Texas Court of Appeals rejects one count of prosecutor's indictment of Rick Perry, holds that it can't consider challenge to other count

Then-Texas Gov. Rick Perry makes a statement at the state capitol building in Austin on Aug. 16, 2014, concerning his indictment on charges of coercion of a public servant and abuse of his official capacity. (The Daily Texan, Mengwen Cao/The Daily Texan/Associated Press)

Today, a Texas Court of Appeals panel rejected Count II of the prosecutor's indictment of Rick Perry and held that procedural reasons bar it from considering the challenge to count I. I expect both sides to appeal to Texas's highest criminal court, the Texas Court of Criminal Appeals. (Disclosure: As I noted before, I am co-counsel on an amicus brief on behalf of various professors, former prosecutors and former judges in the case, supporting the dismissal of both counts. The brief, however, is quite consistent with views that I expressed before taking on my role as a lawyer in the case.)

Here's what happened on Count II (I have a separate post on Count I). Travis County District Attorney Rosemary Lehmberg was convicted of drunk driving, but refused to resign. Then-governor Perry threatened to veto $7.5 million in appropriations for the public integrity unit in the Travis County DA's office unless the DA resigned. That, the prosecutor argued, violated Texas Penal Code § 36.03(a)(1), which in relevant part (and combined with some subsections of other statutory provisions) makes it a crime for a person to:

1. "by means of coercion," including "a threat … to take or withhold action as a public servant or to cause a public servant to take or withhold action,"
2. "attempt to influence a public servant in a specific exercise of his official power or a specific performance of his official duty,"
3. with an exception for when "the person who … attempts to influence the public servant is a member of the governing body of a governmental entity, and … the action that influences or attempts to influence the public servant is an official action [including deliberations by the governing body of a governmental entity] taken by the member of the governing body."

But the Court of Appeals held that this particular portion of the statute was unconstitutionally over-broad, in violation of the First Amendment—even though the provision covers some constitutionally unprotected threats, it also covers plenty of constitutionally protected speech:

[Perry argues that § 36.03(a)(1)] criminalizes a "virtually endless" array of threats that are in the nature of "ordinary give and take" between and among the public servants who are not excepted by subsection (c). He posits hypothetical examples that include:

• "[A] manager could not threaten to fire or demote a government employee for poor performance."
• "A judge could not threaten to sanction an attorney for the State, to declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed to contain certain information."
• "An inspector general could not threaten to investigate an agency's financial dealings."
• "A prosecutor could not threaten to bring charges against another public servant."
• "A [public] university administrator could not threaten to withdraw funding from a professor's research program."
• "A public defender could not threaten to file a motion for suppression of evidence to secure a better plea bargain for his client."

At least to the extent each hypothetical threat would be aimed at bringing about some specific action on the part of another public servant, we agree that Perry's illustrations would indeed come within section 36.03(a)(1)'s proscription, as written. Each example would, in terms of the statutory language, represent a "public servant" (under the Penal Code's broad definition) seeking "by means of coercion" (defined, again, as a "threat" to "take or withhold action as a public servant" that, while "harmful" or detrimental to another, need not be unlawful) to "influence[] or attempt[] to influence" (i.e., bring about) some "specific exercise" or "specific performance" of another public servant's duties or powers (which also need not be unlawful, nor beyond the first public servant's powers to demand or require).

And it is not difficult to think of other similar examples. Among them, it has occurred to the members of this panel that unless appellate court justices can shoehorn themselves into subsection (c)'s exception, section 36.03(a)(1) would seemingly put at risk that time-honored practice whereby one justice will seek changes to another justice's draft majority opinion by threatening to write a dissent exposing flaws in the other's legal reasoning. Similar concerns would arise regarding the standard letter our Clerk issues to prompt action whenever briefs or records are late, in which he warns of imminent dismissal if the deficiency is not promptly rectified, at least when the party in interest is a government entity or official.

One's view of section 36.03(a)(1) is further informed by considering its implications as it incorporates a portion of paragraph (F) that Perry has not challenged in this case—a threat "to cause a public servant to take or withhold action." Within the literal scope of this prohibition would be ordinary citizens who make credible threats to obtain legislative or judicial remedies as a means of prompting some action by a local government official, not to mention members of the media who might have to resort to similar means of persuasion in order to overcome governmental foot-dragging on Public Information Act requests. We mention this not to plant ideas in the minds of local prosecutors across Texas who may be inclined to protect their fellow public servants, but to provide stark demonstration that section 36.03(a)(1) and the "coercion" definition it incorporates were not crafted with the sort of precision necessary to avoid First Amendment problems when, as with these statutes, government purports to criminalize speech.

The court stressed that the examples it gave did not fall within any existing First Amendment exception. The court also rejected the prosecution's argument that the speech restriction could be upheld on the grounds that it was narrowly tailored to a compelling "interest in intervening when public officials try to leverage the powers of government for their personal or political whims," or compelling interests in protecting "the 'integrity' of Texas's government institutions" or "protecting public servants from "interference" in the performance of their duties." The statutory prohibitions, which covered the examples that the court quoted, were far too broad to be constitutional.

And the court rejected the prosecutor's argument that state officials had reduced First Amendment rights, especially when speaking in their official capacity (under cases such as Garcetti v. Ceballos). The First Amendment, the court noted, doesn't bar government managers from firing or otherwise disciplining subordinates for the subordinates' official-capacity speech. But this doesn't give the government the extra power to criminally prosecute government employees (whether high-level or low-level) for those employees' official-capacity speech.

Finally, the court noted this (some paragraph breaks added):

The State downplays the possibility that any perceived overbreadth of section 36.03(a)(1) and paragraph (F) gives rise to any chilling effect on the speech of Texas's public servants, or at least has until now. It emphasizes that the statutes have been on the books "for over four decades" and that there has not been (aside from this case) any evident outcry or concern regarding their potential reach.

We must acknowledge being unaware of any widespread incidence of prosecutors pursuing "coercion of a public servant" charges for the likes of government managers who threaten to demote poor-performing employees or public defenders who threaten to file suppression motions, and it seems that the longstanding practice of appellate judges threatening to write dissents to prompt changes in majority opinions remains as vibrant as ever. But then again, section 36.03(a)(1) has apparently been rarely utilized—at least until now.

Perhaps more importantly, for the past quarter century one of those few appellate decisions has been State v. Hanson [a 1990 appellate case that held that an earlier version of the statute violated the First Amendment], and its recognition of First Amendment constraints on the enforcement of section 36.03(a)(1) and paragraph (F) would have had its own chilling effect on prosecutorial zeal. Nor have Hanson's limits been seriously questioned since—at least until now.

Nor is it any answer to overbreadth concerns to say that prosecutors have heretofore not exercised their discretion to pursue charges under section 36.03(a)(1) … as aggressively as they might have, or that we should assume they will display similar reticence in the future. The "First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige." "We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."