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[Metaphoreus]

We had a thread when these charges were first brought, but this is a big enough update that I figured a new thread was in order.

As I explained, the indictment charged Perry with violating two different criminal statutes:

Here's the indictment.

The first count is based on this statute:

(a) 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:

(1) violates a law relating to the public servant's office or employment; or
(2) 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.​

The theory on which he is being charged is that, when the Legislature appropriated the funds for the Public Integrity Unit, it literally gave Perry the money, and he misused the money by vetoing the appropriation. I expect this count to be dismissed, as it's absurd.

The second count is based on this statute:

(a) A person commits an offense if by means of coercion he:

(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty[.]​

This one is more plausible than the first. The Penal Code defines coercion as including "a threat, however communicated: . . . to take or withhold action as a public servant[.]" Threatening to veto an appropriation certainly does seem to fit that definition, as it is a threat "to take . . . action as a public servant." I think the question here will boil down to whether Perry, by his threat, "attempt[ed] to influence" Lehmberg "in a specific performance of [her] official duty." I'm not sure whether the decision to resign or continue her office would constitute a part of Lehmberg's "official duty," so I'm not sure this count would stick, either, but it's certainly the stronger charge.

From WaPo's Volokh Conspiracy blog:

In 2013, Travis County (Tex.) District Attorney Rosemary Lehmberg was convicted of drunken driving, but refused to resign. Then-Gov. Rick Perry (R) threatened to veto $7.5 million in appropriations for the public integrity unit in the Travis County DA’s office unless Lehmberg resigned. When Lehmberg refused to resign, Perry made good on his threat.

But Perry was then indicted for both the veto and the threat of the veto. The veto, the indictment alleged, constituted misuse of funds in the governor’s custody. The threat, the indictment alleged, constituted attempted coercion of a public servant. The case eventually made its way to the Texas Court of Criminal Appeals — Texas’s supreme court for criminal cases — which this morning held by a 6-to-2 vote that both charges were unconstitutional[.]

As to the first count (misuse of government property), the CCA held that the statute could not criminalize a governor's veto, because the Texas Constitution grants unlimited veto power to the governor:

“The [Texas] Constitution does not purport to impose any restriction on the [governor’s] veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto.” Therefore, “The Legislature cannot directly or indirectly limit the governor’s veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.” And other state courts were right to say that “courts may not examine the motives behind a veto or second-guess the validity of a veto.”

As to the second count (coercion of a public servant), the CCA held that the statute on which it was based violated the First Amendment, because it was unconstitutionally overbroad. This is consistent with prior Texas (and other) precedent.

The coercion statute, when applied to threats to take government action as means to pressure someone into taking government action, is unconstitutionally overbroad, and thus violates the First Amendment. It covers a substantial amount of constitutional protected speech, such as:

• “a threat by the governor to veto a bill unless it is amended,”
• “a threat by the governor to veto a bill unless a different bill he favors is also passed,”
• “threat by the governor to use his veto power to wield ‘the budget hammer’ over a state agency to force necessary improvements,”
• “a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated,”
• “a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy,”
• “a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached,” or
• “a threat by a trial judge to quash an indictment unless it is amended.”

I searched but found nothing discussing this update. Drop me from the presidential primaries before any votes are cast if old.

 

[Mac_Lane]

The judge has some good taste.

 

[GaimeGuy]

The notion that it is okay to deliberately sabotage your own constituents in a dereliction of duty, and it is illegal to attempt to hold it against you in any capacity.... smh

 

[Random Painted HIghway]

The judge has some good taste.

Good guy, very funny, would not surprise me if he was a gaffer.

 

[Raven117]

I mean, he really could have used the original line.

When you strike at a king, you must kill him.

Ralph Waldo Emerson to a young Oliver Wendell Holmes (look him up if you don't know) as a comment to Holmes critique on Plato.

In a court ruling, it would have been infinitely more appropriate.

 

[SouSouRocket]

Good guy, very funny, would not surprise me if he was a gaffer.

You do know the Wire is one of the most beloved tv shows of all time, right? More than just GAF has seen it.

 

[Random Painted HIghway]

You do know the Wire is one of the most beloved tv shows of all time, right? More than just GAF has seen it.

Was it not clear from my post that I know this judge? my apologies for not being more explicit.