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

November 24, 2015
NO. PD-1067-15
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
EX PARTE JAMES RICHARD “RICK” PERRY,
Appellant
________________________________________________________
On Appeal from the 390th Judicial District Court,
Travis County, Texas, Cause No. D-1-DC-14 100139
________________________________________________________
APPELLANT’S POST-ORAL ARGUMENT SUBMISSION
IN CONNECTION WITH HIS BRIEF ON THE MERITS
ADDRESSING HIS PETITION FOR DISCRETIONARY REVIEW
________________________________________________________
TO THE HONORABLE JUDGES OF SAID COURT:
In light of questions from the bench at oral argument, the following is
submitted to assist the Court in its disposition of Governor Perry's challenges to
Count I of the indictment.
A. The State, having repeatedly admitted that the veto is the basis of count I,
should be estopped from suggesting otherwise.
The State's pleadings in the court of appeals and the trial court, only some of
which were specifically identified by counsel during oral argument, reflect repeated
and unambiguous admissions which should estop the State from claiming that Count
I is not based upon the veto and from asserting that any further factual development
is necessary for Governor Perry's challenges to Count I to be fully cognizable in this
Court:1
State's Supplemental Brief filed in the court of appeals on May 11,
2015 at page 3:
The parties have established entrenched positions.
Appellant argues he has a constitutional right to make
coercive threats and veto prosecutorial appropriations, and
the State argues it has an absolute right to prosecute him
for doing so based on his motives.
State's Brief filed in the court of appeals on March 27, 2015, at page
42-43:
There are limitless ways in which a public servant may use
government property in unauthorized way. 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.
State's Response To Defendant's Third Motion To Quash, filed in
the trial court on April 17, 2015 (contained in Clerk's Supplemental
Record dated April 27, 2015 at page 18 (Supp.CR at 87)):
The challenges to Count One should be denied, and a jury
should determine whether or not the veto of the Public
Integrity Unit funds was a misuse of the Defendant's
Power.
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See e.g., Brito-Carrasco v. State, 154 S.W.3d 127, 130 n. 10 (Tex. Crim. App. 2005)(Cochran,
J., concurring)(discussing judicial admissions and their conclusive effect). See also Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001), citing Houston First Am. Sav. v.
Musick, 650 S.W.2d 764, 767 (Tex. 1983))("Assertions of fact, not plead in the alternative, in the
live pleadings of a party are regarded as formal judicial admissions."). Additionally, the doctrine of
quasi-estoppel should prevent the State from asserting that the veto was not the gravamen of Count
I. See Schmidt v. State, 278 S.W.3d 353, 358-359 (Tex. Crim. App. 2009); Matthews v. State, 165
S.W.3d 104, 109-111 (Tex. App.—Fort Worth 2005, no pet.); Clark v. Cotten Schmidt, L.L.P., 327
S.W.3d 765, 700 (Tex. App.—Fort Worth 2010, no pet.).
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State's Response To Defendant's Third Motion To Quash, filed in
the trial court on April 17, 2015 (contained in Clerk's Supplemental
Record dated March 2, 2015 at pages 2 and 3 (Supp.CR at 4, 5)):
On or about June 14, 2013, Defendant Perry misused his
gubernatorial power to veto a legislatively-approved
appropriation of funds for the Public Integrity Unit. . . .
Contrary . . . Defendant Perry misused government
property that was subject to his custody and control and
possession in that he used the lawful power of
gubernatorial veto for an unlawful purpose, to wit:
eliminating funding for the Public Integrity Unit. . . .
Second, . . . Defendant Perry misused government property
that was subject to his custody and possession in that he
used the lawful power of gubernatorial veto for an
unlawful purpose, to wit: eliminating funding for the
Public Integrity Unit. . . .
State's Response To Defendant's Motion For Immediate
Transcription Of Grand Jury Testimony" filed in the trial court on
October 31, 2014 (contained in Clerk's Supplemental Record dated
January 28, 2015 at pages 14, 15, 20-21 (Supp.CR at 252, 253, 258-
259)):
But a governor can veto a bill while sitting at his kitchen
table.
A governor can talk about the veto before making a
decision. He can remain close-lipped and keep his cards to
his chest. A governor may give an explanation for the veto,
or, offer no explanation at all. The veto power is his
regardless.
This doctrine notwithstanding, Defendant Perry argues that
his power to veto magnifies and incorporates the powers
delegated to the other two branches of government . . . The
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Executive veto is incredibly powerful, but it cannot be the
basis for Speech or Debate immunity.
These quotations simply illustrate what everyone has understood from the very
beginning — that Count I is based exclusively on the Governor's exercise of his
constitutional veto authority. Any effort by the State to contend otherwise now would
harm the integrity of our legal system, and this Court should hold the State estopped
from doing so.
B. Section 39.02 violates Separation of Powers and this claim is cognizable.
During oral argument, Appellant's counsel referred to Ex parte Jones, 803
S.W.2d 712 (Tex. Crim. App. 1991), a case not cited in Appellant's brief, and
compared it to Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987) to elaborate
on what constitutes a violation of the Separation of Powers doctrine and why this case
poses a far graver threat. In both Jones and Meshell, statutes allegedly infringed or
unduly interfered with a prosecutor's absolute discretion. The key consideration in
both cases was the consequences of the statutory schemes. Jones upheld the statute,
which provided a salutary impact on a citizen by allowing bail, yet posed no obstacle
to the prosecutor's ability to prosecute. But in Meshell, the statute required dismissal
of the charging instrument, thus preventing the prosecutor from proceeding
altogether, and this Court struck down that statute as an undue interference by one
branch into the discretion of another.
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This case, by contrast, concerns whether the prosecution of a governor under
Section 39.02 for the exercise of a veto would unduly interfere with the Executive
Branch's core responsibility. The separation-of-powers consequences in this case are
far more dramatic than in either Jones or Meshell. The threat of criminal prosecution
under a general statute, such as Section 39.02, constitutes a chilling, undue
interference with and encroachment upon the exercise of the Governor's Article IV,
Section 14 discretion (limited only as it is by the express language of Article IV,
Section 14 itself). Indeed, the Legislature may not make a law that, whether directly
or by implication, the Texas Constitution prohibits. See e.g., Shepherd v. San Jacinto
Junior Coll. Dist., 363 S.W.2d 742, 743 (Tex. 1962); State v. Brownson, 61 S.W. 114
(Tex. 1901). Furthermore, "[w]hen the Constitution defines the circumstances under
which a right may be exercised, the specification is an implied prohibition against
legislative interference to add to the condition." Ex parte Myer, 84 Tex. Crim. 288,
297, 207 S.W. 100 (Tex. Crim. App. 1918)(citing Cooley, Const. Lim. (4th Ed.) p. 78;
Parks v. West, 102 Tex. 11, 111 S.W. 726 (Tex. 1908)).
Accordingly, the prosecutor's attempt to use a general statute, Section 39.02,
to prosecute the gubernatorial veto when the Legislature could not validly pass a
statute limiting, let alone criminalizing, any exercise of that veto power in the first
instance, demonstrates the Separation of Powers violation inherent in the instant
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indictment.
C. Cognizability under this Court's original habeas jurisdiction (and/or original
mandamus/prohibition jurisdiction) provides an alternative basis for relief.
As suggested by Appellant's counsel, if the Court has any lingering concerns
regarding cognizability, it has the right to consider this appeal as an original writ of
habeas corpus and/or as an original writ of prohibition under Article V, Section V of
the Texas Constitution. This right is illustrated in the following cases:
Ex parte Johnson, 876 S.W.2d 340 (Tex. Crim. App. 1994);
Ex parte Clore, 690 S.W.2d 899 (Tex. Crim. App. 1985);
Ex parte Payne, 618 S.W.2d 380 (Tex. Crim. App. 1981);
Basaldua v. State, 558 S.W.2d 2 (Tex. Crim. App. 1997); and
Ex parte Giles, 502 S.W.2d 744 (Tex. Crim. App. 1973).
Respectfully submitted,
BOTSFORD & ROARK
/s/ David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040
THE BUZBEE LAW FIRM
/s/ Anthony G. Buzbee
Anthony G. Buzbee
State Bar No. 24001820
JPMorgan Chase Tower
600 Travis Street, Suite 7300
Houston, Texas 77002
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Tbuzbee@txattorneys.com
Telephone: 713-223-5393
Facsimile: 713-223-5909
BAKER BOTTS L.L.P.
/s/ Thomas R. Phillips
Thomas R. Phillips
State Bar No. 00000102
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701-4078
tom.phillips@bakerbotts.com
Telephone: 512-322-2565
Facsimile: 512-322-8363
Certificate of Service
I hereby certify that a true and correct copy of the above and foregoing has
been delivered to all counsel at the time it was electronically filed.
BOTSFORD & ROARK
/s/ David L. Botsford
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