          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

              M EYERS, J., filed a dissenting opinion.


                           DISSENTING OPINION

       After reading the majority’s opinion, it seems clear to me that it has decided to employ

any means necessary in order to vacate the two felony counts against Governor Rick Perry.

The majority opinion has repealed more statutes and made more new law than Governor

Perry did in the last session of the legislature when he tried to muscle out the elected Travis

County District Attorney. I do not agree with either of the majority’s resolutions to both the

Appellant’s and State’s claims.
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                                          COUNT I

       Today, for the first time, the majority holds that, when a government official alleges

an as-applied separation-of-powers claim, it is an exception to cognizability and pretrial

habeas is available in order to resolve the claim before trial. As-applied challenges depend

on the particular facts and circumstances of a case to determine if a law is being

unconstitutionally applied to an individual. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910

(Tex. Crim. App. 2011). Because the resolution would be aided by the development of

evidence at trial, these claims do not have pretrial cognizability. Ex parte Doster, 303 S.W.3d

720, 724 (Tex. Crim. App. 2010). The majority, however, believes that “pretrial resolution

of this type of separation of powers claim is necessary to ensure that public officials can

effectively perform their duties.” Ex parte Perry, No. PD-1067-15, at *18. But this situation

is not comparable to those presented by other pretrial habeas exceptions, like double

jeopardy, that would truly be undermined if not considered pretrial. The majority is simply

making a special exception for public officials in order to reach its desired outcome in this

case. I do not find the majority’s arguments supporting its holding to be valid and I do not

believe this type of claim should be able to be considered in pretrial habeas.

       Because I disagree with the majority’s decision on cognizability, I do not believe the

separation of powers claim needs to be addressed at this time. However, the majority does

resolve it, concluding that this prosecution violates separation of powers. Violation of the

separation of powers clause can occur in two ways: (1) “when one branch of government
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assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’ to

another branch,” and (2) “when one branch unduly interferes with another branch so that the

other branch cannot effectively exercise its constitutionally assigned powers.” Armadillo Bail

Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). I disagree with the majority’s

conclusion here for two reasons.

       First, a bill of particulars is not a pleading and the admissions made within one can

be abandoned or amended and, therefore, should not be considered in pretrial habeas. Rather,

we should always rely upon what is stated in the indictment, and the indictment in this case

does not specify what the act of “misuse” by Governor Perry was. Therefore, I do not believe

that we can hold that the prosecution in this case violates separation of powers because we

do not have the information that is necessary to make that conclusion. We should allow this

case to go to trial in order to see what evidence the State presents to substantiate its

allegations in the indictment.

       Second, even if the bill of particulars could be construed as a pleading and the veto

is the alleged act of misuse, there is still no violation of the separation of powers clause. A

strict examination of the language explaining when a separation of powers violation occurs

does not prohibit the prosecution in this case as the judicial branch never prevented Governor

Perry from exercising his constitutionally assigned veto power. See id. The majority’s

conclusion that the governor’s power cannot be limited by the Legislature, courts, or district

attorneys is not supported by its reference to the Texas Constitution. The sections the
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majority cites merely indicate the duties, elections, and terms of county judges and attorneys

and district attorneys. T EX. C ONST. art. V, §§ 21, 30. These sections in no way indicate that

the present prosecution violates the separation of powers clause. See id. at art. II § 1. Further,

this issue has never been brought before our courts before and I do not believe it should be

summarily determined pretrial.

       The majority also incorrectly concludes that because Governor Perry had the

constitutional right to veto, his actions cannot be criminalized. It is clear that Governor Perry

tied his power to veto State funds to the demand for Lehmberg’s resignation, thereby

misusing his right. The Legislature has indicated that the misuse of even a constitutional right

may be criminalized–the misuse of the constitutional right to vote is criminalized by the voter

fraud statute. See id. at art. VI § 2; T EX. E LEC. C ODE § 64.012; Jenkins v. State, 468 S.W.3d

656 (Tex. App.– Houston [14th Dist.] 2015, pet. granted).

                                          COUNT II

       I also disagree with the majority’s conclusion that the coercion-of-a-public-servant

statute is facially unconstitutional because it is overbroad. The only way the majority can get

to this conclusion is by employing the overly broad definition of “threat” that it does. But this

strategy ignores both common sense and the requirement to utilize reasonable narrowing

constructions.

       As suggested by the State, the most natural and logical definition of threat to employ

in this analysis is the one put forth in Black’s Law Dictionary: “A communicated intent to
                                                                             Perry dissent - Page 5

inflict harm or loss on another or on another’s property.” B LACK’S L AW D ICTIONARY 1203

(7th ed. 2000). We have acknowledged it as an acceptable definition in the past and I do not

agree with any of the majority’s reasoning in discounting the use of this definition here. See

Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). Using the majority’s

broader definition of threat ignores the Legislature’s intent to enact a constitutional statute,

and completely disregards our duty to use a narrow construction in order to avoid a

constitutional violation.1 I believe that the majority does this simply to be able to grant

Governor Perry relief. Because this Court should adopt the Black’s definition of threat, I

cannot agree with its analysis.

       Once one employs the correct definition of threat, it becomes clear that the majority’s

argument about the “many” unconstitutional applications of the statute is no longer valid.

Each of the examples that the majority provides of “normal functioning of government” that

is criminalized by the statute would not be susceptible to prosecution when using the logical

and narrower Black’s definition of threat. None of these examples are crimes that actually

need overbreadth protection.2 Where the natural and logical definition of threat is used, and

the examples of the majority would never be prosecuted, there is no chilling effect that can

be attributed to the statute.


       1
         In enacting a statute, it is presumed that compliance with the constitutions of Texas and
the United States is intended. TEX . GOV ’T CODE § 311.021 (2015).
       2
        The majority does not show that the conduct in any of these examples, if prosecuted,
would be protected by the First Amendment and thus the argument that the statute has overbroad
application to protected expression is baseless speculation.
                                                                          Perry dissent - Page 6

       Because the statute is not overbroad, it should be that, where an individual is

concerned that his prosecution under this statute is not supported by the evidence, it becomes

an issue to be considered once the case has been tried and a conviction occurs. The narrower

and more natural Black’s definition of threat should be used in the sufficiency analyses on

appeal, and whether there is evidence in each individual case to show a communicated intent

to inflict harm or loss will determine that conviction’s validity.

                                      CONCLUSION

       While the majority has inaccurately concluded that the prosecution in this case is

politically motivated, it, in turn, has not shown any compunction in scripting an opinion that

establishes entirely new precedent solely in order to vacate the indictment against the former

governor. Obviously it has traded the repercussions of a challenge in the political arena for

the embarrassment of manufacturing an opinion that is not based on either law or fact. And,

unfortunately, the concurring opinions only go on to further support the fairytale authored

by the majority.

       The real shame of today’s decision is that while ordinary applicants’ requests to this

Court for writs of habeas corpus are often unfairly rejected or their paths to relief narrowed,

the majority has decided, for the second time in the last two years, to give special treatment

to a government official. See Delay v. State, 465 S.W.3d 232, 234 (Tex. Crim. App. 2014).

For example, in our last session, this Court decided to employ the doctrine of laches to

prevent applicants from obtaining relief for valid constitutional claims. Ex parte Smith, 444
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S.W.3d 661 (Tex. Crim. App. 2014). Also, many on this Court want to limit the ability to

obtain a writ of habeas corpus even further. See Ex parte Marascio, 471 S.W.3d 832,833-40

(Tex. Crim. App. 2015) (Keasler, J., dissenting).

       In addition to reaching an incorrect conclusion in this case, the majority also fails to

grant the appropriate remedy for a pretrial habeas issue such as this. We have no authority

to instruct the district court to dismiss the indictment on remand, rather we should allow the

trial court to decide how to proceed based on our opinion.

       Because I do not agree with the majority’s conclusion as to either issue before us and

would affirm the judgment of the court of appeals as to Count I and reverse its judgment as

to Count II, I respectfully dissent.

                                                          Meyers, J.

Filed: March 2, 2016

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