The remaining count of the Rick Perry prosecution, and how it unconstitutionally intrudes on the Governor's veto power

|The Volokh Conspiracy |

epa04357042 Texas Governor Rick Perry makes a statement regarding his grand jury indictment on charges of abuse of power at the Texas state capitol, in Austin, Texas, USA, 16 August 2014. Texas Governor Rick Perry lashed out at an indictment against him for abuse of power, calling it a political ploy against him. The Republican governor, who is seen as a possible candidate for president in 2016, was indicted on 15 August on two counts of abuse of power for allegedly threatening to veto funding for a district attorney's office in a bid to force her to resign. 'I am confident that we will ultimately prevail, that this farce of a prosecution will be revealed for what it is, and those responsible will be held accountable,' Perry told a press conference in Texas state capital Austin. EPA/ASHLEY LANDIS
Texas Governor Rick Perry makes a statement regarding his grand jury indictment on charges of abuse of power at the Texas state capitol, in Austin in August 2014. (Ashley Landis/EPA)

As I mentioned, a Texas Court of Appeals panel has just held that Count II in the Rick Perry prosecution had to be dismissed: the "coercion" statute on which the count was based, the court held, is facially unconstitutional. But the court held that it lacked the authority to dismiss Count I, because that dealt not with a facial challenge ("the statute is facially invalid") but with an as-applied challenge ("the statute may be just fine in many situations, but it can't be constitutionally applied on these facts").

Texas criminal procedure rules, the court concluded, don't allow for pretrial appeals of such questions; any such claim would have to be brought after trial. I expect Gov. Perry to petition the Texas Court of Criminal Appeals (Texas's supreme court for criminal matters) to review the issue, and decide whether pretrial appeals should be allowed in cases like his. But I don't know enough about Texas procedure to opine on whether such an argument is likely to succeed.

Still, I thought I'd pass along some substantive thoughts on Count I, from the amicus brief filed on behalf of various professors, former prosecutors and former judges; I'm co-counsel on that brief, but it is quite consistent with views that I expressed before taking on my role as a lawyer in the case.

Count I of the indictment essentially alleges that Governor Perry violated Section 39.02(a)(2) of the Texas Penal Code when he vetoed a bill that would have funded the continued operation of the Public Integrity Unit of the Travis County District Attorney's office. The prosecution alleges that Governor Perry exercised this veto "with intent to harm another"—namely, District Attorney Rosemary Lehmberg and the Public Integrity Unit.

But this count suffers from two independently fatal flaws: (1) the legislature is not allowed to criminalize the governor's exercise of his veto power, and (2) Governor Perry is entitled to absolute legislative immunity for any exercise of his veto power.

A. Count I Violates the Constitutional Doctrine of Separation of Powers, Because the Legislature Cannot Criminalize the Exercise of a Governor's Constitutional Veto Power.

1. The Texas Constitution vests in the governor the absolute authority to veto appropriations bills. See Tex. Const. art. IV, § 14. The governor is entitled to decide which laws he "approv[es]" and which he disapproves—without any constraint from the legislature, or from special prosecutors. Id.

The Texas Constitution also includes an explicit separation of powers provision that sets forth the structure of Texas government:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. Tex. Const. art. II, § 1.

This express provision "reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government." Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex. Crim. App. 1990). "So important is this division of governmental power that it was provided for in the first section of the first article of the Constitution of the Republic of Texas, and alone it constituted article 2 of each succeeding Constitution." Langever v. Miller, 76 S.W.2d 1025, 1035 (Tex. 1934).

For these reasons, courts have long been vigilant about preventing any attempt by one branch of the government to encroach on the authority constitutionally secured to another branch. Accordingly, "any attempt by one department of government to interfere with the powers of another is null and void." Meshell v. State, 739 S.W.2d 246, 252 (Tex. Crim. App. 1987). The separation of powers provision is violated "when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." Ex Parte Gill, 413 S.W.3d 425, 431-32 (Tex. Crim. App. 2013).

Yet the prosecution today claims that Section 39.02(a)(2) criminalizes Governor Perry's veto of an appropriations bill. If that were true, then the statute would be plainly unconstitutional. The legislature cannot make it a crime for the governor to veto appropriation bills, because that would obviously "interfere[] with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers." Id. Any such outlawing of the use of the veto power would unilaterally increase the legislature's own power, by eviscerating the governor's power to veto legislation he does not "approve" of—even though, under the Texas Constitution, every legislative bill is subject to veto. The legislature cannot enact a statute that constrains that gubernatorial power, thereby enlarging its own.

Nor would the analysis be different if Governor Perry vetoed a bill "with intent to harm another." The Texas Constitution places no limits on the governor's exclusive power to decide which bills to give his "approval." So the legislature cannot empower the judiciary to pass judgment on the governor's intent behind a veto and chill the governor's exercise of his veto power through the prospect of criminal punishment.

2. There are, of course, constitutional limits on the governor's veto power. The legislature can override a governor's veto with a two-thirds vote. The legislature can threaten not to enact laws that the governor supports if he continues to exercise his veto in a manner with which it disagrees. The legislature even has the power to impeach a governor for a veto. And of course, the people of this state could always vote a governor out of office because of a veto.

The legislature can also criminalize acts of political corruption, such as the acceptance of a bribe in exchange for a veto. Notably, however, the illegal act in that circumstance is the acceptance of the bribe—not the veto itself. So a bribery prosecution would not trigger any of the separation of powers issues that plague this prosecution. See, e.g., United States v. Brewster, 408 U.S. 501, 526 (1972) ("There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.").

None of these constitutionally permissible acts authorizes criminal prosecution for the governor's exercise of his constitutionally prescribed veto power.

3. It is not necessary to read Section 39.02(a)(2) in this clearly unconstitutional manner. There is no indication that the legislature intended for the statute to be so read. This reading is the prosecution's own. This court can, and should, avoid this constitutional controversy entirely, by declaring that the statute simply does not criminalize Governor Perry's conduct. As explained in further detail in the governor's application for a writ of habeas corpus and motion to quash the indictment, a governor simply does not have "custody or possession" of a sum of money that starts out in the Texas State Treasury, ends up in the Texas State Treasury, and remains throughout in the Texas State Treasury. Those funds are always in the custody of the comptroller, not the governor.

Not only would this be the most natural reading of the statutory text, but it would also avoid the constitutional infirmities raised by prosecuting Governor Perry for his veto. See, e.g., Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) ("We presume that when enacting legislation, the Legislature intends to comply with the state and federal constitutions, and we are obligated to avoid constitutional problems if possible.") (quotations and citation omitted).

* * * The Constitution permits only two options: either (1) read Section 39.02(a)(2) the way the prosecution does, and then declare the statute unconstitutional, because it violates the separation of powers doctrine decreed in the Texas Constitution; or (2) avoid the constitutional issue altogether, by interpreting the statute not to apply to a governor's veto of an appropriations bill. Either way, Count I must be dismissed.

For more on why Section 39.02(a)(2) doesn't apply here, as a matter of its plain text, see this post. For more on why the prosecution violates legislative immunity, which governors possess when they are exercising their veto power (a power that is treated as a form of legislative power, even though it's in the hands of the executive), see this post.