ACCEPTED
03-15-00063-CR
5088006
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/29/2015 3:53:04 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 4/29/2015 3:53:04 PM
_________________________________________
JEFFREY D. KYLE
Clerk
EX PARTE JAMES RICHARD “RICK” PERRY
_________________________________________
APPELLANT’S SUPPLEMENTAL SUBMISSION
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 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com Telephone: 512.322.2500
Telephone: 713.223.5393 Facsimile: 512.322.2501
Facsimile: 713.223.5909
BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512.479.8030
Facsimile: 512.479.8040
TABLE OF CONTENTS
Page
Table of Contents ....................................................................................................... i
Table of Authorities .................................................................................................. ii
1. Justiciability. ..............................................................................................1
2. Relevance of Intervening Trial Court-Level Developments. ....................5
Prayer For Relief ........................................................................................................7
Certificate of Compliance ..........................................................................................8
Certificate of Service .................................................................................................8
i
TABLE OF AUTHORITIES
Page(s)
CASES
Carey v. Brown,
447 U.S. 455 (1980) .............................................................................................. 6
Ex parte McCullough,
966 S.W.2d 529 (Tex. Crim. App. 1998) ............................................................. 2
Org. for a Better Austin v. Keefe,
402 U.S. 415 (1971) .............................................................................................. 6
Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
971 S.W.2d 439 (Tex. 1998) ................................................................................ 1
Puckett v. State,
801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d).................. 6
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ................................................................................ 2
Virginia v. Black,
538 U.S. 343 (2003) .............................................................................................. 6
Watts v. United States,
394 U.S. 705 (1969) .............................................................................................. 6
Williams v. Lara,
52 S.W.3d 171 (Tex. 2000) .................................................................................. 2
ii
NO. 03-15-00063-CR
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
_________________________________________
EX PARTE JAMES RICHARD “RICK” PERRY
_________________________________________
APPELLANT’S SUPPLEMENTAL SUBMISSION
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW Appellant, James Richard “Rick” Perry, by and through his
counsel of record, and pursuant to the Court’s directive of April 28, 2015, would
respectfully show this Honorable Court the following:
None of the intervening trial court-level developments has any impact on the
justiciability of the constitutional issues raised in Governor Perry’s appeal. The
only possible relevance to this Court of the State’s attempt to amend its pleadings
and submit a bill of particulars comes in two admissions made by the State that are
directly relevant to Appellant’s Issues IV through VII.
1. Justiciability.
Issues of justiciability, such as mootness and ripeness, implicate a court’s
subject matter jurisdiction. Patterson v. Planned Parenthood of Hous. & Se. Tex.,
Inc., 971 S.W.2d 439, 442-43 (Tex. 1998). Because Texas courts lack
1
jurisdiction to render advisory opinions, Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 444 (Tex. 1993), a controversy must exist between the parties at
every stage of a legal proceeding for Texas courts to have and retain jurisdiction.
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000).
This Court has jurisdiction over Governor Perry’s appeal because of the trial
court’s denial of his application for writ of habeas corpus. Ex parte McCullough,
966 S.W.2d 529, 531 (Tex. Crim. App. 1998). None of the intervening trial
court-level developments affects the cognizably or ripeness of Governor Perry’s
appeal. The issues he raises in this Court must be determined prior to any trial,
because they seek to vindicate his constitutional right not to be tried in the first
instance. As reflected by the transcription of the February 3, 2015, pretrial
hearing, 3RR 11-12, 16-22, neither Governor Perry nor the State requested a stay
of the trial court proceedings pending resolution of this appeal. 1 The only way
that intervening trial court-level developments could have any impact on his
appellate issues would be for the trial court to quash both counts of the indictment
and the State not to appeal that order. Such a complete and final trial court
victory would, of course, moot this appeal by eliminating the illegal restraint that
1
Governor Perry did inform the trial court that if his appeal had not been resolved prior
to any trial date, he would seek a stay of the trial in order to protect the constitutional rights he
seeks to vindicate here. 3RR at 11-12, 16-22.
2
forms the basis of his application for writ of habeas corpus. 2
The State’s “Bill of Particulars and Amendment of Indictment,” filed on
February 13, 2015, does not address any of the constitutional issues raised by
Governor Perry in his appeal to this Court. Nothing in Governor Perry’s appeal is
undermined or altered by the State’s purported efforts to provide further notice to
the trial court, the defendant, and the world of how Governor Perry allegedly
violated the law.
At the outset, the Court should note that the trial court has not yet ruled upon
whether to permit the State’s “bill of particulars” or its proposed amendment of
Count II. Governor Perry has objected to all of the State’s new pleadings
because, among other things, the “bill of particulars” is unauthorized by Texas law,
the proposed amendment of Count II conflicts with facts necessarily found by the
grand jury to support the original, current version of Count II, the proposed
amendment to Count II still fails to negate the statutory exception of Section
36.03(c), and the proposed amendment to Count II contains allegations that are
manifestly contradicted by undisputed facts and law. These objections are
important to Governor Perry, of course, but they are not relevant to this appeal. 3
2
If the trial court quashed only one of the two counts and the State did not appeal that
order, then the issues solely relating to the quashed count would become moot.
3
In response to Governor Perry’s “objections” and his January 30, 2015, “Third Motion
to Quash,” the State filed two pleadings on April 17, 2015. Thereafter, on April 28, 2015,
3
Even if all of Governor Perry’s objections are overruled, the new pleadings will
not strengthen the State’s opposition to the relief Governor Perry seeks here, and
indeed they may weaken it, as discussed below in subsection 2. To respond fully
to the Court’s questions, however, Governor Perry will assume for purposes of this
discussion that the trial court will overrule his objections, allow the proposed
amendment of Count II, and conclude that the State’s” bill of particulars” resolves
his current, pending motions to quash.
The State’s proposed amendment of Count II is merely a further attempt to
negate the statutory exception of Section 36.03(c). Nothing in Governor Perry’s
appeal relates to that exception, so nothing in the proposed amendment would
affect this Court’s resolution of Governor Perry’s constitutional claims.
Similarly, the State’s “bill of particulars” has no effect on this Court’s resolution of
the constitutional issues raised in Governor Perry’s appeal.
In sum, there is a live controversy between the State and Governor Perry in
the context of his appeal to this Court, based on the illegal restraint imposed upon
him by virtue of the indictment and his bond. That controversy is based on
Governor Perry filed his “Consolidated Reply to the Prosecution’s Pleadings of April 17, 2015,”
which have not yet been transmitted to this Court. Nothing in any of these pleadings has any
impact upon the issues raised in Governor Perry’s appeal, except as otherwise mentioned below
in subsection 2, below. Although not necessarily reflected by the record currently before this
Court, Governor Perry represents to the Court that there are no settings currently scheduled in
the trial court and the State is in the process of producing discovery.
4
constitutional issues which directly impact the State’s ability to proceed with this
prosecution. None of those issues have been rendered moot by any of the
intervening trial court-level developments. This Court has jurisdiction and the
issues are ripe for this Court’s review.
2. Relevance of Intervening Trial Court-Level Developments.
While, as discussed above, the subsequent developments in no way
compromise or diminish Governor Perry’s right to habeas corpus relief, the State
has made two admissions in its pleadings that make the outcome even clearer in
this Court.
First, in its “bill of particulars,” the State concedes that the gravamen of
Count I was a misuse of Governor Perry’s constitutional right to veto items of
appropriation. To the extent that this Court may have shared the trial court’s
concern that Count I did not specifically utilize the term “veto,” see CR472 n.6;
CR454-457, the State’s concession should obviate that concern. This concession
adds force to, but is not necessary for, the arguments previously advanced by
Governor Perry to bar a trial on Count I.
Second, in its April 17, 2015, “Response to Defendant’s Third Motion to
Quash” at 19, the State admitted that the alleged threat upon which Count II is
based is “not a true threat.” Supplemental Clerk’s Record filed April 27, 2015 at
88. As pointed out in Governor Perry’s April 28, 2015, “Consolidated Reply to the
5
Prosecution’s Pleadings of April 17, 2015” at 8-9, this dispositive concession
mandates that Count II be quashed because prosecuting anything less than a “true
threat” violates the First Amendment and the corresponding free speech guarantee
of the Texas Constitution, 4 even where the threat is otherwise coercive. 5 This
admission thus requires this Court to sustain Issue VII, which attacks the
constitutionality of the prosecution on Count II, but it has no direct effect on Issue
I or II.
4
See e.g., Virginia v. Black, 538 U.S. 343, 359 (2003)(defining “true threats” as
“statements where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence”); Watts v. United States, 394 U.S. 705, 707-08 (1969)
(“What is a threat must be distinguished from what is constitutionally protected speech” because
of the “profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials”). See also Puckett v.
State, 801 S.W.2d 188, 194 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)(holding that
statements by a defendant indicted under the retaliation statute, Section 36.06(a), “could
reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,” and hence not
protected speech).
5
See N.A.A.C.P v. Claiborne Hardware Co., in which the Supreme Court explained that
“speech does not lose its protected character . . . simply because it may embarrass others or
coerce them into action.” 458 U.S. 886, 910 (1982) (emphasis added). There, the organizer
of a civil rights boycott had 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. The Court acknowledged that 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.
These “coercive” statements were far closer to classic, violent “threats” than anything Governor
Perry allegedly said given the allegations of Count II and the State’s concession, yet the First
Amendment still protected them 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)).
6
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully
prays that this Honorable Court reverse the district court’s denial of relief, sustain
his issues as to cognizability and the merits of his constitutional issues, and bar
trial on both counts of the indictment and/or dismiss both counts of the indictment,
or for such other relief to which this Court determines he is entitled.
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
600 Travis Street, Suite 7300 Suite 1500
Houston, Texas 77002 Austin, Texas 78701-4078
Telephone: 713.223.5393 Telephone: 512.322.2500
Facsimile: 713.223.5909 Facsimile: 512.322.2501
Tbuzbee@txattorneys.com tom.phillips@bakerbotts.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
7
CERTIFICATE OF COMPLIANCE
I hereby certify that excluding the portions of this petition exempted by Tex.
R. App. P. Rule 9.4(i)(1), this brief contains 1,128 words as calculated by the word
processing program I used.
/ 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 the same date that it was electronically filed
with the Clerk of the Court.
/ s / David L. Botsford
David L. Botsford
8