# Ex Parte James Richard "Rick" Perry > Texas Court of Appeals, 3rd District (Austin) · March 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4062366 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** March 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4062366 ## Opinion text ACCEPTED 03-15-00063-CR 4682610 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/27/2015 10:57:05 PM JEFFREY D. KYLE CLERK No. 13-15-00063-CR 0 FILED IN 3rd COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS 3/27/2015 10:57:05 PM for the Third District of Texas at Austin JEFFREY D. KYLE Clerk ____________________________________ EX PARTE JAMES RICHARD “RICK” PERRY ____________________________________ APPEAL FROM THE DENIAL OF APPLICATION FOR WRIT OF HABEAS CORPUS STATE OF TEXAS V. JAMES RICHARD “RICK” PERRY D-1-DC-14-100139 IN THE DISTRICT COURT FOR THE 390TH JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS ___________________________________ APPELLEE’S BRIEF ____________________________________ ORAL ARGUMENT REQUESTED MICHAEL MCCRUM DAVID GONZALEZ TEXAS BAR NO. 13493200 TEXAS BAR NO. 24012711 DISTRICT ATTORNEY PRO TEM ASST. DISTRICT ATTORNEY PRO TEM TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS 700 N. St. Mary’s St., Ste. 1900 206 East 9th Street, Ste. 1511 San Antonio, Texas 78205 Austin, Texas 78701 Tel: (210) 225-2285 Tel.: (512) 381-9955 Fax: (210) 225-7045 Fax: (512) 485-3121 ATTORNEYS FOR THE STATE OF TEXAS TABLE OF CONTENTS Statement Regarding Oral Argument .................................................................... xvi Index of Authorities ................................................................................................. iv Statement of Facts ......................................................................................................1 Summary of the Argument.........................................................................................2 Argument....................................................................................................................3 I. The First Amendment Does Not Protect All Forms of Speech. ..........................6 A. Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression. ................................................6 B. The Constitution allows the Legislature to put some limits on speech when regulating a public servant’s speech. ....................................8 C. The Constitution allows the Legislature to regulate a public servant’s speech, even though it would necessarily put some limits on private speech. ...........................................................................10 1. The face of the statute at issue is not overbroad. ............................13 2. The statute is not subject to strict scrutiny because it does not distinguish between favored and disfavored speech. .....................19 3. Even if heightened scrutiny were applied, “Coercion of a Public Servant” statute withstands that scrutiny. .................................21 II. The coercion statute provides adequate notice consistent with due process. ......................................................................................................23 A. The context of the statutory meaning of the word “coercion” provides fair warning. ..............................................................................24 B. The Legislature intended to cover threats of lawful action......................26 i III. District Court Properly Held As-Applied Challenges Not Cognizable in Pretrial Habeas Proceeding......................................................31 A. Appellant’s Improper Reliance on Speculation. ......................................31 B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review. ....................................................................................................32 1. The Claims Are Not Ripe For Review. ............................................34 2. There must first be facts in evidence before this Court can decide Appellant’s “as applied” challenges. .......................................35 C. All of Appellant’s Remaining Claims Are “As Applied” Challenges. ...............................................................................................37 IV. Separation of Powers Doctrine Allows Judicial Branch to Check Coercive Use of Executive Power. ......................................................43 V. A Governor is Not Immune from Criminal Prosecution. ................................48 A. Texas state Speech or Debate Privilege Narrower than federal Speech or Debate Privilege. .................................................50 B. The Speech or Debate Privilege applies to Members of the Legislature, not a Governor. .....................................................................53 1. No governor ever has been afforded Speech or Debate privilege or legislative immunity from criminal prosecution...............53 2. The privilege does not extend to all legislative-related topics of conversation. .........................................................................................55 C. The common law doctrine of legislative immunity does not make a Texas governor above the law. .............................................................56 Prayer .......................................................................................................................61 Certificate of Compliance ........................................................................................62 Certificate of Service ...............................................................................................63 ii Appendix ............................................................................................................... A-1 Exhibit A: 1973 version of §§ 36.01, 36.03.......................................................... A-1 Exhibit B: 1989 revision of §§ 36.01, 36.03 ......................................................... A-5 Exhibit C: 1993 revision of §§ 36.01, 36.03 - Naishtat Amendment ................. A-37 Exhibit D: 1993 revision of §§ 36.01, 36.03 ...................................................... A-39 Exhibit E: Speech or Debate Privilege Chart...................................................... A-48 iii INDEX OF AUTHORITIES Texas Cases Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980) .....................................................13 Armadillo Bail Bonds v. State, 802 S.W.2d 237 (Tex. Crim. App. 1990) .............................................................44 Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) .................................... 7, 25, 26, 35 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) .............................................................24 Briggs v. State, 740 S.W.2d 803 (Tex. Crim. App. 1987) .............................................................23 Bynum v. State, 767 S.W.2d 769 (Tex. Crim. App. 1989) .............................................................24 Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002) ...............................................................42 Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........... 14, 24 Ex parte Boetscher, 812 S.W.2d 600 (Tex. Crim. App. 1991) .............................................................33 Ex parte Cross, 69 S.W.3d 810 (Tex. App.—El Paso 2002, pet. ref’d).........................................35 Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007) .............................................................41 iv Ex parte Delbert, 582 S.W.2d 145 (Tex. Crim. App. 1979) .............................................................36 Ex parte Doster, 303 S.W.3d 720 (Tex. Crim. App. 2010) .............................................................37 Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010) ....................................................... passim Ex parte Firmin, 60 Tex.Crim. 368 (Tex. Crim. App. 1910) ...........................................................38 Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) .............................................................24 Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978) .............................................................36 Ex parte Hopkins, 610 S.W.2d 479 (Tex. Crim. App. 1980) .............................................................36 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ...............................................................20 Ex parte Mattox, 683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..........................................41 Ex parte Powell, 558 S.W.2d 480 (Tex. Crim. App. 1977) .............................................................36 Ex parte Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) ..................................38 v Ex parte Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006) .............................................................35 Ex parte Tamez, 4 S.W.3d 366 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ............................35 Ex Parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013), aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014) ....................................................13 Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004) ...............................................................41 Ex parte Weise, 55 S.W. 3d 617 (Tex. Crim. App. 2001) ........................................... 32, 33, 35, 41 FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)...................................................................................15 Gant v. State, 814 S.W.2d 444 (Tex. App.—Austin 1991, no pet.) ............................................18 Gillenwaters v. State, 205 S.W.3d 534 (Tex. Crim. App. 2006) .............................................................15 Karenev v. State, 281 S.W.3d 429 (Tex. Crim. App. 2009) .............................................................37 Langever v. Miller, 76 S.W.2d 1025 (Tex. 1934) ................................................................................44 Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) ..............................................................42 vi Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) ................................................................................35 Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) ................................ 50, 51, 52, 53, A-49 Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006) ...................................................... 17, 18 Parent v. State, 621 S.W.2d 796 (Tex. Crim. App. 1981) .............................................................39 Puckett v. State, 801 S.W.2d 188 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d), cert. denied, 502 U.S. 990 (1991) ...........................................................................6 Roberts v. State, 278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d)............ 17, 18, 19, 24 Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) .................................................................24 Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) ..................................................... passim Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992) (op. on reh’g) ............................... 15, 39 State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) ................................................ 15, 32, 36 State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) ...................................... 24, 25 vii State v. Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013) .....................................................15 Federal Cases Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564 (2002) ..............................................................................................13 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ................................................................................................9 Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000) ................................................................................................9 Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..............................................................................................13 Brown v. Walker, 161 U.S. 591 (1896) ..............................................................................................12 Cano v. Davis, 193 F.Supp.2d 1177 (C.D.Calif. 2002) ........................................................... A-51 City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004) ..................................................................................................9 Clinton v. Jones, 520 U.S. 681 (1997) ....................................................................................... 47, 48 Coates v. City of Cincinnati, 402 U.S. 611 (1971) ..............................................................................................23 Coleman v. Miller, 307 U.S. 433 (1939) ..............................................................................................46 viii Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) ..............................................................................................23 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) ..................................................................................................9 Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519 (7th Cir. 2011) ................................................................................54 Ex parte Virginia, 100 U.S. 339 (1879) ..............................................................................................46 Ferguson v. Estelle, 718 F.2d 730 (5th Cir. 1983) ................................................................................23 Ford v. Tenn. Senate, 2007 WL 5659414 (W.D.Tenn. 2007)............................................................. A-51 Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................................................9 Goldwater v. Carter, 444 U.S. 996 (1979) ..............................................................................................46 Gravel v. United States, 408 U.S. 606 (1972) ............................................................................. 55, 58, A-49 Grayned v. City of Rockford, 408 U.S. 104 (1972) ..............................................................................................23 Hutchinson v. Proxmire, 443 U.S. 111 (1979) ................................................................................... 59, A-49 Imbler v. Pachtman, 424 U.S. 409 (1976) ..............................................................................................59 ix In re Grand Jury (Cianfrani), 563 F.2d 577 (3d Cir. 1977) A-51 In re Grand Jury (Colafela), 821 F.2d 946 (3d Cir. 1987, reh'g en banc) .................................................... A-50 In re Grand Jury (Eilberg), 587 F.2d 589 (3d Cir. 1978) ............................................................................ A-50 Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) ..........................................................................................9, 10 Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011) ..................................................................................9 Kilbourn v. Thompson, 103 U.S. 168 (1880) ........................................................................................ A-49 Meyer v. Grant, 486 U.S. 414 (1988) ..............................................................................................20 Miller v. Alabama, 132 S.Ct. 2455 (2012) ...........................................................................................38 Miller v. California, 413 U.S. 15 (1973) ..................................................................................................6 Miranda v. Arizona, 384 U.S. 436, 458–60 (1966)................................................................................12 Nixon v. United States, 506 U.S. 224 (1993) ..............................................................................................45 x O’Shea v. Littleton, 414 U.S. 488 (1974) ..............................................................................................59 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ................................................................................................9 Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ..........................................................................................8, 11 Police Dep’t v. Mosley, 408 U.S. 92 (1972) ............................................................................................9, 10 Pulliam v. Allen, 466 U.S. 522 (1984) ..............................................................................................57 Roper v. Simmons, 543 U.S. 551 (2005) ..............................................................................................38 Roth v. United States, 354 U.S. 476 (1957) ..............................................................................................21 Rust v. Sullivan, 500 U.S. 173 (1991) ..............................................................................................11 Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980) ..............................................................................................57 Tenney v. Brandhove, 341 U.S. 367 .................................................................................................... A-49 Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014) ..............................................................................................8 xi United States v. Bass, 404 U.S. 336 (1971) ..............................................................................................42 United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988) ............................................................................. A-50 United States v. Brewster, 408 U.S. 501 (1972) ............................................................................. 49, 51, A-49 United States v. Brown, 381 U.S. 437 (1965) ..............................................................................................45 United States v. Craig, 573 F.2d 455 (7th Cir. 1977, reh'g en banc den.) ........................................... A-51 United States v. DiCarlo, 565 F.2d 802 (1st Cir. 1977) ........................................................................... A-50 United States v. Eilberg, 507 F.Supp. 267 (E.D.Penn. 1980) ................................................................. A-51 United States v. Gillock, 445 U.S. 360 (1980) ....................................................................... 55, 57, 59, A-49 United States v. Helstoski, 442 U.S. 477 (1979) ................................................................................... 56, A-49 United States v. Hutson, 843 F.2d 1232 (9th Cir. 1988) ................................................................................7 United States v. Johnson, 383 U.S. 169 (1966) ................................................................................... 51, A-49 United States v. Kozminski, 487 U.S. 931 (1988) ..............................................................................................22 xii United States v. Mandel, 415 F.Supp. 1025 (D.Md. 1976) (May 4, 1976 supplemented opinion) ...................................................... 46, 53, 56 United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976) ...................................................................... 53, 54 United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972) ......................7 United States v.Nelson, 486 F.Supp. 464 (W.D.Mich. 1980) ............................................................... A-51 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) ..............................................................................................20 United States v. Quinn, 514 F.2d 1250 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976) ........................7 United States v. Renzi, 2014 WL 5032356 (9th Cir 2014) .................................................................. A-50 United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992) ...........................................................................57 United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985) ..............................................................................13 United States Football League v. National Football League, 1986 WL 6341 (S.D.N.Y. 1986) (not reported) ............................................. A-51 Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) ..................................................................................9 xiii Village of Hoffman Estates, 455 U.S. 489 (1982) ..............................................................................................24 Virginia v. Black, 538 U.S. 343 (2003) ..............................................................................................20 Wainwright v. Sykes, 433 U.S. 72 (1977) ................................................................................................36 Watts v. U.S., 394 U.S. 705 (1969) ................................................................................................6 State Cases --Other Jurisdictions Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004) ....................................................................................46 Constitutional Provisions TEX. CONST. art. II, § 1 .............................................................................................60 TEX. CONST. art. IV, § 12 .........................................................................................45 TEX. CONST. art. XVI, § 41 ......................................................................................52 U.S. CONST. amend. I .................................................................................................9 U.S. CONST. amend. V .............................................................................................12 Statutes TEX. GOV’T CODE ANN. § 311.011 ..........................................................................24 TEX. PENAL CODE ANN. § 1.07(a)(9) .............................................................. passim TEX. PENAL CODE ANN. § 36.03 ..................................................................... passim TEX. PENAL CODE ANN. § 38.12(b) .........................................................................22 TEX. PENAL CODE ANN. § 6.03.................................................................................26 xiv Other Authorities Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C.L. REV. 695, 695 (2011) .......................................................................9, 10 Maury Maverick Jr., “Leave First Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997).......10 xv STATEMENT REGARDING ORAL ARGUMENT Typically, prosecutions for extortionate acts are against persons without power trying to influence or threaten a person with power. By contrast, this case presents the application of a criminal statute for extortionate and abusive acts committed by a public official with power. This case necessarily requires discussion and thought of nuanced questions about what restraint, if any, should be placed on the exercise of power by our government, particularly where such exercise of power enters the domain of definitions of criminal conduct. This case also addresses the extent our State can restrict what public officials say to avoid the public official unlawfully using the imprimatur of government speech to escape prosecution for criminal acts. Questions about threats, extortion, and other forms of harm may be addressed in oral argument to discuss the parameters of remedy when a public official unlawfully abuses the power of his office for benefit other than pecuniary gain. All citizens of Texas have a common interest in the outcome of this matter and in the answers to such complex questions. There is a compelling interest for oral argument to allow a discussion about a law that is broad enough to capture implied or disguised, yet very real, threats without being so specific that it limits its application. Oral argument will likely involve a discussion of the limits—and abuses—of power in our representative democracy and how it can be regulated. xvi This case cuts to the heart of what citizens believe about government and politics and power. Oral argument is appropriate to address the complexity of these important issues. xvii STATEMENT OF FACTS This case is about a public servant’s commission of two crimes in violation of two Texas statutes: “Coercion of a Public Servant,” based on an illegal quid pro quo threat made by then-Governor Perry against an elected public servant of a distinct jurisdiction, and “Abuse of Official Capacity,” based on Mr. Perry’s corresponding abuse of the power granted to his office in retaliation against that public servant for refusing to accede to his threat. Appellant filed motions to quash the indictment, yet also filed applications for writ of habeas corpus on the same grounds so that pretrial appeals could be filed. Other than the allegations in the indictment, however, there is no evidence or presentation of facts yet in the record. Then-District Judge Bert Richardson (now Texas Court of Criminal Appeals Judge Richardson) said it best in ruling upon Appellant’s pleadings: The unique circumstances involved in this case have been widely reported, argued, and discussed by many with no standing in the case, including the amicus briefs and many other self-appointed ‘experts.’ The alleged and speculated upon facts are not properly before this court at this time, and the court has no authority at this stage to examine the evidence that was presented to the Grand Jury. 1 The district court’s rejection of Appellant’s constitutional challenges to each of the criminal statutes were without evidentiary hearing. Contrary to Appellant’s critique of Judge Richardson for purportedly failing to “fully grapple” with Appellant’s 1 C.R. 468, n. 3. 1 challenges, the district court’s lengthy and well-thought-out order rejecting Appellant’s assertions demonstrate a correct application of legal precedent.2 SUMMARY OF THE ARGUMENT In carrying out their assigned responsibility, our elected representatives passed and entered as law Texas Penal Code Sections 36.03 (Coercion of a Public Servant) and 39.02 (Abuse of Official Capacity). These are not statutes designed to guard against blatant bribes or unmistakable forms of corruption. Rather, these statutes are designed to protect the democratic process from more dangerous, sometimes less obvious, forms of corruption. They are designed to protect against the abuse of government power. The face of the “Coercion of a Public Servant” statute does not violate our constitutional Free Speech clause for three reasons: it regulates a category of unprotected speech; the State has a compelling need to criminalize extortion committed under color of public office; and, the statute does not prohibit a substantial amount of protected speech. In addition, the statutes at issue are not unconstitutionally vague on their face. Courts have held that statutory definitions and common usage of the terms “coercion” and “threat” provide sufficient notice to satisfy Due Process vagueness concerns. 2 C.R. 464–483. 2 Further, courts are without authority, and have repeatedly rejected requests, to consider “as-applied” constitutional challenges to statutes in a pretrial habeas context, particularly where the court would be required to speculate as to the facts made the basis of the prosecution. Such is the situation in the instant case, where Appellant’s “as-applied” challenges to both statutes are replete with speculation. Appellant plainly misapplies the legal principle of separation of powers in his effort to avoid prosecution for his criminal acts. Courts have repeatedly rejected similar pleas from public officials, including governors, who have been charged with committing crimes in connection with the abusive exercise of their governance. Similarly, Appellant is not immune from criminal prosecution as a result of his previous occupation as governor. The Texas constitutional Speech and Debate Clause has never been, and cannot be, used to insulate a governor from criminal prosecution. Finally, the principle of legislative immunity simply does not apply to the instant criminal case, as it has never been applied to allow immunity from criminal acts. ARGUMENT Coercion is a word that our society does not use lightly. When we think of coercion, one knee-jerk connotation is “government coercion.” Nobody wants the government to tell us what to do. Our society is 3 founded upon notions of freedom of expression, freedom of speech, and freedom of choice. Coercion is the antithesis of all of these values—especially when it involves government coercion. The most devastating aspect of coercion is that it deceptively makes the victim believe she is responsible for her own demise. Coercion creates the appearance of choice, the appearance of responsibility for the choice, and the punishment and moral blameworthiness for making the “wrong” choice. As is evident in this case, coercion happens when some may wonder aloud why Rosemary Lehmberg did not just resign so the Public Integrity Unit legislatively- authorized funding would not be eliminated, criminal investigations would not have to be terminated, and people would not have to lose their jobs. Coercion achieves his objective when a public servant in power need only make a threat and then allow the victim to suffer the consequences. When an elected body recognizes the danger of coercion, and when they recognize that public servants are those with the greatest opportunity to take coercive actions, they are right to place limits on conduct and proscribe it. Criminal coercion has a rich context that is much deeper than “threat.” You can make an “idle threat.” There is no analogy for criminal coercion. Coercion is specific. Coercion is not idle, but intentional. Unlike conduct that amounts to general pressure resulting from “duress” or “harassment” or “intimidation” or “undue 4 influence,” coercion implies not just intent, but a malicious intent to induce another to act. Coercion destroys effective consent. Coercion crosses a line, landing firmly outside of the First Amendment protection of free expression and well within the authority of the Legislature to regulate and criminalize it. In defining the term coercion and otherwise describing that which crosses the line into unacceptable conduct, the Legislature placed limits on and proscribed coercion without limiting application from the many factual scenarios that persons can conceive to inflict upon another. 5 I. The First Amendment Does Not Protect All Forms of Speech. A. Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression. Appellant Perry seeks dismissal of the indictment because it purportedly seeks to penalize his constitutional right to free speech. The criminal statute “Coercion of a Public Servant” protects against extortionate conduct and quid pro quo threats made against public servants. After fourteen years as governor of our state and numerous prosecutions against Texas citizens under this statute, Mr. Perry asserts for the first time that this statute, on its face, is unconstitutional under the First Amendment to the U.S. Constitution. Appellant is wrong. There are categories of speech that do not deserve nor receive First Amendment protection. First Amendment jurisprudence is filled with nuances that rely entirely upon the words spoken, the identity of the speaker, the relationship between the speaker and the listener, and the venue of the dialogue. For example, profanity may be included in a speech protected by the First Amendment—but it does not mean that regulations against profanity are vague or overbroad. A legislature may prohibit materials that are obscene,3 threats of violence,4 and retaliatory acts without running afoul of the Constitution.5 3 Miller v. California, 413 U.S. 15 (1973). 4 Watts v. U.S., 394 U.S. 705 (1969). 5 Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d), cert. denied, 502 U.S. 990 (1991) (“Section 36.06 [Obstruction or Retaliation] implicates no First 6 The litmus test of unprotected speech is not simply threats of physical violence, but include threats made that would expose a witness to “hatred, contempt or ridicule.”6 Verbal extortion “has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money.” 7 Similarly, quid pro quo threats made under a display of authority and power are equally prohibited, particularly where the relationship of power between the speaker and the listener gives rise to unlawfulness of the threat.8 Amendment protections. By its terms, the statute punishes only those individuals who intentionally or knowingly harm or threaten to harm another person by an unlawful act.”). 6 Board v. State, 03-96-00024-CR, 1998 WL 271043, at *5 (Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) (“Appellant reasons that Section 36.05 [Tampering with Witness] is unconstitutional in that it allows prosecution for protected speech and writing . . . . We believe the State of Texas has a very substantial interest in protecting witnesses from threats of exposure to hatred, contempt or ridicule.”). 7 Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999) (citing United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972), cert. denied, 409 U.S. 1063 (1972); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. denied, 424 U.S. 955 (1976); and United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988). 8 Sanchez, 995 S.W.2d at 688 (First Amendment does not give public official right to trade official acts for submission to conduct the official was not otherwise entitled). 7 B. The Constitution allows the Legislature to put some limits on speech when regulating a public servant’s speech. At issue is whether the State has a compelling interest in regulating what an elected public servant may say or do under the umbrella of powers entrusted to him by the people. Appellant’s facial challenge raises the thorny question: When a public official conveys a threat to use his power to accomplish an objective that he otherwise could not achieve, does he speak as a private individual or as a representative of the government? This difficulty of interpreting what is considered government speech or private speech has recently been addressed in several cases.9 Where one public servant is threatened by another public servant, however, the possibility that the public servant speaker may assert First Amendment protection is precisely what makes the coercive threat so effective in seeking to influence the public servant listener. This precisely is the legitimate basis for courts allowing the State to regulate and put limits on a public servant’s speech with greater latitude than regulating speech of a private citizen. 9 See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009) & Texas Div., Sons of Confederate Veterans, Inc. v. Vandergriff, 759 F.3d 388, 394 (5th Cir. 2014), cert. granted sub nom. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 752 (2014). 8 Clearly, the government cannot restrict expression merely because of its message, ideas, subject matter, or content.”10 However, a restriction on “the Government’s own speech . . . is exempt from First Amendment scrutiny,”11 even when such restriction has the effect of limiting speech. Indeed, the government may restrict what its agents say, and how and when they say it,12 for the constitutional protection for free speech restricts government regulation of private speech; it does not regulate government speech.13 The U.S. Supreme Court has held that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes …”14 The basis for the distinction is that the State has a different interest in regulating what public servants and government employees may do or say that differs greatly from regulation or restriction of private citizens.15 The First Amendment was designed as a means of insulating power or control by those in 10 Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring in the judgment) (“Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional.”). 11 Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005); see also Joseph Blocher, Viewpoint Neutrality and Government Speech, 52 B.C.L. REV. 695, 695 (2011). 12 See, e.g., City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004); Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 970 (9th Cir. 2011); Garcetti v. Ceballos, 547 U.S. 410, 422 (2006). 13 See Johanns 544 U.S. at 553 (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139 n.7 (1973) (Stewart, J., concurring); Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000). 14 Garcetti, 547 U.S. at 421. 15 See City of San Diego v. Roe, 543 U.S. at 80; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000). 9 positions of governmental authority, not the other way around.16 Statements made by public officials to other public officials are unprotected under Garcetti and its progeny and are no more entitled to First Amendment protection than criminal threats or extortion. C. The Constitution allows the Legislature to regulate a public servant’s speech, even though it would necessarily put some limits on private speech. Appellant argues that § 36.03(A)(1) and § 1.07(a)(9)(F) may also curtail private speech. But the State can limit private speech when it has the effect of coercing a public servant. “The Government’s own speech . . . is exempt from First Amendment scrutiny,”17 even when such regulation has the effect of limiting private speech. As the government may restrict what its agents say, and how and when they say it, it stands to reason, then, that the “government may be able to restrict [some] private expression ‘because of its message, its ideas, its subject matter, or its content,’ so long as in so doing it is expressing its own viewpoint.” 18 That is, some private speech may be burdened by the very nature of regulating government speech. If the government does not prefer its subsidized 16 Famed Texas Free Speech advocate, lawyer, and legislator, Maury Maverick Jr., noted that, at its core, the First Amendment is a tool to protect the minority from the majority, and not the other way around: “Madison, Jefferson, George Mason and others explained that the purpose [of the First Amendment] was to limit and qualify power, guard against legislative and executive abuses, and protect the minority against the majority.” Maury Maverick Jr., “Leave First Amendment Alone,” Texas Iconoclast 123 (TCU Press 1997). 17 Johanns, 544 U.S. at 553; Blocher, supra note 11, at 695. 18 See Blocher, supra note 11, at 696 (citing Mosley, 408 U.S. 92–95). 10 doctors discussing abortion in the same clinic that uses government funding, it is well within its power to prohibit those abortion discussions.19 Likewise, by choosing certain types of monuments it prefers in its parks, the government is well within its power to prohibit private parties from erecting other types of monuments.20 These limits on private speech are constitutionally permissible, as they are incidental to the Government’s regulation of its own speech. At its core, § 36.03(A)(1) and § 1.07(a)(9)(F) is the Texas Legislature regulating its own speech and actions: it is taking affirmative action to prevent its public officials from speaking or acting as a result of coercion. Its viewpoint is simple: official speech should not be coerced speech. As is expected, the Legislature believes it ill-advised for its officials to speak when they are coerced into doing so. But proclaiming that potential victims of coercion should not be coerced is a fool’s errand. Due to the coercive nature of coercion, the Legislature cannot achieve its goal by just placing restrictions on the private citizen speaking to the government. To achieve its preferred government speech, the Legislature has to burden the coercer, whoever that may be. 19 See Rust v. Sullivan, 500 U.S. 173, 193 (1991). 20 See Summum, 555 U.S. at 467. 11 The Framers also sought to prevent coercion in certain respects. In fact, they thought it foundational to only allow criminal confessions if they were free from coercion.21 Coerced confessions, history proved, were unreliable and untrustworthy: only serving the ends of the coercer and not that of justice.22 This cornerstone proved difficult to build upon, as coercion was tricky. Coercers constantly changed and evolved their coercion-tactics—seeking to optimize both their effectiveness and their societal palatability.23 Through the centuries of struggle combatting coerced confessions, one truth was evident: restraining the coercer was the only way to prevent coerced statements.24 And so it was with public officials. A rule to public officials stating: “If you are coerced to speak, do not speak” would be absurd—the only effective way to prevent coerced official speech is to restrict the coercer. As such, the Legislature is posed with a dilemma: either refuse to restrict any private speech and allow, unfettered, its public officials to give coerced speech, or prevent all coercers from influencing official speech and action. The first choice allows corruption of government, while the second necessarily places some limits on private speech. Both choices are constitutionally permissible. 21 See U.S. CONST. amend. V. 22 See Brown v. Walker, 161 U.S. 591, 596–597 (1896); Miranda v. Arizona, 384 U.S. 436, 458– 60 (1966). 23 See Miranda, 384 U.S. at 448–458. 24 See Miranda, 384 U.S. at 467–70. 12 1. The face of the statute at issue is not overbroad. Historically, courts have been extremely hesitant to rule that a criminal statute is overbroad and facially unconstitutional—even when the government is restricting expression by private citizens. It has been said by our State’s highest criminal court that the “overbreadth” doctrine is “strong medicine” that should be employed “sparingly” and “only as a last resort.”25 “[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”26 That is, the court is to determine whether “the statute reaches a substantial amount of constitutionally protected conduct” and whether a “substantial number of the statute’s applications are unconstitutional judged in relation to the statute’s plainly legitimate sweep.”27 If the statute cannot be shown to restrict a substantial amount of constitutionally protected conduct, the overbreadth challenge must fail.28 That is, the fact that the enforcement of a statute operates to prohibit or restrain a private citizen’s right to speak does not itself mean that the statute is invalid.29 If such a principle applies to the speech of a 25 Ex parte Ellis, 309 S.W.3d 71, 91 (Tex. Crim. App. 2010). 26 Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)); see also Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 585 (2002). 27 Ex Parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013), aff’d, 442 S.W.3d 325 (Tex. Crim. App. 2014) (citations omitted). 28 Id. 29 See Allen v. State, 604 S.W.2d 191, 192 (Tex. Crim. App. 1980); see also United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (threatening a person is not an opinion or idea that is needed in marketplace of ideas). 13 private citizen, than it would certainly follow that this same principle would apply to a public servant’s speech. There are several reasons Appellant’s overbreadth challenge must fail. First, the statute cannot be overbroad if coercive threats are not entitled to First Amendment protection. In Duncantell v. State, the appellant asserted that the Interference of a Public Servant statute [Section 38.15] is overbroad because it “impermissibly restricts a person’s right to walk about freely and the right to not remain silent.”30 The court examined whether the interference statute’s limitations on conduct restricted a substantial amount of constitutionally protected expression.31 In denying the overbreadth challenge, the court noted: The interference statute at issue here prohibits a person, acting with criminal negligence, from interrupting, disrupting, impeding, or otherwise interfering with a peace officer, while the peace officer is performing a duty or exercising authority imposed or granted by law. . . Appellant has cited no authority, and we are aware of none, holding that conduct, which a person knew or should have known would interrupt, disrupt, impede, or interfere with a peace officer performing a duty imposed by law, such as investigating an accident or arresting a criminal suspect, is expressive conduct protected by the First Amendment.32 This is the same type of unprotected conduct Section 36.03 regulates. Second, because regulating coercive threats by public officials is distinct from regulating purely political speech by private citizens, the presumption of the 30 Duncantell v. State, 230 S.W.3d 835, 843–44 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). 31 Id. 32 Id. at 844 (emphasis added). 14 statute’s validity remains. Further, even if there may be a slight amount of expressive conduct nestled within a coercive threat, the statute does not restrict a substantial amount of protected speech. When lodging a facial challenge, it is not enough to argue that a statute might operate unconstitutionally in a single circumstance, much less an extreme one.33 He must prove that a prosecution can never be constitutionally applied to any Texas defendant charged with the statute at issue, no matter what the individual facts and circumstances of the particular case.34 In reviewing a facial challenge, the court considers the statute only as it is written, rather than how it operates in practice.35 And if the court can identify any factual circumstance in which the statute is valid, the facial challenge must fail.36 The following hypothetical factual circumstances demonstration the validity of the statute: -May a Governor call a police chief and inform him that if he does not tear up a ticket that was wrongfully issued against a family friend he might find that the funding for his entire police department be eliminated via line-item veto? -May a Senator call an elected district attorney and suggest that if a “misguided prosecution” is not dropped against his son he will strip funding for her office from his appropriations bill? 33 See Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992) (op. on reh’g). 34 See Gillenwaters v. State, 205 S.W.3d 534, 536 n. 2 (Tex. Crim. App. 2006). 35 See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011); FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). 36 State v. Rosseau, 396 S.W.3d 550, 558 (Tex. Crim. App. 2013). 15 -May a Representative e-mail a judge and suggest that if a groundless case in her court is not dismissed he would eliminate her judicial district? -May a Governor threaten to veto funding for all highway monies in Travis County if the elected District Attorney does not resign? -May a Governor threaten to veto state funding for all elected State District Court Judges in Travis County if the elected District Attorney does not resign? Third, Appellant proposes a definition of “threaten” akin to “negotiate.” Under this lens, Appellant ignores the words in context to make an overbreadth challenge. Derivations of the word “threat” are found 62 times in the Penal Code and 64 times in the Code of Criminal Procedure. In not a single instance is “threat” used in the context of “negotiation.” It is the coercive control that provides the context for the threat. Coercion implies intimidation to violate any choice or free will of the listener. Coercion depends on a listener acting against his own interest to avoid a greater harm. Coercive threats are in the same category of extortion and blackmail—they cross a societal line between acceptable and unacceptable areas for negotiation. Appellant proposes hypotheticals that would result in a “chilling effect.” Coercion of a Public Servant has been illegal for over four decades. This case has been ongoing for a year and a half. No bill has been filed in the current legislative session seeking to modify, clarify or eliminate either Section 36.03 or 1.07(a)(9). And there is no evidence of any chilling effect. Appellant, himself, publicly 16 announces over and over again he would repeat his actions. Alarmist assertions of chilled expression notwithstanding, the State has an interest in chilling coercive threats to public servants because it is not expressive, and these threats chill legitimate speech. Sections 36.03 and 1.07(a)(9) of the Texas Penal Code address acts of “coercion” which, by statutory definition, include “threats.”37 This statutory language necessarily limits the application of the statute to criminal behavior, and does not render it overbroad to substantially include innocent behavior. Additionally, the Texas Court of Criminal Appeals has addressed the scope of the term “threat,” by indicating its “common, ordinary meaning” is the following: 1. to declare an intention of hurting or punishing; to make threats against; 2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds threaten rain or a storm; 3. to express intention to inflict (injury, retaliation, etc.); 4. to be a source of danger, harm, etc., to.38 37 See TEX. PENAL CODE ANN. § 1.07(a)(9) (West 2011). 38 Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006); see also Roberts v. State, 278 S.W.3d 778, 790 (Tex. App.—San Antonio 2008, pet. ref’d). 17 The Court noted that Black’s Law Dictionary defines “threat” as: “A communicated intent to inflict harm or loss on another or on another’s property…”39 The Court’s analysis is consistent with the principle that words or phrases must be read also in the context in which they are used.40 Thus, the word “threat” does not stand alone. It must be read in the context of the statutory meaning of the word “coerce” or “coercion” as that term is defined in the Penal Code, section 1.07(a)(9). To require further definition of the term “coerce,” as Appellant apparently argues should have been done, is to reach the point of defining definitions. Accordingly, section 36.03 cannot be said to be substantially overbroad judged in relation to the statute's plainly legitimate sweep.41 Moreover, the challenged statute is presumed valid if “closely drawn to match a sufficiently important interest.”42 Coercion occurs when a person illegally threatens to do indirectly what he does not have the power to do directly.43 No public official can hide under the cloak of official authority or the First Amendment in order to commit the crime of 39 Olivas, 203 S.W.3d at 345–46. 40 See Gant v. State, 814 S.W.2d 444, 454 (Tex. App.—Austin 1991, no pet.). 41 Ellis, 309 S.W. at 91. 42 Id. 43 See Roberts v. State, 278 S.W.3d at 790 (court rejects overbreadth and vagueness challenges; attorney’s otherwise legitimate right to file lawsuit still actionable under criminal “coercion” statute); Sanchez, 995 S.W.2d at 687 (court rejects overbreadth and vagueness challenges; threats have no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money). 18 coercion of a public servant and abuse of office, nor should he be able to assert that statutory definitions of criminal coercive conduct are overbroad. Threats of this nature are simply not protected by the First Amendment and are not unconstitutional in their clarity.44 The statute puts limits on a person’s conduct, which must necessarily include any person’s (including a public official’s) exercise of his duties under his employment. Coercion occurs when a public official illegally threatens to do indirectly what he does not have the power to do directly. Whether the underlying action is within the public official’s power (lawful) or unlawful and criminally coercive, the statute is designed to protect the integrity of the political process and not the end result. 2. The statute is not subject to strict scrutiny because it does not distinguish between favored and disfavored speech. Before any level of judicial scrutiny is applied to determine the constitutionality of a statute under the First Amendment, the challenger must clear three preliminary hurdles: 1) demonstrate that the regulated activity has an expressive component deserving of protection, 2) demonstrate that the speaker is protected under the First Amendment, and 3) demonstrate that the speech should be afforded a high degree of protection. Even if all of such hurdles were overcome, only content-based regulation on private citizens’ speech would be held 44 See Roberts, 278 S.W.3d at 790; Sanchez, 995 S.W.2d at 687. 19 presumptively invalid and subject to strict scrutiny. 45 Moreover, strict scrutiny is applied in facial challenges only to laws that distinguish between favored and disfavored speech based on the ideas expressed.46 Appellant cuts a wide swath in asserting that merely because the statute at issue addresses speech, it necessarily is subject to strict scrutiny review. Such is not in accord with precedent. Appellant fails to address precedent that addresses private versus public servant speech, and favored versus disfavored expression. The “Coercion of a Public Servant” statute does not make the favored/disfavored expression distinction that would raise constitutional concern. Also, Appellant fails to demonstrate why he should receive the benefit of heightened scrutiny where the statute at issue is being enforced against a public servant’s threat. Appellant is not entitled to a presumption of invalidity subject to the most severe judicial scrutiny. Appellant’s argument that § 36.03(a)(1) and § 1.07(a)(9)(F) prohibit and burden core political speech and, thus, should be analyzed under exacting scrutiny, is unfounded. Core political speech involves “interactive communication concerning political change.”47 The First Amendment affords the broadest protection to this type of political expression in order “to assure [the] unfettered interchange of ideas 45 See, e.g., Virginia v. Black, 538 U.S. 343, 361 (2003). 46 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). 47 See Meyer v. Grant, 486 U.S. 414, 421–22 (1988). 20 for the bringing about of political and social changes desired by the people.”48 It would be an unreasonable and unwarranted stretch to find that the founders of our Constitution, our Legislature, and our courts should consider coercion and extortion, which § 36.03 proscribes, as interactive communication deserving constitutional protection. Moreover, Appellant failed to clear the substantial hurdles necessary to invoke such a level of scrutiny. 3. Even if heightened scrutiny were applied, “Coercion of a Public Servant” statute withstands that scrutiny. Judge Richardson concluded that the Coercion of a Public Servant statute serves a compelling state interest to protect the integrity of the political process.49 The State of Texas has a singular interest in intervening when public officials try to leverage the power of government for their personal or political whims. The State of Texas undoubtedly has a valid and substantial interest in self-regulation. There is also a close nexus between the compelling interest and the restriction. The statute does not substantially include innocent behavior or criminalize protected speech. Similar to the conduct in Sanchez, it criminalizes extortion (“either do what I want or else something bad will happen to you”)50 which is not protected expression. 48 See Roth v. United States, 354 U.S. 476, 484 (1957). 49 C.R. 477-78. 50 Sanchez, 995 S.W.2d at 691–92 (Mansfield, J., concurring). 21 Moreover, the statute is narrowly drawn in order to include the abuse of public authority and to employ the least restrictive means to achieve its goal. The legislative exception under Section 36.03(c) provides a limitation that the daily operations of government negotiation are not criminalized. Furthermore, the statute only criminalizes two categories of coercion - physical threats and threats of official action. In United States v. Kozminski the Supreme Court wrestled with narrowing the definition of coercion as applied to a prosecution for involuntary servitude. Justice Brennan recognized that “certain psychological, economic, and social means of coercion can be just as effective as physical or legal means.” But out of concerns for vagueness, the Court determined that the jury charge should have been limited to “the use or threatened use of physical or legal coercion.”51 These are precisely the narrow two categories—physical or legal coercion— defined in Section 1.07(a)(9). The Legislature could have chosen to criminalize conduct that influences a public servant as broadly as “duress, fraud, overreaching, harassment, intimidation, or undue influence.”52 Instead, it chose a substantially more narrow definition. 51 United States v. Kozminski, 487 U.S. 931, 955 (1988). 52 See TEX. PENAL CODE § 38.12(b) (Barratry and Solicitation of Professional Employment). 22 II. The coercion statute provides adequate notice consistent with due process. Appellant asserts the face of the statute is unconstitutionally vague. An enactment is not vague merely because it is imprecise.53 In drafting a criminal statute, there is an inevitable balance that legislators must make between drafting it “general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”54 In determining whether a statute is unconstitutionally vague, a two-part inquiry is applied: (1) determine whether an ordinary law-abiding person receives sufficient information from the statute that his conduct risks violating the criminal law, and (2) determine whether the statute provides law enforcement with sufficient notice to avoid arbitrary or discriminatory enforcement.55 In this regard, a statute is not required to be “mathematically precise; it need only give fair warning.”56 Notably, a statute is unconstitutionally vague “when no core of prohibited activity is defined.”57 When a statute does not implicate constitutionally-protected conduct, a reviewing court should sustain the vagueness challenge only if the statute is 53 Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir. 1983). 54 Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972). 55 Grayned v. City of Rockford, 408 U.S. 104 (1972). 56 Id. at 110. 57 Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987). 23 impermissibly vague in all its applications.58 A person who engages in conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.59 In making its analysis, the same presumption of statutory validity is applied when evaluating an overbreadth challenge.60 The statutory words and phrases are to be read in context, and construed according to the rules of grammar and common usage.61 Words and phrases that have acquired a particular meaning through legislative definition are construed accordingly.62 Importantly, a statute must be upheld if a reasonable construction can be determined that will render it constitutional.63 A. The context of the statutory meaning of the word “coercion” provides fair warning. Appellant relies primarily on the Waco Court of Appeals’ decision in State v. Hanson64 to argue that the statute is unconstitutionally vague. The case is distinguishable. In Hanson, the public official charged with violating section 36.03 had the lawful authority to take lawful action against the persons who were victimized by 58 Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). 59 Id. (citing Village of Hoffman Estates, 455 U.S. 489, 494 (1982)). 60 Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Duncantell, 230 S.W.3d at 835; Sanchez, 995 S.W.2d at 683; Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991). 61 TEX. GOV’T CODE ANN. § 311.011(a) (West 2005); Sanchez, 995 S.W.2d at 683. 62 TEX. GOV’T CODE ANN. § 311.011(b) (West 2005). 63 Roberts 278 S.W.3d at 778; Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978) 64 State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.). 24 her threat to cut funding.65 Bosque County could legally terminate funding of employees in the district attorney’s office or district clerk’s office, and Judge Hanson could legally request that the county attorney institute proceedings to revoke a misdemeanant’s probation. That is, the act requested by the defendant as part of her threat was an act that was within the scope of the lawful authority that she, the defendant, otherwise had. In that instance, the Waco Court of Appeals found that it was impossible for Judge Hanson to predict that her threat was criminal, as she was demanding action that was within her purview to demand. Such is not the situation in the instant case, as then-Governor Perry did not have the legal authority to demand an elected district attorney’s resignation. But even the court in Hanson could not conclude that Section 36.03 was vague on its face. The context of Section 36.03 and the other statutes within Chapter 36 of the Penal Code focus on conduct to coerce a public official to act or violate their known duty when the actor has no control or authority to do so. This is the crux of two decisions by the Texas Court of Criminal Appeals.66 In Board v. State, the Court explained that the context of the terms “coercion” and “threat” provide sufficient notice because “the word ‘threat’ does not stand alone. It must be read in the context of the statutory meaning of the word 65 Id. at 272. 66 See Board v. State, 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) & Sanchez, 995 S.W.2d at 677. 25 ‘coerce’ or ‘coercion’ as that term is defined in Penal Code Section 1.07(a)(9).”67 Otherwise, no public official could ever be prosecuted because he could claim he didn’t intend for his comments to be viewed as a threat. This is precisely the harm—and the difficulty in prosecuting the harm—the the Legislature sought to remedy. Sections 6.02 and 6.03 of the Penal Code provide further clarification and notice in terms of what makes a potential act criminal in nature.68 All of these statutes, when considered in the context of ordinary usage and definitions, prevent all persons, including a public official, from feigning ignorance that his threat was not intended to be criminally coercive. B. The Legislature intended to cover threats of lawful action. In addressing statutes involving abusive practices and coercive actions taken by and against public officials, who better to understand the problems with the abuse of power in political office than elected officials themselves? Members of the Texas House, Texas Senate, and Office of the Governor all agreed in 1989 that while power dynamics are a necessity of politics, there must be boundaries. The main text of Sections 36.01 and 36.03 of the Texas Penal Code have remained the same for over forty years, and each have included threats related to 67 Board, 1998 WL 271043 at *6; see also Sanchez, 995 S.W.2d at 689 (phrase “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” a reasonably specific phrase for Due Process purposes). 68 TEX. PENAL CODE ANN. § 6.03 (West 2011) (distinct, clear definitions of culpable mental states). 26 action taken by public servants.69 Notably, however, the text of Section 36.03 has gone through extensive review, amendments, and proposed amendments during the past 20+ years. On January 24, 1989 Representative Wolens filed House Bill 594 (“H.B. 594”) to propose a two-word change to how cases would be prosecuted under Section 36.03.70 The initial draft of the bill relating to the definition of “coercion” added the adverb “unlawfully” twice to Section 36.01(1): (1) “Coercion” means a threat, however communicated: (F) to unlawfully take or withhold action as a public servant, or to cause a public servant to unlawfully take or withhold action.71 Before being voted out of committee, the definition of what constitutes “coercion” was narrowed further. Representative Guerrero introduced a committee substitute for H.B. 594 adding the “same governing body” exception that can be found in the current version of Section 36.03.72 During the 2nd Reading of the bill on the House floor, Representative Parker made two additional changes to C.S.H.B. 594: 1) He added Wolens’ “unlawfully” language back into the definition of ‘coercion’ in Section 36.01(1)(F), Penal Code; and 2) He enlarged the scope of what constitutes an offense under Section 36.03 by adding that: 69 See Exhibit A. 70 See Exhibit B. 71 See Exhibit B at A-8. 72 See Exhibit B at A-6. 27 A person commits an offense if by means of coercion he influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.73 On April 27, 1989, H.B. 594 was passed by the Senate by a 31-0 vote. The bill became law. But only for four years. In 1993 the Penal Code was re-writen to create State Jail Felonies, and SB 1067 included an entire rewrite of the Penal Code. The original draft of SB 1067 left 36.01 and 36.03 untouched.74 After S.B. 1067 passed the Senate, it was subject to 58 adopted amendments on the House floor during second reading. Two changes occurred. First, Amendment No. 28 by Naishtat would have limited prosecution of coercion of a public servant only to the narrow category of bribery-type conduct and not the broader version of extortionate conduct.75 The Naishtat re-write of 36.03 was passed by the House. 73 See Exhibit B at A-14. 74 The enrolled version of SB 1067 is 475 pages long. The full legislative history is 4,395 pages long and can be found at: Legislative Reference Library of Texas, “SB 1067,” available at http://www.lrl.state.tx.us/LASDOCS/73R/SB1067/SB1067_73R.pdf#page=1 The relevant pages are included in Exhibit D. 75 See Exhibit C. 28 Because the bills passed by each chamber differed, a conference committee was formed to adjust the differences between the Senate and the House on S.B. 1067. This resulted in a second change to the statute. The House version eliminated the word “unlawfully” in the definition that had just been added several years before. A summary of the legislative changes to that one word are as follows: Action History of “Unlawfully” Rep. Wolens adds language in HB 594 “Unlawfully” added to definition of coercion in 36.01(F) Rep. Guerrero removes language in HB “Unlawfully” removed from to 594 definition of coercion in 36.01(F) Rep. Parker adds language in HB 594 “Unlawfully” added to definition of coercion in 36.01(F) Rep. Place consolidates definitions into “Unlawfully” still in definition of one section of the Penal code and coercion. moves the definition of “coercion” to Section 1.07 Rep. Place removes language in “Unlawfully” removed from definition C.S.S.B. 106776 of coercion in 1.07(F) The Conference Committee accepted the definition of “coercion” without “unlawfully” and rejected Naishtat’s changes to the statute. Ultimately, the Texas Legislature and the Texas Governor decided to approve the removal of the word “unlawfully” from the definition of “coercion,” reject the proposed limitation of this statute to bribery, and continue to criminalize extortionate conduct. For a 76 See Exhibit D. 29 period of time, the word unlawfully was in the definition of coercion. The effect of adding the word unlawfully, however, is that it would have drastically reduced the scope of public officials who could be prosecuted. Both the Legislative and Executive Branch rejected the interpretation that a public official must commit an illegal act as a prerequisite for prosecution of coercion of a public official, and intentionally removed the word from the definition. Otherwise, a public official could always hide behind a cloak of “official authority.” Thus, the current statute was an intentional effort by our State governance to adequately define prohibited criminal conduct. Elected officials in the legislative branch are the most knowledgeable participants in the market of political power. They are the best persons to regulate it. This is precisely why facial challenges to a statute should be difficult to mount successfully.77 Often, such claims rest on speculation and exaggeration—such as in this facial challenge. While this statute has been the law for at least four decades there is no historical evidence of any chilling effect on any public officials’ actions. Our state officials passed a law to limit their own power. 77 See Santikos, 836 S.W.2d at 633 (“A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Since a statute may be valid as applied to one set of facts and invalid as applied to another, it is incumbent upon the appellant to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient.”) (internal citations and quotations omitted). 30 III. District Court Properly Held As-Applied Challenges Not Cognizable in Pretrial Habeas Proceeding. A. Appellant’s Improper Reliance on Speculation. The trial court properly determined that a pretrial writ is not the appropriate forum to decide whether Texas Penal Code Sections 39.02(a)(2) and 36.03(a)(1) are being unconstitutionally applied to Appellant.78 This is not because these were simply labeled “as applied” challenges. The entire Application for Writ of Habeas Corpus is permeated with the assumption that Appellant is being prosecuted for statements made at a press conference and acts in conformity with those statements. But as the trial court explained, “The alleged and speculated upon facts are not properly before the court at this time, and the court has no authority at this stage to examine the evidence that was presented to the Grand Jury.”79 An “as- applied” challenge necessarily challenges the invocation of a criminal statute “as applied” to the particular facts of the instant case. The district court in the instant case has not heard any testimony, admitted any evidence, nor taken judicial notice of any fact related to the substantive charges against Appellant. Even so, Appellant injects a number of proposed, 78 Order Denying Defendant’s Writ, p. 10 [C.R. 473]. 79 Order Denying Defendant’s Writ, p. 5, fn. 3 [C.R. 468]. 31 speculative facts in his writ application and brief. The State disagrees with assumptions made by Appellant in his brief and writ applications, but legal pleadings filed in habeas proceedings are not the place to present or litigate factual evidence. That is reserved for trial. The trial court properly denied addressing the “as applied” claims. B. “As Applied” Challenge Not Cognizable in Pretrial Habeas Review. Appellant inaccurately argues that his claims are the “functional equivalent” of facial challenges.80 The litmus test of an “as-applied” challenge is whether a person is arguing that the statute is being unconstitutionally applied to this defendant under this set of facts.81 The district court correctly cited three different Court of Criminal Appeals opinions, each expressly prohibiting trial courts from considering the merits of an “as applied” challenge.82 In State ex rel. Lykos v. Fine, the Court held that an “‘as-applied’ challenge is brought during or after a trial on the merits, for it is only then that the trial judge and reviewing courts have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”83 Similarly, in Ex 80 Appellant’s “as-applied” challenges are set forth in three sections of his appellate brief: Sections III, VI and VII. These will all be addressed in this section of the State’s Brief. 81 Order Denying Defendant’s Writ, p. 9 [C.R. 472]. 82 Order Denying Defendant’s Writ, p. 5 fn.4 [C.R. 468–69]; Id., p. 6 [C.R. 469], citing Lykos, 330 S.W. 3d at 911; Ellis, 309 S.W.3d at 79; Ex parte Weise, 55 S.W. 3d 617, 620 (Tex. Crim. App. 2001). 83 Lykos, 330 S.W.3d at 911. 32 parte Ellis, the Court held that pretrial habeas is an extraordinary remedy that may not be “misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.”84 Finally, in Ex parte Weise contains the Court of Criminal Appeals explicitly pronounces: “We granted review on our own motion to decide whether a pretrial writ of habeas corpus may issue on the ground that a penal statute is being unconstitutionally applied because of the allegations in the indictment or information. We conclude that it may not.”85 Appellant argues that he advances the same type of “as-applied-to-the- indictment challenge” as in Ex parte Boetscher. It is not. In Ex parte Boetscher the court did not analyze conduct about whether the defendant did or did not pay child support. Instead, it looked only to the face of the statute to find an equal protection clause violation: Unlike the previous statute, however, which increased the punishment to a felony for defendants who committed the offense in Texas and then fled the state, § 25.05(g)(2) provides a felony penalty for all defendants who commit the offense while simply residing in another state. The previous punishment classification scheme did not offend the equal protection clause, [], but the classification scheme in § 25.05 plainly implicates one of the basic rights of all Americans.86 84 Ellis, 309 S.W.3d at 79. 85 Weise, 55 S.W.3d at 620. 86 Ex parte Boetscher, 812 S.W.2d 600, 603 (Tex. Crim. App. 1991) (citation omitted) (emphasis in original). 33 This was far closer to what we consider a facial challenge than an “as applied” challenge. Similarly, Appellant advances that Ex parte Gill and Ex parte Elliot enable this Court to analyze separation of powers violations in pretrial habeas. But neither of these cases are the type of “as applied” challenges presented in Appellant’s writ. Ex parte Gill was not an “as applied” challenge but a facial challenge to the bail statute, Article 17.151. Ex parte Elliot was not an “as applied” challenge but a facial challenge to the Texas Solid Waste Disposal Act. The facts in the cases are irrelevant in analyzing whether the Legislature has the power to pass the regulations. Appellant never asserts that the Texas Legislature lacks this authority; he just reiterates that the application of the law is inapplicable as to him. 1. The Claims Are Not Ripe For Review. Although Judge Richardson and this Court may have a general idea of the facts of this case based on the indictment and the media interpretation of the events giving rise to the indictment, the State has more evidence to present. In civil proceedings, the theory behind the ripeness doctrine is straightforward—if plaintiff's injury is not concrete and depends on contingent, remote, or hypothetical facts, courts should avoid deciding the dispute. This theory has similarly been 34 applied to pretrial writs of habeas corpus.87 Ripeness presents a threshold issue that implicates the court's subject matter jurisdiction, not its discretionary authority.88 Until the State has introduced or attempted to introduce evidence regarding the threats which Appellant claims would violate the Speech or Debate Clause, the separation of powers doctrine, or the constitutional application of the Abuse of Office statute to Appellant’s conduct, these matters are not yet ripe for review. 2. There must first be facts in evidence before this Court can decide Appellant’s “as applied” challenges. Even facial challenges can be better addressed with some factual basis in the record. One of Appellant’s central arguments is that he is being prosecuted for “core political speech.” However, much of the body of First Amendment caselaw comes from the appellate court having the benefit of the words spoken, the context of the threat, and the relationship between the parties. This is especially true in cases involving indirect threats, retaliation, or extortion. 87 See, e.g., Weise, 55 S.W.3d at 621 (defendant’s claim not cognizable in pretrial writ of habeas corpus because not yet ripe for review); Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (in pari material claim premature before State has had opportunity to develop complete factual record during trial); Ex parte Cross, 69 S.W.3d 810, 814 (Tex. App.—El Paso 2002, pet. ref’d) (“as applied” challenge to criminal trespass prosecution on First Amendment grounds not ripe for review); Ex parte Tamez, 4 S.W.3d 366, 368 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (as applied challenge to constitutionality of perjury statutes not ripe for adjudication when defendant had not yet been tried but claimed that unconstitutional harm was that trial court would be unable to issue fair jury instruction). 88 See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). 35 Appellant has been charged with abuse of office and coercion of a public official. A trial on the merits is “the main event” in our American system of justice in which the prosecution and defense present evidence and do battle to reach a presumptively accurate and reliable result in each particular case. 89 At a trial on the merits, “[i]f a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his objection.”90 There is no evidence for the Court to review Appellant’s claim that the two statutes are unconstitutional as applied to him. The writ of habeas corpus is an extraordinary writ. The Texas Constitution establishes an appellate system and the highest courts in Texas have developed rules of appellate procedure where criminal matters can be reviewed and remedied. Because of our modern appellate system, writ applications should be restricted to only the issues which the ordinary appellate process is not capable of reviewing. “Neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when there is an adequate remedy by appeal.”91 Moreover, 89 Lykos, 330 S.W.3d at 919 (citing Wainwright v. Sykes, 433 U.S. 72, 97 (1977). 90 Id. 91 Ex parte Hopkins, 610 S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d 480, 481 (Tex. Crim. App. 1977); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte Delbert, 582 S.W.2d 145, 145 (Tex. Crim. App. 1979). 36 “pretrial habeas is unavailable when the resolution of a claim may be aided by the development of a record at trial.”92 C. All of Appellant’s Remaining Claims Are “As Applied” Challenges. Knowing that the Court of Criminal Appeals has repeatedly refused to consider the merits of an “as applied” challenge in pretrial habeas review, litigants have sought to stretch “as applied” challenges under the label of a “facial” challenge. Writing for a unanimous Court in Ex parte Ellis, Presiding Judge Keller explained that “appellants did not really advance a facial challenge, but advanced an ‘as applied’ claim that was disguised as a facial challenge. Addressing the ‘as applied’ substance of the claim resulted in a circumvention of the pretrial habeas cognizability limitations.”93 Appellant’s writ application does not advance the “functional equivalent of a facial challenge.” Judge Richardson properly treated them as “as-applied” challenges because they are “as-applied” challenges. Lacking the facts at trial, Appellant refers to the “facts alleged in the indictment” and seeks to resolve an as-applied challenge on the face of the indictment alone. As beneficial as this perspective would be for the State, an indictment is not evidence: 92 Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010); see also Ex parte Smith, 185 S.W.3d at 893. 93 Ellis, 309 S.W.3d at 81; see also Karenev v. State, 281 S.W.3d 429, 441 (Tex. Crim. App. 2009) (Cochran, J. concurring) (“I think the court of appeals was mistaken in transforming appellant’s subterranean sufficiency of evidence argument into a full-fledged First Amendment attack upon the facial constitutionality of the harassment statute.”). 37 If the introduction of the indictment constituted a prima facie case of guilt, then it would seem that the State would be justified before the jury in making out a prima facie case of murder in the first degree by simply introducing the indictment and resting its case, requiring thereby that the accused party should introduce evidence to disprove the finding of the grand jury. This under no authority would be correct.94 Under our rules, the fact that Appellant was indicted is not evidence. Neither are interpretations of the indictment by counsel, assumptions made in motions, or recitation of assumed “facts” in briefs. Lawyers cannot create facts through pleadings. As a corollary, Petitioner cannot argue that allegations in an indictment provide facts for pretrial habeas relief. This tact was recently tried and rejected in Ex parte Ragston. Ragston involved an attempt to raise an “as-applied” challenge in a pretrial writ based on the holdings in Roper v. Simmons and Miller v. Alabama, two United States Supreme Court decisions restricting the types of punishments available for those under the age of 18.95 The State conceded that Texas’ sentencing statute would be unconstitutional in light of Roper and Miller.96 However, the State argued and the court upheld that the complaint was not cognizable in an application for a pretrial writ of habeas corpus.97 The only fact that needed to be addressed was Ragston’s age, and the constitutional principle had 94 Ex parte Firmin, 60 Tex.Crim. 368, 375 (Tex. Crim. App. 1910). 95 Ex parte Ragston, 402 S.W.3d 472, 475 (Tex. App.—Houston [14th Dist.] 2013), citing Roper v. Simmons, 543 U.S. 551, 574–75 (2005); Miller v. Alabama, 132 S.Ct. 2455 (2012). 96 Ragston, 402 S.W.3d at 475. 97 Id. at 476. 38 already been settled by the Supreme Court. Yet, both the trial court and court of appeals properly denied the application for pretrial writ as the issue could be properly addressed on appeal if he was convicted. Any challenge in the writ that relies upon language in the indictment or media is inappropriate.. Because a statute may be valid as applied to one set of facts and invalid as applied to a different set of facts, a litigant must show that, in its operation, the challenged statute was unconstitutionally applied to him; that it may be unconstitutional as to others is not sufficient, or relevant. 98 Appellant heavily relies upon his role as Governor of the State of Texas— and the assumptions about why he is being prosecuted—to advance each of his claims: 1) Separation of powers -“By requiring the judiciary to scrutinize a gubernatorial veto, this prosecution unduly interferes. . .”99 -“Allowing a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption. . .”100 2) Speech or Debate clause -“Count I is predicated upon a legislative act of Governor Perry—the veto— and Count II involves the Governor’s alleged discussions with his staff regarding the anticipated legislative act and its announcement.”101 98 See Santikos, 836 S.W.2d at 633; Parent v. State, 621 S.W.2d 796, 797 (Tex. Crim. App. 1981). 99 Application for Writ, [C.R. 21]. 100 C.R. 23. 101 C.R. 28. 39 -“Should the face of the indictment not be sufficient to sustain this assertion, the Court should review the transcripts of the grand jury in camera.”102 3) Facial challenge to the constitutionality of Texas Penal Code § 36.03(a)(1) (Coercion of Public Servant or Voter) -“Core political speech, such as the veto and the alleged veto threat in this case, lies at the very heart of First Amendment protection.”103 -“Even assuming (for purposes of argument only) that [Appellant] did in fact “threaten” a veto in this case, and even assuming that Lehmberg had resigned under such a threat, Texas courts have repeatedly held that resignation under such circumstances does not constitute ‘duress.’” 104 All of these claims are substantively “as-applied” challenges, carrying factual assumptions that Appellant is making to support his challenge. “If a claim designated as a facial challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim.”105 Thirty years ago, lawyers for Jim Mattox advanced the same arguments as Appellant now urges. Mattox was accused of threatening to delay and deny approval of municipal bonds that were within his power to approve as acting Attorney General.106 In summarily dismissing his pretrial habeas corpus proceeding, which sought to sidestep a trial, the court of appeals treated the Attorney General the same as every other citizen: “Mattox does not assert any 102 Id. 103 C.R. 30. 104 C.R. 35. 105 Ellis, 309 S.W.3d at 80 (reversing Third Court of Appeals for improperly resolving “as applied” challenge on pretrial habeas review under auspices of facial challenge). 106 Jim Mattox’s case proceeded to jury trial, and a Travis County jury acquitted him of commercial bribery. 40 extraordinary interest that would justify the delay and judicial wheelspinning that would result were defendants authorized to institute pretrial collateral proceedings, complete with interlocutory appeals, to test the sufficiency of the allegations in a charging instrument.”107 The court explained that Mattox was legally entitled to challenge the sufficiency of the indictment in a motion to quash, and like every other defendant accused of a crime, should the motion be overruled and he be convicted, he could take the issue up on appeal.108 Moreover, “[h]abeas corpus is an extraordinary remedy and is available only when there is no other adequate remedy at law.”109 Neither a trial court nor an appellate court should entertain a petition for writ of habeas corpus when there is an adequate remedy by appeal.110 The fact that the defendant has filed a Motion to Quash raising grounds identical to those in the writ of habeas corpus—the trial court granted relief on one of the grounds—is the best illustration why the remaining claims were properly denied at this point in the process. Because the issues raised by the writ are better addressed on direct appeal, Appellant has an adequate remedy at law. The trial court properly denied relief. Appellant sought a declaratory judgment from the trial court that the Abuse of Office statute (Section 39.02) should not apply to his conduct. Judge Richardson 107 Ex parte Mattox, 683 S.W.2d 93, 96 (Tex. App.—Austin 1984, pet. ref’d). 108 Id. 109 Ex parte Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007) (citing Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004)). 110 Weise, 55 S.W.3d at 619. 41 properly refused to make this determination as the statute is constitutional.111 Although construing a former version of Section 39.02, the court in Margraves v. State determined the statute was not unconstitutionally vague: “The statute requires that a public servant use government property only in ways that are authorized.”112 However, under Appellant’s interpretation of the Rule of Lenity, it would be unfair to prosecute him for an illegal use of his veto because it has never been done before. The Rule of Lenity is a rule of statutory interpretation—not one of interpreting a defendant’s conduct. “When [the] choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.”113 Section 39.02 is clear and definite. As the Court of Criminal Appeals noted in Cuellar v. State, “Fortunately, Texas courts rarely need resort to the Rule of Lenity to construe its penal provisions. By and large, the Texas Legislature drafted the Texas Penal Code with clarity, precision, and straightforward, well-defined language.”114 There are limitless ways in which a public servant may use government property in unauthorized way. In this case, the State will prove that a coercive threat followed by a retaliatory action constitutes 111 Order Denying Defendant’s Writ, p. 2 [C.R. 464]. 112 Margraves v. State, 34 S.W.3d 912, 921 (Tex. Crim. App. 2000) (overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)). 113 United States v. Bass, 404 U.S. 336, 347 (1971). 114 Cuellar v. State, 70 S.W.3d 815, 822 (Tex. Crim. App. 2002). 42 both Coercion of a Public Servant and Abuse of Office. The grand jury indicted Appellant, and Appellant has the absolute right to dispute whether or not his actions constitute a crime at trial. But this necessarily requires witnesses and evidence and, most importantly, context that can only happen at trial. IV. Separation of Powers Doctrine Allows Judicial Branch to Check Coercive Use of Executive Power. Appellant seeks two extensions of law. First, he asks that this court grant him more power. While arguing one side of the separation of powers doctrine, he seeks dismissal of the indictment because this branch may not scrutinize gubernatorial action. But Appellant further argues that he is entitled to legislative powers such as Speech or Debate privilege and legislative immunity—precisely the type of assumption of power the separation of powers doctrine protects against. Although Texas is a weak governor state, Appellant argues that it is the most powerful branch. Second, Appellant argues that he has a right “not to be tried” akin to double jeopardy. The only possible source for this right would be the political question doctrine, and this is not a case involving political question. Appellant advocates that the separation of powers doctrine be both a shield and a sword. The State posits that the judicial branch is the only proper division of government to resolve a criminal allegation that Appellant illegally abused his 43 power against a specific individual for an unlawful purpose. Applicant argues that allowing a criminal prosecution where there is no allegation of bribery undermines the basic structure of state government. Applicant’s claim is that the indictment – not the Coercion of a Public Official statute – is unconstitutional. This is either an “as applied” challenge or, interpreted in the strongest light, a challenge to the trial court’s jurisdiction. If either of these arguments were correct, the Legislature or the Texas Constitution would exempt a governor from prosecution. The Texas separation of powers provision “reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government.”115 The authority cited in Appellant’s brief discusses the importance of the separation of powers doctrine as it pertains to legislative encroachment on the judicial branch. Appellant fails to cite any authority, however, of how a criminal investigation and an indictment against a public official is a violation of the separation of powers. In Appellant’s view, he could never be prosecuted for a threat or promise made in connection with his power to veto. Surely, this cannot be true. Otherwise, every bribery or extortion prosecution would be barred by the separation of powers doctrine. If, for example, evidence is presented at trial 115 Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990); see also Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1035 (Tex. 1934) (“So important is this division of governmental power that it was provided for in the first section of the first article of the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding Constitution.”). 44 demonstrating that Appellant exchanged his power to veto for money, or Appellant vetoed funding of a special prosecution unit because the unit was investigating allegations of his own misdeeds, the judicial branch would unquestionably have the power to prosecute. Similarly, the Texas Constitution also allows the Governor to fill “all vacancies in State or district offices.”116 Like the veto power, this is a power exclusive to the Governor. If evidence was brought to light that the Governor was soliciting bribes to fill these positions would Appellant’s separation of powers argument prohibit judicial intervention? Here, the Legislature defined the crime and specifically delegated to the judicial branch the discretion to prosecute the crime. This is a proper delegation of constitutional authority. “[The] Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.”117 In the same vein, Appellant also argues that this issue is a nonjusticiable political question. The argument is misplaced. The political question doctrine commonly arises when the judiciary is asked to intervene in the legislature’s impeachment process.118 The political question doctrine also arises when one 116 TEX. CONST. art. IV, § 12. 117 United States v. Brown, 381 U.S. 437, 445 (1965). 118 See Nixon v. United States, 506 U.S. 224, 228 (1993) (Supreme Court declined to intervene and interpret whether full evidentiary impeachment hearing constituted a “trial” in the Senate). 45 branch of government seeks the judiciary to resolve a dispute within its own branch or with another branch.119 In addition to being nonjusticiable political questions, these matters are often not ripe for review. Appellant asserts the same separation of powers argument that Governor Mandel asserted when he was prosecuted for his official acts as governor of Maryland.120 This argument was rejected. The United States Supreme Court rejected the same type of argument posed by a judge prosecuted for committing a crime in connection with his official duties:121 “Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance.” As noted by the Court, even if the complained-of act is an otherwise “lawful” act by a public official, can the act charged be considered lawful when he acted in direct violation of the spirit of the statute? Again, the same argument made by Governor Blagojevich of Illinois was rejected:122 Distilled to its essence, the Governor's position is that the constitutionality of his official actions is simply not subject to judicial 119 See Coleman v. Miller, 307 U.S. 433, 436 (1939) (dispute within the state senate of Kansas about whether the lieutenant governor could cast the deciding vote in the senate); Goldwater v. Carter, 444 U.S. 996, 997 (1979) (political disagreement about whether the President could unilaterally terminate a treaty with Taiwan). 120 See United States v. Mandel, 415 F.Supp. 997, 1003 (D.Md. 1976) (overruled on other grounds) (separation of powers argument rejected). 121 See Ex parte Virginia, 100 U.S. 339 (1879). 122 See Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004). 46 oversight. No Illinois court has ever so held. Such a claim is, in fact, incompatible with the principles of separation of powers and checks and balances that are the foundation for our tripartite system of government. The executive branch, no less than the legislative branch, is bound by the commands of our constitution. The judicial power of the State of Illinois is vested in the courts (Ill. Const.1970, art. VI, § 1), and it is the duty of the judiciary to construe the constitution and determine whether its provisions have been disregarded by either of the other branches of government. If officials of the executive branch have exceeded their lawful authority, the courts have not hesitated and must not hesitate to say so. The separation of powers doctrine does not cloak a public official with immunity from prosecution for abusing his authority. The instant case is not a political question, nor a matter of whether a veto is proper. It is a matter of whether Appellant committed criminal acts in abusing the power that had been bestowed upon him as governor. The grand jury applied the facts to the law and returned an indictment. Appellant argues he did not break the law. The State alleges he did. This is precisely why the justice system exists: to resolve these types of disputes. Appellant’s final argument that relief must be granted to avoid a “deleterious impact on the efficient operation of state government” should also be rejected. This same argument was raised – and rejected – by the United States Supreme Court in Clinton v. Jones.123 In rejecting President Bill Clinton’s request to temporarily stay 123 Clinton v. Jones, 520 U.S. 681, 697–98 (1997) (“[P]etitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest 47 civil proceedings until he completed his term of office, the Supreme Court concluded “if Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation.”124 “The Federal District Court has jurisdiction to decide this case. Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims.”125 The Texas Constitution could have provided an express provision that a governor is immune from prosecution during his term of office. The Texas Legislature could specifically exempt a governor from prosecution for Abuse of Office or Coercion of a Public Official. It has not done so. . Barring a specific prohibition, the separation of powers doctrine requires the judiciary branch to fulfill its constitutional duty under Article 5 of the Texas Constitution. V. A Governor is Not Immune from Criminal Prosecution. Appellant claims he is immune from prosecution because everything he and/or his staff said is privileged from prosecution under the Speech or Debate Clause of the Constitution and/or through the related doctrine of legislative immunity. The United States Supreme Court made it clear in stating “the demands that he devote his undivided time and attention to his public duties. He submits that— given the nature of the office—the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed.”). 124 Id. at 709. 125 Id. at 710. 48 immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”126 And it was particularly not intended to make legislators “super- citizens, immune from criminal responsibility.”127 Moreover, the text of the clause makes it evident that it was intended for legislative discourse, not executive vetoes. The Speech or Debate Clause was intended to apply to legislators communicating with each other and their staffs about the legislative acts they were involved in considering. The instant case, conversely, focuses on a criminal threat made by a member of the executive branch to a public official of a different jurisdiction in an attempt to force that public official to resign. The criminal threat was not a part of a debate among legislators, and the State is not attempting to look behind any piece of legislation. Additionally, the facts at issue may prove to be statements made for political reasons, rather than in consideration of a legislative act, which would place it outside the purview of protection that the Speech or Debate Clause was designed to protect.128 126 United States v. Brewster, 408 U.S. 501, 507 (1972). 127 Brewster, 408 U.S. at 516 & 521 (“It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e. all criminal acts.”). 128 Brewster, 408 U.S. at 512. 49 A. Texas state Speech or Debate Privilege Narrower than federal Speech or Debate Privilege. The Texas Court of Criminal Appeals has analyzed the scope of the Texas Speech or Debate Clause only once. In Mutscher v. State,129 two Members of the House of Representatives and a state employee were convicted of conspiracy to accept a bribe. The testimony at trial included evidence about bills presented at committee meetings, how bills were approved by the committee, and how bills were passed by the House.130 The theory of the prosecution was that the two Members used their vote, influence and powers of their office to procure and assist in the passage of certain legislation.131 Prior to trial, the Members moved to quash the indictment on Speech or Debate privilege grounds.132 The trial court overruled the motion prior to any evidence being produced.133 On appeal, the Members of the Texas Legislature argued that the Speech or Debate provisions of the State and Federal Constitutions barred any inquiry into the vote of a legislator or the motivations behind that vote.134 Unlike the federal constitution, the Texas Constitution has a specific provision directed against abuse of office by public officials. In denying Speech or Debate privilege for the Texas legislators accused of bribery, the Court cited 129 Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974). 130 Mutscher, 514 S.W.2d at 911. 131 Id. at 909. 132 Id. at 913. 133 Id. at 914. 134 Id. 50 Article XVI, Section 41 of the Texas Constitution. The court reasoned that this specific constitutional provision provides the mandate for prosecution of members of the Legislature, executive officials and judicial officers.135 The court rejected the defendants’ proposition that the general provisions of the Speech or Debate clause would bar prosecution.136 Most significantly, the Court of Criminal Appeals decided Mutscher in 1974. The court had the benefit of two of the most important United States Supreme Court cases on this issue: United States v. Johnson137 and United States v. Brewster.138 The more prudent perspective is to acknowledge the Court of Criminal Appeals’ interpretation of the Clause in 1974 after the seminal United States Supreme Court cases were decided in 1966 and 1972. Our Texas court explicitly rejected the broad application of the Speech or Debate Clause as advanced by the U.S. Supreme Court. Appellant’s broad and dated application should equally be rejected. In Texas, our constitutional Speech or Debate privilege cannot be viewed as a protective bar to criminal prosecution given our state’s specific constitutional provision requiring prosecution of public officials. This interpretation is consistent with the Speech or Debate Clause protecting Members from civil liability, but is not the type of absolute protection posited by the Appellant. 135 Id. at 915. 136 Id. 137 United States v. Johnson, 383 U.S. 169 (1966). 138 Brewster, 408 U.S. at 501. 51 Appellant may respond that the crime of bribery is different than Abuse of Official Capacity or Coercion of a Public Servant, and that Mutscher should be read to restrict the Speech or Debate privilege only to bribery offenses. But the principle relied upon by the court was that a criminal act of bribery could not conceivably be interpreted as a legislative act.139 The same principle is applicable to criminal threats and coercion. Additionally, such an argument would still not explain how a governor would be entitled to assert the Speech or Debate privilege when the court read the provision so narrowly for two members of the Legislature. Further, Article XVI, Section 41 is incredibly broad. It reaches conduct far beyond the vagueness complained about in Appellant’s writ, such as “indirect testimonials,” “privileges,” and “personal advantages.”140 It even criminalizes “implied” conduct.141 Moreover, the bribery statute cited in Mutscher was recodified from Article 159 of Vernon’s Annotated Penal Code to Section 36.02 of the Texas Penal Code. The Governor is indicted for violating Section 36.03 of the Texas Penal Code. The court’s analysis in Mutscher would apply to the offenses charged. After analyzing Brewster, the court held that illegal conduct is not part of the legislative process and is not deserving of privilege.142 The trial court allowed 139 Mutscher, 514 S.W.2d at 915. 140 TEX. CONST. art. XVI, § 41. 141 Id. 142 Mutscher, 514 S.W.2d at 905. 52 legislative acts of the defendant to come into evidence.143 B. The Speech or Debate Privilege applies to Members of the Legislature, not a Governor. 1. No governor ever has been afforded Speech or Debate privilege or legislative immunity from criminal prosecution. In 1976, Governor Marvin Mandel of Maryland filed a motion to dismiss his indictment arguing that he was entitled to invoke the doctrine of legislative immunity as a bar to prosecution.144 Governor Mandel argued that “the Maryland Constitution allocates to him as Governor certain legislative functions, among them the discretionary power to recommend legislative matters for the consideration of the General Assembly and the power to approve and veto bills passed by the legislature.”145 Because he participates in the legislative process, Governor Mandel argued that he was entitled to invoke legislative privilege to forbid inquiry into his legislative acts or the motivation behind them. 146 He further argued that the doctrine of legislative immunity should bar the prosecution of his case.147 The trial court denied Governor Mandel’s motion to dismiss and rejected his 143 Id. 144 The trial court addressed this argument in two separate opinions: United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976) (March 31, 1976 opinion) and United States v. Mandel, 415 F.Supp. 1025, 1026–27 (D.Md. 1976) (May 4, 1976 supplemented opinion). 145 Mandel, 415 F.Supp. at 1030. 146 Mandel, 415 F.Supp. at 1030–1031. 147 Mandel, 415 F.Supp. at 997. 53 claim for legislative immunity:148 [A] criminal prosecution of a chief executive officer based on that officer's legislative acts does not threaten the independence of the legislature. No legislator is here being called upon to explain his acts before a ‘hostile judiciary’ as a consequence of a prosecution brought by an ‘unfriendly executive’; no acts of any legislator or of the legislature itself are being called into question. The only alleged legislative acts before the Court are those of the Governor. That is not to say, of course, that exposing the executive to criminal liability for his legislative acts does not indirectly affect the legislative process; it is merely to say that it does not interfere with the due functioning of the legislative process, and that it does not threaten the independence of the legislature. Similarly, when Governor Rod Blagojevich tried this same argument in defense of a civil suit that arose in conjunction with his federal criminal prosecution, the Seventh Circuit Court of Appeals flatly rejected his argument:149 The state constitution’s speech-and-debate provision is limited by its terms to members of the Illinois General Assembly and is plainly inapplicable to Blagojevich. The same would be true of the U.S. Constitution’s Speech or Debate Clause, which applies only to legislators and their aides.150 In the history of Speech or Debate clause jurisprudence, the privilege has not 148 Mandel, 415 F.Supp. at 1031 (citation omitted) (emphasis added). 149 Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 531 (7th Cir. 2011). 150 In this case, the court found that Blagojevich was entitled to legislative immunity based upon federal common law. Judge Posner wrote a lengthy dissent. Citing U.S. v. Gillock, Judge Posner observed that under federal common law of legislative immunity for state officials, criminal prosecution is not barred. Empress Casino, 638 F.3d at 543. Thus, he suggested certifying the question of whether the common law of official immunity in Illinois should permits a suit to go forward against a governor when the suit is based on his performing a legislative act for a criminal purpose to the Supreme Court of Illinois. Id. at 544. 54 been afforded to every legislator who raised it. But in nearly every single federal case cited by Appellant it is a member of the legislature who claims the Speech or Debate privilege.151 The defendants and parties listed are exclusively members of the legislative branch. This is why court opinions refer to the applicability of the Clause to “members” and “legislators.”152 In the history of the Speech or Debate clause jurisprudence, the privilege has never been extended to a governor. 2. The privilege does not extend to all legislative-related topics of conversation. In United States v. Gravel, the Supreme Court held that a United States Senator had no testimonial privilege from being questioned by a federal grand jury about whether he distributed classified government documents because the communications were outside the scope of legislative activity.153 The court also focused on whether the communication was “essential to the deliberations of the Senate” and whether the request by the grand jury would “threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence.”154 Conversely, a governor may sign a bill into law, but a governor cannot introduce a bill, hold a committee hearing on a bill, or amend a bill if he wants to 151 See Exhibit E. 152 U. S. v. Gillock, 445 U.S. 360, 366 n.5 (1980) (“ . . . benefits of the Federal Speech or Debate Clause, which by its terms applies only to ‘Senators and Representatives’”). 153 Gravel v. United States, 408 U.S. 606, 624–625 (1972). 154 Id. at 625. 55 alter it before signing it into law. He simply may sign the bill or veto it. Any communication with the governor is not as “essential part” of the process of a bill becoming a law. It is more similar to the administration of the law. Moreover, even where a member can assert the Speech or Debate privilege, it is limited to past legislative acts. “[I]t is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not ‘speech or debate.’ Likewise, a promise to introduce a bill is not a legislative act.”155 For example, in the trial of Governor Mandel, the trial court rejected the governor’s argument that the privilege applied to any and all discussion relative to his actions.156 C. The common law doctrine of legislative immunity does not make a Texas governor above the law. The Speech or Debate privilege is an evidentiary privilege that may be asserted in both civil and criminal complaints. Legislative immunity, however, prevents public officials from being held civilly liable for their official acts. Appellant infers that legislative immunity and the Speech or Debate privilege are substantially the same, and that legislative immunity may apply to the instant case. The structure of his argument appears to have several steps: 155 United States v. Helstoski, 442 U.S. 477, 490 (1979). 156 Mandel, 415 F.Supp. at 1024. 56 1. Members of the legislature enjoy legislative immunity from civil suits; 2. One of the sources of legislative immunity is the Speech or Debate Clause Privilege; 3. A line-item veto is a legislative activity; 4. Governor enjoys legislative immunity for civil suits because his veto is a legislative activity; 5. Therefore, the Governor should also enjoy Speech or Debate Clause privilege because his veto is a legislative activity. Appellant’s flow is flawed. Several factors have created confusion about the applicability of each. First, the two doctrines are similar in that both protect public officials from being compelled to testify about their past legislative acts. Second, the concepts are intertwined, and the terms are used interchangeably when invoked by a member of the legislature. “Despite the frequent invocation of the federal Speech or Debate Clause in Tenney, the Court has made clear that the holding was grounded on its interpretation of federal common law, not on the Speech or Debate Clause.”157 State courts in Illinois, Maryland and New York have also recognized a distinction.158 Things are further complicated by the interpretation of federal vs. state common law. State courts may look to the federal interpretation of the Speech 157 Gillock, 445 U.S. at 372 n.10. 158 Pulliam v. Allen, 466 U.S. 522, 536–38 (1984); Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719, 736–37 (1980). 57 or Debate Clause, but the process quickly becomes muddled when you combine the state common law on legislative immunity. Characterizing a veto as a legislative act may be sufficient to prevent a governor from being deposed in a civil suit. But no court has ever held the civil immunity provides a privilege against criminal prosecution. Every United States Supreme Court that addresses legislative immunity in the context of the Speech or Debate privilege confirms: immunity is not a bar to criminal prosecution. Instead, the fact that the public official enjoys legislative immunity is precisely why criminal prosecution is the only avenue for justice. In United States v. Gravel, the Supreme Court directly addressed this issue: Article I, s 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.159 In Gillock, the Supreme Court held that “[t]he cases in this Court which have recognized an immunity from civil suit for state officials have presumed the existence of federal criminal liability as a restraining factor on the conduct of state 159 Gravel, 408 U.S. at 627. 58 officials.”160 In O’Shea v. Littleton the Supreme Court explained: Whatever may be the case with respect to civil liability generally, . . . or civil liability for willful corruption, . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. . . . On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress . . . .’161 The Supreme Court repeated this principle again in Imbler v. Pachtman.162 Appellant provides no legal basis for departing from that long-established rule.163 The executive power of veto is powerful, but it cannot be the basis for immunity from prosecution for criminal acts committed in connection with his exercise of such veto. Because it is a specifically enumerated privilege for the legislative department, an expressly enumerated provision of the Texas Constitution is the only grounds for his right to assert that privilege. To hold 160 Gillock, 445 U.S. at 372. 161 O’Shea v. Littleton, 414 U.S. 488 (1974) (emphasis added) (citations omitted). 162 Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights…”). 163 Hutchinson v. Proxmire, 443 U.S. 111, 127–128 (1979) (speech or debate clause did not protect transmittal of defamatory material about wasteful government spending in press release issued by senator). 59 otherwise would be a violation of Texas’ separation of powers clause.164 The text of the Constitution underlies the practical reality: the Speech or Debate privilege is simply not applicable to the work performed by a governor. The Texas Constitution provides this privilege to “members.” While the Lt. Governor is an active member of the Senate and would be afforded the Speech or Debate privilege, the governor is not and should not be afforded the privilege. 164 See TEX [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4062366. Public record. Not legal advice.