The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2013, Travis County (Tex.) District Attorney Rosemary Lehmberg was convicted of drunken driving, but refused to resign. Then-Gov. Rick Perry (R) threatened to veto $7.5 million in appropriations for the public integrity unit in the Travis County DA's office unless Lehmberg resigned. When Lehmberg refused to resign, Perry made good on his threat.
But Perry was then indicted for both the veto and the threat of the veto. The veto, the indictment alleged, constituted misuse of funds in the governor's custody. The threat, the indictment alleged, constituted attempted coercion of a public servant. The case eventually made its way to the Texas Court of Criminal Appeals—Texas's supreme court for criminal cases—which this morning held by a 6-to-2 vote that both charges were unconstitutional:
1. The veto charge was brought under a statute that made it a crime for a public servant to, "with intent to obtain a benefit or with intent to harm or defraud another, . . . intentionally or knowingly" "misuse government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment." But the court concluded that applying this statute to a governor's veto violated the Texas constitution's separation of powers and veto provisions:
A. "The [Texas] Constitution does not purport to impose any restriction on the [governor's] veto power based on the reason for the veto, and it does not purport to allow any other substantive limitations to be placed on the use of a veto." Therefore, "The Legislature cannot directly or indirectly limit the governor's veto power. No law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime." And other state courts were right to say that "courts may not examine the motives behind a veto or second-guess the validity of a veto."
B. The misuse-of-government-property charge might also be statutorily unsound, among other things because "there are serious questions about . . . whether the Governor could be said to exercise custody or possession of funds appropriated by the Legislature to a different government entity, and whether the Governor could be said to exercise custody or possession of funds authorized in a portion of a bill that (because of the veto) never became law." But there is no need to decide these questions, because "if the statute criminalizes the charged conduct, as the State claims, it would unconstitutionally infringe on the Governor's veto power."
C. Of course, "a governor could be prosecuted for bribery if he accepted money, or agreed to accept money, in exchange for a promise to veto certain legislation." But that is because, in a bribery case, "the illegal conduct is not the veto; it is the agreement to take money in exchange for the promise."
2. The criminal coercion charge was brought under a statute that made it a crime to,
- "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,"
- "attempt to influence a public servant in a specific exercise of his official power or a specific performance of his official duty,"
- 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."
The court concluded that this portion of the statute violated the First Amendment:
A. The coercion statute, when applied to threats to take government action as means to pressure someone into taking government action, is unconstitutionally overbroad, and thus violates the First Amendment. It covers a substantial amount of constitutional protected speech, such as:
- "a threat by the governor to veto a bill unless it is amended,"
- "a threat by the governor to veto a bill unless a different bill he favors is also passed,"
- "threat by the governor to use his veto power to wield 'the budget hammer' over a state agency to force necessary improvements,"
- "a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated,"
- "a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy,"
- "a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached," or
- "a threat by a trial judge to quash an indictment unless it is amended."
Another indication of the pervasive application that the statute has to protected expression is that the last example we listed above occurred in this very case. Concluding that quashing Count II [the coercion count] would be premature, the trial court ordered the State to amend Count II of Governor Perry's indictment. But a trial court has no authority to order the State to amend an indictment; the State has the right to stand on its indictment and appeal any dismissal that might result from refusing to amend. The trial court's order that the State amend the indictment was, in practical terms, a threat to quash Count II if it were not amended. And the trial court's exact words are of no moment because the statute refers to a threat "however communicated." The regular and frequent violation of the statute by conduct that is protected by the First Amendment suggests that the statute is substantially overbroad.
B. The coercion statute can't be upheld on the theory that the government may restrict speech by its employees. "When government seeks criminal punishment, it . . . acts as sovereign and not as employer," and thus can't take advantage of the extra latitude it has to fire or discipline employees based on their speech.
3. The case is thus, practically speaking, over. It's possible that the special prosecutor will ask the U.S. Supreme Court to review the holding that the coercion is facially unconstitutional, since that rests on the federal First Amendment. But it's extremely unlikely that the high court would want to review such a holding, or that the special prosecutor would even seek review. (The holding on the veto charge is a matter of state law, on which the Texas Court of Criminal Appeals has the final word; the interpretation of what the coercion statute actually covers is also a matter of state law, though the question whether, as interpreted, the statute violates the First Amendment is a matter of federal law.)
4. Some background details:
A. The court had to decide whether, as a matter of Texas criminal procedure, the objection to the veto charge could be considered on a pretrial writ of habeas corpus. (In Texas law, this is known as the "cognizability" question.) The court said the charge could be considered: Three judges concluded that this was because even allowing such a case to go to trial would unconstitutionally intrude on separation of powers; three others concluded that claims that a law is unconstitutional as applied should generally be considered pretrial, so long as the constitutional question doesn't turn on any contested facts. (The coercion charge could be considered because it was a facial challenge to the statute, and prior precedents had allowed such pretrial facial challenges.)
B. The court held that the exception in the coercion statute for official actions by members of government bodies (i) applies to threats of action, but (ii) doesn't apply to solo officers, such as governors or trial judges. That is what made the statute potentially cover the governor's threat, but it also made the statute unconstitutionally overbroad.
There's more in the opinions, especially in the majority, but I think these are the key parts.
5. Two judges dissented. Judge Meyers concluded that the veto challenge shouldn't be considered pretrial; the Texas constitution doesn't forbid criminalizing the exercise of a veto; the coercion statute should have been read as limited to threats "to inflict harm or loss on another's property"; so read, the coercion statute wasn't unconstitutionally overbroad; whether so read, the statute applied to the governor should be considered after trial.
Judge Johnson concluded that the governor had no power "to interfere in the affairs of a different sovereign"—here, Travis County—and that therefore criminalizing the veto in such a situation didn't violate the separation of powers, and criminalizing the threat to veto was likewise constitutional.
6. I had the honor and pleasure of cowriting (with Jim Ho and Prerak Shah at Gibson, Dunn & Crutcher) an amicus brief in the case on behalf of many professors, ex-judges and ex-prosecutors, and presenting oral argument on the coercion question. Thanks again to the amici, Floyd Abrams, Michael Barone, Ashutosh Bhagwat, Jeff Blackburn, Paul Coggins, Alan Dershowitz, Raul Gonzalez, Stephen Griffin, Dan Lowenstein, Michael McConnell, John Montford, Michael Mukasey, Ted Olson, Harriet O'Neill, Nate Persily, Ken Starr and Johnny Sutton for signing on to the brief (together with Jim Ho and me, who were signatories as well as co-counsel).