                                                                                            ACCEPTED
                                                                                        03-15-00063-CR
                                                                                                5240283
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  5/11/2015 10:58:13 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK


                                   No. 13-15-00063-CR
                                                                      FILED IN
                                                               3rd COURT OF APPEALS
                    In the Court of Appeals                         AUSTIN, TEXAS
                                                               5/11/2015 10:58:13 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 SUPPLEMENTAL BRIEF
                      ____________________________________




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




Index Of Authorities ................................................................................................. ii
Questions .................................................................................................................. vi
Summary Of Response...............................................................................................1
Response ....................................................................................................................2

     I. Facts developed in trial court are relevant when the interpretation and
        meaning of the critical allegations in the indictment are in dispute. ...............2

      A.       Principles of justiciability require remand to the trial court. .....................4
              1. No factual record thwarts the justiciability of the overbreadth
              challenge .....................................................................................................6
              2. The vagueness challenge should also be reserved until after trial. ......10

      B.      Appellant’s as-applied claims improperly rely upon an interpretation
              of what is alleged in the indictment..........................................................11
              1. Appellant must present evidence to be entitled to relief
              on his claims of Speech or Debate privilege. ...........................................15
              2. Appellant must present evidence to be entitled to relief
              on his claim of legislative immunity. .......................................................16
              3. Appellant must present evidence to be entitled to relief
              on his claim of separation of powers immunity. ......................................16

Prayer .......................................................................................................................17
Certificate of Compliance ........................................................................................19
Certificate Of Service...............................................................................................20


                                                               i
                                     INDEX OF AUTHORITIES


Cases
281 Care Comm. v. Arneson,
  638 F.3d 621 (8th Cir. 2011) ..................................................................................8

Alabama State Fed'n of Labor, Local Union No. 103,
United Broth. of Carpenters & Joiners of Am. v. McAdory,
  325 U.S. 450 (1945) ................................................................................................4

Barnes v. State,
 116 S.W.2d 408 (1938) ...........................................................................................2

Bd. of Trustees of State Univ. of New York v. Fox,
 492 U.S. 469 (1989) ............................................................................................7, 8

Bell v. State,
 243 S.W. 1095 (1922) .............................................................................................2

Broadrick v. Oklahoma,
 413 U.S. 601 (1973). ...........................................................................................7, 8

Buchanan v. State,
 52 S.W. 769 (1899) .................................................................................................2

Colautti v. Franklin,
 439 U.S. 379 (1979). .............................................................................................11

Costello v. United States,
 350 U.S. 359 (1956). ...............................................................................................2




                                                          ii
Ely v. State,
  582 S.W.2d 416 (Tex. Crim. App. 1979). ............................................................10

Ex parte Boetscher,
 812 S.W.2d 600 (Tex. Crim. App. 1991). ............................................................12

Ex parte Bohannan,
 350 S.W.3d 116 (Tex.Crim.App.2011) ..................................................................6

Ex parte Heilman,
 456 S.W.3d 159 (Tex. Crim. App. 2015) .............................................................13

Ex parte Nelson,
 815 S.W.2d 737 (Tex.Crim.App.1991) (per curiam) .............................................6

Ex parte Weise,
 55 S.W.3d 617 (Tex.Crim.App.2001) ..................................................................14

Gallo v. State,
 239 S.W.3d 757 (Tex.Crim.App.2007) ..................................................................6

Gonzales v. State,
 648 S.W.2d 684 (Tex.Cr.App.1983).....................................................................12

Gravel v. United States,
 408 U.S. 606 (1972). .............................................................................................15

Grayned v. City of Rockford,
 408 U.S. 104 (1972). .............................................................................................10

Greenbelt Coop. Publ'g Ass'n v. Bresler,
 398 U.S. 6 (1970) ....................................................................................................8

Guzman v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997). ..............................................................11
                                                          iii
Hampton v. State,
 86 S.W.3d 603 (Tex. Crim. App. 2002) ...............................................................11

Hoover v. Beto,
 439 F.2d 913 (5th Cir.1971) .................................................................................14

Long v. State,
 931 S.W.2d 285 (Tex. Crim. App. 1996). ............................................................10

Meeks v. State,
 692 S.W.2d 504 (Tex.Cr.App.1985).....................................................................12

N. A. A. C. P. v. Claiborne Hardware Co.,
 458 U.S. 886 (1982). ...............................................................................................9

Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin,
 418 U.S. 264 (1974) ................................................................................................8

Org. for a Better Austin v. Keefe,
 402 U.S. 415 (1971). ...............................................................................................9

Papachristou v. City of Jacksonville,
 405 U.S. 156 (1972). .............................................................................................11

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,
  971 S.W.2d 439 (Tex. 1998) .................................................................................4

Phillips v. State,
 362 S.W.3d 606 (Tex.Crim.App.2011). ...............................................................13

Proctor v. State,
 967 S.W.2d 840 (Tex. Crim. App. 1998). ............................................................13

Regional Rail Reorganization Act Cases,
 419 U.S. 102 (1974) ................................................................................................6
                                                         iv
Renne v. Geary,
 501 U.S. 312 (1991). ...............................................................................................7

State ex rel. Watkins v. Creuzot,
  352 S.W.3d 493 (Tex.Crim.App.2011) ..................................................................6

State v. Rosenbaum,
  910 S.W.2d 934 (Tex. Crim. App. 1994), on reh'g (Dec. 6, 1995) ......................14

Stephenson v. State,
  494 S.W.2d 900 (Tex.Cr.App.1973).....................................................................14

Texas Ass'n of Bus. v. Texas Air Control Bd.,
  852 S.W.2d 440 (Tex. 1993). .................................................................................4

Watts v. United States,
 394 U.S. 705 (1969) ................................................................................................9

Statutes
TEX. PENAL CODE § 1.07(a)(9)(F)..............................................................................2
TEX. PENAL CODE § 25.05(g)(2) ..............................................................................12
TEX. PENAL CODE § 36.03(a)(1) ................................................................................2

Other Authorities
13A WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE,
  § 3532.3, at 147 (2d ed.1984). ................................................................................4
NICHOL, Ripeness and the Constitution, 54 U. CHI. L.REV. 153, 169 (1987) .........4
TERRI R. DAY, “Nasty as They Wanna be Politics:” Clean Campaigning and the
  First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009) ......................................8




                                                          v
                            QUESTIONS


1.   How do actions in the trial court affect the justiciability of the issues
     on appeal?

2.   When Appellant directs this Court to look to “the face of the
     indictment” to resolve his claims, what happens when the language in
     the indictment changes?




                                  vi
                             SUMMARY OF RESPONSE

      After Appellant was indicted, he filed a writ claiming the indictment was

invalid because the attorney pro tem was not properly sworn into office. The

parties exchanges briefs, but the matter was only resolved when the trial court

conducted a hearing. The hearing took only a few hours. All necessary facts and

evidence were introduced by the State. The trial court rendered an opinion. The

matter was settled.

      Though this writ also argues the State lacks authority to prosecute Appellant,

the State should not be denied an opportunity to present its evidence. An

indictment has never been the place for the State to plead its evidence, yet

Appellant seeks final disposition in this case by challenging the sufficiency of the

evidence alleged in the indictment.

      Facts provide a fulcrum for legal leverage, and absent a record, everything

that happens in trial court is both relevant and necessary for the justiciability of the

issues on appeal. Certainly all of Appellant’s as-applied challenges should

necessarily rely upon factual evidence. Even the facial challenges could be better

resolved if there were facts in the record. The resolution of these issues is made

more difficult by the opposing sides’ conflicting interpretations of what are merely

hypothetical facts. To avoid piecemeal litigation, principles of justiciability warrant

remand to the trial court.

                                           1
                                       RESPONSE


    I.      Facts developed in trial court are relevant when the interpretation
            and meaning of the critical allegations in the indictment are in
            dispute.

         By attempting to frame his appeal as limited solely to the statute and the

indictment, Appellant is indirectly challenging the sufficiency of the evidence

supporting the indictment. Importantly, courts have consistently refused to go

behind the indictment when evidentiary matters are alleged.1 As Justice Black

stated:

         If indictments were to be held open to challenge on the ground that
         there was inadequate or incompetent evidence before the grand jury,
         the resulting delay would be great indeed. The result of such a rule
         would be that before trial on the merits a defendant could always
         insist on a kind of preliminary trial to determine the competency and
         adequacy of the evidence before the grand jury. This is not required
         by the Fifth Amendment. An indictment returned by a legally
         constituted and unbiased grand jury, like an information drawn by the
         prosecutor, if valid on its face, is enough to call for trial of the charge
         on the merits.2

Appellant’s arguments that Texas Penal Code Sections 36.03(a)(1) and

1.07(a)(9)(F) are facially vague and overbroad are purely legal. But when

Appellant asserts a right not to be tried, except for bribery, he challenges the

sufficiency of evidence in the indictment. When he argues the right to speak to his


1
  See Barnes v. State, 116 S.W.2d 408 (1938) (insufficient evidence); Bell v. State, 243 S.W.
1095 (1922) (illegal evidence); Buchanan v. State, 52 S.W. 769 (1899) (incompetent evidence).
2
  Costello v. United States, 350 U.S. 359, 363 (1956).
                                              2
staff in deliberations about a veto, he challenges the admissibility of evidence used

to secure an indictment. And when he argues that he is being illegally prosecuted

for a valueless veto and not for the underlying dollar amount of the Public Integrity

Unit funding, he refers to mixed questions of fact and law. In doing so, Appellant

is seeking exactly the kind of “preliminary trial” that Justice Black warned against.

      These types of challenges are distinctly different than “purely legal” claims.

In this appeal, Appellant seeks to challenge the evidence before the State has even

presented it. For nine months the parties have exchanged hundreds of pages of

briefs on these issues.

      We are no closer to a resolution.

      This would not be a complicated criminal case if there were already facts in

the record. The scope of the indictment covers a narrow window of conduct. The

evidence largely consists of lay witness testimony. The parties have established

entrenched positions: Appellant argues he has a Constitutional right to make

coercive threats and veto prosecutorial appropriations, and the State argues it has

an absolute right to prosecute him for doing so based on his motives.

      A trial could resolve what legal briefs to this Court cannot.

      After a trial, with evidence then in the record, this Court could at that time

be called upon to address every legal issue raised by Appellant. However, until

such evidence is in the record, this Court is faced with deciding these legal issues


                                          3
by considering merely hypothetical facts and claims of concessions and admissions

made by lawyers in briefs. Further, conflicting interpretations of these

hypothetical facts will necessarily persist, permeating even the facial challenges to

the statute.

A.     Principles of justiciability require remand to the trial court.

       A justiciable controversy must be distinguished from an advisory opinion,

which is prohibited under both the Texas and federal constitutions.3 The

distinctive feature of an advisory opinion is that it decides an abstract question of

law without binding the parties.4 The interests of justice are advanced and an

effective judgment is rendered when the Court may apply the law to a concrete set

of facts.5 “Litigation based upon hypothetical possibility rather than concrete fact is

apt to be poor litigation. The demand for specificity, therefore, stems from a

judicial desire for better lawmaking.”6

       In this case, after nine months of litigation, the only uncontroverted facts are

that Appellant is the former Governor of Texas, that Rosemary Lehmberg is the

elected District Attorney of Travis County, and that the funding for the Public


3
  Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).
4
  Id. at 444.
5
  Alabama State Fed'n of Labor, Local Union No. 103, United Broth. of Carpenters & Joiners of
Am. v. McAdory, 325 U.S. 450, 460 (1945)
6
  Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex.
1998) quoting Nichol, Ripeness and the Constitution, 54 U. CHI. L.REV. 153, 169 (1987); 13A
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3532.3, at 147 (2d ed.1984).
                                              4
Integrity Unit was eliminated. We also know that the offense took place in Travis

County. Both sides have acknowledged that both Perry and Lehmberg are public

servants. Finally, the indictment was returned within the statute of limitations.

These types of facts are immutable. These types of facts are fixed. These types of

facts are not subject to context or witness credibility or interpretation.

      But these are not the types of facts that resolve Appellant’s claims. These are

the only facts for this Court to consider at this point because no other substantive

hearings have been held. The trial court has been hampered thus far by Appellant’s

continual attempts to resist getting to the facts. While neither the State’s proposed

amendments to the indictment nor the Bill of Particulars alter the justiciability of

Appellant’s facial challenges, because all other challenges involve a mixture of

facts and law, trial court developments are necessary to resolve his claims.

      General principles of justiciability demand the development of a factual

record. Without concrete facts to anchor legal analysis, any decision by this Court

would be subject to appeal when the losing party argues that the Court decided the

case on the wrong set of hypothetical facts. Any decision by the trial court on the

pending motions to quash and objections to the Bill of Particulars will affect the

cognizability of the as-applied challenges based upon the “face of the indictment.”

The State could seek to amend the indictment again. The trial court could order the

State to do so. Even if Judge Richardson denies the current two pending motions to


                                           5
quash, Appellant has the right to file additional motions to quash the indictment.

Litigation in trial court will continue up until trial, and until trial, without a factual

record, these will continued to be an unresolved issues.

       This is why the challenges raised here “on the face of the indictment” are

nonjusticiable mixed questions of fact and law at this stage of the proceedings.

Justiciability concerns not only the standing of litigants to assert particular claims,

but also the appropriate timing of judicial intervention.7 A court may delay

resolution of constitutional questions until a time closer to the actual occurrence of

the disputed event, or when a better factual record might be available.8 This places

two principles in conflict: Appellant’s claim that he has a not right to be tried, and

Justice Black’s opinion that the trial court is the best forum to resolve Appellant’s

claims.

       1.      No factual record thwarts the justiciability of the overbreadth
               challenge.

       Trial court developments would not ordinarily matter to a facial challenge to

a statute. But cases involving the First Amendment are different. In Renne v.

7
  See Regional Rail Reorganization Act Cases, 419 U.S. 102, 136–148 (1974); see also State ex
rel. Watkins v. Creuzot, 352 S.W.3d 493, 504–06 (Tex.Crim.App.2011) (considering ripeness of
criminal defendant's pretrial declaratory judgment claim that the State could not execute him); Ex
parte Bohannan, 350 S.W.3d 116, 119–20 (Tex.Crim.App.2011) (analyzing justiciability of
parolee's habeas claims); Gallo v. State, 239 S.W.3d 757, 780 (Tex.Crim.App.2007) (assessing
justiciability of habeas challenge to the manner of an impending execution); Ex parte Nelson,
815 S.W.2d 737, 738–39 (Tex.Crim.App.1991) (per curiam) (determining applicability of an
exception to mootness).
8
  Regional Rail Reorganization Act Cases, at 143.
                                                6
Geary, the Court addressed the propriety of resolving a facial challenge to the

constitutionality of statute without first addressing its application to a particular set

of facts.9 The Court explained, “In some First Amendment contexts, we have

permitted litigants injured by a particular application of a statute to assert a facial

overbreadth challenge, one seeking invalidation of the statute because its

application in other situations would be unconstitutional.”10 “[T]he better course

might have been to address in the first instance the constitutionality of … as

applied in the context of [the voter pamphlets at issue].”11 Justice Kennedy

explained the reason behind waiting for all the facts to be developed:


       The free speech issues argued in the briefs filed here have
       fundamental and far-reaching import. For that very reason, we cannot
       decide the case based upon the amorphous and ill-defined factual
       record presented to us. Rules of justiciability serve to make the
       judicial process a principled one. Were we to depart from those rules,
       our disposition of the case would lack the clarity and force which
       ought to inform the exercise of judicial authority.12

Justice Scalia said the same in Board of Trustee of State University of New York v.

Fox:


       It is not the usual judicial practice, however, nor do we consider it
       generally desirable, to proceed to an overbreadth issue unnecessarily-
       that is, before it is determined that the statute would be valid as
       applied. Such a course would convert use of the overbreadth doctrine
9
  Renne v. Geary, 501 U.S. 312, 323-24 (1991).
10
   Id. at 323, citing Broadrick v. Oklahoma, 413 U.S. 601 (1973).
11
   Id. at 324.
12
   Id.
                                               7
       from a necessary means of vindicating the plaintiff's own right not to
       be bound by a statute that is unconstitutional into a means of
       mounting gratuitous wholesale attacks upon state and federal laws.
       Moreover, the overbreadth question is ordinarily more difficult to
       resolve than the as-applied, since it requires determination whether
       the statute's overreach is substantial, not only as an absolute matter,
       but “judged in relation to the statute's plainly legitimate sweep,” [] and
       therefore requires consideration of many more applications than those
       immediately before the court. Thus, for reasons relating both to the
       proper functioning of courts and to their efficiency, the lawfulness of
       the particular application of the law should ordinarily be decided
       first.13


       Further, First Amendment cases involving criticism or defamation against

public officials are difficult to decide – even with a factual record. Courts and

scholars constantly struggle to draw a line between knowingly or recklessly false

statements and uses of rhetoric, exaggeration, and ideologically-derived facts. 14

The First Amendment cases cited by Appellant regarding coercive threats involve a

rich description of the words spoken, the listener’s reaction, and the relationship

between parties. In N. A. A. C. P. v. Claiborne Hardware Co. the Supreme Court

13
   Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 484-85 (1989) (emphasis
added), quoting Broadrick v. Oklahoma at 615.
14
   281 Care Comm. v. Arneson, 638 F.3d 621, 636 fn. 1 (8th Cir. 2011) citing Greenbelt Coop.
Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (allegedly false statement that city council member
blackmailed someone was “no more than rhetorical hyperbole”); Old Dominion Branch No. 496,
Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974) (holding that the use of the
word “traitor” could not be reasonably interpreted as a representation of fact because it was used
“in a loose, figurative sense to demonstrate the union's strong disagreement with the views of
those workers who oppose unionization”); Terri R. Day, “Nasty as They Wanna be Politics:”
Clean Campaigning and the First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009) (“Often
characterized as hyperbole and overstatement, campaign speech is meant to persuade and, as
such, tends toward exaggeration, to vilification ... and even to false statement.”) (internal
quotation omitted).
                                                8
was able to review 8 months of trial testimony from over 144 witnesses.15 The

Court also included the entire text of the civil rights organizer’s speech and

included it in the appendix to the opinion of the Court.16 In Org. for a Better Austin

v. Keefe the Court had the benefit of the trial court testimony as well as copies of

the leaflets at issue in the lawsuit.17 In Watts v. United States the Court had the

benefit of hearing the facts elicited in a jury trial. In Watts, the Court was able to

analyze the statement “If they ever make me carry a rifle the first man I want to get

in my sights is L.B.J.” in the context of the political rally on the Washington

Monument grounds.18 The Court noted that the crowd broke up into “small

discussion groups” and that Watts “joined a gathering scheduled to discuss police

brutality.”19

       In each of these cases, the facts developed in the trial court were critical to

the Court’s decision. No such details are present in record in this case. While

some cases may be more complicated than others, it is the facts which provide a

foundation for the judiciary’s analysis and the resulting guidance to lower courts.

Courts cannot fully resolve claims having to guess at facts or glean them from an

indictment. No complex issue in this appeal can be resolved simply by an

exchange of assertions by the lawyers.
15
   N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 890 (1982).
16
   Id., at 934-40.
17
   Org. for a Better Austin v. Keefe, 402 U.S. 415, 417 (1971).
18
   Watts v. United States, 394 U.S. 705, 706 (1969).
19
   Id.
                                               9
       2.      The vagueness challenge should also be reserved until after trial.

       The State’s proposed changes to the indictment do not affect a statutory

vagueness challenge, and neither do trial court developments. But as with the

overbreadth challenge, general principles of justiciability warrant the suggestion

that as-applied challenges should be addressed first.

       Again, every single case cited in Appellant’s brief in support of his

vagueness challenge was decided after a trial. By taking them up after the trial, an

appellate court is able to decide both the as-applied challenge and the facial

challenge at the same time in order to avoid piecemeal litigation. In Long v. State,

the appellant was convicted under the stalking provision of the harassment statute

and then advanced his claim that the statute was unconstitutionally vague on its

face, as well as vagueas applied to his conduct.20 In Grayned v. City of Rockford,

the appellant was convicted for his part in a demonstration in front a high school;

again, after his conviction, he challenged the constitutionality of two ordinances.21

In Ely v. State, the appellant challenged the vagueness of the statute after the jury

found him guilty of four misdemeanor convictions for deceptive business

practices.22




20
   Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996).
21
   Grayned v. City of Rockford, 408 U.S. 104, 105 (1972).
22
   Ely v. State, 582 S.W.2d 416, 418 (Tex. Crim. App. 1979).
                                             10
       Even when the entire point of litigation is to challenge the constitutionality

of a statute, such as in determining the meaning of “viability” in abortion cases, the

appellate courts have still had the benefit of a trial.23 Similarly, in Papachristou v.

City of Jacksonville, eight defendants successfully invalidated a vagrancy

ordinance after they were convicted at trial.24

       B.      Appellant’s as-applied claims improperly rely upon an
               interpretation of what is alleged in the indictment.


       The phrase “face of the indictment” is used 16 times in Appellant’s Brief;

Appellant contends that all facts necessary for justiciability can be ascertained

from the face of the indictment. But this necessarily means that this Court must

then refer to trial court developments pertaining to the indictment.

       Unlike the facial challenges, Appellant’s as-applied challenges are not based

in pure law. “The meaning of words and phrases used in a statute is a question of

pure law; and the application of the scope of a statute to specific, undisputed

historical facts is a mixed question of law and fact.” 25 For example, the question of

voluntariness of consent in a Fifth Amendment context presents a mixed question

of fact and law. In such a case, before a factfinder could consider evidence

obtained as a result of the consent, the factfinder would first need to determine,

23
   Colautti v. Franklin, 439 U.S. 379, 384 (1979).
24
   Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
25
   Hampton v. State, 86 S.W.3d 603, 611 (Tex. Crim. App. 2002); see also Guzman v. State, 955
S.W.2d 85 (Tex. Crim. App. 1997).

                                              11
from the totality of all the circumstances, that the consent was voluntary. 26 Every

Fourth Amendment search and seizure question must turn on the facts of that

particular case.27 The same is true on questions to be determined as a matter of law,

such as whether a statement is material in a prosecution for aggravated perjury.

       The three as-applied challenges raised in Appellant’s writ require factual

development beyond what can be determined simply by looking to the charging

instrument. Appellant cites Ex parte Boetscher for the proposition that the Court

can determine an as-applied challenge using the indictment alone. Few cases are

as simple or unusual as Ex parte Boetscher. In Ex parte Boetscher, the Court

decided an as-applied equal protection challenge on the face of the indictment

because it was uncontroverted that the appellant lived out of state.28 On its face, the

statute treated in-state residents differently from out-of-state residents.29 The

appellant’s out-of-state residence was the gravamen of the enhanced penalty for

criminal nonsupport of his Texas children.30 The issue was precise. His out-of-state

residence was not subject to interpretation. The facts necessary for justiciability

could be ascertained from the face of the indictment.

       Ex parte Boetscher is an example of a “pure law” challenge that is


26
   Meeks v. State, 692 S.W.2d 504, 510 (Tex.Cr.App.1985).
27
   Gonzales v. State, 648 S.W.2d 684, 687 (Tex.Cr.App.1983).
28
   Ex parte Boetscher, 812 S.W.2d 600, 601 (Tex. Crim. App. 1991).
29
   Id. at fn. 1, citing TEX. PENAL CODE § 25.05(g)(2) “An offense under this section is a felony of
the third degree if the actor commits the offense while residing in another state.”
30
   Id. at 602.
                                                12
justiciable using only the language in the indictment. These are the types of

challenges limited to matters like limitations issue may be resolved using only the

face of the indictment. In contrast to Appellant’s claims, two cases, Phillips v.

State 31 and Proctor v. State, 32 illustrate that not all challenges “on the face of the

indictment” are the same. Both Phillips and Proctor involved claims that

prosecution was outside the statute of limitations. In those decisions, the Court of

Criminal Appeals distinguished between two types of challenges: those challenges

“based on facts” alleged in the indictment (like a tolling allegation), as opposed to

claims that are “pure law,” that show that on the face of the indictment that

prosecution is absolutely barred by the statute of limitations.33 The Court held that

a “based on facts” challenge merely “gives rise to a limitations factual defense”

because further factual development is required beyond simply the charging

instrument. By contrast, a “pure law” challenge appears on the face of the

instrument and therefore “gives rise to a statute-of-limitations bar” that constitutes

a jurisdictional defect.34 Recently in Ex parte Heilman, the Court overturned

Phillips’ distinction as it affected whether a statute of limitations defect can be

waived. 35 But the explanation of what can be determined “on the face of the

indictment” is still illustrative and demonstrates why Appellant’s claims are
31
   Phillips v. State, 362 S.W.3d 606 (Tex.Crim.App.2011).
32
   Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).
33
   Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015).
34
   Id. citing Phillips at 617.
35
   Id.
                                              13
nonjusticiable.

       Thus, the question becomes: Are the legal challenges in this appeal akin to

the simple determination of whether the indictment pleads an offense within the

statute of limitations, or are they more similar to more complex determinations as a

matter of law, like voluntariness of consent or materiality of a statement? 36 If the

answer is anything more than looking to the indictment to determine whether the

prosecution is within the statute of limitations, the State should be entitled to

present its evidence.

       And that is exactly what we would ask this Court to allow to happen here.

For nearly a century, the Court of Criminal Appeals has continuously held that

pretrial writs are not be used to test the sufficiency of an indictment or to construe

the meaning and application of a statute defining the offense charged in an

indictment.37

       The prosecution should be allowed to move forward to trial to present its

evidence, after which, if Appellant is convicted, he can reurge his challenges in

this Court with a clear factual record to elucidate the issues. A “preliminary trial”




36
   Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973) (citing Hoover v. Beto, 439 F.2d
913 (5th Cir.1971)). See also State v. Rosenbaum, 910 S.W.2d 934, 947 (Tex. Crim. App. 1994),
on reh'g (Dec. 6, 1995) (“Appellee's motion is in effect an effort to cause the judge to go behind
the face of the indictment before trial to see if there is sufficient evidence to support the alleged
‘materiality’ element in the offense of perjury.)
37
   Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001).
                                                 14
such as rejected by Justice Black should not be allowed to proceed instead at this

stage and in this Court.

          1.     Appellant must present evidence to be entitled to relief on his
                 claims of Speech or Debate privilege.

          Whether a governor is entitled to Speech or Debate privilege is a purely

legal issue. The Court may determine, as a matter of law, that a governor is not

entitled to ever assert a Speech or Debate privilege under the separation of powers

doctrine. However, it does not work the other way. In order to determine that this

Appellant - this governor - can indeed assert the privilege, and is therefore immune

from prosecution in this case, requires specific facts to resolve the issue. This is

why the Bill of Particulars and potential hearings in the trial court matter.

          If Appellant is eligible to assert the privilege, it is the trial court, in a

hearing, that would determine if any evidence was obtained in violation of the

privilege. 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.38 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
38
     Gravel v. United States, 408 U.S. 606, 624–625 (1972).
                                                15
executive influence.”39

          The State’s Bill of Particulars articulates that Appellant was not engaged in

communication that would be protected under the privilege. Appellant reads the

same language in the Bill of Particulars and interprets it to mean that he is

protected by the privilege. But whether or not the Speech or Debate privilege

applies to the conduct in this case is a mixed question of fact and law. The pattern

is consistent with all as-applied challenges in this writ: the Court may deny relief to

Appellant as a matter of law, but in order for the Court to grant relief there must be

facts in the record to support his claims.

          2.       Appellant must present evidence to be entitled to relief on his
                   claim of legislative immunity.

          Whether a governor is entitled to legislative immunity is a purely legal issue.

But whether or not Appellant’s actions in this case were official actions or actions

made in his personal capacity require development of facts in the record. Thus,

further developments in the trial court are necessary for justiciability.


          3.       Appellant must present evidence to be entitled to relief on his
                   claim of separation of powers immunity.

          Appellant further presents a purely legal issue in his claim of immunity

based on separation of powers. The question here is whether the separation of


39
     Id. at 625.
                                             16
powers doctrine insulates a governor from judicial review over any of his

constitutionally proscribed powers absent an allegation of bribery. Again, the

Court may reject Appellant’s separation of powers argument on its face without

any reference to the trial court developments.

      However, in addressing the as-applied challenge, the resolution of this issue

depends on whether Appellant is being prosecuted for a political decision to veto

an item of appropriation or, instead, for unlawfully misusing the Public Integrity

funds to harm Ms. Lehmberg for not resigning. It is a question of fact, and the Bill

of Particulars describes the basis for these facts in detail.




                                       PRAYER

      While this is not a complicated case factually, the absence of a record makes

this an unnecessarily complex case legally. Appellee respectfully prays that this

Court uphold the constitutionality of the statutes at issue, or, in the alternative,

remand this case to the trial court until a factual record is thoroughly established.




                                           17
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




 18
                       CERTIFICATE OF COMPLIANCE

       Pursuant to TEX.R.APP. P. 9.4(i), 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 table of contents, index of authorities, questions

presented, signature, proof of service, certification, and certificate of compliance is

4,380 words.



                                               /s/ Michael McCrum
                                               Michael McCrum




                                          19
                         CERTIFICATE OF SERVICE


      I hereby certify that on May 11, 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




                                        20
