Ex Parte James Richard \"Rick\" Perry ( 2015 )


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  •                                                                                         ACCEPTED
    03-15-00063-CR
    4945207
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    4/20/2015 9:05:19 AM
    JEFFREY D. KYLE
    CLERK
    Case No. 03-15-00063-CR
    In the Court of Appeals for the Third
    RECEIVED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    Judicial District, Austin, Texas                       4/20/2015 9:05:19 AM
    JEFFREY D. KYLE
    Clerk
    EX PARTE JAMES RICHARD “RICK” PERRY
    Appeal from the Denial of the Writ of Habeas Corpus
    in the District Court for the 390th Judicial District
    Travis County, Texas, Case No. D-1-DC-14-100139
    BRIEF OF CONSTITUTIONAL AND CRIMINAL LAW EXPERTS AS AMICI CURIAE
    IN SUPPORT OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS
    Eugene Volokh                             James C. Ho
    California Bar No. 194464                 Texas Bar No. 24052766
    Gary T. Schwartz Professor of Law         Prerak Shah
    UCLA SCHOOL OF LAW                           Texas Bar No. 24075053
    385 Charles E. Young Dr. East             Bradley G. Hubbard
    Los Angeles, CA 90095                        Texas Bar No. 24090174
    Tel.: (310) 206-3926                      GIBSON, DUNN & CRUTCHER LLP
    volokh@law.ucla.edu                       2100 McKinney Avenue, Suite 1100
    Dallas, TX 75201-6912
    Tel.: (214) 698-3264
    Fax: (214) 571-2917
    jho@gibsondunn.com
    pshah@gibsondunn.com
    bhubbard@gibsondunn.com
    COUNSEL FOR AMICI CURIAE
    TABLE OF CONTENTS
    Page
    Table of Authorities ..................................................................................................ii
    Statement of Interest of Amici .................................................................................. 1
    Introduction ............................................................................................................... 5
    Argument................................................................................................................... 6
    I.        Count I of the Indictment Should Be Dismissed, Because It Is
    Both Unconstitutional and Barred by Legislative Immunity. .............. 6
    A.        Count I Violates the Constitutional Doctrine of
    Separation of Powers, Because the Legislature Cannot
    Criminalize the Exercise of a Governor’s Constitutional
    Veto Power. ................................................................................ 7
    B.        Governor Perry Cannot Be Prosecuted for His Veto,
    Because He Is Entitled to Absolute Legislative Immunity
    for Any Exercise of His Veto Power. ...................................... 11
    II.       Count II of the Indictment Should Be Dismissed, Because It
    Criminalizes Speech Protected by the First Amendment of the
    U.S. Constitution. ............................................................................... 20
    Conclusion .............................................................................................................. 31
    Certificate of Compliance ....................................................................................... 33
    Certificate of Service .............................................................................................. 34
    i
    TABLE OF AUTHORITIES
    Page(s)
    Cases
    Armadillo Bail Bonds v. State,
    
    802 S.W.2d 237
     (Tex. Crim. App. 1990) ..............................................................7
    Bond v. Floyd,
    
    385 U.S. 116
     (1966) .............................................................................................27
    Camacho v. Samaniego,
    
    954 S.W.2d 811
     (Tex. App.—El Paso 1997, pet. denied) ...................................13
    Clinton v. Jones,
    
    520 U.S. 681
     (1997) ...................................................................................... 17, 18
    D’Amato v. Superior Court,
    
    167 Cal. App. 4th 861
     (Cal. Ct. App. 2008) ................................................. 14, 15
    Doe v. McMillan,
    
    412 U.S. 306
     (1973) .............................................................................................14
    Dublin v. State,
    
    742 N.E.2d 232
     (Ohio Ct. App. 2000) .................................................................14
    Duncantell v. State,
    
    230 S.W.3d 835
     (Tex. App.—Houston [14th Dist.] 2007, pet.
    ref’d).....................................................................................................................26
    Ex Parte Gill,
    
    413 S.W.3d 425
     (Tex. Crim. App. 2013) ..............................................................8
    Forrester v. White,
    
    484 U.S. 219
     (1988) .............................................................................................12
    Fulmore v. Lane,
    
    140 S.W. 405
     (Tex. 1911)....................................................................................14
    Garcetti v. Ceballos,
    
    547 U.S. 410
     (2006) .............................................................................................27
    ii
    TABLE OF AUTHORITIES
    (CONTINUED)
    Page(s)
    Grayned v. City of Rockford,
    
    408 U.S. 104
     (1972) .............................................................................................30
    Hernandez v. City of Lafayette,
    
    643 F.2d 1188
     (5th Cir. 1981) .............................................................................13
    In re Perry,
    
    60 S.W.3d 857
     (Tex. 2001)............................................................... 11, 12, 13, 15
    Irons v. R.I. Ethics Comm’n,
    
    973 A.2d 1124
     (R.I. 2009) ...................................................................................15
    Jenevein v. Willing,
    
    493 F.3d 551
     (5th Cir. 2007) ...............................................................................27
    Jessen Assocs., Inc. v. Bullock,
    
    531 S.W.2d 593
     (Tex. 1975)................................................................................14
    Jorgensen v. Blagojevich,
    
    811 N.E.2d 652
     (Ill. 2004) ............................................................................ 17, 18
    Langever v. Miller,
    
    76 S.W.2d 1025
     (1934) ..........................................................................................8
    Meshell v. State,
    
    739 S.W.2d 246
     (Tex. Crim. App. 1987) ..............................................................8
    Pickering v. Bd. of Educ.,
    
    391 U.S. 563
     (1968) .............................................................................................27
    Pickle v. McCall,
    
    24 S.W. 265
     (Tex. 1893)......................................................................................14
    Rangra v. Brown,
    
    566 F.3d 515
     (5th Cir. 2009) ...............................................................................27
    State v. Dankworth,
    
    672 P.2d 148
     (Alaska Ct. App. 1983) ..................................................................15
    State v. Hanson,
    
    793 S.W.2d 270
     (Tex. App.—Waco 1990, no writ) ......................... 20, 21, 26, 30
    iii
    TABLE OF AUTHORITIES
    (CONTINUED)
    Page(s)
    State v. Holton,
    
    997 A.2d 828
     (Md. Ct. Spec. App. 2010) ............................................... 14, 18, 19
    State v. Neufeld,
    
    926 P.2d 1325
     (Kan. 1996) ..................................................................................14
    Stockton v. Offenbach,
    
    336 S.W.3d 610
     (Tex. 2011)................................................................................10
    Tenney v. Brandhove,
    
    341 U.S. 367
     (1951) ................................................................................ 12, 14, 15
    United States v. Brewster,
    
    408 U.S. 501
     (1972) ...............................................................................................9
    United States v. Dowdy,
    
    479 F.2d 213
     (4th Cir. 1973) ...............................................................................15
    United States v. Gillock,
    
    445 U.S. 360
     (1980) .............................................................................................17
    United States v. Mandel,
    
    415 F. Supp. 997
     (D. Md. 1976) ..........................................................................16
    United States v. Mandel,
    
    415 F. Supp. 1025
     (D. Md. 1976) .........................................................................16
    United States v. Stevens,
    
    559 U.S. 460
     (2010) .............................................................................................25
    Wash. State Grange v. Wash. State Republican Party,
    
    552 U.S. 442
     (2008) .............................................................................................
    25 Watts v
    . United States,
    
    394 U.S. 705
     (1969) .............................................................................................20
    Statutes
    TEX. PENAL CODE § 36.03(a)(1) ....................................................................... 21, 27
    TEX. PENAL CODE § 39.02(a)(2) ......................................................... 6, 8, 10, 11, 15
    iv
    TABLE OF AUTHORITIES
    (CONTINUED)
    Page(s)
    Constitutional Provisions
    TEX. CONST. art. II, § 1 ..............................................................................................7
    TEX. CONST. art. III, § 21 .........................................................................................11
    TEX. CONST. art. IV, § 14 ...........................................................................................7
    U.S. CONST. art. I § 6 ...............................................................................................11
    Other Authorities
    Alex Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd
    Twitter Photographs, TELEGRAPH (U.K.), June 16, 2011....................................23
    Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN
    JUSTICE (Oct. 13, 2009), available at http://www.mainjustice.com/
    2009/10/13/doggett-no-retreat-on-us-attorney-picks/ .........................................30
    Federalist No. 51 (Madison) ....................................................................................20
    Hardball with Chris Matthews, MSNBC, Sept. 5, 2007, transcript
    available at http://www.nbcnews.com/id/20623566/ns/msnbc-
    hardball_with_chris_matthews/t/hardball-chris-matthews-sept ..........................23
    Lawmakers Decry Abuses Within Texas Youth Commission, TEXAS
    SENATE NEWS, Feb. 27, 2007...............................................................................23
    Neil Munro, Priebus: Obama Executive Amnesty Is A ‘Nuclear
    Threat,’ THE DAILY CALLER (Nov. 7, 2014), available at
    http://dailycaller.com/2014/11/07/priebus-obama-executive-
    amnesty-is-a-nuclear-threat .................................................................................29
    Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 .....................23
    President Barack Obama, Remarks by the President in a Press
    Conference (Nov. 5, 2014), available at http://www.whitehouse.gov
    /the-press-office/2014/11/05/remarks-president-press-conference .....................29
    v
    STATEMENT OF INTEREST OF AMICI
    Amici are an ideologically diverse coalition of experts in the fields of
    constitutional and criminal law—including former judges, solicitors general,
    prosecutors, criminal defense lawyers, constitutional litigators, and professors on
    both sides of the aisle. They represent virtually the entire political spectrum and
    have no personal or political stake in this case. They submit this brief for one
    simple reason: They are committed to the rule of law, and do not wish to see the
    law tarnished or distorted for purely partisan political purposes.
    Floyd Abrams has served as counsel in many of the highest-profile First
    Amendment cases of the modern era, including representing The New York Times
    in the Pentagon Papers case. His most recent book is FRIEND OF THE COURT: ON
    THE FRONT LINES WITH THE FIRST AMENDMENT         (2013).
    Michael Barone is a Resident Fellow at the American Enterprise Institute
    and the principal co-author of THE ALMANAC OF AMERICAN POLITICS.
    Ashutosh Bhagwat is a Professor of Law at UC Davis School of Law. He
    has published extensively on issues relating to freedom of expression.
    Jeff Blackburn is the Founder and Chief Counsel of the Innocence Project
    of Texas, an organization dedicated to securing the release of those wrongfully
    convicted of crimes in Texas and educating the public about the causes and effects
    of wrongful convictions.
    1
    Paul Coggins is a former United States Attorney for the Northern District of
    Texas (1993-2001), appointed by President Bill Clinton.
    Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at
    Harvard Law School, and is one of the most well-known civil liberties advocates in
    the country.
    Raul A. Gonzalez is a former Justice on the Texas Supreme Court (1984-
    1998), appointed by Governor Mark White and later elected as a Democrat.
    James C. Ho is a former Solicitor General of Texas (2008-2010) and a
    former Chief Counsel to the United States Senate Subcommittee on the
    Constitution (2003-2005).
    Daniel Lowenstein is a Professor of Law, Emeritus, at UCLA School of
    Law. He is also the Director of the UCLA Center for the Liberal Arts and Free
    Institutions and a former chair of the California Fair Political Practices
    Commission, appointed by Governor Jerry Brown.
    Michael W. McConnell is the Richard and Frances Mallery Professor of
    Law at Stanford Law School and the Executive Director of the Stanford
    Constitutional Law Center. He is also a former Judge on the U.S. Court of
    Appeals for the Tenth Circuit (2002-2009).
    2
    John T. Montford is a former District Attorney for Lubbock County, a
    former Texas State Senator (D-Lubbock), and the first Chancellor of the Texas
    Tech University System.
    Michael Mukasey is a former Attorney General of the United States (2007-
    2009) and a former judge on the U.S. District Court for the Southern District of
    New York (1987-2006).
    Theodore B. Olson is a former Solicitor General of the United States (2001-
    2004) and a former Assistant Attorney General for the Office of Legal Counsel at
    the United States Department of Justice (1981-1984).
    Harriet O’Neill is a former Justice on the Texas Supreme Court (1999-
    2010), a former Justice on the Fourteenth Court of Appeals of Texas (1995-1998),
    and a former Judge on the 152nd District Court of Texas (1993-1995).
    Nathaniel Persily is the James B. McClatchy Professor of Law at Stanford
    Law School and served as the Senior Research Director for the Presidential
    Commission on Election Administration formed by President Barack Obama.
    Kenneth W. Starr is a former Solicitor General of the United States (1989-
    1993) and a former Judge on the U.S. Court of Appeals for the D.C. Circuit (1983-
    1989).
    3
    Johnny Sutton is a former United States Attorney for the Western District
    of Texas (2001-2009), appointed by President George W. Bush, and a former
    Associate Deputy Attorney General at the United States Department of Justice.
    Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School
    of Law. He also runs UCLA’s First Amendment Amicus Brief Clinic and is the
    author of THE FIRST AMENDMENT AND RELATED STATUTES (5th ed. 2013).1
    1   Amici’s institutional affiliations are provided only for purposes of identification. No counsel
    for a party authored this brief in whole or in part, and no counsel or party made a monetary
    contribution intended to fund the preparation or submission of this brief. No person other
    than amici or their counsel made a monetary contribution to its preparation or submission.
    See TEX. R. APP. P. 11.
    4
    INTRODUCTION
    Governor Rick Perry announced that he would exercise his constitutional
    authority to veto a bill if another political official did not do what he wanted. Then
    he vetoed that bill. For these two ordinary political acts, Governor Perry has been
    indicted on felony charges.
    Both counts of the indictment are unconstitutional and must be dismissed
    immediately. The first count—which criminalizes Governor Perry’s veto of a
    bill—violates the separation of powers enshrined in the Texas Constitution. The
    Legislature is not allowed to criminalize the exercise of powers that the
    Constitution specifically confers on the Governor, including the veto power.
    And the second count—which criminalizes Governor Perry’s threat to veto a
    bill if Travis County District Attorney Rosemary Lehmberg did not resign her
    office—violates the First Amendment of the U.S. Constitution and Article I,
    Section 8 of the Texas Constitution. Governor Perry “threatened” to perform an
    act that the Texas Constitution specifically reserves to him (a veto) in order to
    encourage a public official to engage in a lawful act (a resignation). That is
    constitutionally protected speech.
    ***
    We as amici take no position on the politics that led to this indictment.
    Reasonable people can disagree on the political tactics employed by both Governor
    5
    Perry and his opponents.      But to turn political disagreement into criminal
    prosecution is disturbing. To do so with an indictment riddled with constitutional
    infirmities is even worse.
    The indictment of Governor Perry demands this Court’s swift intervention.
    The writ of habeas corpus should be granted and this prosecution should come to
    an end.
    ARGUMENT
    I.    Count I of the Indictment Should Be Dismissed, Because It Is Both
    Unconstitutional and Barred by Legislative Immunity.
    Count I of the indictment essentially alleges that Governor Perry violated
    Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have
    funded the continued operation of the Public Integrity Unit of the Travis County
    District Attorney’s office. The prosecution alleges that Governor Perry exercised
    this veto “with intent to harm another”—namely, District Attorney Rosemary
    Lehmberg and the Public Integrity Unit.
    But this Count suffers from two independently fatal flaws:            (1) the
    Legislature is not allowed to criminalize the Governor’s exercise of his veto power,
    and (2) Governor Perry is entitled to absolute legislative immunity for any exercise
    of that veto power.
    6
    A.     Count I Violates the Constitutional Doctrine of Separation of
    Powers, Because the Legislature Cannot Criminalize the Exercise
    of a Governor’s Constitutional Veto Power.
    1.     The Texas Constitution vests in the Governor the absolute authority to
    veto appropriations bills. See TEX. CONST. art. IV, § 14. The Governor is entitled
    to decide which laws he “approv[es]” and which he disapproves—without any
    constraint from the Legislature, or from special prosecutors. Id.
    The Texas Constitution also includes an explicit separation of powers
    provision that sets forth the structure of Texas government:
    The powers of the Government of the State of Texas shall be divided
    into three distinct departments, each of which shall be confided to a
    separate body of magistracy, to wit: Those which are Legislative to
    one; those which are Executive to another, and those which are
    Judicial to another; and no person, or collection of persons, being of
    one of these departments, shall exercise any power properly attached
    to either of the others, except in the instances herein expressly
    permitted.
    TEX. CONST. art. II, § 1.
    This express provision “reflects a belief on the part of those who drafted and
    adopted our state constitution that one of the greatest threats to liberty is the
    accumulation of excessive power in a single branch of government.” Armadillo
    Bail Bonds v. State, 
    802 S.W.2d 237
    , 239 (Tex. Crim. App. 1990). “So important
    is this division of governmental power that it was provided for in the first section
    of the first article of the Constitution of the Republic of Texas, and alone it
    7
    constituted article 2 of each succeeding Constitution.” Langever v. Miller, 
    76 S.W.2d 1025
    , 1035 (Tex. 1934).
    For these reasons, courts have long been vigilant about preventing any
    attempt by one branch of the government to encroach on the authority
    constitutionally secured to a different branch. Accordingly, “any attempt by one
    department of government to interfere with the powers of another is null and void.”
    Meshell v. State, 
    739 S.W.2d 246
    , 252 (Tex. Crim. App. 1987). The separation of
    powers provision is violated “when one branch unduly interferes with another
    branch so that the other branch cannot effectively exercise its constitutionally
    assigned powers.” Ex Parte Gill, 
    413 S.W.3d 425
    , 431-32 (Tex. Crim. App.
    2013).
    Yet the prosecution today claims that Section 39.02(a)(2) criminalizes
    Governor Perry’s veto of an appropriations bill. If that were true, then the statute
    would be plainly unconstitutional. The Legislature cannot make it a crime for the
    Governor to veto appropriations bills, because that would obviously “interfere[]
    with another branch so that the other branch cannot effectively exercise its
    constitutionally assigned powers.” Id. Any such outlawing of the use of the veto
    power would unilaterally increase the Legislature’s own power, by eviscerating the
    Governor’s power to veto legislation he does not “approve” of—even though,
    under the Texas Constitution, every legislative bill is subject to veto.        The
    8
    Legislature cannot enact a statute that constrains that gubernatorial power, thereby
    enlarging its own.
    Nor would the analysis be different if Governor Perry vetoed a bill “with
    intent to harm another.”      The Texas Constitution places no limits on the
    Governor’s exclusive power to decide which bills to give his “approval.” So the
    Legislature cannot empower the Judiciary to pass judgment on the Governor’s
    intent behind a veto and accordingly chill the Governor’s exercise of his veto
    power through the prospect of criminal punishment.
    2.    There are, of course, constitutional limits on the Governor’s veto
    power. The Legislature can override a Governor’s veto with a two-thirds vote.
    The Legislature can threaten not to enact laws that the Governor supports if he
    continues to exercise his veto in a manner with which it disagrees. The Legislature
    even has the power to impeach a Governor for a veto. And of course, the people of
    this State could always vote a Governor out of office because of a veto.
    The Legislature can also criminalize acts of political corruption, such as the
    acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in
    that circumstance is the acceptance of the bribe—not the veto itself. So a bribery
    prosecution would not trigger any of the separation of powers issues that plague
    this prosecution. See, e.g., United States v. Brewster, 
    408 U.S. 501
    , 526 (1972)
    (“There is no need for the Government to show that appellee fulfilled the alleged
    9
    illegal bargain; acceptance of the bribe is the violation of the statute, not
    performance of the illegal promise.”).
    None of these constitutionally permissible acts authorizes criminal
    prosecution for the Governor’s exercise of his constitutionally prescribed veto
    power.
    3.    It is not necessary to read Section 39.02(a)(2) in this clearly
    unconstitutional manner. There is no indication that the Legislature intended for
    the statute to be so read. This reading is the prosecution’s own. This Court can,
    and should, avoid this constitutional controversy entirely, by declaring that the
    statute simply does not criminalize Governor Perry’s conduct. As explained in
    further detail in the Governor’s application for a writ of habeas corpus and motion
    to quash the indictment, a Governor simply does not have “custody or possession”
    of a sum of money that starts out in the Texas Treasury, ends up in the Texas
    Treasury, and remains throughout in the Texas Treasury. Those funds are always
    in the custody of the Comptroller, not the Governor.
    Not only would this be the most natural reading of the statutory text, but it
    would also avoid the constitutional infirmities raised by prosecuting Governor
    Perry for his veto. See, e.g., Stockton v. Offenbach, 
    336 S.W.3d 610
    , 618 (Tex.
    2011) (“We presume that when enacting legislation, the Legislature intends to
    10
    comply with the state and federal constitutions, and we are obligated to avoid
    constitutional problems if possible.”) (quotations and citation omitted).
    ***
    The Constitution permits only two options:           either (1) read Section
    39.02(a)(2) the way the prosecution does, and then declare the statute
    unconstitutional, because it violates the separation of powers doctrine decreed in
    the Texas Constitution; or (2) avoid the constitutional issue altogether, by
    interpreting the statute not to apply to a Governor’s veto of an appropriations bill.
    Either way, Count I must be dismissed.
    B.      Governor Perry Cannot Be Prosecuted for His Veto, Because He
    Is Entitled to Absolute Legislative Immunity for Any Exercise of
    His Veto Power.
    Count I also suffers from a separate yet equally fatal flaw: a Governor has
    absolute legislative immunity from any prosecution based on the exercise of his
    veto power.
    1.      Legislative immunity is a common law doctrine that flows from the
    Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry, 
    60 S.W.3d 857
    , 859 (Tex. 2001) (citing U.S. CONST. art. I, § 6; TEX. CONST. art. III,
    § 21). It declares that “individuals acting in a legislative capacity are immune from
    liability for those actions.” Id.
    11
    The reason for this immunity is simple. As the U.S. Supreme Court has
    explained, and the Texas Supreme Court has endorsed:
    “[T]he threat of liability can create perverse incentives that operate to
    inhibit officials in the proper performance of their duties. In many
    contexts, government officials are expected to make decisions that are
    impartial or imaginative, and that above all are informed by
    considerations other than the personal interests of the decisionmaker.
    Because government officials are engaged by definition in governing,
    their decisions will often have adverse effects on other persons. When
    officials are threatened with personal liability for acts taken pursuant
    to their official duties, they may well be induced to act with an excess
    of caution or otherwise to skew their decisions in ways that result in
    less than full fidelity to the objective and independent criteria that
    ought to guide their conduct.”
    Id. (alterations in original) (quoting Forrester v. White, 
    484 U.S. 219
    , 223 (1988)).
    And for precisely those same reasons, the motivation behind a legislative
    act—be it partisan, personal, or parochial—is utterly irrelevant to the privilege of
    legislative immunity:
    The claim of an unworthy purpose does not destroy the privilege.
    Legislators are immune from deterrents to the uninhibited discharge
    of their legislative duty, not for their private indulgence but for the
    public good. One must not expect uncommon courage even in
    legislators. The privilege would be of little value if they could be
    subjected to the cost and inconvenience and distractions of a trial
    upon a conclusion of the pleader, or to the hazard of a judgment
    against them based upon a jury’s speculation as to motives.
    Tenney v. Brandhove, 
    341 U.S. 367
    , 377 (1951). See also Perry, 60 S.W.3d at
    859-60 (“The legislative immunity doctrine recognizes that it is not consonant with
    12
    our scheme of government for a court to inquire into the motives of legislators.”)
    (quotations omitted).
    2.    Notably, legislative immunity extends to any official who is acting in
    a legislative capacity, whether or not the official is a member of the Legislature.
    For example, the Texas Supreme Court has held that legislative immunity protects
    the Attorney General and the Comptroller (who are usually executive officials)
    when they perform “legislative functions” as members of the Legislative
    Redistricting Board.    Perry, 60 S.W.3d at 860.       “Courts have extended the
    legislative immunity doctrine beyond federal and state legislators to other
    individuals performing legitimate legislative functions,” such as mayors, city
    council vice-presidents, and others. Id. Indeed, “[a]ctions to which courts have
    extended absolute legislative immunity include a mayor’s veto of an ordinance
    passed by a city council.” Camacho v. Samaniego, 
    954 S.W.2d 811
    , 823 (Tex.
    App.—El Paso 1997, pet. denied) (citing Hernandez v. City of Lafayette, 
    643 F.2d 1188
    , 1194 (5th Cir. 1981)). “[W]hen the mayor of a municipality vetoes an
    ordinance passed by the city’s legislative body, he performs a legislative function
    and is entitled to absolute immunity from a civil suit complaining about actions
    taken in his legislative capacity.” Hernandez, 643 F.2d at 1194.
    Just as a mayoral veto is a legislative act subject to legislative immunity, so
    too is a gubernatorial veto. Texas law is clear that a gubernatorial veto is a
    13
    legislative act, not an executive act. See, e.g., Jessen Assocs., Inc. v. Bullock, 
    531 S.W.2d 593
    , 598 (Tex. 1975); Fulmore v. Lane, 
    140 S.W. 405
    , 411 (Tex. 1911);
    Pickle v. McCall, 
    24 S.W. 265
    , 268 (Tex. 1893). Thus, Governor Perry is immune
    from liability for his veto.
    This legislative immunity applies to criminal prosecutions as well as civil
    suits. Indeed, the core principle behind legislative immunity is to enable our
    “representatives to execute the functions of their office without fear of
    prosecutions, civil or criminal.” Tenney, 341 U.S. at 373-74 (emphasis added). As
    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,” so “the privilege or immunity enjoyed by local legislators should be extended
    to criminal proceedings.” State v. Holton, 
    997 A.2d 828
    , 845, 856 (Md. Ct. Spec.
    App. 2010), aff’d, 
    24 A.3d 678
     (Md. 2011) (quotations omitted).2
    2   See also Doe v. McMillan, 
    412 U.S. 306
    , 312-13 (1973) (“Congressmen . . . are immune
    from liability for their actions within the ‘legislative sphere,’ even though their conduct, if
    performed in other than legislative contexts, would in itself be unconstitutional or otherwise
    contrary to criminal or civil statutes.”) (citation omitted); D’Amato v. Superior Court, 
    167 Cal. App. 4th 861
    , 871 (Cal. Ct. App. 2008) (“The district attorney . . . contends immunity
    applies only to civil suits, and does not extend to criminal prosecutions. We disagree.”); City
    of Dublin v. State, 
    742 N.E.2d 232
    , 236 (Ohio Ct. App. 2000) (“‘legislative privilege’
    embodies . . . substantive immunity from civil and criminal liability”); State v. Neufeld, 
    926 P.2d 1325
    , 1337 (Kan. 1996) (“[I]f a legislator’s conduct falls within a legitimate legislative
    sphere, legality of the conduct is not a primary concern.”).
    14
    So Count I presents a particularly straightforward application of legislative
    immunity.       A conviction under Section 39.02(a)(2) requires an inquiry into
    Governor Perry’s subjective state of mind. See TEX. PENAL CODE § 39.02(a)(2)
    (requiring “intent to harm”).           But “it is not consonant with our scheme of
    government for a court to inquire into the motives of legislators.” Perry, 60
    S.W.3d at 859-60 (quotations omitted). “If the motives for a legislator’s legislative
    activities are suspect, the constitution requires that the remedy be public exposure;
    if the suspicions are sustained, the sanction is to be administered either at the ballot
    box or in the legislature itself.” State v. Dankworth, 
    672 P.2d 148
    , 152 (Alaska Ct.
    App. 1983). “The claim of an unworthy purpose does not destroy the privilege. . . .
    In times of political passion, dishonest or vindictive motives are readily attributed
    to legislative conduct and as readily believed. Courts are not the place for such
    controversies.” Tenney, 341 U.S. at 377-78.3
    3.      The special prosecutor argues that legislative immunity does not apply
    to a criminal prosecution of a Governor’s exercise of the veto power, relying
    3   See also United States v. Dowdy, 
    479 F.2d 213
    , 266 (4th Cir. 1973) (“Once it was
    determined, as here, that the legislative function . . . was apparently being performed, the
    propriety and the motivation for the action taken, as well as the detail of the acts performed,
    are immune from judicial inquiry.”); Irons v. R.I. Ethics Comm’n, 
    973 A.2d 1124
    , 1131 (R.I.
    2009) (“‘[A]s long as [a legislator’s] challenged actions, stripped of all considerations of
    intent and motive, were legislative in character, the doctrine of absolute legislative immunity
    protects them from such claims.’”); D’Amato, 167 Cal. App. 4th at 869 (“courts cannot
    inquire into the impetus or motive behind legislative action”) (quotations omitted).
    15
    heavily on a single district judge’s decisions in United States v. Mandel, 415 F.
    Supp. 997 (D. Md. 1976), and United States v. Mandel, 
    415 F. Supp. 1025
     (D. Md.
    1976). But that case is inapposite.
    First, a crucial aspect of Mandel is not present here. There, the district judge
    reasoned that “the rationale for immunity from criminal prosecution is wholly
    lacking” when a prosecution comes from the executive branch. Mandel, 415 F.
    Supp. at 1031. As the judge explained, “[t]he executive has no reason to fear for
    its independence as a co-equal branch of government as a consequence of any
    criminal prosecution brought by itself.” Id.
    But the executive branch in Texas is not unitary. The Governor and the
    Attorney General are separately elected. Moreover, the power to bring criminal
    prosecutions in Texas is divided between the Attorney General and local district
    attorneys, with the bulk of the authority in the hands of district attorneys. So the
    chief executive of Texas does have reason to fear for his independence—as
    evidenced by this very case, he is subject to criminal prosecution brought by
    officials wholly outside of his authority.
    Second, Governor Mandel was not entitled to legislative immunity in any
    event. Mandel concerned the federal prosecution of a state official. As the U.S.
    Supreme Court has made clear, legislative immunity does not apply in that context,
    because immunity derives from the separations of powers within a sovereign, not
    16
    between sovereigns. See United States v. Gillock, 
    445 U.S. 360
    , 370 (1980).
    Mandel did not involve a state prosecution of a state official and is thus
    inapplicable to this case.
    The special prosecutor also cites Jorgensen v. Blagojevich, 
    811 N.E.2d 652
    (Ill. 2004), and Clinton v. Jones, 
    520 U.S. 681
     (1997), to argue that legislative
    immunity should not apply in this case. But neither of those cases even remotely
    supports that position.
    Jorgensen involved a suit against a governor in his official capacity to
    declare an official act unconstitutional. It had nothing to do with holding a
    governor personally liable, either civilly or criminally, for an official
    act. Obviously Governor Perry can be sued in his official capacity when a plaintiff
    is seeking to declare a government action unlawful. That happens all the time. But
    that has nothing to do with trying to hold him personally liable for a legislative act,
    as is the case here. Indeed, Jorgensen itself explicitly acknowledged this
    distinction:
    We note, moreover, that the Judges have not sought to hold the
    Governor personally liable for his actions, nor are they attempting to
    force him to take or to refrain from taking any particular action. He
    was named in the litigation because he was one of the state officials
    involved in the sequence of events which led to the failure of the
    Judges to receive their FY2004 COLAs. There is nothing unusual
    about his inclusion as a party. Examples of Illinois governors being
    joined as defendants in cases seeking declaratory and injunctive relief
    based on alleged violations of state constitutional and legal
    requirements are commonplace.
    17
    Jorgensen, 811 N.E.2d at 666 (emphasis added).
    The special prosecutor curiously omitted this passage from his discussion of
    Jorgensen, even though it appears immediately before the passage that the special
    prosecutor chose to block quote. See Appellee’s Br. 46-47. This omission is
    telling.   After all, this passage shows that a governor would have legislative
    immunity if someone were seeking to hold him “personally liable for his actions,”
    id.—as the special prosecutor is attempting to do here.
    Clinton is not helpful to the special prosecutor either. The Supreme Court
    there said that immunity does not apply to unofficial conduct—but that it would
    apply to official acts.   As the Court explained, “[t]he principal rationale for
    affording certain public servants immunity from suits for money damages arising
    out of their official acts is inapplicable to unofficial conduct.” Clinton, 520 U.S. at
    692-93. Here, Governor Perry is being held criminally liable for an official act (a
    veto), not for any unofficial conduct, so he is entitled to immunity.
    ***
    Allowing Count I to proceed would utterly defeat the purpose of legislative
    immunity. Just like legislators, governors acting in their legislative capacity “must
    enjoy the same ability to speak and act in their legislative capacities, without fear
    of retribution, either criminally or civilly, because of what they say or how they
    vote.” Holton, 997 A.2d at 856. Governors “may be called upon to answer for
    18
    their legislative conduct to the citizens who elected them, which is what democracy
    is all about.” Id. “[B]ut they may not be compelled to defend their legislative
    conduct to a prosecutor, to a grand jury or to a court.” Id.
    And dangerous as the prosecution’s theory originally was, it has become
    even more striking with the amended indictment and bill of particulars filed on
    February 13, 2015. Under the theory of that amended indictment, it is now a crime
    for the Governor to veto an appropriation—or for any government official to do
    any official act—for any purpose other than “for the sole benefit of the people of
    the State of Texas,” such as “for the benefit of any private or individual purpose,
    private business, political party, or other.”    So if a prosecutor decides that a
    government official did something even in part because it benefited the official’s
    prospect of election to higher office, or improved the standing of the official’s
    party, or just improved his reputation—anything at all other than solely benefiting
    the people of Texas—that is enough for a criminal prosecution.
    This is far removed from the wisdom of the Framers, who recognized that
    politicians harbor personal ambitions as well as public-spiritedness; that
    “[a]mbition must be made to counteract ambition”; that “[t]he interest of the man”
    is an important aspect of defending “the constitutional rights” of his office; and
    that so long as men are not angels, the law must actually rely on “the private
    interest of every individual” officeholder, and not just on officeholders’ “better
    19
    motives,” as an important part of our political system.           Federalist No. 51
    (Madison).
    II.   Count II of the Indictment Should Be Dismissed, Because It
    Criminalizes Speech Protected by the First Amendment of the U.S.
    Constitution.
    Count II of the indictment alleges that Governor Perry violated the law by
    “threatening” to use his veto powers if a government official did not resign her
    post. But he has every right to do just that. Criminalizing Governor Perry’s threat
    to veto legislation violates his right to freedom of speech under the Texas and U.S.
    Constitutions. This Count must also be dismissed.
    1.     A political official has the right to threaten to perform an official act
    in order to persuade another government official to engage in some other official
    act. That is not a crime—it is core political speech. See, e.g., Watts v. United
    States, 
    394 U.S. 705
    , 707 (1969) (“What is a threat must be distinguished from
    what is constitutionally protected speech.”).
    The Waco Court of Appeals said precisely that in a similar case twenty-five
    years ago. See State v. Hanson, 
    793 S.W.2d 270
     (Tex. App.—Waco 1990, no
    writ). In that case, a county judge “was charged with having made a threat to take
    action as a public official in an attempt to coerce another public official into
    performing an official act.” Id. at 272. Specifically, the defendant in Hanson
    threatened to terminate some of the county’s funding in order to coerce a district
    20
    judge to fire a county auditor and to coerce a county attorney to revoke an
    individual’s probation. Id. at 271-72. Both the trial court and the court of appeals
    correctly dismissed the charges. As the court explained, in this sort of political
    context, “[c]oercion of a lawful act by a threat of lawful action is protected free
    expression.” Id. at 272.
    So too here. Governor Perry has been charged with attempting to “coerce” a
    lawful, official act (the voluntary resignation of a public official) by threatening to
    take a lawful, official act (the veto of an appropriations bill).4 That is protected
    free expression, and the Governor cannot be prosecuted for it.
    The prosecution attempts to distinguish Hanson by suggesting that Governor
    Perry was acting unlawfully when he made his alleged “threat,” because he did not
    have the authority or control to request the resignation of D.A. Lehmberg.
    Appellee’s Br. 25. But government officials are obviously allowed to use their
    powers to influence even those over whom they do not have direct supervision. A
    Senator may condition his vote for an appropriations bill on the resignation of a
    Cabinet Secretary, even though only the President can fire the Secretary.                          A
    President may threaten to veto a bill unless Senators agree to ratify a treaty, even
    4   We accept here for purposes of argument the special prosecutor’s position that D.A.
    Lehmberg’s resignation would have constituted an official act. But if leaving office is not an
    official act, then the elements of Section 36.03(a)(1) would not be satisfied, since that statute
    refers only to attempts to influence the exercise of “official power” or “official duty.”
    21
    though the President has no authority to directly mandate the signing of the treaty.
    There is nothing criminal about this sort of political hardball.
    2.     The consequences of allowing Governor Perry to be prosecuted under
    this law would be both far-reaching and devastating. The prosecution’s theory of
    the case would criminalize a vast swath of constitutionally protected—and
    common—political speech. For example, it would make it illegal for:
     a legislator to tell the Governor, “if you appoint John Smith to this
    position, I won’t vote for this law you want me to support”;
     a Governor to tell a legislator, “if you don’t amend this bill in a particular
    way, I’ll veto it”;
     a state legislator to tell a U.S. Senator, “if you vote for this federal bill,
    I’ll vote against this state law that you like”;
     a legislator to tell the Governor, “if you don’t resign, I’ll vote to impeach
    you”; or
     a government employee to tell his supervisor, “if you don’t give me a
    raise, I’ll ask for a transfer to a different department.”
    Nor need we limit ourselves to hypotheticals. Consider, for example, what
    happened during the Texas Youth Commission controversy in 2007. Countless
    state legislators across the political spectrum demanded the resignation of the
    commissioners—and threatened legislative action if they refused.           “[Senator]
    Ogden said the Finance Committee is prepared to use the power of the purse to
    influence change at TYC . . . . He said significant changes will have to occur
    22
    within TYC, enough for him to have confidence to recommend to his committee
    members that ‘any appropriation’ should go to the agency.” Lawmakers Decry
    Abuses Within Texas Youth Commission, TEXAS SENATE NEWS, Feb. 27, 2007. See
    also Perry: Board to Resign, WAXAHACHIE DAILY LIGHT, Mar. 15, 2007 (“[At] a
    meeting of the joint committee charged with addressing problems at the TYC,
    lawmakers asked for the resignation of the board members, going so far as to pass
    a vote of no confidence against the board.”).
    Likewise, when U.S. Senator Larry Craig was arrested for indecent conduct
    in a public restroom, “Republican leaders embarrassed by Craig’s behavior and
    news conference threatened to conduct hearings if Craig did not resign.” Hardball
    with Chris Matthews, MSNBC (Sept. 5, 2007), transcript available at
    http://www.nbcnews.com/id/20623566/ns/msnbc-hardball_with_chris_matthews/t/
    hardball-chris-matthews-sept.
    And when it was revealed that U.S. Representative Anthony Weiner had sent
    sexually themed photographs of himself via Twitter, “his fate was sealed . . . when
    party leaders in Congress and President Barack Obama began vociferously calling
    for him to go and threatened to remove him from various committees.” Alex
    Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd Twitter Photographs,
    TELEGRAPH (U.K.), June 16, 2011.
    23
    According to the prosecution in this case, it would have been a crime under
    Texas law for any of those officials to demand the resignation of other officials,
    and then to inform the other officials of potential retaliatory legislative actions if
    they refused. That cannot be correct. What the Texas legislators did in 2007, what
    the U.S. Senate Republican leadership did in 2007, and what the U.S. House
    Democratic leadership did in 2011 was neither criminal nor capable of being
    criminalized—it was protected political speech.
    And so too here. Just as Texas legislators were entitled to demand the
    resignation of the members of the Youth Commission, and just as members of
    Congress were entitled to demand the resignation of a Senator and a
    Representative who had disgraced their offices, Governor Perry was entitled to
    demand the resignation of an official who he felt was no longer serving the best
    interests of the Texans he was elected to represent—and to promise to use his
    constitutionally prescribed veto power to achieve his goal.        That is protected
    speech, and the State cannot criminalize any of it.
    3.     The vast amount of protected speech that would be deemed criminal
    under the prosecution’s theory reveals another fundamental problem with this
    Count:     the statute is unconstitutionally overbroad and therefore facially
    invalid. Thus, even though Governor Perry engaged in constitutionally protected
    expression, in fact no one can be prosecuted under this statute.
    24
    A law is unconstitutionally overbroad if “a substantial number of its
    applications are unconstitutional, judged in relation to the statute’s plainly
    legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 
    552 U.S. 442
    , 449 n.6 (2008) (quotations omitted). And the possibility of prosecutorial
    discretion cannot save an overbroad statute. “[T]he First Amendment protects
    against the Government; it does not leave us at the mercy of noblesse oblige. We
    would not uphold an unconstitutional statute merely because the Government
    promised to use it responsibly.” United States v. Stevens, 
    559 U.S. 460
    , 480
    (2010). Here, the law—as interpreted by the prosecution—would plainly capture
    an overwhelming amount of protected speech. It is accordingly unconstitutionally
    overbroad.5
    The prosecution does argue that the statute is not overbroad, because
    coercive threats are not entitled to First Amendment protection. Appellee’s Br. 14
    & nn. 30-32 (citing Duncantell v. State, 
    230 S.W.3d 835
    , 843-44 (Tex. App.—
    5   The prosecution argues that “if the court can identify any factual circumstance in which the
    statute is valid, the facial challenge must fail”—and accordingly provides hypothetical
    applications of the statute that it claims would not violate the First Amendment. Appellee’s
    Br. 15-16. But that is the opposite of the overbreadth doctrine, which provides that a law
    must be facially struck down so long as a “substantial number”—not all—of its applications
    are unconstitutional. “[T]he possible harm to society in permitting some unprotected speech
    to go unpunished is outweighed by the possibility that protected speech of others may be
    muted.” Broadrick v. Oklahoma, 
    413 U.S. 601
    , 612 (1973). The overbreadth doctrine is, in
    that sense, an exception to the traditional approach to facial challenge to statutes—an
    exception that the prosecution seems to have forgotten.
    25
    Houston [14th Dist.] 2007, pet. ref’d)). But threatening to engage in an official act
    in order to “coerce” someone to take an official act is not a punishable threat; it is
    protected political speech. See Hanson, 793 S.W.2d at 272.
    And Duncantell provides no different. That case made the simple point that
    interfering with a police officer while he is on the street performing a law
    enforcement function is not expressive activity. See Duncantell, 230 S.W.3d at
    844 (addressing interference with a “peace officer performing a duty imposed by
    law, such as investigating an accident or arresting a criminal suspect”). It does not
    mean that, for instance, a newspaper can be punished for harshly criticizing the
    police, even when that interferes with officers’ authority and thus makes it harder
    for them to perform their duties. It does not mean that a legislator can be punished
    for voting against a bill that would better fund police officers, because that too
    would make it harder for police officers to perform their duties. Likewise, it does
    not mean that a Governor can be punished for demanding the resignation of a D.A.
    simply because that would mean the D.A. would no longer be performing the
    duties of a D.A.
    4.     The prosecution argues, for the first time on appeal, that Governor
    Perry’s speech is actually “government speech”—and thus any regulation of his
    speech is wholly exempt from First Amendment scrutiny. See, e.g., Appellee’s Br.
    26
    9-10 & nn. 11-18 (citing Garcetti v. Ceballos, 
    547 U.S. 410
    , 422 (2006); Pickering
    v. Bd. of Educ., 
    391 U.S. 563
    , 568 (1968)).
    But the speech of elected officials at issue here is simply not government
    speech as defined by the Garcetti line of cases.6 Indeed, common sense demands
    that it not be government speech. Does the special prosecutor truly believe that the
    Legislature could, with a veto-proof majority, prevent the Governor from saying
    anything at all on particular topics? Of course not—yet that is precisely what the
    Legislature could do if Governor Perry’s speech were deemed government speech.
    Moreover, even if this Garcetti argument is taken seriously, it is further
    undermined by the fact that Section 36.03(a)(1) is not limited to speech by elected
    officials. See TEX. PENAL CODE § 36.03(a)(1) (“A person commits an offense if
    . . .”) (emphasis added). It would also apply to newspaper publishers, advocacy
    groups, and average citizens who make legal statements in an attempt to influence
    legal acts (such as what Governor Perry did here). Criminalizing such speech is
    6   See, e.g., Jenevein v. Willing, 
    493 F.3d 551
    , 558 (5th Cir. 2007) (“We are persuaded that the
    preferable course ought not draw directly upon the Pickering-Garcetti line of cases for
    sorting the free speech rights of employees elected to state office.”); Rangra v. Brown, 
    566 F.3d 515
    , 523-24 (5th Cir. 2009) (“None of the Supreme Court’s public employee speech
    decisions qualifies or limits the First Amendment’s protection of elected government
    officials’ speech.”), on reh’g en banc, 
    576 F.3d 531
     (5th Cir. 2009) (mooted). “The manifest
    function of the First Amendment in a representative government requires that legislators be
    given the widest latitude to express their views on issues of policy.” Bond v. Floyd, 
    385 U.S. 116
    , 135-37 (1966).
    27
    plainly unconstitutional—and Section 36.03(a)(1) is thus unconstitutionally
    overbroad.
    5.     The prosecution also declares that “[t]he ‘Coercion of a Public
    Servant’ statute does not make the favored/disfavored expression distinction that
    would raise constitutional [content-discrimination] concern.” Appellee’s Br. 20.
    But the prosecution offers no explanation for this statement—which is
    unsurprising, because the statute is plainly content based. It specifically singles
    out speech that is intended to affect an act by a public official.
    6.     The prosecution oddly argues that the law is constitutional because
    “[w]here one public servant is threatened by another public servant . . . the
    possibility that the public servant speaker may assert First Amendment protection
    is precisely what makes the coercive threat so effective in seeking to influence the
    public servant listener.” Appellee’s Br. 8. The prosecution concludes that “[t]his
    precisely is the legitimate basis for courts allowing the State to regulate and put
    limits on a public servant’s speech with greater latitude than regulating speech of a
    private citizen.” Id.
    But that cannot be right. Is the prosecution really arguing that if a public
    official has a First Amendment right to say something, the Legislature actually has
    a greater basis for regulating that speech? If anything, the opposite is true: the
    28
    First Amendment is particularly crucial when the Legislature is trying to restrict
    protected political speech in an attempt to diminish its effectiveness.
    ***
    Last year, President Obama threatened to issue various executive orders if
    Congressional Republicans refused to pass comprehensive immigration reform.
    See, e.g., President Barack Obama, Remarks by the President in a Press
    Conference (Nov. 5, 2014), transcript available at http://www.whitehouse.gov/the-
    press-office/2014/11/05/remarks-president-press-conference; Neil Munro, Priebus:
    Obama Executive Amnesty Is A ‘Nuclear Threat,’ THE DAILY CALLER (Nov. 7,
    2014), available at http://dailycaller.com/2014/11/07/priebus-obama-executive-
    amnesty-is-a-nuclear-threat.
    The President later followed through on that threat.         To be sure, those
    executive actions are highly controversial and are currently the subject of
    litigation. But no one could seriously argue that President Obama’s political
    statements regarding those actions are unprotected by the First Amendment and
    subject to potential criminal prosecution.
    So too here. Just as President Obama can tell Congressional Republicans (as
    he did at an official White House press conference): “You send me a bill that I can
    sign, and those executive actions go away”—Governor Perry can tell a convicted
    29
    government official essentially the same thing: “You resign, and my veto goes
    away.”
    Moreover, if this prosecution is not immediately dismissed, the chilling
    effect on political discourse will be disastrous. Any public official who seeks to
    drive criminally or disgracefully behaving officials out of office will now rightly
    fear that a district attorney from the other side of the political spectrum would
    prosecute him—just as Governor Perry is being prosecuted here today.7
    If Governor Perry is forced to endure a criminal trial, then the damage will
    already be done—even if he is ultimately acquitted. The mere knowledge that an
    indictment can be maintained would itself chill a vast spectrum of constitutionally
    protected political speech by other political officials. See Hanson, 793 S.W.2d at
    273 (“A vague statute that potentially could punish protected political debate
    violates due process because of its chilling effect on the exercise of that essential
    right.”) (citing Grayned v. City of Rockford, 
    408 U.S. 104
    , 108-09 (1972)).
    The special prosecutor argues that there is no chilling effect, both because
    the statute has been on the books for decades and because no speech has been
    chilled since the start of Governor Perry’s prosecution. Appellee’s Br. 16-17. As
    7   See, e.g., Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks, MAIN JUSTICE (Oct.
    13, 2009), available at http://www.mainjustice.com/2009/10/13/doggett-no-retreat-on-us-
    attorney-picks/ (quoting statement of U.S. Representative Lloyd Doggett recommending
    “LULAC-supported Michael McCrum” for appointment as U.S. Attorney by President
    Obama).
    30
    to the first reason, of course the mere existence of the statute did not chill free
    speech. After all, until this special prosecutor came along, no one would have
    thought that they could be prosecuted for engaging in constitutionally protected
    political speech (as Hanson confirmed).
    As to the second reason, the special prosecutor might actually be correct that
    Governor Perry’s prosecution has not yet chilled any speech—but that is only
    because most people (though not the special prosecutor and the district court)
    expect the case to promptly end because of its obvious constitutional flaws. But if
    it does not end immediately, that certainty will be shattered and the constitutional
    rights of public officials everywhere will be chilled.
    That is why an immediate writ of habeas corpus is necessary in this case.
    This Court should announce—right now—that it is unconstitutional to prosecute
    Governor Perry for his protected political speech.
    CONCLUSION
    The flaws in this indictment strike at the heart of the separation of powers
    doctrine enshrined in the Texas Constitution, as well as the freedoms protected by
    both the First Amendment of the U.S. Constitution and Article I, Section 8 of the
    Texas Constitution. So this prosecution must end immediately. The application
    for a writ of habeas corpus should be granted.
    31
    DATED: April 19, 2015                    Respectfully submitted,
    /s/ James C. Ho
    Eugene Volokh                            James C. Ho
    California Bar No. 194464                 Texas Bar No. 24052766
    Gary T. Schwartz Professor of Law        Prerak Shah
    UCLA SCHOOL OF LAW                           Texas Bar No. 24075053
    385 Charles E. Young Dr. East            Bradley G. Hubbard
    Los Angeles, CA 90095                        Texas Bar No. 24090174
    Tel.: (310) 206-3926                     GIBSON, DUNN & CRUTCHER LLP
    volokh@law.ucla.edu                      2100 McKinney Avenue, Suite 1100
    Dallas, TX 75201-6912
    Tel.: (214) 698-3264
    Fax: (214) 571-2917
    jho@gibsondunn.com
    pshah@gibsondunn.com
    bhubbard@gibsondunn.com
    COUNSEL FOR AMICI CURIAE
    32
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this brief satisfies the word-limit requirements for
    amicus briefs contained in the Texas Rules of Appellate Procedure, because it
    contains a total of 7,244 words, excluding the portions that can be excluded
    pursuant to those same rules.
    /s/ James C. Ho
    James C. Ho
    33
    CERTIFICATE OF SERVICE
    I hereby certify that, on April 19, 2015, a true and correct copy of the
    foregoing was served via electronic mail on the following counsel of record for all
    parties in this case:
    Michael McCrum                              Anthony G. Buzbee
    District Attorney Pro Tem                   THE BUZBEE LAW FIRM
    Travis County, Texas                        JPMorgan Chase Tower
    700 N. St. Mary’s St., Suite 1900           600 Travis Street, Suite 7300
    San Antonio, TX 78205                       Houston, TX 77002
    David M. Gonzalez                           Thomas R. Phillips
    Assistant District Attorney Pro Tem         BAKER BOTTS LLP
    Travis County, Texas                        98 San Jacinto Boulevard, Suite 1500
    206 East 9th Street, Suite 1511             Austin, TX 78701
    Austin, TX 78701
    David L. Botsford
    Counsel for the State of Texas              BOTSFORD & ROARK
    1307 West Avenue
    Austin, TX 78701
    Counsel for Applicant
    /s/ James C. Ho
    James C. Ho
    34