High court faces key decisions on Perry
Abuse-of-power charge, coercion law at issue as judges start new term.
The next move in the felony case against Rick Perry belongs to the state’s highest criminal court, which will decide as early as mid-September whether to accept or reject two appeals in the case.
The Court of Criminal Appeals’ decision could go a long way toward determining whether Perry, indicted by a Travis County grand jury in August 2014, will be tried on a charge of misusing his power as governor, which prosecutors classifified as a felony with a maximum term of life in prison, though probation is common for similar white-collar crimes.
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.
Both charges arose from Perry’s 2013 threat to veto state money unless another elected official resigned, then following through on the threat when she remained in office.
Perry has asked the Court of Criminal Appeals to dismiss the abuse of power charge, arguing that prosecutors cannot criminalize acts that are protected by the Texas Constitution — particularly freedom of speech and the separation of powers in the branches of government.
In a separate appeal, prosecutors asked the court to reinstate the law barring coercion of a public official, saying freespeech protections don’t apply “when a public servant illegally threatens to do indirectly what he does not have the power to do directly.”
The court could accept one or both appeals, or reject both. The first opportunity to make those decisions will be Monday, when judges will meet behind closed doors for the first time since the court’s new term began Sept. 1.
The appeals court will not be at full strength when considering the Perry appeals. Judge Bert Richardson, who took office in January, said he won’t participate in any discussions because he is still overseeing Perry’s criminal case as an appointed district judge — and issued the first ruling denying Perry’s request to dismiss both charges.
It is not uncommon for judges to step aside from cases they had previously handled as a lower-court judge or lawyer, said Sharon Keller, presiding judge of the Court of Criminal Appeals. When that happens, “they don’t participate in any aspect of the case. The judge is not in the room when it’s discussed in conference,” she said.
There are eight Republicans on the court, including Richardson, and one Democrat.
If the court accepts either appeal, it will direct both sides to submit detailed briefs making their arguments.
At this stage, lawyers for both sides are trying to catch the court’s eye, arguing that decisions made in the Perry case will affect future criminal trials and that the 3rd Court of Appeals — which declined to dismiss Perry’s abuse of power charge but threw out the coercion statute — made key mistakes that must be corrected.
State Prosecuting Attorney Lisa McMinn, who filed the appeal seeking to reinstate the coercion law, has said she stepped in to protect a state law and was taking no position on whether it should be applied to Perry, now a Republican candidate for president.
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.
McMinn has asked the Court of Criminal Appeals to schedule oral arguments in the case, but Perry’s lawyers have requested a ruling based solely on briefs, saying arguments would add an unnecessary delay.
Perry’s legal team also has a motion to dismiss the indictments that is awaiting a ruling by Richardson.
Prosecutors Michael McCrum of San Antonio and David Gonzalez of Austin, appointed by Richardson because of the Travis County district attorney’s office’s involvement in Perry’s veto threat, have asked Richardson to delay ruling on the motion while the Court of Criminal Appeals considers both appeals.
Perry’s lawyers objected to the request, noting that it has been more than 12 months since his indictment and arguing that further delays would infringe on Perry’s right to a speedy trial.