ACCEPTED
03-15-00063-CR
4835037
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/9/2015 5:27:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00063-CR
IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS
4/9/2015 5:27:50 PM
JEFFREY D. KYLE
Clerk
EX PARTE JAMES RICHARD “RICK” PERRY
ON APPEAL FROM THE 390TH JUDICIAL DISTRICT COURT,
TRAVIS COUNTY, TEXAS, CAUSE NO. D-1-DC-14-100139
APPELLANT’S REPLY BRIEF
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower San Jacinto Center
600 Travis Street, Suite 7300 98 San Jacinto Blvd., Suite 1500
Houston, Texas 77002 Austin, Texas 78701-4078
Tbuzbee@txattorneys.com tom.phillips@bakerbotts.com
Telephone: 713.223.5393 Telephone: 512.322.2565
Facsimile: 713.223.5909 Facsimile: 512.322.8363
BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Avenue
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512.479.8030
Facsimile: 512.479.8040
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES............................................................................................. iii
ARGUMENT .................................................................................................................1
I. Reply to the State’s Arguments Regarding the Facial
Unconstitutionality of the Coercion Statute. ........................................ 1
II. Reply to the State’s Arguments Regarding Governor Perry’s First
Amendment Protections. ...................................................................... 5
III. Reply to the State’s Arguments that the Legislature Can Limit the
Speech of Its Own Members. ............................................................... 8
IV. Reply to the State’s Arguments that the Face of the Statute Is Not
Overbroad. .......................................................................................... 10
V. Reply to the State’s Arguments On Strict Scrutiny Review. ............. 12
VI. Reply to the State’s Arguments Regarding “Least Restrictive
Means” of Serving a Compelling State Interest. ................................ 13
VII. Reply to the State’s Arguments on Facial Vagueness. ...................... 15
VIII. Reply to the State’s Arguments on the Cognizability of Governor
Perry’s Constitutional Arguments. ..................................................... 18
IX. Reply to the State’s Arguments Regarding Separation of Powers .... 22
X. Reply to the State’s Arguments on Speech or Debate and
Absolute Legislative Immunity. ......................................................... 24
A. The State Mischaracterizes Mutscher v. State ..........................24
B. Texas’s Speech or Debate Clause Does Not Apply Only to
Members of the Legislature ......................................................26
C. Governor Perry’s Alleged Conduct Was All Legislative in
Nature ........................................................................................28
D. The State Misstates Federal Law Regarding the Effect of
i
Legislative Immunity ................................................................30
CONCLUSION .............................................................................................................31
CERTIFICATE OF COMPLIANCE ..................................................................................34
CERTIFICATE OF SERVICE ..........................................................................................34
ii
INDEX OF AUTHORITIES
Page(s)
CASES
Baraka v. McGreevey,
481 F.3d 187 (3d Cir. 2007) ...............................................................................28
Board v. State,
No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29,
1998, pet. ref’d).................................................................................................2, 3
Bond v. Floyd,
385 U.S. 116 (1966) ..............................................................................................7
Bowles v. Clipp,
920 S.W.2d 752 (Tex. Civ. App.—Dallas 1996, writ denied) ...........................24
Canfield v. Gresham,
17 S.W. 390 (Tex. 1891).....................................................................................24
Carey v. Brown,
447 U.S. 455 (1980) ..............................................................................................4
Connick v. Myers,
461 U.S. 138 (1983) ..............................................................................................6
Duncantell v. State,
230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)........2, 3, 10
Emergency Network v. Bush,
323 F.3d 937 (11th Cir. 2003) ............................................................................28
Empress Casino Joliet Corp. v. Blagojevich,
638 F.3d 519 (7th Cir. 2011) ..............................................................................28
Ex parte Boetscher,
812 S.W.2d 600 (Tex. Crim. App. 1991) ...........................................................18
Ex parte Doster,
303 S.W.3d 720 (Tex. Crim. App. 2010) ...........................................................20
iii
Ex parte Mattox,
683 S.W.2d 93 (Tex. App.—Austin 1984, pet. ref’d) ..................................21, 22
Ex parte Ragston,
402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) ................................20
Garcetti v. Ceballos,
547 U.S. 410 (2006) ..............................................................................................6
Gravel v. United States,
408 U.S. 606 (1972) ......................................................................................29, 31
Helstoski v. Meanor,
442 U.S. 500 (1979) ............................................................................................19
Hutchinson v. Proxmire,
443 U.S. 111 (1979) ............................................................................................29
Imbler v. Pachtman,
424 U.S. 409 (1976) ............................................................................................31
In re Perry,
60 S.W.3d 857 (Tex. 2001).................................................................................27
Jenevein v. Willing,
493 F.3d 551 (5th Cir. 2007) ................................................................................ 6
Johanns v. Livestock Mktg. Ass’n,
544 U.S. 550 (2005) ..........................................................................................7, 8
Jorgensen v. Blagojevich,
811 N.E.2d 652 (Ill. 2004) ..................................................................................28
Karenev v. State,
281 SW.3d 428 (Tex. Crim. App. 2008) ............................................................19
Kilbourn v. Thompson,
103 U.S. 168 (1880) ............................................................................................24
Mutscher v. State,
514 S.W.2d 905 (Tex. Crim. App. 1974) ...............................................24, 25, 26
iv
N.A.A.C.P v. Claiborne Hardware Co.,
458 U.S. 886 (1982) ..........................................................................................3, 4
O’Shea v. Littleton,
414 U.S. 488 (1974) ............................................................................................31
Org. for a Better Austin v. Keefe,
402 U.S. 415 (1971) ..........................................................................................4, 9
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) ..........................................................................................7, 8
Puckett v. State,
801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)..........1, 2, 3
Saldano v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002) .............................................................28
Sanchez v. State,
995 S.W.2d 677 (Tex. Crim. App. 1999) ............................................................. 4
State Emps. Bargaining Agent Coal. v. Rowland,
494 F.3d 71 (2d Cir. 2007) .................................................................................28
State v. Hanson,
793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) .....................................15, 16
State v. Holton,
997 A.2d 828 (Md. Ct. Spec. App. 2010) ...........................................................30
Tenney v. Brandhove,
341 U.S. 367 (1951) ............................................................................................24
Torres Rivera v. Calderon Serra,
412 F.3d 205 (1st Cir. 2005) ...............................................................................28
United States v. Gillock,
445 U.S. 360 (1980) ............................................................................................31
United States v. Kozminski,
487 U.S. 931 (1988) ......................................................................................13, 14
v
United States v. Mandel,
415 F. Supp. 1025 (D. Md. 1976) ...........................................................27, 28, 30
United States v. Stevens,
559 U.S. 460 (2010) ............................................................................................11
United States v. Williams,
553 U.S. 285 (2008) ..............................................................................................5
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) ............................................................................................11
Wood v. Georgia,
370 U.S. 375 (1962) ..............................................................................................6
STATUTES
Tex. Code Crim. Proc. art. 21.03 .............................................................................19
Tex. Penal Code § 1.07(a)(48) .............................................................................1, 17
OTHER AUTHORITIES
Tex. Const. art. IV, § 9.......................................................................................27, 29
Tex. Const. art. IV, § 14.....................................................................................27, 29
vi
ARGUMENT
I. Reply to the State’s Arguments Regarding the Facial Unconstitutionality
of the Coercion Statute. 1
Instead of beginning its facial challenge with a textual analysis of
Section 36.03(a)(1) and Section 1.07(a)(9)(F), as Governor Perry did in his brief,
App.Br. at 17-22, the State leads with the truism that the First Amendment is not
absolute. St.Br. at 6. Having shown that not every utterance is automatically
protected, the State then claims that Governor Perry’s speech was unprotected
because it amounted to a “retaliatory act,” “verbal extortion,” or a “quid pro quo
threat[] made under a display of authority and power.” Id. at 7. But the text of the
sections under challenge criminalizes far more than retaliation, extortion, and quid
pro quo threats. See App.Br. at 10-17. Indeed, the constitutional issues of
overbreadth (and also vagueness) arise only when Section 36.03(a)(1) is read, as it
must be, in conjunction with Section 1.07(a)(9)(F); together, they do not require the
“coercion” to be illegal, unlawful, tortious, or even a “true threat.” 2
The State’s cases do not save these provisions. Its main authority, Puckett v.
State, 801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d),
1
See State’s Issue I(A) at 6-7, 14.
2
Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section
36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined
by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or
tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code
§ 1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with
Section 1.07(a)(9)(F), covers any and all conduct or speech that can be construed as a “threat” if it
otherwise meets the requirements of Section 36.03(a)(1).
1
addressed both facial and as-applied challenges to the more narrowly drawn
retaliation statute, Section 36.06(a), by a defendant who “repeatedly stated in no
uncertain terms that he would kill [the arresting officer] when he got out of jail.” Id.
at 194. The court said that “it is clear that these statements by [Puckett] could
reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,”
and hence not protected speech. Id. Similarly, Board v. State, No. 03-96-00024-CR,
1998 WL 271043 (Tex. App.—Austin May 29, 1998, pet. ref’d), involved a
challenge to the tampering statute, Section 36.05, in conjunction with the narrower
definition of “coercion” in Section 1.07(a)(9)(D), which criminalizes a threat “to
expose a person to hatred, contempt or ridicule.” Finally, the State points to
Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d), which it says involves “the same type of unprotected conduct Section 36.03
regulates.” St.Br. at 14. There, the court rejected an overbreadth challenge to the
“interference with public duties” statute, Section 38.15(a)(1), after finding that the
defendant engaged in conduct which he knew or should have known would interrupt,
disrupt, impede, or interfere with a peace officer performing a duty imposed by law,
“such as investigating an accident or arresting a criminal suspect.” 230 S.W.3d at
844. That, the court held, “was not expressive conduct protected by the First
Amendment.” Id. (emphasis added). Importantly, the court specifically noted that
Section 38.15(d) “provides that it is a defense to prosecution under the statute if the
2
interruption, disruption, impediment, or interference alleged consists of speech only.”
Id. at 843 (emphasis added). Accordingly, the court stated “we must only examine
the interference statute’s limitations on conduct to determine if it restricts a
substantial amount of constitutionally protected conduct.” Id. at 844-845 (emphasis
added).
Governor Perry, of course, was indicted under a materially different provision
of the Penal Code, Section 36.03(a)(1), in conjunction with the broader definition of
“coercion” in Section 1.07(a)(9)(F). But even if Puckett, Board, and Duncantell
supported the State’s frighteningly narrow view of First Amendment protections,
they would not bind this Court because they would be irreconcilable with the U.S.
Supreme Court authority cited in Governor Perry’s brief. App.Br. at 11-15. The
State never acknowledges, let alone distinguishes, cases like N.A.A.C.P v. Claiborne
Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech does not
lose its protected character . . . simply because it may embarrass others or coerce
them into action.” (Emphasis added). The facts of Claiborne are particularly
instructive. There, a civil-rights boycott organizer warned that boycott breakers
would be “disciplined,” and that “if we catch any of you going into any of them
racist stores, we’re gonna break your damn neck.” Id. at 902. While such statements
“might have been understood as inviting an unlawful form of discipline or, at least,
as intending to create a fear of violence,” id. at 927, they still enjoyed First
3
Amendment protection because expression on public issues “has always rested on
the highest rung of the hierarchy of First Amendment values.” Id. at 913 (quoting
Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Org. for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were intended to
exercise a coercive impact on respondent does not remove them from the reach of
the First Amendment. Petitioners plainly intended to influence respondent’s
conduct by their activities; that is not fundamentally different from the function of a
newspaper.” (emphasis added)).
The State then points to the language of Sanchez v. State, 995 S.W.2d 677,
687-88 (Tex. Crim. App. 1999), which noted that “verbal extortion ‘has no more
constitutional protection than that uttered by a robber while ordering his victim to
hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official
oppression by sexual harassment under Section 39.03(a)(3)—merely analogized
sexual harassment by a public servant to official extortion and bribery on the ground
that “the receipt of someone’s submission to sexual conduct” was comparable to
“the use of official power to obtain a benefit to which the official was not otherwise
entitled” in the form of “money or tangible property.” 995 S.W.2d at 688. 3 Count II
3
In Sanchez, the Court of Criminal Appeals commented that if the official oppression
statute were to cover “conduct welcomed by the recipient in a corrupt bargain,” then such conduct
could also be prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 675 n.5.
Similarly, if there were any facts supporting the State’s use of its colorful metaphors such as quid
pro quo, extortion, or indirect benefits, then the State could have sought an indictment under
statutes applicable to that type of conduct.
4
of the indictment does not allege extortion, bribery, or receipt of a personal benefit.
More importantly, any such allegations would be irrelevant to Governor Perry’s
facial challenge because the plain language of Section 36.03(a)(1) and Section
1.07(a)(9)(F) extends far beyond extortionate threats or bribery.
II. Reply to the State’s Arguments Regarding Governor Perry’s First
Amendment Protections.4
The State also advances the novel claim that Governor Perry cannot make a
facial overbreadth challenge to Section 36.03(a)(1) and Section 1.07(a)(9)(F)
because, in exercising his official duties as Governor of Texas, he enjoyed no First
Amendment rights. See St.Br. at 8-10. The State points to two recognized instances
of prohibition: (1) certain government-employee speech, which is subject to no
greater First Amendment protection than the speech of private employees; and
(2) the concept of government speech itself. Id. But neither situation has anything
to do with criminalizing speech, much less criminalizing an elected official’s
political speech through the mechanism of an overboard statute. Furthermore,
because facial overbreadth analysis deals not with the statute as applied to the
particular defendant, but whether “it prohibits a substantial amount of protected
speech,” United States v. Williams, 553 U.S. 285, 292 (2008), Governor Perry’s own
First Amendment rights are irrelevant to the resolution of his facial overbreadth
challenge.
4
See State’s Issue I(B) at 8-10.
5
The State begins by pointing out that the First Amendment generally does not
protect statements made by public servants in the course of their employment.
St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S. 410, 422 (2006)). But this
employee-speech “exception” is not really an exception at all—it just makes
unelected public servants, who are employees, subject to civil employment-law
standards comparable to employees in the private sector. Just like a private
employer, governmental entities “need a sufficient degree of control over their
employees’ words and actions” to ensure the “provision of public services.”
Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143 (1983)
(“[G]overnment offices could not function if every employment decision became a
constitutional matter.”).
The rights of those directly elected by the people, such as the Governor of
Texas, are not so limited. Indeed, political speech by elected officials, whose
“relationship with [their] employer [i.e., the people] differs from that of an ordinary
state employee,” “is at the core of the First Amendment.” Jenevein v. Willing, 493
F.3d 551, 557 (5th Cir. 2007) (finding First Amendment violation by Texas judicial
conduct commission when censuring elected judge for public criticism of attorney
practicing in his court). “The role that elected officials play in our society makes it
all the more imperative that they be allowed freely to express themselves on matters
of current public importance.” Wood v. Georgia, 370 U.S. 375, 395 (1962)
6
(reversing contempt conviction of elected sheriff based on criticism of court’s grand
jury investigation). The Supreme Court has expressly rejected the idea that the First
Amendment protects only the “citizen-critic” and not elected officials as well. Bond
v. Floyd, 385 U.S. 116, 136 (1966) (state legislature violated elected representative’s
First Amendment rights by refusing to seat him based on his controversial remarks
about the Vietnam War).
The State also errs by characterizing Governor Perry’s alleged threat as
“government speech” exempt from the First Amendment—as if anything uttered by
a government employee, or the Governor himself, can be criminalized without any
First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for that
bizarre and dangerous notion have nothing whatsoever to do with criminalizing
speech. They merely acknowledge that the First Amendment generally allows the
government to communicate its own particular viewpoints without subsidizing or
promoting other viewpoints to the same extent as its own. See Pleasant Grove City v.
Summum, 555 U.S. 460, 467 (2009) (city could select which monuments to place in
public park); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 561 (2005) (federal
government could choose to spend money promoting beef consumption). These
cases do not authorize the government to criminalize speech by government
employees or anyone else, must less elected leaders.
Even if “government speech” did amount to a wholesale withdrawal of First
7
Amendment rights, Governor Perry’s alleged threat is not the sort of
officially-sanctioned “government speech” involved in the cases the State cites. His
statements—which the State in its “bill of particulars” now asserts were never made
directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were allegedly “implied
or disguised,” see St.Br. at xvi—were not presented as the official viewpoint of the
State of Texas. Cf. Pleasant Grove, 555 U.S. at 473-74 (city spoke through a Ten
Commandments monument when it “took ownership of that monument and put it on
permanent display in a park that it owns and manages and that is linked to the City’s
identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was government
speech because the activities were “prescribed by law in their general outline” and
“developed under official government supervision”). The State wants to have it both
ways: characterizing Governor Perry’s alleged speech as the official position of the
State while at the same time prosecuting him as an individual for expressing it.
III. Reply to the State’s Arguments that the Legislature Can Limit the
Speech of Its Own Members.5
From its faulty premise that speech by government officials enjoys no First
Amendment rights, the State then concludes that the Legislature can always limit the
speech of its own members without running afoul of the First Amendment, even if
that requires restricting some “incidental” private speech in the process. St.Br. at
10-11. The State argues that the specific statutory language at issue merely restricts
5
See State’s Issue I(C) at 10-11.
8
private speech in order to express the “viewpoint” that “official speech should not be
coerced speech.” Id.
The State’s apparent argument is that Section 36.03(a)(1) and Section
1.07(a)(9)(F) express a government “viewpoint” and can therefore freely criminalize
any private speech made with the intent to influence the speech (or conduct) of a
public official, regardless of the words used, without further First Amendment
concerns. Thus, under the State’s argument, a newspaper editorial expressing the
personal view of the editor, which was intended to pressure and have a “coercive
impact” on a public servant, could be criminalized, even though the First
Amendment clearly protects such speech. Org. for a Better Austin, 402 U.S. at 419
(emphasis added).
The State’s argument also mistakenly assumes that the coercion statute “is the
Texas Legislature regulating its own speech and actions.” St.Br. at 11. But the State
fails to account for the statutory exception of Section 36.03(c), which—far from
regulating the Legislature’s “own speech”—excludes from the purview of Section
36.03(a)(1) “official actions” taken by “a member of the governing body of a
governmental entity” that are intended to influence another public servant. This
exception reflects a legislative determination that “coercion” by one public servant
against another public servant is not always or even necessarily a crime under
Section 36.03(a)(1). Indeed, when the defendant is himself or herself a public
9
servant (i.e., “a member of the governing body of a governmental entity”) and the
defendant takes “official action” that “influences or attempts to influence a public
servant” (i.e., the alleged victim of the “coercion”), there is no crime under Section
36.03(a)(1). The statutory exception negates the State’s argument here that the
Legislature was attempting to limit its own speech. But even if the State’s
explanation were not so obviously wrong on so many levels, the State never explains
how the Legislature, under the guise of “regulating its own speech,” could abrogate
individual members’ constitutional rights (much less those of anyone else).
IV. Reply to the State’s Arguments that the Face of the Statute Is Not
Overbroad.6
In responding to Governor Perry’s overbreadth arguments, the State initially
relies on Duncantell, discussed above, to argue that a statute cannot be overbroad if
the defendant is entitled to no constitutional protection. St.Br. at 14. As discussed
above, this argument lacks any merit.
The State also claims that even though Section 36.03(a)(1) and Section
1.07(a)(9)(F) are content-based restrictions on speech, the presumption of
constitutionality applies because “regulating coercive threats by public officials is
distinct from regulating purely political speech by private citizens.” Id. at 14-15.
This illusory distinction is built on the same false premise discussed above, that
speech by a government official inherently lacks First Amendment protection. It has
6
See State’s Issue I(C)(1) at 13-19.
10
absolutely no probative value in relation to Governor Perry’s facial overbreadth
challenge.
The State also misstates the applicable test for Governor Perry’s facial
overbreadth challenge in saying that, whether his claim is based on the First
Amendment or not, he “must prove that a prosecution can never be constitutionally
applied to any Texas defendant charged with the statute at issue.” Id. at 15. In other
words, says the State, “if the court can identify any factual circumstances in which
the statute is valid, the facial challenge must fail.” Id. The State is wrong; this is a
First Amendment challenge and the chilling effect of an overbroad restriction
justifies the invalidation of a statute if “a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation
marks omitted)); see also App.Br. at 9.
After misstating the proper test, the State tenders five “hypothetical factual
circumstances” in an effort to demonstrate the statute’s lack of overbreadth. St.Br.
at 15-16. These “hypotheticals” have no bearing on the overbreadth of Section
36.03(a)(1) and Section 1.07(a)(9)(F), because, even if a statute happens to have a
few valid applications, the proper test requires an examination of whether the
statutory language sweeps up a substantial amount of protected speech. The
11
statutory language at issue is in no way narrowly tailored to prohibit only
unprotected speech, and the State never argues otherwise. In any event, and for any
number of reasons, while some of the hypotheticals appear to violate various statutes,
none actually reflects a violation of the provisions at issue here—Section 36.03(a)(1)
and Section 1.07(a)(9)(F)—even disregarding the statutory exception of Section
36.03(c). The first three potentially reflect violations of Section 36.04 (the improper
influence statute) and Section 39.03 (the official oppression statute), while the last
two do not reflect a violation of any criminal statute.
V. Reply to the State’s Arguments On Strict Scrutiny Review.7
The State suggests that strict scrutiny is inapplicable because “only
content-based regulation on private citizen’s speech would be held presumptively
invalid and subject to strict scrutiny.” St.Br. at 19-20 (emphasis in original). This
argument again draws upon the inaccurate premise that, despite prosecuting
Governor Perry as an individual, his speech was “employee” or “government”
speech outside the purview of the First Amendment. Furthermore, the State does not
address the fact that Section 36.03(a)(1) and Section 1.07(a)(9)(F) prohibit threats
with a certain content and are thus plainly content-based restrictions. In fact, the
State’s assertion that Section 36.03 “only criminalizes two categories of
coercion—physical threats and threats of official action,” St.Br. at 22 (emphasis
7
See State’s Issue I(C)(2) at 19-21.
12
added), essentially admits that the statute is content based.
VI. Reply to the State’s Arguments Regarding “Least Restrictive Means” of
Serving a Compelling State Interest. 8
The State does not directly respond to Governor Perry’s arguments that
Section 36.03(a)(1) and Section 1.07(a)(9)(F) are not the least restrictive means of
serving a compelling state interest. See App.Br. at 17-22. Rather, it argues by
analogy to extortion that “Texas has a singular interest in intervening when public
officials try to leverage the power of government for their personal or political
whims.” St.Br. at 21.
But other statutes criminalize the factual scenarios (i.e., hypotheticals) that the
State believes are covered by Section 36.03(a)(1) and Section 1.07(a)(9)(F). See id.
at 15-16. This only further illustrates that Section 36.03(a)(1) and Section
1.07(a)(9)(F) cannot be the least restrictive means for accomplishing the State’s
purpose.
Additionally, the State asserts that the statutory language merely prohibits
“physical and legal coercion,” which it claims can be constitutionally prohibited
under United States v. Kozminski, 487 U.S. 931 (1988). But the State never explains
how the statutory language can be construed as limited to “physical or legal
coercion.” Kozminski certainly does not stand for that proposition. It holds only that
the Thirteenth Amendment’s definition of “involuntary servitude”—which would be
8
See State’s Issue I(C)(2) at 21-22.
13
applied to two federal criminal statutes, 18 U.S.C. Section 241 (conspiracy against
rights) and 18 U.S.C. Section 1584 (the involuntary servitude statute)—includes
work forced upon a person by “physical or legal coercion.”9
The definition of “coercion” under Section 36.03(a)(1) and Section
1.07(a)(9)(F) is far broader than the coercion barred by the Thirteenth Amendment.
Kozminski lends no support to the State’s argument that these Texas statutes are the
least restrictive means to achieve a compelling legislative purpose consistent with
the First Amendment. 10
9
Even less persuasive is the State’s reliance on Justice Brennan’s concurring opinion in
Kozminski, which contained the proposed holding—explicitly rejected by the full Court—that the
term “involuntary servitude” should include “any means of coercion that actually succeeds in
reducing the victim to a condition of servitude resembling that in which slaves were held before
the Civil War.” Kozminski, 487 U.S. at 950 (emphasis added; internal quotation marks omitted).
10
Significantly, the Kozminski Court carefully preserved ample space for free speech by
greatly limiting what counted as “legal coercion” for purposes of the Thirteenth Amendment and
the two statutes involved. The Court rejected the government’s argument that a broad construction
of “involuntary servitude” should be adopted that would “prohibit the compulsion of services by
any means that, from the victim’s point of view, either leaves the victim with no tolerable
alternative but to serve the defendant or deprives the victim of the power of choice.” Kozminski,
487 U.S. at 949. According to the Court, under the government’s proposed interpretation,
“involuntary servitude would include compulsion through psychological coercion as well as
almost any other type of speech or conduct intentionally employed to persuade a reluctant person
to work.” Id. The Court stated that the government’s proposed interpretation “would appear to
criminalize a broad range of day-to-day activity,” including “a parent who coerced an adult son or
daughter into working in the family business by threatening withdrawal of affection,” as well as “a
political leader who uses charisma to induce others to work without pay.” Id. According to the
Court, the government’s hypotheticals “suggest” that its proposed construction would “delegate to
prosecutors and juries the inherently legislative task of determining what type of coercive
activities are so morally reprehensible that they should be punished as crimes,” and “would also
subject individuals to the risk of arbitrary or discriminatory prosecution and conviction” while
“fail[ing] to provide fair notice to ordinary people who are required to conform their conduct to the
law.” Id.
14
VII. Reply to the State’s Arguments on Facial Vagueness.11
The State’s response to Governor Perry’s facial vagueness challenge contains
two propositions: (1) State v. Hanson, 793 S.W.2d 270 (Tex. App.—Waco 1990, no
pet.), relied upon by Governor Perry, is distinguishable; and (2) the Legislature
intended the statute to criminalize threats of lawful action due to the insertion and
subsequent deletion of the requirement that the threat be “unlawful.” St.Br. at 24-30.
These arguments lack merit.
The State’s contention that Hanson is distinguishable because Governor Perry
allegedly did not have the “legal authority to demand an elected district attorney’s
resignation,” St.Br. at 25, is short of the mark for multiple reasons. The State cites
no authority for its bald assertion that a Governor cannot call for any elected official
to resign. Indeed, it is beyond dispute that anyone, whether a private citizen or an
elected public servant, has an unfettered First Amendment right to call for the
resignation of any elected public servant. The State’s contrary position
demonstrates the broad, chilling effect of its interpretation: no one in
government—indeed no one at all—could call for the resignation of an elected
official unless he or she has the right to remove that elected public official from
office, which is a power rarely if ever in the possession of those who demand
resignations. If in fact Governor Perry did call for Lehmberg’s resignation, that
11
See State’s Issue II at 23-30.
15
would have been entirely appropriate, given Lehmberg’s egregious conduct, the
Legislature’s response, the public debate regarding her potential resignation, and the
pendency of the removal lawsuit(s) filed against her. These are core political issues,
and merely voicing one’s views on such matters in an effort to produce a political
result cannot be a criminal act in any true democracy, much less one governed by the
First Amendment.
But the very premise of the State’s purported distinction also fails. Judge
Hanson, as a county judge, had no authority on her own to terminate the county’s
funding of the salaries of a deputy district clerk and an assistant district attorney.
Thus, the State’s test cannot even explain the result in Hanson, much less distinguish
it from this case. In fact, that test has the opposite effect, as here Governor Perry had
the unfettered right to veto funding for the PIU. Rather, Judge Hanson’s threat to
terminate the county’s funding of the two positions was an effort to coerce: (a) the
district judge into firing the county auditor; and (b) the country attorney into
revoking a misdemeanant’s probation—two actions which she did not have the
authority to take herself. The State’s effort to distinguish Hanson, even disregarding
the State’s utilization of the incorrect vagueness standard, wholly lacks merit.
The State’s second assertion, that the Legislature intended to allow threats of
lawful action to be criminalized under Section 1.07(a)(9)(F), also fails. While it is
true that the term “unlawful” was included and then subsequently omitted from the
16
definition of “coercion,” the State’s assertion of the legislative purpose is based
solely on speculation about a change that occurred at conference committee as one
small part of a massive overhaul of the Penal Code. Nothing in any testimony or
written bill analysis makes the State’s hypothesis about the members’ motives any
more likely than the hypothesis that the word “unlawful” was simply omitted by
oversight when the conference committee rejected the House’s new approach. 12
As argued by Governor Perry, the case law is clear that a threat to do what one
has a legal right to do cannot even constitute duress, and thus would not fall within
the definition of “unlawful.” App.Br. at 25-26. So even if the State is correct that
the word “unlawful” was intentionally omitted at conference committee, it cannot be
concluded that the Legislature intended the statute to cover non-tortious conduct.13
Rather, the omission of the requirement that the threat be “unlawful” serves to
demonstrate the extreme overbreadth of the statute as well as its insoluble vagueness,
as no individual is placed on notice that Section 36.03(a)(1) and Section 1.07(a)(9)(F)
criminalize otherwise “lawful” threats.
12
The definition of “coercion” was originally a portion of Section 36.03, but it was
subsequently moved to Section 1.07 so that it would be applicable to all crimes in the Penal Code
that include or rely upon a definition of “coercion,” such as theft.
13
This follows because “unlawful” under Section 1.07(a)(48) includes “tortious conduct,”
including what would be tortious “but for a defense not amounting to justification or privilege.”
Obviously, the term “unlawful” does not cover “lawful” conduct.
17
VIII. Reply to the State’s Arguments on the Cognizability of Governor Perry’s
Constitutional Arguments. 14
The State responds that “evidence” must be presented at a trial on the merits
before any court can address Governor Perry’s constitutional claims. St.Br. at 31.
But whether the State chooses to address them or not, numerous cases compel the
conclusion that his constitutional claims are cognizable and currently ripe for
adjudication. The State never responds to Governor Perry’s arguments that his
separation of powers, Speech or Debate, and legislative immunity challenges all
involve a right not to be tried which can only be vindicated before trial occurs.
App.Br. at 35-37.15
Judge Richardson, at the State’s urging, followed a rigidly mechanical
approach, reasoning that because Governor Perry conceded that the coercion statutes
can in some circumstances and in conjunction with some definitions be
constitutional, it follows that his constitutional rights cannot be vindicated short of a
full trial on the merits. But Governor Perry in no way “conceded himself” out of
court, because his complaints here—all of which can be decided based on the face of
14
See State’s Issue III at 31-43.
15
Even when the State does address Governor Perry’s authorities, it does so without
probative force. For instance, in attempting to distinguish Ex parte Boetscher, 812 S.W.2d 600
(Tex. Crim. App. 1991), St.Br.at 33-34, the State fails to acknowledge that the Boetscher court
relied upon the facts alleged in the indictment to resolve the issues raised in the pretrial writ of
habeas corpus and, based on the statute and the indictment facts, ordered the indictment dismissed.
See 812 S.W.2d at 604. Also, Boetscher explicitly reserved for another day the question of the
statute’s constitutionality as applied to a different set of facts, the hallmark of an as-applied
challenge. See id. at 604 n.8.
18
the indictment—are not true “as applied” challenges.16
Three critical principles, to which the State tellingly never responds, compel
the conclusion that all of Governor Perry’s issues are cognizable. These are: the
absence of an adequate remedy of law in light of his claims seeking to prevent a trial;
that a favorable resolution by the court would result in the immediate release of
Governor Perry from his illegal restraint; and that the current resolution of his issues
would certainly result in judicial economy. See App.Br. at 32, 35-37 (citing, in
particular, Helstoski v. Meanor, 442 U.S. 500 (1979)).
Additionally, the State’s insistence that “the resolution of [these claims] may
be aided by the development of a record at trial,” St.Br. at 37, ignores common sense.
If the statutes and indictment currently demonstrate that the prosecution is
unconstitutional and should be barred, the “development of a record at trial” can
make the prosecution no less deficient—indeed, a trial would only exacerbate the
violation of Governor Perry’s constitutional rights. The law requires that
“everything should be stated in an indictment which is necessary to be proved.” Tex.
Code Crim. Proc. art. 21.03.
The State’s effort to deflect Governor Perry’s argument that his claims are the
16
The State fails to address the language of Karenev v. State, 281 SW.3d 428, 435 (Tex.
Crim. App. 2008), which directly supports the proposition that Governor Perry’s claims are not
true “as applied” challenges. Governor Perry made this proposition clear in his application for writ,
CR41, in his reply to the State’s answer to his writ, CR417-419, and in his brief to this Court.
App.Br. at 34.
19
functional equivalent of facial attacks again fails to address the policy considerations
noted above. See St.Br. at 37-43. More importantly, the State’s reliance on Ex parte
Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013), aff’d on other
grounds sub nom., Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014), is
completely misplaced. Although the defendant could not constitutionally be
sentenced to death because he was under eighteen years of age at the time he
allegedly committed the murder, the court correctly noted that Ragston made no
challenge to the capital murder statute under which he was charged. 402 S.W.3d at
476. His constitutional challenge to the potential punishment would arise only if and
when he was convicted and the death sentence imposed. Id. Thus, his claim, “even
if successful, would not result in [his] immediate release because it is directed to the
sentence to be imposed after conviction, not the validity of the present indictment.”
Id. (citing Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). He
would then have the opportunity for a full, adequate, and timely remedy on direct
appeal. Thus, the Ragston court properly sustained the State’s challenge to the
cognizability of his constitutional issue.
The State also asserts that “[t]hirty years ago, lawyers for Jim Mattox
advanced the same arguments as [Governor Perry] now urges” and that this Court
“summarily dismiss[ed]” the appeal. St.Br. at 40. But that case strongly supports
this Court’s authority to reach Governor Perry’s present claims.
20
First, the Court did not “summarily dismiss” the appeal; rather, it denied relief
on claims that were materially different from what Governor Perry raises. Mattox’s
first two appellate issues, which the Court “overrule[d],” “were that the indictments
were fundamentally defective.” Ex parte Mattox, 683 S.W.2d 93, 95-96 (Tex.
App.—Austin 1984, pet. ref’d). This Court relied upon a long line of cases that
habeas corpus is not available to test the sufficiency of the charging instrument. Id.
at 96.
Second, even as it overruled Mattox’s first two claims, this Court
affirmatively acknowledged its authority to consider and grant habeas relief upon a
challenge to the legal authority of the State to prosecute the accused. Id. This is
exactly the challenge that Governor Perry has made.
Third, this Court in fact did examine the merits of Mattox’s third and fourth
issues, which challenged the constitutionality of the commercial bribery statute as
“vague on its face and as applied to the facts alleged in the indictment.” Id. Both
challenges were overruled, but only after the Court addressed the arguments and
stated the following regarding Mattox’s “as applied” contention. As the Court
explained with regard to the fourth issue:
For one lawyer to offer another lawyer an economic benefit in
consideration for the latter’s breach of a fiduciary duty owed to a client
is not a legitimate negotiating tactic; it is bribery. It is just such conduct
that has been alleged against Mattox in the indictments pending
against him.
21
Id. at 98 (emphasis added). Contrary to the State’s argument, there was no
“summary dismissal” on the ground that the issues were not cognizable in pretrial
habeas, and this Court should likewise reach Governor Perry’s challenges to the
State’s legal authority to prosecute him.
Finally, as to Count I, the State contends that “[t]here are limitless ways in
which a public servant may use government property in unauthorized way [sic]. In
this case, the State will prove that a coercive threat followed by a retaliatory action
constitutes both Coercion of a Public Servant and Abuse of Office.” St.Br. at 43-43.
Governor Perry is at a loss to understand how this statement has any impact on the
cognizability of his constitutional claims. The “government property” to which the
State refers is the gubernatorial right to veto an item of appropriation. See March 2,
2015 SuppCR at 4 (the State’s so-called “bill of particulars”). Whether an intangible
right can form the basis of the abuse of official capacity statute has been raised by
Governor Perry but not yet addressed or resolved by Judge Richardson, and has no
bearing upon this appeal or the cognizability of Governor Perry’s constitutional
issues.
IX. Reply to the State’s Arguments Regarding Separation of Powers. 17
The State’s responses to Governor Perry’s Separation of Powers challenge,
App.Br. at 38-45, fundamentally misapprehend that challenge. Governor Perry does
17
See State’s Issue IV at 43-48.
22
not seek “two extensions of law,” does not “ask[] that this court grant him more
power,” and most assuredly does not argue that the Governor “is the most powerful
branch” of Texas’ government. St.Br. at 43. Quite the contrary, Governor Perry
merely relies on Article II, Section I of the Texas Constitution, which mandates a
clear separation of powers between the three departments of state government, and
well-established case law setting forth the appropriate legal test to ascertain whether
a statute violates it. App.Br. at 38-40. That includes two cases where violations of
the Separation of Powers Clause have been considered in pretrial habeas cases. Id.
at 40.
No mere statute can criminalize a governor’s exercise of his Article IV,
Section 14 veto power. The Texas Constitution gives the governor that right, just as
it provides the remedy for the misguided use of that veto: the legislative override and
impeachment.
The State claims that Governor Perry believes “he could never be prosecuted
for a threat or promise made in connection with his power to veto,” which
“surely . . . . cannot be true. Otherwise, every bribery or extortion prosecution
would be barred by the separation of powers doctrine.” St.Br. at 44 (emphasis
added). Of course, Governor Perry has advanced no such proposition. Neither
count of the indictment alleges bribery. And an act of bribery can be prosecuted
under the appropriate provision of the Texas Penal Code, as expressly provided by
23
Article XVI, Section 41 of the Texas Constitution. See Mutscher v. State, 514
S.W.2d 905, 914-15 (Tex. Crim. App. 1974). But allowing a criminal prosecution of
a political decision constitutionally committed to a particular branch of government,
including the discretionary decision to veto an item of appropriation, impermissibly
violates the Separation of Powers Clause.
X. Reply to the State’s Arguments on Speech or Debate and Absolute
Legislative Immunity. 18
The State argues that Texas’s Speech or Debate Clause and the related
doctrine of absolute legislative immunity provide no protection to Governor Perry
(or any Texas governor) because: (1) the Texas Speech or Debate Clause is narrower
than the federal Speech or Debate Clause; (2) the Texas Speech or Debate Clause
only applies to members of the Legislature; (3) the Texas Speech or Debate Clause
does not protect all legislative speech; and (4) legislative immunity does not bar
criminal prosecution. St.Br. at 48-60. None of these arguments have merit.
A. The State Mischaracterizes Mutscher v. State
Contrary to the State’s assertion, Mutscher v. State, 514 S.W.2d 905 (Tex.
Crim. App. 1974), did not hold that the Texas Speech or Debate Clause is narrower
than its federal counterpart, and other cases have confirmed that it is not. 19 Nor did
18
See State’s Issue V at 48-60.
19
See Canfield v. Gresham, 17 S.W. 390, 392-93 (Tex. 1891) (citing Kilbourn v.
Thompson, 103 U.S. 168, 204 (1880)); Bowles v. Clipp, 920 S.W.2d 752, 758 (Tex. Civ.
App.—Dallas 1996, writ denied); see also Tenney v. Brandhove, 341 U.S. 367, 375 (1951) (noting
common purpose of Texas and federal Speech or Debate Clauses).
24
Mutscher explicitly reject the broad application of the Speech or Debate Clause
advanced by the U.S. Supreme Court.
Mutscher involved a conspiracy where two legislators “accept[ed] a bribe
with the understanding that [they] would use their vote, influence and powers of
their office to procure and assist in the passage of certain legislation.” 514 S.W.2d at
909. The then-current bribery statute applied to “[a]ny legislative, executive or
judicial officer” who accepted or agreed to accept a “bribe” for any “act, vote,
opinion or judgment” regarding something that might be brought before him in his
official capacity. Id. at 914-15. The indictment alleged in rich factual detail how the
legislators accepted bribes from a bank in exchange for procuring and attempting to
procure legislation for the bank’s benefit. Id. at 914.
Mutscher held that the bribery prosecutions did not violate the Texas Speech
or Debate Clause for two reasons: (1) because the Texas Constitution contains a
“specific mandate” for bribery prosecutions of public officials (Article XVI, Section
41), which “is not in conflict with” Texas’s Speech or Debate Clause, id. at 915; and
(2) because “[t]aking a bribe is obviously no part of the legislative process or
function; it is not a legislative act.” Id. at 915 (quoting Brewster, 408 U.S. at 501).
Thus, far from “explicitly reject[ing] the broad application of the Speech or Debate
Clause as advanced by the U.S. Supreme Court,” St.Br. at 51, Mutscher in fact
embraced federal authority on that provision.
25
Unlike in Mutscher, the indictment against Governor Perry contains no
allegation of bribery, nor that Governor Perry obtained anything from his actions.
Unlike in Mutscher, where the bribe was not part of the legislative process,
Governor Perry’s approval or veto is expressly authorized by the Constitution as an
essential step in the legislative process. The indictment itself makes this clear.
Count I is based solely on Governor Perry’s exercise of his constitutional veto power.
Count II is based on an allegation that Governor Perry’s intention to exercise his
constitutional veto power was communicated to Lehmberg as a “threat.” Neither
count remotely alleges bribery. As such, the Texas Constitution’s authorization of
bribery prosecutions in Article XVI, Section 41 is irrelevant to this indictment or
prosecution, and Mutscher offers the State no aid.
B. Texas’s Speech or Debate Clause Does Not Apply Only to
Members of the Legislature
The State also asserts that the protections of the Texas Speech or Debate
Clause only apply to members of the Legislature, not to the Governor. St.Br. at
53-55. But the State is wrong; it ignores a century of authoritative case law holding
that governors act in a legislative capacity when exercising their constitutional veto.
See App.Br. at 41, 47.
Moreover, Texas governors are not detached legislative gatekeepers, but
active participants in legislative discourse. Governors are constitutionally required
to “recommend to the Legislature such measures as [they] may deem expedient,”
26
Tex. Const. art. IV, § 9, and to explain their objections to bills when exercising the
veto power. Id. § 14. In short, not only does it permit communication, the Texas
Constitution requires communication between the Governor and legislators as an
integral part of the legislative process. Such communication contributes to both
sound policymaking and an informed electorate.
The State also ignores cases cited by Governor Perry, App.Br. at 47-48,
addressing the scope of legislative immunity, which “derives largely from the
Speech and Debate Clauses of the Texas and federal constitutions.” In re Perry, 60
S.W.3d 857, 859 (Tex. 2001). While Texas is not bound by federal practice with
respect to the Speech or Debate Cause, Texas courts have chosen to follow
analogous federal authority regarding this clause, like many others. App.Br. at
47-48 (collecting cases).
The State attempts to undermine this authority with two inapposite cases. In
the first, Governor Marvin Mandel of Maryland was denied the protection of
legislative immunity because, in the eyes of one federal judge, a governor=s
“criminal prosecution by his own branch . . . simply does not pose the separation of
powers conflict that is the basis for the immunity.” United States v. Mandel, 415 F.
Supp. 1025, 1031 (D. Md. 1976) (emphasis added). But the structure of Texas
government is very different from Maryland’s: our executive is divided, and
prosecutors are members of the judicial branch, and not accountable to the governor.
27
See Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002). Moreover, since
Mandel was decided in 1976, several federal circuits have held that governors are
protected by absolute legislative immunity for their legislative acts. See State Emps.
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 91-92 (2d Cir. 2007); Baraka v.
McGreevey, 481 F.3d 187, 196-97 (3d Cir. 2007); Torres Rivera v. Calderon Serra,
412 F.3d 205, 212-14 (1st Cir. 2005); Women=s Emergency Network v. Bush, 323
F.3d 937, 950 (11th Cir. 2003). In the second case cited by the State, Governor Rod
Blagojevich was denied the protection of Illinois’s Speech or Debate Clause in a suit
against him in his official capacity for declaratory and injunctive relief—a class of
cases wholly distinct from the prosecution here. See Empress Casino Joliet Corp. v.
Blagojevich, 638 F.3d 519, 528 (7th Cir. 2011) (citing Jorgensen v. Blagojevich, 811
N.E.2d 652, 654-59 (Ill. 2004)), rehearing en banc granted, vacated on other
grounds, 651 F.3d 722 (7th Cir. 2011). While the Seventh Circuit had no
opportunity to consider immunity from criminal prosecution, the court nevertheless
acknowledged the former governor’s entitlement to absolute legislative immunity
under federal law from personal civil liability. 638 F.3d at 530-32.
C. Governor Perry’s Alleged Conduct Was All Legislative in Nature
The State argues that any communication with a governor is not “an ‘essential
part’ of the process of a bill becoming a law” and thus is not entitled to Speech or
Debate Clause protection. St.Br. at 55-56. But as noted in the preceding subsection
28
of this reply, the Texas Constitution does in fact make communications with the
governor an essential part of the legislative process. See Tex. Const. art IV, § 9
(governor “shall recommend to the Legislature such measures as he may deem
expedient”); id. § 14 (governors must explain their objections to bills when
exercising the veto power).
The State misunderstands the distinction between the governor’s role in
legislating and his role in enforcing the law. A governor’s administration of a statute
after enactment, depending on the circumstances, may not be protected by the
Clause, but the “deliberative and communicative processes” involved in “the
consideration and passage or rejection of proposed legislation” fall squarely within
the ambit of the Clause. Gravel v. United States, 408 U.S. 606, 625 (1972). And one
such “deliberative and communicative process” is the expression by legislators and
governors of their intention to vote or veto a certain way. The State would have the
Court believe that even legislators are vulnerable to prosecution every time they take
a position on a bill prior to a formal vote. But legislating is a clash between
competing positions and intentions, not a university seminar exploring abstract
policy questions. The Speech or Debate Clause recognizes this practical reality. See
Hutchinson v. Proxmire, 443 U.S. 111, 124 (1979) (observing that “the Court has
given the Clause a practical rather than a strictly literal reading” in order to further
its core purpose of protecting the legislative process).
29
D. The State Misstates Federal Law Regarding the Effect of
Legislative Immunity
The State’s final argument is that legislative immunity merely applies to civil
suits, not criminal prosecutions. St.Br. at 58-60. But as the cases cited by Governor
Perry demonstrate, many state courts have applied legislative immunity to bar both
civil and criminal proceedings. App.Br. at 49. As these courts have recognized, the
“level of intimidation against a local legislator arising from the threat of a criminal
proceeding is at least as great as the threat from a civil suit.” State v. Holton, 997
A.2d 828, 856 (Md. Ct. Spec. App. 2010), aff=d, 24 A.3d 678 (Md. 2011). Indeed,
the decision in United States v. Mandel, 415 F. Supp. 1025 (D. Md. 1976), upon
which the State so heavily relies, St.Br. at 53, is directly contrary to the State’s
position at pages 58-60 of its brief. Mandel notes that “[t]he various state and
federal provisions guaranteeing freedom of speech and debate in the legislature are
specific codifications of the common law doctrine of legislative immunity,” and
acknowledges that the “doctrine has both substantive and evidentiary aspects.” Id.
at 1027. It then states that “[t]he substantive aspect of the doctrine affords
legislators immunity from both civil and criminal liability arising from legislative
acts such as speech or debate in legislative proceedings,” citing nine Supreme Court
cases and four other federal or state cases. Id. at 1027 n.1 & 2 (emphasis in original).
Instead of candidly acknowledging that language from a case the State itself
invokes, the State cites snippets from federal cases that leave an incomplete, if not
30
misleading impression. Although the U.S. Supreme Court did say in Gravel that the
federal Speech or Debate Clause “does not purport to confer a general exemption
upon Members of Congress from liability for process in criminal cases,” St.Br. at 58
(quoting Gravel, 408 U.S. at 627) (emphasis added), the Court also observed that the
Clause provides a specific exemption that “protects Members against prosecutions
that directly impinge upon or threaten the legislative process.” 408 U.S. at 616; see
also Johnson, 383 U.S. at 184-85 (“[P]rosecution under a general criminal statute
dependent on such inquiries [into legislative speech or its preparation] necessarily
contravenes the Speech or Debate Clause.”). And in the State’s three other cases,
St.Br.at 58-59 (quoting United States v. Gillock, 445 U.S. 360, 371-72 (1980);
Imbler v. Pachtman, 424 U.S. 409, 429 (1976); O’Shea v. Littleton, 414 U.S. 488,
503 (1974)), all the Court addressed was whether a state official was immune from
federal criminal prosecution—a straightforward application of the U.S.
Constitution’s Supremacy Clause, which is irrelevant when a state official is
subjected to a state criminal prosecution.
CONCLUSION
For all the reasons given above and in his opening brief, Governor Perry
respectfully prays that this Court reverse the district court’s denial of relief, sustain
the constitutional issues raised in his Application, and bar trial on both counts of the
indictment and/or dismiss both counts of the indictment. Governor Perry further
31
prays for any other relief to which he may be entitled.
32
Respectfully submitted,
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
/ s / Anthony G. Buzbee / s / Thomas R. Phillips
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 Telephone: 512.322.2565
Telephone: 713.223.5393 Facsimile: 512.322.8363
Facsimile: 713.223.5909 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com
BOTSFORD & ROARK
/ s / David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Avenue
Austin, Texas 78701
Telephone: 512.479.8030
Facsimile: 512.479.8040
dbotsford@aol.com
33
CERTIFICATE OF COMPLIANCE
I hereby certify that this document contains 7,028 words in the portions of the
document that are subject to the word limits of Texas Rule of Appellate Procedure
9.4(i), as measured by the undersigned’s word-processing software.
/ s / David L. Botsford
David L. Botsford
CERTIFICATE OF SERVICE
This is to certify that a true and complete copy of this document has been
emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David
Gonzalez at david@sg-llp.com on April 9, 2015, the date that it was electronically
filed with the Clerk of the Court.
/ s / David L. Botsford
David L. Botsford
34