# Perry, Ex Parte James Richard "Rick" > Court of Appeals of Texas · August 18, 2015 URL: https://www.frixlaw.com/law-library/cases/4066482 ## Case - **Court:** Court of Appeals of Texas - **Decided:** August 18, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4066482 ## How later opinions describe it (automated extraction) - discussing implications of Oregon’s broad “coercion” prohibition, including the hypothetical about appellate justices we borrowed earlier, before invalidating the statute for overbreadth - 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 ## Opinion text 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 reach [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4066482. Public record. Not legal advice.