Ex Parte James Richard "Rick" Perry

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00063-CR

Ex parte James Richard “Rick” Perry

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. D-1-DC-14-100139, HONORABLE BERT RICHARDSON, JUDGE PRESIDING

OPINION

This appeal arises from an ongoing criminal prosecution that, as the district court

observed, involves “unique circumstances” that “have been widely reported, argued, and discussed

by many with no standing in the case.”1 Whatever the focus of such commentary, our disposition

of this appeal turns on legal issues—primarily procedural in nature—that may be of somewhat less

public renown.

To summarize the proceedings below, the appellant—James Richard “Rick” Perry,

who until recently served as Governor of Texas—sought dismissal, through a pretrial writ of habeas

corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public

servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed

legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes

on which each charge is based, “as applied” to him, violate constitutional protections related to

free expression and the separation of powers. Even while terming these “as applied” constitutional

1

Order Denying Defendant’s First Application for Pretrial Writ of Habeas Corpus (Order)

at 5 n.3.

challenges “compelling,”2 the district court determined that it could not decide their merits at that

juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has

imposed on the ability of lower courts to address such “as applied” challenges when raised

through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was

error, we reach the same conclusion that the district court did—under the Court of Criminal

Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through

pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant”

charge is based “facially” violates the First Amendment to the United States Constitution. While

recognizing that defendants may bring such facial constitutional challenges through pretrial

habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we

respectfully disagree with the district court—the statute on which the “coercion of a public servant”

is based, as written, and as we are bound to construe it, violates the First Amendment and,

accordingly, cannot be enforced.

As a consequence of these holdings, we affirm the district court’s denial of relief as

to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges

cannot be addressed through pretrial habeas corpus under current Texas law. However, because the

First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge

is based, that charge must be dismissed.

2

Id. at 9.

2

BACKGROUND

The indictment

Through an indictment returned by a Travis County grand jury, appellant Perry has

been charged with two counts. Count I alleges that Perry violated section 39.02, subsection (a)(2)

of the Texas Penal Code—“Abuse of Official Capacity”—which in pertinent part makes it an offense

for a “public servant,” “with intent to harm . . . another,” to intentionally or knowingly “misuse

government property . . . that has come into the public servant’s custody or possession by virtue

of the public servant’s office or employment.”3 Count II alleges that Perry violated Penal Code

section 36.03(a)(1)—“Coercion of Public Servant”—which makes it an offense for a person,

“by means of coercion” (a term defined under the Penal Code to include “a threat, however

communicated, . . . to take or withhold action as a public servant”) to “influence” or attempt to

“influence” a “public servant” to certain ends.4 Although the parties are continuing to litigate the

precise content of the indictment before the district court, it suffices for present purposes to note their

general agreement that both charges relate to alleged conduct by Perry preceding or relating to his

line-item veto of a legislative appropriation to fund the “Public Integrity Unit,” then housed within

the Travis County District Attorney’s Office, while he was serving as Governor of Texas.

In response to the indictment, Perry has vigorously disputed that the alleged conduct

actually equals a crime under either of the statutes under which he was charged, properly construed,

and he urges that any prosecution for such conduct would infringe not only his personal free-speech

rights under the Texas and federal constitutions, but also core powers vested in all Texas governors

3

Tex. Penal Code § 39.02(a)(2).

4

Id. § 36.03(a)(1); see id. § 1.07(a)(9)(F) (defining “coercion” as used in Penal Code).

3

by the Texas Constitution. Were the pending criminal charges civil claims instead, Perry would have

in his defensive arsenal an array of procedural mechanisms through which he could raise such

challenges to the legal viability of the State’s theories at the outset and possibly obtain dismissal

prior to trial—e.g., special exceptions,5 motions for summary judgment,6 and the recently created

motion to dismiss a cause of action that “has no basis in law or fact,”7 with possible immediate

recourse to appellate courts in the event such relief was denied at the trial level.8 But the

pretrial remedies presently available to defendants in Texas criminal cases are more limited9—as the

Texas Court of Criminal Appeals has put it, “trial on the merits” remains “‘the main event.’”10

Whether it is sound policy to draw such a distinction between defendants faced with loss of property

5

Tex. R. Civ. P. 91.

6

Id. R. 166a.

7

Id. R. 91a.

8

See In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (per curiam) (granting

mandamus relief to remedy trial court’s erroneous denial of Rule 91a dismissal motion; reasoning,

under Texas Supreme Court’s contemporary mandamus standards, that remedy of ordinary appeal

after final judgment was “inadequate” because immediate relief “is appropriate to spare the parties

and the public the time and money spent on fatally flawed proceedings” (citing In re John G. &

Marie Stella Kenedy Mem’l Found., 315 S.W.3d 519, 523 (Tex. 2010) (quoting In re Prudential Ins.

Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)))).

9

See, e.g., State ex rel. Lykos v. Fine, 330 S.W.3d 904, 919 (Tex. Crim. App. 2011) (holding

that “there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine

the ‘as applied’ constitutionality of a state penal law or state criminal procedural statute” and that

such a challenge must await trial); see also id. at 909 (observing that Texas criminal courts are

not empowered to issue declaratory judgments (citing Ex parte Usener, 391 S.W.2d 735, 736

(Tex. Crim. App. 1965); Ex parte Hammonds, 230 S.W.2d 820, 821 (Tex. Crim. App. 1950)); id.

at 919 (observing that “Texas law does not permit a defendant in a criminal case to attack the

sufficiency or adequacy of an indictment by evidence beyond the four-corners of that indictment”

(citing State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (op. on reh’g)).

10

Id. at 919.

4

versus loss of liberty is not a question that this intermediate appellate court is empowered to

address—we are instead duty-bound to follow that existing law unless and until the Legislature or

the Court of Criminal Appeals instructs us otherwise.11

Proceedings below

This appeal arises from Perry’s attempt to invoke one of the pretrial remedies that

potentially may be available to defendants in Texas criminal cases—an application for a pretrial

writ of habeas corpus. Generally described, a criminal defendant may obtain pretrial habeas corpus

relief from a trial court when he or she is (1) “restrained” or “confined” (2) illegally and (3) does not

possess what is deemed an “adequate remedy by appeal” against such restraint or confinement.12

Further, an applicant who is denied that relief at the trial level, such as Perry, has a right to appeal

that order,13 a potential avenue for obtaining what amounts to interlocutory appellate review

regarding a pending prosecution.14

11

See, e.g., State v. DeLay, 208 S.W.3d 603, 605-07 (Tex. App.—Austin 2006), aff’d,

233 S.W.3d 870 (Tex. Crim. App. 2007).

12

See Ex parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (citing 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 Strother,

395 S.W.2d 629, 630 (Tex. Crim. App. 1965); Ex parte Rios, 385 S.W.2d 677, 678 (Tex. Crim.

App. 1965)).

13

This is so because the habeas application is considered to be an original proceeding

that concludes with a final, appealable judgment. See 43 George E. Dix & John M. Schmolesky,

Texas Practice Series: Criminal Practice and Procedure § 34:25 (3d ed. 2011).

14

See Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).

5

There has been no dispute that Perry is “restrained” in the sense required for pretrial

habeas relief pursuant to each of the two charges alleged in the indictment.15 As for the remaining

requirements for such relief, he has challenged the legality of his restraint pursuant to Count I of the

indictment (“Abuse of Official Capacity”) on nine distinct constitutional grounds:

1. Section 39.02(a)(2) [of the Texas Penal Code] violates the Fifth and

Fourteenth Amendments to the Constitution of the United States as applied

because its prohibitions of “misuse” of “government property . . . that has

come into the [Governor’s] custody or possession” is unconstitutionally

vague as a matter of law if extended to a mere gubernatorial veto of any

appropriation of State funds.

2. Section 39.02(a)(2) violates Article I, Sections 10 and 19 of the Texas

Constitution as applied because its prohibition of “misuse” of “government

property . . . that has come into the [Governor’s] custody or possession” is

unconstitutionally vague as a matter of law if extended to a mere

gubernatorial veto of any appropriation of State funds.

3. Section 39.02(a)(2) is unconstitutional as applied because it infringes upon

the Governor’s absolute constitutional right and duty to approve or

disapprove “items of appropriation” under Article IV, Section 14 of the Texas

Constitution.

4. Section 39.02(a)(2) is unconstitutional as applied because it violates the

separation of powers between the various departments of government that is

guaranteed to the People by Article II, Section 1 of the Texas Constitution.

5. Because a governor acts in a constitutionally-prescribed legislative capacity

in vetoing legislation, Section 39.02(a)(2) is unconstitutional as applied

because it violates the protection afforded by the Speech and Debate Clause

of Article III, Section 21 of the Texas Constitution.

6. Because the Governor was acting in a legislative capacity in vetoing the

appropriation at issue, Count I of the indictment is void because it is

15

See Weise, 55 S.W.3d at 619 (observing that pretrial habeas applicant “was restrained of

his liberty . . . when he was charged with [an offense] and released on bond to await trial.”) (citing

Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim. App. 1982)).

6

necessarily based on evidence privileged by the Speech and Debate Clause

of Article III, Section 21 of the Texas Constitution.

7. Because the Governor was acting in a legislative capacity in vetoing the

appropriation at issue, trial on Count I of the indictment is barred as a matter

of law because the State could only sustain its burden, if at all, by introducing

evidence privileged by the Speech and Debate Clause of Article III, Section

21 of [t]he Texas Constitution.

8. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry

had the right to do any and all acts of which he is charged in the exercise of

his rights under the Free Speech guarantee of the First Amendment to the

Constitution of the United States.

9. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry

had the right to do any and all acts of which he is charged in the exercise of

his rights under the Free Speech guarantee of Article I, Section 8 of the Texas

Constitution.

Regarding Count II (“Coercion of Public Servant”), Perry has brought the following constitutional

claims:

1. Section 36.03(a)(1) violates the First and Fourteenth Amendments to the

United States Constitution because, as enacted into law, it is

unconstitutionally overbroad on its face.

2. Section 36.03(a)(1) violates Article I, Section 8 of the Texas Constitution

because, as enacted into law, it is unconstitutionally overbroad on its face.

3. Section 36.03(a)(1) violates the First and Fourteenth Amendments to the

United States Constitution because, as enacted into law, it is

unconstitutionally vague on its face.

4. Section 36.03(a)(1) violates Article I, Section 8 of the Texas Constitution

because, as enacted into law, it is unconstitutionally vague on its face.

5. Section 36.03(a)(1) violates the First, Fifth, and Fourteenth Amendments to

the United States Constitution because it is unconstitutionally vague as

applied.

7

6. Section 36.03(a)(1) violates Article I, Sections 8, 10, and 19 of the Texas

Constitution because it is unconstitutionally vague as applied.

7. Section 36.03(a)(1) violates the First, Fifth, and Fourteenth Amendments to

the United States Constitution because it is unconstitutionally overbroad as

applied.

8. Section 36.03(a)(1) violates Article I, Sections 8, 10, and 19 of the Texas

Constitution because it is unconstitutionally overbroad as applied.

9. Section 36.03(a)(1) is unconstitutional as applied because it infringes upon

the Governor’s absolute constitutional right and duty to approve or

disapprove “items of appropriation” under Article IV, Section 14 of the Texas

Constitution.

10. Section 36.03(a)(1) is unconstitutional as applied because it violates the

separation of powers between the various departments of government that is

guaranteed to the People by Article II, Section 1 of the Texas Constitution.

11. Section 36.03(a)(1) is unconstitutional as applied because it violates the

Speech and Debate Clause of Article III, Section 21 of the Texas

Constitution.16

As the district court observed, the claims raised by Perry are “unique,” “important,”

and “certainly deserve careful consideration in an appropriate forum.”17 The court even went as far

as to term “compelling” Perry’s arguments regarding the Separation of Powers and the Speech and

Debate Clause.18 However, the district court was bound, as are we, to adhere to Court of Criminal

Appeals precedents instructing lower courts that we cannot reach the merits of any claim presented

16

In addition to these constitutional challenges regarding the “Coercion of Public Servant”

charge, Perry also challenged whether the indictment alleged sufficient facts to negate an exception

to that offense that we will discuss below. That claim is not at issue in this appeal.

17

Order at 9-10 (quoting Lykos, 330 S.W.3d at 911).

18

Id. at 8-10; see also id. at 5 n.3 (similarly terming “persuasive” arguments urged by amici

“Constitutional and Criminal Law Experts”).

8

through pretrial habeas, however meritorious it may potentially be, without first determining, as a

“threshold” matter, that the claim is properly “cognizable” through that procedural mechanism—that

is, whether the court can properly decide the merits of the claim at that juncture or must leave it to

be addressed through other trial-level proceedings and any subsequent post-conviction appellate

remedy.19 This requirement rests on jurisprudential policies, frequently emphasized by the Court of

Criminal Appeals in recent years, that “pretrial habeas, followed by interlocutory appeal, is an

‘extraordinary remedy’” and should 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.’”20 The court has

similarly stressed that “[a] defendant may use a pretrial writ of habeas corpus only in very limited

circumstances”21 and that the remedy “should be reserved for situations in which the protection of

the applicant’s substantive rights or the conservation of judicial resources would be best served by

interlocutory review.”22

The district court thus proceeded immediately to that threshold inquiry and

determined, without hearing evidence, that, under “the current state of the law in Texas,” only

Perry’s challenges to the constitutionality of the statutory basis for the “Coercion of Public Servant”

charge “on its face”—i.e., claims 1-4 regarding Count II—were cognizable in pretrial habeas. As

for the remaining claims—sixteen in all, including all of Perry’s claims regarding Count I—the

19

Ellis, 309 S.W.3d at 79 (citing Ex parte Doster, 303 S.W.3d 720, 721 & n.2, 727

(Tex. Crim. App. 2010)).

20

Id. (quoting Doster, 303 S.W.3d at 724).

21

Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam).

22

Weise, 55 S.W.3d at 620.

9

district court concluded each was not cognizable—as the district court put it, “the court’s hands are

tied” (emphasis in original)23—because the claim asserted an “as applied” constitutional challenge.

Accordingly, the district court denied relief as to the sixteen claims asserting “as

applied” challenges without reaching their merits. Although it did reach the merits of the facial

constitutional challenges it held to be cognizable, the court rejected them. On appeal, Perry insists

that both sets of rulings were in error.

COGNIZABILITY ISSUES

We will begin with Perry’s arguments relating to the sixteen “as applied” claims the

district court declined to reach, because these arguments concern a threshold issue and because Perry

devotes the majority of his issues on appeal to arguing the claims’ cognizability and merits.24 Perry’s

specific contentions are best understood against the backdrop of the “the current state of the law in

Texas” on which the district court relied.25

23

Order at 10.

24

As the district court observed, the cognizability of Perry’s claims turns on issues of law,

and we review such questions de novo. See generally Ellis, 309 S.W.3d at 79-82; cf. State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (reasoning that de novo standard governed review of

trial court rulings to quash indictment because the sufficiency of the indictment is a question of law

that does not turn on evaluations of witness credibility or demeanor or on disputed facts (citing

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997))).

25

The district court’s order includes approximately twenty pages of analysis, with citation

to case authorities.

10

The Court of Criminal Appeals has held that “as applied” constitutional challenges are not

cognizable in pretrial habeas corpus

The district court emphasized several recent Court of Criminal Appeals decisions

addressing the extent to which an “as applied” constitutional challenge to a penal statute can be

properly decided through pretrial proceedings, including pretrial habeas corpus, in lieu of awaiting

trial on the merits and any post-conviction appeal. As the Court of Criminal Appeals has explained,

an “as applied” constitutional challenge “concedes the general constitutionality of the statute, but

asserts that the statute is unconstitutional as applied to [the defendant’s] particular facts and

circumstances.”26 In contrast, a “facial” constitutional challenge seeks to establish that the statute

is unconstitutional and unenforceable as to any person.27 As between these two classifications, the

district court concluded that each of the sixteen claims it did not reach was an “as applied” challenge

because it asserted that a penal statute violated constitutional limitations as it would operate against

Perry’s particular circumstances—with emphasis on his unique duties and powers as Governor—as

opposed to contending that some constitutional defect rendered the statutes unenforceable as to

anyone against whom it could be applied. Indeed, as the district court noted, Perry himself phrased

virtually all of these claims in terms of the statutes’ constitutionality “as applied” to him and his role

as Governor at the time.

Having classified the sixteen claims as “as applied” challenges, the district court

looked to Ex parte Weise,28 in which the Court of Criminal Appeals granted review to address

26

Lykos, 330 S.W.3d at 910.

27

Id. at 908.

28

55 S.W.3d 617.

11

“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.”29 The

applicant, Weise, had been charged with illegal dumping and sought pretrial habeas corpus on the

basis that the illegal-dumping statute was unconstitutional “as applied” to him because the charging

instrument did not allege a mens rea.30 In evaluating whether pretrial habeas was available as a

remedy, the court emphasized a longstanding general rule that pretrial habeas corpus is not available

to “test the sufficiency” of the charging instrument.31 The Court of Criminal Appeals acknowledged,

however, that it had also recognized certain “exceptions” to this general rule that it had deemed to

fall into a broader category of cases in which it had long permitted pretrial habeas relief where “the

alleged defect would bring into question the trial court’s power to proceed.”32 One such “exception,”

the court noted, was where the face of the charging instrument showed that the prosecution was

barred by limitations.33 Another recognized “exception” noted by the Weise court—and of more

29

Id. at 618, 619.

30

Id. at 618-19.

31

Id. at 620 (citing Ex parte Delbert, 582 S.W.2d 145 (Tex. Crim. App. 1979); Ex parte

Mangrum, 564 S.W.2d 751, 752 (Tex. Crim. App. 1978); Ex parte Ward, 560 S.W.2d 660, 660-61

(Tex. Crim. App. 1978); Ex parte Dickerson, 549 S.W.2d 202, 203 (Tex. Crim. App. 1977)).

32

Id. at 619 (citing Mangrum, 564 S.W.2d at 752 (indictment based on repealed statute);

Menefee v. State, 561 S.W.2d 822, 830 (Tex. Crim. App. 1977) (juvenile indicted without examining

trial); Ex parte Trillo, 540 S.W.2d 728, 733 (Tex. Crim. App. 1976), overruled on other grounds by

Aguilar v. State, 621 S.W.2d 781 (Tex. Crim. App. 1981) (probation-revocation proceedings without

required hearing); Ex parte Becker, 459 S.W.2d 442, 443 (Tex. Crim. App. 1970) (indictment

returned by irregularly empaneled grand jury)).

33

Id. at 620 (citing Ex parte Tamez, 38 S.W.3d 159, 161 (Tex. Crim. App. 2001) (citing

Dickerson, 549 S.W.2d at 203). But see Doster, 303 S.W.3d at 724-25 (more recently suggesting

that this line of cases may be founded on an outmoded notion of jurisdiction).

12

direct relevance here—is a complaint that a statute defining the charged offense is unconstitutional

on its face, as this would mean that “there is no valid statute and the charging instrument is void.”34

The Court of Criminal Appeals concluded that Weise’s complaint did not fit

under any of these recognized exceptions that would permit his claim to be raised through pretrial

habeas corpus. It observed that Weise was not making a challenge to the facial constitutionality

of the statute, nor “claiming that the trial court lacked the power to proceed.”35 Instead, the court

reasoned, “he is claiming that the statute as applied via the information is unconstitutional because

it fails to allege a mens rea.”36 It termed this sort of challenge, “in reality, simply an attack on the

charging instrument.”37 Absent any “alleged . . . deficiencies that we have recognized as cognizable

on habeas corpus,” the court held that the issue of whether the illegal-dumping statute required a

culpable mental state “is not yet ripe for review.”38

In addition to Weise, the district court also looked to the Court of Criminal Appeals’s

more recent decision in Ex parte Ellis.39 Ellis involved an attempt by defendants to raise by pretrial

habeas and subsequent appeal what they had styled as a “facial” vagueness challenge to Texas’s

money-laundering statute. The thrust of this challenge, however, was not that the statute was vague

in all of its applications, but that it was unconstitutionally vague if it was construed to apply to

34

See Weise, 55 S.W.3d at 620.

35

Id. at 620-21.

36

Id. at 621 (emphasis in original).

37

Id.

38

Id.

39

309 S.W.3d 71.

13

checks, an issue of eventual significance in the underlying prosecution.40 The district court denied

relief, and that ruling was appealed to this Court. This Court affirmed the district court’s ruling,

concluding that the money-laundering statute was not unconstitutionally vague, but its reasoning

turned on a holding that the statute did not apply to checks.41 The Court of Criminal Appeals granted

the State’s request for review and held that the defendants’ challenge was not cognizable because,

in the court’s view, the defendants “did not really advance a facial challenge.” Specifically, the

court reasoned that the defendants had presumed there were some valid applications of the money-

laundering statute and had thus “advanced an ‘as applied’ claim that was disguised as a facial

challenge.”42

Citing Weise, the Ellis court emphasized the longstanding rule that “pretrial habeas

is not available to test the sufficiency of the charging instrument.”43 Nor, the Ellis court added, could

the remedy be used “to construe the meaning and application of the statute defining the offense

charged.”44 Additionally, while acknowledging that “[p]retrial habeas can be used to bring a facial

challenge to the constitutionality of the statute that defines the offense,” the Court of Criminal

Appeals stressed that the remedy “may not be used to advance an ‘as applied’ challenge,” again

40

Id. at 75.

41

Id. at 76-77.

42

Id. at 80-82.

43

Id. at 79 (citing Weise, 55 S.W.3d at 620).

44

Id. (citing Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006); Weise,

55 S.W.3d at 620-21).

14

citing Weise for that proposition.45 “Addressing the ‘as applied’ substance of the claim,” the

high court held, thus “resulted in a circumvention of the pretrial habeas cognizability limitations.”46

Another Court of Criminal Appeals case of significance to the district court was Lykos

v. Fine.47 Lykos arose out of a pending capital murder case in which the State had given notice of

its intent to seek the death penalty.48 The defendant filed a novel pretrial motion seeking a ruling

declaring the death-penalty sentencing statute unconstitutional “as applied” to him, and attempted

to demonstrate by pleadings and proof that he faced what he claimed to be an unconstitutionally high

systemic risk of wrongful conviction or other error at trial.49 After the trial court set an evidentiary

hearing on the motion, the State sought to bar the proceedings via mandamus and prohibition,

challenging the trial court’s legal authority to conduct such a hearing before trial.50 Concluding

that “there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the

‘as applied’ constitutionality of a state penal or criminal procedural statute” and that the trial court,

consequently, was “acting beyond the scope of his lawful authority,” the Court of Criminal Appeals

conditionally granted relief.51

45

Id. (citing Weise, 55 S.W.3d at 620-21).

46

Id. at 81.

47

330 S.W.3d 904.

48

Id. at 906.

49

See id. at 906-08.

50

Id. at 906-07.

51

Id. at 919-20.

15

In reaching that conclusion, the Court of Criminal Appeals relied heavily on the

view that “as applied” constitutional challenges could only be brought “during or after a trial on the

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

circumstances of the case needed to determine whether the statute or law has been applied in an

unconstitutional manner.”52 The court also relied upon prior decisions in which it had emphasized

that the Legislature had not seen fit to provide criminal courts procedural mechanisms by which they

could grant “declaratory judgments”53 or test, prior to trial, the sufficiency of evidence supporting

or defeating the elements of charged offenses.54 In that regard, the court cited with approval a

1950 case, Ex parte Hammonds,55 in which it had refused to entertain a pretrial habeas claim seeking

determination of whether a set of agreed facts submitted by the parties constituted the crime of rape.

In Hammonds, the court had observed that “[i]n Texas, procedure such as demurrer to the evidence,

declaratory judgment or pre-trial judgment, in criminal cases, is not recognized,” and refused to

allow pretrial habeas to be used to achieve effectively the same ends.56

Emphasizing Weise, Ellis, and Lykos, the district court concluded that “[t]he

Texas Court of Criminal Appeals has made it crystal clear that a trial court has no authority to

consider the merits of a pretrial writ of habeas corpus based upon an ‘as applied’ challenge to the

52

Id. at 910; see also id. at 911-12 (emphasizing the “hypothetical” nature of the

constitutional complaint).

53

See id. at 909 (citing Ex parte Usener, 391 S.W.2d at 736).

54

Id. at 919 & n.68 (citing Rosenbaum, 910 S.W.2d at 948).

55

230 S.W.2d 820; see Lykos, 330 S.W.3d at 909 n.18.

56

Hammonds, 230 S.W.2d at 821.

16

constitutionality of a statute”57 and held that this principle barred it from reaching the merits of the

sixteen claims it had classified as “as applied” constitutional challenges.

But Perry insists these precedents are distinguishable

Although not disputing that the sixteen claims each assert a form of “as applied”

constitutional challenge rather than what is generally considered a facial one, Perry insists his

particular “as applied” challenges are nonetheless cognizable in pretrial habeas, notwithstanding

the Court of Criminal Appeals precedents discussed above, for two related sets of reasons. First,

while acknowledging that the Court of Criminal Appeals in Ellis “has made the broad statement that

pretrial habeas ‘may not be used to advance an ‘as applied’ challenge,’” Perry insists that the high

court’s jurisprudence is actually more nuanced than the district court assumed. He reasons that the

“as applied” constitutional challenges that have been the concern of the Court of Criminal Appeals

in cases like Ellis and Lykos refer only to challenges that, as a practical matter, could not be

determined without recourse to evidence. While such evidentiary development may be necessary

to assert “typical as-applied challenges,” Perry maintains, this is not true of all “as applied”

challenges, because some “can be decided solely by reference to the indictment and the statute.” In

fact, Perry urges, the Court of Criminal Appeals has previously entertained on pretrial habeas

this very sort of “as-applied-to-the-indictment” challenge, as he terms it, in a 1991 decision,

Ex parte Boetscher.58

57

Order at 6.

58

812 S.W.2d 600 (Tex. Crim. App. 1991).

17

In that case, Boetscher, a resident of Michigan, was indicted in Lubbock County for

criminal nonsupport of his children, which the then-applicable version of the Penal Code enhanced

to a felony on the sole basis that he had resided out of state at the time the offense was allegedly

committed.59 Boetscher sought relief by pretrial habeas corpus, and the Court of Criminal Appeals

summarized his contentions as “argu[ing] that [the enhancement provision], as applied to the unusual

circumstances of his case, denies him equal protection [under the Fourteenth Amendment] because

it makes his alleged conduct a felony, rather than a misdemeanor, ‘solely because he is not a

resident of Texas.’”60 There is no indication in the opinion that the State disputed the cognizability

of Boetscher’s equal-protection challenge in pretrial habeas, and the Court of Criminal Appeals did

not address that issue beyond dropping a footnote stating, “We have previously entertained pretrial

habeas corpus proceedings challenging the constitutionality of penal statutes.”61 In support of that

assertion, the court cited two cases, Ex parte Crisp,62 and Ex parte Psaroudis.63 Crisp involved a

facial challenge to amendments to the Controlled Substances Act that was founded on an asserted

defect in the bill caption.64 Psaroudis, on the other hand, addressed whether there was a “valid

statute under which [the defendant] can be charged” without any explicit reference to an asserted

constitutional defect; the court instead construed the Controlled Substances Act to determine

59

See id. at 601 (citing Tex. Penal Code § 25.05).

60

Id. at 603.

61

Id. at 601 n.2.

62

661 S.W.2d 944 (Tex. Crim. App. 1983).

63

508 S.W.2d 390 (Tex. Crim. App. 1974).

64

Crisp, 661 S.W.2d at 945-48.

18

whether the statute prohibited the acts with which the applicant had been charged, possession or

delivery of hashish.65

The Boetscher court preceded its analysis of the claim by quoting the indictment “in

relevant part,” noting allegations that Boetscher had failed to provide child support for his children

in Lubbock County and that “the defendant was then residing in another state, to-wit: Michigan.”66

The court subsequently observed that statutory amendments had changed the enhancement

provisions, which had previously applied to persons who committed the offense in Texas and then

fled the state, to “provide a felony penalty for all defendants who commit the offense while simply

residing in another state.”67 This new enhancement scheme, the court concluded, “plainly implicates

one of the basic rights of all Americans,” the right to travel, and was thus deemed invalid under the

Equal Protection Clause of the Fourteenth Amendment unless “the government can show it is

truly necessary to the promotion of a compelling governmental interest.”68 Because the State had

not attempted to make any such showing, the court went on to hold that “the equal protection

clause of the Fourteenth Amendment prohibits the application of [the enhancement provision]

to appellant under this indictment.”69 In closing, the court expressly disclaimed any opinion as to

65

Psaroudis, 508 S.W.2d at 391-92. But cf. Ellis, 309 S.W.3d at 79 (pretrial habeas

generally not available “to construe the meaning and application of the statute defining the offense

charged” (citing Smith, 185 S.W.3d at 893; Weise, 55 S.W.3d at 620-21)).

66

Boetscher, 812 S.W.2d at 602.

67

Id. at 603 (emphasis in original).

68

Id. at 603-04 (emphases in original).

69

Id. at 604.

19

whether the statute could be applied against “nonsupport offenders who commit the offense in this

state and then flee.”70

Perry argues that his sixteen “as-applied-to-the-indictment” constitutional challenges

are like those the Court of Criminal Appeals reached in Boetscher. As Perry sees it, his indictment,

on its face, establishes that he “is being prosecuted for a veto and an alleged veto threat,” infringing

not only his personal free-speech rights and immunities he possesses under the Speech and Debate

Clause, but also the separation of powers mandated by the Texas Constitution, amounting to

unlawful interference with the policymaking branches by entities within the Judicial Department.71

In these ways, Perry reasons, his indictment is akin to the one in Boetscher, which facially revealed

that the State was seeking to impose penalties on the applicant that hinged on the fact that he

resided in Michigan, violating the right to travel. Just as Boetscher was permitted to challenge the

constitutionality of the enhancement provision “as applied” to his circumstances via pretrial habeas,

Perry urges, he is likewise permitted to bring his “as-applied-to-the-indictment” challenges that way.

Perry’s second set of arguments draws upon additional jurisprudential policy

justifications that the Court of Criminal Appeals has sometimes invoked when permitting pretrial

habeas relief in other contexts. Foremost among these are cases where the high court has permitted

the use of pretrial habeas to assert constitutional protections that it perceived would be effectively

undermined otherwise. These have included claims regarding bail and those seeking to assert

70

Id. at 604 n.8.

71

The Judicial Department under the Texas Constitution includes not only district courts but

also district attorneys. See Tex. Const. art. V, §§ 1, 21.

20

the protection against double jeopardy.72 Perry regards the double-jeopardy cases as particularly

instructive here because that constitutional protection entails a “right not to be tried” that

must be vindicated before trial if it is to be effective. The same is true of his claims under the

Texas Constitution’s Separation-of-Powers provision and Speech and Debate Clause, Perry insists,

because these protections shield public officials not only from ultimately being held criminally liable

based on acts within their scope, but also from being subjected to prosecution based on those

acts at all.

Perry further asserts that pretrial habeas relief would not only be the best (if not

exclusive) means of protecting his substantive rights as compared to trial and appeal, but would also

serve the broader jurisprudential policy interest of conserving judicial resources.73 In this regard,

Perry argues that his “as-applied-to-the-indictment” constitutional challenges are the “functional

equivalent” of facial constitutional challenges, turning on questions of law that require no evidentiary

development and could be resolved by appellate courts as well as trial courts could. He adds that

favorable resolution of his claims would compel his immediate discharge from restraint, another

72

See Weise, 55 S.W.3d at 619-20 (citing Martinez v. State, 826 S.W.2d 620, 620

(Tex. Crim. App. 1992) (citing Danziger v. State, 786 S.W.2d 723, 724 (Tex. Crim. App. 1990)

(per curiam) (bail)); Ex parte Robinson, 641 S.W.2d at 555 (double jeopardy)).

73

See Weise, 55 S.W.3d at 620 (“Pretrial habeas should be reserved for situations in which

the protection of the applicant’s substantive rights or the conservation of judicial resources would

be best served by interlocutory review.”). In the same vein, Perry cites language in another Court

of Criminal Appeals decision that noted, with reference to cognizable claims raising limitations

bars established on the face of the charging instrument, “There is no point in wasting scarce judicial

and societal resources or putting the defendant to great expense, inconvenience, and anxiety if

the ultimate result is never in question.” Smith, 178 S.W.3d at 802. The high court has since

characterized this language as “dicta,” however, and intimated that this rationale would be

insufficient in itself to make a pretrial habeas claim cognizable. See Doster, 303 S.W.3d at 725.

21

consideration in the Court of Criminal Appeals’s pretrial habeas jurisprudence.74 And besides these

judicial policy considerations, Perry urges, immediate resolution of his claims via pretrial habeas and

appeal is compelled by the separation-of-powers concerns he has invoked, “[t]he paramount public

interest in the effective functioning of state institutions in general, and the untrammeled exercise of

the line-item veto by the governor in particular.” In short, Perry maintains that prudential limitations

that the Court of Criminal Appeals has imposed on the pretrial habeas corpus remedy within the

Judicial Department should not serve to facilitate a more serious ongoing infringement by that

Department on the other governmental branches.

The State attacks Perry’s proposed distinctions

The State responds that the district court was correct—the Court of Criminal

Appeals’s decisions in Ellis, Weise, and Lykos ultimately control and are fatal to Perry’s attempt to

assert his sixteen “as-applied-to-the-indictment” claims via pretrial habeas corpus. As for Perry’s

reliance on Boetscher, the State grants that the Court of Criminal Appeals permitted there an “as-

applied equal protection challenge on the face of the indictment” via pretrial habeas. However, the

State insists, “[f]ew cases are as simple or unusual as Ex parte Boetscher,” observing that the

challenged statute “[o]n its face . . . treated in-state residents differently from out-of-state residents,”

that Boetscher’s “out-of-state residence was the gravamen of the enhanced penalty,” and that the

indictment’s allegation that Boetscher lived out of state was uncontroverted and “not subject

to interpretation.” Under those particular circumstances, in the State’s view, Boetscher’s equal-

74

See Weise, 55 S.W.3d at 619.

22

protection challenge amounted to a “‘pure law’ challenge that is justiciable using only the language

in the indictment.”

In this regard, the State draws comparisons to the Court of Criminal Appeals’s

jurisprudence regarding cognizability of limitations-based challenges to charging instruments. As

the high court noted in Weise, it has long recognized an “exception” against the general rule

barring pretrial habeas challenges to “test the sufficiency” of the charging instrument “when the

pleading, on its face, shows that the offense charged is barred by limitations.”75 But this principle

has been further refined, as the State emphasizes, by a distinction between challenges based

on charging instruments that establish an “incurable,” “irreparable,” and “absolute” limitations bar

to prosecution, versus those that complain of asserted deficiencies in a “tolling paragraph,”

“explanatory averment,” or “innuendo allegations” that would “suffice to show that the charged

offense is not, at least on the face of the indictment, barred by limitations.”76 Only the former

category—which the high court has elsewhere termed a “pure law” limitations defense—is deemed

cognizable in pretrial habeas; the latter—what the court has labeled a “limitations factual

defense”—is not.77

The State urges that Perry’s “as-applied-to-the-indictment” constitutional challenges

are far removed from the “pure law” challenge addressed in Boetscher and analogous limitations

75

Id. at 620 (citing Tamez, 38 S.W.3d at 161 (citing Dickerson, 549 S.W.2d at 203)).

76

Smith, 178 S.W.3d at 802-03.

77

Id.; see Phillips v. State, 362 S.W.3d 606, 617-18 (Tex. Crim. App. 2011) (citing Proctor

v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998)); cf. Ex parte Heilman, 456 S.W.3d 159, 168-

69 (Tex. Crim. App. 2015) (overturning the distinction as it bears upon whether a limitations defense

can be waived).

23

cases, requiring factual development beyond what can be determined from the face of the indictment

alone. In fact, as the State emphasizes, the parties have continued to litigate the precise content of

the indictment—the predicate of Perry’s “as-applied-to-the-indictment” challenges—before the

district court in the interim since that court issued the order on appeal, with the State having since

filed a “Bill of Particulars & Amendment of Indictment” that purports to add “further clarity” to the

asserted factual bases for both counts, and Perry objecting to that filing on numerous grounds and

moving to quash. Among other changes, the State’s filing purports to modify Count I, which in its

original form did not allege explicitly that Perry’s supposed “misuse [of] government property” made

the basis for the charge consisted of a gubernatorial veto—a central premise of Perry’s “as-applied-

to-the-indictment” constitutional challenges. The new language would include specific allegations

that Perry’s “misuse [of] government property” underlying Count I was his use of “the lawful

power of gubernatorial veto for an unlawful purpose, to-wit: eliminating funding for the Public

Integrity Unit after Ms. Lehmberg refused to resign from her elected position as Travis County

District Attorney.”78

Leaving aside any such uncertainties regarding the content of the indictment, the State

contends more broadly that Perry’s “as-applied-to-the-indictment” challenges rest upon myriad

speculations, hypotheses, and interpretations as to what the underlying facts actually are and how the

two statutes at issue would apply to them—e.g., precisely what then-Governor Perry said and did,

78

In light of these ongoing trial-court-level developments concerning the indictment, we

requested and have received supplemental briefing from the parties addressing whether or how these

events impact the justiciability or continued relevance of the issues Perry has raised in this appeal.

We have concluded that the ongoing developments below do not impact our jurisdiction to decide

the issues presented on appeal, but have considered the supplemental briefing as it informs our

disposition of the cognizability questions.

24

whether these facts would constitute violations of Penal Code sections 36.03(a)(1) and 39.02(a)(2),

and whether any such applications of the statutes would violate the constitutional provisions he

has invoked. This factual record will exist only after evidence is presented at trial, the State insists,

and Perry’s attempts to adjudicate them via pretrial habeas amount ultimately to the sorts of

impermissible pretrial challenges to the sufficiency of the indictment, attempts “to construe the

meaning and application of the statute defining the offense charged,” “declaratory judgment” claims,

and “as applied” constitutional challenges that the Court of Criminal Appeals condemned in Ellis

and Weise. The State further emphasizes additional Court of Criminal Appeals precedents that have

refused pretrial habeas relief in other contexts when the court perceives evidentiary development at

trial to be necessary or beneficial in resolving the claim.79

Perry’s “as applied” constitutional challenges are not cognizable under the Court of Criminal

Appeals’s current precedents

Perry’s arguments ultimately amount to assertions about what Texas pretrial habeas

law currently is, on one hand, and what Perry contends it ought to be, on the other. With regard to

79

See Smith, 185 S.W.3d at 893 (“[A]ppellant’s in pari materia claim is not yet ripe for

review. . . . Though we may have a general idea of the facts of this case based on . . . testimony at

the evidentiary hearing and the representations in the defensive pleadings, which appear to be based

on newspaper accounts of the incident, we believe it apparent from the portions of the record set out

above that the State has more evidence to present about which we can only speculate at this time.

An appellate decision on the in pari materia claim would be premature before the State has had an

opportunity to develop a complete factual record during a trial, and we are not aware of any authority

that would require the State to prove its case before this time. Deciding the in pari materia claim

now on what would amount to a hypothetical set of facts that might be presented at appellant’s trial

would be merely advisory.”) (internal citations omitted); see also Doster, 303 S.W.3d at 724 (stating

that “pretrial habeas is unavailable when the resolution of a claim may be aided by the development

of a record at trial” (citing Smith, 185 S.W.3d at 893)).

25

the existing law, the Court of Criminal Appeals has sent us lower courts the following unequivocal

messages through its current pretrial habeas jurisprudence:

• Pretrial habeas and subsequent appeals are “extraordinary” remedies that are properly

available “only in very limited circumstances.”80

• Pretrial habeas typically cannot be used to test the sufficiency of a charging instrument or

to determine the legal effect of particular facts under a criminal statute.81 These limitations

are grounded not only in concerns about the ripeness of material underlying facts before

the evidence is presented at trial, but also a traditional reluctance by the high court (as

emphasized in Lykos) to permit pretrial habeas to be used to achieve the effect of procedural

mechanisms, such as a declaratory-judgment statute, that the Legislature has heretofore not

seen fit to provide Texas criminal courts.82 In fact, in the Hammonds case cited by the Lykos

court, the Court of Criminal Appeals held for these reasons that pretrial habeas cannot be

used to obtain a determination regarding the construction and application of a criminal statute

even to underlying facts to which the parties had agreed.83

• An “exception” to this general rule is where the applicant asserts that the statute under

which he or she is being prosecuted is unconstitutional on its face because, if successful,

the challenge would establish that “there is no valid statute and the charging instrument is

void.”84 The distinguishing characteristic of a facial challenge to a penal statute, as the Court

of Criminal Appeals emphasized in Ellis and later in Lykos, is that it contends the statute is

unconstitutional regardless against whom it is applied, such that it can be decided based on

the face of the statute alone, without regard to a defendant’s particular circumstances.85

• If a constitutional challenge to a criminal statute does not assert that the statute is wholly

void, Ellis instructs us that it is to be classified as an “as applied” challenge, and that

80

E.g., Ellis, 309 S.W.3d at 79; Smith, 178 S.W.3d at 801.

81

See Ellis, 309 S.W.3d at 79 (citing Smith, 185 S.W.3d at 893; Weise, 55 S.W.3d at 620-

21).

82

See Lykos, 330 S.W.3d at 909-10, 919.

83

See Hammonds, 230 S.W.2d at 821.

84

Weise, 55 S.W.3d at 620; see Ellis, 309 S.W.3d at 79.

85

See Lykos, 330 S.W.3d at 908-09; Ellis, 309 S.W.3d 79-82.

26

“[p]retrial habeas . . . may not be used to advance an ‘as applied’ challenge.”86 Weise

similarly held that pretrial habeas was unavailable for a claim purporting to challenge the

constitutionality of a penal statute as it had been applied in the charging instrument,

concluding that the claim ultimately fell under the general rule prohibiting the use of

the writ to challenge the sufficiency of a charging instrument.87 Lykos adds that “as applied”

constitutional challenges characteristically require development through evidence presented

at trial and cannot be decided at an earlier juncture.88

As the district court concluded, these precedents would appear to make “crystal clear”

that Perry’s “as-applied-to-the-indictment” claims are not cognizable in pretrial habeas. The closest

existing Court of Criminal Appeals authority that Perry offers to support a contrary conclusion

is Boetscher. That case, which predates Weise, Ellis, and Lykos by a decade or more, is somewhat

difficult to reconcile with those more recent decisions, and the Psaroudis case, on which Boetscher

partly founded its cognizability holding,89 would appear to be squarely inconsistent with them.90

At least one respected secondary authority has suggested that some Court of Criminal Appeals

cognizability decisions from that earlier era “fail[ed] at the time to have fully embraced the

distinction [between] challenges to statutes on their faces and as applied” and would likely

be decided differently by the high court today.91 As for the Court of Criminal Appeals’s own

pronouncements, it has never explicitly overruled Boetscher, but amid its synthesis of Texas pretrial

86

Ellis, 309 S.W.3d at 79-81.

87

Weise, 55 S.W.3d at 620-21.

88

Lykos, 330 S.W.3d at 910.

89

Boetscher, 812 S.W.2d at 601 n.2.

90

Psaroudis, 508 S.W.2d at 391-92 (addressing, via pretrial habeas, whether Controlled

Substances Act prohibited delivery of hashish, the act with which the defendant had been charged

under the statute).

91

Dix & Schmolesky, supra note 13, § 35:19.

27

habeas law in Weise, the court cited Boetscher as an illustrative case where it had held facial

constitutional challenges to be cognizable in pretrial habeas.92 Whether this aspect of Weise would

imply support for Perry’s notion that “as-applied-to-the-indictment” challenges are deemed

tantamount to facial challenges and are thus cognizable, represents an after-the-fact attempt by the

Court of Criminal Appeals to recharacterize Boetscher in line with its current views regarding the

cognizability of “as applied” challenges, or neither, is unclear.

Without more definite guidance from the Court of Criminal Appeals, we must

continue to follow Boetscher and, as neither case purported to overrule it, view it as an unstated

qualification to the holdings of Ellis and Weise that “as applied” constitutional challenges are not

cognizable in pretrial habeas.93 However, we agree with the State that Perry’s “as-applied-to-the-

indictment” claims are distinguishable from those addressed in Boetscher. The factual bases for

Boetscher’s “as applied” challenge were straightforward and readily ascertainable from the face of

his indictment: he was being prosecuted for child-support nonpayment, with a penalty enhancement

because he resided in Michigan. The opinion reflects no dispute regarding either the underlying fact

of Boetscher’s Michigan residency or that the statute made him susceptible to higher penalties

solely for that reason.94 Consequently, while employing “as applied” phrasing, the Court of Criminal

Appeals’s analysis resembled that in a conventional facial challenge—the inquiry centered on the

92

Weise, 55 S.W.3d at 620 & n.17.

93

See DeLay, 208 S.W.3d at 607 (“As an intermediate appellate court, we lack the authority

to overrule an opinion of the court of criminal appeals,” and even where such a precedent has

arguably been undermined by intervening developments, it remains “the law and we are not free to

disregard it” until high court itself revisits the decision).

94

See Boetscher, 812 S.W.2d at 601-04.

28

language of the statute itself, concluding that the statute’s “classification scheme . . . implicates one

of the basic rights of all Americans,” the right to travel.95

Perry’s “as applied” challenges, by contrast, are intertwined not only with disputes

about what the underlying facts are—indeed, disputes even about what underlying facts have been

alleged in the indictment—but also with disputes about whether those facts would constitute

violations of the statutes under which he is charged. These features of his “as-applied-to-the-

indictment” claims, unlike those in Boetscher, implicate jurisprudential policies against using pretrial

habeas to test the sufficiency of allegations in a charging instrument or to obtain a “declaratory

judgment” or otherwise determine the legal effect of particular facts under a criminal statute prior

to trial. In these ways, Perry’s “as-applied-to-the-indictment” claims more closely resemble the “as-

applied” claims addressed in Ellis and Weise, and we accordingly conclude that those decisions,

rather than Boetscher, control here.96 Under Ellis and Weise, Perry’s “as-applied-to-the-indictment”

95

Id. at 603.

96

We similarly are not persuaded by Perry that language in the concurrence to the Court of

Criminal Appeals’s more recent Karenev v. State decision, 281 S.W.3d 428 (Tex. Crim. App. 2009),

warrants a different conclusion. Perry emphasizes the following excerpt from the concurrence:

[W]hat is the difference between a facial challenge and an “as applied” challenge to

the constitutionality of a penal statute? Evidence. A facial challenge is based solely

upon the face of the penal statute and the charging instrument, while an applied

challenge depends on the evidence adduced at a trial or hearing.

281 S.W.3d at 435 (Cochran, J., joined by Price, Womack, and Johnson, JJ., concurring). Perry

deduces that this language supports his proposed distinction between the cognizability of “typical”

or “true” “as applied” challenges and “as-applied-to-the-indictment” challenges that are tantamount

to facial challenges. He ascribes particular importance to the concurrence’s reference to a facial

challenge being “based solely upon the face of the penal statute and the charging instrument.”

Leaving aside that this concurring opinion does not represent the authoritative view of the Court

of Criminal Appeals, this excerpt is less helpful to Perry than he suggests once it is examined in

context.

29

claims are not cognizable in pretrial habeas. While the subject matter of these claims may indeed

be “important,” and “worthy of careful consideration,” as the district court acknowledged, that

consideration alone has not been a controlling determinant for the Court of Criminal Appeals.97

Perry’s remaining rationales for limiting or avoiding the effect of Ellis and Weise are

ultimately rooted not in any existing controlling precedent of the Court of Criminal Appeals, but

broader “factors” he identifies in what he terms the high court’s “evolving jurisprudence regarding

cognizability in pretrial habeas.” As we have already emphasized, this Court is not empowered to

“evolve” or otherwise alter the binding effect of the Court of Criminal Appeals’s controlling

precedents, even if we might perceive sound justifications for doing so.98 Such changes are the

Karenev presented the Court of Criminal Appeals with the issue of whether a facial

challenge to the constitutionality of a penal statute could be raised for the first time on appeal. The

majority concluded it could not. Id. at 435. The four concurring judges would have held that

defendants should be allowed to raise facial challenges to penal statutes on appeal, reasoning in part

that such a challenge presents a “pure” legal question “wholly divorced from the specific facts of the

purported crime,” and is thus not dependent on evidence, such that appellate judges could resolve

them as well as a trial judge could. See id. at 435-38. The focus of the excerpt on which Perry relies,

read in context, was merely to emphasize the “purely legal” nature of facial challenges and their

suitability for resolution by appellate judges, as contrasted with “as applied” challenges. As for the

reference to facial challenges being “based solely upon the face of the penal statute and the charging

instrument,” the succeeding discussion suggests that this is an allusion to the fact that a defendant

bringing a facial challenge does “not need any evidence other than the fact of their prosecution”—as

would be established by the charging instrument itself—“to give them standing to challenge the

constitutionality of the penal statute under which they were convicted.” Id. at 435. In sum, the

Karenev concurrence ultimately provides little support for Perry’s notion that his “as-applied-to-the-

indictment” constitutional challenges should be considered tantamount to facial challenges, let alone

provides guidance regarding the cognizability of such claims on pretrial habeas.

97

See Weise, 55 S.W.3d at 620 (“[W]e have held that an applicant may not use a pretrial writ

to assert his or her constitutional rights to a speedy trial, challenge a denial of a pretrial motion to

suppress, or make a collateral estoppel claim that does not involve a double jeopardy violation.

Those issues are better addressed by a post-conviction appeal.”) (internal citations omitted).

98

See DeLay, 208 S.W.3d at 607.

30

prerogative of the high court itself, and until it so acts, we remain bound by Ellis and Weise.99

Similarly, “‘[a]s an intermediate appellate court, we are not free to mold Texas law as we see fit

but must instead follow the precedents of the Texas Supreme Court [or the Texas Court of Criminal

Appeals] unless and until the high court[s] overrule[] them or the Texas Legislature supersedes

them by statute.’”100 In similar instances where that principle has required us to reject proposed

modifications of the existing law that would conflict with higher court precedents, litigants have

sometimes succeeded later in obtaining the desired change in a higher court or from the

Legislature.101 But unless and until such changes occur here, Perry’s “as-applied-to-the-indictment”

challenges are not cognizable in pretrial habeas corpus.

As a final note regarding cognizability of these “as applied” challenges, we

acknowledge a broader concern raised by Perry and also by amici who support him—in their view,

this case represents an instance where a defendant has been made to face criminal charges of dubious

legal viability (and/or politically motivated origins) and will inevitably be vindicated, the only

question being at what point in the proceedings this will occur. In such circumstances, they urge,

the opportunity and eventuality of obtaining a favorable judgment at trial or on appeal will often do

99

Id.

100

Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 287 S.W.3d 390, 394-95

(Tex. App.—Austin 2009) (quoting Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565

(Tex. App.—Austin 2004, no pet.), rev’d on other grounds, 343 S.W.3d 112 (Tex. 2011).

101

See id. at 392, 394-95, 398 (declining to recognize proposed expansion of common-law

or constitutional privacy exceptions so as to shield travel vouchers for then-Governor Perry’s

security detail against mandatory disclosure under the Public Information Act). Cf. 343 S.W.3d

at 120 (on appeal, Texas Supreme Court recognized a new common-law “public safety” exception);

see also Act of May 30, 2011, 82d Leg., R.S., ch. 1229, § 2, 2011 Tex. Gen. Laws 3271, 3271

(codified at Tex. Gov’t Code § 552.022(a)).

31

little to rectify the harm the defendant suffers to reputation, professional standing, and the like during

the meantime. In fact, they suggest, inflicting such harms may be the primary goal of those who

pursue the charges. We express no opinion at this juncture as to whether these characterizations of

the charges pending against Perry are accurate—the more relevant observation now is that similar

things were said of the proceedings that gave rise to Ellis and related cases, yet it was only through

trial and post-judgment appeals that the now-former public official at the center of the cases was able

to refute the legal viability of the charges against him.102 Under Ellis and similar decisions of the

Court of Criminal Appeals, such potential harms incurred by defendants in the meantime, however

considerable they may be, are simply deemed insufficient in themselves to provide a basis for relief

through pretrial habeas corpus. If the Texas criminal justice system should operate differently, that

change must come from the Court of Criminal Appeals or the Legislature.

As the law stands now, the district court did not err in denying Perry pretrial habeas

relief on all sixteen of his claims that assert “as applied” constitutional challenges. And because

these include the sole claims Perry asserts regarding Count I (“Abuse of Official Capacity”), we

affirm the district court’s denial of relief as to that charge. But as to Count II (“Coercion of Public

Servant”), there remain to be considered Perry’s alternative facial constitutional challenges.

FACIAL CONSTITUTIONAL CHALLENGES

In claims 1-4 concerning Count II, Perry challenges the facial constitutionality of

the statute on which that charge is based, section 36.03(a)(1) of the Penal Code, as it incorporates

the relevant portion of the Penal Code’s definition of “coercion.” These claims are grounded in the

102

See generally DeLay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014).

32

established doctrines of “overbreadth” and “vagueness” that derive from the “freedom of speech”

guaranteed by the First Amendment to the United States Constitution,103 which has been applied to

the states through the Fourteenth Amendment.104 Although Perry has also based these claims on

the Texas Constitution’s free-speech provision, Article I, Section 8,105 his arguments, at least on

appeal, rely entirely on case decisions applying the First Amendment, and he does not identify

any feature of the Texas provision that would cause it to operate any differently than its federal

counterpart. Accordingly, we will focus our analysis entirely on the First Amendment protection

and jurisprudence.106

The First Amendment prohibits overbroad and vague speech restrictions

The First Amendment overbreadth doctrine holds that a statute is facially invalid if,

as written, it sweeps within its coverage a “substantial” amount of First Amendment-protected

103

See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom

of speech”). “Speech” in this sense includes not only oral statements, but also writings and other

mediums of communication or expression. E.g., Boos v. Berry, 485 U.S. 312, 316-18 (1988)

(displays of signs were “classically political speech” protected by First Amendment); Organization

for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (“[P]eaceful pamphleteering is a form of

communication protected by the First Amendment.”).

104

See, e.g., Virginia v. Black, 538 U.S. 343, 358 (2003); Ex parte Thompson, 442 S.W.3d

325, 334 (Tex. Crim. App. 2014) (citing Board of Educ. v. Barnette, 319 U.S. 624, 638-39 (1943)).

105

See Tex. Const. art. I, § 8.

106

See, e.g., Gilley v. State, 418 S.W.3d 114, 120 n.23 (Tex. Crim. App. 2014) (declining

to reach right-to-counsel complaint grounded in Texas Constitution where appellant “makes no

independent argument that it should be construed more protectively in the right-to-counsel context

than the Sixth Amendment” (citing Barley v. State, 906 S.W.2d 27, 35-36 (Tex. Crim. App. 1995))).

33

expression as compared to any activity it proscribes constitutionally.107 The doctrine thus presumes

that the challenged statute might otherwise have some legitimate applications, contrary to the typical

character of facial challenges,108 and it follows that a party may bring an overbreadth challenge

without regard to whether he would otherwise have suffered a constitutional violation from the

statute’s application, an exception to typical standing requirements.109 This result is deemed justified

by concerns that the statute would otherwise suppress or “chill” the constitutionally protected free

expression of numerous persons not before the court.110 The Court of Criminal Appeals, quoting

the United States Supreme Court, recently summarized these underlying jurisprudential policies in

Ex parte Lo:

“The Government may not suppress lawful speech as the means to suppress unlawful

speech. Protected speech does not become unprotected merely because it resembles

the latter. The Constitution requires the reverse.” This rule reflects the judgment

that “[t]he possible harm to society in permitting some unprotected speech to go

107

E.g., Ex parte Lo, 424 S.W.3d 10, 18 (Tex. Crim. App. 2013) (quoting Virginia v. Hicks,

539 U.S. 113, 118-19 (2003)); Morehead v. State, 807 S.W.2d 577, 579-80 (Tex. Crim. App. 1991)

(citing Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989)).

108

Cf. Ellis, 309 S.W.3d at 80 (stating general rule that facial challenge must demonstrate

that statute is invalid in all of its applications). Thus, the State’s reliance on the general rule is

misplaced if, as Perry urges, the challenged statutes implicate First Amendment-protected

expression. See id.

109

See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also

Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking

overbreadth may challenge a statute that infringes protected speech even if the statute

constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a

litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”)

(internal citations and quotations omitted).

110

Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 619-20

(1971)).

34

unpunished is outweighed by the possibility that protected speech of others may

be muted[.]”111

But because the overbreadth doctrine departs from normal standing concepts and

has broader effects than case-by-case adjudication—the constitutional defect is not merely a bar

to the statute’s enforcement against a particular defendant, but causes the statute to be invalidated

altogether—the high courts have emphasized that the overbreadth doctrine is “strong medicine”

that should be employed “sparingly” and “only as a last resort,”112 and “must be carefully tied to the

circumstances in which facial invalidation of a statute is truly warranted.”113 Consequently, before

a court invalidates a statute for overbreadth, the statute’s reach to impermissible applications

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

sweep.’”114 Otherwise, “whatever overbreadth may exist should be cured through case-by-case

analysis of the fact situations to which its sanctions, assertedly, may not be applied.”115

The vagueness doctrine, on the other hand, derives in part from due-process notice

concerns that require a criminal law to be sufficiently clear to afford a person of ordinary intelligence

a reasonable opportunity to know what is prohibited while also establishing determinate

111

424 S.W.3d at 18 (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002);

Broadrick, 413 U.S. at 612)) (quotations and alterations in original).

112

New York v. Ferber, 458 U.S. 747, 769 (1982) (quoting Broadrick, 413 U.S. at 613);

accord Ellis, 309 S.W.3d at 91.

113

Ferber, 458 U.S. at 769.

114

Ellis, 309 S.W.3d at 91 (quoting Broadrick, 413 U.S. at 613, 615).

115

Broadrick, 413 U.S. at 615-16.

35

guidelines for law enforcement.116 According to the Texas Court of Criminal Appeals in Ellis, a

facial vagueness challenge ordinarily must demonstrate that a criminal law fails this standard

“in all of its applications.”117 However, “‘[w]hen a statute is capable of reaching First Amendment

freedoms, the doctrine of vagueness ‘demands a greater degree of specificity than in other contexts’”

for reasons similar to those underlying the overbreadth doctrine—“to preserve adequately the right

of free expression because ‘uncertain meanings inevitably lead citizens to steer far wider of the

unlawful zone than if the boundaries of the forbidden areas were clearly marked.’”118 Thus, “where

First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling

protected expression” or be struck down.119 Likewise, when a vagueness challenge involves

First Amendment considerations, a criminal law may be held invalid on its face, as with an

overbroad law, “even if the law has some valid application” and “even though it may not be

unconstitutional as applied to that defendant’s conduct.”120 However, “‘perfect clarity and precise

guidance have never been required even of regulations that restrict expressive activity.’”121

116

See Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996) (citing Grayned

v. Rockford, 408 U.S. 104, 108-09 (1972); Kramer v. Price, 712 F.2d 174, 176-77 (5th Cir. 1983).

117

Ellis, 309 S.W.3d at 80. But cf. Johnson v. United States, ___ U.S. ___, ____,

192 L. Ed. 2d 569, 582 (June 26, 2015) (more recently rejecting the “theory that a vague provision

is constitutional merely because there is some conduct that clearly falls within the provision’s

grasp”).

118

Long, 931 S.W.2d at 287-88 (quoting Grayned, 408 U.S. at 109; Kramer, 712 F.2d

at 177).

119

Id. at 287 (citing Grayned, 408 U.S. at 109); accord Ellis, 309 S.W.3d at 86.

120

Ellis, 309 S.W.3d at 86; Long, 931 S.W.2d at 288 (citing Gooding v. Wilson, 405 U.S.

518, 521 (1972); Kramer, 712 F.2d at 176 n.3)).

121

Ellis, 309 S.W.3d at 86 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989))).

36

Furthermore, the concern of the vagueness doctrine “‘is not the possibility that it will be sometimes

difficult to determine whether the incriminating fact [the statute] establishes has been proved; but

rather the indeterminancy of precisely what that fact is.’”122

The State does not dispute that Perry’s claims asserting that Penal Code

section 36.03(a)(1) is unconstitutionally overbroad and vague “on its face” are, in both form and

substance, facial constitutional challenges, as opposed to being “disguised” as-applied claims of the

sort Ellis condemned. Nor does the State dispute that facial constitutional challenges like these are

cognizable in pretrial habeas corpus123—in fact, the Court of Criminal Appeals has recently decided

both facial overbreadth and vagueness challenges to criminal statutes that had been raised through

that procedural mechanism124—or that the district court could properly reach the merits of

both challenges here. On appeal, however, the State urges us to decline to reach Perry’s appeal of

the district court’s decision rejecting those challenges on the merits. Instead, the State argues, we

should remand those claims to the district court, allow proceedings there to run their course,

and weigh in only when and if warranted by an appeal from a judgment after trial. To support that

notion, the State cites language from Supreme Court decisions emphasizing the jurisprudential

policies favoring judicious use of the overbreadth doctrine as an alternative to awaiting “as applied”

122

Id. at 89-90 (quoting Williams, 553 U.S. at 306).

123

See Ellis, 309 S.W.3d 79-82; Weise, 55 S.W.3d at 620.

124

See Lo, 424 S.W.3d at 13-14 (addressing facial overbreadth challenge to Penal Code

section 33.021(b) raised via pretrial habeas); Ellis, 309 S.W.3d at 82-90 (addressing facial vagueness

challenge to Election Code provision raised through pretrial habeas); id. at 90-92 (addressing

facial overbreadth challenge to same provision); cf. id. at 79-82 (analyzing whether ostensibly

facial vagueness challenge to money-laundering statute was truly cognizable in pretrial habeas or a

“disguised” as-applied challenge).

37

constitutional challenges raised through case-by-case adjudication.125 It also argues more generally

that analysis of First Amendment facial challenges tends to benefit from development of a full

evidentiary record at trial, as opposed to relying on more abstract analysis of the statutory language

and its hypothetical implications.

While such considerations might inform application of the overbreadth doctrine here,

we cannot agree that they permit us to defer or avoid addressing Perry’s facial challenges altogether.

The State does not cite, nor are we aware of, any Court of Criminal Appeals decision where the court

has deemed these considerations to impact the cognizability of a facial overbreadth or vagueness

challenge on pretrial habeas or the subsequent availability of appellate relief. To the contrary, the

Court of Criminal Appeals’s holdings instruct us that trial and appellate courts should reach facial

constitutional challenges at the pretrial habeas stage because they implicate “the trial court’s

power to proceed,” a jurisdiction-like concern.126 These decisions leave us no more discretion to

defer addressing Perry’s facial challenges at this juncture, as the State urges, than they permit us to

decide his “as-applied-to-the-indictment” challenges now, as he insists.

125

See Fox, 492 U.S. at 484-85 (“It is not the usual judicial practice, . . . 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 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 [of] 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.” (quoting

Broadrick, 413 U.S. at 615)).

126

Weise, 55 S.W.3d at 619-20; see also Lo, 424 S.W.3d at 13-14; Ellis, 309 S.W.3d at 82-

92.

38

Accordingly, we proceed to the merits of Perry’s facial constitutional challenges.

Whether a statute is facially unconstitutional is a question of law that we review de novo.127 We

begin by inquiring whether Penal Code section 36.03(a)(1), as it incorporates the relevant portion

of the Code’s “coercion” definition, reaches a substantial amount of First Amendment-protected

activity.128 The “first step” in that analysis “is to construe the challenged statute,” as “it is impossible

to determine whether a statute reaches too far without first knowing what the statute covers.”129

Section 36.03(a)(1) is an expansive criminal prohibition of speech

When construing statutes, we ordinarily focus on the literal text and determine the

objective meaning of the words the Legislature used, as “the text of the statute is the law, in the

sense that it is the only thing actually adopted by the legislators” and it “is the only definitive

evidence of what the legislators . . . had in mind when the statute was enacted into law.”130 Penal

Code section 36.03(a), titled “Coercion of a Public Servant or Voter,” states:

(a) A person commits an offense if by means of coercion he:

(1) influences or attempts to influence a public servant in a specific

exercise of his official power or a specific performance of his official

127

Lo, 424 S.W.3d at 14-15 & n.8.

128

See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494

(1982) (suggesting that where party asserts both facial overbreadth and vagueness challenges

to a law, the court’s “first task” is to determine whether law reaches substantial amount of

constitutionally protected conduct; “[i]f it does not, then the overbreadth challenge must fail,” and

court then turns to the vagueness issue).

129

United States v. Stevens, 559 U.S. 460, 474 (2010) (quoting Williams, 553 U.S. at 293).

130

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

39

duty or influences or attempts to influence a public servant to violate

the public servant’s known legal duty; or

(2) influences or attempts to influence a voter not to vote or to vote in a

particular manner.131

The focus of the offense created by section 36.03(a)(1) is thus the use of “coercion” to “influence”

(i.e., bring about or cause132), or attempt to so “influence,” certain behavior of a “public servant.”133

Other Penal Code provisions require that these actions must be committed intentionally or

knowingly.134 Consequently, a person violates section 36.03(a)(1) if he employs “coercion” with the

131

Tex. Penal Code § 36.03(a).

132

Although “influence” is not defined specifically, the word in both its noun and verb

forms would ordinarily denote the exercise of a power or capacity to cause an effect upon or to bring

about a particular result. Webster’s Third New Int’l Dictionary 1160 (2002); see, e.g., Olivas

v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006) (looking to common dictionary definitions

for guidance in determining plain meaning of undefined words in Penal Code). The Legislature

used “influence” in a similar sense throughout chapter 36 of the Penal Code. See Tex. Penal Code

§§ 36.04 (creating offense of “improper influence,” “privately address[ing] a representation, entreaty,

argument, or other communication to any public servant who exercises or will exercise official

discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding

on the basis of considerations other than those authorized by law”) (emphasis added), 36.05 (creating

witness-tampering offense, defined in part as “offer[ing], confer[ring], or agree[ing] to confer any

benefit on a witness in an official proceeding” “with intent to influence the witness”) (emphasis

added). In fact, chapter 36 as a whole is titled “Bribery and Corrupt Influence” (emphasis added).

133

See Phillips v. State, 401 S.W.3d 282, 290 (Tex. App.—San Antonio 2013, pet. ref’d)

(making a similar observation in context of evidentiary-sufficiency and procedural challenge to

convictions for attempted coercion of public servant through threats of felonious bodily injury).

134

See Tex. Penal Code § 6.02(b), (c). A person acts intentionally, or with intent, with

respect to the nature of his conduct when it is his conscious objective or desire to engage in the

conduct. Id. § 6.03(a). A person acts knowingly with respect to the nature of his conduct when he

is aware of the nature of his conduct. Id. § 6.03(b).

40

conscious objective or desire, or actual awareness of, bringing about, or in an attempt to bring about,

the behavior of a “public servant” described in the statute.135

In both the legal arena and ordinary usage, the precise parameters of “coercion” and

when it occurs have often been elusive,136 although the concept frequently denotes some sort of

impingement on a listener’s free will or autonomy through force or threat.137 As “coercion” is used

135

Thus, we disagree with Perry’s assertion that section 36.03(a)(1) “defin[es] the crime with

reference to consequences (‘influencing a public servant’) without requiring that offenders have any

intent or knowledge regarding those consequences.”

136

See, e.g., United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (acknowledging

that “the ambiguity of such words as threat, intimidate, and coerce” had presented First Amendment

problems when used to define criminal conduct in broadly written statutes); see also Oren Bar-Gill

& Omri Ben-Shahar, Credible Coercion, 83 Tex. L. Rev. 717, 720-21 & nn. 4-5 (2005) (referencing

some of the scholarly literature attempting to distinguish “coercion” and “threats” from mere “offers”

and “bargaining”); Comment: Coercion, Blackmail, and the Limits of Protected Speech, 131 U. Pa.

L. Rev. 1469, 1471-72 & n.12 (1983) (noting scholarly disagreement as to the meaning of “coercion”

and proposing that “coercive speech” means only “speech forcing the listener to choose between

two things when the listener has a legitimate claim to both things,” thereby “reduc[ing] a listener’s

legitimate options”).

137

Webster’s Third New Int’l Dictionary 439 (2002) (“to compel to an act or choice by force,

threat, or other pressure”); Black’s Law Dictionary 258 (6th ed. 1990) (“Compulsion; constraint;

compelling by force or arms or threat. It may be actual, direct, or positive, as where physical force

is used to compel act against one’s will, or implied, legal or constructive, as where one party

is constrained by subjugation to other to do what his free will would refuse.”); see Davis v. State,

313 S.W.3d 317, 337 (Tex. Crim. App. 2010) (“Coercive government misconduct renders a

confession involuntary if the defendant’s ‘will has been overborne and his capacity for self-

determination critically impaired’” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26

(1973))); In re Frank Kent Motor Co., 361 S.W.3d 628, 632 (Tex. 2012) (noting that “elements of

economic duress or business coercion” include “a threat that overcomes the other party’s free will

and causes it to do what it otherwise would not have done and that it was not legally bound to do”);

see also Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 405-06 (2003) (explaining that “the

crime of coercion,” as created by the statutes of some states other than Texas, “involves the use of

force or threat of force to restrict another’s freedom of action,” and contrasting it with extortion, a

crime with common-law roots that focuses on the obtaining of property); Model Penal Code § 212.5

(Official 1962 Draft and Revised Comments) (American Law Institute 1980) (offense of “criminal

coercion” defined as the making of certain types of threats with the purpose “unlawfully to restrict

another’s freedom of action”).

41

in the Texas Penal Code, however, the Legislature has defined the term more specifically. This

definition currently appears in paragraph (9) of the Code’s general definitions provision,

section 1.07(a):

“Coercion” means a threat, however communicated:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(C) to accuse a person of any offense;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant or to cause a public servant to

take or withhold action.138

Thus, the defining feature of “coercion” under the Penal Code is “a threat” to do or perform one or

more of the six types of acts specified in paragraphs (A)-(F) of the definition. And, as confirmed

by the phrase “however communicated” that immediately follows “threat,” the Legislature has

limited “coercion” to speech and excluded means of compulsion that might be considered non-

communicative in nature, such as bare physical force.139

Further guidance regarding the nature of these “threats” is found in Olivas v. State,

where the Court of Criminal Appeals examined “the meaning of the term ‘threaten’ as used in the

138

Tex. Penal Code § 1.07(a)(9).

139

See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam) (stating that

federal law prohibiting the willful or knowing making of written or oral threats “to take the life of

or inflict bodily harm upon the President” or others in line of succession “makes criminal a form of

pure speech”).

42

Penal Code” in order to identify the elements of the Code’s assault-by-threat prohibition.140 After

observing that “[t]he word ‘threaten’ is not statutorily defined in the Penal Code,” the court turned

to, and cited approvingly, the following definition of “threaten” from Webster’s:

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.141

The court similarly quoted a definition of “threat” from Black’s Law Dictionary: “A communicated

intent to inflict harm or loss on another or another’s property.”142 Because the court couched its

analysis in terms of determining the meaning of “threaten” “as used in the Penal Code,” we must

presume that it would ascribe a similar meaning to “threat” as used in the Penal Code’s “coercion”

definition. Accordingly, “threat” as used there would denote a declared or expressed intention “of

hurting or punishing” or “to inflict injury,” a “menacing indication of . . . something dangerous or

evil,” or “a source of danger [or] harm” that is communicated to another through speech. It also

seems implicit in the notion of such a “threat” that the communication would be sufficiently specific

140

Olivas, 203 S.W.3d at 345-49; see Tex. Penal Code § 22.01(a)(2) (“A person commits

an offense if the person . . . intentionally or knowingly threatens another with imminent bodily

injury”).

141

Olivas, 203 S.W.3d at 345 (quoting Noah Webster, Webster’s New Twentieth Century

Dictionary of the English Language Unabridged 1901 (2d ed. 1983)).

142

Id. at 345-46 (quoting Black’s Law Dictionary 1203 (7th ed. 2000)).

43

to generate expectation that the actor could and would actually carry out particular harm on a

particular person, thereby excluding more generalized complaints or advocacy.143

In turn, paragraphs (A)-(F) of the definition specify six categories of threatened harm

or loss that would distinguish “coercion” under the Penal Code.144 If the threatened harm or loss

would itself constitute a felony offense, the offense created by section 36.03(a)(1) would be a third-

degree felony; otherwise, it is a Class A misdemeanor.145 The specific focus of Perry’s facial

challenges is the portion of paragraph (F) that references “threats . . . to take or withhold action as

a public servant.”146 “Public servant” as used in the Penal Code is defined as:

a person elected, selected, appointed, employed, or otherwise designated as one of

the following, even if he has not yet qualified for office or assumed his duties:

143

That is not to say that the Penal Code’s “coercion” definition requires that the actor

actually have intended to carry out the threatened harm. Cf. Velasquez, 772 F.2d at 1357 (regarding

federal retaliation statute barring threats of violence or property damage against witnesses, observing

that “[i]t . . . can make no difference whether the threatener intends to carry out the threat. . . . When

making a threat one hopes not to have to carry it out; one hopes that the threat itself will be

efficacious. Most threats, indeed, are bluffs.”).

144

Accord Board v. State, No. 03-96-00024-CR, 1998 Tex. App. LEXIS 3206, *16-17

(Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) (holding that “threat”

as used in the “coercion” definition, as that definition is incorporated into section 36.05’s witness-

tampering prohibition, was not unconstitutionally vague because nature of “threat” was informed by

the harms enumerated in the definition, in that case “hatred, contempt, and ridicule”); see Tex. Penal

Code § 36.05 (“a person commits an offense if, with intent to influence the witness, he . . . coerces

a witness or a prospective witness in an official proceeding” in regard to testimony or other

participation in the proceeding).

145

See Tex. Penal Code § 36.03(b).

146

Perry emphasizes that he is challenging section 36.03(a)(1) only as it incorporates this

portion of paragraph (F) and that he not challenging either section 36.03 or section 1.07(a)(9)

standing alone. Cf. Lo, 424 S.W.3d at 13-14, 17-27 (addressing—and ultimately sustaining—facial

overbreadth challenge to single subsection within Penal Code section 33.021).

44

(A) an officer, employee, or agent of government [and “government” is defined

in the Penal Code to mean “the state; . . . a county, municipality, or political

subdivision of the state; or . . . any branch or agency of the state, a county,

municipality, or political subdivision”147];

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private

written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of

a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right

although he is not legally qualified to do so.148

In short, “public servant” encompasses public officials and employees in every permutation of

Texas state or local government, without distinction or limitation regarding branch or department

(legislative, executive, judicial), level (county, city, district, etc.), or how the position is selected

(elected, appointed, etc.). The definition also extends to certain other persons who provide a specific

or limited form of governmental service or function—jurors, grand jurors, attorneys and notaries

“participating in performing a governmental function,” and arbitrators and other private adjudicators

of causes or controversies. Even candidates for public office, others not yet having qualified or

assumed their official duties, and persons performing a governmental function under a claim of right

come within the definition.

147

Tex. Penal Code § 1.07(a)(24).

148

Id. § 1.07(a)(41).

45

As is implicit in the phrase “threat . . . to take or withhold action as a public servant,”

the focus of paragraph (F), as it relates to Perry’s facial challenges, is on threats made by a public

servant that he will take or withhold action in his official capacity or under color of his delegated

authority.149 We can also discern that paragraph (F) contemplates a taking or withholding of

action by a public servant that would “hurt,” “punish,” inflict injury” upon, amount to “danger” to,

or “harm” another person, as this would follow from the definition of “threat” endorsed in Olivas.150

With this understanding of the “coercion” element in mind, we now return to the

remaining text of Penal Code section 36.03(a)(1). Combining the two, section 36.03(a)(1), as it

operates against threats made by a public servant concerning his own actions, prohibits that public

servant from:

• communicating an intent to take or withhold action in his official capacity or under color of

his delegated authority that would “hurt,” “punish,” inflict injury” upon, amount to “danger”

to, or “harm” another person . . .

• with the conscious objective, desire, or actual awareness of bringing about, or in an attempt

to bring about . . .

149

Paragraph (F) of the “coercion” definition also encompasses threats made by a different

category of actors—threats made by any person, whether a public servant or ordinary citizen, that

he or she will cause a public servant to take or withhold action. See Tex. Penal Code § 1.07(a)(9).

Because Perry’s arguments are directed entirely at the other component of paragraph (F)—threats

made by public servants to take or withhold action themselves—we have no occasion to address

the constitutionality of paragraph (F) and section 36.03(a)(1) as they would proscribe threats by

members of the public and others to cause such public-servant actions as a means of bringing about

actions by other public servants. But cf. U.S. Const. amend. I (protecting “the right of the people . . .

to petition the Government for a redress of grievances”). Except where indicated otherwise, all

subsequent references to “paragraph (F)” or “section 36.03(a)(1) and paragraph (F)” denote only the

portion of paragraph (F), as it is incorporated into section 36.03(a)(1), that Perry has challenged.

150

See Olivas, 203 S.W.3d at 345-46 (explaining that ordinary meaning of “threat” includes

a declared or expressed intent “of hurting or punishing” or “to inflict injury,” as well as a “menacing

indication of . . . something dangerous [or] evil,” or “a source of danger [or] harm”).

46

• any of the following actions by another “public servant” (defined the same way as with the

actor; i.e., expansively):

• “a specific exercise of his official power,” or

• “a specific performance of his official duty,” or

• a “violat[ion of] the public servant’s known legal duty.”

The required mens rea element, as previously indicated, relates to the actor’s intent or awareness of

using the threat to induce, or in an attempt to induce, the desired conduct of the other public servant.

Neither section 36.03(a)(1) nor paragraph (F) requires that the actor make any explicit demand

or quid-pro-quo offer regarding the desired action on the part of the public servant sought to be

influenced; it is enough that a specific threat to take or withhold action was made with the requisite

mens rea.151 While proof of an explicit demand for action would certainly be probative of an aim

to “influence” the second public servant to those ends, nothing in the statute forecloses proof of the

prohibited aim through other circumstances. Further, neither section 36.03(a)(1) nor paragraph (F)

requires that the public servant sought to be influenced necessarily be the same person who would

be harmed if the threat were carried out.152

151

Cf. Isassi v. State, 330 S.W.3d 633, 644 (Tex. Crim. App. 2010) (“The improper-

influence statute does not require . . . a quid pro quo. That conduct is covered by the bribery

statute.”); State v. Robertson, 649 P.2d 569, 577-79 (Or. 1982) (addressing a state criminal coercion

statute requiring proof of an explicit demand (citing Or. Rev. Stat. § 163.275)).

152

See Phillips, 401 S.W.3d at 289-90 (upholding conviction for coercion of a public servant

based on evidence that defendant communicated oral threat to dispatcher (a “public servant”) that

he would inflict felonious bodily injury on a police officer (another “public servant”) in order to

influence the dispatcher’s performance of duty, and noting, “The fact that the threatened third person

in this case happened to be another public servant does not matter.”).

47

As for the action desired of the public servant sought to be “influenced,” the exact

phrase “influence [a public servant] to violate his known legal duty” appears in section 240.2 of the

Model Penal Code, the analog to both section 36.03 and section 36.04 (the improper-influence

prohibition) in the Texas Penal Code.153 As the drafters of the model code (the American Law

Institute) explained, “influence . . . to violate his known legal duty” denotes an attempt to secure

action by a public servant that would “violate a specific obligation of his office.”154 Such “legal

duties,” the Institute elaborated, are those “specific[ally] and clearly delineated” by constitutional

provisions, statutes, rules, or other legal authorities governing his performance of official functions,

in contrast to discretionary decisions or any “general obligation of fidelity to the public interest

or other implicit moral obligation.”155 Furthermore, according to the Institute, “the requirement of

knowledge” of the legal duty applies both to the public servant sought to be influenced and the actor

153

See Model Penal Code § 240.2 (Official 1962 Draft and Revised Comments) (American

Law Institute 1980). Subsections (a)-(c) of section 240.2 are the counterparts to Texas Penal Code

section 36.03—with subsection (c) containing the language quoted above—while subsection (d) of

section 240.2 corresponds to section 36.04. The Court of Criminal Appeals has previously sought

guidance from section 240.2 and accompanying commentary when construing parallel language that

appears in section 36.04, and we will follow its lead in construing the parallel language that appears

in section 36.03. See Isassi, 330 S.W.3d at 638-39; see also id. at 645 (Keller, P.J., dissenting)

(observing that “Section 240.02 . . . is comparable to our Penal Code § 36.03 (Coercion of Public

Servant or Voter) and § 36.04 (Improper Influence) together.”).

“Public servant” as used in the model code is defined similarly to the Texas version.

Model Penal Code §§ 240.0(7) (“any officer or employee of government, including legislators and

judges, and any person participating as a juror, advisor, consultant or otherwise, in performing a

governmental function; but the term does not include witnesses”), 240.2 (no defense “that a person

whom the actor sought to influence was not qualified to act in the desired way, whether because he

had not yet assumed office, or lacked jurisdiction, or for any other reason”).

154

Id. § 240.2 cmt. 2, at 51-52.

155

Id. § 240.2(c) cmt. 2, at 51-52; see id. § 240.1(3) & cmt. 3, at 13, cmt. 8, at 35-36.

48

seeking to influence him.156 The import of this language, in other words, is to proscribe threats

that are calculated to bring about action by a public servant whom the threatener knows does

not have lawful authority or discretion to so act. To this extent, the language has some parallels to

section 36.04’s improper-influence prohibition, which criminalizes certain private communications

made to public servants who exercise official discretion in adjudicatory proceedings (e.g., courts,

administrative law judges, or prosecutors) made “with an intent to influence the outcome of the

proceedings on the basis of considerations other than those authorized by law.”157

Standing in contrast to this portion of section 36.03(a)(1) are the other two types of

desired public-servant conduct that the statute addresses, “specific exercise of . . . official power”

and “specific performance of . . . official duty.” These components would extend more broadly to

capture threats calculated to cause action by a public servant who would possess lawful authority and

discretion to so act based on the threat,158 as well as those aimed at public servants whom the

threatener does not know to lack such authority. The modifiers “specific exercise of . . . official

power” and “specific performance of . . . official duty” make clear, however, that some particular

156

See id. § 240.1(3) cmt. 8, at 35.

157

Tex. Penal Code § 36.04(a) (emphasis added); see also Isassi, 330 S.W.3d at 642-45

(upholding improper-influence conviction based on evidence that county attorney made series of

contacts with district attorney’s office that “might be regarded as lawful when viewed in a vacuum,”

yet there was sufficient evidence county attorney intended the contacts to cause dismissal of aunt’s

pending charges because of that relationship rather than considerations authorized by law).

158

See Phillips, 401 S.W.3d at 288-89 (“specific performance” of dispatcher’s “official duty”

was manner in which dispatcher responded to 911 call); see also City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009) (distinguishing between “government officer’s exercise of

discretion” and conduct actionable under “ultra-vires exception” to sovereign immunity); Tobias

v. State, 884 S.W.2d 571, 574-76, 580-81 (Tex. App.—Fort Worth 1994, pet. ref’d) (upholding

conviction for attempted coercion, through threats of violence, of appellate court justices with aim

of achieving favorable decision in pending case).

49

action or conduct by the public servant must be sought and not merely some effect on the public

servant’s general comportment in office.159

The range of threats made by public servants that are ultimately criminalized by

section 36.03(a)(1) is limited somewhat by a subsection (c) of section 36.03. That provision states:

It is an exception to the application of Subsection (a)(1) of this section that the

person who influences or attempts to influence the public servant is a member of

the governing body of a governmental entity, and that the action that influences or

attempts to influence the public servant is an official action taken by the member

of the governing body. For the purposes of this subsection, the term “official action”

includes deliberations by the governing body of a governmental entity.160

Negation of this exception has been held to be an element of the offense.161 In other words, in cases

where the asserted violation of section 36.03(a)(1) is predicated on a threat by a public servant, the

State must prove, in addition to the other elements of the offense, that (1) the public servant who

made the threat is not “a member of the governing body of a governmental entity,” and (2) the threat

was not an “official action” of that member, a phrase that denotes an act performed by the member

in his official capacity and under color and by virtue of his office.162

A key effect of subsection (c), as Perry acknowledges and the district court agreed,

is to exclude from section 36.03(a)(1)’s proscription threats to take or withhold action made

159

See Black’s Law Dictionary 1398 (6th ed. 1990) (defining specific as “[h]aving a certain

form or designation; observing a certain form; particular; precise; tending to specify, or to make

particular, definite, limited, or precise”).

160

Tex. Penal Code § 36.03(c).

161

See Tobias, 884 S.W.2d at 578.

162

See Black’s Law Dictionary 1084 (6th ed. 1990) (defining “official act” as one “done by

an officer in his official capacity under color and by virtue of his office. Authorized act.”).

50

by members of the Legislature (who would be part of the “governing body” of a “governmental

entity,” the State of Texas) made in the course of their wranglings over legislation and policy.

Subsection (c) would have similar application to other elected officials and policymakers who serve

on city councils, school boards, and county commissioners’ courts, to name but a few examples. In

fact, subsection (c) originated in a package of three amendments impacting section 36.03 (which

originated in the 1974 Penal Code163) that were made by the Seventy-First (1989) Legislature

following controversy regarding the existing statute’s potential ramifications for policymakers

at the county level.164 The documented legislative history reflects that proponents advocated the

amendments “[t]o protect public officials from criminal prosecution arising from the execution of

their legal duties,” and cited a purported incident where “certain county commissioners” had come

under grand jury investigation regarding possible violations of the existing statute “in response

to budget cuts” they had imposed.165 The timing of the 1989 amendments also corresponds to the

prosecution that gave rise to State v. Hanson.166 Hanson (which we will explore in more detail

when analyzing section 36.03(a)(1)’s First Amendment implications) arose from charges brought

under the original versions of section 36.03(a)(1) and paragraph (F) against the then-constitutional

county judge for Bosque County, Hon. Regina Hanson.167 As the Tenth Court of Appeals

163

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 944

(amended 1989, 1993) (current version at Tex. Penal Code § 36.03).

164

Act of April 27, 1989, 71st Leg., R.S., ch. 67, §§ 1, 2, 1989 Tex. Gen. Laws 380, 380

(current versions at Tex. Penal Code §§ 1.07(a)(9), 36.03(c)).

165

House Comm. on State Affairs, Bill Analysis, Tex. H.B. 594, 71st Leg., R.S. (1989).

166

793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.).

167

See id. at 271-73.

51

summarized the charges, it had been alleged that Judge Hanson had “intentionally or knowingly

threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant

district attorney in an attempt to coerce the district judge into firing the county auditor and the county

attorney into revoking a misdemeanant’s probation.”168

Another of the 1989 amendments added the phrase “influences or attempts to

influence a public servant to violate the public servant’s known legal duty,”169 thereby specifying that

section 36.03(a)(1)’s prohibition extends to threats aimed at causing action by another public servant

whom the threatener knows does not have lawful authority or discretion to so act. The final change

consisted of an amendment to the “coercion” definition (which was then located in Penal Code

section 36.01(1)) to require in paragraph (F) that the threatened taking or withholding of action

by a public servant must be “unlawful,”170 a term that the Penal Code defines as conduct that would

be either criminal or tortious absent a defense amounting to justification or privilege.171 However,

the Legislature removed the “unlawfully” qualifier from paragraph (F) in 1993, amid sweeping

changes to the Penal Code in which the Legislature also moved the “coercion” definition to

168

Id. at 271. Although the Legislature enacted the 1989 amendments during the pendency

of Hanson, the case was controlled by the prior version of the law. See id. at 273.

169

Act of April 27, 1989, 71st Leg., R.S., ch. 67, § 3, 1989 Tex. Gen. Laws 380, 380 (current

version at Tex. Penal Code § 36.03(a)(1)).

170

Act of April 27, 1989, 71st Leg., R.S., ch. 67, § 2, 1989 Tex. Gen. Laws 380, 380 (current

version at Tex. Penal Code § 1.07(a)(9)). As amended, paragraph (F) was limited to threats:

(F) to unlawfully take or withhold action as a public servant, or to cause a public servant

to unlawfully take or withhold action.

Id.

171

Tex. Penal Code § 1.07(a)(48).

52

its current location in section 1.07.172 The remainder of section 36.03(a)(1) and the “coercion”

definition—including the other two 1989 amendments—has survived without substantive change

to this day.

In addition to excluding a category of public-servant threats from

section 36.03(a)(1)’s prohibition, subsection (c) also provides further illumination regarding the

nature of threats that remain covered. By requiring that an excepted threat be an “official action”

of a “governing board” member, subsection (c) implies that section 36.03(a)(1)’s proscription

reaches a range of threats that would not be considered official actions of a public servant,

whether governing board members or other kinds. This category, as it relates to threats covered by

paragraph (F) of the “coercion” definition, would seem to contemplate exceptional instances in

which a public servant has utilized threats to take or withhold official action to ends wholly beyond

the servant’s delegated powers, such as when used to pursue some sort of entirely personal benefit

or interest.173 The same feature of subsection (c) also confirms that 36.03(a)(1)’s proscription would

reach a range of threats that would be considered official actions of the public servants who are not

172

Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3588,

3659 (current version at Tex. Penal Code §§ 1.07(a)(9), 36.03).

173

Cf. Tobias, 884 S.W.2d at 584 (observing that “threatening specific criminal acts of

violence with a firearm against an appellate justice . . . could never constitute an ‘official action’

within the meaning of the exception of section 36.03(c)”). Other examples might include a juror

threatening to vote unfavorably to a municipality in a pending case in order to sway city personnel

to cease charging the juror for city services, or a city manager threatening employees of the city’s

municipal road crew with adverse personnel actions as a means of causing them to improve a private

road on his property.

53

governing board members. In fact, as the State seems to recognize, this would be the principal effect

of the statute.174

If the sparse volume of appellate opinions addressing section 36.03 to date is any

indication, the statute has rarely been utilized. However, the evident purpose of criminal statutes of

this sort—like the improper-influence statute, the prohibition against bribery of public servants in

section 36.02,175 and other provisions within chapter 36 of the Penal Code—is “to reach various

means by which the integrity of government can be undermined.”176 In that regard, prohibitions

like that in section 36.03(a)(1), at least in theory, serve as a “complement” to the bribery offense,

in that bribery focuses on the corruptive influence of offering or conferring a “benefit” as

consideration for a public servant’s actions, whereas section 36.03(a)(1) combats the use of a

negative incentive—threats of certain kinds of harm—to induce the public servant’s actions.177 The

definition of “coercion” incorporated into section 36.03 also has some similarities to the types of

threats that would be criminalized under the Model Penal Code through a “residual,” stand-alone

“coercion” offense when used “with purpose unlawfully to restrict another’s freedom of action to

his detriment” and not done with “benign purpose.”178

174

E.g., the State’s heavy reliance on First Amendment theories relating to “governmental

speech” and speech made by public servants pursuant to official duties, discussed below.

175

Tex. Penal Code § 36.02.

176

Isassi, 330 S.W.3d at 639 (quoting Model Penal Code §§ 240.0-240.7 explanatory note);

see also id. at 645 (Keller, P.J., dissenting) (making a similar observation).

177

See Model Penal Code § 240.2 cmt. 1, at 49; see also id. (further noting “the congruence

of rationale[s] between the two offenses” and that model code section 240.2(a)-(c) (the Penal Code

section 36.03(a)(1) counterpart) “proscribes use of threat against the same classes of persons with

the same illicit objective”).

178

See id. § 212.5 & cmt. 2, at 264-67.

54

But translating such concepts into specific statutes presents numerous line-drawing

challenges in regard to a wide range of communications made to, by, or between public servants

that can be fairly characterized as “threats,” yet are considered to be a commonplace and

accepted—if not also constitutionally protected—component of the day-to-day debate, bargaining,

and give-and-take that is characteristic of American governmental and political processes.179 In this

regard, section 36.03 (aside from subsection (c)), as it incorporates paragraph (F), is most notable

in the lines it does not attempt to draw, as revealed by our review of the statutory text:

179

As the Institute observed in regard to section 240.2 of the Model Penal Code:

The chief difficulty in drafting a statute of this sort lies in drawing the line between

permissible and impermissible threats. Many kinds of harm may be threatened or

inflicted without contravening accepted standards of behavior and without impairing

the integrity of government. A threat to withdraw political support, for example, is

not only a legitimate means of influencing political decisions but is in most instances

constitutionally protected. More commonly, use of threat may be either appropriate

or blameworthy depending on the motives of the actor and the sympathies of the

observer. Thus, for example, a public official’s threat to discharge a subordinate over

a difference in policy may be legitimate supervision or reprehensible interference

with the independence of another public servant. And a threat to arrest may be a

proper means to induce another to abide by the law or a method of improper

intimidation. These distinctions are too subtle for resolution by the blunt instrument

of a criminal prosecution. However one may characterize the facts of a particular

case, it would be intolerable to subject all such decisions to review under the penal

law.

Id. § 240.2 cmt. 2, at 50-51; see also id. § 240.1 cmt. 3, at 9-10 (expressing concern that blanket

prohibition in bribery statute against offers or acceptance of “benefits” could criminalize “logrolling”

or similar bargaining in legislative or political processes); id. § 212.5(1) cmt. 2, at 264-65 (regarding

stand-alone coercion offense, observing that “analysis and experience confirms the wisdom of

assigning definite limits to criminal liability for threats. Such constraints are an inevitable part of

a society where individuals are free to confer or to withhold benefits desired by others. Thus, absent

improper purpose, a person who has a legal right to take a certain action is also free to threaten to

do so. Indeed, threat is implicit in the idea of bargain. Threats to cut an expectant legatee out of a

will or to sell or use one’s land in a lawful manner deemed undesirable by neighbors, or to cease

patronizing a merchant, or to foreclose a mortgage are all permissible tactics in striking a bargain,

whether for money or for other concession not in itself unlawful.”).

55

• While the term “threat” that is incorporated into paragraph (F) and section 36.03(a)(1)

denotes (per Olivas) the declared intention to take or withhold action so as to “hurt,”

“punish,” “inflict injury” upon, amount to “danger” to, or “harm” another person, the

Legislature has not currently seen fit to require that such threatened detriments rise to the

level of crimes or otherwise be unlawful (i.e., amount to legal “injury” or “harm”). In fact,

as previously explained, the Legislature specifically removed any such limitation from

paragraph (F) in 1993 after having inserted it in 1989. The current versions of section

36.03(a)(1) and paragraph (F) thus stand in contrast to other provisions of the Texas Penal

Code that require proof of threats that foretell unlawful action (e.g., section 36.06’s

prohibition against obstruction and retaliation, which requires proof of an intentional or

knowing threat to harm another “by an unlawful act”180 ) as well as Model Penal Code §

240.2’s general rule.181

• Section 36.03(a)(1) and paragraph (F) do not require proof that the threat cause or be aimed

at causing any physical or emotional harm to the recipient of the threat, only that the threat

be aimed at “influencing” (i.e., bringing about) certain governmental actions by the

recipient.182 And, aside from its prohibition against threats aimed at inducing a knowing

180

Tex. Penal Code § 36.06(a).

181

Section 240.2 of the model code would criminalize, subject to a single exception, threats

of harm aimed at influencing a “decision, opinion, recommendation, vote, or other exercise of

discretion as a public servant” only when the threatened harm would be “unlawful,” Model Penal

Code § 240.2(a) (emphasis added), with “unlawful” having a meaning similar to the Texas Penal

Code’s definition of the term. See id. § 240.2 cmt. 2, at 52 (“The term ‘unlawful’ includes threats

of physical attack, threat of property damage forbidden by penal statute or by the law of torts, and

threat to discharge a public servant in violation of applicable civil service statutes or regulations.”).

The exception to this general rule would apply to a “decision, opinion, recommendation, vote or

other exercise of discretion in a judicial or administrative proceeding”—in that context only, any

threat of harm aimed at influencing the public servant’s actions, not just threats of unlawful

harm, would be prohibited. Id. § 240.2(b) (emphasis added). Additionally, the Institute proposed

to proscribe any threat of harm, not merely unlawful harm, that was aimed at influencing a public

servant to “violate his known legal duty,” as opposed to obtaining a decision or act that was within

the public servant’s lawful discretion to make. Id. § 240.2(c) (emphasis added).

Incidentally, the rationale for the model code’s general rule, the Institute explained, was

to “exclude from coverage accepted behavior, such as threat of political opposition, with respect to

the exercise of discretion by a public servant.” Id. § 240.2 cmt. 2, at 52.

182

Cf. Scott v. State, 322 S.W.3d 662, 668-70 (Tex. Crim. App. 2010) (upholding telephone-

harassment statute against First Amendment challenge; statute “is directed only at persons who, with

the specific intent to inflict emotional distress, repeatedly using the telephone to invade another

56

violation of a public servant’s legal duties, section 36.03(a)(1) does not require that the threat

seek conduct of the other public servant that would be unlawful if performed.

• Similarly, section 36.03(a)(1) and paragraph (F) prohibit even threats aimed at bringing about

official actions that the threatener could lawfully demand or require through other means.

This statutory feature differs from, e.g., the Model Penal Code’s stand-alone coercion

offense,183 coercion concepts known to civil law,184 and certain federal extortion prohibitions

that have been held to require, in cases where a threat foretells lawful rather than unlawful

harm, that the objective of the threat be “wrongful” in the sense of seeking property to which

the actor had no plausible claim of right.185

• Nor is there any requirement in section 36.03(a)(1) or paragraph (F) that the threat in

question lack a “nexus” or logical relationship to the desired conduct.186 Such a limitation

has been held to be an aspect of the “wrongfulness” requirement under certain federal

extortion prohibitions.187 The Model Penal Code’s stand-alone coercion offense incorporates

a similar limitation in the form of an affirmative defense that would apply, in regard to

threats by public servants to take or withhold action, where the actor “believed . . . the

proposed official action justified and that his purpose was limited to compelling the other to

behave in a way reasonably related to the circumstances which were the subject of the . . .

proposed official action, as by desisting from further misbehavior, making good a wrong

done, refraining from taking any action or responsibility for which the actor believes

person’s personal privacy, and do so in a manner reasonably likely to inflict emotional distress.”),

overruled on other grounds, Wilson v. State, 448 S.W.3d 418, 422-23 (Tex Crim. App. 2014).

183

Id. § 212.5(1) & cmt. 2, at 265 (defining stand-alone offense of “coercion” to require

proof of certain threats “with purpose unlawfully to restrict another’s freedom of action to his

detriment,” and explaining that “‘unlawfully’ means that the actor must intend to coerce conduct that

he has no legal right to require”).

184

See Frank Kent Motor Co., 361 S.W.3d at 632 (elements of economic duress or business

coercion include “a threat of an act that the actor had no legal right to do” that also causes another

party “to do what it otherwise would not have done and that it was not legally bound to do”).

185

See United States v. Jackson, 180 F.3d 55, 70-71 (2d Cir. 1999).

186

This concept is illustrated by the distinction between a threat that seeks recovery of a

valid debt (something the actor can lawfully demand or require payment of) by threatening to initiate

garnishment proceedings against the debtor or to publicly disclose the debt’s existence, which would

be deemed permissible, versus threatening to disseminate unrelated secrets regarding the debtor’s

sexual indiscretions, which would not be. See id. at 70-71.

187

See id.

57

the other disqualified.”188 No corresponding limitation is found in the Texas Penal Code,

however.

Absent such limitations, the net result is that section 36.03(a)(1), as it incorporates paragraph (F),

would criminalize:

• A threat by a public servant to take or withhold official action lawfully.

• A threat by a public servant to take or withhold official action lawfully that seeks only to

bring about lawful conduct by another public servant.

• A threat by a public servant to take or withhold official action lawfully that seeks only to

bring about lawful conduct by another public servant that the first public servant has the

lawful right to demand or require.

• A threat by a public servant to take or withhold official action lawfully that seeks only to

bring about lawful conduct by another public servant that the first public servant has the

lawful right to demand or require, even where the threat has a logical nexus to the conduct

being sought of the other public servant.

These sorts of implications are the focus of Perry’s facial constitutional challenges.

In these ways, he urges, section 36.03(a)(1), as it incorporates paragraph (F), criminalizes a “virtually

endless” array of threats that are in the nature of “ordinary give and take” between and among

the public servants who are not excepted by subsection (c). He posits hypothetical examples that

include:

• “[A] manager could not threaten to fire or demote a government employee for poor

performance.”

• “A judge could not threaten to sanction an attorney for the State, to declare a mistrial if jurors

did not avoid misconduct, or to deny warrants that failed to contain certain information.”

188

Model Penal Code § 212.5(1).

58

• “An inspector general could not threaten to investigate an agency’s financial dealings.”

• “A prosecutor could not threaten to bring charges against another public servant.”

• “A [public] university administrator could not threaten to withdraw funding from a

professor’s research program.”

• “A public defender could not threaten to file a motion for suppression of evidence to secure

a better plea bargain for his client.”

At least to the extent each hypothetical threat would be aimed at bringing about some specific

action on the part of another public servant, we agree that Perry’s illustrations would indeed come

within section 36.03(a)(1)’s proscription, as written. Each example would, in terms of the statutory

language, represent a “public servant” (under the Penal Code’s broad definition) seeking “by means

of coercion” (defined, again, as a “threat” to “take or withhold action as a public servant” that, while

“harmful” or detrimental to another, need not be unlawful) to “influence[] or attempt[] to influence”

(i.e., bring about) some “specific exercise” or “specific performance” of another public servant’s

duties or powers (which also need not be unlawful, nor beyond the first public servant’s powers to

demand or require).

And it is not difficult to think of other similar examples. Among them, it has

occurred to the members of this panel that unless appellate court justices can shoehorn themselves

into subsection (c)’s exception, section 36.03(a)(1) would seemingly put at risk that time-honored

practice whereby one justice will seek changes to another justice’s draft majority opinion

by threatening to write a dissent exposing flaws in the other’s legal reasoning.189 Similar concerns

189

See also Robertson, 649 P.2d at 580 (citing the example of one appellate judge telling

another, “Change your opinion, or I shall dissent and expose your complete ignorance of this area

of the law.” (quoting State v. Paige, 638 P.2d 1173, 1176 (Or. App. 1982) (Gillette, J., dissenting))).

59

would arise regarding the standard letter our Clerk issues to prompt action whenever briefs or

records are late, in which he warns of imminent dismissal if the deficiency is not promptly rectified,

at least when the party in interest is a government entity or official.

One’s view of section 36.03(a)(1) is further informed by considering its implications

as it incorporates a portion of paragraph (F) that Perry has not challenged in this case—a threat “to

cause a public servant to take or withhold action.”190 Within the literal scope of this prohibition

would be ordinary citizens who make credible threats to obtain legislative or judicial remedies as a

means of prompting some action by a local government official,191 not to mention members of the

media who might have to resort to similar means of persuasion in order to overcome governmental

foot-dragging on Public Information Act requests. We mention this not to plant ideas in the minds

of local prosecutors across Texas who may be inclined to protect their fellow public servants, but

to provide stark demonstration that section 36.03(a)(1) and the “coercion” definition it incorporates

were not crafted with the sort of precision necessary to avoid First Amendment problems when, as

with these statutes, government purports to criminalize speech.

In rejecting Perry’s overbreadth challenge, the district court evidently perceived

that section 36.03(a)(1) and paragraph (F) are much more limited in scope than we have

concluded they are. And it is this vast breadth that causes section 36.03(a)(1), as it incorporates

190

See Tex. Penal Code § 1.07(a)(9)(F) (defining “coercion” as a “threat . . . to take or

withhold action as a public servant, or to cause a public servant to take or withhold action”)

(emphasis added).

191

Subsection (c)’s exemption would be unavailing—that protection, again, benefits only

public servants, and only those who are members of governing bodies of governmental entities.

60

paragraph (F), to impinge upon substantial amounts of First Amendment-protected speech among

Texas’s public servants.

Section 36.03(a)(1), as it incorporates paragraph (F), criminalizes First Amendment-protected

speech

There is little room for disagreement that section 36.03(a)(1) and paragraph (F)

criminalize speech—that much is apparent in the phrase “a threat, however communicated . . . ” that

is a defining characteristic of all types of “coercion” prohibited by section 36.03(a)(1).192 But it is

a somewhat closer question whether this speech is a type that the First Amendment actually protects.

In contending that the proscription reaches protected speech (and a substantial amount

at that), Perry emphasizes the First Amendment’s central concern with protecting and fostering

discussion and advocacy concerning public issues and political change193 and what the Supreme

Court has termed the provision’s embodiment of a “profound national commitment” to the ideal

that “debate on public issues should be uninhibited, robust, and wide-open.”194 This is not simply

liberty to engage in “abstract discussion” or “merely to describe facts,” as the Supreme Court

has emphasized, but the liberty “to persuade to action,” as “[t]he First Amendment is a charter for

192

See, e.g., Watts, 394 U.S. 707 (stating that federal law prohibiting the willful or knowing

making of written or oral threats “to take the life of or inflict bodily harm upon the President” or

other officials “makes criminal a form of pure speech”).

193

See, e.g., Boos, 485 U.S. at 318; Meyer v. Grant, 486 U.S. 414, 421-22 (1988).

194

Boos, 485 U.S. at 318 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)); see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985)

(“‘[S]peech concerning public affairs is more than self-expression; it is the essence of

self-government.’” (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964))).

61

government, not for an institution of learning.”195 The court has also said that the First Amendment’s

protections are at their “zenith” for such “core political speech,”196 and Perry insists that this is

precisely the sort of speech section 36.03(a)(1) and paragraph (F) reach—speech by public servants

regarding their official actions that is aimed at prompting other public servants to undertake

official action.

Perry similarly emphasizes the Supreme Court’s longstanding recognition that

discussion, debate, and advocacy regarding public issues “is often vituperative, abusive, and

inexact,” yet is protected by the First Amendment nonetheless.197 In Hanson, the then-Chief Justice

of the Tenth Court of Appeals, the late Bob Thomas, made a similar observation regarding speech

to and in Texas government at its local levels:

A preeminent purpose of the First Amendment is to guarantee free and unfettered

political discussions within government and among the citizenry. Consequently,

those who enter the political arena are fair game for sharp attacks inflicted by both

the electorate and the elected. The hurly-burly world of courthouse politics is an

arena where robust debate, often accompanied by blunt, caustic and even intemperate

and vituperative language, is the by-product of public officials clashing over divisive

issues. However, as long as the means are peaceful and their actions lawful, the

boundaries of their political debates cannot be measured for constitutional protections

by conventional standards of acceptability. Freedom of speech must encompass the

liberty of elected officials to discuss matters of public concern without prior restraint

or fear of punishment.198

195

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (quoting Thomas v.

Collins, 323 U.S. 516, 537 (1945)).

196

Meyer, 486 U.S. at 421-22, 425.

197

Claiborne Hardware Co., 458 U.S. at 911 (quoting Watts, 394 U.S. at 708).

198

Hanson, 793 S.W.2d at 272-73 (citing Keefe, 402 U.S. at 419; Greenbelt Coop. Publ’g

Ass’n v. Bresler, 398 U.S. 6, 10-12 (1970); Garrison, 379 U.S. at 74-75; Thornhill v. Alabama,

310 U.S. 88, 101-02 (1940)).

62

The State counters that section 36.03(a)(1) and paragraph (F) do not implicate

any First Amendment interests due to the identity of the speakers who are targeted—public

servants—and the content and effect of the speech that is prohibited—what the State characterizes

as “coercive” or “extortionate” threats.

Contrary to the State’s arguments, public servants have First Amendment rights

The State insists that “[s]tatements made by public officials to other public officials

are unprotected” under the First Amendment, at least when uttered as part of an official’s job. The

State derives this proposition from its understanding of the United States Supreme Court’s

holdings in Garcetti v. Ceballos.199 Garcetti involved a section 1983 claim brought by a deputy

district attorney (Ceballos) against his governmental employer to obtain relief based on alleged

violations of Ceballos’s First Amendment rights.200 The asserted violations consisted of a job

reassignment, transfer, and promotion denial that Ceballos perceived to be in retaliation for a

memorandum that he had written—undisputedly as part of his job duties201—concerning a pending

case.202 The Supreme Court framed the dispositive issue as “whether the First Amendment protects

a government employee from discipline based on speech made pursuant to the employee’s official

duties.”203 After analysis, the court concluded that “when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First Amendment

199

547 U.S. 410 (2006).

200

See id. at 414-15.

201

See id. at 421.

202

See id. at 413-15.

203

Id. at 413.

63

purposes, and the Constitution does not insulate their communication from employer discipline.”204

And because “the First Amendment does not prohibit managerial discipline based on an employee’s

expressions made pursuant to official responsibilities,” the court held that Ceballos’s claim of

unconstitutional retaliation “must fail.”205

The State reads Garcetti to mean that statements made by public employees while

performing their official duties enjoy no First Amendment protection not only as against employer

discipline—the issue in Garcetti206—but for all other purposes, even as against criminal penalties

that might be imposed based on that official speech. In that regard, the State places great emphasis

on the Garcetti court’s phrasing of its holding in terms of public employees “not speaking as citizens

for First Amendment purposes” when making statements pursuant to their official duties, while

diminishing the significance of the clause that immediately follows, “. . . and the Constitution does

not insulate their communications from employer discipline.”207 Perry disputes that Garcetti has any

204

Id. at 421.

205

Id. at 424.

206

As the Garcetti court repeatedly made clear. E.g., id. at 413 (“The question presented by

the instant case is whether the First Amendment protects a government employee from discipline

based on speech made pursuant to the employee’s official duties.”), 421 (“We hold that when public

employees make statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.”), 421-22 (“Restricting speech that owes its existence to a public

employee’s professional responsibilities does not infringe on any liberties the employee might

have enjoyed as a private citizen . . . [but] simply reflects the exercise of employer control over

what the employer itself has commissioned or created.”), 424 (“[T]he First Amendment does not

prohibit managerial discipline based on an employee’s expressions made pursuant to official

responsibilities.”), 426 (“We reject . . . the notion that the First Amendment shields from discipline

the expression employees make pursuant to their professional duties.”) (emphases added).

207

Id. at 421 (emphasis added).

64

bearing in the present context of a criminal prosecution based on speech, as opposed to a claim or

issue involving employee discipline. We agree.

While Garcetti has admittedly generated occasional confusion of this sort among

lower courts,208 a close reading of that opinion, especially as informed by antecedent precedents

on which the Supreme Court relied in that case, belies the State’s expansive reading of it. Garcetti

208

Although the State does not cite any case that has construed or applied Garcetti in

the manner it proposes—let alone any precedents from the Supreme Court—a Texas federal

district court once did so in the first round of the renowned First Amendment challenges to the

Texas Open Meetings Act. Rangra v. Brown, No. P-05-CV-075, 2006 U.S. Dist. LEXIS 85833,

at *1-4, 14-17 (W.D. Tex. Nov. 7, 2006). The district court extended Garcetti to claims asserted by

elected city council members and reasoned that “[b]ecause the speech at issue [deliberations

concerning official business or policy] is uttered entirely in the speaker’s capacity as a member of

a collective decision-making body, and thus is the kind of communication in which he or she is

required to engage as part of his or her official duties, it is not protected by the First Amendment

from the restriction imposed by the Texas Open Meetings Act.” Id. at *14 (citing Garcetti, 547 U.S.

at 420-22). The district court also refused to ascribe any significance to the plaintiffs’ status as

elected officials, in contrast to the unelected public employee whose claims were at issue in Garcetti,

reasoning that “[f]or purposes of determining what is protected speech under the First Amendment,

there is no meaningful distinction among public employees, appointed public officials, and elected

public officials.” Id. A panel of the Fifth Circuit Court of Appeals subsequently reversed, squarely

rejecting the district court’s application of Garcetti to the elected officials. Rangra v. Brown,

566 F.2d 515, 522-26 (5th Cir. 2009). Yet this panel decision—and the underlying case—was later

vacated as moot by the full Fifth Circuit. Rangra v. Brown, 584 F.3d 206, 207 (5th Cir. 2009)

(en banc). In the meantime, however, a different Fifth Circuit panel, addressing a state district

judge’s First Amendment challenge to judicial conduct sanctions, had similarly rejected Garcetti’s

application to limit the First Amendment rights of elected officials. Jenevein v. Willing, 493 F.3d

551, 557-58 (5th Cir. 2007). In the subsequent round of First Amendment challenges to the

Texas Open Meetings Act, the district court, while ultimately upholding the Act, did not revisit

Garcetti’s implications beyond observing that the plaintiff elected officials “certainly [did] not lose

their right to political expression once they attain public office” and enjoyed First Amendment

protections for their official deliberations. Asgeirsson v. Abbott, 773 F. Supp. 2d 684, 694 (W.D.

Tex. 2011), aff’d, 696 F.3d 454 (5th Cir. 2012), cert. denied, 133 S. Ct. 1634 (2013) (citing Bond

v. Floyd, 385 U.S. 116, 135 (1966)). The Fifth Circuit’s analysis similarly presumed that the

officials enjoyed First Amendment protections in regard to their deliberations, focusing instead on

whether the statutory restrictions were justified. See generally 696 F.3d at 458-67.

65

is rooted firmly in a series of cases (sometimes termed the Pickering209-Connick210-Garcetti line

of cases) that derives from a long-recognized principle that “a State cannot condition public

employment on a basis that infringes the employee’s constitutionally protected interest in freedom

of expression.”211 Pickering and its progeny represent a particularized application of that principle

to the termination, discipline, or other adverse actions imposed by governmental employers

against their employees based on the employees’ expression.212 Accordingly, these cases have

consistently emphasized the unique nature of government’s relationship to its citizens in that

context—government is acting in the role and capacity of employer, as opposed to its usual or

general role “as sovereign”213 —and have, correspondingly, consistently involved government’s

regulation or punishment of speech within the context of that employment relationship, such as

through termination or other adverse personnel actions, as opposed to the imposition of criminal

209

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

210

Connick v. Myers, 461 U.S. 138 (1983).

211

Garcetti, 547 U.S. at 413 (quoting this statement of the principle—as the first sentence

of the opinion—from Connick, 461 U.S. at 142); see also Connick, 461 U.S. at 143-45 (explaining

that the first case in the line, Pickering, was rooted in same rationale as 1950s-era cases invalidating

loyalty oaths and political disclosure requirements made a condition of government employment).

212

See Connick, 461 U.S. at 144-45; see also Garcetti, 547 U.S. at 419 (recognizing that

“[t]he First Amendment limits the ability of a public employer to leverage the employment

relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities

as private citizens” (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972))).

213

See Garcetti, 547 U.S. at 418-19 (contrasting relative powers of “government as

employer” vis-a-vis “government as sovereign” (quoting Waters v. Churchill, 511 U.S. 661, 671

(1994) (plurality op.))).

66

penalties or other remedies that government administers in its sovereign capacity.214 In fact,

Pickering contrasted the governmental personnel action at issue there (a school board’s dismissal

of a teacher in response to a letter to the editor that had been critical of the board) with “criminal

sanctions and damage awards.”215

A central premise of the Pickering-Connick-Garcetti line is that when government

acts “as employer,” it “has far broader powers than does the government as sovereign” to regulate

speech.216 The Supreme Court deems this distinction justified because “[g]overnmental employers,

like private employers, need a significant degree of control over their employees’ words and

actions; [as] without it, there would be little chance for the efficient provision of public services.”217

Similarly, the court has voiced a reluctance to “‘constitutionalize the employee grievance.’”218 But

while a citizen entering government service must thereby “accept certain limitations on his or her

freedom,”219 the Supreme Court has also emphasized that “a citizen who works for the government

is nonetheless a citizen”220 and “do[es] not surrender all [his] First Amendment rights by reason of

214

See, e.g., Lane v. Franks, 573 U.S. ___, ___, 134 S. Ct. 2369, 2375 (2014) (alleged

retaliatory discharge); Garcetti, 547 U.S. at 415 (alleged retaliatory transfer and failure to promote);

Connick, 461 U.S. at 141 (termination); Pickering, 391 U.S. at 574 (termination).

215

Pickering, 391 U.S. at 574.

216

Garcetti, 547 U.S. at 418 (quoting Waters, 511 U.S. at 671).

217

Id.; see also id. at 419 (elaborating that government employees could otherwise “express

views that contravene governmental policies or impair the proper performance of governmental

functions”).

218

Id. at 420 (quoting Connick, 461 U.S. at 154).

219

Id. at 418.

220

Id. at 419.

67

[his] employment.”221 The point of the Pickering-Connick-Garcetti line has been to delineate the

parameters of the First Amendment rights that public employees retain against expression-based

personnel actions, and the basic rule is this: a public employee may “speak as a citizen addressing

matters of public concern,” subject to the governmental employer’s power to impose restrictions

when there is “adequate justification for treating the employee differently from any other member

of the general public.”222 Pickering, Connick, and Garcetti each illustrates different points along that

continuum—Pickering is an example of a public employee’s speech “as a citizen” (a teacher writing

a letter to the editor outside of his job duties) addressing matters of “public concern” (school fiscal

matters) and where no adequate justification was shown for employee discipline on that basis,223

while Connick and Garcetti are on the opposite side of that line, with the former concerning

discharge based on a public employee’s speech deemed not to be of “public concern” (various

internal office grievances)224 and the latter involving personnel actions allegedly based on a public

employee’s speech deemed not to have been uttered “as a citizen” (a memo written as part of his job

duties).225 None of these cases addresses or would logically extend to the situation presented by the

present case—the potential imposition of criminal penalties, as opposed to employee discipline, by

the State of Texas acting in its capacity as sovereign rather than as an employer. If the Pickering-

221

Id. at 417.

222

Id. at 417, 418 (citing Pickering, 391 U.S. at 568); see also id. at 418 (observing that such

“restrictions . . . must be directed at speech that has some potential to affect the entity’s

operations.”).

223

See Pickering, 391 U.S. at 568-75.

224

See Connick, 461 U.S. at 144-48.

225

See Garcetti, 547 U.S. at 421.

68

Connick-Garcetti line has any bearing here, it would only be to emphasize a baseline rule that public

employees possess First Amendment rights just like other citizens do.226

In addition to its misplaced reliance on Garcetti, the State insists more broadly that

public servants have no First Amendment protection against criminal punishment for their official

speech because, in essence, it is not actually their speech, but that of their governmental employers.

The State attempts to tie this notion to the Supreme Court’s “governmental speech” jurisprudence,

which is to the effect that the First Amendment generally permits the government to communicate

its own viewpoints through, e.g., the types of specialty license plates the government decides to

issue, the monuments it allows to be placed in public parks, or its promotion of beef consumption,

without having a duty to subsidize or promote other viewpoints.227 In that sense and context, the

Supreme Court has said that “[t]he Government’s own speech . . . is exempt from First Amendment

scrutiny.”228 Seizing on this language, the State reasons that section 36.03(a)(1) implicates no First

Amendment interests of public servants, at least with regard to speech made in their official

capacities, because it represents Texas’s regulation of its “own speech and actions” to advance a

governmental “viewpoint” that “official speech should not be coerced speech.” And because this

226

E.g., id. at 417 (“The Court has made clear that public employees do not surrender all

their First Amendment rights by reason of their employment.”) (emphasis added).

Even if Garcetti might otherwise have application in the present context, Perry points out

the Fifth Circuit’s holding in Jenevein that Garcetti does not govern analysis of elected officials’

First Amendment rights. 493 F.3d at 57-58. Because we agree with Perry’s primary contention that

Garcetti has no application whatsoever here, we need not reach this narrower contention.

227

See Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, ___,

135 S. Ct. 2239, 192 L. Ed. 2d 274, 282 (June 18, 2015); Pleasant Grove City v. Summum, 555 U.S.

460, 467 (2009); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559 (2005).

228

Johanns, 544 U.S. at 553.

69

State-desired end product of non-coerced official speech is “governmental” speech, the State adds,

the Legislature may likewise burden any private speech that might compete with that “viewpoint.”

As an initial observation, if, as the State argues, public servants’ official speech

equals “governmental speech” in the sense of that doctrine, that theory would seem to suggest

that the State itself would be criminally responsible for any violations of section 36.03(a)(1) through

that official speech.229 And if, as the State suggests, speech inimical to the government’s official

“viewpoint” can be criminalized for that reason alone, there would seem

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