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Signings and vetoes

Greg Abbott does his thing.

Gov. Greg Abbott has vetoed 50 bills that were passed during the regular legislative session, his office announced Thursday.

That’s several more than he vetoed following the last session and the most a governor has doled out since 2007.

Abbott offered a number of common explanations for his vetoes, calling the bills unnecessary, too costly or too burdensome. He vetoed at least five bills for the same reason: The House bill’s author asked for a veto because he prefers the Senate companion.

[…]

Another measure he vetoed Thursday was Senate Bill 790, which would have kept in operation an advisory group that makes recommendations to the state on its women’s health services.

Abbott said in his veto statement that SB 790 “does nothing more than extend the expiration date of a governmental committee that has already successfully completed its mission.”

“Rather than prolong government committees beyond their expiration date, the state should focus on programs that address more clearly identifiable needs, like my call for action to address the maternal mortality rate during the special session,” Abbott said.

Janet Realini, vice chair of the women’s health advisory committee, said wrapping up the group was premature.

“There’s 1.8 million women who need publicly subsidized services, family planning in particular, and right now we’re serving less than a quarter of those, so I think we have a long way to go,” she said.

You can see a full list of the vetoed bills at the story. A couple of bills relating to topics that will be on the special session agenda were among the casualties. SB790 was probably the bill whose rejection drew the strongest reaction; Sen. Borris Miles and Rep. Donna Howard vented their frustration, with Howard noting that “at no point during the past six months had the governor’s office expressed any concerns to me over the legislation”. We knew going in that Greg Abbott was a weak leader. Everything that isn’t on the veto list will be enacted (a few will become law without Abbott’s autograph), including the Sandra Bland Act and the driverless car bill. Click over and see if anything you liked got the ax.

Texting while driving ban passes the Senate

We’ll see if this one gets signed into law.

Rep. Tom Craddick

Legislation that would create a statewide texting-while-driving ban overcame a last-ditch attempt in the Senate on Friday to gut the bill. The bill’s author, state Rep. Tom Craddick, R-Midland, said he will concur with the changes the Senate made. The measure will then head to Gov. Greg Abbott’s desk.

State Sen. Larry Taylor, R-Friendswood, filed an amendment that would’ve outlined an offense as both having been committed in the presence of an officer and having required evidence the driver was not paying attention. The current version of the bill requires either threshold rather than both.

In laying out his amendment, Taylor said that given the list of exceptions to the law that would permit drivers to use their phone — such as operating a navigational tool, reading what the driver believes to be an emergency message, and playing music — requiring more evidence is warranted.

Taylor held up his cell phone and asked his fellow members, “What am I doing? I’m actually looking at [navigational app] Waze, looking for the quickest way out of here,” he joked. “Now I’m searching the greatest hits of the 60’s. These are all things that are legal. So I have issue with that.”

Several Republican and Democratic members rose to say his change would make the law unenforceable.

“It won’t stop all behavior, but I believe when something is against the law, people will hesitate,” said state Sen. Joan Huffman, R-Houston. “And if this law saves one life, then we’ve accomplished what we set out to accomplish.”

The amendment ultimately failed with a 12-19 vote.

After amendments, state Sen. Judith Zaffirini, the bill’s Senate sponsor, took the floor.

“I have waited 10 years to make this motion: I move final passage of HB 62,” the Laredo Democrat said.

Without any further discussion, House Bill 62 passed the Senate on a 23-8 vote.

See here for the background. For what it’s worth, Sen. Huffman’s argument about the Taylor amendment – I can’t quite tell if she’s arguing for it or against it, not that it really matters – is my view of texting-while-driving bans as a whole. The act of making it illegal will almost certainly cause a significant number of people who are now texting and otherwise fooling around on their phones while driving – and in my observation there’s a lot of those people out there – to stop doing it, just because it is illegal. That to me makes it worthwhile. I strongly suspect that recent massive fatal crash that occurred while one driver was busy texting helped move a few votes. As the story notes, a Craddick texting ban bill was vetoed in 2011 by Rick Perry. Craddick says that Greg Abbott’s office has assured him this one will be signed. We’ll know within the next three weeks or so. The Chron has more.

This could be the session that a statewide texting-while-driving ban passes

I haven’t followed the progress of the filed-every-session statewide-band-on-texting-while-driving bill, but recent tragic events have put a spotlight on it and raised the probability of it actually becoming law.

Rep. Tom Craddick

Texas is one of four states that do not have a statewide ban on texting and driving. That distinction has drawn renewed attention in recent days following an accident in West Texas in which a truck driver who was texting and driving crashed into a church bus and killed 13 senior citizens.

State Rep. Tom Craddick, R-Midland, author of the texting ban bill that recently passed the House, said about the accident: “It’s a tragic situation. It’s a wasted situation.”

Craddick, who has pushed for the ban for four sessions in a row, offered condolences to the victims, their families and the church in a statement last week.

“No message or e-mail is important enough to risk injury or death while driving on our Texas roadways,” Craddick said.

If Texas had passed a texting-while-driving ban when Craddick first filed a bill creating one in 2011, Texas would have been the ninth state to pass such a law, he said. If House Bill 62 passes this session, it will be the 47th.

In 2015 and 2013, Craddick’s proposal passed the House but died in the Senate. In 2011, it traveled through both chambers only to be vetoed by Gov. Rick Perry, who said it would “micromanage the behavior of adults.”

In the 2015 session, a group of conservative senators helped kill the proposal, arguing that it could lead to unreasonable searches by police, among other concerns.

This year, both Craddick and the measure’s most vocal advocate in the Senate, Judith Zaffirini, are hopeful the measure will draw enough support in the upper chamber and Gov. Greg Abbott will sign it.

The fatal crash in question was horrible and the sort of thing that will make it difficult for someone who doesn’t like texting bans to stick to their principles. (Though some people still stand firm.) That said, the story notes that several former foes of this bill have changed their minds or at least softened their opposition over time, so perhaps Craddick’s bill had a better chance this session than I expected. I also have to think that with all of the anti-local control fervor swirling around the Capitol, the old argument that a statewide ban is a “nanny state” thing has perhaps lost some of its appeal. Funny how these things go.

One more point:

Craddick pointed to research from Alva Ferdinand, an associate professor in health policy and management at Texas A&M, who has said a statewide ban could prevent 90 deaths a year. The most effective way to curb deaths related to people texting-and-driving is to make it illegal, he said, comparing the move to the law that people in cars wear seat belts.

“No one ever thought seat belts would go into effect and now it’s just standard use to buckle up. Only once it became law did most people start to buckle up,” Craddick said.

As it happens, Texans are pretty good about buckling up, so there may be something to this. I have always believed that banning texting while driving will reduce the number of people who do it for the simple reason that a lot of us are rule-followers, and if something is illegal that’s a sufficient reason for us to not do it. Combine that with the relentless messaging campaign against texting while driving, and over time I think it will largely cease to be a problem. I’ll be very interested to see if there’s an immediate effect that can be detected if the Craddick/Zaffirini bill gets enacted.

Texting while driving ban bills filed again

We’ll see if this gets a different result.

Drivers know the risks, and in more than 95 Texas counties they live under local cell phone ordinances that ban texting while driving. But the Lone Star State remains one of four states in the country without a statewide ban on the practice.

Sen. Judith Zaffirini, D-Laredo, hopes to change that with Senate Bill 31, which would make it illegal to text unless the vehicle is stopped. Lawmakers have shot down similar attempts by Zaffirini for four sessions in a row, but she hopes the fifth time’s a charm as lawmakers head back to Austin in January.

“All we can do is try,” she said. “It’s so important because more and more Texans have become aware about the danger that’s posed by texting while driving.”

Zaffirini’s legislation mirrors efforts by Rep. Tom Craddick, the Republican former House speaker from Midland, who filed anti-texting legislation in the last three legislative sessions. He filed his fourth attempt on the first day of bill filing last week. Once again, Zaffirini and Craddick are naming their legislation after Alex Brown, a West Texas high school student who was killed in a crash while texting and driving in 2009.

It will be an uphill climb, however. The legislation was approved by the House in 2015 and 2013but halted by the Senate. Zaffirini was just one senator short of passing the bill through the Senate in 2015. It passed both chambers in 2011, but was vetoed by then-Gov. Rick Perry.

But that veto was unusual, Craddick said, because Perry was in the midst of his first presidential bid. Perry called the anti-texting bill “a government effort to micromanage the behavior of adults.”

Craddick is hopeful it won’t be vetoed by Gov. Greg Abbott if it passes both chambers during the 85th Legislature. He said he’s also heard positive remarks made by Abbott and Lt. Gov. Dan Patrick in Midland.

“(Abbott) has been pretty positive to people that have talked to him about it. I feel like he’ll sign it,” Craddick said. “(Patrick) said he thought the Senate would pass it, too.”

That would be a shift from earlier remarks made by Abbott, who said he opposed the legislationin 2014 and would veto any texting while driving legislation that made it to his desk. After the legislation made it through the House in 2015, Abbott promised to give it the “deep consideration it deserves.”

[…]

AT&T, which has been a big supporter of Craddick’s legislation, released a study that found that the four states without a statewide ban “have a roughly 17 percent higher rate of texting while driving than the 46 states with statewide bans.”

Texas A&M University’s Transportation Institute released similar studies on the state impact of texting while driving. College Station, where the university is located, recently passed its own ordinance that banned the use of a wireless device while driving.

Alva Ferdinand, a faculty member at Texas A&M’s school of public health, led a 2015 study that found a seven percent reduction in crash-related hospitalization in states that have enacted texting while driving bans. An earlier study by Ferdinand found that texting bans led to a 3 percent reduction in traffic fatalities among all age groups.

See here for a bit of background. On the one hand, Craddick’s optimism aside, Abbott has previously expressed opposition to a statewide ban, and I can’t imagine this will be any kind of priority for leadership. On the other hand, this did make it to the Governor’s desk once, and passed the House two other times, so the support is there, and if it does get to Abbott’s desk he may not feel compelled to veto it. I wouldn’t bet on this passing, but it has a chance, and that’s more than you can say for most bills.

Case against Rick Perry officially dismissed

So there you have it.

Corndogs make bad news go down easier

Justice for corndogs

The criminal case against former Gov. Rick Perry was officially dismissed on Wednesday, weeks after Texas’ highest criminal court ordered that it be dropped.

Judge Bert Richardson, who presided over the case in Travis County and now serves on the Texas Court of Criminal Appeals, signed an order dismissing the abuse of power indictment related to a 2013 veto threat.

[…]

Michael McCrum, the special prosecutor in the case, said he still believed that Perry committed a crime — and had drafted and printed copies of a motion for an amended indictment. But on Tuesday afternoon, he decided to halt the effort, saying the high court’s ruling had “muddied” the criminal statute at issue.

“It was our position, and our feeling that the law had been so muddied that it was not the just thing to do with any citizen,” he said.

See here and here for the background. The Express News adds on.

Perry’s lead lawyer, Anthony Buzbee, suggested he might take action to hold the appointed prosecutor, Michael McCrum, accountable for what he called an improper pursuit of the case. As he told the Express-News previously, Buzbee said Wednesday he would seek a transcript of grand jury proceedings.

“We feel like Mr. McCrum must have said some things that are probably actionable to that grand jury based on the people that we know testified and the facts as we know them and we’re going to explore that,” Buzbee told reporters after the hearing where Judge Bert Richardson signed the dismissal order.

Buzbee didn’t say exactly what action he’d seek but mentioned there are professional responsibility rules for lawyers.

McCrum said that the law doesn’t allow the release of grand jury transcripts because it’s important to protect the integrity of the process and ensure evidence is fairly reviewed. In the process, he took aim at Buzbee, a prominent Houston trial lawyer with a history of handing high-profile injury cases yielding big awards to clients.

“The law guards the confidentiality of those proceedings very, very much for good reason,” McCrum said.”Mr. Buzbee should know that. I don’t know – he handles snake bite and car wreck cases.”

McCrum said he didn’t decide against trying to resurrect the case until late Tuesday because he believes Perry committed a crime.

“We believe that he did. Strongly believe that,” McCrum said.

But the Texas Court of Criminal Appeals ordered the case dismissed in February and in doing so, McCrum said, “so muddied the law” that he didn’t think it would be the right thing to do.

Perry’s legal team defended his actions and Buzbee said took issue with “the stuff that came out of his (McCrum’s) mouth.”

“If the law doesn’t support a crime was committed, then you don’t prosecute, period. That’s how it works,” Buzbee sad. “This has all been a colossal waste of time.

The presiding judge in the case, Richardson, said the case “has not been a pleasant experience for me either.” He said he felt like a “punching bag.”

“I didn’t ask for this job and I didn’t want it,” he said, pointing out that he was running for the Texas Court of Criminal Appeals while presiding over the case.

I feel for Judge Richardson, who I thought did a fine job with this mess. I still think what Perry did was wrong and that he was handed a gift by the CCA, one that would not be available to other mortal defendants, but it is what it is at this point. I don’t really believe that Buzbee will pursue a complaint against McCrum, but at this point nothing would surprise me. Go ahead and start cashing in on that sweet wingnut gravy train, Rick Perry. It is your due.

Is there anything more to the Rick Perry case?

I’m dubious.

Corndogs make bad news go down easier

Corndogs are not subject to double jeopardy

The special prosecutor in the abuse-of-power case against Rick Perry said Thursday he still hasn’t decided whether to drop the matter a week after the state’s highest criminal court ordered that the indictment against the former governor be dismissed.

Special prosecutor Michael McCrum of San Antonio said he and his co-counsel, David Gonzalez, “are looking into it, because we owe that to the people of this State, and because we just witnessed an activist court create new law for a public official indicted for public corruption. So, we must take time to carefully review this.

“As expressed by the judge’s dissent filed this week, however, the (high) court’s opinion offers little, if any, direction to the district court on how to react to this new law. So, we owe it to the people to be careful and prudent as to how we respond,” McCrum said.

The Texas Court of Criminal Appeals ordered the indictment to be dismissed last week in a decision by Presiding Judge Sharon Keller, who said the charge violated the constitutional separation of powers because it stemmed from a Perry veto — an executive power.

[…]

The state had said — and lower courts agreed — that it was too early in the case to address Perry’s arguments against another charge alleging abuse of official capacity, saying according to precedent, that only could occur after evidence was heard at a trial.

That’s because Perry’s arguments in general said the abuse-of-power law was unconstitutional as applied to his circumstances.

Keller’s opinion, however, put Perry’s separation-of-powers complaint in the same special category as claims against double jeopardy — being tried twice for the same crime.

Such claims are allowed to be raised before trial “because the rights underlying those claims would be effectively undermined if not vindicated before trial,” Keller wrote.

In Perry’s case, she wrote, “When the only act that is being prosecuted is a veto, then the prosecution itself violates separation of powers.”

Her opinion ordered the indictment dismissed, an outcome joined by five other justices on the nine-member court and opposed by two.

See here for the background. McCrum hasn’t said what his next step might be, and it’s not clear to me that there is one other than finishing up the paperwork. I’m not a lawyer, though, so maybe there is still a rabbit in the hat somewhere. I think the CCA got this decision wrong, but like it or not they are the end of the line. At some point we need to accept that and move on.

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

Corndogs make bad news go down easier

Corndogs for everyone!

The state’s highest criminal court dismissed the remaining indictment against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.

[…]

A ruling earlier in the year by a state appeals court dismissed one of the two felony charges against Perry: coercion of a public servant. Perry’s lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge.

And that’s what the Texas Court of Criminal Appeals did on Wednesday. Two of the court’s nine judges dissented in that one ruling, while one abstained.

Tony Buzbee, Perry’s attorney, called the ruling a “long time coming,” and said the case should have never been brought in the first place.

“I said all along this case was foolishness and would be dismissed.”

Michael McCrum, the special prosecutor in the case, called the ruling “horrendous.”

“This is a situation where the Republican court carved out a special ruling to get Perry off the hook. It changes law for past decades and offers no laws for future courts to follow,” he said. “This is, from what I understand, a special ruling tailor-made for Rick Perry.”

Craig McDonald, executive director of Texans for Public Justice, the liberal-leaning watchdog group behind a complaint that led to the indictment, largely echoed that notion.

“A highly partisan court has handed Rick Perry a gift,” he said. “This decision is based on who Perry is rather than what he did.”

You could sort of see this coming when the case was argued last November, but it’s still a bit of a surprise. Clearly, there are limits to how pro-prosecutor this court will be, and Rick Perry joins Tom DeLay in being beneficiaries of that. I don’t feel like spending too much time thinking about it, so I will point you to the Associated Press, the AusChron, Trail Blazers, the Current, and the Press for more.

AG’s office upholds Abbott’s line item vetos

Of course it does.

NO

Gov. Greg Abbott was well within his powers when he vetoed more than $200 million in funds approved by the Texas Legislature this year, Texas Attorney General Ken Paxton’s office wrote in an opinion issued Monday.

[…]

The nonbinding opinion, written by First Assistant Attorney General Chip Roy, has the potential to shore up the governor’s power over the budget-writing process if Roy’s interpretation ultimately held up in a court of law.

“The provisions vetoed by the Governor each designate a specific purpose and the amount to be used therefor, and they are items of appropriations subject to the Governor’s veto” Roy wrote.

Abbott’s office praised the opinion Monday evening.

“The Attorney General’s opinion upholds the governor’s constitutional authority to limit unnecessary spending and ensure fiscal solvency,” spokesman John Wittman said.

The Budget Board is co-chaired by Lt. Gov. Dan Patrick and House Speaker Joe Straus, and its members include the chairs of the House Appropriations and Senate Finance committees who write the budget. Like Abbott, Patrick also publicly criticized the board’s argument — so much so that he wanted a special committee to review the budget board and other legislative agencies. Email traffic between his office, the board and the House speaker’s office made it clear that a top Patrick aide had seen the board document in advance and approved sending it to Hegar.

The vetoes covered funding for projects at several state agencies and higher education institutions.

The largest funding item at issue was for $132 million from the Texas Facilities Commission’s budget to build a state office building in San Antonio to replace the G.J. Sutton State Complex. State Rep. Trey Martinez Fischer, D-San Antonio, has previously urged the city of San Antonio to consider legally challenging Abbott’s veto, noting that the new building is expected to play a key role in the revitalization of the city’s East Side area.

See here, here, and here for the background, and here for the AG opinion. I’m not qualified to address the legal points of this, but it’s hard to escape the feeling that the fix was in. I said before that this probably needs to be resolved by the Supreme Court, so I hope the city of San Antonio takes up TMF’s call to sue over this. Perhaps a better question to ask, especially of Republicans, is if it’s such a good idea to expand the Governor’s powers in this way. It’s certainly open to debate whether this is a good idea or not, but shouldn’t we at least have that debate? I’m just saying. The Chron and Trail Blazers have more.

Perry’s day at the CCA

Now we wait to see if he comes out of this a free man or a man still under one or more indictments.

Corndogs make bad news go down easier

Never mind the corndogs, here comes the CCA

Lawyers for former Gov. Rick Perry fought Wednesday before the highest criminal court in Texas to finish off the 15-month-old indictment against him, while prosecutors argued it was far too early to let Perry off the hook.

At a critical two-hour hearing before the Texas Court of Criminal Appeals, both sides fielded a slew of hypothetical scenarios and skeptical questions as they tackled a ruling by a lower court earlier this year that dismissed one of the two felony charges against Perry, coercion of a public servant.

[…]

Two issues were at play Wednesday. One was whether the remaining charge, abuse of power, should also be thrown out, effectively ending the 15-month-old case against Perry. The other issue was whether a statute should be reinstated that was struck down by the Austin-based 3rd Court of Appeals in July when it dismissed the coercion charge.

Eight judges listened as those issues were aired out in hour-long blocks split between David Botsford, the lead attorney on Perry’s appeal, and State Prosecuting Attorney Lisa McMinn. Judge Bert Richardson, who oversaw Perry’s case as a district judge and now sits on the Court of Criminal Appeals, did not take part in the Wednesday arguments.

As Perry’s legal team has done from the get-go, Botsford cast the case as having serious implications for First Amendment rights and a chilling effect on elected officials down the line. The indictment, he said, violates three principles to which Perry was entitled as Texas’ longest-serving governor: separation of powers, free speech and legislative immunity.

“The danger of allowing a prosecutor to do this is mind-boggling,” Botsford said as he sought to convince the eight judges present for the arguments that they should immediately end the indictment.

McMinn argued more than once that the defense was “getting ahead of ourselves” with its discussion of dispensing with the indictment before trial, insisting that not all the facts are out. Botsford later countered that such disclosure is not required for the court to dismiss the remaining charge. The questions before the judges, Botsford said, are “issues of law, not issues of fact.”

McMinn specifically sought to poke holes in Botsford’s argument that Perry had legislative immunity because vetoes are legislative acts, an argument she said “strains credibility” when one considers, for example, a member of the Legislature cannot take the same action. In his remarks, Botsford argued Perry was clearly “wearing his legislative hat” and thus protected from prosecution, regardless of any threats that may have accompanied his veto.

This hearing was originally scheduled for November 4, but you know how it goes. What happens next is we wait. The CCA justices (minus Bert Richardson, who is of course the judge in the actual criminal trial) asked more questions of McMinn than of Botsford, but who knows if that means anything. The trial is on hold pending a resolution of these issues by the CCA, so one hopes we won’t have to wait too long. See Trailblazers, the Express-News, and this Trib story for more from before the hearing.

Perry appeal briefs

The latest update on the appeals before the CCA in the Rick Perry matter.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs

The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.

Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.

And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”

The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.

Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”

The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.

The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”

“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.

[…]

State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.

“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.

“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.

McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.

She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”

See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.

What is coercion, anyway?

It could be the defining legacy of Rick Perry’s career, depending on how things go in the courts.

Corndogs make bad news go down easier

This corndog has not been coerced in any way

The coercion law has been used only sparingly in Texas, according to records for the past five years, and some legal experts call it problematic.

Others, however, say its absence will be felt if the Texas Court of Criminal Appeals agrees with the decision to toss the law.

“I see it not just as a numbers game,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center.

“To the extent you are taking away tools from prosecutors to charge as well as to plea bargain, they are going to be potentially deterred from bringing more cases. And I don’t see how that’s helpful to the citizens,” Hamilton said.

[…]

The state is appealing the 3rd Court’s decision to throw out the coercion law, saying it should stay on the books to hold public officials accountable. Perry still faces a charge of abuse of official capacity, which he is appealing.

Some agree with Perry’s team and the 3rd Court that the coercion law has problems.

“When something that could fit that coercion of a public servant statute would come in, it was almost always a better fit for bribery or for obstruction or retaliation of a public servant,” said Bexar County Assistant District Attorney Patrick Ballantyne, whose job includes handling public integrity cases.

“I think that statute needs to be more narrowly tailored by the Legislature for a lot of the reasons that the 3rd Court cited,” Ballantyne said. “Basically it encompasses too much constitutionally protected speech. Stuff that may just be impassioned criticism of a public servant may technically fall under the letter of that statute. So it’s a statute that’s just too broad a sword given the constitutional issues that are at play.”

The Texas Department of Public Safety criminal history database shows 23 convictions statewide under the coercion law in the past five years. The database is dependent on reporting by local entities.

The number of cases involving public servants such as elected officials or government employees – the category of the law targeted by the 3rd Court decision – is much smaller.

DPS doesn’t capture information on whether those convicted were public officials, according to a spokesman. Ballantyne said of three Bexar County convictions, none were public servants.

[…]

Professor Geary Reamey of St. Mary’s University School of Law said effects of the 3rd Court’s ruling will be minimal, and that lawmakers can move to address problems if need be. The Legislature previously amended the law after an appellate court found constitutional problems.

“I don’t think it’s a terribly big deal. We’ll always have statutes that try to address corruption and malfeasance and misfeasance by public officials,” Reamey said. “It may very well be that the Legislature will decide that they want to come back and address the concerns.”

See here, here, and here for the background. With all due respect to Prof. Reamey, I think the odds of the Legislature acting to clarify or rewrite the existing coercion statue are slightly less than the odds are of Dan Patrick being the grand marshal at next year’s Pride parade. It would be nice if they attempted to fix it, because I do think that what Rick Perry did should fall afoul of a coercion law. It’s not the veto, it’s the threat against another elected official. If what Perry did is okay, then what’s to stop Greg Abbott from threatening to veto every bill John Whitmire authors or sponsors unless he steps down? Again, it is well within the Lege’s capacity to tailor such a law in whatever way they think is best and to aim it at whatever behavior they think should be prohibited, but given that there’s zero incentive for them to do so, and plenty of incentive for them to not do so, I hope the CCA reverses the Third Circuit and leaves the current law standing. Oral arguments are for November 4, so we’ll have some idea soon enough which way they wind is blowing.

CCA will hear appeals of Perry’s indictments

It’s on.

Corndogs make bad news go down easier

Corndogs are very appealing

The Texas Court of Criminal Appeals on Wednesday granted requests by both Perry and the Office of the State Prosecuting Attorney to determine whether the indictment against Perry should stand. The court set oral arguments for Nov. 4.

[…]

Each side has until Oct. 21 to file briefs with the Texas Court of Criminal Appeals, which said it would not consider any requests for more time. Perry’s lawyers had pressed for an even more compressed timeline, asking the court to skip oral arguments altogether.

The Wednesday ruling is the first major development in the case since Perry dropped out of the 2016 presidential race last month. He has since cited the indictment as a reason his second bid for the White House never gained traction.

See here, here, and here for the background. This is what we’ve waited for, and now we’re going to get it. Note that one of the appeals is to have the indictment that had been tossed by the Third Circuit be reinstated, so there’s risk as well as reward for Perry. He could be cleared, he could wind up back at square one, or he could remain where he is. I can’t wait to see the briefs. Trail Blazers and the Current have more.

Perry’s pathetic pity party

There isn’t a violin small enough.

Corndogs make bad news go down easier

At least the corndogs still love me

Rick Perry blamed his criminal indictment and exclusion from the Republican debate mainstage for his failed presidential bid in his first interview since suspending his presidential campaign on Friday.

“The indictment by the Travis County district attorney’s office, this drunk DA that had used this office, we think, for political purposes… it had a real corrosive effect on our ability to raise money,” he said on Fox News’ “Hannity.”

“The political opponents, they did their damage,” he later added of his legal problems.

But Perry also said his campaign effectively ended in early August, when he missed the cut for the Fox News GOP debate in Cleveland.

“The other thing that we knew had to happen was we needed to be on the main debate on Aug. 6,” he said. “We missed it by a few percentages of one point… It had a very negative impact on our fundraising through the summer.”

Poor baby. I was going to get all huffy about this, but Ross Ramsey saved me the effort:

Baloney.

Perry was indicted by a special prosecutor appointed by a Republican from San Antonio on charges related to his veto of state funding for Travis County’s public integrity unit — the part of the district attorney’s office that handles, among other things, ethical and other misdeeds of state officeholders. The then-governor had demanded the resignation of Rosemary Lehmberg, who was arrested for drunken driving and then spent a few days in jail after pleading guilty. But she didn’t resign then and didn’t quit when Perry demanded it. He vetoed the funding. The special prosecutor took that to a grand jury, which indicted Perry on charges that he misused his official powers.

The only overtly political thing about the indictments is the defendant himself, who has spent the last 30 years in one political office or another. It’s natural for him to attack his attackers, and putting it off as politics is the textbook response for someone in Perry’s position.

He goes on from there, and it’s all well deserved, but this is the point I wanted to make. Perry can whine all he wants about Rosemary Lehmberg. She had absolutely nothing to do with his current legal woes, other than being a focal point for his abuse of power. Perry may well eventually beat the rap, but he has no one but himself to blame for his predicament.

He also doesn’t understand his own party any more.

In Monday night’s interview, Perry revisited his numerous criticisms of real estate developer Donald Trump, who is leading in the GOP polls. But he also expressed frustration that public service, specifically as governor, is being overlooked on political resumes at a time when outsiders are dominating the polls.

“Donald Trump’s bullets going through Washington went through and hit people like myself, hit people like all the governors that are on the stage, for instance,” he said of his former rival. “I don’t believe this is the only profession in the world where your experience ought to be held against you.”

Dude. Remember that 2010 election? Remember how Republican politicians like you tapped into a deep vein of anger with your own voters, aimed as much at other Republican politicians as at Democrats? Your voters remember it, and they remember how politicians like you pioneered the message – since honed to a sharp edge by the likes of Ted Cruz – that Republican politicians were a spineless bunch of wimps and traitors who had sold them all out. Those same voters now say they want an outsider for President. For someone like Rick Perry to complain about that now is more than a little rich.

CCA gets ready to deal with Rick Perry

The action never stops.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs…

The next move in the felony case against Rick Perry belongs to the state’s highest criminal court, which will decide as early as mid-September whether to accept or reject two appeals in the case.

The Court of Criminal Appeals’ decision could go a long way toward determining whether Perry, indicted by a Travis County grand jury in August 2014, will be tried on a charge of misusing his power as governor, which prosecutors classified as a felony with a maximum term of life in prison, though probation is common for similar white-collar crimes.

A second felony charge, coercion of a public official, was dismissed in July when a lower appeals court declared the coercion law unconstitutional because it violated free-speech rights.

[…]

Perry has asked the Court of Criminal Appeals to dismiss the abuse of power charge, arguing that prosecutors cannot criminalize acts that are protected by the Texas Constitution — particularly freedom of speech and the separation of powers in the branches of government.

In a separate appeal, prosecutors asked the court to reinstate the law barring coercion of a public official, saying free-speech protections don’t apply “when a public servant illegally threatens to do indirectly what he does not have the power to do directly.”

The court could accept one or both appeals, or reject both. The first opportunity to make those decisions will be Monday, when judges will meet behind closed doors for the first time since the court’s new term began Sept. 1.

[…]

[State Prosecuting Attorney Lisa] McMinn has asked the Court of Criminal Appeals to schedule oral arguments in the case, but Perry’s lawyers have requested a ruling based solely on briefs, saying arguments would add an unnecessary delay.

Perry’s legal team also has a motion to dismiss the indictments that is awaiting a ruling by Richardson.

See here and here for the background. I believe this has to do with the other motion that Perry has before Judge Richardson, who as the story notes will not be a part of the appellate hearings in any way, but at this point it’s hard to say. I kind of hope that the CCA will do oral arguments and not just briefs, mostly because I think the issues involved should be fully heard if the court decides they’re worth hearing at all. We’ll know soon enough.

State files its appeal of Perry indictment dismissal

It’s official.

Corndogs make bad news go down easier

This corndog has done nothing wrong

State Prosecuting Attorney Lisa McMinn on Friday asked the state’s highest criminal court to reverse the decision by the Austin-based 3rd Court of Appeals, which tossed out the charge that Perry coerced a public servant when he tried to force Travis County District Attorney Rosemary Lehmberg out of office. The state’s involvement ratchets up scrutiny of the ruling, the first major breakthrough in the more than yearlong case for Perry, a Republican who is now running for president.

McMinn’s appeal also puts her in the company of Perry’s legal team, which has its own challenge pending before the Texas Court of Criminal Appeals. Recognizing the potential for an “unnecessary, significant expenditure of resources,” special prosecutor Michael McCrum on Monday requested a hold on all trial court proceedings while the case plays out at the Court of Criminal Appeals.

McMinn was expected to file her appeal, saying earlier this month that the state had an interest in the ruling because the 3rd Court of Appeals struck as unconstitutional a part of the Texas penal code that defines coercion.

In a filing with the Court of Criminal Appeals that became available Monday, McMinn argued the 3rd Court of Appeals “erroneously blended two different First Amendment doctrines” when it tackled the coercion issue. McMinn also suggested the court failed to take into account all the potential consequences of declaring the statute unconstitutional.

See here and here for the background. I have no idea what the CCA will do, and I have no idea how long it will take them to do it. I’ll just say that I’ll be surprised if Rick Perry’s fate in the Presidential race isn’t determined by the time they come to a decision.

Hegar punts LBB veto issue to Paxton

Duck!

NO

Describing the debate as one that “goes to the heart of separation of powers within Texas government,” Comptroller Glenn Hegar announced Wednesday that he will not authorize more than $200 million in funds approved by the Texas Legislature but vetoed by Gov. Greg Abbott as the comptroller waits for the attorney general to settle the issue.

“There are complex questions related to the governor’s vetoes, so I am seeking clarity and requesting guidance from the attorney general’s Office,” Hegar said in a statement.

[…]

For several weeks, the issue was awaiting a decision by Hegar, the state’s chief financial officer. The governor’s office strongly disagreed with the budget board, sending a 29-page memo to Hegar decrying the Legislature’s attempt to use “magic words” to block the governor’s authority.

On Wednesday, Hegar said he would not dole out the funds at issue for the time being.

“I am lapsing the funds for all items objected to by the Governor and will treat the items in question as vetoed,” Hegar said. “However, if advised otherwise, those appropriations can be made available immediately.”

[…]

Hegar’s decision comes less than a week before the start of the fiscal year on Sept 1, when the budget approved by lawmakers this year goes into effect. His 15-page request to Paxton demonstrates the complexity of the dispute. Because Abbott’s vetoes targeted budget riders rather than appropriations, Hegar seeks clarity on not only the validity of the vetoes but also what to do about the impacted agencies’ budgets if the vetoes are upheld. Should Hegar reduce each agency’s budget by the vetoed amount? And if those agencies can still get the funding, can those agencies then choose to spend some of their budgets on the projects Abbott vetoed anyway?

“This is a constitutional issue that goes to the heart of separation of powers within Texas government,” Hegar said. “I have a fiduciary duty to Texas taxpayers to ensure their hard earned dollars are spent in a manner that is consistent with the constitution of the state of Texas.”

See here and here for the background, and here for the AG opinion request. Putting aside my lack of confidence in Ken Paxton, I kind of think this one needs to be settled by the Supreme Court. The Lege can then take a crack at clarifying what the Constitution says if it wants. We’ll see how it goes.

Perry appeals his other indictment

More for the CCA to deal with.

Corndogs make bad news go down easier

Corndogs are never wrong

Lawyers for former Gov. Rick Perry are urging the Texas Court of Criminal Appeals to finish off the remaining charge in his indictment, ratcheting up their push to end the case against the presidential candidate.

The request comes a few weeks after a state appeals court dismissed one of the two counts in the case, delivering Perry’s team its first major victory in the yearlong legal saga. The remaining charge accuses Perry of abusing his power when he threatened to veto state funding for a unit of the Travis County district attorney’s office .

In a filing Tuesday, Perry’s lawyers argued that the state’s highest criminal court should toss out the rest of the indictment as a way of preventing the “judicial system from being complicit in undermining the very structure of Texas government.” Perry’s team sharply criticized how the Austin-based 3rd Court of Appeals arrived at its July decision letting the charge stand, accusing it of “drawing a wholly incorrect lesson” from previous cases and using an “erroneous framework” for assessing the charge.

Perry had one of his indictments tossed by the Third Court of Appeals, though that decision has been appealed to the CCA as well, by the Office of the State Prosecuting Attorney on the grounds that it invalidated a state law, and that’s not something a lower court should do. You can see a copy of Perry’s latest appeal in the Chron story. Both Judge Richardson – who of course now sits on the CCA and would presumably recuse himself from this hearing – and the Third Court of Appeals have rejected Perry’s claims not on their merits but on the grounds that it’s too early in the process for them to be properly evaluated. Speaking as a non-lawyer with no expertise at all in these matters, I kind of think the CCA will see it that way as well. But who knows? As they say in another context, this is why they play the game on the field. Trail Blazers has more.

Still reviewing the video on the line item vetoes

Any day now.

NO

With varying degrees of concern, a smattering of government offices and higher education institutions around the state are waiting to learn the fate of more than $200 million in funds that the governor might — or might not — have excised from the state budget.

The Legislative Budget Board is challenging several of Gov. Greg Abbott’s line-item vetoes, arguing in a July 21 letter to Comptroller Glenn Hegar the governor has no authority to veto some of the items because they were included in budget riders. The challenged vetoes include funds for public projects and money for research at colleges and universities.

“The Comptroller’s Office is reviewing the documents provided and working to determine next steps,” spokeswoman Lauren Willis said Thursday.

Abbott is pushing back against the challenge, even encouraging potential political donors to help.

“Unelected bureaucrats want to strip Governor Abbott of his line-item veto authority in order to grow government and increase spending and debt. Join our fight with a contribution!” his campaign wrote in an email Wednesday that linked to his donation page.

Abbott has repeatedly boasted he cut off $386,000 meant for the Southern Regional Education Board, a nonprofit that helps states develop education policies, that would have been used “to finance the promotion of Common Core,” a charge the Board has denied.

The largest item vetoed would have provided $132 million to build a new state office building in San Antonio to replace the G.J. Sutton State Complex.

“The renovation project was intended to play a major role in the revitalization of the East Side and would have been an enormous boon to the City of San Antonio,” state Rep. Trey Martinez Fischer, D-San Antonio, wrote in an email to the San Antonio mayor and city council last week. “I find Governor Abbott’s unprecedented and possibly unconstitutional actions deeply worrisome.”

Martinez Fischer encouraged the city to consider legally challenging Abbott’s veto if necessary.

See here for the background. It’s hilarious to see Abbott fight this by appealing to donors decrying his battle against “unelected” enemies – you know, like Joe Straus and Dan Patrick, who has been his typically weaselly self in all this – but that’s your modern Republican Party for you. In the end, the amount of money involved is a pittance, though the project in San Antonio sounds like a fairly big deal, but the spectacle is what it’s all about. It’s just a matter of posturing and trying to be the most macho, as that’s what they care about the most. See this Trib story and Burkablog for more.

Perry wins one and loses one at the appeals court

He’s still under indictment.

Corndogs make bad news go down easier

This little corndog has only one felony charge against it

Former Gov. Rick Perry must face one criminal count in the abuse-of-power case against him but another would be dismissed under a Friday ruling by an appeals court.

The ruling by a three-judge panel of the 3rd Court of Appeals in Austin gives Perry a partial victory but, at least for now, leaves the cloud of an indictment over him as he seeks the GOP nomination for president.

[…]

The former governor repeatedly failed in efforts get the indictment dismissed by state Judge Bert Richardson. Perry then took his case to the 3rd Court.

The 3rd Court agreed with Richardson that it was too early in the case to decide whether one count against Perry, charging abuse of official capacity, was unconstitutional as applied to the former governor.

But the appeals court rejected the second count, coercion of a public servant, saying that the law on which it is based violates the First Amendment.

The count remaining against Perry has been presented and described as a first-degree felony, but [defense attorney Tony] Buzbee said Friday he believes it’s a misdemeanor.

“We believe the only remaining count is a misdemeanor, and raises the question of whether the exercise of a veto can ever be illegal in the absence of bribery. The appeals court is bound by precedent, meaning that the timing of this challenge they believe to be premature. We think when we put that timing question in front of the highest criminal court we will win on that. This thing is hanging by a thread, and in my view is very near to being over,” Buzbee said.

[Special prosecutor Mike] McCrum, of San Antonio, said he believes the remaining count is a felony.

“The bottom line is that he committed a crime, and you shouldn’t have sitting governors committing crimes,” McCrum said.

A 3rd Court decision can be appealed to the Texas Court of Criminal Appeals. Richardson was elected to the Court of Criminal Appeals after the case began but would recuse himself from deciding on the appeal as part of that high court.

In his opinion, Justice Bob Pemberton of the 3rd Court of Appeals pointed out that the case at this point turns on legal issues as opposed to the headline-grabbing facts.

“This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves ‘unique circumstances’ that ‘have been widely reported, argued, and discussed by many with no standing in the case.’ Whatever the focus of such commentary, our disposition of this appeal turns on legal issues — primarily procedural in nature — that may be of somewhat less public renown,” Pemberton wrote.

A copy of the 97-page opinion is here. That post, by Robert Wilonsky, highlights the key bits of the ruling neatly:

To summarize the proceedings below, the appellant — James Richard “Rick” Perry, who until recently served as Governor of Texas — sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,” the district court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did—under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we respectfully disagree with the district court—the statute on which the “coercion of a public servant” is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.

As a consequence of these holdings, we affirm the district court’s denial of relief as to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed.

The good news for Perry, beyond the fact that one of the counts against him was dismissed – though that can be appealed by McCrum, and I expect that it will – is that the merits of his claims have not yet been decided. He can say, with some justification, that he still expects to get the charges dismissed, and he may be right. Of course, he’s still under a legal cloud, and the next step of the process could take months, by which time his Presidential campaign could be turned to dust. If he was hoping for a clean win, he didn’t get it. He’s still going to be paying those legal bills for the foreseeable future. Trail Blazers, Hair Balls, the Current, Juanita, and the Trib have more.

Abbott vetos Huffman loophole bill

Good.

Sen. Joan Huffman

Gov. Greg Abbott has vetoed legislation that would have allowed married elected officials to hide their personal financial business from the prying eyes of Texas voters, according to the author of the legislation.

The so-called spousal loophole provision had been tacked as amendments to two bills that were otherwise aimed at increasing disclosure and eliminating conflicts of interest. State Rep. Sarah Davis, R-West University Place, said she never should have accepted the 11th-hour spousal loophole amendment from state Sen. Joan Huffman, R-Houston.

As Abbott’s decision neared and Davis was asked for input, she wound up adding her voice to those calling for a veto.

“I haven’t seen a veto statement, but I have been advised by the governor’s office that both [bills] have been vetoed due to concerns about the so-called ‘spousal loophole’ added by the Senate in the last days of session,” Davis said. “I’m disappointed this Senate amendment put the governor in the position of having to veto two ethics bills that were originally written to make government more transparent and accountable.”

Davis said she would re-double efforts to pass “clean” ethics legislation in the next session of the Legislature.

[…]

The death of the two bills, HB 3511 and HB 3736, represented the final blow to Abbott’s calls for sweeping ethics reform in the notoriously loose Texas Legislature. After a series of far-reaching reform proposals went down in flames at the end of the session, those bills contained several compromise measures that Abbott wanted.

During his State of the State speech in February, Abbott urged lawmakers to “dedicate this session to ethics reform.”

Collectively, Davis’ two bills would have tightened requirements on personal financial disclosures, curbed conflicts of interest on state government boards and commissions, and required state elected officials to disclose government contracts and bond counsel work.

But the bills were marred by the inclusion of Huffman’s spousal loophole amendment. Huffman now faces a sworn ethics complaint, from a Democrat, related to her own spouse’s financial activity. Carol Wheeler, a member of the State Democratic Executive Committee, has alleged that the senator filed “false” information by failing to list more than 35 businesses in which her husband has a stake.

See here and here for the background. I never had much faith in Abbott’s embrace of ethics reform anyway, but even if the Davis bills had passed in their pre-Huffman form, Abbott’s continued embrace of dark money makes it all largely moot anyway. There’s no fixing the system as long as a handful of avaricious billionaires and their well-paid henchmen and henchwomen run amok over it.

DPS, investigate thyself

What could possibly go wrong?

Set to take over statewide corruption investigations, the Texas Department of Public Safety must decide whether it will investigate itself.

In April, DPS Director Steve McCraw demanded that the Travis County District Attorney’s Public Integrity Unit re-start a probe into a no-bid border-security contract issued by his agency.

The director had objected to media stories about the deal and wanted the probe brought to a conclusion. But the head of the Public Integrity Unit responded that his agency was so devastated by a funding veto by former Gov. Rick Perry that it couldn’t reopen the probe even with financial assistance.

Now, thanks to a bill that awaits Gov. Greg Abbott’s signature, DPS on Sept. 1 will take charge of the integrity unit’s investigations.

On Friday, the agency declined to say whether a look at the border-security contract with Abrams Learning and Information Systems would be among the ones it would pursue.

“I confirmed that the bill has not been signed yet, so it (is) still considered pending legislation, which we do not discuss,” Tom Vinger, a spokesman for the Department of Public Safety, said in an email.

In an email Sunday, Abbott’s press secretary, Amelia Chasse, declined to comment when asked whether Abbott plans to sign or veto, House Bill 1690.

However, a left-leaning watchdog group said the conundrum McCraw faces with the Abrams investigation starkly illustrates problems that the Legislature ignored when it passed the bill.

“Having DPS investigate its own contract with Abrams illustrates how the legislature turned the Public Integrity Unit into the Keystone Kops,” Andrew Wheat, research director for Texans for Public Justice, said in an email. “But why stop there? Why doesn’t McCraw hire Abrams to investigate the contract? Then if Abrams finds evidence of its own wrongdoing, McCraw can refer the case to Abrams’s homeboy prosecutors back in Virginia. The whole thing is a farce.”

See here for the background. It should be noted that Abbott hasn’t yet signed the bill to move the Public Integrity Unit to DPS yet, so there is a way to work this out in a non-ridiculous fashion. I can’t imagine that he won’t sign it, however, so good luck to DPS figuring out how to untangle that mess. And for a Governor that made “ethics reform” an emergency item this session, he sure got some crappy results from his legislators. You’d think he’d have more to say about that.

The cloud still hanging over Rick Perry’s head

Ain’t easy running for President when you’re under indictment.

Corndogs make bad news go down easier

A corndog in every deep fat fryer

Yet for all the implications of seeking the White House as a criminal defendant, Thursday’s announcement brings another far less political reminder: The case, quite simply, is still ongoing, unaffected by months of legal bickering and bluster. For Craig McDonald, head of Texans for Public Justice, the group whose complaint sparked the indictment, the judicial slog has been anything but surprising.

“We always thought it wouldn’t go away very quickly, and that still is the case,” said McDonald, who expects the case to continue for at least another year. “He’s not going to be able to remove this yoke from around his neck quickly.”

Perry predicted in February that the charges would be “put behind us, hopefully by the end of March-April timetable.” He also declared at the time the case is “never going to go to trial.”

So far, his lawyers have been successful in heading off a trial — but perhaps not in the ways for which they hoped.

“For nine months the parties have exchanged hundreds of pages of briefs on these issues,” special prosecutor Michael McCrum wrote in a court filing earlier this month. “We are no closer to a resolution.”

[…]

Backed by a high-powered legal team, Perry quickly sought to portray the two charges — abuse of power and coercion of a public servant — as a political witch hunt in the heart of Texas’ most liberal county. Fellow Republicans, including some potential 2016 opponents, rallied to his side, as did less likely supporters such as David Axelrod, a former top adviser to President Obama, and Alan Dershowitz, the famed liberal law professor.

Nowadays, however, the indictment has become more of a headache for Perry than cause célèbre.

Visiting Judge Bert Richardson, a Republican, has done Perry few favors. In November, Richardson refused to dismiss the indictment on procedural grounds. Two months later, he again declined to toss out the case, that time on constitutional grounds. And in February, Richardson denied Perry’s request to see a pretrial list of witnesses who appeared before the grand jury.

At this point, Perry’s best bet is a breakthrough at the 3rd Court of Appeals in Austin, where his lawyers are seeking to reverse Richardson’s second refusal to throw out the case. A ruling is expected any day now, but even it could have an asterisk next to the outcome: One of the justices, Bob Pemberton, used to work for Perry and has so far resisted calls for recusal.

See here for the background. Guess that means Justice Pemberton isn’t going to recuse himself. If the Third Court refuses to come to Perry’s rescue, then I don’t see how anyone can make the “partisan witch hunt” claim with any credibility again. I mean, by that point a Republican judge and an all-Republican panel of appeals court judges will have allowed the charges to stand. It would also greatly undercut the arguments made during this legislative session by Republicans about moving the Public Integrity Unit out of the Travis County DA’s office, not that that would make any difference at this point. If they do let Perry off the hook, then he’ll do a victory dance until we’re all sick of it, and Tom DeLay will crawl out from under a rock to add to the festiveness of it all. One way or the other, it will dominate the news cycle.

Filibuster threat for open carry

We could have some end of session drama this year again.

Sen. Jose Rodriguez

State Sen. José Rodríguez said Thursday that if the opportunity arises, he plans to filibuster a bill allowing the open carry of handguns in Texas.

Speaking at a Texas Tribune event, the El Paso Democrat said he thought the legislation was “totally unnecessary” and presented a threat to the safety of police officers and the public.

“I think my back is problematical, but I assure you, for this issue, I will stand as long as I can,” Rodríguez said.

The legislation — House Bill 910 from state Rep. Larry Phillips, R-Sherman — has already passed both chambers of the Legislature. It is headed to a conference committee, where Senate and House appointees must iron out key differences in the bill.

See here for the background. Sen. Rodriguez’s threat came before the controversial “no-stop” amendment was stripped from the bill by the conference committee.

“The Dutton/Huffines amendment is dead,” said state Rep. Alfonso “Poncho” Nevárez, an Eagle Pass Democrat who took part in the negotiations over House Bill 910.”There’s nothing more to do. That was the only bit of housekeeping on the bill that was to be had. It’s a done deal, for all intents and purposes.”

Once the House and Senate appointed a conference committee to work out differences on HB 910 Thursday, it took only a few hours for the panel to release a report.

Both chambers still have to approve the amended bill, and I have no doubt that they will if they get to vote on it, though there will surely be some gnashing of teeth over the change. The deadline for passage is midnight Sunday, so if Sen. Rodriguez is going to make a stand, that’s when it will happen.

In the meantime, campus carry is also going to conference committee, and will also likely emerge in a different form.

In the Senate on Thursday, the bill’s author, state Sen. Brian Birdwell, requested a conference committee on the legislation to work out differences between the two chambers.

The Granbury Republican said he had concerns with language added in the House that would include private universities in the new law.

“I am duty-bound to protect Second Amendment rights parallel to private property rights,” said Birdwell. “We must protect most private property rights equally, and not protect one or the other.”

Lawmakers who argued for requiring private universities to follow the same rules as public institutions say it’s a matter of fairness.

“If we are going to have it, I don’t know how I’m going to make a distinction between my kid who goes to Rice University and one kid at Houston,” said state Sen. Rodney Ellis, D-Houston.

[…]

House lawmakers also added provisions that exempted health facilities and let universities carve out gun-free zones. When the bill originally passed the Senate, Birdwell rejected several amendments attempting similar changes.

I suspect this one will take a little longer to resolve, but we’ll see. Maybe Sen. Rodriguez will set his sights on it, too. See this Trib story about how removing the “no-stop” amendment also removed a headache for Greg Abbott, and Trail Blazers for more.

To recuse or not to recuse

That is the question.

Corndogs make bad news go down easier

Corndogs are never conflicted

More than a week after a judge who once worked for Rick Perry was tapped to hear an appeal in the former governor’s indictment, it’s still unclear whether he’ll see the case through.

Legal experts say Justice Bob Pemberton’s connections to Perry could put him in the tough position of having to decide whether to recuse himself. Pemberton is one of three justices who could decide Perry’s fate at a crucial time; the former governor recently said he is within 30 days of announcing whether he will run for the presidency.

“You’re danged if you do, danged if you don’t,” said L. Wayne Scott, a law professor at St. Mary’s University in San Antonio. “There’s not a right answer.”

Some court observers think it’s inevitable that Pemberton, who served as a deputy general counsel in Perry’s office before the former governor appointed him to the 3rd Court of Appeals, will step aside.

“I think it’s just a matter of time before Justice Pemberton recuses from the case,” said Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics. “Even if a recusal motion has not yet been filed, it’s likely in the works.”

But Pemberton hasn’t made that move — and the court hasn’t said whether he will. The case is advancing, legal filings show, and Perry lawyer Tony Buzbee has called Pemberton’s appointment “not a conflict or a story.”

Meanwhile, Michael McCrum, the special prosecutor pursuing the charges against Perry, said Friday he was not planning to file a motion for recusal. Some legal experts say that is not entirely surprising: Lawyers do not want to risk getting on the bad side of a judge hearing their case unless they are 100 percent certain their motion will prevail.

Without a motion for recusal, the decision is largely up to Pemberton, who, in addition to working for Perry, donated to the former governor’s 2002 re-election campaign and clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team.

See here and here for the background. I think it would be for the best if Justice Pemberton recused himself on “avoiding the appearance of impropriety” grounds, but unless Mike McCrum tries to make something of it that’s his call. I also think McCrum is wise to let things play out, at least for now. I’m glad to see that the Trib is staying on top of this.

Perry meets his appellate judges

He knows one of them very well.

Corndogs make bad news go down easier

Corndogs are great icebreakers

Rick Perry may be somewhat familiar with one of the judges picked to hear an appeal in the criminal case against him.

That’s because Justice Bob Pemberton has worked for the former governor, representing him in court as his deputy general counsel. After that job, Perry appointed him to the Third Court of Appeals, which is now considering a request from Perry’s lawyers to dismiss the abuse-of-power charges against him.

Pemberton also clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry’s defense team. Pemberton’s website features a photo of him being sworn in by Phillips — “his friend, supporter, and former boss.”

In addition to once working for Perry, being appointed by Perry and having clerked for one of Perry’s current lawyers, Pemberton has been a political supporter of the former governor. Pemberton chipped in $1,000 for Perry’s 2002 re-election campaign, according to state records.

The justice’s connections to Perry are unusual, even in a state under yearly scrutiny for a judicial system critics say is too tainted by politics. Judicial elections in Texas are partisan, and the Third Court of Appeals is controlled by Republicans.

Judges are bound to have some connection to Perry, the longest-serving governor in Texas history, but Pemberton’s relation is beyond the pale, according to some good-government experts.

“That court has always acted in a partisan manner, but in this case, Justice Pemberton should definitely recuse himself,” said Craig McDonald, head of Texans for Public Justice, a liberal-leaning watchdog group responsible for the complaint that led to Perry’s indictment. “There should definitely be a recusal.”

According to the Texas Rules of Civil Procedure, a judge must recuse himself or herself in any proceed in which “the judge’s impartiality might reasonably be questioned.”

Yeah, I think that might reasonably be the case here. I don’t know if this is specifically what Team Perry was hoping for when they filed their latest appeal to this court, but I’m sure it wasn’t a disappointment to them. What happens from here I couldn’t say, but if one wants to take an optimistic view of things, one could say that if Perry’s motion is denied by these judges, it will be very hard to continue claiming he’s a victim of politics. Yeah, I know, that’s pretty thin, but it is what it is. One way or another, some number of judges friendly to Rick Perry were going to get involved. That’s the state we live in. PDiddie has more.

Prosecutors respond to latest Team Perry filings

Back and forth, forth and back.

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The special prosecutor in the case against Rick Perry is asking a judge to deny the former governor’s latest two efforts to quash the indictment against him.

Perry, meanwhile, is once again showcasing a high-profile group of legal scholars who think the case against him should be dismissed.

The two filings by special prosecutor Michael McCrum of San Antonio – and the filing on behalf of Perry by lawyers from Republican and Democratic backgrounds – are the latest moves in a long court dance that has taken place since Perry was indicted last August.

[…]

Perry has maintained that he properly used his veto authority and that the indictment is improper, politically motivated and injurious to free speech and gubernatorial authority.

His high-powered legal team led by Houston lawyer Anthony Buzbee has said that misusing a veto “cannot constitutionally be considered a criminal act” under the statute cited by McCrum, and that McCrum’s effort to fix problems identified in the indictment is “woefully deficient.” Perry’s team also has said the indictment doesn’t give Perry enough notice to defend himself.

McCrum and Austin attorney David M. Gonzalez, who is assisting him in the case, said in a Friday filing that Perry’s third motion to quash the indictment should be denied because the indictment tracks the law, and that Perry doesn’t lack clarity about why he is being prosecuted. They said the matters raised in Perry’s indictment “may be appropriately addressed when evidence has been presented.”

McCrum and Gonzalez said in responding to Perry’s supplemental motion to quash in trial court, “Texas’ highest court for criminal cases has held that the State does not have to lay out its case in the indictment.”

See here and here for the background. The first of the filings mentioned in the third paragraph was filed after the initial ruling by Judge Richardson, which denied his first motions to dismiss but which noted some issues with the indictments. The second filing came after special prosecutor Mike McCrum refiled the charges, in response to the questions Judge Richardson raised. Perry has also filed a motion with the Third Court of Appeals, which is a separate matter. There may be more filings to come – I presume McCrum will respond to the Third Court of Appeals motion if nothing else – and then we wait for rulings. Trail Blazers has more, including a copy of the latest paperwork.

On a side note, it’s interesting that this happened on the same day as the House passing the bill to move the Public Integrity Unit out of the Travis County DA’s office. The Perry indictments have been repeatedly cited as the fulcrum for getting that long-sought legislation through. A bit ironic, given that the action has been driven by a nonpartisan special prosecutor appointed by a Republican judge, but never mind that. At this point, I’d say that if Team Perry succeeds in getting the indictments tossed, that will be a lot of ammunition for the advocates of moving this function elsewhere. If it does go to trial, I don’t know that it changes any of the office-movers’ minds, but it may take some wind out of their sails. We’ll see who if anyone winds up feeling vindicated.

Perry appeals to appeals court again

It had been a few weeks since his lawyers filed any paperwork, so I guess they were getting twitchy.

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As the race for president shapes up, former Gov. Rick Perry is imploring a state appeals court to take quick action in the criminal case against him.

In his latest court filing, Perry said a decision is important not only for him but for his successor, Gov. Greg Abbott.

Perry believes that “time is of the essence because of the forthcoming conclusion of the legislative session and the corresponding minimal time frame afforded to Gov. Abbott to determine in which circumstances, if any, he can exercise his constitutional right to veto items of appropriation,” Perry’s legal team wrote.

[…]

In the most recent motion with the 3rd Court, filed Friday, Perry’s lawyers asked for expedited action without oral argument.

“I believe the issues are clear, and the setting of oral argument would unnecessarily delay matters,” Perry’s lawyer, Tony Buzbee of Houston, said Monday.

Oral argument was suggested as appropriate by the special prosecutor in the case, Michael McCrum of San Antonio. He said the complexity of the case warrants it and that argument would likely involve a discussion of the “limits – and abuses – of power in our representative democracy and how it can be regulated.”

Perry’s legal team said there’s no need for “the type of open-ended philosophical discussion” that it says McCrum is proposing.

If oral argument is necessary, “Gov. Perry implores the court to expedite this case and set that argument for the very earliest possible date,” Perry’s team said.

Team Perry had filed a motion to dismiss with the 3rd Court of Appeals on February 26. I guess maybe they were getting a bit impatient. Obviously, he wants to have this matter behind him before officially launching his Presidential campaign. The calendar is not his friend right now.

Republicans try again to kill Public Integrity Unit

They might have the votes this time, though as with some other highly publicized “replacement” efforts, their substitute idea lacks a few key elements to make it successful.

Sen. Joan Huffman

Under Senate Bill 10 by Sen. Joan Huffman, the attorney general’s office would conduct the initial investigation of complaints against officials, with help from the Texas Rangers.

If the investigation yields “reasonable suspicion,” a state judge would send the findings to a district or county attorney who is outside of the official’s county. That prosecutor could terminate the case or continue with prosecution.

If the case goes to trial, under SB 10, the proceedings would be held in the public official’s hometown.

“These changes will inspire confidence in these critical functions of government and keep this process fair to all Texans, no matter where they live or to which political party they belong,” Huffman said in a statement.

Republican Lt. Gov. Dan Patrick endorsed Huffman’s bill, saying it would place the unit “in a more appropriate setting.”

Gregg Cox, head of the Public Integrity Unit, warned against hometown prosecution during a Senate hearing last month, saying his agency was created in part to avoid conflicts of interest that can mar prosecutions of local officials. Cox did not respond to a request for comment Wednesday.

Craig McDonald with Texans for Public Justice, a liberal watchdog group, said: “Huffman’s bill creates a maze of chutes and ladders that offers politicians numerous escape hatches from prosecution.”

The first problem with this is that as the Chron story notes, the state attorney general likely would have to do the initial investigation without subpoena power. That would seem to be a significant obstacle in any case where one or more key witnesses did not want to testify. Another problem, as seen in the increasingly bizarre ethics case against professional sleazeball Michael Quinn Sullivan is that prosecutors and judges in the home county of an official under investigation may be more likely to have conflicts of interest. If nothing else, the fact that a DA in the home county of an officeholder under suspicion will face at least some of the same voters that elected that official in the first place may provide some perverse incentives.

The bottom line here is, and has always been, that the Republicans who constitute the majority of potential prosecution targets don’t want their fate in the hands of an elected Democrat. (Of course, Republicans aren’t the only ones who do get into the crosshairs of the Public Integrity Unit, as former State Rep. Kino Flores could attest.) I admit to some sympathy for this, as I’m sure I’d feel the same way if the situation were reversed, but let’s be honest, if Sam Houston had been elected AG this past November, Sen. Huffman would not have filed SB10, at least not in that form. It’s not about the office but about who holds it.

SB10 would also move insurance fraud and issues relating to the imposition of the motor fuels tax, both of which are handled by the Public Integrity Unit of the Travis County DA’s office today, to the AG’s office. You may recall that it was this sort of investigation that was cut off by Rick Perry’s veto of PIU funds in 2013. Seems to me that the AG’s office would have to enlarge if this goes through, though I suppose in the end the cost may be a wash since the state budget normally funds the PIU anyway. Still, this is bigger than just shifting the way political prosecutions are done. It’s hard to see how SB10 will be an improvement in process over the status quo.

Perry goes to appeals court with latest motion to dismiss

Leave no stone unturned, and no hour unbilled.

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Rick Perry’s lawyers have asked a state appeals court to dismiss the indictment against the former governor, saying he lawfully used his power to veto funds to the Travis County district attorney’s office and his right to do so is protected by free speech.

“On its face, without the need for any evidence, the indictment must be dismissed because it runs afoul of these constitutional guarantees,” the defense team argued in a filing made late Wednesday with the 3rd Court of Appeals in Austin.

The filing, the second part of a two-pronged approached to get the indictment dismissed, is an appeal of a Jan. 27 decision by Judge Bert Richardson that allowed the case to proceed.

[…]

Defense lawyers Tony Buzbee and David Botsford wrote on Monday that this new “woefully deficient” indictment should be dismissed because it fails to allege a crime was committed when Perry, as governor, vetoed state funds that were to go to the Travis County district attorney’s office nearly two years ago.

In their brief before the appeals court, Perry lawyers again zeroed in on the coercion charge and whether Perry’s veto threat was allowed under free speech protections guaranteed by the state and U.S. constitutions.

Defense lawyers offer that while some threats that imply physical harm are not protected by the U.S. Constitution, most threats enjoy “broad protection” under the First Amendment.

The defense team warned that if the case is not dismissed, it will have a “a chilling effect” on any governor who may want to veto items in the state’s budget, Perry’s appeal states.

“At stake is not just the freedom of one man,” Perry’s attorneys argued.

Yawn. See here and here for the background, and here for the filing. I do agree that this indictment is a threat to any future politician who would use his or her power to try to force another elected official to resign. We’ll see which court rules first.

Perry’s lawyers try, try again

The circle of life keeps on keeping on.

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Lawyers for Rick Perry asked the court on Monday to again end the prosecution of the former governor, saying the indictment is faulty and the actions he took in issuing a veto are allowed by law.

[…]

On Monday, Perry’s team attacked amendments that McCrum had added to the indictments that accuse the former governor of coercion and misuse of public office. The court had found that the initial indictments lacked enough specificity about the facts of the crime.

The defense team attacked the added facts, saying the “were not found by the grand jury.” The lawyers also asserted that Perry’s actions fall under an exception for “coercion.”

The law allows the governor to go back and forth, debate and in effect horse trade with legislators over bills. His lawyers are trying to argue that because his alleged criminal action involved a veto of legislative funds, that he is protected by that exception.

The prosecution is arguing that the person he supposedly coerced is not a legislator and Perry was illegally using his power because what he was attempting to control was an office beyond his scope and not connected to the Legislature.

See here, here, and here for the background, and see here for a copy of Team Perry’s latest motion. I said in my last update that I thought the prosecution was having to get mighty intricate with its explanation for why Perry’s actions were criminal, and that I thought it didn’t bode well for them. It looks like the defense is stretching a bit, too, so maybe their case is stronger than I thought. I’m still concerned that the law in question is enough of a misfit to bring the whole shebang down, but it’s in Judge Richardson’s hands again. At least, I assume it is; there may be more filings to come, and perhaps another hearing. We’ll see. The Trib has more.

McCrum refiles charges against Perry

Here we go again.

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Former Gov. Rick Perry tried to force out a local district attorney because he wanted to stymie the work of a unit she oversees that investigates public corruption involving state officials, a special prosecutor alleged Friday.

The contention is at odds with Perry’s long-held assertion that he vetoed the funding for the Public Integrity Unit because Travis County District Attorney Rosemary Lehmberg had lost the public’s confidence after a messy drunken-driving arrest.

Perry lawyer Anthony Buzbee of Houston called the contention “total baloney. There is no evidence of that and won’t ever be.”

[…]

“The grand jury’s indictment charges, and the state will prove, that the defendant broke the law in two different ways,” said the filing by McCrum and his assistant, David M. Gonzalez of Austin.

The prosecution said Perry used a lawful power – his veto – “in an unlawful manner and for unlawful purposes,” constituting abuse of office. It said he also conveyed “an illegal threat in a similarly unlawful manner and for unlawful purposes,” constituting coercion of a public servant.

“The state will prove that defendant Perry did not approve of historical and current management decisions regarding the operation of the Public Integrity Unit and therefore wanted to coerce Ms. Lehmberg into resigning her elected position and/or stymie or obstruct the continued operation of the Public Integrity Unit under Ms. Lehmberg’s management,” said the prosecution.

McCrum in the filing said the prosecution will present evidence that Perry “is criminally responsible for the communication to Rosemary Lehmberg that unless she resigned from her official position as elected Travis County district attorney” that Perry would veto the funding.

[…]

[Judge Bert] Richardson in his previous ruling had instructed McCrum to add some wording that was missing from the original indictment, to address an exception in the coercion law for someone who is a member of a governing body taking an official action.

McCrum in his revised filing said Lehmberg and Perry were members of different branches of government, and that Perry’s attempt to influence her wasn’t an official one taken as a member of a governing body.

With regard to the abuse-of-office count, McCrum said that Perry “misused government property that was subject to his custody and possession” by using “the lawful power of gubernatorial veto for an unlawful purpose” – eliminating the unit’s funding when Lehmberg refused to resign.

“The prosecutor added more words but failed to correct the glaring deficiencies in the indictment,” said Buzbee. He said that McCrum did not negate the exception in the coercion law and failed to show Perry had custody of the funds in the abuse-of-office count.

“Throughout this case, Mr. McCrum has demonstrated a shocking misunderstanding of the budgeting process in Texas. Until the budget is approved and the taxes are collected, the funds do not exist. Thus it is legally and factually impossible for Governor Perry to have ever had custody or possession of any funding. It is our belief that both indictments should be dismissed,” Buzbee said.

See here and here for the background. The news about the Public Integrity Unit having investigations derailed by Rick Perry’s veto came out last month. That’s been an undertone to this saga all along, but this is the first time it’s become part of the official record. I have to say, though, that at this point in the case I’m less confident that the indictments will stand than I was prior to Judge Richardson’s ruling. I still believe there’s a clear story to tell about why Rick Perry’s actions were wrong and why this isn’t a simple matter of a veto being stigmatized. (Remember: Texans for Public Justice filed their complaint before Rick Perry issued his veto.) The problem is that the laws in question weren’t written to cover this sort of situation. That doesn’t mean they can’t be applied here. I’m sure that will be a critical part of the next motions to dismiss and Judge Richardson’s ruling on them. It’s just my general feeling that the more convoluted your explanation has to be for why something is true, the harder it becomes to believe it. I hope I’m wrong about this, because I do believe that Rick Perry’s actions were wrong and highly consequential. In a just world, he would face responsibility for what he did. In this world, well, we know how that goes. I’m not ready to despair, but color me concerned. The Trib and Trail Blazers have more.

No grand juror information for Perry

Sorry, Rick.

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A state judge Friday denied former Gov. Rick Perry’s push for a list of people whose grand-jury testimony led to his indictment on abuse-of-power charges.

Judge Bert Richardson said the prosecution is not required to produce those names, which Perry’s lawyers had said he was entitled to get.

[…]

Besides denying Perry’s motion to get the witness names, Richardson set a schedule for prosecutors to provide relevant information to Perry in advance of a potential trial in the case – including any information that may be favorable to the former governor’s case. The judge said the information should be provided as soon as possible, or at least 21 days before any trial if one is set.

Richardson also ordered that the prosecution have grand jury witness testimony transcribed if they may also testify at the trial.

Not really sure what Perry’s defense team would do with a list of grand jurors’ names if they had it. Is that something defense attorneys normally ask for and/or receive? I’m failing to come up with a strategic reason for that list. Be that as it may, this Statesman story has a bit more information of interest:

Judge Bert Richardson also revealed that prosecutor Michael McCrum will amend one of the counts against Perry, an expected development because Richardson had earlier ruled that the charge — coercion of a public servant — did not include enough information.

McCrum also indicated that he intends to amend other portions of the indictment by Feb. 13, Richardson’s order said without elaborating on the proposed changes.

[…]

Perry’s lawyers asked for 10 days to respond to McCrum’s changes, Richardson’s scheduling order said.

Afterward, a hearing will be set to address any remaining pretrial motions, the order said.

See here and here for the background. Judge Richardson’s original order denying the motion to quash the indictments is under appeal. Perry still has plenty of chance to skate, but as previously noted, the calendar is working against him.

Perry re-files motions to quash indictments

As expected.

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Following the cues provided in a judge’s ruling this week, lawyers for Rick Perry filed a request on Friday to get an indictment against the former governor dismissed.

The new request noted “serious, well-founded concerns” that Judge Bert Richardson had in his ruling on Tuesday regarding the wording of the two charges against Perry: abuse of official capacity and coercion of a public servant.

“Governor Perry asserts that the deficiencies set forth below constitute defects of form and substance,” says David Botsford, an attorney for Perry, in the new motion.

While Richardson has allowed the case to proceed, he noted in his ruling this week that both counts were vague. Richardson wrote that the first count failed to state how Perry misused the funds by exercising his power to veto legislation. And in the second, Richardson questioned how the coercion charge, as written, failed to account for an exception to the charge Perry is allowed based on his gubernatorial authority.

See here for the background, and here for the new motion. Judge Richardson more or less invited Perry’s legal team to make a new filing, but he also gave special prosecutor Mike McCrum the opportunity to refile the charges and clean up the issues he noted. I don’t know if there’s a specific deadline attached to that, but I’d guess sooner is better than later for an update from McCrum. Trail Blazers has more.

Perry still under indictment

Oops.

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A judge on Tuesday rejected former Gov. Rick Perry’s attempt to throw out a two-count indictment against him, saying it’s too early in the case to challenge the constitutionality of the charges.

Perry’s attorneys immediately filed notice that they will appeal the 21-page ruling, which was issued Tuesday afternoon by Bert Richardson, a Republican; the appeals process could take months. The appeal will be considered by the Texas 3rd Court of Appeals. All five justices elected to that court are Republican; a sixth justice, who has not yet run in a partisan race, was appointed by Perry before he left office.

[…]

Attorneys for the former governor have been trying to get the two-count felony indictment thrown out. Perry’s attorneys have argued that the indictments — one count of abusing official capacity and one count of illegally coercing a public servant — violate both the Texas and U.S. constitutions.

“Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal procedural statute as that statutes applies to a particular defendant,” Richardson wrote.

However, the judge agreed with Perry’s attorneys that the second count of the indictment – coercion of a public servant – did not “sufficiently” explain why Perry’s actions were not protected because he was acting in his official capacity as governor.

Rather than dismissing this count, the judge said state law allows prosecutors to amend that count, and he granted them permission to do so.

You can read Judge Richardson’s order here. It gets technical in places, but it’s worth your time to read it; it will make enough sense even if you don’t possess a law degree. Judge Richardson has clearly not foreclosed Perry’s claims about constitutionality, but unless the appeals courts grant him his wish – which my reading of the order suggests would be unusual – those would be questions to ponder after the trial concludes. Needless to say, Perry doesn’t want to wait that long; as this companion Trib story reminds us, that could take years to play out. My guess at this point is that we’re headed towards a trial. I welcome any feedback from the lawyers out there. The Statesman has more, and a statement from TPJ is beneath the fold.

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