgia
1992)

United States v. Biaggi,      SECOND CIRCUIT    Member of United States House of Representatives from New
853 F.2d 89 (2nd Cir.                           York
1988)

In re Grand Jury              THIRD CIRCUIT     Nicholas Colafella: Chairman of investigative committee of
(Colafella),                                    Pennsylvania House of Representatives
821 F.2d 946 (3rd Cir.
1987) (rehearing in banc)
                                                Reizdan Moore: Committee counsel and records custodian of
                                                the Committee

                                                Speaker of the Pennsylvania House of Representatives
                                                (unnamed)

                                                Majority leader of the Pennsylvania House of Representatives
                                                (unnamed)

                                                Minority leader of the Pennsylvania House of Representatives
                                                (unnamed)

                                                Bipartisan Committee of the Administration of the
                                                Pennsylvania House

In re Grand Jury              THIRD CIRCUIT     Edmund L. Hensaw: Clerk of the Pennsylvania House of
(Eilberg),                                      Representatives
587 F.2d 589 (3rd Cir.
1978)
                                                Joshua Eilberg: Member of the Pennsylvania House of
                                                Representatives

United States v. DiCarlo,      FIRST CIRCUIT    Francis J. DiMento: Member of the Massachusetts State Senate
565F.2d 802 (1st Cir.
1977)
                                                Earle C. Cooley: Member of the Massachusetts State Senate




                                                    A-50
United States v. Craig,     SEVENTH CIRCUIT     Robert Craig: Member of the Illinois House of
573 F.2d 455 (7th Cir.                          Representatives; Minority Whip
1977) (rehearing in banc
denied)
                                                Frank P. North: Member of the Illinois House of
                                                Representatives

                                                Jack Walker: Member of the Illinois Senate
                                                Peter V. Pappas: Attorney and lobbyist for Secretaries of State
                                                Paul Powell, John Lewis and Michael Hewlett

In re Grand Jury             THIRD CIRCUIT      Henry Cianfrani: Pennsylvania state senator
(Cianfrani),
563 F.2d 577 (3rd Cir.
1977)
                                                Thomas Kalman: Chief Clerk of the Pennsylvania Senate
Ford v. Tennessee           DISTRICT COURT –    Every member of the Tennessee Senate
Senate, 2007 WL             WESTERN DIVISION
                             OF TENNESSEE
5659414 (W.D. Tenn.
2007) (not reported)
                                                John S. Wilder: Lt. Governor (in his official capacity)

Cano v. Davis,              DISTRICT COURT –    Antonio Gonzalez – third party non-legislator
193 F.Supp.2d 1177          CENTRAL DIVISION
                               CALIFORNIA
(C.D. Calif. 2002)
                                                Juan Vargas – Member of the California General Assembly

United States v. Eilberg,   DISTRICT COURT –    Member of United States House of Representatives from
507 F.Supp. 267 (E.D.       EASTERN DIVISION    Pennsylvania
                             PENNSYLVANIA
Penn. 1980)



United States Football      DISTRICT COURT –    United States Senator Alfonse D’Amato
League v. National          SOUTH DISTRICT OF
                               NEW YORK
Football League,
1986 WL 6341
(S.D.N.Y. 1986) (not
reported)

United States v. Nelson,    DISTRICT COURT –    Earl E. Nelson: State senator from Michigan
486 F.Supp. 464 (W.D.       WESTERN DIVISION
                              OF MICHIGAN
Mich. 1980)




                                                    A-51
