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Rick Perry

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

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Corndogs for everyone!

The state’s highest criminal court dismissed the remaining indictment against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.

[…]

A ruling earlier in the year by a state appeals court dismissed one of the two felony charges against Perry: coercion of a public servant. Perry’s lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge.

And that’s what the Texas Court of Criminal Appeals did on Wednesday. Two of the court’s nine judges dissented in that one ruling, while one abstained.

Tony Buzbee, Perry’s attorney, called the ruling a “long time coming,” and said the case should have never been brought in the first place.

“I said all along this case was foolishness and would be dismissed.”

Michael McCrum, the special prosecutor in the case, called the ruling “horrendous.”

“This is a situation where the Republican court carved out a special ruling to get Perry off the hook. It changes law for past decades and offers no laws for future courts to follow,” he said. “This is, from what I understand, a special ruling tailor-made for Rick Perry.”

Craig McDonald, executive director of Texans for Public Justice, the liberal-leaning watchdog group behind a complaint that led to the indictment, largely echoed that notion.

“A highly partisan court has handed Rick Perry a gift,” he said. “This decision is based on who Perry is rather than what he did.”

You could sort of see this coming when the case was argued last November, but it’s still a bit of a surprise. Clearly, there are limits to how pro-prosecutor this court will be, and Rick Perry joins Tom DeLay in being beneficiaries of that. I don’t feel like spending too much time thinking about it, so I will point you to the Associated Press, the AusChron, Trail Blazers, the Current, and the Press for more.

Perry’s day at the CCA

Now we wait to see if he comes out of this a free man or a man still under one or more indictments.

Corndogs make bad news go down easier

Never mind the corndogs, here comes the CCA

Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.

At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant.

[…]

Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.

Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry’s appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry’s case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.

As Perry’s legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas’ longest-serving governor: separation of powers, free speech and legislative immunity.

“The danger of allowing a prosecutor to do this is mind-boggling,” Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.

McMinn argued more than once that the defense was “getting ahead of ourselves” with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are “issues of law, not issues of fact.”

McMinn specifically sought to poke holes in Botsford’s argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said “strains credibility” when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly “wearing his legislative hat” and thus protected from prosecution, regardless of any threats that may have accompanied his veto.

This hearing was originally scheduled for November 4, but you know how it goes. What happens next is we wait. The CCA justices (minus Bert Richardson, who is of course the judge in the actual criminal trial) asked more questions of McMinn than of Botsford, but who knows if that means anything. The trial is on hold pending a resolution of these issues by the CCA, so one hopes we won’t have to wait too long. See Trailblazers, the Express-News, and this Trib story for more from before the hearing.

Who can pay for Ken Paxton’s defense?

Paxton himself would like to know, though he doesn’t want you to know that he wants to know.

Best mugshot ever

In mid-July, a law firm representing an unnamed state official asked the Texas Ethics Commission whether it would be legal under state gift-giving laws for its client to receive a “benefit” from a donor if the official “has no reason to believe” the donor is subject to his agency’s oversight.

The firm’s name was redacted from the opinion request, and the anonymous official was described simply as “a public servant who works, in a leadership capacity, for an agency that performs regulatory functions, conducts inspections, and conducts investigations.”

According to the request, the donor has signed a written statement saying he is not subject to the agency’s oversight in any way.

“In addition, the public servant has no actual knowledge that the donor is subject to the regulation, inspection, or investigation by the public servant,” the request said.

Under state law, an official at a regulatory agency that conducts inspections and investigations is forbidden from asking for, accepting or agreeing to accept a benefit if the official knows the giver is subject to the agency’s authority.

Earlier this month, the eight-member ethics commission discussed, but did not adopt, a draft opinion in response to the request. Commissioners said they did not have enough information to determine exactly what the state official knows about the donor.

“This requestor just needs to do it again with more facts and circumstances,” Commission Chairman Paul Hobby said.

[…]

As it relates to Paxton’s specific case, ethics experts said how the commission will respond is complicated by the scope of the office of the attorney general, which handles everything from lawsuits defending the state, antitrust cases targeting illegal business practices and unpaid child support. In effect, virtually every Texan could be subject to the attorney general’s regulation or investigation at some point.

All of Paxton’s biggest donors are wealthy Texans with substantial business interests in the state.

Renea Hicks, an Austin-based lawyer who practices election and ethics law, and former assistant attorney general Fred Lewis, a state ethics expert, said the issue was problematic.

The commission could create a “huge loophole” if it allowed officials to accept donor money to pay for non-campaign related expenses like legal fees, Hicks said.

The attorney general, Lewis said, would need to be careful to show there is not even the appearance of a conflict of interest by refraining from taking money for his legal defense from people with pending or likely business before his office.

“An AG’s desire to collect private donations to pay legal bills and to hire good lawyers to avoid jail might tempt an AG to temper his judgment on his clients’ behalf,” Lewis said. “That is morally wrong, a violation of legal duties, and potentially bribery.”

Yes, please, Mister Anonymous Requester, ask again with some more information so we can better answer your question. The difference between Paxton and Rick Perry, in case you were wondering, is that Perry was indicted for acts that occurred in the course of his duties as Governor. As such, he is allowed by law to use campaign funds to pay his attorneys. Paxton allegedly did what he was indicted for as a private citizen, so pending a friendly TEC ruling he’s on his own. Not that there aren’t people who’d like to help him out, it’s just that right now they can’t. And honestly, I think it ought to stay that way, but we’ll see what the TEC says when and if that “anonymous requester” asks again. Trail Blazers has more.

Perry appeal briefs

The latest update on the appeals before the CCA in the Rick Perry matter.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs

The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.

Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.

And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”

The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.

Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”

The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.

The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”

“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.

[…]

State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.

“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.

“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.

McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.

She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”

See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.

What is coercion, anyway?

It could be the defining legacy of Rick Perry’s career, depending on how things go in the courts.

Corndogs make bad news go down easier

This corndog has not been coerced in any way

The coercion law has been used only sparingly in Texas, according to records for the past five years, and some legal experts call it problematic.

Others, however, say its absence will be felt if the Texas Court of Criminal Appeals agrees with the decision to toss the law.

“I see it not just as a numbers game,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center.

“To the extent you are taking away tools from prosecutors to charge as well as to plea bargain, they are going to be potentially deterred from bringing more cases. And I don’t see how that’s helpful to the citizens,” Hamilton said.

[…]

The state is appealing the 3rd Court’s decision to throw out the coercion law, saying it should stay on the books to hold public officials accountable. Perry still faces a charge of abuse of official capacity, which he is appealing.

Some agree with Perry’s team and the 3rd Court that the coercion law has problems.

“When something that could fit that coercion of a public servant statute would come in, it was almost always a better fit for bribery or for obstruction or retaliation of a public servant,” said Bexar County Assistant District Attorney Patrick Ballantyne, whose job includes handling public integrity cases.

“I think that statute needs to be more narrowly tailored by the Legislature for a lot of the reasons that the 3rd Court cited,” Ballantyne said. “Basically it encompasses too much constitutionally protected speech. Stuff that may just be impassioned criticism of a public servant may technically fall under the letter of that statute. So it’s a statute that’s just too broad a sword given the constitutional issues that are at play.”

The Texas Department of Public Safety criminal history database shows 23 convictions statewide under the coercion law in the past five years. The database is dependent on reporting by local entities.

The number of cases involving public servants such as elected officials or government employees – the category of the law targeted by the 3rd Court decision – is much smaller.

DPS doesn’t capture information on whether those convicted were public officials, according to a spokesman. Ballantyne said of three Bexar County convictions, none were public servants.

[…]

Professor Geary Reamey of St. Mary’s University School of Law said effects of the 3rd Court’s ruling will be minimal, and that lawmakers can move to address problems if need be. The Legislature previously amended the law after an appellate court found constitutional problems.

“I don’t think it’s a terribly big deal. We’ll always have statutes that try to address corruption and malfeasance and misfeasance by public officials,” Reamey said. “It may very well be that the Legislature will decide that they want to come back and address the concerns.”

See here, here, and here for the background. With all due respect to Prof. Reamey, I think the odds of the Legislature acting to clarify or rewrite the existing coercion statue are slightly less than the odds are of Dan Patrick being the grand marshal at next year’s Pride parade. It would be nice if they attempted to fix it, because I do think that what Rick Perry did should fall afoul of a coercion law. It’s not the veto, it’s the threat against another elected official. If what Perry did is okay, then what’s to stop Greg Abbott from threatening to veto every bill John Whitmire authors or sponsors unless he steps down? Again, it is well within the Lege’s capacity to tailor such a law in whatever way they think is best and to aim it at whatever behavior they think should be prohibited, but given that there’s zero incentive for them to do so, and plenty of incentive for them to not do so, I hope the CCA reverses the Third Circuit and leaves the current law standing. Oral arguments are for November 4, so we’ll have some idea soon enough which way they wind is blowing.

CCA will hear appeals of Perry’s indictments

It’s on.

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Corndogs are very appealing

The Texas Court of Criminal Appeals on Wednesday granted requests by both Perry and the Office of the State Prosecuting Attorney to determine whether the indictment against Perry should stand. The court set oral arguments for Nov. 4.

[…]

Each side has until Oct. 21 to file briefs with the Texas Court of Criminal Appeals, which said it would not consider any requests for more time. Perry’s lawyers had pressed for an even more compressed timeline, asking the court to skip oral arguments altogether.

The Wednesday ruling is the first major development in the case since Perry dropped out of the 2016 presidential race last month. He has since cited the indictment as a reason his second bid for the White House never gained traction.

See here, here, and here for the background. This is what we’ve waited for, and now we’re going to get it. Note that one of the appeals is to have the indictment that had been tossed by the Third Circuit be reinstated, so there’s risk as well as reward for Perry. He could be cleared, he could wind up back at square one, or he could remain where he is. I can’t wait to see the briefs. Trail Blazers and the Current have more.

Perry’s pathetic pity party

There isn’t a violin small enough.

Corndogs make bad news go down easier

At least the corndogs still love me

Rick Perry blamed his criminal indictment and exclusion from the Republican debate mainstage for his failed presidential bid in his first interview since suspending his presidential campaign on Friday.

“The indictment by the Travis County district attorney’s office, this drunk DA that had used this office, we think, for political purposes… it had a real corrosive effect on our ability to raise money,” he said on Fox News’ “Hannity.”

“The political opponents, they did their damage,” he later added of his legal problems.

But Perry also said his campaign effectively ended in early August, when he missed the cut for the Fox News GOP debate in Cleveland.

“The other thing that we knew had to happen was we needed to be on the main debate on Aug. 6,” he said. “We missed it by a few percentages of one point… It had a very negative impact on our fundraising through the summer.”

Poor baby. I was going to get all huffy about this, but Ross Ramsey saved me the effort:

Baloney.

Perry was indicted by a special prosecutor appointed by a Republican from San Antonio on charges related to his veto of state funding for Travis County’s public integrity unit — the part of the district attorney’s office that handles, among other things, ethical and other misdeeds of state officeholders. The then-governor had demanded the resignation of Rosemary Lehmberg, who was arrested for drunken driving and then spent a few days in jail after pleading guilty. But she didn’t resign then and didn’t quit when Perry demanded it. He vetoed the funding. The special prosecutor took that to a grand jury, which indicted Perry on charges that he misused his official powers.

The only overtly political thing about the indictments is the defendant himself, who has spent the last 30 years in one political office or another. It’s natural for him to attack his attackers, and putting it off as politics is the textbook response for someone in Perry’s position.

He goes on from there, and it’s all well deserved, but this is the point I wanted to make. Perry can whine all he wants about Rosemary Lehmberg. She had absolutely nothing to do with his current legal woes, other than being a focal point for his abuse of power. Perry may well eventually beat the rap, but he has no one but himself to blame for his predicament.

He also doesn’t understand his own party any more.

In Monday night’s interview, Perry revisited his numerous criticisms of real estate developer Donald Trump, who is leading in the GOP polls. But he also expressed frustration that public service, specifically as governor, is being overlooked on political resumes at a time when outsiders are dominating the polls.

“Donald Trump’s bullets going through Washington went through and hit people like myself, hit people like all the governors that are on the stage, for instance,” he said of his former rival. “I don’t believe this is the only profession in the world where your experience ought to be held against you.”

Dude. Remember that 2010 election? Remember how Republican politicians like you tapped into a deep vein of anger with your own voters, aimed as much at other Republican politicians as at Democrats? Your voters remember it, and they remember how politicians like you pioneered the message – since honed to a sharp edge by the likes of Ted Cruz – that Republican politicians were a spineless bunch of wimps and traitors who had sold them all out. Those same voters now say they want an outsider for President. For someone like Rick Perry to complain about that now is more than a little rich.

Adios, Rick Perry

I feel like I ought to say something about this.

Corndogs make bad news go down easier

We’ll always have corndogs

In many ways, Rick Perry might have been a victim of his own success.

After 14 years in the governor’s mansion, riding a freewheeling Texas oil economy and a tea party wave, the son of West Texas cotton farmers looked destined for great things on the national stage.

But an unfortunate memory lapse in a nationally televised debate – the infamous “oops moment” – cost him the instant presidential frontrunner status he enjoyed four years ago.

His new run for political – if not personal – redemption ended Friday when he told an Eagle Forum audience in Missouri that he was ending his comeback bid for the presidency.

Invoking a higher power, the 65-year-old former governor said it just was not meant to be.

“Today I submit that His will remains a mystery, but some things have become very clear to me,” Perry said. “That is why today I am suspending my campaign for the presidency of the United States.”

After weeks of struggling to attract voter support or raise enough money to pay his campaign staff, Perry became the first of 17 major Republican candidates to leave the 2016 presidential race.

Well, at least he managed to be first at something in this campaign. You know how I feel about Rick Perry, so I’m not going to waste any time trying to be objective. The main thought I have about this is that Perry was one of the first politicians to hitch himself to the Tea Party wave of 2010, which he then rode to victory in the primary against KBH and the general election against Bill White. It was the last election he’d win, and it’s clear by now that this same wave went on to swamp him in 2012 and now this year. His political instincts for seeing the Tea Party wave coming and taking advantage of it were lauded at the time, though people tended to ignore the fact that he barely cleared 50% in the primary and trailed that icon of the establishment and soon-to-be-two-time-victim of the same wave David Dewhurst by 300,000 votes in the general. Not so easy being a super genius, I guess. As to what he does next, I can’t say I care, but it probably depends to some extent on how long the indictment saga hangs over his head. If he succeeds with the CCA and gets both charges dismissed, he’ll be in a better position to cash in via the usual methods of the professional conservative gravy train than if it drags out for a few years. See Tom DeLay for a good example of the latter. The one thing I feel confident saying is that he won’t ever have to work at a real job. Some guys have all the luck. For more on this topic, if you’re not already tired of it, see PDiddie, Burkablog, Newsdesk, the Current, the Observer, and ThinkProgress.

CCA gets ready to deal with Rick Perry

The action never stops.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs…

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 classified 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.

[…]

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 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 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.

[…]

[State Prosecuting Attorney Lisa] 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.

See here and here for the background. I believe this has to do with the other motion that Perry has before Judge Richardson, who as the story notes will not be a part of the appellate hearings in any way, but at this point it’s hard to say. I kind of hope that the CCA will do oral arguments and not just briefs, mostly because I think the issues involved should be fully heard if the court decides they’re worth hearing at all. We’ll know soon enough.

State files its appeal of Perry indictment dismissal

It’s official.

Corndogs make bad news go down easier

This corndog has done nothing wrong

State Prosecuting Attorney Lisa McMinn on Friday asked the state’s highest criminal court to reverse the decision by the Austin-based 3rd Court of Appeals, which tossed out the charge that Perry coerced a public servant when he tried to force Travis County District Attorney Rosemary Lehmberg out of office. The state’s involvement ratchets up scrutiny of the ruling, the first major breakthrough in the more than yearlong case for Perry, a Republican who is now running for president.

McMinn’s appeal also puts her in the company of Perry’s legal team, which has its own challenge pending before the Texas Court of Criminal Appeals. Recognizing the potential for an “unnecessary, significant expenditure of resources,” special prosecutor Michael McCrum on Monday requested a hold on all trial court proceedings while the case plays out at the Court of Criminal Appeals.

McMinn was expected to file her appeal, saying earlier this month that the state had an interest in the ruling because the 3rd Court of Appeals struck as unconstitutional a part of the Texas penal code that defines coercion.

In a filing with the Court of Criminal Appeals that became available Monday, McMinn argued the 3rd Court of Appeals “erroneously blended two different First Amendment doctrines” when it tackled the coercion issue. McMinn also suggested the court failed to take into account all the potential consequences of declaring the statute unconstitutional.

See here and here for the background. I have no idea what the CCA will do, and I have no idea how long it will take them to do it. I’ll just say that I’ll be surprised if Rick Perry’s fate in the Presidential race isn’t determined by the time they come to a decision.

Perry appeals his other indictment

More for the CCA to deal with.

Corndogs make bad news go down easier

Corndogs are never wrong

Lawyers for former Gov. Rick Perry are urging the Texas Court of Criminal Appeals to finish off the remaining charge in his indictment, ratcheting up their push to end the case against the presidential candidate.

The request comes a few weeks after a state appeals court dismissed one of the two counts in the case, delivering Perry’s team its first major victory in the yearlong legal saga. The remaining charge accuses Perry of abusing his power when he threatened to veto state funding for a unit of the Travis County district attorney’s office .

In a filing Tuesday, Perry’s lawyers argued that the state’s highest criminal court should toss out the rest of the indictment as a way of preventing the “judicial system from being complicit in undermining the very structure of Texas government.” Perry’s team sharply criticized how the Austin-based 3rd Court of Appeals arrived at its July decision letting the charge stand, accusing it of “drawing a wholly incorrect lesson” from previous cases and using an “erroneous framework” for assessing the charge.

Perry had one of his indictments tossed by the Third Court of Appeals, though that decision has been appealed to the CCA as well, by the Office of the State Prosecuting Attorney on the grounds that it invalidated a state law, and that’s not something a lower court should do. You can see a copy of Perry’s latest appeal in the Chron story. Both Judge Richardson – who of course now sits on the CCA and would presumably recuse himself from this hearing – and the Third Court of Appeals have rejected Perry’s claims not on their merits but on the grounds that it’s too early in the process for them to be properly evaluated. Speaking as a non-lawyer with no expertise at all in these matters, I kind of think the CCA will see it that way as well. But who knows? As they say in another context, this is why they play the game on the field. Trail Blazers has more.

Dismissal of Perry indictment appealed

By a new player in the game.

Corndogs make bad news go down easier

Maybe I could sell corndogs to pay for all this

Former Gov. Rick Perry didn’t need more bad news Tuesday, but a Texas agency is lining up against his legal team in the criminal case against him.

The Office of the State Prosecuting Attorney has decided to appeal a court decision declaring unconstitutional one of the laws under which Perry was indicted last year. He is accused of abusing his veto power while governor.

The involvement of the state prosecuting attorney, Lisa McMinn, adds more firepower to the case opposing Perry. The special prosecutor, Michael McCrum, has been outspent by a margin of 10-to-1 by Perry’s high-powered defense team.

McMinn emphasized Tuesday that her office is getting involved not because of the specific accusations against Perry but due to the 3rd Court of Appeals decision to toss out one of the state laws used to indict him, coercion of a public servant.

“I’m just defending the statute that the court has declared unconstitutional. That’s my only concern,” McMinn said in an interview.

Her small, independent agency has the responsibility of representing the state before the Texas Court of Criminal Appeals. She said that large district attorneys’ offices may handle their own appeals but her office also can get involved.

“We handle a fair amount of the cases ourselves, especially on issues that have statewide importance, such as the constitutionality of a statute,” she said.

McCrum, a San Antonio lawyer, said it made sense for McMinn’s office to pursue the appeal.

“The court wiped out a criminal statute that’s been on the books for decades and that has an effect upon many criminal cases, not just this one involving Mr. Perry,” McCrum said.

See here for the background. Raise your hand if you, like me, had no idea that there was such a thing as the Office of the State Prosecuting Attorney. It makes sense now that I’ve seen it described and given that we split our top court into two distinct entities, but still. The other good thing about this is it won’t add anything to the bill for the special prosecutor. As for what the CCA will make of this appeal, we’ll see. Nothing our courts do surprises me any more. Trail Blazers has more.

How will Paxton pay for his defense?

It’s a tricky question.

Best mugshot ever

Paxton faces three felony charges in Collin County, all related to his work as a private attorney and businessman. He told supporters in an email that he expects to be found innocent of all charges. The indictments handed up last month by a grand jury have nothing to do with the public Ken Paxton — the one who serves as attorney general and once served in the Senate and House, and the one who campaigned for votes for each of those jobs.

That means he can’t use the money in his substantial campaign account, according to attorneys familiar with the state’s campaign finance laws — Randall “Buck” Wood and Ed Shack, both of Austin. That money — he reported cash on hand of almost $2.5 million at the end of June — cannot be converted to his personal use.

And because the charges involve his private business and not his public business, he can’t tap the campaign funds.

That doesn’t mean he has to pay for everything, but it means it would be complicated to try to raise money to cover his expenses. And even if he finds a legal way to do it, finding a politically palatable solution will be hard. Voters are accustomed to political contributions, even if the money is being used to defend a politician in court for charges related to actions taken on the campaign or as an officeholder. Tom DeLay had a defense fund. Kay Bailey Hutchison did, too.

Personal litigation is different. Paying for that has nothing to do with public business. Offering to help someone in Paxton’s position is to offer a gift; offering a gift to a politician, with certain exceptions, is to offer a bribe.

The exceptions to the state’s bribery laws might allow a Ken Paxton Defense Fund, and if it works out, that could make his nights more restful.For instance, it’s clear that a public official cannot accept benefits from someone who is involved in litigation with their agency, or is about to be. So many of the folks most interested for professional reasons in helping the state’s top lawyer wouldn’t be able to give. And it’s clear in the law that legislators, the governor, the lieutenant governor and the people who work for them cannot accept gifts. The attorney general and other statewide officials are not named in that statute. Business associates can give giftsto public officials, however, so long as their gifts are independent of the recipient’s status as a public servant.

The story notes how Paxton’s situation is different than Rick Perry’s, since Perry’s charges stemmed from actions he took as Governor. I suppose we should be grateful that Ken Paxton wasn’t accused of securities fraud while acting as Attorney General, but that puts him in the same positions as pretty much everyone else accused of a serious crime: It’s going to cost him a lot of money to defend himself. Unlike everyone else, Paxton will have plenty of people who would like to help him pay his legal bills, but that’s also problematic. And given Paxton’s apparent history of, um, being casual about rules and regulations, perhaps someone ought to keep a close eye on any “Ken Paxton Legal Defense Fund” or similar construct, as well as Paxton’s existing campaign finance account, because you never know.

Perry wins one and loses one at the appeals court

He’s still under indictment.

Corndogs make bad news go down easier

This little corndog has only one felony charge against it

Former Gov. Rick Perry must face one criminal count in the abuse-of-power case against him but another would be dismissed under a Friday ruling by an appeals court.

The ruling by a three-judge panel of the 3rd Court of Appeals in Austin gives Perry a partial victory but, at least for now, leaves the cloud of an indictment over him as he seeks the GOP nomination for president.

[…]

The former governor repeatedly failed in efforts get the indictment dismissed by state Judge Bert Richardson. Perry then took his case to the 3rd Court.

The 3rd Court agreed with Richardson that it was too early in the case to decide whether one count against Perry, charging abuse of official capacity, was unconstitutional as applied to the former governor.

But the appeals court rejected the second count, coercion of a public servant, saying that the law on which it is based violates the First Amendment.

The count remaining against Perry has been presented and described as a first-degree felony, but [defense attorney Tony] Buzbee said Friday he believes it’s a misdemeanor.

“We believe the only remaining count is a misdemeanor, and raises the question of whether the exercise of a veto can ever be illegal in the absence of bribery. The appeals court is bound by precedent, meaning that the timing of this challenge they believe to be premature. We think when we put that timing question in front of the highest criminal court we will win on that. This thing is hanging by a thread, and in my view is very near to being over,” Buzbee said.

[Special prosecutor Mike] McCrum, of San Antonio, said he believes the remaining count is a felony.

“The bottom line is that he committed a crime, and you shouldn’t have sitting governors committing crimes,” McCrum said.

A 3rd Court decision can be appealed to the Texas Court of Criminal Appeals. Richardson was elected to the Court of Criminal Appeals after the case began but would recuse himself from deciding on the appeal as part of that high court.

In his opinion, Justice Bob Pemberton of the 3rd Court of Appeals pointed out that the case at this point turns on legal issues as opposed to the headline-grabbing facts.

“This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves ‘unique circumstances’ that ‘have been widely reported, argued, and discussed by many with no standing in the case.’ Whatever the focus of such commentary, our disposition of this appeal turns on legal issues — primarily procedural in nature — that may be of somewhat less public renown,” Pemberton wrote.

A copy of the 97-page opinion is here. That post, by Robert Wilonsky, highlights the key bits of the ruling neatly:

To summarize the proceedings below, the appellant — James Richard “Rick” Perry, who until recently served as Governor of Texas — sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,” the district court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did—under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we respectfully disagree with the district court—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.

As a consequence of these holdings, we affirm the district court’s denial of relief as to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed.

The good news for Perry, beyond the fact that one of the counts against him was dismissed – though that can be appealed by McCrum, and I expect that it will – is that the merits of his claims have not yet been decided. He can say, with some justification, that he still expects to get the charges dismissed, and he may be right. Of course, he’s still under a legal cloud, and the next step of the process could take months, by which time his Presidential campaign could be turned to dust. If he was hoping for a clean win, he didn’t get it. He’s still going to be paying those legal bills for the foreseeable future. Trail Blazers, Hair Balls, the Current, Juanita, and the Trib have more.

Abbott sides with auto dealers

Sorry, Tesla.

Giving a nod to long-established franchised auto dealerships, Gov. Greg Abbott says Texas doesn’t need to carve out a loophole in its laws that would allow Tesla to sell its high-end electric cars directly to consumers.

“Texas has a very robust, very open, very effective automobile sector that seems like it’s working quite well the way that it is,” the Republican told Bloomberg Radio on Tuesday. “If you’re going to have a breakdown in a car, you need to have a car dealership there to make sure that the vehicle is going to be taken care of. We haven’t seen that from Tesla.”

Tesla’s business model is to sell directly to consumers, bypassing the middleman dealers as it does in many states. But a longstanding law bars that practice in Texas.

[…]

Tesla has refused to call last session a failure. The company says it educated more consumers and lawmakers and will continue its fight to enter the country’s second-largest automobile market. And on Tuesday, it said it wasn’t discouraged by Abbott’s comments.

“As a growing company, we are optimistic about the governor’s pro-business position and hope to be selling direct soon,” Ricardo Reyes, a spokesman, said in a statement.

Abbott’s comments contrast with those of his predecessor. Last year, Gov. Rick Perry suggested in an interview with the Fox Business channel that the state’s dealership laws were “antiquated protections” that should be revisited. Those comments came as Texas was trying to entice Tesla to build its $5 billion lithium-ion battery plant here. The company ultimately chose Nevada.

See here for previous Tesla bloggage. They’ve struck out in the last two legislative sessions trying to get a bill passed to change the franchise model, with no one even sponsoring a bill last time. Abbott may be “pro-business” in some sense, but he surely knows where his bread is buttered. It will be interesting to see what if anything Tesla does in the next session.

L’affaire Paxton gets larger

Oh, yeah.

Ken Paxton

When Attorney General Ken Paxton publicly admitted that he violated a state securities law last year, the State Securities Board was obligated by law to gather evidence against him and immediately refer it to prosecutors who could seek criminal charges.

But prosecutors in Travis and Collin counties said the securities regulators did not refer Paxton’s case to them, an apparent violation of requirements set by state law, the American-Statesman has confirmed.

In May 2014, when Paxton was a state senator running for attorney general in the Republican primary runoff, he accepted a reprimand and $1,000 fine from the State Securities Board, whose five members were appointed by former Gov. Rick Perry.

In that proceeding, Paxton admitted to soliciting clients for a Texas investment firm without registering as an investment adviser representative — a violation that can be prosecuted as a third-degree felony under the State Securities Act — and without disclosing that he would receive 30 percent of management fees.

But despite state law that required Securities Board Commissioner John Morgan to “at once” refer evidence of a criminal violation to the appropriate prosecutors — a standard that has been in place since 1957 — there is no evidence that securities regulators did so in the Paxton matter.

Robert Elder, a State Securities Board spokesman, said the agency would not comment.

In Collin County, where Paxton lived while soliciting investment clients three times between 2004 and 2012 as an unregistered adviser, prosecutors received no information about Paxton’s activities from the board, said Bill Dobiyanski, first assistant district attorney.

In addition, the Travis County Public Integrity Unit — which prosecutes corruption by public officials — did not hear from securities regulators about Paxton’s admission of violating securities law, said Gregg Cox, director of special prosecutions for the Travis County district attorney’s office, which includes the Public Integrity Unit.

[…]

Allegations that the State Securities Board hadn’t followed the law were raised last week in a strongly worded letter sent to Wice and Schaffer by the director of the left-leaning Progress Texas PAC.

In a July 8 letter, Glenn Smith suggested that Gov. Greg Abbott, who was still attorney general at the time, also didn’t follow requirements set out in the Texas Securities Act.

“On the surface, those failures raise suspicions of widespread conspiracy among several agencies and officials aimed at minimizing the criminal exposure of Mr. Paxton,” wrote Smith in the letter, which he provided to the Statesman.

Cait Meisenheimer, an Abbott spokeswoman, declined to comment on Smith’s letter. Wice also declined to comment on the letter, and Schaffer could not be reached for comment.

In his complaint, Smith specifically names Texas Securities Commissioner John Morgan and Collin County District Attorney Willis.

“With something like this, which is a clear confession of a felony by Sen. Paxton, the sort of silence and inactivity of public officials was very suspicious to me from the beginning,” Smith said. “They were compelled to act and failed to act, and this deserves attention.”

See here, here, and here for the background on the State Securities Board stuff, and see the original Statesman story for a copy of the letter. It’s always the coverup that gets you, isn’t it? The State Securities Board, full of Rick Perry appointees, should have followed the law and done its duty. Attorney General Greg Abbott should have followed the law and done his duty. Collin County DA Greg Willis should have done his duty a lot more quickly and without having to be pushed into it. That’s hindsight for you. Now I really can’t wait till the special prosecutors start laying out their case to the grand jury.

Paxton’s cronies

This guy really is a piece of work.

Ken Paxton

When seeking a job at the Texas attorney general’s office, it’s less about what is on your résumé than who you know.

In Attorney General Ken Paxton’s first weeks in office, he filled his higher ranks with at least 14 people connected to him and other prominent Republicans — quiet “appointments” that his office defends in spite of state law, which requires that jobs be advertised when they’re filled from outside the agency.

An American-Statesman review of more than 1,800 pages of personnel files reveals that hiring procedures were relaxed or altogether ignored for those who had worked for Paxton, former Gov. Rick Perry or U.S. Sen. Ted Cruz. Records show several were hired weeks before they had even applied for the jobs, if an application was completed at all.

Meanwhile, people whose résumés didn’t include political connections often faced months of red tape, interviews and vetting — just the sort of competition that state law envisions for coveted state jobs.

It is not uncommon for elected officials to ignore a decades-old law meant to prevent political patronage in Texas, but the number of Paxton’s so-called appointees is notable, and correspondence obtained under the Texas Public Information Act suggests Paxton was promising lucrative jobs to his political allies months before he took office.

[…]

The Statesman asked three state agencies how state law might allow for “high-level appointments,” as Paxton’s office called them. None would provide answers.

The Texas Workforce Commission, the designated arbiter for job postings, deferred to the attorney general’s office, which stopped answering questions from the Statesman for this story. The Texas Legislative Council, whose lawyer assists legislators in drafting laws, deferred first to the attorney general’s office, then back to the Texas Workforce Commission.

The commission’s spokeswoman, Lisa Givens, said her office provides no guidance or oversight to ensure state officials are following the law. They just take what other agencies send them and post it.

“We don’t enforce the rule,” she said. “We accept the postings. There’s no enforcement in this provision.”

Givens did note, however, the statute says “any agency, so that would be any agency.”

Because the law is 25 years old, wrapped into two omnibus revisions of chunks of state law, it has received little attention in recent years. But earlier this year the Senate Research Center, providing context for another bill, was succinct in its interpretation: “State agencies are required to list job openings with the Texas Workforce Commission.”

“The job posting requirement is black and white,” said Craig McDonald of Texans for Public Justice, the left-leaning watchdog group whose ethics complaint against Paxton spurred an ongoing grand jury investigation into possible securities violations.

“In Texas, cronyism is allowed,” McDonald said. “But you have to at least follow the rules.”

Still, an official determination on whether Paxton broke the law can only come from the attorney general himself.

Isn’t that special? Read the whole thing, it’s a nice piece of reporting. There’s not much else that can be done, though perhaps if he’s still claiming to caer about ethics, perhaps Greg Abbott could add this to the Lege’s to do list in 2017. Beyond that, if nothing else this serves as further evidence, as if it were needed, that Paxton has the ethical and moral compass of a Russian hacker. His downfall, when it finally happens, is going to be epic.

Ethics complaint filed against Sen. Huffman

From the Lone Star Project:

Sen. Joan Huffman

The Lone Star Project has learned that a complaint was filed Wednesday with the Texas Ethics Commission (TEC) alleging that Republican State Senator Joan Huffman (SD17 – Houston) is in violation of section § 572.023 of the Texas Government Code for failure to disclose a financial interest in 30 business entities controlled by her husband, Keith Lawyer. The complaint can be seen here.

Current Texas law requires state elected officials to report their financial holdings and activities as well as those of their spouses and any dependent children. Also according to the Texas Ethics Commission, a filer must report information about community property on their state disclosure documents—including any businesses formed by a spouse during the marriage. According to the complaint, Huffman has repeatedly failed to disclose her husband’s business interests.

Huffman’s Personal Loophole Amendment

Anyone wondering why Joan Huffman filed an amendment in the closing weeks of the legislative session that carves out a loophole to eliminate the requirement that spousal assets be disclosed now has an answer. Huffman’s amendment was about Joan Huffman and giving her cover for an ongoing violation of state law.

If Governor Abbott signs the bill containing the Huffman amendment into law, state officials will be able to hide assets through their spouses, opening a massive loophole for lawmakers to engage in conflicts of interest by accepting gifts and income sources in the name of a husband or wife. No one should think it won’t happen. Former State Representative Linda Harper-Brown drove a luxury Mercedes-Benz provided by a lobbyist, but registered in the name of Harper-Brown’s spouse.

See here for the background on Huffman’s amendment and here for the Chron story. This is happening as several members of the Texas Ethics Commission have stated that the Lege took a step backward on ethics reform and enforcement – despite Greg Abbott making “ethics reform” an emergency item for them – and sent a letter to Abbott urging him to veto the bill that contains Huffman’s amendment; they had favored the bill before she stuck that amendment in.

Normally this sort of thing doesn’t amount to much overall. Complaints get filed all the time, and many of them are over small disputes and minor violations. When it becomes a problem is when there is a perception that there’s pervasive corruption. Think back to 2006 and all the scandals the national Republicans faced, and how it helped turn that election into a Democratic wave, built as much on lower Republican turnout (including here in Texas) than anything else. But now you’ve got Huffman, you’ve got Ken Paxton, you’ve got Rick Perry, you’ve got the escalating war against Michael Quinn Sullivan and his everflowing river of “dark money” – these things can add up, if they individually amount to something. The Republicans won’t even be able to blame it all on those dirty hippies in Travis County anymore, too. It all may come to nothing, or mostly to nothing, but if it doesn’t, I’d be a little worried about it if I were a Republican strategist. If the people start to think you’re all a bunch of crooks, that more than anything can help spur a change. The Press has more.

Clinton goes big on voting rights

I like the sound of this.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Accusing Republicans of a systematic effort to undercut voter access to the ballot box, Hillary Clinton called for expansive reforms to U.S. election laws in a speech Thursday. The front-runner for the 2016 Democratic presidential nomination also called out four potential Republican opponents — including former Texas Gov. Rick Perry — for what she called a “crusade against voting rights.”

“We have a responsibility to say clearly and directly what’s really going on in our country, because what is happening is a sweeping effort to disempower and disenfranchise people of color, poor people and young people,” said Clinton. Speaking at historically black Texas Southern University, the former secretary of state criticized states like Texas for tightening election laws through voter identification and preregistration requirements.

“Since the Supreme Court eviscerated a key provision of the Voting Rights Act in 2013, many of the states that previously faced special scrutiny because of a history of racial discrimination have proposed and passed new laws that make it harder than ever to vote,” she said.

The 2013 Texas voter ID law, considered the toughest in the nation, was signed by Perry, who launched his second bid for the White House near Dallas a few hours before Clinton took the stage in Houston.

Clinton took aim at Perry directly Thursday — along with fellow current or former Republican governors Chris Christie of New Jersey, Scott Walker of Wisconsin and Jeb Bush of Florida.

“Republicans are systematically and deliberately trying to stop millions of American citizens from voting. What part of democracy are they afraid of?” she said.

To help cut down on long lines and generally make it easier to cast a ballot, Clinton proposed requiring at least 20 days of in-person early voting in every state, including on weekends and evenings. She also called for universal automatic voter registration of U.S. citizens when they turn 18.

In Texas, state law now allows in-person early voting for two weeks, and weekend voting is not always guaranteed, depending on the size of the county and other factors.

As noted in TPM, this was more red meat than policy proposal, but there’s no question that Republican legislatures around the country have taken aim at voting rights in a variety of ways. Seems to me a part of the problem is that the right to vote was never enshrined in the Constitution; it’s a lot harder to put restrictions on anything like that. In the short run, the main thing to take away from this is the message, which is squarely aimed at the kind of voters Hillary Clinton wants to turn out in big numbers next year. Expect to hear a lot more of this going forward. Daily Kos and Political Animal have more.

UPDATE: More from Texas Leftist.

The cloud still hanging over Rick Perry’s head

Ain’t easy running for President when you’re under indictment.

Corndogs make bad news go down easier

A corndog in every deep fat fryer

Yet for all the implications of seeking the White House as a criminal defendant, Thursday’s announcement brings another far less political reminder: The case, quite simply, is still ongoing, unaffected by months of legal bickering and bluster. For Craig McDonald, head of Texans for Public Justice, the group whose complaint sparked the indictment, the judicial slog has been anything but surprising.

“We always thought it wouldn’t go away very quickly, and that still is the case,” said McDonald, who expects the case to continue for at least another year. “He’s not going to be able to remove this yoke from around his neck quickly.”

Perry predicted in February that the charges would be “put behind us, hopefully by the end of March-April timetable.” He also declared at the time the case is “never going to go to trial.”

So far, his lawyers have been successful in heading off a trial — but perhaps not in the ways for which they hoped.

“For nine months the parties have exchanged hundreds of pages of briefs on these issues,” special prosecutor Michael McCrum wrote in a court filing earlier this month. “We are no closer to a resolution.”

[…]

Backed by a high-powered legal team, Perry quickly sought to portray the two charges — abuse of power and coercion of a public servant — as a political witch hunt in the heart of Texas’ most liberal county. Fellow Republicans, including some potential 2016 opponents, rallied to his side, as did less likely supporters such as David Axelrod, a former top adviser to President Obama, and Alan Dershowitz, the famed liberal law professor.

Nowadays, however, the indictment has become more of a headache for Perry than cause célèbre.

Visiting Judge Bert Richardson, a Republican, has done Perry few favors. In November, Richardson refused to dismiss the indictment on procedural grounds. Two months later, he again declined to toss out the case, that time on constitutional grounds. And in February, Richardson denied Perry’s request to see a pretrial list of witnesses who appeared before the grand jury.

At this point, Perry’s best bet is a breakthrough at the 3rd Court of Appeals in Austin, where his lawyers are seeking to reverse Richardson’s second refusal to throw out the case. A ruling is expected any day now, but even it could have an asterisk next to the outcome: One of the justices, Bob Pemberton, used to work for Perry and has so far resisted calls for recusal.

See here for the background. Guess that means Justice Pemberton isn’t going to recuse himself. If the Third Court refuses to come to Perry’s rescue, then I don’t see how anyone can make the “partisan witch hunt” claim with any credibility again. I mean, by that point a Republican judge and an all-Republican panel of appeals court judges will have allowed the charges to stand. It would also greatly undercut the arguments made during this legislative session by Republicans about moving the Public Integrity Unit out of the Travis County DA’s office, not that that would make any difference at this point. If they do let Perry off the hook, then he’ll do a victory dance until we’re all sick of it, and Tom DeLay will crawl out from under a rock to add to the festiveness of it all. One way or the other, it will dominate the news cycle.

To recuse or not to recuse

That is the question.

Corndogs make bad news go down easier

Corndogs are never conflicted

More than a week after a judge who once worked for Rick Perry was tapped to hear an appeal in the former governor’s indictment, it’s still unclear whether he’ll see the case through.

Legal experts say Justice Bob Pemberton’s connections to Perry could put him in the tough position of having to decide whether to recuse himself. Pemberton is one of three justices who could decide Perry’s fate at a crucial time; the former governor recently said he is within 30 days of announcing whether he will run for the presidency.

“You’re danged if you do, danged if you don’t,” said L. Wayne Scott, a law professor at St. Mary’s University in San Antonio. “There’s not a right answer.”

Some court observers think it’s inevitable that Pemberton, who served as a deputy general counsel in Perry’s office before the former governor appointed him to the 3rd Court of Appeals, will step aside.

“I think it’s just a matter of time before Justice Pemberton recuses from the case,” said Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics. “Even if a recusal motion has not yet been filed, it’s likely in the works.”

But Pemberton hasn’t made that move — and the court hasn’t said whether he will. The case is advancing, legal filings show, and Perry lawyer Tony Buzbee has called Pemberton’s appointment “not a conflict or a story.”

Meanwhile, Michael McCrum, the special prosecutor pursuing the charges against Perry, said Friday he was not planning to file a motion for recusal. Some legal experts say that is not entirely surprising: Lawyers do not want to risk getting on the bad side of a judge hearing their case unless they are 100 percent certain their motion will prevail.

Without a motion for recusal, the decision is largely up to Pemberton, who, in addition to working for Perry, donated to the former governor’s 2002 re-election campaign and clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team.

See here and here for the background. I think it would be for the best if Justice Pemberton recused himself on “avoiding the appearance of impropriety” grounds, but unless Mike McCrum tries to make something of it that’s his call. I also think McCrum is wise to let things play out, at least for now. I’m glad to see that the Trib is staying on top of this.

Perry meets his appellate judges

He knows one of them very well.

Corndogs make bad news go down easier

Corndogs are great icebreakers

Rick Perry may be somewhat familiar with one of the judges picked to hear an appeal in the criminal case against him.

That’s because Justice Bob Pemberton has worked for the former governor, representing him in court as his deputy general counsel. After that job, Perry appointed him to the Third Court of Appeals, which is now considering a request from Perry’s lawyers to dismiss the abuse-of-power charges against him.

Pemberton also clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team. Pemberton’s website features a photo of him being sworn in by Phillips — “his friend, supporter, and former boss.”

In addition to once working for Perry, being appointed by Perry and having clerked for one of Perry’s current lawyers, Pemberton has been a political supporter of the former governor. Pemberton chipped in $1,000 for Perry’s 2002 re-election campaign, according to state records.

The justice’s connections to Perry are unusual, even in a state under yearly scrutiny for a judicial system critics say is too tainted by politics. Judicial elections in Texas are partisan, and the Third Court of Appeals is controlled by Republicans.

Judges are bound to have some connection to Perry, the longest-serving governor in Texas history, but Pemberton’s relation is beyond the pale, according to some good-government experts.

“That court has always acted in a partisan manner, but in this case, Justice Pemberton should definitely recuse himself,” said Craig McDonald, head of Texans for Public Justice, a liberal-leaning watchdog group responsible for the complaint that led to Perry’s indictment. “There should definitely be a recusal.”

According to the Texas Rules of Civil Procedure, a judge must recuse himself or herself in any proceed in which “the judge’s impartiality might reasonably be questioned.”

Yeah, I think that might reasonably be the case here. I don’t know if this is specifically what Team Perry was hoping for when they filed their latest appeal to this court, but I’m sure it wasn’t a disappointment to them. What happens from here I couldn’t say, but if one wants to take an optimistic view of things, one could say that if Perry’s motion is denied by these judges, it will be very hard to continue claiming he’s a victim of politics. Yeah, I know, that’s pretty thin, but it is what it is. One way or another, some number of judges friendly to Rick Perry were going to get involved. That’s the state we live in. PDiddie has more.

A different push for health care expansion

This ought to spark some interesting conversations.

It's constitutional - deal with it

It’s constitutional – deal with it

Two Democratic lawmakers called Wednesday for Texas leaders to explore a new type of Medicaid waiver that they say could provide health coverage to many of the state’s millions of uninsured.

The waiver, characterized by the legislators as the kind of block grant that Republicans favor, is not predicated on a Medicaid expansion and would allow Texas to avoid many provisions of the Affordable Care Act unpopular with the leadership in the Legislature – including the individual and employer mandates. The waiver, known as 1332, takes effect in 2017.

“Based on where we are now in this state, (the waiver) probably is the best chance or possibility of an agreement… toward coverage expansion,” Rep. Garnet Coleman, D-Houston, said at a news briefing with Sen. Jose Rodriguez, D-El Paso.

In a letter sent to colleagues earlier this week, Coleman added that the waiver must not reduce access to care, increase costs to the federal government, or make insurance more expensive than under the current law. The waiver effectively tells states that “if they know a better, more efficient way to provide health care, then have at it,” Coleman wrote.

[…]

Arlene Wohlgemuth, executive director of the Texas Public Policy Foundation, a conservative Austin think tank, said she had spoken to Coleman Wednesday morning about developing a 1332 waiver aligned with the principles laid out by the foundation.

“Of course, we are interested in reform of the program that truly gives flexibility to the states to provide for better health outcomes in a way that is affordable for the taxpayer,” Wohlgemuth said. “Thus far, the federal government has been unwilling to give exception to the requirements in the Social Security Act (the law that embodies Medicare) that have hamstrung true reform. We are interested to see what Representative Coleman has in mind through a 1332 waiver.”

Vivian Ho, a health care economist at Rice University’s Baker Institute for Public Policy, said there are so many unknowns about the waiver that it’s hard to know what to conclude.

“I can’t believe any waiver is the answer unless the state agrees to some sort of Medicaid expansion, and I don’t see how 1332 is going to help that,” said Ho. “It’s unclear how much money it would actually supply and whether it would provide access to tax credits for people below 100 percent of the federal poverty level.”

Ho added that block grants are a questionable idea unless the amount of money increases with population growth, given Texas’ continual migration and growing uninsured pool.

But Ken Janda, CEO of Community Health Choice, a nonprofit health care organization, called the suggestion “a very good idea” and said it “definitely seems worth talking about.” He said it answers a lot of concerns raised about Medicaid expansion and presents a possible solution to the health-care crisis that’s caused the closure of some private hospitals and threatens the existence of safety-net hospitals.

Rep. Coleman and Sen. Rodriguez filed bills this session to pursue this waiver and the reforms that it would allow. Here’s the letter they sent to fellow legislators outlining what this waiver would mean. Here’s the key bit:

However, there is a catch – the waiver must not reduce access to care, increase costs to the federal government, or make insurance more expensive than it is under the current law. The 1332 Waiver effectively tells states that if they know a better, more efficient way to provide healthcare, then have at it. Texas should take the federal government’s offer and consider ways to reform both Medicaid and private marketplace coverage in this state.

Basically, this is a put-up-or-shut-up challenge to Greg Abbott and the Republicans that have dug their heels in so fiercely against Medicaid expansion, the insurance exchanges, and every other aspect of the Affordable Care Act. You think you can do better? Prove it. My guess is that this will be roundly ignored, since Abbott and Rick Perry before him have shown zero interest in doing anything about the millions of uninsured Texans. Abbott appears to be perfectly willing to set fire to billions more dollars in his continued quest to not do anything about health care. But who knows, maybe someone will rise to the challenge. I agree that it’s at least worth exploring to see what might be possible.

Prosecutors respond to latest Team Perry filings

Back and forth, forth and back.

Corndogs make bad news go down easier

This corndog has done nothing wrong

The special prosecutor in the case against Rick Perry is asking a judge to deny the former governor’s latest two efforts to quash the indictment against him.

Perry, meanwhile, is once again showcasing a high-profile group of legal scholars who think the case against him should be dismissed.

The two filings by special prosecutor Michael McCrum of San Antonio – and the filing on behalf of Perry by lawyers from Republican and Democratic backgrounds – are the latest moves in a long court dance that has taken place since Perry was indicted last August.

[…]

Perry has maintained that he properly used his veto authority and that the indictment is improper, politically motivated and injurious to free speech and gubernatorial authority.

His high-powered legal team led by Houston lawyer Anthony Buzbee has said that misusing a veto “cannot constitutionally be considered a criminal act” under the statute cited by McCrum, and that McCrum’s effort to fix problems identified in the indictment is “woefully deficient.” Perry’s team also has said the indictment doesn’t give Perry enough notice to defend himself.

McCrum and Austin attorney David M. Gonzalez, who is assisting him in the case, said in a Friday filing that Perry’s third motion to quash the indictment should be denied because the indictment tracks the law, and that Perry doesn’t lack clarity about why he is being prosecuted. They said the matters raised in Perry’s indictment “may be appropriately addressed when evidence has been presented.”

McCrum and Gonzalez said in responding to Perry’s supplemental motion to quash in trial court, “Texas’ highest court for criminal cases has held that the State does not have to lay out its case in the indictment.”

See here and here for the background. The first of the filings mentioned in the third paragraph was filed after the initial ruling by Judge Richardson, which denied his first motions to dismiss but which noted some issues with the indictments. The second filing came after special prosecutor Mike McCrum refiled the charges, in response to the questions Judge Richardson raised. Perry has also filed a motion with the Third Court of Appeals, which is a separate matter. There may be more filings to come – I presume McCrum will respond to the Third Court of Appeals motion if nothing else – and then we wait for rulings. Trail Blazers has more, including a copy of the latest paperwork.

On a side note, it’s interesting that this happened on the same day as the House passing the bill to move the Public Integrity Unit out of the Travis County DA’s office. The Perry indictments have been repeatedly cited as the fulcrum for getting that long-sought legislation through. A bit ironic, given that the action has been driven by a nonpartisan special prosecutor appointed by a Republican judge, but never mind that. At this point, I’d say that if Team Perry succeeds in getting the indictments tossed, that will be a lot of ammunition for the advocates of moving this function elsewhere. If it does go to trial, I don’t know that it changes any of the office-movers’ minds, but it may take some wind out of their sails. We’ll see who if anyone winds up feeling vindicated.

Perry appeals to appeals court again

It had been a few weeks since his lawyers filed any paperwork, so I guess they were getting twitchy.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

As the race for president shapes up, former Gov. Rick Perry is imploring a state appeals court to take quick action in the criminal case against him.

In his latest court filing, Perry said a decision is important not only for him but for his successor, Gov. Greg Abbott.

Perry believes that “time is of the essence because of the forthcoming conclusion of the legislative session and the corresponding minimal time frame afforded to Gov. Abbott to determine in which circumstances, if any, he can exercise his constitutional right to veto items of appropriation,” Perry’s legal team wrote.

[…]

In the most recent motion with the 3rd Court, filed Friday, Perry’s lawyers asked for expedited action without oral argument.

“I believe the issues are clear, and the setting of oral argument would unnecessarily delay matters,” Perry’s lawyer, Tony Buzbee of Houston, said Monday.

Oral argument was suggested as appropriate by the special prosecutor in the case, Michael McCrum of San Antonio. He said the complexity of the case warrants it and that argument would likely involve a discussion of the “limits – and abuses – of power in our representative democracy and how it can be regulated.”

Perry’s legal team said there’s no need for “the type of open-ended philosophical discussion” that it says McCrum is proposing.

If oral argument is necessary, “Gov. Perry implores the court to expedite this case and set that argument for the very earliest possible date,” Perry’s team said.

Team Perry had filed a motion to dismiss with the 3rd Court of Appeals on February 26. I guess maybe they were getting a bit impatient. Obviously, he wants to have this matter behind him before officially launching his Presidential campaign. The calendar is not his friend right now.

Bill to kneecap Public Integrity Unit gets unstuck

And away it goes.

Sen. Joan Huffman

Senate Bill 10, filed by Sen. Joan Huffman, R-Houston, passed on second reading along party lines. The integrity unit is currently a state-funded division of the Travis County DA’s office that investigates public corruption, insurance fraud and tax fraud. Some Republicans have said the unit has had partisan motives for its prosecutions.

SB 10 must be voted on one more time before it passes from the Senate to the House.

In addition to moving the public integrity unit from the Travis County DA’s office, the bill would allow lawmakers and state employees to face prosecution in their home counties for alleged crimes committed in Travis County. On Wednesday in the Senate, Huffman said the public had lost confidence in the unit.

“I firmly believe it will be a better process, and there will be more accountability,” Huffman said.

The bill had originally put the unit under the attorney general’s office, but a substitute to the bill removed the AG’s office from the process and gave the Texas Rangers sole authority to pursue investigations.

Sen. Kirk Watson, D-Austin, said the bill gave lawmakers a special privilege of facing prosecution in their home counties.

“I believe this bill has created a special class of people that has the opportunity to go back to their hometown county, hometown judge and hometown prosecutor,” Watson said.

He also said the bill could allow lawmakers to face their prosecution in any county where they own property. Huffman said that was not the bill’s intent.

See here and here for the background. Via the Chron, we now know who the holdouts were.

Disagreement over having the Attorney General involved in the investigation and prosecution of cases, and the issue of prosecuting the violations in the counties where they occurred, had stalled the passage of Senate Bill 10 for more than two weeks.

With Sens. Kevin Eltife, R-Tyler, and Kel Seliger, R-Amarillo, and all Senate Democrats opposed to the anywhere-but-Austin prosecution exception for statewide officeholders, lawmakers and lobbyists, Huffman had been unable to get her bill called up for a vote by the full Senate.

Seliger last week had proposed allowing the Texas Rangers to investigate all cases, and to have a special prosecutor appointed by the chief justice of the Texas Supreme Court handle any charges filed.

Opponents of Huffman’s original bill said the revised plan would not solve the issue of sending cases to the home counties of politicians and lobbyists, where they are more likely to get favorable treatment.

“This perpetuates the problem, because now you will move these cases back in a home county where a courthouse cabal will not go after a state rep or other official because they are part of that local group,” said Tom Smith, Texas director of Public Citizen, a government-watchdog group. “They will have every reason to protect one of their own.”

I’m still a bit unclear on the details – was the special prosecutor bit still included or not? I suppose a system like that could work, jerry-rigged as it is. It’s just that the more moving parts you add, the more likely something will gum it all up. Of course, that would be considered a feature, not a bug. RG Ratcliffe, who isn’t a big fan of the current system, lays out his objections to the proposed one.

Merely turning ethics investigations over to the Texas Rangers is an almost equally bad idea. The governor appoints Texas Public Safety Commission. The current director of DPS was an aide to Governor Rick Perry before taking the top job at DPS. Through a governor’s influence over the public safety commission, a governor could halt or prompt almost any investigation. Imagine an unscrupulous governor bending legislators to his will by threatening to have their campaign accounts investigated. This is as bad a public policy as leaving ethics investigations in the office of one elected district attorney in heavily Democratic Travis County. Besides, I’d rather have the Texas Rangers chasing drug dealers, murderers and other crimes that endanger the public’s safety.

Seliger’s idea has some merit in that it allows the Supreme Court chief justice to name a special prosecutor, but it still involves the Texas Rangers and the political influence a governor can bring to the case. The federal experience also has shown that special prosecutors don’t seem to believe they’ve done their job unless they indict someone.

Probably the best course would be to finally give the Texas Ethics Commission some real powers to investigate and enforce the state’s ethics laws and election codes. As the Texas Tribune reported last week, at least one member of the commission is frustrated by how little power the commission actually has.

But if you are looking for a means of spreading the concentration of power involved in ethics investigations, the commission is a pretty good start. The commission consists of two appointees by the House speaker, two by the lieutenant governor, and four by the governor. Properly funded and authorized, the commission staff could investigate complaints and make recommendations for civil or criminal cases to the full commission. The commission could then decide whether to refer criminal cases to the Texas Supreme Court, which in turn could name a special prosecutor. Allow the court to also establish the county of venue for the prosecution, excepting the counties within the district of the accused offending politician.

Yeah, well, there’s no way they’d want to empower the TEC. The great irony here is that the Rick Perry case, which was the catalyst for all this, was driven by a special prosecutor appointed by a Republican judge. Be careful what you wish for, I guess. More from Ratcliffe here.

Sanctuary cities bill clears first Senate committee

As expected.

Senate Bill 185 by state Sen. Charles Perry, R-Lubbock, would cut off state funding for local governments or governmental entities that adopt policies that forbid peace officers from inquiring into the immigration status of a person detained or arrested.

Some Texas cities have taken the position that such enforcement is the federal government’s job, not theirs — which Perry patently disagrees with. “Rule of law is important and we must ensure that local governments do not pick and choose the laws that they choose to enforce,” Perry told the subcommittee.

The bill now goes to the full Senate Committee on Veterans Affairs and Military Installations, where it’ll likely be passed and sent to the full chamber. The debate in the full Senate promises to be a repeat of the emotion-fueled scene of 2011, the last time the controversial legislation was considered. That year Democrats argued the bill would lead to racial profiling, costly litigation and make witnesses to crimes reluctant to cooperate with law enforcement.

[…]

The bill was voted on Monday on a party-line split, with state Sens. Bob Hall, R-Edgewood, and Brian Birdwell, R-Granbury, voting for it. State Sen. Eddie Lucio, Jr., D-Brownsville, voted against. Monday’s adopted version was tweaked from the original bill; it now does not apply to commissioned peace officers hired by school districts or open enrollment charter schools, and exempts victims or witnesses to crimes.

It gives entities found out of compliance 90 days to change policies after they are informed they are in violation.

During the debate, Lucio asked Perry why a handful of amendments that would have made the bill more palatable to him weren’t adopted, including one that would have exempted faith-based volunteers who do humanitarian work within the immigrant community from being questioned if they were detained.

“I walked out of here pretty happy,” Lucio said, referring to last month’s hearing when the original bill was heard and he was told his amendments would be considered. “I would have co-authorized your legislation.”

Perry said that after discussions with legal experts, including staffers in the office of Lt. Gov. Dan Patrick, he decided to go another way. Republicans argue the bill is a simple measure that allows local police to ferret out undocumented immigrants who are in the country to do others harm.

See here and here for some background. This bill will very likely pass the Senate, on party lines, but it may or may not make it through the House, partly because time is short and partly because there’s less appetite for it there. I know it’s been six years since Tom Craddick was deposed as Speaker, but I still find it hard to believe sometimes that the House is now the more mature and deliberate chamber. Relatively speaking, anyway. It’s scary to think we could have had Speaker Craddick in addition to Dan Patrick running amok in the Senate. Things really can always get worse.

That wasn’t the only bill heard yesterday.

Heartless, draconian and economically irresponsible. That’s what opponents of Senate Bill 1819 Monday called the effort by state Sen. Donna Campbell, R-New Braunfels, to stop allowing certain undocumented students to pay in-state tuition at Texas colleges and universities.

The bill was laid out in a Senate subcommittee on border security during a marathon hearing. As of Monday afternoon, about 160 witnesses had signed up to testify before the committee, including dozens of students who donned caps and gowns amid a standing-room only crowd. As of Monday evening, the vast majority of witnesses urged the committee to vote against the measure.

It marked the beginning of the first true attempt in years to repeal 2001’s HB 1403, by former state Rep. Nick Noriega, D-Houston. Since then, minor attempts to repeal the tuition law have generally faltered without fanfare or attention, usually as amendments that failed to pass.

Current law — approved with near unanimous legislative consent 14 years ago — allows undocumented students who have lived in Texas for at least three years and pledge to apply for legal status as soon as they can under federal law to pay in-state tuition rates.

Campbell’s bill would end that, and allow universities to establish a policy to “verify to the satisfaction of the institution” that a student is a legal resident or citizen

Campbell was as mendacious and ill-informed during the hearing as you’d expect. As of this writing, we don’t know if the bill was voted on in committee or not, but the same thinking applies to it as to the sanctuary cities bill. If time runs out on them, it will be interesting to see if Greg Abbott forces the issue with a special session. RG Ratcliffe, recalling one of the few worthwhile things Rick Perry said during his otherwise disastrous 2012 Presidential campaign, and the Observer have more.

Precinct analysis: Abbott versus Perry in Latino districts

District level election data for 2014 has been available for a few weeks now. Seems like as good a time as any to return to a favorite topic, namely how Greg Abbott did in heavily Latino areas. An exit poll from November claimed Abbott drew 44% of the Latino vote, which would be a very impressive accomplishment. My complaint whenever I read a story like that is that no one ever bothers to go back and check the actual election results later to see if that kind of number makes sense. No one but me, of course, because I’m a crank about that sort of thing. Now that we have this data, how does it look? Here’s a comparison to Rick Perry in 2010 in the most heavily Latino districts:

Dist SSVR% Perry Abbott ============================= 031 76.46% 42.01% 44.80% 035 76.58% 37.19% 39.11% 036 87.34% 29.55% 31.21% 037 81.21% 36.96% 38.13% 038 80.92% 39.11% 40.39% 039 85.14% 27.03% 32.12% 040 88.14% 25.37% 28.59% 041 71.98% 46.69% 47.84% 042 88.70% 22.58% 29.69% 075 83.70% 29.04% 30.84% 076 84.73% 23.57% 24.32% 079 72.70% 38.89% 39.26% 080 80.84% 34.79% 37.78%

SSVR data is from here. I’d like to think that this would put those 44% assertions to rest, but I know better by now. Abbott clearly did better than Perry, though by only a point or two in most districts. Some of that may simply be due to Perry doing worse overall than Abbott. Still, his actual number among Latino voters is nothing to sneeze at. But as I’ve said before, while the actual results provide a reality check on exit polls and from-the-ether assertions, they’re more suggestive than conclusive. We don’t know what percentage of actual voters in these districts was Latino. To see what I mean, consider a district with 10,000 voters and an SSVR of 80%. Imagine also that Abbott gets 70% of the Anglo vote, which is likely to be at least what Abbott would need to get to almost 60% overall. How does the vote break down if Abbott scored 40% (i.e., 4,000 votes) in that district?

If the actual mix of voters is 80% Latino and 20% Anglo, then Abbott got 1,400 Anglo votes, which means he needs 2,600 Latino votes to get to 40% overall. 2,600 votes out of 8,000 is 32.5%.

If the actual mix of voters is 70% Latino and 30% Anglo, then Abbott got 2,100 Anglo votes, which means he needs 1,900 Latino votes to get to 40% overall. 1,900 votes out of 8,000 is 23.75%.

Basically, the share of the Anglo vote, even though it is relatively small in a district like this, has a large effect on the share of the Latino vote. Changing the assumption that Abbott got 60% of the Anglo vote in this district instead of 70% doesn’t make that much difference. In scenario 1, Abbott needs 2,800 Latino votes instead of 2,600, or 35%. In scenario 2, it’s 2,200 instead of 1,900, or 31.4%. Even in a scenario where you assume the Latino vote exceeds the SSVR%, you get the same kind of result. In a 90/10 situation with a 70% Anglo vote, the corresponding Latino percentage is 36.7%; with a 60% Anglo vote, it’s 37.8%. The only way for the Latino vote percentage to be higher than the overall percentage is if the Anglo vote is less than the overall. I suppose it’s possible Abbott could fail to break 40% of the vote in these districts, but I’ve yet to see anyone offer objective evidence of it. Therefore, the numbers I present above represent the upper bound for Abbott among Latinos in these districts. Anyone who wants to claim otherwise needs to show me the numbers.

(To be completely fair, one scenario under which the Latino vote could be higher than the overall would be if some other segment of the electorate was voting disproportionately against Abbott. A significant portion of African-American voters in these districts could do that. Take the first scenario above and change the voter demography to 80% Latino, 10% African-American, and 10% Anglo. Now assume a 70% Anglo vote for Abbott and 10% A-A vote for him. With those assumptions, 3,200 Latino votes are needed to get to 40% overall, and as it happens that’s a 40% share of the Latino vote. However, in the districts above, the largest African-American population is four percent; it’s less than one percent in most of them. As such, this variation pretty much can’t exist.)

Another way we can look at this is to see if other Republicans did better in these districts as well, or if the effect was limited to Abbott. For that, we turn to a comparison of David Dewhurst in 2010 to Dan Patrick.

Dist SSVR% Dew Patrick ============================= 031 76.46% 45.47% 40.46% 035 76.58% 37.99% 34.86% 036 87.34% 29.04% 26.67% 037 81.21% 35.77% 33.85% 038 80.92% 38.91% 35.40% 039 85.14% 26.44% 27.50% 040 88.14% 25.11% 23.00% 041 71.98% 48.27% 42.16% 042 88.70% 24.68% 23.67% 075 83.70% 30.16% 29.72% 076 84.73% 24.67% 23.37% 079 72.70% 41.50% 37.98% 080 80.84% 35.40% 34.59%

With the exception of HD39, Dewhurst did better than Patrick. Obviously, Dewhurst did better overall than Perry, while Patrick was roughly equivalent to Abbott. That suggests that while Abbott may have improved on Perry’s performance, he wasn’t necessarily a rising tide. To be sure of that, we should compare him directly to his comrades on the ballot. I’ve thrown in Perry as well for some perspective.

Dist Abbott Perry Patrick Paxton Hegar Bush ========================================================== 031 44.08% 42.01% 40.46% 41.36% 40.97% 45.24% 035 39.11% 37.19% 34.86% 35.93% 35.70% 39.45% 036 31.21% 29.55% 26.67% 27.89% 28.06% 32.42% 037 38.13% 36.96% 33.85% 34.16% 34.13% 39.77% 038 40.39% 39.11% 35.40% 36.30% 36.15% 41.98% 039 32.12% 27.03% 27.50% 28.58% 28.68% 33.18% 040 28.59% 25.37% 23.00% 23.92% 24.24% 29.45% 041 47.84% 46.69% 42.16% 44.51% 44.77% 49.92% 042 29.69% 22.58% 23.67% 22.48% 23.40% 33.23% 075 30.84% 29.04% 29.72% 29.33% 29.21% 28.75% 076 24.32% 23.57% 23.37% 23.52% 22.91% 24.76% 079 39.26% 38.89% 37.98% 37.94% 37.41% 37.76% 080 37.78% 34.79% 34.59% 34.14% 33.71% 39.13%

A few observations:

– Clearly, Abbott did better in these districts than anyone except Baby Bush. Playing up their own Latino connections – wife in Abbott’s case, mother in Bush’s – helped them, at least to some extent. We have seen this before, with several other candidates – Ted Cruz, Eva Guzman, Hector Uribe, and as you can see above, Leticia Van de Putte. The effect isn’t much – a couple of points – but it exists. It should be noted that since these candidates’ overall totals don’t differ much from their ballotmates’, there’s an equivalent but opposite effect elsewhere. Just something to keep in mind.

– Note that the effect for Abbott was greater in South Texas and the Valley, and lesser in El Paso (HDs 75, 76, and 79). Bush also did worse in El Paso, no doubt due at least in part to having former El Paso Mayor John Cook as his opponent. Consider this a reminder that the Latino electorate is not monolithic, even within the same nationality. What works well here may not be as effective there. This should be obvious, but I feel like we all sometimes act as if that’s not the case, and yes I include myself in that.

– Along those lines, I wish that the SSVRs were high enough in the urban Latino districts to include them here, but they’re not really comparable. Having written that, I’m now curious enough to do that comparison in another post, just to see what I get.

– At the end of the day, Greg Abbott in 2014 was a lesser known quantity than Rick Perry in 2010. He had a chance to introduce himself as a more or less clean slate. That won’t be the case in 2018, if Abbott is on the ballot for re-election. He’ll have a record to defend, for good or bad. We’ll see how much his wife and madrina can help him then.

State-run Women’s Health Program continues to be a failure

Quelle surprise.

Right there with them

Right there with them

Thousands fewer women are getting health services through the now state-run Women’s Health Program after Planned Parenthood was barred from being a provider.

A report released Monday by the state Health and Human Services Commission showed that almost 30,000 fewer women were served through the program in 2013 than in 2011, and 63,581 fewer claims were filed for birth control.

The program became fully state-funded in 2013 after lawmakers voted to prohibit taxpayer dollars from going to abortion providers or their affiliates. Planned Parenthood served about 40 percent of the women in the program before it was excluded for being affiliated with separate, privately funded abortion clinics.

Texas lost federal matching money that kicked in $9 for every one dollar the state spent, now costing the state about $36 million annually.

The program provides well woman’s exams, cancer screenings, contraception and tests for sexually transmitted diseases and infections to low-income women between the ages of 18 and 44.

“These numbers are so distressing and I think it shows Texas moving backwards pretty quickly,” said Sarah Wheat, spokeswoman for Planned Parenthood of Greater Texas.

Several Planned Parenthood family planning clinics closed after they lost funding. The report showed that the areas with the highest drops in the number of women served by the program occurred in areas where Planned Parenthood clinics shuttered.

I’ve blogged about this plenty – see here and here for a couple of examples – and by this point it should be clear to everyone that this is a feature, not a bug. The Republicans who did this were told, repeatedly and in detail, exactly what would happen when the cut the funding, gave up the federal match, and kneecapped Planned Parenthood. They went ahead and did it anyway, for the basest of political reasons. And after last year’s elections, who can blame them? It’s not like anyone has been held accountable for it. They should have the courage of their convictions and embrace studies like this with pride. It’s what they wanted to do, and they’ve been hugely successful at it. Newsdesk and the Observer have more.

Republicans try again to kill Public Integrity Unit

They might have the votes this time, though as with some other highly publicized “replacement” efforts, their substitute idea lacks a few key elements to make it successful.

Sen. Joan Huffman

Under Senate Bill 10 by Sen. Joan Huffman, the attorney general’s office would conduct the initial investigation of complaints against officials, with help from the Texas Rangers.

If the investigation yields “reasonable suspicion,” a state judge would send the findings to a district or county attorney who is outside of the official’s county. That prosecutor could terminate the case or continue with prosecution.

If the case goes to trial, under SB 10, the proceedings would be held in the public official’s hometown.

“These changes will inspire confidence in these critical functions of government and keep this process fair to all Texans, no matter where they live or to which political party they belong,” Huffman said in a statement.

Republican Lt. Gov. Dan Patrick endorsed Huffman’s bill, saying it would place the unit “in a more appropriate setting.”

Gregg Cox, head of the Public Integrity Unit, warned against hometown prosecution during a Senate hearing last month, saying his agency was created in part to avoid conflicts of interest that can mar prosecutions of local officials. Cox did not respond to a request for comment Wednesday.

Craig McDonald with Texans for Public Justice, a liberal watchdog group, said: “Huffman’s bill creates a maze of chutes and ladders that offers politicians numerous escape hatches from prosecution.”

The first problem with this is that as the Chron story notes, the state attorney general likely would have to do the initial investigation without subpoena power. That would seem to be a significant obstacle in any case where one or more key witnesses did not want to testify. Another problem, as seen in the increasingly bizarre ethics case against professional sleazeball Michael Quinn Sullivan is that prosecutors and judges in the home county of an official under investigation may be more likely to have conflicts of interest. If nothing else, the fact that a DA in the home county of an officeholder under suspicion will face at least some of the same voters that elected that official in the first place may provide some perverse incentives.

The bottom line here is, and has always been, that the Republicans who constitute the majority of potential prosecution targets don’t want their fate in the hands of an elected Democrat. (Of course, Republicans aren’t the only ones who do get into the crosshairs of the Public Integrity Unit, as former State Rep. Kino Flores could attest.) I admit to some sympathy for this, as I’m sure I’d feel the same way if the situation were reversed, but let’s be honest, if Sam Houston had been elected AG this past November, Sen. Huffman would not have filed SB10, at least not in that form. It’s not about the office but about who holds it.

SB10 would also move insurance fraud and issues relating to the imposition of the motor fuels tax, both of which are handled by the Public Integrity Unit of the Travis County DA’s office today, to the AG’s office. You may recall that it was this sort of investigation that was cut off by Rick Perry’s veto of PIU funds in 2013. Seems to me that the AG’s office would have to enlarge if this goes through, though I suppose in the end the cost may be a wash since the state budget normally funds the PIU anyway. Still, this is bigger than just shifting the way political prosecutions are done. It’s hard to see how SB10 will be an improvement in process over the status quo.

SCOTUS to hear same sex marriage appeal in April

Get ready.

RedEquality

The Supreme Court will hear arguments over same-sex marriage on April 28 and make audio of the proceedings available later that day.

The gay marriage cases mark the only time this term that the court has agreed to the quick release of audio recordings. But the court is continuing its ban on providing video of its sessions or even live-streamed audio.

The arguments on gay marriage have been allotted two-and-a-half hours on the final Tuesday in April. Audio and the transcript of the proceedings should be available on the court’s website by 2 p.m. EDT, the court said Thursday in a statement.

[…]

Lawyers on both sides will get 90 minutes to argue whether gay and lesbian couples have a constitutional right to marry everywhere in the U.S. Another hour will be devoted to the question of whether states must recognize same-sex unions performed elsewhere.

The appeal is of the Sixth Circuit Court of Appeals decision, the only one in the bunch so far to have upheld inequality. Nonetheless, there is a Texas angle to the appeal.

The nearly 100 plaintiffs challenging gay marriage bans in 15 states on Friday made an impassioned plea to the U.S. Supreme Court, asking the justices to end the practice of treating homosexual couples like second-class citizens by extending them the right to legally wed.

The brief was filed on behalf of 92 plaintiffs, including Mark Phariss and Victor Holmes, a gay couple challenging Texas’ ban on same-sex marriage.

Submitted the day after the Supreme Court announced it would consider the issue on April 28, the 77-page brief says upholding tradition cannot trump upholding the citizens’ constitutional rights; it adds the high court, not state legislatures or ballot boxes, is the correct place to decide the issue since most states with bans in place show no signs of change.

“The continuing hostile environment in some places has revealed many state officials’ unapologetic animus toward gay men and lesbians,” the brief states.

“When asked what he would tell gay and lesbian veterans returning to Texas from the Iraq war, then-Governor Rick Perry responded, ‘Texas has made a decision on marriage, and if there’s a state with more lenient views than Texas, then maybe that’s where they should live.”

Perry made the comment in 2005 after a speech at the Calvary Cathedral International Church in Fort Worth, when he was asked what he would tell homosexual veterans returning to a state that recently had added a ban on gay marriage to its Constitution.

“If the Supreme Court does not now rule against same-sex marriage bans, marriage equality will not come to many states for a long time,” said Phariss.

I remember that statement by Perry. It was one of the ugliest things he’s ever said or done, and he’s said and done a lot of ugly things. I hope that comes back to haunt him.

Anyway. It remains an open question whether the Fifth Circuit will hand down its decision prior to SCOTUS, which is expected to rule by July. Heck, we may not have a ruling from the Fifth Circuit on the motion to lift the stay by then. But one way or another, we should have an answer in a few months’ time.

Perry goes to appeals court with latest motion to dismiss

Leave no stone unturned, and no hour unbilled.

Corndogs make bad news go down easier

Corndogs are appealing

Rick Perry’s lawyers have asked a state appeals court to dismiss the indictment against the former governor, saying he lawfully used his power to veto funds to the Travis County district attorney’s office and his right to do so is protected by free speech.

“On its face, without the need for any evidence, the indictment must be dismissed because it runs afoul of these constitutional guarantees,” the defense team argued in a filing made late Wednesday with the 3rd Court of Appeals in Austin.

The filing, the second part of a two-pronged approached to get the indictment dismissed, is an appeal of a Jan. 27 decision by Judge Bert Richardson that allowed the case to proceed.

[…]

Defense lawyers Tony Buzbee and David Botsford wrote on Monday that this new “woefully deficient” indictment should be dismissed because it fails to allege a crime was committed when Perry, as governor, vetoed state funds that were to go to the Travis County district attorney’s office nearly two years ago.

In their brief before the appeals court, Perry lawyers again zeroed in on the coercion charge and whether Perry’s veto threat was allowed under free speech protections guaranteed by the state and U.S. constitutions.

Defense lawyers offer that while some threats that imply physical harm are not protected by the U.S. Constitution, most threats enjoy “broad protection” under the First Amendment.

The defense team warned that if the case is not dismissed, it will have a “a chilling effect” on any governor who may want to veto items in the state’s budget, Perry’s appeal states.

“At stake is not just the freedom of one man,” Perry’s attorneys argued.

Yawn. See here and here for the background, and here for the filing. I do agree that this indictment is a threat to any future politician who would use his or her power to try to force another elected official to resign. We’ll see which court rules first.

Judge Dietz would like the Lege to please fix school finance already

So would the rest of us, Your Honor.

In his first major appearance since finding the Texas school finance system unconstitutional in 2014, state District Judge John Dietz said Sunday that a solution to the state’s unequal and ineffective public education system should come from the Legislature.

“We are dooming a generation of these children by providing an insufficient education, and we can do better,” Dietz told hundreds of teachers gathered in Austin. “It’s in our best interest to do better.”

In his decision last September, Dietz ruled in favor of more than 600 Texas school districts that brought the case. The districts, which serve three-fourths of the state’s estimated 5 million public school students, argued that the state is not meeting its constitutional obligation to adequately fund public education.

“Whether we like it or not, this lies with the legislature, not the courts,” Dietz said. “Even if I am wrong, what do they say about what they have in their own materials? The achievement gap is substantial, persistent, and it has been for ten to 15 years.”

Dietz’s comments were met with applause at a training hosted by the Association of Texas Professional Educators – the largest independent teachers’ organization in Texas, and the largest of it’s kind in the United States, with an estimated 100,000 members.

[…]

Then attorney general, now Gov. Greg Abbott attempted to remove Dietz from the case last year, questioning his impartiality based on a series of emails between the judge and school district lawyers. But at ATPE, lobbyists remain optimistic that Abbott will work with them to solve problems affecting public education.

“We think that this governor is a breath of fresh air in education, and he wants to work with public educators, unlike the previous governor,” [Brock Gregg, ATPE’s governmental relations director] added. “But it is yet to be seen if the money will follow the idea. Until substantial funding is directed towards education, we are working at the edges.”

I’m glad they’re optimistic – I guess anyone can look good compared to Rick Perry – but color me skeptical for now. Abbott did defend the 2011 cuts in court, then declined all calls to settle after Judge Dietz’s ruling, preferring instead to draw this out by appealing to the Supreme Court. And even if you do have faith in Abbott, Dan Patrick gets a say in this, too. He thought those 2011 cuts were a good idea. Given a choice between these guys coming up with a solution and waiting for the Supreme Court to impose one, I’ll take my chances on the latter.

Perry’s lawyers try, try again

The circle of life keeps on keeping on.

Corndogs make bad news go down easier

This corndog has done nothing wrong

Lawyers for Rick Perry asked the court on Monday to again end the prosecution of the former governor, saying the indictment is faulty and the actions he took in issuing a veto are allowed by law.

[…]

On Monday, Perry’s team attacked amendments that McCrum had added to the indictments that accuse the former governor of coercion and misuse of public office. The court had found that the initial indictments lacked enough specificity about the facts of the crime.

The defense team attacked the added facts, saying the “were not found by the grand jury.” The lawyers also asserted that Perry’s actions fall under an exception for “coercion.”

The law allows the governor to go back and forth, debate and in effect horse trade with legislators over bills. His lawyers are trying to argue that because his alleged criminal action involved a veto of legislative funds, that he is protected by that exception.

The prosecution is arguing that the person he supposedly coerced is not a legislator and Perry was illegally using his power because what he was attempting to control was an office beyond his scope and not connected to the Legislature.

See here, here, and here for the background, and see here for a copy of Team Perry’s latest motion. I said in my last update that I thought the prosecution was having to get mighty intricate with its explanation for why Perry’s actions were criminal, and that I thought it didn’t bode well for them. It looks like the defense is stretching a bit, too, so maybe their case is stronger than I thought. I’m still concerned that the law in question is enough of a misfit to bring the whole shebang down, but it’s in Judge Richardson’s hands again. At least, I assume it is; there may be more filings to come, and perhaps another hearing. We’ll see. The Trib has more.