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Third Court of Appeals

TEA appeals takeover-delay injunction

by Charles Kuffner.

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This isn’t settled just yet.

Texas Education Agency officials said they filed an appeal Thursday to overturn an injunction by a Travis County judge blocking it from replacing Houston ISD’s trustees with a state-appointed board of managers.

The appeal was sent to the Austin-based Third Court of Appeals, and if a panel of judges sides with the agency, it could resume its work to strip Houston ISD’s board of power.

If the injunction is upheld, the TEA would not be able to move forward until a lawsuit by the Houston ISD board of trustees has been decided. Travis County District Judge Catherine Mauzy on Wednesday set a hearing date for June 22.

[…]

Shepherd ISD, a small school district just south of Lake Livingston also is targeted for a board takeover by the TEA. That district also sought a temporary injunction this year to stop the education agency takeover. On Thursday, Travis County District Judge Karin Crump denied that application for an injunction.

HB 1842 was not the TEA’s only potential option to replace Houston ISD’s board. It could sanction the district over the state investigation. State law also allows the TEA to take over the board if a district has had a TEA conservator for two or more years.

HISD attorneys argue that the TEA’s investigation was biased and that because the TEA conservator was assigned to one campus, and not the district as a whole, her presence would not trigger a takeover.

The injunction by Judge Mauzy also blocks the TEA from acting under either of those rules.

See here for the background. The conventional wisdom seems to be that while the Third Court of Appeals may uphold the injunction, the all-Republican Supreme Court may be more favorable to the TEA. Make of that what you will. Time could be a factor, depending on how long it takes each court to hear and rule on the appeals. Honestly, I hope this gets decided on the merits in a timely fashion. Whatever the outcome, having some extra clarity on the law would be a good thing.

Omnibus election report

by Charles Kuffner.

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It’s after midnight, I’ve mostly posted stuff on my long-dormant Twitter account (@kuff), and I will have many, many thoughts in the coming days. For now, a brief recap.

– As you know, neither Beto nor any other Dem won statewide, thus continuing the shutout that began in 1996. However, as of this writing and 6,998 of 7,939 precincts counted, O’Rourke had 3,824,780 votes, good for 47.86% of the total. In 2016, Hillary Clinton collected 3,877,868 votes. It seems very likely that by the time all is said and done, Beto O’Rourke will be the biggest vote-getter in history for a Texas Democrat. He will have built on Hillary Clinton’s total from 2016. That’s pretty goddamn amazing, and if you’re not truly impressed by it you’re not seeing the whole picture. We’re in a different state now.

– Beto may not have won, but boy howdy did he have coattails. Colin Allred won in CD32, and Lizzie Fletcher won in CD07. Will Hurd is hanging on to a shrinking lead in CD23, up by less than 1,200 votes with about 14% of the precincts yet to report. He was leading by 6,000 votes in early voting, and it may still be possible for Gina Ortiz Jones to catch him. Todd Litton (45.30% in CD02), Lorie Burch (44.21% in CD03), Jana Lynne Sanchez (45.25% in CD06), Mike Siegel (46.71% in CD10), Joseph Kopser (47.26% in CD21), Sri Kulkarni (46.38% in CD22), Jan McDowell (46.91% in CD24), Julie Oliver (44.43% in CD25), and MJ Hegar (47.54% in CD31) all came within ten points.

– Those coattails extended further down the ballot. Dems picked up two State Senate seats, as Beverly Powell defeated Konni Burton in SD10 (Wendy Davis’ old seat) and Nathan Johnson trounced Don Huffines in SD16. Rita Lucido was at 46.69% in SD17, but she wasn’t the next-closest competitor – Mark Phariss came within three points of defeating Angela Paxton in SD08, a race that wasn’t really on the radar. Oh, and in an even less-visible race Gwenn Burud scored 45.45% in SD09, while Meg Walsh got to 41.60% against Sen. Charles Schwertner in SD05 (he was just over 55% in that race). We could make things very, very interesting in 2022.

– And down in the State House, Dems have picked up 11 seats:

HD45, Erin Zwiener
HD47, Vikki Goodwin
HD52, James Talarico
HD65, Michelle Beckley
HD102, Ana-Marie Ramos
HD105, Terry Meza
HD113, Rhetta Bowers
HD114, John Turner
HD115, Julie Johnson
HD135, Jon Rosenthal
HD136, John Bucy

Note that of those seven wins, a total of four came from Denton, Hays, and Williamson Counties. The Dems have officially gained a foothold in the suburbs. They also lost some heartbreakingly close races in the House – I’ll save that for tomorrow – and now hold 12 of 14 seats in Dallas County after starting the decade with only six seats. This is the risk of doing too precise a gerrymander – the Republicans there had no room for error in a strong Democratic year.

– Here in Harris County, it was another sweep, as Dems won all the judicial races and in the end all the countywide races. Ed Emmett lost by a point after leading most of the evening, while the other Republicans lost by wide margins. Also late in the evening, Adrian Garcia squeaked ahead of Commissioner Jack Morman in Precinct 2, leading by a 112,356 to 111,226 score. Seems fitting that Morman would lose a close race in a wave year, as that was how he won in the first place. That means Dems now have a 3-2 majority on Commissioners Court. Did I say we now live in a different state? We now live in a very different county.

– With 999 of 1,013 precincts in, Harris County turnout was 1,194,379, with about 346K votes happening on Election Day. That puts turnout above what we had in 2008 (in terms of total votes, not percentage of registered voters) but a hair behind 2012. It also means that about 71% of the vote was cast early, a bit less than in 2016.

– Oh, and the Dems swept Fort Bend, too, winning District Attorney, County Judge, District Clerk, all contests judicial races, and County Commissioner in Precinct 4. Maybe someone can explain to me now why they didn’t run candidates for County Clerk and County Treasurer, but whatever.

– Possibly the biggest bloodbath of the night was in the Courts of Appeals, where the Dems won every single contested race in the 1st, 3rd, 4th, 5th, 13th, and 14th Courts. I count 16 incumbent Republican judges losing, with several more open Republican-held seats flipping. That is utterly amazing, and will have an impact far greater than we can imagine right now.

– Last but not least, both Houston propositions passed. Expect there to be a lawsuit over Prop B.

The Courts of Appeals

by Charles Kuffner.

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The other judicial races where Dems have a chance to gain ground.

Republicans dominate Texas politics — but their stranglehold is especially noticeable in the courts.

Republicans hold all 18 seats on the state’s two high courts. Of the state’s 14 appeals courts, Democrats hold majorities on just three. On the other 11 courts, Democrats have no seats at all.

Democrats are hoping to flip that advantage on Election Day. In their eyes, the stars have aligned. They have a high-profile liberal darling running a competitive race for U.S. Senate at the top of the ticket. They have a controversial Republican president expected to generate backlash in his first midterm election. And enough judicial seats are up for election that Democrats could flip the four sprawling appellate court districts that serve Austin, Dallas and Houston. Hillary Clinton won those districts in 2016, but the courts are currently held entirely by Republicans.

If Democrats can sweep those races in 2018, they’ll take control of half the state’s appeals courts. And strategists say that goal is in sight.

[…]

No Democrat has been elected to the Dallas-based 5th Court of Appeals since 1992. The six-county district includes liberal-leaning Dallas, but also some of Texas’ most reliably red areas. In Dallas, as in Houston and Austin, large, urban centers contribute the lion’s share of the judicial district’s electorate, but right-leaning rural and suburban voters in surrounding counties have handed victories to Republicans for the past several election cycles. Only the 4th Court of Appeals, based in San Antonio, has a partisan split with Democrats in the majority. The Legislature controls these maps; the districts have changed only twice since 1967, most recently in 2005.

[…]

Ken Molberg, a district judge in Dallas, ran for 5th Court of Appeals in 2014 and came up nearly 72,000 votes short. This year, in another attempt, he’s confident things will be different. Molberg, a former Dallas County Democratic Party chair, has accumulated several hundred thousand dollars — an impressive sum for such an unstudied race — and said his region of the state is “ground zero for the party this go around.”

“The potential to switch this court in one election cycle is there, and it would be somewhat earthquake-like if that happened,” Molberg said. “It’s a tough race all the way around, but my analysis is that it can be done.”

Molberg is the best-funded of the eight Democrats battling Republicans for seats on the 13-justice court. But he said the slate will likely succeed or fail as a group.

“I don’t think individual campaigns have any effect at the court of appeals or district court level. …That’s an example of where you’re almost entirely dependent on straight-ticket voting,” said Jay Aiyer, a political science professor at Texas Southern University. “At the courthouse level, it’s easier for one party to dominate.”

[…]

“There is a real conformity, a uniformity of judicial thought on these courts that I think would really benefit from different experience,” said Meagan Hassan, who’s running as a Democrat for the Houston-based 14th Court of Appeals. She pointed to the tiny fraction of dissenting opinions written by Houston-area appellate judges, arguing that ideological balance is needed for the critical decisions these courts make.

In Tyler, for example, an all-Republican court of appeals struck down as unconstitutional the state’s new “revenge porn” law. The 3rd Court of Appeals is currently weighing the city of Austin’s paid sick leave ordinance. And state appellate courts are the last appellate stop for the vast majority of criminal cases in the state — yet many state appellate judges have no background in criminal law.

Democratic wins, Hassan said, “would bring balance to the court that hasn’t existed there in 25 years.”

That’s a theme several of the CoA candidates mentioned in the Q&As I did with them this year. They also point out that a lot of the Court of Appeals rulings stand because they don’t get heard by the Supreme Court or the CCA. I wrote about these races in 2016, when there were several pickup opportunities available, in part due to the wipeout of 2010. Dems did gain one seat each on the 4th and 13th Courts of Appeals in 2016, the latter being one they lost in 2010. They had gained three on the 4th and lost one on the 3rd in 2012, with all of those being up for re-election this time around.

For the 1st and 14th Courts, which are the ones that include Harris County, Dems lost the CoA races by a wide margin in 2014 but came much closer in 2016. Here’s an example from 2014 and an example from 2016. The deficit was close to 150K votes in 2014 but only about 40K votes in 2016. The formula for a Democratic win is pretty straightforward: Carry Harris County by a lot, break even in Fort Bend, and limit the damage in Brazoria and Galveston. That’s all very doable, but it’s likely there won’t be much room for error. It all starts with running up the score in Harris County (or Travis County for the 3rd, and Dallas County for the 5th). If that happens, we can win.

Microbrewery legal setback

by Charles Kuffner.

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Kind of a lousy Christmas present.

Three Texas brewers are going back to battle with the state after an appeals court reversed a decision that would have allowed them to sell their distribution rights for monetary compensation.

In 2014, Peticolas Brewing Co. (Dallas), Revolver Brewing (Granbury) and Live Oak Brewing Co. (Austin) sued the Texas Alcohol and Beverage Commission, saying a newly passed law related to who could sell a brewery’s distribution rights was unconstitutional. The mandate, which passed in 2013 with a bundle of other beer regulation reforms, said breweries may not accept payment for contracting with a distributor, but that a distributor could get a payout if it sold those same territorial rights to another distribution company.

Last year, a judge served victory to the breweries. But on Dec. 15, the Texas Third Court of Appeals reversed that decision. It stated, in part, the law does not prevent the brewers from successfully operating their businesses and that it also upholds the industry’s three-tier system, which aims to avoid conflicts of interest between alcohol manufacturers, distributors and retailers.

The decision will be appealed to the Texas Supreme Court, according to a statement from Institute for Justice, which is representing the breweries.

“It is well established that the Texas Constitution protects economic liberties, and these rights do not cease to exist when the government begins licensing and regulating individuals and businesses,” said Arif Panju, managing attorney for Institute for Justice’s Texas office, in a statement. “Every business in Texas should be concerned with the court’s ruling in this case. It is dangerous and we will ask the Texas Supreme Court to reverse.”

See here, here, and here for the background. You know how I feel about this. The three-tier system is an anachronism and a travesty, a glaring counterexample to any politician’s paeans to how Texas has a great business environment. Yet it persists, a lasting tribute to the lobbying efforts of the beer distributors and the big breweries that support them. As with so many things in this state, the ultimate solution is going to have to be a political one. Nothing will change until we elect enough people who want it to change. Austin360 has more.

New Braunfels can ban is back

by Charles Kuffner.

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A blast from the past.

New Braunfels officials plan to resume enforcement of the “can ban” and limits on coolers on rivers on Wednesday even as opponents of the controversial municipal codes continue to pursue a legal challenge to them.

The development follows the Texas Supreme Court’s refusal this month to bar the city from enforcing the ordinances, which prohibit bringing disposable containers or coolers over 16 quarts in size onto the Guadalupe and Comal rivers inside city limits.

“Everyone is still invited to enjoy their favorite beverage on our rivers. We just ask that they do so responsibly and in consideration of the health and sustainability of these important community assets,” Mayor Barron Casteel said in announcing Friday that enforcement of the measures would resume this week.

The resumption of enforcement after a lull of more than three years was called premature Monday by attorney Jim Ewbank, who brought suit in 2012 on behalf of local river outfitters and tourism-related businesses who contend the codes are an overreach of municipal authority.

Despite rejecting plaintiffs’ request to issue an immediate stay on enforcement of the contested codes, he noted the Texas Supreme Court did request a full briefing by the parties, “which is a good sign for us.”

The city’s brief is due to be filed by late November, said Ewbank, who expects the high court to decide by January whether to hear the whole case.

[…]

State District Judge Don Burgess granted the plaintiffs a summary judgment in 2014, but that decision was overturned in May by the 3rd Court of Appeals. It held that the plaintiffs lacked legal standing to challenge a penal code, therefore Burgess lacked subject matter jurisdiction on the case.

See here for my last update. I apparently missed the appellate ruling. Be that as it may, the city expects to get the ball rolling this week, with an eye on putting the ban back in place next year, assuming the Supreme Court doesn’t set them back. Adjust your tubing plans for the future accordingly.

You are now free to visually blight Texas highways

by Charles Kuffner.

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Opponents of billboards and other signs along Texas roadways reacted on Monday with dismay to an appeals court decision striking down significant portions of the Texas Highway Beautification Act, saying the ruling could lead to a litany of signs along federally funded highways.

The Third District Court of Appeals in Austin issued the decision on the state law – cheered as the linchpin of Texas’ scenic roadway efforts – because the 42-year-old act restricts free speech.

Scenic Texas, a statewide group that has fought watering down Texas billboard laws, is urging the Texas Department of Transportation – the defendant in the current case – and state officials to appeal.

“What it appears to do is strip away TxDOT’s authority to regulate outdoor advertising as they have been doing it for the last 40 years,” said Margaret Lloyd, a Galveston resident and vice president of Scenic Texas. “We are concerned that authority has been removed completely.”

The ruling came late last week in a case regarding a 2011 sign erected to support Ron Paul’s 2012 presidential campaign. Auspro Enterprises placed the sign on its property along Texas 71.

[…]

TxDOT spokeswoman Veronica Beyer said the agency is reviewing the ruling and consulting with the Attorney General’s Office and the Federal Highway Administration.

“TxDOT does not regulate or restrict content, as TxDOT has regulations that provide protection for freedom of speech,” Beyer said in a statement. “Texas has the most beautiful roadways in the nation, and as such TxDOT only wishes to further maintain the safety to the traveling public without restricting peoples’ constitutional rights.”

Citing other restrictions on signs and previous court rulings, the appeals court struck down subchapters B and C of the beautification act, which are the centerpiece of the law. Essentially, the court ruled Texas’ law relies on exemptions that differ based on the content of the sign, which is unconstitutional.

“The Texas Act, as both (TxDOT) and the Texas Supreme Court have acknowledged, on its face draws distinctions based on the message a speaker conveys,” appeals court Chief Justice Jeff Rose wrote.

Rather than void parts related to political speech, as TxDOT sought during the case, the appeals court said it cannot sever one type of sign from another and deemed TxDOT’s total authority of signs unconstitutional.

“We strongly disagree with the interpretation the court has come up with,” said Anne Culver, president of Scenic Houston, a local version of the statewide group.

A copy of the ruling is here. It cites a recent SCOTUS case ( Reed v. Town of Gilbert), which the judges say “has arguably transformed First Amendment free-speech jurisprudence”. If that’s so, I don’t care for it, because I think this ruling, which struck down a law that had been in place with no objections for over 40 years, is too broad. Beyond the effect at the state level, this could affect local billboard ordinance as well. Surely we don’t want to go back to the ugly old days in Houston, right? Scenic Texas said in a post on Facebook that they will encourage the AG to appeal this ruling. This is one time where I agree with that advice. Swamplot and the Chron editorial board have more.

La Marque ISD lawsuit tossed

by Charles Kuffner.

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The end of the line for La Marque ISD.

A Texas appeals court has dismissed a lawsuit seeking to halt the annexation of the La Marque school district by Texas City ISD.

The 3rd Texas Court of Appeals on Friday dismissed the lawsuit, saying that it lacked jurisdiction and that the lower court erred in accepting the case.

“This is the end. It’s done,” said Terry Pettijohn, a member of the deposed La Marque school board that sued to prevent the Texas Education Agency from dissolving the district.

“It’s just hard to understand how a school district that had met TEA standards and was financially solvent could have been closed,” Pettijohn said.

Former Education Commissioner Michael Williams, replaced Jan. 1 by former Dallas ISD trustee Mike Morath, last year ordered La Marque ISD to merge with the Texas City Independent School District as of July 1. State officials said the district had failed to meet its financial marks.

Morath issued a statement saying, “Our primary focus at the Texas Education Agency is ensuring that students in La Marque have access to a high quality education. We continue our work as the transition to Texas City ISD moves forward.”

See here, here, and here for the background. I didn’t expect La Marque to prevail here, and we did need a resolution one way or the other to be prepared for the next school year. I just hope this works out as planned. I’d feel a lot better about it if there had ever been any statistics published about the effect of HISD taking over North Forest, but if there are it was done in a very low key fashion. We’ll see how this goes.

CCA dismisses remaining charge against Rick Perry

by Charles Kuffner.

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This would appear to be the end of the road.

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.

We have a messed up tax system in this state

by Charles Kuffner.

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The latest exhibit:

The volatile oil and gas industry already has prompted Texas Comptroller Glenn Hegar to reduce his state revenue estimate, but that may not be the last of the bad budget news.

A court decision potentially could cost Texas around $1.1 billion a year in franchise tax revenue, plus require four years’ worth of refunds totaling another $6 billion, according to the comptroller’s office.

“It could be enormous. Enormous,” Hegar said in an interview about the possible effect of the lawsuit brought by American Multi-Cinema, which so far has won its court battle for a bigger deduction from its franchise tax payments.

If the 3rd Court of Appeals ruling in the case stands, the two-year refund due AMC is calculated at nearly $1.2 million.

But Hegar is predicting a potentially much bigger hit for the state based on the assumption that a wide range of businesses would be quick to take advantage of the deduction awarded Missouri-based AMC. The state is asking the court for a rehearing.

The AMC lawsuit centers on the franchise-tax deduction for “cost of goods sold,” which includes such things as the raw material used to make an item.

The 3rd Court of Appeals ruled in the lawsuit in April that exhibiting a movie amounts to a “good” because it’s “perceptible to the senses,” fitting the definition of tangible personal property. Therefore, the court said, AMC can include its auditorium expenses as production costs when figuring its franchise-tax deduction.

“As a practical matter, the court’s holding could potentially treat a business exhibiting a movie as producing TPP (tangible personal property) in much the same way that a carpenter produces a chair or desk” and allow many other service providers to claim deductions, Hegar wrote to state leaders in June.

“It could be lawyers, accountants, people that mow yards. It’s just unbelievable how broad it was,” he said. It opens the door to deductions for their computers or other equipment. “You can even argue that now when somebody comes and mows your yard, you sit in the back yard and you smell that grass, and it’s real pretty. It’s perception to your senses.

“The list just doesn’t stop,” Hegar said. “It would kind of be like the kids’ Christmas list in a Santa Claus movie. It’s a real long list. It just keeps on rolling out the door.”

In a similar fashion, this ruling could also affect the state sales tax, and that could wind up offsetting some of the franchise tax loss. Or maybe not – estimates of the possible total cost of this ruling are in the $6 billion per year range. That’s getting into some real money, at a time when the state could wind up also being on the hook for a lot more money to public education. Like the public ed issue, this will ultimately be decided by the Supreme Court, but the ultimate responsibility lies with the Lege, which could clarify what the franchise tax covers or – since abolishing the franchise tax is the current fetish – replace it with something else. I wouldn’t hold out much hope.

Perry’s day at the CCA

by Charles Kuffner.

3 comments

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

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.

Perry appeal briefs

by Charles Kuffner.

1 comment

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

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?

by Charles Kuffner.

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

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

by Charles Kuffner.

1 comment

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.

CCA gets ready to deal with Rick Perry

by Charles Kuffner.

1 comment

The action never stops.

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

by Charles Kuffner.

1 comment

It’s official.

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

by Charles Kuffner.

Comments are off for this post

More for the CCA to deal with.

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 Charles Kuffner.

1 comment

By a new player in the game.

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.

Perry wins one and loses one at the appeals court

by Charles Kuffner.

1 comment

He’s still under indictment.

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.

The cloud still hanging over Rick Perry’s head

by Charles Kuffner.

Comments are off for this post

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

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

by Charles Kuffner.

1 comment

That is the question.

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

by Charles Kuffner.

Comments are off for this post

He knows one of them very well.

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.

Prosecutors respond to latest Team Perry filings

by Charles Kuffner.

1 comment

Back and forth, forth and back.

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

by Charles Kuffner.

1 comment

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

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.

Perry goes to appeals court with latest motion to dismiss

by Charles Kuffner.

Comments are off for this post

Leave no stone unturned, and no hour unbilled.

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.

Perry still under indictment

by Charles Kuffner.

1 comment

This corndog has done nothing wrong

A judge on Tuesday rejected former Gov. Rick Perry’s attempt to throw out a two-count indictment against him, saying it’s too early in the case to challenge the constitutionality of the charges.

Perry’s attorneys immediately filed notice that they will appeal the 21-page ruling, which was issued Tuesday afternoon by Bert Richardson, a Republican; the appeals process could take months. The appeal will be considered by the Texas 3rd Court of Appeals. All five justices elected to that court are Republican; a sixth justice, who has not yet run in a partisan race, was appointed by Perry before he left office.

[…]

Attorneys for the former governor have been trying to get the two-count felony indictment thrown out. Perry’s attorneys have argued that the indictments — one count of abusing official capacity and one count of illegally coercing a public servant — violate both the Texas and U.S. constitutions.

“Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal procedural statute as that statutes applies to a particular defendant,” Richardson wrote.

However, the judge agreed with Perry’s attorneys that the second count of the indictment – coercion of a public servant – did not “sufficiently” explain why Perry’s actions were not protected because he was acting in his official capacity as governor.

Rather than dismissing this count, the judge said state law allows prosecutors to amend that count, and he granted them permission to do so.

You can read Judge Richardson’s order here. It gets technical in places, but it’s worth your time to read it; it will make enough sense even if you don’t possess a law degree. Judge Richardson has clearly not foreclosed Perry’s claims about constitutionality, but unless the appeals courts grant him his wish – which my reading of the order suggests would be unusual – those would be questions to ponder after the trial concludes. Needless to say, Perry doesn’t want to wait that long; as this companion Trib story reminds us, that could take years to play out. My guess at this point is that we’re headed towards a trial. I welcome any feedback from the lawyers out there. The Statesman has more, and a statement from TPJ is beneath the fold.

Supreme Court re-upholds strip club tax

by Charles Kuffner.

Comments are off for this post

Technically, they declined to re-review it, but practically speaking I figure it’ll amount to the same thing.

The Texas Supreme Court on Friday declined to review whether a $5-per-patron fee at live nude entertainment clubs is an occupation tax in disguise, letting stand a lower appeals court ruling that found alcohol-serving Texas strip clubs must pay up when it comes to the “pole tax.”

Last May, the Texas Third Court of Appeals ruled that the fee was not an unconstitutional occupation tax and must be paid by Texas strip clubs that serve alcohol.

[…]

It is not clear whether the clubs will continue their legal fight. A call seeking comment from a lawyer for the Texas Entertainment Association, which represents many of the roughly 200 strip clubs in the state, was not immediately returned.

See here and here for the background. The clubs have now lost twice in court. Hard for me to see what the value proposition is for them to give it a third try rather than just collecting and paying the fee at this point, but that’s up to them. I have a feeling there will be another chapter in this story eventually.

Bell ordered to pay $300K to RGA

by Charles Kuffner.

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Chris Bell

Unsuccessful 2006 Democratic gubernatorial candidate Chris Bell, once awarded $2 million in his lawsuit against the Republican Governors Association, has instead been ordered to pay the organization $300,000 in legal fees after losing on appeal.

The case dates to the closing days of the 2006 campaign, when the national association wrote two $500,000 checks to the campaign of Gov. Rick Perry, Bell’s Republican opponent.

After losing to Perry by 9 percentage points, Bell filed suit, arguing that the association violated state law by making political donations without appointing a Texas campaign treasurer or supplying a complete donor list. In 2010, Travis County District Judge John Dietz agreed, awarding Bell $2 million, or double the amount of the disputed contribution, as allowed by state law.

Last year, however, the 3rd Court of Appeals overturned Dietz’s ruling, saying out-of-state organizations cannot be penalized for disclosure violations and are not required to designate a state treasurer. Bell appealed, but the Texas Supreme Court declined to accept the case, leaving the appeals court ruling intact.

The appeals court also returned the case to Dietz to determine how much money — if any — Bell owed the association for attorney fees.

Last week, Dietz signed a judgment ordering Bell to pay $300,000 — with an additional $30,000 due if Bell appeals to the 3rd Court of Appeals, plus another $10,000 if he turns to the Texas Supreme Court.

See here, here, and here for the background. Bell is considering an appeal and has until next month to ask for a retrial on the legal fees issue. Judge Dietz is retiring at the end of the year, though, so a new trial would be in front of a new judge. Can’t say I envy him having this hang over his expected Mayoral campaign for next year. Hope he has better luck if there is a next time.

Appeals court rules against KSP

by Charles Kuffner.

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From last week, from the inbox via the Texas Democratic Party:

(Yesterday), the Texas Democratic Party prevailed in King Street Patriots v. Texas Democratic Party, when the Texas Court of Appeals for the Third District confirmed a lower court decision to uphold provisions of Texas campaign finance law. [Campaign Legal Center, 10/8/2014]

The Texas Democratic Party’s suit alleged that the King Street Patriots had made in-kind contributions to the Republican Party of Texas. These donations would have been a violation of the restrictions on corporate political contributions. They also failed to register as a “political committee” and comply with Texas Disclosure Law. In response, the King Street Patriots filed a counterclaim that challenged the constitutionality of parts of Texas’ campaign finance laws. [Houston Chronicle, 3/28/2012]

PDiddie was on this a couple of days ago. I was waiting to see if any mainstream news outlets would pick up on it, but so far it’s just the Quorum Report. The Chron story from 2012 in the TDP press release has a decent summary of the suit, and you can find a bit more on what led to it here and in Hair Balls. I’m sure this will go to the state Supreme Court, and who knows, maybe to the federal courts if they lose there, but for now, this is a nice little bit of good news, almost as good on a smaller scale as the voter ID ruling.

What next for school finance?

by Charles Kuffner.

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That depends on the Attorney General and the Supreme Court, but one way or the other it’s up to the Legislature.

State lawmakers from both parties agreed the responsibility for funding public schools falls on them. But history suggests the Legislature is reluctant to act until its hand is forced.

“I would be surprised if the 2015 Legislature does more than put this issue on hold waiting for a Supreme Court ruling,” said Scott Hochberg, a former Democratic state representative from Houston and one of Texas’ premier public education experts. “Historically, legislatures want to know exactly what it is that is being expected of them before they’ll take on these hard choices.

“Members like to say, ‘I wouldn’t have done this but the court required it,’ ” Hochberg added.

Statements made by incoming leaders in response to Dietz’s ruling seemed to support Hochberg’s predictions. While many Democrats hailed the ruling and urged lawmakers to address the issue immediately when the Legislature convenes in January, Republicans in leadership positions were less eager to promise action addressing the deficiencies identified in Dietz’s ruling.

“It is our job in the Legislature to develop the next education budget, regardless of what happens in the next phase of the legal process, and to address problems in education that go well beyond dollars and cents,” said Jane Nelson, R-Flower Mound, the incoming chair of the powerful Senate Finance Committee.

“As a former teacher, I believe in the power of education. Our budget will prioritize education and prepare our students to succeed in today’s workforce,” Nelson said. She did not take a specific stance on Dietz’s ruling.

She didn’t say much of anything, really. Hochberg is exactly right. The Lege will do what the court tells it to do, more or less. They’ve been told multiple times and still haven’t gotten it right, but I suppose hope springs eternal. The most accurate way to characterize this is that the Lege will do the least they think they have to do in order to comply. Certainly, if they are forced to find more funding for public education, they’ll do the least they can do to clear the bar. It’s hard to believe we won’t be back here again some day.

As for when the Lege gets to work on this, it depends on the Attorney General.

The school finance case could take any number of paths in the courts.

In one scenario, the Legislature takes some action next session – allocating more money to public education, for example – before the Supreme Court hears arguments. This could make the entire case moot, or it could prompt the justices to kick it back to the district court level. By that time, Dietz will have retired. His spot on the bench will be filled by Karin Crump, a Democrat who ran unopposed.

If the Legislature fails to act, or delays, the Supreme Court will take up the case. Arguments would not be heard until late spring or summer of next year at the earliest, just as the Legislature adjourns.

This could signal the need for a special session, either to address just education funding, or even the budget in general. Education accounts for 37 percent of all state funds.

A less likely, but still possible, outcome is that Abbott’s replacement in the attorney general’s office decides not to advance the case.

Sam Houston, the Democratic underdog in the race, said Thursday the ruling was further evidence of Texas’ flawed public education funding model. Signaling he might choose to end the appeal, he added, “School finance issues need to be resolved by the Legislature, not at the courthouse.”

The Lege isn’t going to act without a direct order, so you can throw scenario #1 away. If Sam Houston wins, I think there’s an excellent chance he’ll drop the appeal, just as he’s promised to drop the appeal of the same sex marriage ruling. Wendy Davis has called on Greg Abbott to drop the appeal and let the Lege get to it, but just as that’s not going to happen neither would I expect it to happen if Ken Paxton gets elected, even though the story suggests he might be open to it. There’s nothing in Paxton’s record to support that hypothesis, and I can’t imagine he’d be willing to do anything Abbott wouldn’t have done. To me, the only realistic possibilities are Abbott/Paxton appeal the ruling, either straight to the Supreme Court or to the Third District Court of Appeals first, or Houston wins and drops the appeal. As long as Abbott and Paxton believe that Judge Dietz’s ruling isn’t the final say and thus they may not have to find more money for the schools, I think it gets appealed. Abbott has 30 days to file the paperwork to get it started, so we’ll know soon enough. Burka, the Observer, and the Trib have more.

On Mike McCrum and Pa Ferguson

by Charles Kuffner.

2 comments

There were two stories from Sunday about special prosecutor Mike McCrum that were worth flagging. First, here’s the Express News with an angle that I think has been underappreciated.

Mike McCrum

People who know McCrum said he is not the type to use a case to play politics. San Antonio defense attorney Patrick Hancock said McCrum is known for spelling out just the facts in court, while Alan Brown said McCrum does not care for politics and tries to steer clear of courthouse politics.

Brian Wice, who’ representing former House Majority Leader Tom DeLay, R-Sugar Land, in his appeal of money-laundering and conspiracy charges, looked askance at the indictment. But he simultaneously spoke highly of McCrum, saying he had “the utmost respect” for him.

McCrum, a former assistant U.S. attorney, was considered the frontrunner for a presidential appointment to be the U.S. attorney in the San Antonio-based Western District of Texas, which includes Austin, Waco and El Paso. But he withdrew his name from consideration in October 2010 after more than a year of waiting to be officially nominated by the White House, saying he had to get on with his career.

“I have not been able to take any cases for the past six to nine months, and as a result my practice has dwindled to almost nothing,” he told the San Antonio Express-News then.

At the time, he had the support of the state’s Democratic congressional delegation and both Republican senators, in addition to many local attorneys.

“I heard he was a hands-on kind of guy, kick the tires and get down in the weeds,” former Assistant U.S. Attorney Glenn MacTaggart told the Express-News when McCrum was being considered. “He pushed the proper due diligence in order to investigate and determine whether an indictment was justified.”

[…]

One of McCrum’s first jobs as an attorney was at the firm then known at Davis & Cedillo. Ricardo Cedillo described McCrum as “one of the best associates” he had ever hired, echoing others’ comments about McCrum’s thoroughness and analytical skills.

“He had street smarts as well as legal knowledge,” Cedillo said while McCrum was under consideration for the U.S. attorney position. “That’s a very rare combination in young lawyers. That goes to who he is and where he’s from.”

McCrum’s clients as a defense attorney have included former NFL star-turned-drug trafficker Sam Hurd; Dr. Calvin Day, who is awaiting a new trial after McCrum successfully lobbied to have his jury conviction for sexual assault of a patient thrown out; fellow lawyer Mikal Watts, a Democratic Party stalwart who has hosted President Barack Obama at his home; and Mark Gudanowski, the former driver for District Attorney Susan Reed accused — and acquitted — of illegally selling Southwest Airlines vouchers.

We were briefly introduced to Mike McCrum when he was named special prosecutor for this case, but that was much more cursory. What this story reminds us is that McCrum isn’t just a prosecutor. He’s also been a very successful defense attorney. As we saw yesterday, there are a lot of quotable defense attorneys out there poking holes in the indictments. One would think – at least, I would think – that someone like Mike McCrum, who has been on that side of the courtroom, would have analyzed this case and the evidence from that perspective as well, to better prepare himself for the courtroom battles to come. It’s certainly possible McCrum has missed the mark or gotten caught up in the job and focused too much on an end result, but I wouldn’t count on that. If he’s as diligent and as smart as people say he is, he’s got to have considered all this.

The DMN takes a more political angle.

Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.

Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.

“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”

Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.

“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.

“He’s very fair-minded and balanced, the kind of guy who would prosecute something only if he thinks the evidence is there,” Reamey said. “When I think of overzealous prosecution, he is not someone who comes to my mind.”

[…]

According to campaign finance records, McCrum has made only a handful of contributions to state and federal candidates.

He gave $300 in 2007 to Steve Hilbig, a Republican judge on the state appeals court based in San Antonio.

Also that year, McCrum donated $500 to U.S. Rep. Charlie Gonzalez, a San Antonio Democrat.

The next year, he contributed $500 to Republican Robert “Bert” Richardson, a Bexar County district court judge. Richardson assigned McCrum as the special prosecutor after a watchdog group filed its abuse-of-office complaint against Perry.

A little history here. When the complaint was filed by Texans for Public Justice against Perry, Travis County DA Rosemary Lehmberg recused herself from investigating it. That sent the complaint to the district courts of Travis County, where it was assigned to Judge Julie Kocurekof the 390th District Court. Kocurekof, a Democrat, recused herself as well. That kicked the case to the 3rd Circuit Court of Appeals, where presiding Judge Billy Ray Stubblefield got it. Stubblefield then assigned the case to Senior Judge Bert Richardson, who I presume will be the judge from here on out barring anything weird. Richardson named McCrum as special prosecutor, since the Travis County DA had taken itself out, and the rest you know.

Well, actually, there’s one more thing you might not know. Both Judge Stubblefield of the 3rd Court of Appeals, and Judge Richardson, who is a Senior Judge after losing election in 2008, were originally appointed to their positions. By Rick Perry. Quite the liberal conspiracy working against him there, no?

One more piece of history, from the Trib. Rick Perry isn’t the first Texas Governor to run afoul of the law in this way.

A Travis County grand jury’s allegations on Friday that Gov. Rick Perry improperly threatened to veto funding for the state’s anti-corruption prosecutors marked the first time since 1917 that a Texas governor was indicted. That year, Gov. Jim “Pa” Ferguson was indicted by a Travis County grand jury on allegations that he meddled with the state’s flagship university amid a squabble with its board of regents.

In Ferguson’s case, he vetoed $1.8 million over two years (about $34 million in today’s dollars) for the University of Texas; in Perry’s case, it was $7.5 million for the Public Integrity Unit, which is overseen by Travis County District Attorney Rosemary Lehmberg. After Lehmberg pleaded guilty to drunken driving, Perry threatened to pull state funding from her office unless she resigned.

Ferguson’s indictment led to impeachment by state legislators in September 1917. That’s highly unlikely for Perry, a lame duck with an overwhelmingly conservative Legislature who is facing felony charges for his threat — one he made good on — to veto funding for of the unit charged with investigating public offices in Texas, including that of the governor.

But there are striking similarities. Ferguson, a Bell County native who worked as a rancher and a banker before becoming governor in 1914, got in trouble for trying to remove public officials who had opposed him. Two of the articles of impeachment that removed Ferguson from office accused him of having “invaded the constitutional powers of the [University of Texas] board of regents” and “sought to remove regents contrary to law,” wrote Cortez Ewing in the journal Political Science Quarterly in 1933. Ferguson’s veto of the university’s entire legislative appropriation also prompted outrage, though he was not impeached on that point.

And the regents were goading a legislative investigation into embezzlement of state funds and improper campaign finance by Ferguson, while today, some believe Perry wanted the Public Integrity Unit gone because it was investigating possible corruption of state programs — including the Cancer Prevention and Research Institute of Texas. Perry has adamantly denied that, saying that he was entirely motivated by Lehmberg’s bad behavior.

I wouldn’t read too much into any of that, but it’s an interesting piece of history. We may as well learn as much as we can about this case, because for sure they’ll be teaching it to our kids and grandkids some day.

DeLay gets his day before the CCA

by Charles Kuffner.

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Looks like he might have had a pretty good day, too.

Who are YOU to judge me?

Oral arguments in Tom DeLay’s decadelong legal fight with the Travis County District Attorney’s office heated up Wednesday as Republican judges on the Texas Court of Criminal Appeals questioned whether prosecutors could prove the former House majority leader illegally funneled corporate money to state candidates.

[…]

Presiding Judge Sharon Keller, one of the panel’s eight Republicans, was outspokenly doubtful about prosecutors’ ability to prove DeLay and his associates illegally funneled $190,000 in corporate donations to seven GOP candidates for the state Legislature in 2002.

The money was donated to DeLay’s state political action committee, Texans for a Republican Majority, and made its way into a Republican National Committee corporate donations account. Checks totaling the same amount then were distributed from a different RNC account to the state candidates.

[Travis County Assistant District Attorney Holly] Taylor said the scheme is illegal under state law, which bans corporate contributions to campaigns, but Keller and her colleagues were less sure.

“It seems like your theory of prosecution has some internal inconsistencies,” Keller said, referring to the money laundering argument. Judge Elsa Alcala also asked about the unprecedented nature of the state’s case, saying the original intent of the money laundering law was to target drug trafficking: “When I see this case, my first reaction is, ‘What are you talking about?’ ”

“The first time something happens, it’s still a crime,” Taylor responded.

Seriously, when was the last time Sharon effing Keller expressed that kind of skepticism in any prosecutor’s case? It’s like Dave Wilson not being a flaming homophobe – it’s just not in her nature. I have never bought into the idea that the CCA would be pro-Republican on DeLay’s behalf, but if this is how they actually go it will be hard to dismiss that idea. We won’t know till 2015 on that, so we’ll see. What do you think, am I reading too much into this? Texas Politics and Texas Public Radio have more.

Today’s the day for Tom DeLay at the CCA

by Charles Kuffner.

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Apologies for the excessive alliteration. I got on a roll and couldn’t stop.

Who are YOU to judge me?

DeLay’s appellate lawyer, Brian Wice of Houston, and Travis County prosecutor Holly Taylor will argue Wednesday before the state’s highest criminal court in Austin over whether the jury’s verdict should be reinstated or if DeLay will be exonerated.

A victory by DeLay ends the marathon case, but if prosecutors prevail with the Texas Court of Criminal Appeals, Wice says he has another point to appeal — that the $190,000 transaction for which he was convicted could not have been money laundering because a check, not cash, was used. The 3rd Court panel did not address that point in its opinion last fall.

[…]

In her appeal, Taylor argued for the state that the two Republican judges used “selected” evidence to second-guess the jury improperly. Wice, meanwhile, countered that “the state’s unprecedented gambit (to create a criminal offense) was correctly unmasked by the court of appeals.”

Over the years, both sides have taken turns complaining about the partisanship surrounding the case, often getting judges removed on allegations of political bias. DeLay also objected to being tried in Travis County, citing its Democratic leanings.

Given that backdrop, DeLay’s lawyers would now seem to have the advantage of arguing before a court with eight Republican judges and one Democrat, who was elected as a Republican before switching parties.

But the state’s highest criminal court also ordered DeLay’s trail, criticizing a 3rd Court panel for trying to short-circuit the legal process several years ago by ruling prematurely on DeLay’s cash vs. check defense during pre-trial arguments.

In their briefs for Wednesday’s oral arguments, Taylor recounted evidence she thought the 3rd Court ignored and Wice criticized prosecutors’ handling of the case, including a last-minute indictment rushed through a grand jury in one day after three years of investigation.

See here and here for the most recent entries in this long-running saga. I’ve said before that to whatever extent there’s a pro-Republican lean on the CCA, I think their pro-prosecution urge outweighs it. Be that as it may, if the CCA rules against DeLay I don’t think he’s going to get much joy re-litigating the “checks aren’t cash” argument. The CCA addressed that before, though apparently not in a “that’s all there is, there ain’t no more” fashion. One way or the other, we are approaching closure on this.

TPJ files amicus brief in DeLay appeal

by Charles Kuffner.

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It’s almost time for Tom DeLay to go to court again.

Who are YOU to judge me?

A government-watchdog group on Tuesday petitioned the state’s highest criminal court to reinstate the money-laundering and conspiracy convictions of former U.S. House Majority Leader Tom Delay, moving to join a brewing legal fight before a scheduled June 18 court hearing in the case.

DeLay, a former Sugar Land Republican, was convicted in November 2010 by a Travis County jury of raising almost $700,000 in corporate contributions through Texans for a Republican Majority, a political action committee, and using those funds to help Republicans win a majority in the Texas House in 2003.

Corporate contributions to Texas politicans have been barred since 1903, and prosecutors alleged that DeLay directed a criminal conspiracy to illegally launder corporate funds into Texas House races, an argument that watchdog group Texans for Public Justice said is correct and should result in reinstatement of DeLay’s conviction. The group filed an amicus brief Tuesday with the state Court of Criminal Appeals.

[…]

Calling the dismissal of DeLay’s conviction a “partisan, result-oriented ruling” by the appeals court, Craig McDonald, executive director of the watchdog group. “Facts show that DeLay and his co-conspirators knowingly broke Texas election laws.”

The amicus brief is here, and TPJ’s press release is here. It should be noted that DeLay’s legal team succeeded in getting one of the Democratic judges removed from the panel; the remaining Democratic judge dissented on the opinion to overturn DeLay’s convictions. As I’ve noted before, it will be interesting to see if the CCA’s notoriously pro-prosecution biases overwhelm any partisan sympathy they may have for DeLay. I will also note that it was eleven months between arguments before the Third Court of Appeals and their ruling, so I wouldn’t expect a final decision any time soon.

It was a bad week for the strip clubs

by Charles Kuffner.

4 comments

Another adverse court ruling.

A state appeals court on Friday upheld the legality of the state’s so-called “pole tax” on nude entertainment clubs, the latest decision in a six-year battle by Texas officials to collect the $5-per-customer fee from more than 200 strip clubs.

In a 16-page decision, the 3rd Court of Appeals overruled a challenge by the Texas Entertainment Association contending the law violated the Texas Constitution because it is an occupation tax from which 25 percent of the collections must go to public schools. The appeals court ruled that it is an excise tax that could be spent however the Legislature wishes.

[…]

In its decision, written by Justice Scott Field, the appeals court rejected the clubs’ argument that the fee was an occupation tax and, as such, was unconstitutional because it did not allocate a quarter of the revenue collected to public schools as mandated in the Texas Constitution.

The court also dismissed arguments that the tax violated the state Constitution’s “equal and uniform” requirement by covering only nude-entertainment business where there is an audience of two or more, and not other adult businesses, such as lingerie modeling studios or adult movie arcades that cater to single customers.

“We conclude that the sexually oriented business tax’s classification is not unreasonable because limiting the tax’s applicability to businesses with audiences of two or more reasonably relates to adverse secondary effects that the tax is intended to address,” the ruling states. “Given that the (Texas) supreme court has already concluded that the sexually oriented business tax does not violate the First Amendment of the United States Constitution, we likewise conclude that it does not violate the free speech clause of the Texas Constitution.”

The decision notes that the Texas Supreme Court upheld the fee because it “was imposed to address the adverse secondary effects of combining nude entertainment with alcohol consumption, both by discouraging the activity through higher taxation and by generating revenue for programs designed to address the social harms that result.”

Businesses offering adult entertainment to one customer at a time do not have the same adverse effects, it states.

First the Comptroller’s demand for payment, now this. The original suit was filed on First Amendment grounds but lost at the Supreme Court. This was a different tack, but so far not any more successful. I’m sure this will be appealed to the Supreme Court, so maybe by 2016 we’ll have a final resolution, assuming the clubs don’t have some other argument in their back pocket in the event this one fails. The Trib has more.

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Polling Texas 2016
Beatty, Jun 22: Trump 37, Clinton 30 UT/TTP, Jun 27: Trump 41, Clinton 33 KTVT/Dixie, Aug 11: Trump 46, Clinton 35 PPP, Aug 16: Trump 44, Clinton 38 WaPo-SurveyMonkey, Sep 6: Clinton 46, Trump 45 ECPS, Sep 14: Trump 42, Clinton 36 Texas Lyceum, Sep 15: Trump 39, Clinton 32 YouGov, Oct 3: Trump 50,1, Clinton 41.5 KTVT/Dixie, Oct 5: Trump 45, Clinton 38 WFAA/SurveyUSA, Oct 14: Trump 47, Clinton 43 UH Hobby Center, Oct 17: Trump 41, Clinton 38 WaPo/SurveyMonkey, Oct 17: Trump 48, Clinton 46 CBS/YouGov, Oct 23: Trump 46, Clinton 43 Crosswind/Statesman, Oct 27: Trump 45, Clinton 38 UT/TT, Oct 27: Trump 45, Clinton 42 KTVT/Dixie Strategies, Nov 2: Trump 52, Clinton 39 NBC/WSJ/Marist, Nov 3: Trump 49, Clinton 40 ECPS, Nov 3: Trump 49, Clinton 34 YouGov, Nov 5: Trump 50,3, Clinton 42.4