           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                         NO. PD-1067-15



              EX PARTE JAMES RICHARD “RICK” PERRY, Appellant



                     ON APPELLANT’S AND STATE’S PETITIONS
                          FOR DISCRETIONARY REVIEW
                      FROM THE THIRD COURT OF APPEALS
                                TRAVIS COUNTY

       J OHNSON, J., filed a dissenting opinion.

                              DISSENTING OPINION

       The opinion of the Court stretches constitution, case law, and statute beyond where I am

willing to follow. This case does not involve separation of powers, many of the examples set out

are inapposite, and the language used as to appellant differs from all other writ opinions.

       “The powers of the Government of the State of Texas shall be divided into three distinct

departments, each of which shall be confided to a separate body of magistracy, . . ..” Tex. Const. art.

II, § 1. As the opinion of the Court states, in relevant part, the separation-of-powers provision is

violated “when one branch unduly interferes with another branch so that the other branch cannot

effectively exercise its constitutionally assigned powers.”        But the language of the Texas
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Constitution makes it clear that it specifically affects only the “Government of the State of Texas,”

and we are bound by the plain language of that provision.

       As with statutory construction, when we construe a provision of the Texas
       Constitution, we are principally guided by the language of the intent of the framers
       who drafted it and the citizenry who adopted it. But if that language is less than plain
       and admits of ambiguity, we may resort to extra-textual factors, including the likely
       adverse consequences of a particular construction.

Johnson v. Tenth Judicial Dist. Ct. Of Appeals at Waco, 280 S.W.3d 866, 872 (Tex. Crim. App.

2008) (footnotes omitted).

       Turning to the rules of constitutional construction, it is observed that constitutional
       provisions which are not ambiguous and are not open to more than one construction
       or interpretation must be given their full effect without regard to the consequences.

Gallagher v. State, 690 S.W.2d 587, 591 (Tex. Crim. App. 1985). See also Boykin v. State, 818

S.W.2d 782, 785-86 (Tex. Crim. App. 1991).

       In this case, it is alleged that a branch of state government, the executive branch, interfered

with another branch of government, but the branch that was allegedly interfered with is not a branch

of state government; it is a branch of county government. I find nothing in the plain meaning of the

Texas Constitution that permits the executive branch of the state to interfere in the affairs of a

different sovereign and then claim the protection of the state doctrine of separation of powers, which

is intended to keep one branch of state government from interfering with the powers assigned to

either of the other two state branches.

       The Court’s opinion sets out a “list of horribles” in support of finding the statute

unconstitutional, but a number of the examples do not fall within the dictates of the statute. For

example, a “manager could not threaten to fire or demote a government employee for poor

performance.” This is an employment-law issue, unrelated to the statute at issue, and the salient
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issue is good cause for terminating employment. “An inspector general could not threaten to

investigate an agency’s financial dealings.” According to the website of Office of the Inspector

General,1 “the OIG oversees investigations of waste, fraud and abuse of tax dollars . . ..” That

agency could therefore lawfully “threaten” to investigate the financial dealings of the agencies over

which it has jurisdiction. “A prosecutor could not threaten to bring charges against another public

servant.” Prosecutors can, and do, lawfully bring charges against other public servants. “A public

defender could not threaten to file a motion for suppression of evidence to secure a better plea

bargain for his client.” Any defense attorney is entitled to file any motion that is appropriate in

representing the client; many actions by defense counsel are taken in an effort to reach the best

possible resolution of the pending charges. And do not prosecutors also “threaten” to reindict the

client on a higher charge in an effort to get the client to take the pending plea offer?

            Part of the problem with the listed examples is the loose usage of the word “threaten.” My

faithful dictionary2 defines “threat” as “a declaration of an intention or determination to inflict

punishment, injury, death, or loss on someone in retaliation for, or conditionally upon, some action

or course; an indication of probable evil, violence, or loss to come; . . ..” “Threaten” means “to utter

a threat against.” The examples above describe common situations in which the action is legal and

proper. In shorthand, a threat is an indication of intent to do some act which is improper and/or

illegal. It is not illegal, nor a threat, to take an action that one is entitled to take, such as to inform

a tenant that, unless the back rent is paid, the landlord will begin eviction proceedings, or for a police

officer to tell someone that he must move his car or be ticketed, or for a home owner to tell the


        1
             https://www.tdcj.state.tx.us/divisions/oig/

        2
             W ebster’s Encyclopedic Unabridged Dictionary of the English Language 1478 (Gramercy Books 1989).
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persistent encyclopedia salesman on the doorstep that, if he does not leave, the home owner will ask

the police to drop by.

         Finally, as Judge Newell has noted, this case has been greatly affected by who it involves.

In no other appeal I have read during the seventeen years that I have served on this Court has

appellant been called anything other than “appellant.” The constant references to “Governor Perry”

could well be seen by the public as an inference that appellant’s position in life entitles him to

special privileges and special treatment by this Court that others might be denied.3



         3
           The majority cites to United States v. Nixon, 418 U.S. 683 (1974), in support of its use of appellant’s given
name, however, I note that, at the time of that decision (July 24, 1974), Nixon was still President (until August 9, 1974),
the claim raised was a president’s privilege of confidentiality, and the underlying issues arose from the burglary at the
W atergate, not from arguably legitimate Article II duties.

       In this case the President challenges a subpoena served on him as a third party requiring the production of
       materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure
       of confidential communications. He does not place his claim of privilege on the ground they are military
       or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost
       deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111
       (1948), dealing with Presidential authority involving foreign policy considerations, the Court said:

              The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has
              available intelligence services whose reports are not and ought not to be published to the
              world. It would be intolerable that courts, without the relevant information, should review
              and perhaps nullify actions of the Executive taken on information properly held secret.

       In United States v. Reynolds, 345 U.S. 1 (1953), dealing with a claimant's demand for evidence in a Tort
       Claims Act case against the Government, the Court said:

              It may be possible to satisfy the court, from all the circumstances of the case, that there is a
              reasonable danger that compulsion of the evidence will expose military matters which, in the
              interest of national security, should not be divulged. W hen this is the case, the occasion for
              the privilege is appropriate, and the court should not jeopardize the security which the
              privilege is meant to protect by insisting upon an examination of the evidence, even by the
              judge alone, in chambers. Id. at 10.

       No case of the Court, however, has extended this high degree of deference to a President's generalized
       interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit
       reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge
       of a President's powers, it is constitutionally based.

       Id. at 710-11.
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       I dissent.


Filed: February 24, 2016
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