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Analysis: Has Governor Perry Committed a Crime Under Texas Law?

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HOUSTON, Texas — Liberals and conservatives have criticized the indictments of Presidential contender and the longest-serving Governor of Texas, Governor Rick Perry. Left of center activists, and David Axelrod, a political consultant based in Chicago (a political advisor to both Presidents Bill Clinton and Barack Obama), have seriously questioned the indictments. Senator Ted Cruz, a former Texas Solicitor General and a Harvard Law graduate, called the indictments “highly suspect.” The Washington Post has published articles examining Texas law and concluded that the indictments are “unsound.” What does Texas criminal law provide, and has the Governor really committed an offense?

The indictments against the Governor stem from Perry’s June 14, 2013 veto of $7.5 million dollars 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.” The Travis County District Attorney, Democrat Rosemary Lehmberg, had been convicted in April of the Class A misdemeanor of driving while intoxicated. She had served her time and returned back to work only days before the veto.

A Travis County Grand Jury has indicted the Governor with two crimes relating to public servants: Coercion of a Public Servant and Abuse of Official Capacity. Both are felonies under the Texas Penal Code. A Special Prosecutor, Michael McCrum, had been appointed to investigate the Governor’s actions with regard to the line-item veto.

The offense of “Abuse of Official Capacity” is found in section 39.02 of the Texas Penal Code. This section provides that “[a] public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” “‘Misuse’ means to deal with property contrary to a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property.” The government property alleged to have been “misused” by the Governor is $7.5 million in funding for the Public Integrity Unit. Any offense involving anything of value over $200,000 is a felony of the first degree. The possible punishment is a five to 99-year sentence in prison.

Government property in abuse of official capacity cases have typically involved the use of government airplanes, vehicles and fuel, computers, and tangible property that was in the actual possession and control of the defendant.  For instance, the defendant in the Michael Sidney Horton case worked for the Livingston Independent School District and was found to be guilty of selling property of the school district.  The Romeo Lomas case involved a County Commissioner who was charged with using county vehicles to haul debris away from his personal property. And as you can see, the government officials or employees involved in abuse of official capacity cases are government officials who have engaged inunlawful action.

The Raul Hernandez case involved a Sheriff’s deputy that asked for money in exchange for “fixing” a traffic citation. The Jonathan Campbell case involved a Houston Police Department Lieutenant who instructed a government employee to set up his new computer and printer. It took about three hours to install and configure software, and there was a problem with the internet service. Defendant had no need for internet access, or a computer to create documents to perform his duties. Defendant had also testified that he used the computer for his real estate business. The defendant in Marylene Megasonwas a former County Clerk who paid her two children for allegedly moving roller shelving and oversized record books after they were microfilmed and reprinted into smaller books. The evidence showed that the children actually performed no work. Similarly, the Dennis Trevino case involved a Maintenance Director of the City of Corpus Christi who instructed a city employee to purchase paint for his home with a city purchase order.

The crime of abuse of official capacity also expressly involves actual “custody and possession” of the misused government property. The Texas Penal Code definition of “possession” is defined in section 1.07(39) as having “actual care, custody, control, or management.” In the Margraves case, defendant was a Regent at Texas A&M University and he was charged with misapplying an airplane owned by Texas A&M University. He had been accused of using the plane to conduct a trip to see his son, and according to Margraves, he used the same trip to also conduct University business. The plane was within his actual custody and control as a Regent.

The Washington Post published an article on 8/16/14 entitled Does a governor have ‘custody or possession’ of funds the legislature wants to appropriate, in a bill that he vetoes?” Like the Washington Post, Breitbart Texas does not see how any threat by Perry to use the power of veto which is granted to him under the Texas Constitution, can be a crime under section 39.02. First, the property here was dollars intended for the Public Integrity Unit but it was not appropriated because the Governor vetoed it. The only person with “custody or possession” would have been the Texas Comptroller. Moreover, if it had been appropriated, it would have been in the custody and possession of the district attorney. For this and other reasons, the Washington Post and Breitbart Texas questions whether the property here was ever in the Governor’s “custody and possession.” See Washington Post article for additional legal analysis of the “misuse” and “custody and possession” of government property issues under the criminal statute. Constitutional safeguards and the high burden to prove a crime “beyond a reasonable doubt,” protects against slap-dash application of the elements of a crime.

To apply the criminal offense against the Governor for engaging in lawful and constitutional government action, would be to allow the district attorney, or any other subject of potential legislative appropriations, to coerce the governor to not use his veto power because of a threat of prosecution. The Governor of the state would be strong-armed in not using his veto power. Moreover, legislators, as part of the legislative process who could “misuse” government property (that he or she also never had “custody or possession” of), would be afraid to make statements during legislative deliberations.

Section 311.021 of the Texas Code Construction Act provides among other things, that “[i]n enacting a statute, it is presumed that: . . . a just and reasonable result is intended; a result feasible of execution is intended; and public interest is favored over any private interest.” The public interest favors legislative and government lawful deliberations without fear of criminal revenge for that lawful action. The Code Construction Act also provides that a statute is to be construed such that a “just and reasonable result” and “result feasible of execution” is intended. It would not be just nor reasonable, nor would a “result feasible of execution,” be consistent with interpreting the Penal Code statutes of Abuse of Official Capacity or Coercion of a Public Servant to tie the hands of legislators or the Governor or other legislative representatives during the deliberation or exercise of their duties. Such a result was not intended, and indeed, the exception provided in the crime of coercion of a public servant, expressly negates these legislative actions as a crime.

The crime of coercion of a public servant found in section 36.03(a)(1) of the Penal Code provides that “a person commits an offense if by means of coercion he influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty.” The coercion alleged is statements to the effect that if the Travis County District Attorney did not resign, the Governor would veto the legislative appropriations for the Public Integrity Unit of that office. “Coercion” is defined in the Penal Code and includes a threat to commit an offense or to take or withhold action as a public servant, or to cause a public servant to take or withhold action.” An offense under this section is a felony of the third degree if the coercion is a threat to commit a felony. The felony alleged is abuse of official capacity involving the $7.5 million in appropriations. The crime carries a possible sentence of two to ten years in prison.

The Texas legislature has promulgated an exception within the coercion of a public servant statute. Subsection (c) of the pertinent section of the Penal Code provides that “[i]t is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governing entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body.” “Official action” is specifically defined, but is not limited to, deliberations by the governing body of a governmental entity.

There is no question that the Governor is a member of the governing body of a governing entity (the State of Texas), and the action, a veto, is an official action taken by the member of the governing body (the Governor). The legislature when promulgating the Penal Code section which delineates the crime of coercion of a public servant expressly predicted and addressed factual situations like the ones in this case. In its wisdom, the bi-partisan legislative body created an exception and expressly provided that it is not a crime for a government official to take official government action that attempts to influence another public servant. Exercising the power of a line-item veto is a power given to the Governor under Texas law.

Breitbart Texas was unable to find an appellate case where a government official was convicted of the crime of coercion of a public servant.  Moreover, the offense of coercion of a public servant has in Texas, historically involved individuals who were not government officials acting in their official governmental capacity. For instance, the Robert Lyonell Phillips case involved an individual who repeatedly called the 9-1-1 emergency line and asked that peace officers be dispatched to his home to make a report. Phillips had not received visitation with his daughter pursuant to a child custody order. He told more than one 9-1-1 officer that if a particular peace officer was dispatched, he would “blow his brains out.” Government officials made certain that a different officer was dispatched. Likewise, the defendant in Tobias was convicted for coercion of a public servant for threatening to assault appellate justices. He wrote in his appellate brief that “[g]iven that the Courts will not hear [his type of claim on appeal]: Will I have to exercise my Right to Keep and Bear Arms to obtain these rights? If so, I will fight, kill and die to obtain them! This is not a threat it is a FACT!”

Other legal arguments, like Executive Privilege, the First Amendment, due process, and other constitutional and legal issues, need to be examined. For the reasons stated within this article, and more that could be contained within a legal brief, the Governor has been indicted for crimes that are not crimes under the application of the facts and the law.

Lana Shadwick is a Contributing Writer and Legal Analyst for Breitbart Texas. She is a 22-year lawyer who has served as a judge and a prosecutor. Follow her@LanaShadwick2.


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