Indictment Against Former Texas Governor Perry Tossed Out
08/09/2015A Texas state appellate court has invalidated one of two political indictments against former Gov. Rick Perry stemming from his demand that the Austin district attorney step down following her arrest for DWI and his threat to veto legislative appropriations for the “Public Integrity” section of her office. The court actually struck down the statute defining the crime of “Coercion of Public Servant” as facially unconstitutional for criminalizing political speech.
The case against Gov. Perry was an outlandish exercise in political mischief and prosecutorial abuse from the beginning, and it is unlikely the remaining indictment will survive constitutional scrutiny. The coercion statute, § 36.03 of the Texas Penal Code, purported to proscribe any threat to take or withhold action to influence a public servant to act in a certain way. The threat could include perfectly legal conduct that could cause “harm” to the public official, including harm to the official’s political reputation. The statute thus reached a broad range of regular political conduct and effectively criminalized a substantial amount of everyday political speech, rendering the statute unconstitutional on its face. (The practice commentary authored by Mr. McColloch in the 2014-15 edition of Kinkeade & McColloch’s Texas Penal Code Annotated predicted the court’s ruling soon after the indictment was handed up in 2014.)
Gov. Perry’s capable legal team has commendably sought to derail the politically-charged indictments at an early stage, finally convincing the intermediate appellate court to address the facial constitutional infirmity upon a pre-trial writ of habeas corpus. The court exhibited skepticism toward the remaining indictment for Abuse of Official Capacity but noted that binding precedent precluded its review on a pre-trial writ because the defense sought its invalidation as unconstitutional only as applied to the governor, requiring its resolution at trial.