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.
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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.
One of my concerns with McCrum’s reckless prosecution was his insistence that public employees don’t have the First Amendment protection of Freedom of Speech. Beginning on page 63, the appeals court judges spend eight pages explaining that public employees are indeed protected by the First Amendment. This opinion protects freedom from an overzealous prosecutor.