PD-1067-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/17/2015 3:24:37 PM
September 17, 2015 Accepted 9/17/2015 3:55:07 PM
ABEL ACOSTA
NO. PD-1067-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
EX PARTE JAMES RICHARD “RICK” PERRY,
Appellant
STATE’S MOTION TO STAY TRIAL COURT
PROCEEDINGS
To the Honorable Court of Criminal Appeals:
The State of Texas files this Motion to Stay Trial Court Proceedings
Pending Appeal. In support of this motion, the State shows the following:
The Grand Jury indicted Defendant on two counts:
(1) Abuse of Official Capacity Statute, or TEX. PENAL CODE §
39.02(a)(2), which 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 pubic
servant’s custody or possession by virtue of the public servant’s
office or employment;
(2) Coercion of Public Servant, or TEX. PENAL CODE § 36.03(a)(1)
which makes it an offense for a person, “by means of coercion,”
to “influence” or attempt to “influence” a “public servant” to a
specific end.
To date, the prosecution has proceeded under one indictment with one
cause number and for resolution by one trial. Although the Third Court of
Appeals rejected Appellant’s legal arguments to dismiss Count I, he is
seeking a petition for discretionary review with the Court of Criminal
Appeals. And because the Third Court of Appeals invalidated a public law
that protects all citizens from public corruption, the State Prosecutor’s Office
is seeking discretionary review regarding the statute at issue in Count Two.
It is unknown whether this Court will grant review on either or both
grounds. The State’s interests in seeking this stay are threefold: 1) to defend
a statute passed by the Texas Legislature specifically to protect the public
from abuse of power by public officials; 2) to avoid duplicitous legal
proceedings; and 3) to resolve this case by one public trial. The State asks
for this Court to issue an Order staying the proceedings in trial court so all
matters can be resolved in this Court before proceeding with piecemeal
litigation. This Court has the authority to grant a stay of proceedings in the
trial court. See, e.g., In re Schulman, 2007 Tex. Crim. App. Unpub. LEXIS
1271, *1 (Tex. Crim. App. June 8, 2007) (granting motion to stay); In re
Allen, 2014 Tex. Crim. App. Unpub. LEXIS 972, *1 (Tex. Crim. App. Oct.
30, 2014) (“We have before us . . . a motion for a temporary stay in the
proceedings below. The motion for a temporary stay is granted and these
cases are ordered filed and set.”); State ex rel. Hill v. Pirtle, 887 S.W.2d 921,
925 (Tex. Crim. App. 1994) (“On January 29, 1993, relator asked this Court
for a stay of all proceedings in the criminal prosecutions and a writ of
mandamus ordering respondent to vacate his order granting the motions to
prohibit. See TEX.R.APP.PROC. 211. On February 5, 1993, this Court
stayed the proceedings in the trial court and ordered this case filed and set
for submission.”); Ex parte Reposa, 2008 Tex. Crim. App. Unpub. LEXIS
496, *1 (Tex. Crim. App. July 2, 2008) (“The stay of proceedings previously
entered in this case is continued.”); In re Bowen, 2011 Tex. Crim. App.
Unpub. LEXIS 448, *2 (Tex. Crim. App. May 27, 2011) (“The Respondent,
the Judge of the 368th District Court of Williamson County, is directed to
stay the proceedings”); In re Solis-Gonzalez, 2015 Tex. Crim. App. Unpub.
LEXIS 118, *2 (Tex. Crim. App. Feb. 9, 2015) (“the trial proceedings below
are stayed pending further order of this Court”).
Respectfully Submitted:
MICHAEL MCCRUM
State Bar No. 13493200
District Attorney Pro Tem
Travis County, Texas
700 N. St. Mary’s St., Suite 1900
San Antonio, TX 78205
Telephone: (210) 225-2285
Facsimile: (210) 225-7045
michael@mccrumlegal.com
By: /s/ David M. Gonzalez
DAVID M. GONZALEZ
State Bar No. 24012711
Assistant District Attorney Pro Tem
Travis County, Texas
206 East 9th Street, Suite 1511
Austin, Texas 78701
Telephone: (512) 381-9955
Facsimile: (512) 485-3121
david@sg-llp.com
ATTORNEYS FOR
THE STATE OF TEXAS
CERTIFICATE OF SERVICE
This is to certify that on September 17, 2015 a true and correct copy of
this the State’s Motion to Stay Trial Proceedings has been emailed to:
Lisa McMinn
Office of the State Prosecuting Attorney
P.O.Box 13046
Austin, TX 78711
Lisa.mcminn@spa.texas.gov
David L. Botsford
Botsford & Roark
1307 West Ave.
Austin, TX 78701
(512) 479-8040 Facsimile
dbotsford@aol.com
Thomas R. Phillips
Baker Botts, L.L.P.
98 San Jacinto Blvd., Ste. 1500
Austin, TX 78701
(512) 322-8363 Facsimile
Tom.phillips@bakerbotts.com
Anthony G. Buzbee
The Buzbee Law Firm
600 Travis St., Ste. 7300
Houston, TX 77002
(713) 223-5909 Facsimile
tbuzbee@txattorneys.com
/s/ David M. Gonzalez
David Gonzalez
Perry, Ex Parte James Richard "Rick"
Combined Opinion