Today, the Texas Court of Criminal Appeals held that the prosecution of former Texas Governor Rick Perry was as much an “oops” as his own slip that famously felled his 2012 Presidential campaign. The court remanded the case to the district court with orders to dismiss the two-count indictment, charging him for the threat and actual veto of state funds for a district attorney who had been arrested for drunk driving but refused to resign. We said it back in 2014 and say it again now: Governor Perry should not have been charged. Or, as better articulated by Judge David Newell’s concurring opinion in this appeal:
Come at the king, you best not miss.
– Omar Little, The Wire (HBO 2002).
Indeed, the indictment was a miss from the start (as detailed in the amicus brief of constitutional and criminal law scholars filed in the Court of Criminal Appeals).
Count I alleged that the vetoing the funds constituted “abuse of official capacity” under Texas Penal Code § 39.02. Count II alleged that the threat to veto constituted a “coercion of a public servant” pursuant to Texas Penal Code § 36.03. The Court of Criminal Appeals rejected the government’s arguments on both counts.
The court concluded that the legislature could not directly or indirectly limit the governor’s veto power. Because it was the veto that was the alleged illegal act, the prosecution violated the separation of powers. In a footnote, the court distinguished the indictment with a hypothetical bribery prosecution in which a governor accepted money in exchange for the veto. In such a case, “the illegal conduct is not the veto; it is the agreement to take money in exchange for the promise.” Slip op. at 24 n.96.
With respect to the threat and the “coercion of a public servant,” the court concluded that the definition of “coercion” as “a threat, however communicated . . . to take or withhold action as a public servant” is unconstitutionally overbroad in violation of the First Amendment. Id. at 51 (citing Tex. Penal Code § 1.07(a)(9)(F)).
When we first called the indictment a “weak case that shouldn’t have been charged,” we lamented that “it is often a very long road to reveal the truth.” The appeal tells us that the wait was not necessarily for the “truth” – the facts were undisputed – but the law. Not without dissent (actually, two), the Court of Criminal Appeals nonetheless rightfully applied the law and ordered the dismissal of the indictment.