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Rick Perry Battles at Texas Court of Criminal Appeals

Former Governor Rick Perry and his legal team were at the state’s highest criminal court on Wednesday morning arguing that the remaining count against him (abuse of official capacity) should be dismissed. A special prosecutor argued that a second count (coercion of a public servant) dismissed by an immediate court of appeals should be reinstated.

Each side was allotted an hour to argue before the state’s highest criminal court. Lisa Carole McMinn argued for the State Prosecuting Attorney. Anthony Buzbee, David L. Botsford, and former Texas Supreme Court Justice Thomas Phillips represented Perry.

The defense team yielded some of its time to Eugene Volokh, a law professor from the University of California Los Angeles School of Law. Volokh is considered an expert on the subjects of the First Amendment and free speech law. Volokh and other constitutional and criminal law experts filed an amici curiae (friend of the court) brief on October 21 in support of Perry’s petitions.

Governor Perry was indicted with these counts by a Travis County grand jury in August of 2014.  Maximum punishment on the abuse of official capacity charge is five to 99 years in prison. The punishment range is from two to ten years for the coercion of a public servant charge.

The indictments against the Governor stem from Perry’s June 14, 2013 veto of $7.5 million in appropriations for the Public Integrity Unit of the Travis County District Attorney’s Office. The Governor had questioned the propriety of continuing to fund an office that had statewide criminal jurisdiction when the district attorney in charge of that unit “had lost the public’s confidence.” As reported by Breitbart Texas, Perry called for Travis County DA Rosemary Lehmberg’s resignation after she was arrested for intoxication in 2013. Her arrest received national media attention.

Perry has called his indictments an outrageous abuse of power. The Public Integrity Unit in Travis County has been accused in the past of using their power against political opponents, including Senator Kay Bailey Hutchison and House Majority Leader Tom DeLay. DeLay has called the indictments in Travis County “The Criminalization of Politics.” Legislation was passed and signed into law by Texas Governor Greg Abbott in 2015 which transfers the jurisdiction over public officials from the Travis County DA’s Office, to the Texas Rangers.

As reported by Breitbart Texas, the Third Court of Appeals in Austin in July dismissed one of the charges against Perry. This left one of the charges pending.

The intermediate appellate court opined that “the statute on which the ‘coercion of a public servantis based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.”

The second charge, abuse of official capacity was left pending against Perry. The Court held that because Perry’s legal team urged only a constitutional violation “as applied” to him, the legal precedents of the Texas Court of Criminal Appeals precluded it from giving any relief “at this juncture” on the abuse of official capacity charge. A “facial challenge” arguing that the statute is always unconstitutional was not urged by Perry’s defense team.

State prosecuting attorney Lisa C. McMinn appealed the intermediate appellate court’s dismissal of the official coercion charge as unconstitutionally overbroad under the First Amendment. The State argues that in determining that the statute banned a substantial amount of protected speech, it failed to recognize the extent of the statute’s legitimate sweep and considered hypothetical instances of protected speech that would not actually be included in the statute’s coverage.

Professor Volokh urged in his brief that the first count criminalizes Governor Perry’s veto of a bill and violates the separation of powers of the Texas Constitution. He also urged that the Legislature is not allowed to criminalize the exercise of powers that the Texas Constitution specifically confers on the Governor, including veto power.

As it relates to the second count, Volokh argued that it criminalizes Perry’s threat to veto a bill if Travis County DA Lehmberg did not resign and thus violates the First Amendment of the U.S. Constitution, as well as, Article I, Section 8 of the Texas Constitution. Volkh says Governor Perry threatened to perform a lawful act of veto that the Texas Constitution specifically reserves to him in order to encourage a public official to engage in a lawful act, her resignation. The constitutional scholar contends that the Governor’s actions are constitutionally protected speech.

Judge Bert Richardson, the Republican who was appointed to oversee the abuse of power case against Perry, has since been elected to the Texas Court of Criminal Appeals. Richardson is not participating in the appeal at the criminal appellate court.

As reported by Breitbart Texas, the former Governor has spent over $2 million for his legal defense as of this July.

Perry says the indictments are to blame for his recent failed presidential run.

Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as an associate judge and prosecutor. Follow her on Twitter @LanaShadwick2

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