The highest criminal court in Texas has agreed to hear appeals from both the state and former Governor Rick Perry in the abuse of power indictments brought against him. On Wednesday the Court granted petitions for discretionary review filed in mid-August and early September.
In August of 2014, a Travis County grand jury indicted then-Texas Governor Perry for allegedly abusing the powers of his office by carrying out a threat to veto funding for the Travis County District Attorney’s Public Integrity Unit. The Travis County grand jury indicted Perry for abuse of power and coercion of a public servant stemming from his threat to veto, and his ultimate veto, of $7.5 million in funding for the public integrity unit of the Travis County district attorney’s office. That division of the agency has been accused in the past of using their power against political opponents.
Perry got crossways with Travis County District Attorney Rosemary Lehmberg when he told her to resign after she was arrested and plead guilty to drunken driving in 2013. An unflattering video recording of Lehmberg showed her kicking at her cell door, yelling at staffers, and sticking her tongue out. Lehmberg eventually was subdued with face, arm, and leg restraints. Her blood alcohol level was 0.239, almost three times the legal limit. Lehmberg served time in jail but stayed in office. Perry carried out his veto threat when Lehmberg did not resign.
In July, the Third Court of Appeals in Austin dismissed one of the charges against Perry. This left one of the charges pending. The appellate court held that “the statute on which the ‘coercion of a public servant’ is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.” The second charge, abuse of official capacity was left pending. The Court held that because Perry’s legal team urged only a constitutional violation “as applied” to him, the legal precedents of the Texas Court of Criminal Appeals precluded it from giving any relief “at this juncture” on the abuse of official capacity charge.
State prosecuting attorney Lisa C. McMinn also filed a petition asking the Court of Criminal Appeals to review the Austin intermediate appellate court’s dismissal of the official coercion charge as unconstitutionally overbroad under the First Amendment. The State argues that in determining that the statute banned a substantial amount of protected speech, it failed to recognize the extent of the statute’s legitimate sweep and considered hypothetical instances of protected speech that would not actually be included in the statute’s coverage.
In response to the State’s appeal, Perry’s lawyers filed a cross-petition seeking review of the Court of Appeals’ opinion regarding the official coercion charge and only if the Court granted review of the State’s petition, which it did.
Perry’s lawyers did not request oral arguments saying the grounds presented on appeal could be determined on the briefs, and scheduling oral argument on the court’s calendar would only delay the court’s ruling. However, the defense said they were willing to present oral argument if the Court ordered it but respectfully requested that any argument be scheduled on an expedited basis. The State requested oral argument saying the case dealt with the facial constitutionality of a penal statute. As a general matter, legal arguments presented in appellate briefs can be determined without oral argument but an appellate court has the discretion to allow oral argument on a party’s request, or the Court’s own motion.
The Texas Criminal Court of Appeals has ordered the parties to file briefs in the case on or before October 21st and stated that no extensions of time will be entertained.
Oral arguments will be held on November 4th.
Judge Bert Richardson, the Republican who was appointed to oversee the abuse of power case, has since been elected to the Court of Criminal Appeals. Richardson will not participate in the appeal at the criminal appellate court.
Perry has said the indictments are to blame for his recent failed presidential run.
As reported by Breitbart Texas, the former Governor has spent over $2 million for his legal defense as of this July.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate court judge. Follow her on Twitter@LanaShadwick2