Top appeals court takes Perry case
Ex-governor’s defense says drop abuse-of-power count; prosecution says reinstate coercion charge.
The state’s highest criminal court will determine whether the felony case against former Gov. Rick Perry will be allowed to proceed toward trial.
The Court of Criminal Appeals announced Wednes- day that it had granted review of two appeals — one by Perry, the other by prosecutors — setting an aggressive schedule that includes oral arguments on Nov. 4, a much faster than normal pace.
Perry had asked the court to speed matters earlier this summer, when he was in the midst of a presidential campaign that eventually faltered. The Republican dropped his bid for the White House almost a month ago and later blamed the criminal case, in part, for handcuffing his campaign by dampening his fundraising ability.
Now simply hoping to avoid a trial that could lead to prison time, Perry has asked the court to dismiss a first-degree felony charge of misusing his powers as governor. The charge carries a maximum punishment of life in prison,
though probation is common in similar white-collar cases.
A second felony charge, coercion of a public official, was dismissed in July when a lower appeals court declared the coercion law unconstitutional because it violated free speech rights.
In a separate appeal, a state prosecutor asked the Court of Criminal Appeals to reinstate the law, arguing that free speech protections don’t apply “when a public servant illegally threatens to do indirectly what he does not have the power to do directly.”
The accusations against Perry stem from his 2013 threat to veto $7.5 million for Travis County’s Public Integrity Unit unless District Attorney Rosemary Lehmberg resigned after her conviction for driving while intoxicated. Perry used his line-item veto to cut the money from the 2014-15 state budget after Lehmberg, whose office runs the unit, refused.
Seeking to have the abuse-of-power charge dismissed, defense lawyers argue that Perry’s veto threat was protected by his free speech rights. In addition, defense lawyers argue, the attempt by prosecutors to punish a lawful act — a governor wielding his veto power — violates the separation of powers among the branches of government as established by the Texas Constitution.
“The state seeks to criminalize conduct that the constitution itself authorizes and protects,” Perry’s lawyers told the court.
To succeed, however, defense lawyers will have to persuade the Court of Criminal Appeals to abandon a long-held standard that prevents defendants from attacking charges before trial by arguing that a law is being unconstitutionally applied to them. Proving such a claim requires facts that can only be developed during the trial, the court has previously ruled.
The second appeal granted by the court was sought by State Prosecuting Attorney Lisa McMinn, who asked the court to reinstate the coercion law. McMinn has said she stepped in to protect a state law and was taking no position on whether it should be applied to Perry.
Each appeal will be heard separately during the Nov. 4 arguments.
The court has no deadline to issue a ruling but indicated its commitment to a speedy resolution by setting strict deadlines, ordering all briefs to be submitted by Oct. 21 and warning lawyers that no extensions will be granted.
Judge Bert Richardson, who was appointed to oversee the Perry case before joining the nine-member appeals court in January, is not participating in either appeal.