Perry, Ex Parte James Richard "Rick"

PD-1067-15

PD-1067-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/18/2015 1:11:35 PM

Accepted 8/18/2015 1:57:10 PM

ABEL ACOSTA

NO. _____________ CLERK

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE JAMES RICHARD “RICK” PERRY,

On Appeal from the 390th Judicial District Court, Travis County, Texas,

Cause No. D-1-DC-14-100139

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.

Anthony G. Buzbee Thomas R. Phillips

State Bar No. 24001820 State Bar No. 00000102

JPMorgan Chase Tower San Jacinto Center

600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500

Houston, Texas 77002 Austin, Texas 78701-4078

Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com

Telephone: 713-223-5393 Telephone: 512-322-2565

Facsimile: 713-223-5909 Facsimile: 512-322-8363

BOTSFORD & ROARK

David L. Botsford

State Bar No. 02687950

1307 West Ave.

Austin, Texas 78701 August 18, 2015

dbotsford@aol.com

Telephone: 512-479-8030

Facsimile: 512-479-8040

ORAL ARGUMENT NOT REQUESTED

Identity of Judge, Parties, and Counsel

The following is a complete list of the names and addresses of all parties and

counsel in this case.

Trial Judge: Honorable Bert Richardson, sitting by appointment;

Court of Criminal Appeals, Supreme Court Building, 201 West 14th

Street, Austin, Texas, 78701.

Appellant: Former Governor James Richard “Rick” Perry, c/o David

Botsford, 1307 West Avenue, Austin, Texas, 78701.

Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower,

600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R.

Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078;

and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701

(Lead Counsel on Appeal).

State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint

Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant

Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511,

Austin, Texas, 78701.

i

Table of Contents

Identity of Judge, Parties, and Counsel...................................................................... i

Index of Authorities ................................................................................................. iii

Statement Regarding Oral Argument ........................................................................1

Statement of the Case.................................................................................................1

Statement of the Procedural History ..........................................................................2

Grounds for Review ...................................................................................................3

Argument....................................................................................................................4

A. Overview ....................................................................................................4

B. Reasons for Review ....................................................................................5

C. Explanation of Reasons for Review ...........................................................7

Prayer for Relief .......................................................................................................19

Certificate of Compliance ........................................................................................20

Certificate of Service ...............................................................................................20

TAB 1: Opinion of the Court of Appeals

TAB 2: Nine Claims Challenging Count I

ii

Index of Authorities

Page(s)

CASES

Abney v. United States,

431 U.S. 651 (1977) ............................................................................................ 13

Citizens United v. Fed. Election Comm’n,

558 U.S. 320 (2010) .............................................................................................. 9

Dombrowski v. Eastland,

387 U.S. 82 (1967) .............................................................................................. 13

Ex parte Boetscher,

812 S.W.2d 600 (Tex. Crim. App. 1991) .....................................................15, 16

Ex parte Brown,

158 S.W.3d 449 (Tex. Crim. App. 2005) ............................................................. 7

Ex parte Elliott,

973 S.W.2d 737 (Tex. App—Austin 1998, pet. ref’d) .................................12, 18

Ex parte Ellis,

309 S.W.3d 71 (Tex. Crim. App. 2010) ............................................................. 17

Ex parte Gill,

413 S.W.3d 425 (Tex. Crim. App. 2013) .....................................................12, 18

Ex parte Kerr,

64 S.W.3d 414 (Tex. Crim. App. 2002) ............................................................... 1

Ex parte Mattox,

683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ........................................ 18

Ex parte Ramzy,

424 S.W.2d 220 (Tex. 1968) ................................................................................ 1

Ex parte Robinson,

641 S.W.2d 552 (Tex. Crim. App. 1982) ........................................................... 13

Ex parte Weise,

55S.W.3d 617 (Tex. 2001).................................................................................. 17

iii

Fulmore v. Lane,

140 S.W. 405 (Tex. 1911).............................................................................14, 17

Helstoski v. Meanor,

442 U.S. 500 (1979) ............................................................................................ 13

Jessen Assocs., Inc. v. Bullock,

531 S.W.2d 593 (Tex. 1976) ........................................................................14, 17

Karenev v. State,

281 SW.3d 428 (Tex. Crim. App. 2008) .............................................................. 9

Pickle v. McCall,

24 S.W. 265 (Tex. 1893)...............................................................................14, 17

State ex rel. Lykos v. Fine,

330 S.W.3d 904 (Tex. Crim. App. 2011) .....................................................12, 17

State v. Moff,

154 S.W.3d 599 (Tex. Crim. App. 2004) ............................................................. 7

United States v. Hollywood Motor Car Co.,

458 U.S. 263 (1982) ............................................................................................ 13

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) .............................................................................................. 9

STATUTES

Tex. Penal Code § 39.02(a)(2) ................................................................................... 4

Tex. Const. art. II, § 1 ................................................................................................ 7

Tex. Const. art. III, § 21 .......................................................................................7, 17

Tex. Const. art. IV, § 14.......................................................................................4, 17

RULES

Tex. R. App. P. 4.1(a) ................................................................................................ 2

Tex. R. App. P. 9.4(i) .............................................................................................. 20

Tex. R. App. P. 66.3(a) ........................................................................................6, 12

iv

Tex. R. App. P. 66.3(b)........................................................................6, 9, 14, 16, 18

Tex. R. App. P. 66.3(c) ........................................................................6, 9, 12, 14, 16

Tex. R. App. P. 66.3(f). ............................................................ 6, 8, 9, 12, 14, 16, 18

Tex. R. App. P. 68.1 .................................................................................................. 1

Tex. R. App. P. 68.2(a) .............................................................................................. 2

v

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry),

and pursuant to Tex. R. App. P. 68.1, presents this Petition for Discretionary

Review, and would respectfully show this Honorable Court the following:

Statement Regarding Oral Argument

Governor Perry does not request oral argument because the grounds

presented, while of constitutional magnitude, can be resolved solely upon briefs.

Oral argument would be unlikely to aid the Court’s understanding and disposition

of the issues while it would almost certainly contribute to delay the resolution of

this appeal. Such added delay, even if only for a few days or weeks, would be

inconsistent with the “purpose of the writ of habeas corpus,” which is “to obtain a

speedy and effective adjudication of a person’s right to liberation from illegal

restraint.” Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002) (quoting Ex

parte Ramzy, 424 S.W.2d 220, 223 (Tex. 1968)). Nonetheless, Governor Perry is

willing to present oral argument should the Court request, but he respectfully

requests that any argument be scheduled on an expedited basis.

Statement of the Case

In August 2014, a two-count indictment was returned against Governor

Perry for violating Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II, coercion of public

servant), and 39.02(a)(2) (Count I, abuse of official capacity) of the Texas Penal

1

Code by threatening to exercise, and then actually exercising, the authority to veto

appropriations vested in the Governor by the Texas Constitution. CR4-5.

Immediately thereafter, Governor Perry filed an application for pretrial writ of

habeas corpus contesting the legality of his restraint and seeking to bar his

prosecution on both counts, primarily on constitutional grounds. CR11. After the

district court denied relief, CR464-484, he took an appeal to the Third Court of

Appeals. In a published opinion, that court granted relief on Count II because the

statute was unconstitutionally overbroad, TAB 1 at 32-97, but denied relief on

Count I on cognizability grounds. Id. at 10-32. Although the court was overtly

skeptical about Count 1, id. at 31-32, it denied relief because Governor Perry’s

challenge was not “facial,” but merely “as applied.” Id. at 10-32. Governor Perry

brings this petition for discretionary review to challenge that denial.

Statement of the Procedural History

On July 24, 2015, the Third Court of Appeals issued a published opinion.

See TAB 1. Governor Perry did not file a motion for rehearing. This petition for

discretionary review is timely if filed by Monday, August 24, 2015. See

Tex. R. App. P. 4.1(a); Tex. R. App. P. 68.2(a).

2

Grounds for Review

1. Whether the Third Court of Appeals erred by holding that all

nine of Governor Perry’s constitutional challenges to Count I were “as

applied” challenges to the abuse of official capacity statute and

therefore not cognizable in a pretrial application for writ of habeas

corpus?1

2. Whether the Third Court of Appeals erred by holding that

Governor Perry’s challenges to Count I based upon Article II,

Section I of the Texas Constitution — separation of powers — were

“as applied” challenges to the abuse of official capacity statute and

therefore not cognizable in a pretrial application for writ of habeas

corpus?2

3. Whether the Third Court of Appeals erred by holding that

Governor Perry’s challenges to Count I based upon Article III,

Section 21 of the Texas Constitution — Speech and Debate Clause

and common law legislative immunity — were “as applied”

challenges to the abuse of official capacity statute and therefore not

cognizable in a pretrial application for writ of habeas corpus?3

4. Whether, even if all of Governor Perry’s constitutional

challenges to Count I were in fact “as applied” challenges, the Third

Court of Appeals erred in failing to recognize that the same rationale

that requires “exceptions” for other “as applied” challenges —

specifically prosecutions that would constitute double jeopardy or

would be barred by limitations — should apply, with even greater

force, to a prosecution based solely on a defendant’s exercise of

conduct protected by the Speech and Debate Clause and the

Separation of Powers provisions of the Texas Constitution and the

common law doctrine of legislative immunity?4

1

See CR14-16, 41-42, 48-49, 409, 417-419 and 464-473.

2

See CR14-16, 41-42, 48-49, 409, 417-419 and 464-473.

3

See CR14-16, 41-42, 48-49, 409, 417-419 and 464-473.

4

See CR14-16, 41-42, 48-49, 409, 417-419 and 464-473.

3

Argument

A. Overview

Count I alleges that Governor Perry committed abuse of official capacity

under Tex. Penal Code § 39.02(a)(2). CR4-5. The gist of this charge is that he

“misused” government property by vetoing funding for the Travis County Public

Integrity Unit (“PIU”). CR4-5.5

Governor Perry filed a pretrial application for writ of habeas corpus

challenging the legality of his restraint and specifically “seeking to bar the

prosecution” on Count I based on nine constitutional claims, CR11 at 17-18, which

are set forth in the court of appeals opinion, see TAB 1 at 6-7, and reproduced at

TAB 2.6 Governor Perry freely acknowledged below that a true “as applied”

challenge to the constitutionality of a statute usually cannot be decided in a pretrial

5

The Governor has an absolute constitutional right and duty to approve or disapprove “items of

appropriation” under Tex. Const. art. IV, § 14. While Count I may not specifically reference his

veto, the State conceded that the gravamen of Count I is the exercise of his “gubernatorial power

to veto” in its “Bill of Particulars and Amendment of Indictment,” which states in part:

“Defendant Perry misused his gubernatorial power to veto a legislatively-approved appropriation

of funds for the Public Integrity Section of the Travis County District Attorney Office.” March

2, 2015, Supplemental Clerk’s Record at 4. The Bill and Amendment goes on to say that

Governor Perry allegedly “misused government property that was subject to his custody and

possession in that he used the lawful power of gubernatorial veto for an unlawful purpose, to

wit: eliminating funding for the Public Integrity Unit after Ms. Lehmberg refused to resign from

her elected position as Travis County Attorney.” Id. at 5 (emphasis added).

6

The writ also contained eleven challenges to Count II, with only one of those being on non-

constitutional grounds. CR17-19; TAB 1 at 7-8. Seven of those were found to be non-

cognizable by the court of appeals.

4

writ. CR41-42,417-19; App. Br. at 28-29. But he maintained that his challenges

are the functional equivalent of facial challenges, and so should be cognizable in a

pretrial habeas proceeding. App. Br. at 28-29.

First, his challenges rely only on the indictment and the statutes, not

underlying facts or circumstances that must be proven at a hearing or trial. Id.

Second, because Governor Perry seeks to vindicate constitutional rights and

powers that are essential to the efficacy of his former office and of paramount

public importance, those claims should be addressed before trial. Id. He seeks to

vindicate his right not to be tried at all, and that right is virtually meaningless if it

cannot be asserted and vindicated until after trial. Id. Indeed, the mere act of

deferring resolution until trial is constitutionally offensive. Id.

B. Reasons for Review

Governor Perry’s petition presents exceptionally important issues regarding

the cognizability of constitutional claims in a pretrial habeas corpus proceeding.

The court of appeals recognized the district court’s observations that Governor

Perry’s claims are “compelling,” “unique,” “important,” and “certainly deserv[ing]

of careful consideration in an appropriate forum.” TAB 1 at 8. But it also agreed

with the district court that, given the “binding precedents” from this Court, neither

court was authorized to consider those important claims in a habeas corpus

proceeding. TAB 1 at 2, 25-32, 97. The principal rationale for this conclusion

5

was that all of Governor Perry’s claims to bar the prosecution were merely “as

applied” constitutional challenges, regardless of how they were phrased. TAB 1 at

25-32. Both courts concluded that, in the absence of definitive authority from this

Court, they were constrained to deny relief.

The court of appeals’ finding of non-cognizability is the error that, as

explained and demonstrated below, warrant’s this Court’s review. Review is

justified because the court’s opinion ignores and conflicts with its own prior

opinions, with opinions of this Court, and with opinions of the Supreme Court of

the United States. Tex. R. App. P. 66.3(a & c). Furthermore, review should also

be granted because the court of appeals expressly noted the need for this Court’s

review, stating that “[i]f the Texas criminal justice system should operate

differently, that change must come from the Court of Criminal Appeals or the

Legislature.” TAB 1 at 32. If this Court disagrees, then it should grant review on

the alternative grounds that the court of appeals has decided important questions of

state law that have not been but should be decided by this Court. Tex. R. App. P.

66.3(b). Finally, review should also be granted because the court failed to address

critical arguments and authorities advanced by Governor Perry. Tex. R. App. P.

66.3(f).

Simply stated, this Court should grant review to explain that pretrial habeas

corpus relief must be available in the rare circumstances when, as here, the State

6

seeks to criminalize conduct that the Constitution itself authorizes and protects

from judicial scrutiny.

C. Explanation of Reasons for Review

With regard to cognizability,7 the court of appeals’ premises were erroneous

and its conclusions contrary to the spirit of this Court’s case law. Even if “as

applied” challenges were never cognizable in habeas, which is of course incorrect,

several of Governor Perry’s challenges to Count I were facial, not as applied. His

claims that Count I violates Separation of Powers,8 the Speech and Debate Clause,9

and the doctrine of legislative immunity flowing therefrom are all constitutionally-

grounded assertions “that the trial court lacked the power to proceed” at all, not

merely “as applied” challenges to the validity of a particular statute or the

sufficiency of this indictment. Discretionary review should be granted under

Tex. R. App. P. 66.3(b, c & f).

The court of appeals never analyzed whether, under this Court’s precedents,

such challenges should be characterized as “facial,” “as applied,” or a cognizable

exception to the “as applied” prohibition. Instead, it merely announced that

7

The court of appeals properly used a de novo standard of review to determine cognizability,

TAB 1 at 10 n.24, which is also the standard of review that should be applied if discretionary

review is granted. See Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005); State v.

Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

8

Tex. Const. art. II, § 1.

9

Tex. Const. art. III, § 21.

7

Governor Perry himself had labeled them as “as applied.” TAB 1 at 11. Yet the

court implicitly acknowledged that this was not quite true, as it observed that

“Perry himself phrased virtually all of these claims in terms of the statutes’

constitutionality `as applied’ to him and his role as Governor at the time.” TAB 1

at 11 (emphasis added). But “virtually all” is not “all,” and the court performed

absolutely no analysis on those two challenges — claims 6 and 7 regarding the

Speech and Debate Clause and related separation of powers claims — that were

not presented as “as applied” challenges.10 See TAB 2. But in the thirty-two

pages addressing Perry’s challenges to Count I, the court’s only reference to these

doctrines comes in describing Perry’s arguments. The court’s failure to analyze or

decide these claims is, by itself, sufficient to justify discretionary view under

Tex. R. App. P. 66.3(f).

But more fundamentally, even if the court of appeals had actually analyzed

all of Governor Perry’s claims and determined that they were “as applied,” its

10

The court of appeals also included seven of the claims challenging Count II, thus making a

total of sixteen supposedly “as applied” challenges, rather than (at most) fourteen. The court of

appeals repeated the number “sixteen” a total of ten times in its opinion as the number of “as

applied” claims made, TAB #1 at 9, 10 (twice), 11 (twice), 17 (twice), 20, 22 and 32, but it never

explained why Governor Perry’s separation of powers and Speech or Debate Clause claims had

been included in that total. This failure alone justifies discretionary review under

Tex. R. App. P. 66.3(f).

8

decision to deny relief based on this “magic label” approach would contravene this

Court’s functional approach to deciding when a claim is cognizable in habeas.11

Remarkably, the court of appeals recited, and discussed at length, various

functional and common-sense tests and standards that this Court has used to

demarcate what is cognizable in habeas from what is not. It noted that this Court

will grant habeas relief when double jeopardy has attached to a subsequent

prosecution (TAB 1 at 21, 30), or when a prosecution would be barred by

limitations (TAB 1 at 21, 23). But it apparently felt it lacked the authority to

examine the rationale for these outcomes, must less whether that rationale

mandates the same result here. All that seemed to matter to that court was the

11

Because this Court has never defined the parameters of an “as applied” challenge, Governor

Perry relied upon Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2008) (Cochran, J.,

concurring, joined by Price, Womack, and Johnson, JJ.) for the proposition that “[a] facial

challenge is based solely upon the face of the penal statute and the charging instrument, while

an applied challenge depends upon the evidence adduced at a trial or hearing.” (emphasis added).

See CR41 (writ application), CR417-419 (reply to State’s answer to the writ); App.Br. at 34;

App. Reply. Br. at 19. Accordingly, Governor Perry argued that he was not making “typical” or

“true” “as applied” challenges, as none of his issues required evidence. The court of appeals

discounted the concurring opinion in Karenev as providing “little support for Perry’s notion that

his `as-applied-to-the- indictment’ constitutional challenges should be considered tantamount to

facial challenges, let along provide[] guidance regarding the cognizability of such claims on

pretrial habeas.” TAB 1 at 29-30, n.96. The court of appeals’ pronouncements about Karenev,

given the absence of a definition from this Court, merits this Court’s review under Tex. R. App.

P. 66.3(b & c).

Similarly, the court did not address Governor Perry’s reliance, see App. Br. at 33, on the U.S.

Supreme Court’s pronouncement that “the distinction between facial and as-applied challenges is

not so well defined that it has some automatic effect or that it must always control the pleadings

and disposition in every case involving a constitutional challenge,” Citizens United v. Fed.

Election Comm’n, 558 U.S. 320, 331 (2010); see also United States v. Nat’l Treasury Emps.

Union, 513 U.S. 454, 477-78 (1995) (contrasting “a facial challenge” with “a narrower

remedy”). This failure may well justify review under Tex. R. App. P. 66.3(f).

9

absence of binding precedent from this Court permitting pretrial review against a

prosecution presenting the exact circumstances presented here (a prosecution of a

Texas Governor for threatening to exercise, and then exercising, a veto).

Had the court of appeals followed this Court’s guidance, rather than

deeming itself disempowered to do so, it would have concluded that this Court’s

precedents in fact compelled granting the writ on all of Governor Perry’s claims.

Governor Perry easily satisfies all the standards for extraordinary relief announced

by this Court and actually discussed by the court of appeals:

Court of Criminal Appeals

Why Governor Perry

standards correctly quoted

satisfies each standard

by court of appeals

Habeas is an “extraordinary remedy The court acknowledged this to be an

(TAB 1 at 9) extraordinary case (TAB 1 at 31-32)

Habeas to be used “only in very Prosecuting a Governor for veto a bill

limited circumstances” (TAB 1 at 9) is unprecedented; remedying that

abuse is a “very limited circumstance”

Habeas is “reserved for situations in Not merely a governor’s own

which the protection of the applicant’s constitutional rights, but the

substantive rights or the conservation preservation of each branch’s separate

of judicial resources would be best and enumerated powers are threatened

served by interlocutory review” (TAB when an officeholder is indicted, with

1 at 9) no allegation of bribery or corruption,

for merely doing his job

10

Habeas is “not available to ‘test the Governor Perry does not challenge the

sufficiency’ of the charging sufficiency of this particular

instrument” (TAB 1 at 12, 14), and indictment in his writ, and certainly

thus not available to challenge an does not allege that it merely contains

indictment’s failure to include an a technical defect; nor are his

element (like mens rea) (TAB 1 at 13), challenges hypothetical or speculative

or a “hypothetical” complaint (like a

pre-trial as applied challenge to a

sentencing statute) (TAB 1 at 15-16 &

n.52), or where it would function like a

“declaratory judgment” (TAB 1 at 16)

Habeas is instead available “where the The gist of Governor Perry’s claims

alleged defect would bring into are that the judicial branch cannot

question the trial court’s power to proceed against a Governor for

proceed” (TAB 1 at 12) threatening or exercising the veto itself

Examples of where habeas would lie As described below, this proves too

include challenges based on limitations much—limitations and double

(TAB 1 at 12), or on facial jeopardy are not less “applied” to a

unconstitutionality (TAB 1 at 13) particular defendant than the claims

urged by Governor Perry

See also TAB 1 at 26 (summarizing some of these points). The court of appeals

failed to recognize that, on every score, Perry’s claims align with those that this

Court has allowed, not those it has rejected. By drawing a wholly incorrect lesson

from the cases it described in such detail, the court of appeals applied the wrong

11

legal standard and failed to faithfully apply this Court’s case law, justifying

discretionary review.12

Additionally, because of the court of appeals’ erroneous framework for

analyzing the question, it is unsurprising that its ultimate result was wrong. If the

court truly believed its key propositions — (1) that “a `facial’ constitutional

challenge seeks to establish that the statute is unconstitutional and unenforceable

as to any person,’” TAB 1 at 11 (quoting State ex rel. Lykos v. Fine, 330 S.W.3d

904, 908 (Tex. Crim. App. 2011) (emphasis added), and (2) that only a facial

challenge meeting that precise description can be heard in habeas — then it would

be forced to conclude, for instance, that a habeas petitioner asserting double

jeopardy must await trial to litigate that claim. After all, double jeopardy is the

ultimate “as applied” challenge. Far from asserting that a criminal statute is

“unconstitutional and unenforceable as to any person,” a double jeopardy claim

asserts that one particular defendant has already been tried and thus cannot be tried

again. But if the standard that the court of appeals applied against Governor Perry

12

For instance, the court of appeals failed to acknowledge or address prior cases relied upon by

Governor Perry, see App. Br. at 40, where violations of the Separation of Powers Clause have

been considered in pretrial habeas cases. See, e.g., Ex parte Gill, 413 S.W.3d 425, 431-32 (Tex.

Crim. App. 2013) (considering but rejecting on the merits an asserted violation of the Separation

of Powers Clause); Ex parte Elliott, 973 S.W.2d 737, 738-43 (Tex. App.—Austin 1998, pet.

ref’d) (same). This failure justifies discretionary review under Tex. R. App. P. 66.3(f). It also

demonstrates that the instant opinion conflicts not only with this Court’s decision in Gill, but

with the court of appeals’ own decision in Elliott. These conflicts justify discretionary review

under Tex. R. App. P. 66.3(a & c).

12

were to be applied in such a case, the unfortunate defendant would simply have to

suffer a second trial before having any opportunity to “vindicate” his right not to

have been put to the second trial.

Yet the court of appeals did not advocate this absurd result. Rather, it

acknowledged that double jeopardy claims can be brought in habeas, despite

obviously constituting an “as applied” challenge. It viewed situations like double

jeopardy and limitations as “exceptions,” TAB 1 at 13, but then, inexplicably,

failed to examine whether the reason that they were “exceptions” applied just as

equally to Governor Perry’s claims under the Speech and Debate Clause or the

constitutional separation of powers.13

13

The court of appeals cursorily acknowledged Governor Perry’s “second set of arguments,” see

App. Br. at 35-37, based upon claims that involve a “right not to be tried.” TAB 1 at 20-21. But

it wholly failed to address his arguments and cases. Specifically, Governor Perry relied upon Ex

parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982) and Abney v. United States, 431 U.S.

651 (1977). In Abney, as clarified by United States v. Hollywood Motor Car Co., 458 U.S. 263,

266 (1982), the Supreme Court extended immediate interlocutory appeal to a defendant asserting

a double jeopardy claim because the Fifth Amendment right not to be put in jeopardy a second

time involved “a right not to be tried” and “to enjoy the full protection of the Clause,” the claim

“must be reviewable before that subsequent exposure occurs.” Id. at 266 (quoting Abney, 431

U.S. at 662). Robinson followed Abney and found double jeopardy claims to be cognizable in

pretrial habeas corpus.

Governor Perry also relied upon the Supreme Court’s opinion in Helstoski v. Meanor, 442

U.S. 500 (1979), see App. Br. at 35-36, which followed the reasoning of Abney and allowed

immediate interlocutory appeal in a criminal case to assert the immunity conferred by the Speech

or Debate Clause of the U.S. Constitution. Critical to the holding was the Supreme Court’s

conclusion that the Speech or Debate Clause protects legislators “not only from the

consequences of litigation’s results but also from the burden of defending themselves,”

Helstoski, supra, at 508 (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)), which right

would have been lost if review did not occur prior to a trial.

13

If the court of appeals had analyzed, rather than ignored, that question, it is

hard to imagine that it could have ultimately concluded that Governor Perry’s

claims were non-cognizable. After all, the rationales that it offered for the

“exceptions” involving double jeopardy and limitations apply at least as clearly to

Governor Perry’s case, because they all challenge the trial court’s “power to

proceed” at all. TAB 1 at 13 (internal quotation omitted). If a trial court cannot

proceed to trial when the defendant invokes the Double Jeopardy Clause, then

neither should it proceed to trial when the very trial itself would violate the

constitutional separation of powers, or when an element of the offense is conduct

that is privileged under the Speech or Debate Clause and hence subject to

legislative immunity from being used. Given this point, this Court’s cases require

considering Governor Perry’s challenges to Count I now, and discretionary review

should be granted under Tex. R. App. P. 66.3(b & c).

Finally, this sensible result — that Governor Perry’s challenges are no more

or less cognizable than, for instance, double jeopardy or limitations challenges —

Because a veto of any “item[] of appropriations” is a legislative act under Texas’ Speech or

Debate Clause, see Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 598 (Tex. 1976) (governor’s

“veto power is a legislative function and not an executive function”); Fulmore v. Lane, 140 S.W.

405, 411 (Tex. 1911); Pickle v. McCall, 24 S.W. 265, 268 (Tex. 1893), Governor Perry argued

that the underlying rationale of Helstoski, Abney and Robinson dictated that his separation of

powers and Speech or Debate Clause claims must be cognizable in pretrial habeas in order to

protect his right not to be prosecuted for his gubernatorial veto. Because the court failed to

discuss Governor Perry’s reliance upon Helstoski, Abney and Robinson, and their underlying

rationale is inconsistent with the court’s conclusion of non-cognizability, discretionary review is

justified under Tex. R. App. P. 66.3(c & f).

14

would leave this Court’s jurisprudence wholly intact. Reviewing Governor Perry’s

Count I challenges, or at a minimum, those based upon separation of powers and

the Speech or Debate Clause would in no way upset the principle that classic “as

applied” challenges are not cognizable in habeas; it would in no way usher in the

flood of premature, fact bound individuated challenges that this Court has

determined to be non-cognizable. Likewise, it would not diminish the principle

that “facial” challenges typically are cognizable in habeas.

While the facial/as-applied dichotomy may resolve the vast bulk of cases,

what the court of appeals missed was that they are only general descriptions of the

true test, which is whether a claim challenges the judiciary’s power to proceed and

would result in the immediate release of the applicant, as opposed to some lesser

sort of premature, individuated remedy; hence the “exceptions” for double

jeopardy and limitations. Nothing in any case previously decided by this Court

demands that constitutional challenges to the trial court’s authority to proceed with

a prosecution must be ignored in pretrial habeas if they arise under the Speech and

Debate Clause but can be reviewed if they arise under the Double Jeopardy Clause.

The same governing principle requires that both be cognizable. While the court of

appeals expressed confusion that, in Ex parte Boetscher, 812 S.W.2d 600 (Tex.

15

Crim. App. 1991)14 (and perhaps elsewhere), this Court “employ[ed] `as applied’

phrasing” even as its “analysis resembled that in a conventional facial challenge,”

TAB 1 at 28, there is nothing surprising about this at all.15 This Court was focused

on the common-sense, functional outcome based on a meaningful principle

separating cognizable from non-cognizable claims; it was not obsessed with which

arbitrary label to affix to the claim.16

14

In Boetscher, the defendant was charged with criminal nonsupport of his children, which a

statute enhanced to a felony because he resided out of state. 812 S.W.2d 600, 601 (Tex. Crim.

App. 1991). He brought a pretrial habeas proceeding to challenge the enhancement provision of

the statute on equal-protection grounds “as applied to the unusual circumstances of his case”

(i.e., his out-of-state residence at the time of the offense). Id. at 603. The indictment specifically

stated that “the defendant was then residing in another state, to-wit: Michigan,” at the time of the

offense. Id. at 602. This Court held that this as- applied-to-the-indictment challenge was

cognizable in pretrial habeas, sustained the challenge, and ordered the indictment dismissed. Id.

at 603-04. This Court also expressly declined to consider whether the statute would be

constitutional as applied in other scenarios. Id. at 604 n.8.

15

The court of appeals struggled mightily and at great length to classify Boetscher as either an

“as applied” or “facial” challenge. See TAB 1 at 17-20, 22-24, 27-29. This effort was needless.

The child-support statute was obviously not invalid as to everyone; those who would flee the

jurisdiction to avoid payment could well justify heightened punishment, and this Court did not

decide otherwise. So it was at least “as applied” in the sense that the court of appeals uses the

term. The reason that the label is not of absolute and overriding significance is that this Court

has recognized that functionally, the particular constitutional challenge raised — even if not a

pure “facial” challenge — cut to the power of the courts to proceed because an unconstitutional

impediment to the federally protected right to travel could not be the basis for a prosecution.

16

Because this Court has specifically recognized the pretrial cognizability of as-applied-to- the-

indictment challenges in Boetscher, discretionary review is justified under Tex. R. App. P.

66.3(c). Furthermore, the court’s conclusion that Boetscher is distinguishable from Governor

Perry’s separation of powers and Speech or Debate Clause related claims, see TAB 1 at 28-29,

justifies review under Tex. R. App. P. 66.3(b, c & f).

16

In fact, the court of appeals at least implicitly acknowledged that this Court

rejected the cognizability of habeas claims in Weise17 and Ellis18 — key cases for

the court of appeals — for reasons wholly unrelated to anything about Governor

Perry’s challenges to Count I. Those challenges were about “the sufficiency of the

charging instrument,” TAB 1 at 14 (internal quotation omitted), in Weise because

of the alleged omission of a state-of-mind allegation, and in Ellis because of the

assertion that the money-laundering statute “did not apply to checks.” TAB 1 at

14. But Governor Perry is not alleging any technical mistake in the indictment,

much less seeking a narrowing construction of the statute. To the contrary, he is

arguing that the trial court cannot proceed because the specific constitutional

provisions he invokes bars those proceedings.19

That argument is why Governor Perry’s claims are not meaningfully

different for cognizability purposes from those raised by defendants who invoke

17

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

18

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

19

The same analysis applies to Lykos, supra, which the court addressed at TAB 1 at 15. A

capital defendant has no pre-trial basis to challenge a sentencing statute “as applied” to him

before sentencing — that is what an appeal is for — precisely because there is no question that

the trial court does have power to impose a sentence on someone who is duly convicted. By

contrast, in this case, Governor Perry contends that the trial court does not have constitutional

power to compel him to stand trial for a gubernatorial veto under Tex. Const. art. IV, § 14

because it is an act in his legislative capacity, see Jessen Assocs., 531 S.W.2d at 598; Fulmore,

140 S.W. at 411; Pickle, 24 S.W. at 268, entitled to protection under the Speech or Debate

Clause embodied in Tex. Const. art. III, § 21.

17

limitations or double jeopardy. Those defendants are not arguing that there is

something technically wrong with or missing from the indictment, or that the

statute itself needs to be read in a narrower way. They are saying — much like

Governor Perry is here — that separate and independent constitutional provisions

eliminate the power of the courts to proceed.20 That argument does not require

showing that the statute is always unconstitutional. That is exactly why this Court

and the court of appeals have entertained the merits of separation of powers

challenges in pretrial habeas proceedings in Ex parte Gill, 413 S.W.3d at 431-32

and Ex parte Elliott, 973 S.W.2d at 738-43.

A conclusion that Governor Perry’s constitutional challenges are cognizable,

in short, requires no change to this Court’s jurisprudence, but simply requires

faithful adherence to this Court’s precedents and application of the same type of

analysis by which this Court found double jeopardy claims to be cognizable in

Texas pretrial habeas. And given that nothing in this case threatens the current law

of Texas criminal procedure, it is all the more important for this Court to prevent

20

Governor Perry also relied upon Ex parte Mattox, 683 S.W.2d 93, 95-96 (Tex. App.—Austin

1984, pet. ref’d), App. Reply. Br. at 20-21, where this same court of appeals affirmatively

acknowledged its authority to consider and grant habeas relief upon a challenge to the legal

authority of the State to prosecute the accused. Id. This is exactly the challenge that Governor

Perry has made, and in Mattox, the court did examine the merits of Mattox’s third and fourth

issues challenging the constitutionality of the commercial bribery statute as “vague on its face

and as applied to the facts alleged in the indictment.” Id. The instant opinion therefore conflicts

with the court’s prior decision in Mattox and given the court’s failure to address it, discretionary

review is appropriate under Tex. R. App. P. 66.3(b & f).

18

the judicial system from being complicit in undermining the very structure of

Texas government.

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully

prays that this Court grant discretionary review, establish an expedited briefing

schedule, and thereafter reverse the judgment of the court of appeals denying

relief.

Respectfully submitted,

THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.

/s/ Anthony G. Buzbee /s/ Thomas R. Phillips

Anthony G. Buzbee Thomas R. Phillips

State Bar No. 24001820 State Bar No. 00000102

JPMorgan Chase Tower San Jacinto Center

600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500

Houston, Texas 77002 Austin, Texas 78701-4078

Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com

Telephone: 713-223-5393 Telephone: 512-322-2565

Facsimile: 713-223-5909 Facsimile: 512-322-8363

BOTSFORD & ROARK

/s/ David L. Botsford

David L. Botsford

State Bar No. 02687950

1307 West Ave.

Austin, Texas 78701

dbotsford@aol.com

Telephone: 512-479-8030

Facsimile: 512-479-8040

19

Certificate of Compliance

I hereby certify that this document contains 4,492 words in the portions of

the document that are subject to the word limits of Texas Rule of Appellate

Procedure 9.4(i), as measured by counsel’s word-processing software.

/s/ David L. Botsford

David L. Botsford

Certificate of Service

This is to certify that a true and complete copy of this document has been

emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David

Gonzalez at david@sg-llp.com and also mailed to the State Prosecuting Attorney,

P.O. Box 12405, Capital Station, Austin, Texas, 78711, on the same date it was

electronically filed with the Clerk of the Court of Criminal Appeals.

/s/ David L. Botsford

David L. Botsford

20

TAB 1

Opinion of the Court of Appeals

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-15-00063-CR

Ex parte James Richard “Rick” Perry

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

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

OPINION

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

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

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

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

public renown.

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

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

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

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

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

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

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

1

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

at 5 n.3.

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

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

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

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

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

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

pretrial habeas corpus.

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

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

recognizing that defendants may bring such facial constitutional challenges through pretrial

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

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

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

accordingly, cannot be enforced.

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

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

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

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

is based, that charge must be dismissed.

2

Id. at 9.

2

BACKGROUND

The indictment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3

Tex. Penal Code § 39.02(a)(2).

4

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

3

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

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

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

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

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

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

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

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

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

5

Tex. R. Civ. P. 91.

6

Id. R. 166a.

7

Id. R. 91a.

8

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

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

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

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

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

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

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

9

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

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

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

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

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

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

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

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

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

10

Id. at 919.

4

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

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

the Court of Criminal Appeals instructs us otherwise.11

Proceedings below

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

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

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

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

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

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

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

regarding a pending prosecution.14

11

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

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

12

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

610 S.W.2d 479, 480 (Tex. Crim. App. 1980); Ex parte Powell, 558 S.W.2d 480, 481 (Tex. Crim.

App. 1977); Ex parte Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978); Ex parte Strother,

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

App. 1965)).

13

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

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

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

14

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

5

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

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

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

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

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

Fourteenth Amendments to the Constitution of the United States as applied

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

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

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

appropriation of State funds.

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

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

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

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

gubernatorial veto of any appropriation of State funds.

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

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

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

Constitution.

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

separation of powers between the various departments of government that is

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

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

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

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

of Article III, Section 21 of the Texas Constitution.

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

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

15

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

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

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

6

necessarily based on evidence privileged by the Speech and Debate Clause

of Article III, Section 21 of the Texas Constitution.

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

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

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

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

21 of [t]he Texas Constitution.

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

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

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

Constitution of the United States.

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

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

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

Constitution.

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

claims:

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

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

unconstitutionally overbroad on its face.

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

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

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

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

unconstitutionally vague on its face.

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

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

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

the United States Constitution because it is unconstitutionally vague as

applied.

7

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

Constitution because it is unconstitutionally vague as applied.

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

the United States Constitution because it is unconstitutionally overbroad as

applied.

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

Constitution because it is unconstitutionally overbroad as applied.

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

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

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

Constitution.

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

separation of powers between the various departments of government that is

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

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

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

Constitution.16

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

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

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

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

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

16

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

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

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

17

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

18

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

“Constitutional and Criminal Law Experts”).

8

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

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

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

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

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

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

‘extraordinary remedy’” and should not be “‘misused to secure pretrial appellate review of matters

that in actual fact should not be put before appellate courts at the pretrial stage.’”20 The court has

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

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

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

interlocutory review.”22

The district court thus proceeded immediately to that threshold inquiry and

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

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

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

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

19

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

(Tex. Crim. App. 2010)).

20

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

21

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

22

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

9

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

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

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

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

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

that both sets of rulings were in error.

COGNIZABILITY ISSUES

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

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

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

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

Texas” on which the district court relied.25

23

Order at 10.

24

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

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

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

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

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

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

25

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

to case authorities.

10

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

cognizable in pretrial habeas corpus

The district court emphasized several recent Court of Criminal Appeals decisions

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

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

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

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

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

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

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

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

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

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

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

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

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

as Governor at the time.

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

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

26

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

27

Id. at 908.

28

55 S.W.3d 617.

11

“whether a pretrial writ of habeas corpus may issue on the ground that a penal statute is being

unconstitutionally applied because of the allegations in the indictment or information.”29 The

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

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

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

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

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

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

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

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

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

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

29

Id. at 618, 619.

30

Id. at 618-19.

31

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

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

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

32

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

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

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

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

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

returned by irregularly empaneled grand jury)).

33

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

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

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

12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34

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

35

Id. at 620-21.

36

Id. at 621 (emphasis in original).

37

Id.

38

Id.

39

309 S.W.3d 71.

13

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

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

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

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

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

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

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

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

challenge.”42

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

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

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

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

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

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

40

Id. at 75.

41

Id. at 76-77.

42

Id. at 80-82.

43

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

44

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

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

14

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

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

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

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

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

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

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

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

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

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

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

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

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

conditionally granted relief.51

45

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

46

Id. at 81.

47

330 S.W.3d 904.

48

Id. at 906.

49

See id. at 906-08.

50

Id. at 906-07.

51

Id. at 919-20.

15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

52

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

constitutional complaint).

53

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

54

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

55

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

56

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

16

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

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

But Perry insists these precedents are distinguishable

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ex parte Boetscher.58

57

Order at 6.

58

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

17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

59

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

60

Id. at 603.

61

Id. at 601 n.2.

62

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

63

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

64

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

18

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

delivery of hashish.65

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

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

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

The court subsequently observed that statutory amendments had changed the enhancement

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

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

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

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

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

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

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

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

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

65

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

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

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

66

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

67

Id. at 603 (emphasis in original).

68

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

69

Id. at 604.

19

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

state and then flee.”70

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

70

Id. at 604 n.8.

71

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

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

20

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

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

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

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

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

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

acts at all.

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

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

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

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

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

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

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

72

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

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

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

73

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

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

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

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

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

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

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

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

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

21

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

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

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

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

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

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

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

Department on the other governmental branches.

The State attacks Perry’s proposed distinctions

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

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

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

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

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

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

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

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

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

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

74

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

22

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

in the indictment.”

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

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

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

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

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

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

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

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

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

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

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

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

defense”—is not.77

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

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

75

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

76

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

77

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

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

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

can be waived).

23

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

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

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

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

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

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

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

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

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

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

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

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

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

District Attorney.”78

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

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

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

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

78

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

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

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

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

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

disposition of the cognizability questions.

24

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

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

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

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

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

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

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

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

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

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

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

Appeals’s current precedents

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

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

79

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

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

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

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

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

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

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

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

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

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

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

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

25

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

messages through its current pretrial habeas jurisprudence:

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

available “only in very limited circumstances.”80

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

80

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

81

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

21).

82

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

83

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

84

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

85

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

26

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

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

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

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

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

constitutional challenges characteristically require development through evidence presented

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

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

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

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

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

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

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

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

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

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

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

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

86

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

87

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

88

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

89

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

90

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

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

under the statute).

91

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

27

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

92

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

93

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

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

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

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

94

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

28

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

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

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

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

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

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

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

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

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

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

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

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

95

Id. at 603.

96

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

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

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

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

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

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

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

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

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

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

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

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

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

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

context.

29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

97

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

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

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

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

98

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

30

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

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

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

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

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

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

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

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

challenges are not cognizable in pretrial habeas corpus.

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

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

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

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

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

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

99

Id.

100

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

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

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

101

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

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

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

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

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

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

31

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FACIAL CONSTITUTIONAL CHALLENGES

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

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

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

102

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

32

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

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

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

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

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

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

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

and jurisprudence.106

The First Amendment prohibits overbroad and vague speech restrictions

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

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

103

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

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

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

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

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

communication protected by the First Amendment.”).

104

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

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

105

See Tex. Const. art. I, § 8.

106

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

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

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

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

33

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

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

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

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

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

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

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

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

Ex parte Lo:

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

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

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

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

107

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

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

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

108

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

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

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

expression. See id.

109

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

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

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

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

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

(internal citations and quotations omitted).

110

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

(1971)).

34

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

be muted[.]”111

But because the overbreadth doctrine departs from normal standing concepts and

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

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

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

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

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

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

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

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

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

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

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

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

111

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

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

112

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

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

113

Ferber, 458 U.S. at 769.

114

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

115

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

35

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

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

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

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

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

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

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

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

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

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

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

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

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

116

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

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

117

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

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

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

grasp”).

118

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

at 177).

119

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

120

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

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

121

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

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

36

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

122

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

123

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

124

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

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

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

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

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

“disguised” as-applied challenge).

37

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

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

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

and its hypothetical implications.

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

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

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

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

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

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

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

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

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

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

125

See Fox, 492 U.S. at 484-85 (“It is not the usual judicial practice, . . . nor do we consider

it generally desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is

determined that the statute would be valid as applied. Such a course would convert use of the

overbreadth doctrine from a necessary means of vindicating the plaintiff’s own right not to be bound

by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state

and federal laws. Moreover, the overbreadth question is ordinarily more difficult to resolve than the

as-applied, since it requires determination [of] whether the statute’s overreach is substantial, not only

as an absolute matter, but ‘judged in relation to the statute’s plainly legitimate sweep,’ and therefore

requires consideration of many more applications than those immediately before the court.” (quoting

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

126

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

92.

38

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

127

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

128

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

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

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

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

court then turns to the vagueness issue).

129

United States v. Stevens, 559 U.S. 460, 474 (2010) (quoting Williams, 553 U.S. at 293).

130

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

39

duty or influences or attempts to influence a public servant to violate

the public servant’s known legal duty; or

(2) influences or attempts to influence a voter not to vote or to vote in a

particular manner.131

The focus of the offense created by section 36.03(a)(1) is thus the use of “coercion” to “influence”

(i.e., bring about or cause132), or attempt to so “influence,” certain behavior of a “public servant.”133

Other Penal Code provisions require that these actions must be committed intentionally or

knowingly.134 Consequently, a person violates section 36.03(a)(1) if he employs “coercion” with the

131

Tex. Penal Code § 36.03(a).

132

Although “influence” is not defined specifically, the word in both its noun and verb

forms would ordinarily denote the exercise of a power or capacity to cause an effect upon or to bring

about a particular result. Webster’s Third New Int’l Dictionary 1160 (2002); see, e.g., Olivas

v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006) (looking to common dictionary definitions

for guidance in determining plain meaning of undefined words in Penal Code). The Legislature

used “influence” in a similar sense throughout chapter 36 of the Penal Code. See Tex. Penal Code

§§ 36.04 (creating offense of “improper influence,” “privately address[ing] a representation, entreaty,

argument, or other communication to any public servant who exercises or will exercise official

discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding

on the basis of considerations other than those authorized by law”) (emphasis added), 36.05 (creating

witness-tampering offense, defined in part as “offer[ing], confer[ring], or agree[ing] to confer any

benefit on a witness in an official proceeding” “with intent to influence the witness”) (emphasis

added). In fact, chapter 36 as a whole is titled “Bribery and Corrupt Influence” (emphasis added).

133

See Phillips v. State, 401 S.W.3d 282, 290 (Tex. App.—San Antonio 2013, pet. ref’d)

(making a similar observation in context of evidentiary-sufficiency and procedural challenge to

convictions for attempted coercion of public servant through threats of felonious bodily injury).

134

See Tex. Penal Code § 6.02(b), (c). A person acts intentionally, or with intent, with

respect to the nature of his conduct when it is his conscious objective or desire to engage in the

conduct. Id. § 6.03(a). A person acts knowingly with respect to the nature of his conduct when he

is aware of the nature of his conduct. Id. § 6.03(b).

40

conscious objective or desire, or actual awareness of, bringing about, or in an attempt to bring about,

the behavior of a “public servant” described in the statute.135

In both the legal arena and ordinary usage, the precise parameters of “coercion” and

when it occurs have often been elusive,136 although the concept frequently denotes some sort of

impingement on a listener’s free will or autonomy through force or threat.137 As “coercion” is used

135

Thus, we disagree with Perry’s assertion that section 36.03(a)(1) “defin[es] the crime with

reference to consequences (‘influencing a public servant’) without requiring that offenders have any

intent or knowledge regarding those consequences.”

136

See, e.g., United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (acknowledging

that “the ambiguity of such words as threat, intimidate, and coerce” had presented First Amendment

problems when used to define criminal conduct in broadly written statutes); see also Oren Bar-Gill

& Omri Ben-Shahar, Credible Coercion, 83 Tex. L. Rev. 717, 720-21 & nn. 4-5 (2005) (referencing

some of the scholarly literature attempting to distinguish “coercion” and “threats” from mere “offers”

and “bargaining”); Comment: Coercion, Blackmail, and the Limits of Protected Speech, 131 U. Pa.

L. Rev. 1469, 1471-72 & n.12 (1983) (noting scholarly disagreement as to the meaning of “coercion”

and proposing that “coercive speech” means only “speech forcing the listener to choose between

two things when the listener has a legitimate claim to both things,” thereby “reduc[ing] a listener’s

legitimate options”).

137

Webster’s Third New Int’l Dictionary 439 (2002) (“to compel to an act or choice by force,

threat, or other pressure”); Black’s Law Dictionary 258 (6th ed. 1990) (“Compulsion; constraint;

compelling by force or arms or threat. It may be actual, direct, or positive, as where physical force

is used to compel act against one’s will, or implied, legal or constructive, as where one party

is constrained by subjugation to other to do what his free will would refuse.”); see Davis v. State,

313 S.W.3d 317, 337 (Tex. Crim. App. 2010) (“Coercive government misconduct renders a

confession involuntary if the defendant’s ‘will has been overborne and his capacity for self-

determination critically impaired’” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26

(1973))); In re Frank Kent Motor Co., 361 S.W.3d 628, 632 (Tex. 2012) (noting that “elements of

economic duress or business coercion” include “a threat that overcomes the other party’s free will

and causes it to do what it otherwise would not have done and that it was not legally bound to do”);

see also Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 405-06 (2003) (explaining that “the

crime of coercion,” as created by the statutes of some states other than Texas, “involves the use of

force or threat of force to restrict another’s freedom of action,” and contrasting it with extortion, a

crime with common-law roots that focuses on the obtaining of property); Model Penal Code § 212.5

(Official 1962 Draft and Revised Comments) (American Law Institute 1980) (offense of “criminal

coercion” defined as the making of certain types of threats with the purpose “unlawfully to restrict

another’s freedom of action”).

41

in the Texas Penal Code, however, the Legislature has defined the term more specifically. This

definition currently appears in paragraph (9) of the Code’s general definitions provision,

section 1.07(a):

“Coercion” means a threat, however communicated:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(C) to accuse a person of any offense;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant or to cause a public servant to

take or withhold action.138

Thus, the defining feature of “coercion” under the Penal Code is “a threat” to do or perform one or

more of the six types of acts specified in paragraphs (A)-(F) of the definition. And, as confirmed

by the phrase “however communicated” that immediately follows “threat,” the Legislature has

limited “coercion” to speech and excluded means of compulsion that might be considered non-

communicative in nature, such as bare physical force.139

Further guidance regarding the nature of these “threats” is found in Olivas v. State,

where the Court of Criminal Appeals examined “the meaning of the term ‘threaten’ as used in the

138

Tex. Penal Code § 1.07(a)(9).

139

See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam) (stating that

federal law prohibiting the willful or knowing making of written or oral threats “to take the life of

or inflict bodily harm upon the President” or others in line of succession “makes criminal a form of

pure speech”).

42

Penal Code” in order to identify the elements of the Code’s assault-by-threat prohibition.140 After

observing that “[t]he word ‘threaten’ is not statutorily defined in the Penal Code,” the court turned

to, and cited approvingly, the following definition of “threaten” from Webster’s:

1. to declare an intention of hurting or punishing; to make threats against;

2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds

threaten rain or a storm;

3. to express intention to inflict (injury, retaliation, etc.);

4. to be a source of danger, harm, etc., to.141

The court similarly quoted a definition of “threat” from Black’s Law Dictionary: “A communicated

intent to inflict harm or loss on another or another’s property.”142 Because the court couched its

analysis in terms of determining the meaning of “threaten” “as used in the Penal Code,” we must

presume that it would ascribe a similar meaning to “threat” as used in the Penal Code’s “coercion”

definition. Accordingly, “threat” as used there would denote a declared or expressed intention “of

hurting or punishing” or “to inflict injury,” a “menacing indication of . . . something dangerous or

evil,” or “a source of danger [or] harm” that is communicated to another through speech. It also

seems implicit in the notion of such a “threat” that the communication would be sufficiently specific

140

Olivas, 203 S.W.3d at 345-49; see Tex. Penal Code § 22.01(a)(2) (“A person commits

an offense if the person . . . intentionally or knowingly threatens another with imminent bodily

injury”).

141

Olivas, 203 S.W.3d at 345 (quoting Noah Webster, Webster’s New Twentieth Century

Dictionary of the English Language Unabridged 1901 (2d ed. 1983)).

142

Id. at 345-46 (quoting Black’s Law Dictionary 1203 (7th ed. 2000)).

43

to generate expectation that the actor could and would actually carry out particular harm on a

particular person, thereby excluding more generalized complaints or advocacy.143

In turn, paragraphs (A)-(F) of the definition specify six categories of threatened harm

or loss that would distinguish “coercion” under the Penal Code.144 If the threatened harm or loss

would itself constitute a felony offense, the offense created by section 36.03(a)(1) would be a third-

degree felony; otherwise, it is a Class A misdemeanor.145 The specific focus of Perry’s facial

challenges is the portion of paragraph (F) that references “threats . . . to take or withhold action as

a public servant.”146 “Public servant” as used in the Penal Code is defined as:

a person elected, selected, appointed, employed, or otherwise designated as one of

the following, even if he has not yet qualified for office or assumed his duties:

143

That is not to say that the Penal Code’s “coercion” definition requires that the actor

actually have intended to carry out the threatened harm. Cf. Velasquez, 772 F.2d at 1357 (regarding

federal retaliation statute barring threats of violence or property damage against witnesses, observing

that “[i]t . . . can make no difference whether the threatener intends to carry out the threat. . . . When

making a threat one hopes not to have to carry it out; one hopes that the threat itself will be

efficacious. Most threats, indeed, are bluffs.”).

144

Accord Board v. State, No. 03-96-00024-CR, 1998 Tex. App. LEXIS 3206, *16-17

(Tex. App.—Austin May 29, 1998, pet. ref’d) (not designated for publication) (holding that “threat”

as used in the “coercion” definition, as that definition is incorporated into section 36.05’s witness-

tampering prohibition, was not unconstitutionally vague because nature of “threat” was informed by

the harms enumerated in the definition, in that case “hatred, contempt, and ridicule”); see Tex. Penal

Code § 36.05 (“a person commits an offense if, with intent to influence the witness, he . . . coerces

a witness or a prospective witness in an official proceeding” in regard to testimony or other

participation in the proceeding).

145

See Tex. Penal Code § 36.03(b).

146

Perry emphasizes that he is challenging section 36.03(a)(1) only as it incorporates this

portion of paragraph (F) and that he not challenging either section 36.03 or section 1.07(a)(9)

standing alone. Cf. Lo, 424 S.W.3d at 13-14, 17-27 (addressing—and ultimately sustaining—facial

overbreadth challenge to single subsection within Penal Code section 33.021).

44

(A) an officer, employee, or agent of government [and “government” is defined

in the Penal Code to mean “the state; . . . a county, municipality, or political

subdivision of the state; or . . . any branch or agency of the state, a county,

municipality, or political subdivision”147];

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private

written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of

a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right

although he is not legally qualified to do so.148

In short, “public servant” encompasses public officials and employees in every permutation of

Texas state or local government, without distinction or limitation regarding branch or department

(legislative, executive, judicial), level (county, city, district, etc.), or how the position is selected

(elected, appointed, etc.). The definition also extends to certain other persons who provide a specific

or limited form of governmental service or function—jurors, grand jurors, attorneys and notaries

“participating in performing a governmental function,” and arbitrators and other private adjudicators

of causes or controversies. Even candidates for public office, others not yet having qualified or

assumed their official duties, and persons performing a governmental function under a claim of right

come within the definition.

147

Tex. Penal Code § 1.07(a)(24).

148

Id. § 1.07(a)(41).

45

As is implicit in the phrase “threat . . . to take or withhold action as a public servant,”

the focus of paragraph (F), as it relates to Perry’s facial challenges, is on threats made by a public

servant that he will take or withhold action in his official capacity or under color of his delegated

authority.149 We can also discern that paragraph (F) contemplates a taking or withholding of

action by a public servant that would “hurt,” “punish,” inflict injury” upon, amount to “danger” to,

or “harm” another person, as this would follow from the definition of “threat” endorsed in Olivas.150

With this understanding of the “coercion” element in mind, we now return to the

remaining text of Penal Code section 36.03(a)(1). Combining the two, section 36.03(a)(1), as it

operates against threats made by a public servant concerning his own actions, prohibits that public

servant from:

• communicating an intent to take or withhold action in his official capacity or under color of

his delegated authority that would “hurt,” “punish,” inflict injury” upon, amount to “danger”

to, or “harm” another person . . .

• with the conscious objective, desire, or actual awareness of bringing about, or in an attempt

to bring about . . .

149

Paragraph (F) of the “coercion” definition also encompasses threats made by a different

category of actors—threats made by any person, whether a public servant or ordinary citizen, that

he or she will cause a public servant to take or withhold action. See Tex. Penal Code § 1.07(a)(9).

Because Perry’s arguments are directed entirely at the other component of paragraph (F)—threats

made by public servants to take or withhold action themselves—we have no occasion to address

the constitutionality of paragraph (F) and section 36.03(a)(1) as they would proscribe threats by

members of the public and others to cause such public-servant actions as a means of bringing about

actions by other public servants. But cf. U.S. Const. amend. I (protecting “the right of the people . . .

to petition the Government for a redress of grievances”). Except where indicated otherwise, all

subsequent references to “paragraph (F)” or “section 36.03(a)(1) and paragraph (F)” denote only the

portion of paragraph (F), as it is incorporated into section 36.03(a)(1), that Perry has challenged.

150

See Olivas, 203 S.W.3d at 345-46 (explaining that ordinary meaning of “threat” includes

a declared or expressed intent “of hurting or punishing” or “to inflict injury,” as well as a “menacing

indication of . . . something dangerous [or] evil,” or “a source of danger [or] harm”).

46

• any of the following actions by another “public servant” (defined the same way as with the

actor; i.e., expansively):

• “a specific exercise of his official power,” or

• “a specific performance of his official duty,” or

• a “violat[ion of] the public servant’s known legal duty.”

The required mens rea element, as previously indicated, relates to the actor’s intent or awareness of

using the threat to induce, or in an attempt to induce, the desired conduct of the other public servant.

Neither section 36.03(a)(1) nor paragraph (F) requires that the actor make any explicit demand

or quid-pro-quo offer regarding the desired action on the part of the public servant sought to be

influenced; it is enough that a specific threat to take or withhold action was made with the requisite

mens rea.151 While proof of an explicit demand for action would certainly be probative of an aim

to “influence” the second public servant to those ends, nothing in the statute forecloses proof of the

prohibited aim through other circumstances. Further, neither section 36.03(a)(1) nor paragraph (F)

requires that the public servant sought to be influenced necessarily be the same person who would

be harmed if the threat were carried out.152

151

Cf. Isassi v. State, 330 S.W.3d 633, 644 (Tex. Crim. App. 2010) (“The improper-

influence statute does not require . . . a quid pro quo. That conduct is covered by the bribery

statute.”); State v. Robertson, 649 P.2d 569, 577-79 (Or. 1982) (addressing a state criminal coercion

statute requiring proof of an explicit demand (citing Or. Rev. Stat. § 163.275)).

152

See Phillips, 401 S.W.3d at 289-90 (upholding conviction for coercion of a public servant

based on evidence that defendant communicated oral threat to dispatcher (a “public servant”) that

he would inflict felonious bodily injury on a police officer (another “public servant”) in order to

influence the dispatcher’s performance of duty, and noting, “The fact that the threatened third person

in this case happened to be another public servant does not matter.”).

47

As for the action desired of the public servant sought to be “influenced,” the exact

phrase “influence [a public servant] to violate his known legal duty” appears in section 240.2 of the

Model Penal Code, the analog to both section 36.03 and section 36.04 (the improper-influence

prohibition) in the Texas Penal Code.153 As the drafters of the model code (the American Law

Institute) explained, “influence . . . to violate his known legal duty” denotes an attempt to secure

action by a public servant that would “violate a specific obligation of his office.”154 Such “legal

duties,” the Institute elaborated, are those “specific[ally] and clearly delineated” by constitutional

provisions, statutes, rules, or other legal authorities governing his performance of official functions,

in contrast to discretionary decisions or any “general obligation of fidelity to the public interest

or other implicit moral obligation.”155 Furthermore, according to the Institute, “the requirement of

knowledge” of the legal duty applies both to the public servant sought to be influenced and the actor

153

See Model Penal Code § 240.2 (Official 1962 Draft and Revised Comments) (American

Law Institute 1980). Subsections (a)-(c) of section 240.2 are the counterparts to Texas Penal Code

section 36.03—with subsection (c) containing the language quoted above—while subsection (d) of

section 240.2 corresponds to section 36.04. The Court of Criminal Appeals has previously sought

guidance from section 240.2 and accompanying commentary when construing parallel language that

appears in section 36.04, and we will follow its lead in construing the parallel language that appears

in section 36.03. See Isassi, 330 S.W.3d at 638-39; see also id. at 645 (Keller, P.J., dissenting)

(observing that “Section 240.02 . . . is comparable to our Penal Code § 36.03 (Coercion of Public

Servant or Voter) and § 36.04 (Improper Influence) together.”).

“Public servant” as used in the model code is defined similarly to the Texas version.

Model Penal Code §§ 240.0(7) (“any officer or employee of government, including legislators and

judges, and any person participating as a juror, advisor, consultant or otherwise, in performing a

governmental function; but the term does not include witnesses”), 240.2 (no defense “that a person

whom the actor sought to influence was not qualified to act in the desired way, whether because he

had not yet assumed office, or lacked jurisdiction, or for any other reason”).

154

Id. § 240.2 cmt. 2, at 51-52.

155

Id. § 240.2(c) cmt. 2, at 51-52; see id. § 240.1(3) & cmt. 3, at 13, cmt. 8, at 35-36.

48

seeking to influence him.156 The import of this language, in other words, is to proscribe threats

that are calculated to bring about action by a public servant whom the threatener knows does

not have lawful authority or discretion to so act. To this extent, the language has some parallels to

section 36.04’s improper-influence prohibition, which criminalizes certain private communications

made to public servants who exercise official discretion in adjudicatory proceedings (e.g., courts,

administrative law judges, or prosecutors) made “with an intent to influence the outcome of the

proceedings on the basis of considerations other than those authorized by law.”157

Standing in contrast to this portion of section 36.03(a)(1) are the other two types of

desired public-servant conduct that the statute addresses, “specific exercise of . . . official power”

and “specific performance of . . . official duty.” These components would extend more broadly to

capture threats calculated to cause action by a public servant who would possess lawful authority and

discretion to so act based on the threat,158 as well as those aimed at public servants whom the

threatener does not know to lack such authority. The modifiers “specific exercise of . . . official

power” and “specific performance of . . . official duty” make clear, however, that some particular

156

See id. § 240.1(3) cmt. 8, at 35.

157

Tex. Penal Code § 36.04(a) (emphasis added); see also Isassi, 330 S.W.3d at 642-45

(upholding improper-influence conviction based on evidence that county attorney made series of

contacts with district attorney’s office that “might be regarded as lawful when viewed in a vacuum,”

yet there was sufficient evidence county attorney intended the contacts to cause dismissal of aunt’s

pending charges because of that relationship rather than considerations authorized by law).

158

See Phillips, 401 S.W.3d at 288-89 (“specific performance” of dispatcher’s “official duty”

was manner in which dispatcher responded to 911 call); see also City of El Paso v. Heinrich,

284 S.W.3d 366, 372 (Tex. 2009) (distinguishing between “government officer’s exercise of

discretion” and conduct actionable under “ultra-vires exception” to sovereign immunity); Tobias

v. State, 884 S.W.2d 571, 574-76, 580-81 (Tex. App.—Fort Worth 1994, pet. ref’d) (upholding

conviction for attempted coercion, through threats of violence, of appellate court justices with aim

of achieving favorable decision in pending case).

49

action or conduct by the public servant must be sought and not merely some effect on the public

servant’s general comportment in office.159

The range of threats made by public servants that are ultimately criminalized by

section 36.03(a)(1) is limited somewhat by a subsection (c) of section 36.03. That provision states:

It is an exception to the application of Subsection (a)(1) of this section that the

person who influences or attempts to influence the public servant is a member of

the governing body of a governmental entity, and that the action that influences or

attempts to influence the public servant is an official action taken by the member

of the governing body. For the purposes of this subsection, the term “official action”

includes deliberations by the governing body of a governmental entity.160

Negation of this exception has been held to be an element of the offense.161 In other words, in cases

where the asserted violation of section 36.03(a)(1) is predicated on a threat by a public servant, the

State must prove, in addition to the other elements of the offense, that (1) the public servant who

made the threat is not “a member of the governing body of a governmental entity,” and (2) the threat

was not an “official action” of that member, a phrase that denotes an act performed by the member

in his official capacity and under color and by virtue of his office.162

A key effect of subsection (c), as Perry acknowledges and the district court agreed,

is to exclude from section 36.03(a)(1)’s proscription threats to take or withhold action made

159

See Black’s Law Dictionary 1398 (6th ed. 1990) (defining specific as “[h]aving a certain

form or designation; observing a certain form; particular; precise; tending to specify, or to make

particular, definite, limited, or precise”).

160

Tex. Penal Code § 36.03(c).

161

See Tobias, 884 S.W.2d at 578.

162

See Black’s Law Dictionary 1084 (6th ed. 1990) (def

This text is long and has been trimmed here. Open the source document for the complete record.