Cary, Stacy Stine

PD-1341-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
August 4, 2015 Transmitted 7/30/2015 10:46:42 AM
Accepted 8/3/2015 8:33:49 AM
ABEL ACOSTA
No. PD-1341-14 CLERK

TO THE
COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS

STACY STINE CARY § APPELLANT
v. §
THE STATE OF TEXAS § APPELLEE

On Appeal from the Court of Appeals
for the Fifth Judicial District of Texas at Dallas
Court of Appeals No. 05-12-01421-CR

BRIEF OF THE PILLAR OF LAW INSTITUTE
AS AMICUS CURIAE IN SUPPORT OF APPELLANT

JAMES “TREY” TRAINOR III STEPHEN R. KLEIN*
State Bar No. 24042052 Pillar of Law Institute
Beirne, Maynard & Parsons, L.L.P. 455 Massachusetts Ave. NW
401 W 15th St Ste. 359
Ste. 845 Washington, DC 20001-2742
Austin, TX 78701-1667 (202) 815-0855 (Tel.)
(512) 623-6700 (Tel.) stephen.klein@pillaroflaw.org
ttrainor@bmpllp.com
OF COUNSEL FOR AMICUS
COUNSEL OF RECORD *Motion for pro hac vice admission
pending
 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF INTEREST OF AMICUS CURIAE.............................................1
SUMMARY OF ARGUMENT .................................................................................1
ARGUMENT .............................................................................................................4
I. Introduction ......................................................................................................4
II. This Court Should Consider the First Amendment Issues in this Case ...........7
A. First Amendment Issues Were Asserted at Trial, and This Court Should
Address Them, Remand the Case or Ask for Additional Briefing ...............7
B. This Court Should Protect the First Amendment Thereby Notifying Lower
Courts, the Texas Attorney General’s Office, the Texas Public Integrity
Unit, and the Texas Ethics Commission of Their Duty to Respect Free
Speech Rights ..............................................................................................10
III. Texas’s Anti-Corruption Laws Are Narrowly Tailored to Specific Conduct
in Order to Protect Political Speech ..............................................................16
A. The Texas Election Code Governed Cary’s Actions ..................................17
B. The State Misapplied the Bribery Statute ...................................................19
IV. The State’s Application of the Bribery, Money Laundering, and Organized
Crime Statutes Are Unconstitutionally Vague and Overbroad .....................22
A. The State’s Theory Leaves No Line Between Campaign Contributions
and Bribes....................................................................................................24
B. If a Candidate Can Be “Bribed” to Run for Office, Every Action Is an
Official Action ............................................................................................30
C. A Candidate’s Failure to Report or Misreporting Cannot Be Used Against
a Contributor ...............................................................................................31
D. Cary’s Campaign Contributions Were Not “Bribes” or Otherwise Proceeds
of “Criminal Activity” and Thus Not Subject to the Money Laundering
Statute ..........................................................................................................34
E. Campaigning Is Not “Organized Crime” ....................................................35
V. Conclusion ......................................................................................................38
PRAYER FOR RELIEF ..........................................................................................39

i
 TABLE OF AUTHORITIES

Cases
Buckley v. Valeo, 424 U.S. 1 (1976) ....................................................... 8, 12, 16, 17
Cary v. State, 460 S.W.3d 731 (Tex. App.–Dallas 2015)............................... 6, 7, 11
Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233 (Tex. App.–Dallas
Aug. 28, 2014) ......................................................................................................27
Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310 (2010) ..................................37
DeLay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) .......................... 11, 13, 38
Ex Parte Ellis, 309 S.W.3d 71, 88 (Tex. Crim. App. 2010) ....................................34
Ex Parte Perry, No. 03-15-00063-CR, 2015 WL 4514696 (Tex. App.–Austin
Jul. 24, 2015).........................................................................................................13
Ex parte Thompson, 442 S.W. 325 (Tex. Crim. App. 2014) ...................................12
Grayned v. City of Rockford, 408 U.S. 104 (1972) .......................................... 23, 26
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) ......................................9
Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995) ....................................9
Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) .........................................23
Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ..........11
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .................................................9
McCutcheon v. Fed. Elec. Comm’n, 134 S.Ct. 1434 (2014) ............................ 17, 24
McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334 (1995) ...........................................17
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000)................................................ 8, 9, 17
Two Unnamed Petitioners v. Peterson, -- N.W.2d --, 2015 WL 4376442
(Wis. 2015)..................................................................................................... 11, 20
U.S. v. Blagojevich, -- F.3d --, 2015 WL 4433687 (7th Cir. 2015) .................. 25, 30
U.S. v. Stevens, 559 U.S. 460 (2010) .......................................................................23
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) .................................23
West Orange-Cove Colso. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. 2003) ................9

ii
Statutes
TEX. CONST. art. 16, § 1 ...........................................................................................16
TEX. ELEC. CODE § 1.001 .........................................................................................17
TEX. ELEC. CODE § 1.002 .........................................................................................17
TEX. ELEC. CODE § 251.001 .................................................................. 18, 25, 26, 34
TEX. ELEC. CODE § 253.003 .............................................................................. 18, 35
TEX. ELEC. CODE § 253.151 .....................................................................................17
TEX. ELEC. CODE § 253.155 .......................................................................... 4, 18, 35
TEX. ELEC. CODE § 253.176 .....................................................................................20
TEX. ELEC. CODE § 254.001 .............................................................................. 32, 35
TEX. ELEC. CODE § 254.031 .....................................................................................32
TEX. ELEC. CODE § 254.041 .............................................................................. 32, 35
TEX. ELEC. CODE § 254.231 .....................................................................................32
TEX. ELEC. CODE § 254.232 .....................................................................................32
TEX. ELEC. CODE § 254.261 .....................................................................................32
TEX. GOV’T CODE § 572.021....................................................................................36
TEX. GOV’T CODE § 572.023....................................................................................36
TEX. GOV’T CODE § 572.034....................................................................................36
TEX. PENAL CODE § 34.01 ........................................................................................35
TEX. PENAL CODE § 34.02 ................................................................................. 22, 35
TEX. PENAL CODE § 36.02 ................................................................................ passim
TEX. PENAL CODE § 36.08 ........................................................................................21
TEX. PENAL CODE § 37.10 ........................................................................................37
TEX. PENAL CODE § 71.02 ........................................................................................37
U.S. CONST. amend. I ....................................................................................... passim

iii
Other Authorities
Appellant’s Brief, May 17, 2013, 2013 WL 3971317, Cary v. State,
No. 05-12-01421-CR (Tex. App.–Dallas) ..............................................................7
Appellant’s Reply Brief, Aug. 15, 2013, Cary v. State, No. 05-12-01421-CR
(Tex. App.–Dallas)................................................................................................13
Joe Nixon, Testimony before State Affairs Cmte. of the Texas Senate,
May 4, 2015 ..........................................................................................................15
Mark Z. Barabak, Rick Perry, humble and under indictment, announces second
White House run, L.A. TIMES, June 4, 2015 .........................................................28
Michael King, Point Austin: A Hill of Beans, AUSTIN CHRON., Nov. 10, 2010 ......12
Order List, United States Supreme Court (558 U.S.), June 29, 2009 ......................10
R.G. Ratcliffe, Tom DeLay sentenced to 3 years in prison, HOUSTON CHRON.,
Jan. 10, 2011 .........................................................................................................16
State’s Supplemental Letter Brief, DeLay v. State, No. PD-1465-13,
2014 WL 3534745 ......................................................................................... 33, 34
Suzanne Wooten Judicial Candidate/Officeholder Campaign Finance Report,
Jan. 15, 2009 ...........................................................................................................5
Texans for Greg Abbott Specific-Purpose Cmte. Campaign Finance Report,
Jan. 15, 2015 ...........................................................................................................5
Tory A. Weigand, Raise or Lose: Appellate Discretion and Principled Decision
Making, 17 SUFFOLK J. TRIAL & APP. ADVOC. 179 (2012) ..................................10
Trial Record, State v. Cary, No. 366-81636-2011 ...................................................14
Rules
TEX. CODE JUD. CONDUCT........................................................................................21
TEX. R. APP. P. 33.1(a) ...............................................................................................8

iv
 STATEMENT OF INTEREST OF AMICUS CURIAE
The Pillar of Law Institute is a nonprofit, nonpartisan institution organized

under § 501(c)(3) of the Internal Revenue Code and dedicated to defending

political free speech and association. It is a program of the Wyoming Liberty

Group. The Institute represents plaintiffs and defendants nationwide who are

threatened by laws that abridge political First Amendment rights. This case is of

concern to amicus because it addresses the further collapse of constitutional

protections for political speech and freedom of association, which lie at the very

heart of the First Amendment.

The Pillar of Law Institute will pay attorneys’ fees incurred in the

preparation of this amicus brief.

SUMMARY OF ARGUMENT
This Court should address the First Amendment issues raised in this case.

Stacy Cary brought free speech claims against her indictment both before and after

her trial, preserving these issues for review. Alternatively, this Court should

remand the case for consideration of First Amendment concerns—particularly

vagueness and overbreadth—by the Fifth Court at Dallas or request additional

briefing here by both parties. The First Amendment issues in this case are pressing,

and represent but the latest effort by State prosecutorial agencies to circumvent

free speech in order to secure criminal convictions.

1
 The Texas Election Code and the Judicial Campaign Fairness Act within it

are part of a carefully constructed system of laws to deal with political corruption

while respecting free speech. Political contributions are broadly defined in the

Election Code, and the Penal Code narrowly recognizes that a contribution may

become a bribe only when the State can prove an express agreement between the

contributor and a candidate to take or withhold a specific exercise of official

discretion in exchange for the contribution. Furthermore, the State must prove that

this exercise would not have been taken or withheld but for the contribution. This

evidentiary burden is difficult but necessary in order to ensure that political

engagement is properly protected. Even then, not having such evidence, the State

was not without redress in this case, but simply limited to the penalties provided in

the Election Code.

The State’s application of the bribery statute in this case is not only contrary

to law but unconstitutionally vague. A political contribution must be given with the

intent that it be used to run for office, but the State alleges that money given to a

candidate may be intended as a bribe to file to run for office or continue running

for office. These intents are indistinguishable. Furthermore, the official acts of

filing to run for office or to continue running for office cannot be reasonably

understood as consideration or quid pro quo in a bribery arrangement. Although

Stacy Cary’s contributions could have constituted a bribe for Judge Suzanne
2
Wooten to rule favorably in Cary’s husband’s family law case, the jury did not

have to make this determination, so each bribery conviction should be overturned.

The bribery charges are also unconstitutionally overbroad, because if filing to run

for office or continuing to run for office are official acts that a candidate or

officeholder may be bribed to undertake, any action conditioned on a campaign

contribution will subject candidates and contributors across Texas to bribery

charges.

The State’s prosecutorial theory transforms the bribery statute from a safe

harbor into a mousetrap. At trial, the prosecution argued that the only way that

Stacy Cary’s money transfers to Stephen Spencer for Suzanne Wooten’s campaign

could have constituted indirect political contributions were if the contributions

were reported by Wooten. Yet again, the State’s interpretation of the law leaves it

unconstitutionally vague and overbroad. Contributors cannot be subjected to

bribery and other criminal charges over requirements that are found nowhere in the

law and thus could not have been fulfilled since contributors are not subject to such

reporting.

Since the bribery statute is unconstitutionally vague and overbroad as

applied to Stacy Cary, the charges for money laundering and organized criminal

activity fail as well. If Stacy Cary’s conviction is upheld, the State will set a

precedent that threatens all political candidates, contributors and campaigns across
3
Texas to prosecutorial inquiries, charges and convictions for organized criminal

activity. The criminalization of Texas politics through such prosecutorial

machinations by the State should end here.

ARGUMENT

I. INTRODUCTION
When Stacy Cary paid Steven Spencer a total of $150,000 in 2008 to finance

Suzanne Wooten’s campaign for district judge in Collin County, it is likely that

Cary indirectly and illegally contributed to Wooten’s campaign, exceeding the

contribution limits by $147,500. See 6 Trial Record (“TR”) 171; TEX. ELEC. CODE

§ 253.155(b)(2)(B). Although most of this money was equalized with legitimate

contributions raised by Wooten or with Wooten’s own funds paid to Spencer for

his campaign management, Cary’s actions still circumvented campaign finance

limitations and could have been subjected to a nearly $450,000 civil penalty under

the Judicial Campaign Fairness Act. See TEX. ELEC. CODE § 253.155(f).

Under the most suspicious view of these and other facts, Stacy Cary and her

husband David may have worked with Stephen Spencer to use these illegal

contributions to unduly influence Suzanne Wooten to rule favorably in David

Cary’s family law case after she was elected. See, e.g., 7 TR 110–11; 8 TR 40–42

(detailing phone calls made by Spencer attempting to prevent Wooten’s recusal in

David Cary’s case). On the other hand, giving Cary the benefit of the doubt, she

4
simply made some very big mistakes in an effort to unseat Judge Charles

Sandoval. Even then, these mistakes may have merely reflected common practice

in Texas elections. To be sure, Wooten’s campaign finance disclosures (based on a

turnkey arrangement with Stephen Spencer) were not without precedent, and even

today political companies throughout Texas provide paid services to candidates

that are often not particularly detailed on campaign finance reports. Compare

Suzanne Wooten Judicial Candidate/Officeholder Campaign Finance Report at 7,

Jan. 15, 2009, 11 TR 2,408, available at http://204.65.203.5/public/398090.pdf

(disclosing $1,500.00 and $7,550.00 expenditures to Stephen Spencer’s SpenOff

Strategies for “Turnkey mgmt svcs fees and costs”) with Texans for Greg Abbott

Specific-Purpose Cmte. Campaign Finance Report at 494, Jan. 15, 2015, available

at http://204.65.203.5/public/643383.pdf (disclosing a $57,955.00 “advertising

expense” for “political advertising” from CrossRoads Media, LLC). Furthermore,

the elaborate lengths to which Wooten would go to accomplish her end of this

alleged bribe stretch credibility at best. See, e.g., 11 TR 2,460–2,477 (transcript of

recusal hearing in David Cary’s family law case).

Whether Stacy Cary was part of a bribery conspiracy, merely contributed to

Wooten’s campaign incorrectly, or did something in between, is, ultimately,

irrelevant. This is because the State formulated charges in such a way to ensure

that Cary could be convicted under any circumstances. To accomplish this, the
5
State and courts below ignored important provisions in Texas law. Furthermore,

chillingly, the State applied various laws—including the bribery and money

laundering statutes—in such a way as to run afoul of the First Amendment. U.S.

CONST. amend. I (“Congress shall make no law . . . abridging the freedom of

speech . . . .”) If upheld, the State’s formulation threatens all candidates,

contributors and campaigns in Texas elections.

This amicus brief takes no position on the actual guilt or innocence of Stacy

Cary or any other party to Suzanne Wooten’s campaign in 2008. However, it calls

for reversal of the courts below and an entry of acquittal for Cary. This brief urges

this Court to address the myriad First Amendment issues in this case. Not only

must the legal theory used against Cary suffer the sternest constitutional rebuke:

prosecutors across Texas must hear, unequivocally, that crimes arising from

political campaign activities must be objectively defined and enforced to comply

with the First Amendment. To do otherwise would be to subject ordinary Texans to

criminal prosecution just for engaging the political process.1

1
During the drafting of this brief, this Court granted a Petition for Discretionary
Review in the case of Stacy Cary’s husband, David Cary. Cary v. State, PD-0445-
15. David Cary’s appeal is distinct because First Amendment issues were
preserved much more clearly in his first appeal. See Cary v. State, 460 S.W.3d 731,
733 (Tex. App.–Dallas 2015). However, given the otherwise substantial similarity
of the legal charges and the facts of each case, amicus requests that this Court
consider this brief in both cases, specifically the arguments presented in sections II
6
II. THIS COURT SHOULD CONSIDER THE FIRST AMENDMENT ISSUES IN THIS
CASE
The court below did not consider the First Amendment implications of the

case against Stacy Cary. This is understandable, as Cary’s counsel did not argue

these issues on appeal. See generally Appellant’s Brief, May 17, 2013, 2013 WL

3971317, Cary v. State, No. 05-12-01421-CR (Tex. App.–Dallas). However, First

Amendment concerns were raised at trial, and this Court may consider such issues

pursuant to the Texas Rules of Appellate Procedure and relevant precedent.

Alternatively, this Court should remand this case for consideration of First

Amendment issues by the Fifth Court at Dallas or require briefing on these issues

from both parties. Given the trial court’s rejection of First Amendment

considerations, the ongoing recalcitrance against free speech by State prosecutorial

agencies, and the constitutional necessity to protect political engagement, this

Court should address the First Amendment issues in this case, specifically the as-

applied vagueness and overbreadth of the State’s prosecutorial theory.

A. First Amendment Issues Were Asserted at Trial, and This Court Should
Address Them, Remand the Case or Ask for Additional Briefing
Stacy Cary asserted a First Amendment argument against the prosecution

before her trial in a motion to quash the indictment against her. See Defendant’s

and III. See Cary, 460 S.W.3d at 733 (“the parties agree that the records in both
cases are nearly identical[.]”)
7
Supplemental Motion to Quash, Motion to Dismiss Indictment and Memorandum

in Support of Original Motion to Quash, No. 366-82212-10, May 20, 2011, 1

Clerk’s Record (“CR”) 217, 218–221, citing Buckley v. Valeo, 424 U.S. 1 (1976)

(“The Supreme Court has also long held that the giving of campaign contributions

to candidates in an election is protected by the First Amendment.”) The trial court

denied this motion. See 1 CR 275. Cary re-asserted the First Amendment after trial.

See Defendant’s Motion for a New Trial, 3 CR 1162 (“[T]he acts in question

comprise constitutionally protected speech, pursuant to the First Amendment of the

United States Constitution.”) The trial court did not rule on this motion. Although

Cary’s arguments “were not paragons of specificity, they nevertheless identified

for the trial court the issue to be ruled on and provided the trial court the

opportunity to rule.” Osterberg v. Peca, 12 S.W.3d 31, 40 (Tex. 2000). Cary’s

statements were enough for the trial court to quash the indictment upon which her

prosecution was based or to retry the case and, by extension, to preserve First

Amendment issues for consideration on appeal.

The Texas Rules of Appellate Procedure require raising arguments at trial,

but do not require preservation throughout the entire appellate process. See TEX. R.

APP. P. 33.1(a) (“the record must show that: (1) the complaint was made to the trial

court by a timely request, objection, or motion . . .” (emphasis added)). This Court

has considered numerous cases where issues were raised for the first time on
8
appeal, but there is little precedent discussing issue waiver or forfeiture during the

appellate process. See, e.g., Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.

App. 2009) (“[A] defendant may not raise for the first time on appeal a facial

challenge to the constitutionality of a statute.” (emphasis added)). Other precedent

supports recognizing the preservation of First Amendment issues raised at trial

unless unequivocally waived. See, e.g., Osterberg, 12 S.W.3d at 39–41. In Lebron

v. Nat’l R.R. Passenger Corp., the United States Supreme Court considered a First

Amendment argument raised but then specifically disavowed by the

plaintiff/appellant at the district court and again in the federal court of appeals. 513

U.S. 374, 378–383 (1995). Following the appellate rules and these precedents, this

Court can and should address the First Amendment concerns in this case.

Although waiver is a fairly well-established doctrine, it has never barred

courts from exercising their fidelity to the Constitution. “The final authority to

determine adherence to the Constitution resides with the Judiciary.” West Orange-

Cove Colso. I.S.D. v. Alanis, 107 S.W.3d 558, 563 n.11 (Tex. 2003), citing

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–78 (1803). Indeed, the very

concept of American judicial review was born of neither party in the case leading

to one of Justice Marshall’s most celebrated opinions. See Marbury, 5 U.S. (1

Cranch) at 173–180. Nevertheless, there are numerous justifications for

recognizing waiver and carefully addressing issue preservation. See Tory A.
9
Weigand, Raise or Lose: Appellate Discretion and Principled Decision Making, 17

SUFFOLK J. TRIAL & APP. ADVOC. 179, 182–187 (2012). Although amicus believes

that the First Amendment issues in this case are plain and should be considered

based on the case as presented to this Court, in the alternative amicus urges this

Court to instead remand this case for consideration of these issues by the Fifth

Court at Dallas or require the parties to brief the First Amendment issues before

this Court. See, e.g., Order List, United States Supreme Court (558 U.S.), June 29,

2009, available at http://www.supremecourt.gov/orders/courtorders/062909zr.pdf

(including order restoring argument in Citizens United v. Federal Election

Commission and requiring parties to submit briefs addressing whether the Court

should overturn prior rulings on First Amendment grounds). This Court should

take one of these actions because this case is but the latest in a series of egregious

political persecutions in Texas.

B. This Court Should Protect the First Amendment Thereby Notifying
Lower Courts, the Texas Attorney General’s Office, the Texas Public
Integrity Unit, and the Texas Ethics Commission of Their Duty to
Respect Free Speech Rights
By accepting Stacy Cary’s arguments in her brief, this Court could remedy

her wrongful conviction without broad constitutional impact. Thus, some may

argue that there is no need to address First Amendment concerns. A narrow ruling

would adhere with some well-established precedent. See Lyng v. Northwest Indian

10
Cemetery Protective Ass’n, 485 U.S. 439, 445–46 (1988) (“A fundamental and

longstanding principle of judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding them.”) Indeed, the

lower court adhered to this principle in the case against Stacy Cary’s husband and

declined to address First Amendment arguments. See Cary v. State, 460 S.W.3d

731, 733 (Tex. App.–Dallas 2015) (“We only address appellant’s first three issues

because our resolution of those issues is dispositive of this appeal.”) This Court

also recently remedied a criminal case that related to the Texas Election Code

without discussing free speech in detail. See generally DeLay v. State, 443 S.W.3d

909 (Tex. Crim. App. 2014). However, the lack of a reasoned ruling by the trial

court, the particular formulation of this case by the Texas Attorney General’s

office, past and ongoing efforts by the Texas Public Integrity Unit, and ongoing

efforts of the Texas Ethics Commission all indicate nothing less than a reckless

disregard for the First Amendment by numerous agencies of the State, and this

Court should provide notice that political speech is alive and well.2

Although many issues were raised before, during and after Stacy Cary’s

trial, this did not diminish the trial court’s duty to give constitutional objections—

2
It is no small comfort that ignorance of first principles is not limited to
prosecutors in Texas. See Two Unnamed Petitioners v. Peterson, -- N.W.2d --,
2015 WL 4376442, ¶¶ 44–76 (Wis. 2015) (“[T]he special prosecutor's legal theory
is unsupported in either reason or law.”)
11
particularly the right to free speech—due attention. See 1 CR 218–21. Some

constitutional rights are frequently implicated in criminal proceedings, such as the

Fourth, Fifth, and Sixth Amendments, and although they are raised as a matter of

routine they are seriously addressed. Free speech is seldom raised, and in criminal

cases the First Amendment often relates to what most would concede is not core

speech. See, e.g., Ex parte Thompson, 442 S.W. 325 (Tex. Crim. App. 2014).

Elections and campaign activity, however, are undeniably and inextricably tied to

political speech, which is at the core of the First Amendment. See Buckley, 424

U.S. at 14–15; 1 CR 218–21. Nevertheless, the trial court rejected all of Cary’s

First Amendment arguments without any recorded discussion. See 1 CR 275. This

is only the most recent time a trial court rejected a serious First Amendment issue.

All the more concerning is that these issues are not only ignored, but sometimes

lackadaisically brushed off, as occurred at trial in DeLay v. State. See Michael

King, Point Austin: A Hill of Beans, AUSTIN CHRON., Nov. 10, 2010, available at

http://www.austinchronicle.com/news/2010-11-19/point-austin-a-hill-of-beans/

(quoting Judge Pat Priest’s rejection of the defense of campaign finance money

swaps: “Money is absolutely fungible. It’s like beans.”) Given the power of the

State to bring criminal cases relating to elections, trial judges should be aware of

the dangers of prosecutorial overreach and curtail it when necessary. A First

Amendment ruling by this Court would affirm this duty.
12
 This Court’s recent decision in DeLay also weighs in favor of discussing

constitutional concerns. 443 S.W.3d 909. This Court upheld the acquittal of Tom

DeLay by the Third Court at Austin and rejected the State’s application of the

money laundering statute via the Election Code.3 However, the decision was

narrow, construing a heightened intent requirement in the Election Code for

criminal charges for illegal corporate contributions. Id. at 922–30. Although

rightfully ending a baseless prosecution that lasted nearly a decade, this Court’s

opinion left open the possibility that the Public Integrity Unit or other state

agencies could rightfully prosecute future Election Code violators for money

laundering and conspiracy under certain circumstances. Less than one year after

the final DeLay decision, this Court now confronts a case brought by the Attorney

General’s Office that, far from tempering the Public Integrity Unit’s overzealous

blending of the Penal Code and Election Code, adds bribery as a new ingredient.4

For two prosecuting offices to treat campaign finance violations—even

malfeasance—as organized crime begs First Amendment scrutiny, and another

3
Notably, neither of the DeLay appellate decisions were made by the time Cary
submitted her arguments to the court below. See DeLay, 410 S.W.3d 902 (opinion
issued Sept. 19, 2013); Appellant’s Reply Brief, Aug. 15, 2013, Cary v. State, No.
05-12-01421-CR (Tex. App.–Dallas).
4
Furthermore, the Public Integrity Unit may present yet another wholly innovative
case to this Court soon enough that is as plainly violative of the First Amendment
as its prosecution in DeLay. See Ex Parte Perry, No. 03-15-00063-CR, 2015 WL
4514696 (Tex. App.–Austin Jul. 24, 2015).
13
narrow ruling by this Court would merely give prosecutors the opportunity to one

day formulate what will be ominously summarized as “conspiracy to elect a

candidate.” The First Amendment should be the first reference for any criminal

prosecution involving the Election Code; in order to accomplish that, in this case it

must be the last.

Finally, the administrative agency that oversees compliance with the Texas

Election Code, the Texas Ethics Commission, also displays a stunning disregard to

free speech and understandable regulation. At Cary’s trial, an attorney from the

Ethics Commission could not provide meaningful testimony as to the filing

requirements for Suzanne Wooten, a lynchpin in the State’s prosecutorial theory.

See 6 Trial Record (“TR”) at 167–71; 180–82.5 To hear the Ethics Commission tell

it, sometimes candidates must file detailed expenditure reports for the work of

campaign consultants like Stephen Spencer, and sometimes they do not. The

inevitable arbitrary and discriminatory application of such an open-ended case-by-

case approach was of no consequence. Recent rulemakings by the Ethics

Commission led some legislators to propose reforming the agency’s rulemaking

power entirely, supported by disturbing testimony from an attorney who practices

before the commission:
5
In David Cary’s trial, the attorney’s testimony was even more inconclusive
following cross-examination. Testimony of Ian Steusloff, 6 Trial Record 66–185,
State v. Cary, No. 366-81636-2011 (Apr. 22, 2013).
14
 [T]he Ethics Commission in our experience has taken the
position—and the words were actually used—“the Constitution
does not apply; this is a state administrative agency.” And so in the
adoption of rules, and in the… application of the rules that they’ve
adopted, they’ve actually taken the position that they do not need
to consider case law, they do not need to consider the United States
Constitution, [and] they do not need to consider the cases of the
Texas courts[.]

Joe Nixon, Testimony before State Affairs Cmte. of the Texas Senate, May 4,

2015, available at http://tlcsenate.granicus.com/MediaPlayer.php?clip_id=10032

(Testimony at 01:11:30).6 The Ethics Commission maintains a staff that is assigned

to provide guidance to candidates and political speakers. See 6 TR 148–49. As

illustrated by the legal theory in this case and the testimony at trial, even with this

guidance too often candidates cannot really know whether or not they have

complied with the law until they are charged with a crime, sued civilly, or the

statute of limitations passes. The State—in this case, the Attorney General’s

Office—the Public Integrity Unit, and Ethics Commission must learn that their

obligations to the Constitution are as strong as that of the judicial branch.

Although this Court cannot rule specifically against any government agency

or official outside of an immediate case, an affirmation that First Amendment

principles apply to the Texas Election Code and election-related activity would
6
Joe Nixon is a partner at Beirne, Maynard and Parsons, LLP and works with Trey
Trainor, counsel of record on this brief. Mr. Nixon did not participate in the
preparation of this brief.
15
provide a much-needed signal to executive agencies across the state. See TEX.

CONST. art. 16, § 1. Prosecutors often seek to “send a message.” See, e.g., R.G.

Ratcliffe, Tom DeLay sentenced to 3 years in prison, HOUSTON CHRON., Jan. 10,

2011, available at http://www.chron.com/news/houston-texas/article/Tom-DeLay-

sentenced-to-3-years-in-prison-1684713.php. Many prosecutors could benefit from

receiving one, namely that the First Amendment exists, and it means what it says.

A ruling that constitutionally rebukes legal amalgamations like the one in this case

may prevent such cases from reaching this Court in the first place. By extension,

citizens like Stacy Cary would not have to endure a trial, conviction and multiple

appeals under a legal theory so laughable it includes what amounts to a “bribe to

run for office.” This call by amicus is not hyperbole; the as-applied First

Amendment problems with the State’s theory are far more dangerous than Stacy

Cary’s alleged wrongdoing.

III. TEXAS’S ANTI-CORRUPTION LAWS ARE NARROWLY TAILORED TO
SPECIFIC CONDUCT IN ORDER TO PROTECT POLITICAL SPEECH
To guard against overzealous prosecutors and ideological opponents turning

political engagement into legal offenses, the Supreme Court has routinely

construed election laws narrowly. See, e.g., Buckley, 424 U.S. at 44. Importantly,

political contributions “embody a central feature of democracy—that constituents

support candidates who share their beliefs and interests, and candidates who are

16
elected can be expected to be responsive to those concerns.” McCutcheon v. Fed.

Elec. Comm’n, 134 S.Ct. 1434, 1441 (2014). Contributions also act as a means of

political association between a candidate and supporters. Buckley, 424 U.S. at 41,

49.

The law that governs the conduct at issue in this case is found in the Judicial

Campaign Fairness Act (“Judicial Act”) and other provisions of the Texas Election

Code (“Election Code”). See TEX. ELEC. CODE § 253.151 et seq.; § 1.001 et seq.

These campaign finance rules must be presumed to be the operative, narrow set of

laws that strike the correct balance between preventing corruption and protecting

First Amendment interests. Indeed, the Election Code itself confirms this. TEX.

ELEC. CODE § 1.002 (noting that the Code is the main governor of “all general,

special, and primary elections held in this state” and “supersedes a conflicting

statute outside this code unless this code or the outside code expressly provides

otherwise.”)

A. The Texas Election Code Governed Cary’s Actions
The Judicial Act and the Election Code as a whole “lessen[] the risk that

individuals will spend money to support a candidate as a quid pro quo for special

treatment after the candidate is in office.” Osterberg, 12 S.W.3d at 47 (quoting

McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 356 (1995)). Following the plain

17
language of the law here renders a simple result: in the case at hand, prosecutors

were only entitled to apply the Election Code.

A campaign contribution is defined under Texas law as a contribution to a

“candidate or political committee that is offered or given with the intent that it be

used in connection with a campaign for elective office.” TEX. ELEC. CODE §

251.001(3). Similarly, a contribution is a “direct or indirect transfer of money,

goods, services, or any other thing of value and includes an agreement made or

other obligation incurred, whether legally enforceable or not, to make a transfer.”

TEX. ELEC. CODE § 251.001(2). There is but one narrow exception to these rules

where a campaign contribution can be considered a bribe. Under the law, this

exception requires evidence of an “express agreement to take or withhold a

specific exercise of official discretion” and that this exercise “would not have been

taken or withheld but for the benefit.” TEX. PENAL CODE § 36.02(a)(4).7 These

provisions matter. The Texas Election Code deliberately seeks to protect political

engagement by broadly defining what constitutes a contribution, and the Penal

Code complements this by making a very narrow exception for when a

contribution may be considered a bribe. Without these definitions, any fervent

7
Where judicial elections are implicated under the Judicial Act, contribution
violations are subject only to civil penalty. TEX. ELEC. CODE §§ 253.003(c),
253.155(f).

18
prosecutor could destroy the lives of politically active Texans. Furthermore, the

Penal Code places the burden on the government, not the speaker, to produce

material evidence that a quintessential act of free speech—a campaign

contribution—is really a bribe.

The record below demonstrates that, while complicated, Stacy Cary’s

funding was used for the benefit of Suzanne Wooten’s campaign. See, e.g., 7 TR

29 (“Q. … [A]absent this $25,000 from Stacy Cary, would [Stephen Spencer] be

able to pay for these radio ads [for Judge Wooten's campaign]? A. No.”) Stacy

Cary wanted to support Suzanne Wooten as a judicial candidate, and provided

what appears to be a number of excessive campaign contributions indirectly via

Stephen Spencer. Even the State’s forensic expert explicitly testified that the

money in question was “used by Stephen Spencer to benefit the campaign.” 7 TR

224. The prosecutors did not introduce any evidence of an express agreement to

bribe Suzanne Wooten to take an official act as a judge, leaving the actions in

question solely under the purview of the Election Code.

B. The State Misapplied the Bribery Statute
Rather than be confined to the boundaries of the Election Code, prosecutors

simply supplanted Texas’s bribery provisions. Political contributions may act as

bribes only when the State meets a higher burden to show “an express agreement

to take or withhold a specific exercise of official discretion” and that this exercise
19
“would not have been taken or withheld but for the benefit.” TEX. PENAL CODE §

36.02(a)(4). Texas purposefully drafted the Election Code and Judicial Act with

First Amendment concerns in mind, for the state is not free to empower political

prosecutors to roam freely, investigating at whim, and otherwise interfering in the

political lives of its citizens. See Two Unnamed Petitioners v. Peterson, -- N.W.2d

--, 2015 WL 4376442 (Wis. 2015).

The Texas Election Code and Judicial Act strike the right balance between

preventing corruption and allowing for ample political engagement. Where errors,

violations, or other incidents occur, a wide host of administrative and civil

remedies are available and provide the correct fit for the offenses in question. See,

e.g., TEX. ELEC. CODE § 253.176 (providing for formal hearings before the Texas

Ethics Commission and for civil penalties up to three times of the improper

contribution). These provisions are important because they allow for citizen

engagement in the political process, a free exercise of First Amendment rights, and

otherwise ensure that politically active, but unsophisticated, Texans will not fear

imprisonment for mistakes and violations.

The Texas Bribery Statute recognizes that there are instances when

campaign contributions act as bribes. TEX. PENAL CODE § 36.02(a)(4). But because

it imposes criminal sanctions in an area that closely abuts protected First

Amendment freedom, it requires evidence of an express agreement concerning any
20
such bribe. This imposition of an evidentiary burden on the government is the

cause of prosecutorial scorn in this case—prosecutors would have to prove their

case, rather than conjure it up. But it is this very lynchpin of the law that should

prohibit political witch-hunts in Texas and otherwise protect ordinary political

activity, like a Texan supporting a judicial candidate. Without evidence of an

express agreement—and this is a simple requirement—prosecutors have no room

to pursue bribery charges in this case. Prosecutorial dislike of evidentiary burdens

is no reason to undo the careful constitutional balancing found in the Election

Code.

Texas law does not lack a carefully developed system of anti-corruption

laws to ensure the integrity of the political process. For serious violations of the

law, Texas remedies real bribery in the Penal Code. See TEX. PENAL CODE §

36.02(a). Texas also has anti-gift laws to protect against buying the favor of

officeholders. TEX. PENAL CODE § 36.08. Finally, tying to judicial elections, the

Texas Code of Judicial Conduct secures the impartiality and integrity of the

judiciary. TEX. CODE JUD. CONDUCT, Canons 3(B)(1), 4(D), 5. And for areas

implicating ordinary political engagement that includes campaign contributions,

expenditures, and political organizational requirements, the Election Code

delicately balances First Amendment and anti-corruption concerns. In this case the

21
State flagrantly disregards these distinctions, criminalizing many forms of

constructive political engagement.

Stacy Cary’s case is not about bribery, money laundering, or organized

crime. It is rather about a political amateur whose First Amendment rights were

ignored by prosecutors when she incorrectly financed a judicial campaign. This

Court must ensure that the careful application of the Judicial Act and the entire

Election Code are honored and that the State’s attempt at criminalization of

political engagement is rebuffed.

IV. THE STATE’S APPLICATION OF THE BRIBERY, MONEY LAUNDERING, AND
ORGANIZED CRIME STATUTES ARE UNCONSTITUTIONALLY VAGUE AND
OVERBROAD
The Texas bribery and money laundering statutes are not facially vague or

overbroad. TEX. PENAL CODE §§ 34.02; 36.02. However, the State’s application of

these laws—and, by extension, the organized criminal activity statute—against

Stacy Cary took liberties that not only surpassed the laws’ plain meaning, but left

any understanding of the laws unconstitutionally vague and overbroad. Vagueness

is a due process concern that should be avoided in all statutes, and raises special

concern when affecting free speech:

[A]n enactment is void for vagueness if its prohibitions are not
clearly defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
22
 so that he may act accordingly. Vague laws may trap the innocent
by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory
application. Third, but related, where a vague statute “abut(s) upon
sensitive areas of basic First Amendment freedoms,” it “operates to
inhibit the exercise of (those) freedoms.” Uncertain meanings
inevitably lead citizens to “steer far wider of the unlawful zone . . .
than if the boundaries of the forbidden areas were clearly marked.”

Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (internal citations

omitted). Thus, “[i]f . . . the law interferes with the right of free speech or of

association, a more stringent vagueness test should apply.” Village of Hoffman

Estates v. Flipside, 455 U.S. 489, 499 (1982); see also Long v. State, 931 S.W.2d

285, 287–88 (Tex. Crim. App. 1996) (“When a statute is capable of reaching First

Amendment freedoms, the doctrine of vagueness demands a greater degree of

specificity than in other contexts.”) Overbeadth, a related but distinct doctrine,

calls for scrutinizing laws that prohibit constitutionally protected conduct along

with legitimately restricted conduct. See U.S. v. Stevens, 559 U.S. 460, 473 (2010).

The State argues that Stacy Cary’s money transfers to Stephen Spencer were

not campaign contributions, but this case undeniably involves political activity,

and this Court’s ruling will affect the interplay between the Election Code and the

23
Penal Code. The First Amendment is plainly implicated in all of the activity in

question. See McCutcheon, 134 S.Ct. at 1441 (“[Contributions] embody a central

feature of democracy—that constituents support candidates who share their beliefs

and interests, and candidates who are elected can be expected to be responsive to

those concerns.”) Thus, the more stringent tests of First Amendment vagueness and

overbreadth apply to the application of the statutes in this case.

Whether a challenge is brought facially or as-applied, First Amendment

rulings affect the parties in a particular case and beyond. As previously discussed,

this case represents the most recent in a growing line of attempts by State

prosecutorial agencies to unconstitutionally expand Texas election law. See supra

part II(B). Addressing the constitutional concerns with the State’s theory in this

case may turn the tide of this chilling wave of political persecutions.

A. The State’s Theory Leaves No Line Between Campaign Contributions
and Bribes
The bribery statute aims to punish payment for exercises of “official

discretion” that will benefit the payer. TEX. PENAL CODE § 36.02(a). The statute

covers public servants, party officials and voters, including judges who “exercise .

. . official discretion in a judicial . . . proceeding.” Id. As discussed in the previous

section, the statute is carefully tailored to prevent most campaign contributions

from being considered bribes. See supra part III. However, the State’s theory not

24
only violates the bribery statute itself, but makes it unconstitutionally vague and

overbroad with two of its applications to Stacy Cary. The State alleges that Cary’s

transactions to Stephen Spencer were bribes for Suzanne Wooten to “fil[e]

paperwork to run for judge,” to “proceed[] or continu[e] with a campaign to unseat

the incumbent elected Judge of the 380th Judicial District Court,” or to “issue

favorable rulings in cases in which the Defendant or David Cary [were] parties”

after Wooten took office. See 3 CR 1055. Only the last of these could be

reasonably understood by a person of ordinary intelligence to be prohibited by the

bribery statute. Since two of these three alternative theories are unconstitutionally

vague, the bribery convictions cannot stand. See U.S. v. Blagojevich, -- F.3d --,

2015 WL 4433687 at *3 (7th Cir. 2015) (vacating convictions for extortion when

one of three alternative theories presented to the jury was legally insufficient: “a

proposal to trade one public act for another, a form of logrolling, is fundamentally

unlike the swap of an official act for a private payment.”)

The first reason the bribery statute is unconstitutionally vague as-applied

stems from its exemption of a “political contribution” from most of its purview and

the intent required to commit a bribe. TEX. PENAL CODE § 36.02(d). The Election

Code states that a “political contribution” includes a “campaign contribution,”

which is “offered or given with the intent that it be used in connection with a

campaign for elective office or on a measure.” TEX. ELEC. CODE § 251.001(3), (5)
25
(emphasis added). This definition is further broadened by describing a

“contribution” as a “direct or indirect transfer of money, goods, services, or any

other thing of value[.]” TEX. ELEC. CODE § 251.001(2) (emphasis added). An

experienced election lawyer, much less a person of ordinary intelligence, could not

meaningfully distinguish between giving a contribution to a candidate—or, in this

case, a candidate’s campaign consultant—with the intent that it be used in a

campaign for elective office (which is required by the Election Code) and giving a

candidate money with the intent that he or she file paperwork to run for office or

continue with a campaign (as alleged by the State’s theory). The intent required by

law to make a contribution is entirely indistinguishable from two of three of the

State’s bribery theories. Since there is no way under the law for a contributor to

make these distinctions, all campaign contributions are subject to the bribery

statute under the State’s theory, leaving a jury to decide between a contribution and

what amounts to a “bribe to run for office.” See also infra part IV(C) (dispelling

the State’s “safe harbor” theory). This fails First Amendment vagueness, for if the

law may be applied this way contributors will “steer far wider of” the bribery

statute by foregoing political contributions, perhaps entirely. See Grayned, 408

U.S. at 108–09.

The second vagueness problem with the State’s application of the bribery

statute is that a person of ordinary intelligence would also distinguish a bribe from
26
a campaign contribution based on the statute’s requirement of “consideration.”

TEX. PENAL CODE § 36.02(a)(1)–(3). Although this is a legal term of art, ordinary

people understand that a bribe means getting a tangible benefit in return for a

payment, or quid pro quo. As the dissent in the court below described:

Encouraging a person to run for office, any office, in and of itself,
is a lawful and acceptable civic act, as is becoming a candidate for
public office. Encouraging a person to proceed and continue with a
campaign to unseat an incumbent judge is likewise a lawful and
acceptable civic act. It is common for citizens to engage in such
acts on a regular basis, and both acts are considered public spirited.
. . . If acts such as encouraging a person to file or encouraging a
person to keep running for office can be construed as the
consideration to establish bribery, the statute will condemn
legitimate civil and political activity and it will be left only to the
State’s imagination what an indictment could allege in terms of
similar acts . . . .

Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233, at *43 (Tex. App.–Dallas

Aug. 28, 2014). This portion of the dissent foregoes citing the First Amendment,

but the amendment exists to protect from these exact dangers. Just as the State’s

theory leaves the intent required to make a political contribution indistinguishable

from the intent to make a bribe, the theory also erases any meaningful

determination of a benefit that results from an alleged bribe. A contribution’s

constitutionally-recognized purpose as an expression of support and association

could not be distinguished from consideration. The problem is distinct, but the

27
result is the same: all political contributions under the Election Code become

subject to the bribery statute in the Penal Code, threatening to criminalize political

speech and association.

Parts of the trial record hint at the lengths to which the State’s theory could

go to criminalize political participation across Texas. For example, as one

prosecutor stated at Cary’s trial, “the other thing to remember about a bribe is that

the bribe is complete when a person makes the offer, not when it’s accepted.” 9 TR

14. One does not need an active imagination to predict how politically opposed

operatives could use the law against one another following the State’s theory. A

simple public utterance of support—“If you run for office, I will max out my

contribution!”—will be subject to complaints with a District Attorney over bribery,

and possibly indictment. Such charges may go nowhere, but they make for great

press, with the added benefit that the legitimacy of a legal theory is seldom

disclosed in a catchy headline. See, e.g., Mark Z. Barabak, Rick Perry, humble and

under indictment, announces second White House run, L.A. TIMES, June 4, 2015,

available at http://www.latimes.com/nation/politics/la-na-rick-perry-2016-

20150604-story.html. As this case and far too many other cases prove, laws meant

to prevent and punish political corruption are often the dirtiest, most corrupt

political tools. If such laws are to exist at all, they must satisfy First Amendment

vagueness concerns.
28
 The State’s third option in each bribery charge—that Stacy Cary’s

contributions were intended for Wooten to alter the outcome of David Cary’s

family law case—is an unequivocal and understandable description of bribery. But

the jury did not have to make this specific determination. Rather, as alternative

theories the contributions could be bribes to file to run for office, continue running

for office, or to rule in David Cary’s favor:

[W]e’ve alleged three different ways to commit the crime. Manner
and means. The first is persuading Suzanne Wooten to run against
Charles Sandoval. The second is persist [sic] in running. And the
third one is ruling in her favor. You may believe that the $50,000
was for her to run. You may believe the $50,000 was for her to
persist in running. And you may very well believe that the $50,000
was for her to rule. You can all get there. You don’t have to agree
on that. You only have to agree that the money was intended to get
an action from Suzanne Wooten, not necessarily exactly what that
action was.

9 TR 11 (emphasis added). The jury instructions repeatedly affirmed the validity of

this theory to the jury. See 3 CR 1055–56, 1058–64. Because the first two

applications of the statute were unconstitutionally vague, the jury’s verdict cannot

be salvaged.8

8
Even under the State’s sole legitimate conception of bribery, the State was
required to prove that Cary’s political contributions were bribes. See TEX. PENAL
CODE § 36.02(a)(4). That is, the State would have had to produce “direct evidence”
an express agreement by Judge Wooten “to take or without a specific exercise of
official discretion” and that “such exercise of official discretion would not have
29
 B. If a Candidate Can Be “Bribed” to Run for Office, Every Action Is an
Official Action
The State’s bribery theory is vague because it is impossible to understand

and would allow arbitrary and discriminatory enforcement of the statute. It is also

overbroad, because not only would any political contributor become subject to a

bribery charge, any action following a campaign contribution (or any gift of value)

would also make contributors and candidates alike subject to bribery charges. If

filing to run for office or continuing to run for office are exercises of “official

discretion” that can be “consideration” for a payment of money and thus a bribe,

then many other legitimate acts by a candidate would count as well. Many of these

would have far more direct and material benefits to the payer, contributor, or

“briber,” but would nevertheless be normally understood as perfectly legitimate—

even wholesome—acts in representative government. See Blagojevich, 2015 WL

4433687 at *3 (distinguishing quid pro quo corruption from political logrolling).

Consider, for example, a citizen who is a member of a local civic

organization. This citizen meets a candidate at a function and offers to contribute

to his campaign if he promises to speak at one of the organization’s meetings. To

be sure, this may not be particularly polite, but this does not bring it close to

corrupt behavior. Nevertheless, it bestows a benefit onto the contributor, which is

been taken or withheld but for the benefit.” The evidence presented at trial did not
meet these requirements.
30
negligible at best but still far more tangible than the candidate’s mere decisions to

run for office or continue to run for office. The candidate, meanwhile, receives a

contribution and will be speaking in his capacity as a candidate or officeholder; if

merely filing to run for office is an “exercise of official discretion,” then surely an

official appearance is as well. This is but one example of how broadly the bribery

statute will chill political speech and association across Texas if the State’s theory

is allowed to stand, and it should be prohibited as unconstitutionally overbroad.

C. A Candidate’s Failure to Report or Misreporting Cannot Be Used
Against a Contributor
To justify its treatment of Stacy Cary’s campaign contributions to Suzanne

Wooten the State argues that they were not, in fact, campaign contributions. To do

so, at trial the State imported a strategy more perverse than its expansion of the

bribery and money laundering statutes: whole-cloth invention of requirements in

the Election Code. As the State argued before the trial court:

Evidence was presented to the jury that the payments made to
Spencer for the benefit of Suzanne Wooten were a) not reported on
Suzanne Wooten’s campaign finance reports in any form; b) not
reported as a loan on Wooten’s personal financial statements and
c) over the limit of an allowable contribution to a judge. . . . Since
the evidence demonstrated that the payments made by the
Defendant do not meet the criteria for a proper legal contribution,
the Defendant’s conduct is not encompassed within §36.02(a)(4).

31
State’s Response to Defendant’s Motion for New Trial, 3 CR 1171, 1178. Indeed,

to hear the State tell it, the bribery statute’s provisions are not an added burden for

the State, but a “safe harbor” that can only be met when contributors follow each

provision of the Election Code and Government Code. See State’s Closing

Arguments, 9 TR 12. (“[F]or it to be a campaign contribution and to get this safe

harbor, it has to be properly reported. It’s not in any of the campaign finance

reports.”) This “safe harbor” is a mousetrap, and adds to the unconstitutional

vagueness and overbreadth of the State’s theory.

The Election Code places recordkeeping requirements on candidates and

committee treasurers. TEX. ELEC. CODE § 254.001. The Code also requires

candidates, officeholders and committees to file regular reports. TEX. ELEC. CODE

§§ 254.031–254.164. Recordkeeping and reporting violations are misdemeanors

applicable to candidates and treasurers. See TEX. ELEC. CODE §§ 254.001, 254.041.

Likewise, the Code only places civil liability on a “candidate or campaign treasurer

or assistant campaign treasurer of a political committee” who fails to file or files

incorrectly. TEX. ELEC. CODE §§ 254.231, 254.232. The Code’s reporting

requirements extend beyond candidates and treasurers in other instances, but these

do not relate to contributions. See, e.g., TEX. ELEC. CODE § 254.261. Contributors

like Stacy Cary, whether making a direct contribution to Suzanne Wooten or an

indirect contribution to her campaign to Stephen Spencer, have no responsibility or
32
control over reporting contributions. Since contributors cannot account for a

candidate’s filing requirements, the State’s theory presents yet another opportunity

to subject even a contributor’s wholly legal contributions to a bribery investigation,

charge, and conviction simply because the candidate fails to report it. The “safe

harbor” of reporting that the State claims will distinguish campaign contributions

from bribes is but another vague and overbroad trap.

The State has tried this strategy before. A sister agency to the Attorney

General’s Office—the Public Integrity Unit—argued in the DeLay case that Tom

DeLay’s political committee Texans for a Republican Majority received illegal

contributions from numerous corporations. The State alleged that these

contributions were illegal because certain corporations did not designate their

contributions to be used for purposes permitted by the Election Code. See, e.g.,

State’s Supplemental Letter Brief at 2–3, DeLay v. State, No. PD-1465-13, 2014

WL 3534745. Specifically, the State argued:

[A] corporation violates the Election Code if the corporation
makes a political contribution to a general purpose political
committee with the understanding and intent that the PAC will use
its funds in connection with campaigns for elective office and the
corporation does not designate or restrict those funds for a specific
lawful purpose set out in Section 253.100.

Id. This requirement remains nowhere in the Election Code itself, but is only the

result of guidance from the Texas Ethics Commission and, unfortunately, this

33
Court. Id. (citing Ex Parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010)). The

present case expands upon this approach by arguing the Election Code’s extensive

definition of “political contributions,” “campaign contribution” and “contribution”

is incomplete for purposes of the bribery statute. See TEX. ELEC. CODE §§ 251.001

(2), (3), (5). Once again, the State’s definition is one that could not be understood

by a seasoned election law expert, much less a person of ordinary intelligence.

Campaign contributions must be defined using the provisions in the Election Code.

Likewise, the safe harbor in the bribery statute must attend these provisions, and

not hinge on a contributor’s nonexistent reporting requirement.

D. Cary’s Campaign Contributions Were Not “Bribes” or Otherwise
Proceeds of “Criminal Activity” and Thus Not Subject to the Money
Laundering Statute
The money laundering charge in this case cannot stand because the funds in

question were allegedly laundered in order to commit bribery. See, e.g., 3 CR

1065; 9 TR 10 (“So the language here is knowingly finance, invest, or intend to

finance or invest funds that the Defendant believes were intended to further

criminal activity, to wit: Bribery.”) Since the State’s application of the bribery

statute is unconstitutionally vague and overbroad, the money laundering charge

also fails.

The money laundering statute cannot be readily applied to the activity in this

case in any event. The statute applies to proceeds of “criminal activity.” TEX.
34
PENAL CODE § 34.02. “Criminal activity” requires an offense “classified as a

felony” under the laws of Texas. TEX. PENAL CODE § 34.01. Although some illegal

campaign contributions are classified as felonies, this does not apply to judicial

elections. See TEX. ELEC. CODE § 253.003(c) (excluding “Subchapter F,” the

Judicial Act, from felony penalties). The only penalties under the Judicial Act for

violating contribution limits are civil. See TEX. ELEC. CODE § 253.155(f). Finally,

throughout the Election Code the worst recordkeeping and reporting violations are

misdemeanors, not felonies. See TEX. ELEC. CODE §§ 254.001, 254.041. By the

laws’ own wording, the money laundering statute does not apply to Stacy Cary’s

actions in this case.

The facts in this case would have supported several charges under the

Election Code, but none of them would have been felonies and thus could not give

rise to charges of money laundering. Even if this were possible legally, no one

reading the Election Code and even the Penal Code along with it could reasonably

expect money laundering charges to apply. Thus, for bribery and any other

application to the activities in this case, the money laundering charge is moot or

vague and overbroad as applied.

E. Campaigning Is Not “Organized Crime”
As discussed previously, only one of the State’s three bribery theories

withstands First Amendment scrutiny, but since it was one of three alternatives for
35
conviction the charges cannot be saved and all six bribery convictions must be

overturned. With this dismissal goes the money laundering charge, which required

a legitimate bribery theory for conviction. This leaves one remaining conviction:

“Engaging in Organized Criminal Activity by Conspiring to Commit the Offense

of . . . Tampering with a Government Record.” See 3 CR 1055–57. Since, like

bribery, the organized crime charge was made with three alternative theories, two

of which are unconstitutional, this charge must be overturned as well. However, it

is worth discussing the legitimacy of the remaining theory in isolation.

The vagueness problems of the State’s “safe harbor” theory of converting

illegal campaign contributions into bribes are reflected in this remaining charge.

See supra part IV(C). Stacy Cary could not report her contributions to Suzanne

Wooten’s campaign and thus could not shield herself from bribery inquiry, charges

and conviction under the State’s theory. Neither was Cary required to file a

personal financial statement under the Government Code. See TEX. GOV’T CODE §

572.021. However, according to the State’s theory, when Suzanne Wooten filed a

report that did not include Cary’s contributions (after not reporting them as

“political contribution[s] . . . as required by Chapter 254, Election Code”), it was

not merely a Class B misdemeanor committed by Wooten. TEX. GOV’T CODE §§

572.023(b)(7)(B), 572.034(b) (imposing criminal penalty only for violations

committed “knowingly and wilfully”). Nor, when Wooten filed her allegedly
36
erroneous report, did she commit a Class A misdemeanor for “knowingly mak[ing]

a false entry in . . . a government record.” TEX. PENAL CODE §§ 37.10(a)(1), (c)(1).

This was, the State claims, organized criminal activity committed by both Wooten

and Cary punishable directly to Wooten as a State Jail Felony and Cary a Class A

misdemeanor for conspiracy. See TEX. PENAL CODE §§ 71.02(a)(13), (b), (c).

This brief has discussed the vagueness and overbreadth problems in this case

ad nauseam, but this is only because the State created them. The remaining

organized crime charge, though only a misdemeanor for Cary, is perhaps the

pinnacle of the State’s amalgamation. The path that an experienced election

lawyer—much less a reasonable person of ordinary intelligence—must discern

through provisions of the Election Code, Government Code and Penal Code to

reasonably understand that a contributor could be subject to a charge of being part

of an organized criminal conspiracy for a candidate’s failure to report contributions

is wholly antithetical to the First Amendment. If there was ever proof of the

enduring necessity of the Supreme Court’s admonition against the dangers of

prolix laws in the Citizens United case, it is this part of the State’s theory. 558 U.S.

310, 324 (2010) (“Prolix laws chill speech for the same reason that vague laws

chill speech: People ‘of common intelligence must necessarily guess at [the law’s]

meaning and differ as to its application.’” (citation omitted)).

37
 The State’s entire theory in this case is unconstitutionally vague and

overbroad, and this Court rule accordingly.

V. CONCLUSION
“Like some of Goldman Sachs’s dealings with a Spanish bank, the wheeling

and dealing was a tad shady, but legal.” DeLay v. State, No. PD-1465-013, 2014

WL 4843914 (Tex. Crim. App. 2014) (Johnson, J. concurring). Stacy Cary’s

actions were at least a tad shady, and likely illegal—possibly subject to civil

penalties up to $442,500. But the State did not prove bribery under the law.

Instead, perhaps knowing it could not make a criminal case otherwise, the State

circumvented the law’s requirements and applied it in a way that no one could

have foreseen. Because running for office and supporting candidates are at the

heart of political speech and representative government, this legal theory was not

only contrary to the laws in question but also the First Amendment. If Stacy Cary’s

conviction is upheld, the State will set a precedent that threatens all political

candidates, contributors and campaigns across Texas to prosecutorial inquiries,

charges and convictions for organized criminal activity. The criminalization of

Texas politics through such prosecutorial machinations by the State should end

here.

38
 PRAYER FOR RELIEF
For the reasons stated herein, amicus requests that this Court reverse the

conviction of the Appellant in the 366th Judicial District Court of Collin County,

Texas, remand to the Fifth Court of Appeals at Dallas for consideration of the

issues discussed herein, or require briefing from the parties in this case on these

issues.

Respectfully submitted,
/s/ Trey Trainor
JAMES “TREY” TRAINOR III STEPHEN R. KLEIN*
State Bar No. 24042052 Pillar of Law Institute
Beirne, Maynard & Parsons, L.L.P. 455 Massachusetts Ave. NW
401 W 15th St Ste. 359
Ste. 845 Washington, DC 20001-2742
Austin, TX 78701-1667 (202) 815-0855 (Tel.)
(512) 623-6700 (Tel.) stephen.klein@pillaroflaw.org
ttrainor@bmpllp.com
OF COUNSEL FOR AMICUS
COUNSEL OF RECORD *Motion for pro hac vice admission
pending

39
 CERTIFICATE OF SERVICE
I certify that on July 30, 2015, a true and correct copy of this Amicus Curiae

Brief of the Pillar of Law Institute in Support of Appellant was served by

electronic filing on appellate counsel of record in this proceeding as listed below.

Counsel for State Counsel for Appellant
Ken Paxton John M. Helms
Attorney General of Texas Fitzpatrick, Hagood, Smith & Uhl LLP
Chateau Plaza, Ste. 1400
Charles E. Roy 2515 McKinney
First Assistant Attorney General Dallas, Texas 75201

Adrienne McFarland
Deputy Attorney General
for Criminal Justice

Edward L. Marshall
Chief, Criminal Appeals Division

Joseph P. Corcoran
Assistant Attorney General
Supervising Attorney for Non-Capital
Appeals Criminal Appeals Division

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548

/s/ Trey Trainor
James “Trey” Trainor III
 CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document complies

with type-volume limitations of TEX. R. APP. P. 9.4(i)(2)(B).

1. Exclusive of the exempted portions set out in TEX. R. APP. P. 9.4(i)(1), this

document contains 9,279 words.

2. This document was prepared in proportionally spaced typeface using

Microsoft Word in Times New Roman 14 for text and footnotes.

/s/ Trey Trainor
James “Trey” Trainor III