The Texas Court of Criminal Appeals has sent a two-count indictment against former Texas Gov. Rick Perry back to a district court with orders to dismiss. Perry was charged with two felony counts — coercing a public servant and abusing his official capacity — for his threat to cut off financing for a Travis County district attorney's office after she was arrested for DUI.

In a 6-2 decision, the appellate court ruled against government prosecutors on both counts. Count I alleged that Perry's vetoing the funds constituted “abuse of official capacity” under Texas Penal Code § 39.02. Count II alleged that Perry's threat to veto constituted a “coercion of a public servant” under Texas Penal Code § 36.03.

The court held that the two charges restricted the governor's First Amendment rights and violated the Texas Constitution by infringing on his veto power. The court said that the prosecution of Perry violated “the separation of powers provision of the Texas Constitution” as well as his First Amendment right to free speech.

In addition, the court noted that the Texas Constitution does not impose “any restriction on veto based on the reason for the veto.” The Texas Constitution also does not “allow any other substantive limitations to be placed on the use of a veto” and “no law passed by the Legislature can constitutionally make the mere act of vetoing legislation a crime.”

In a concurring opinion, Judge David Newell quoted the fictional holdup man Omar Little from the HBO series The Wire: “Come at the king, you best not miss.” Newell said that the case against Perry was more complicated than it needed to be “because of who it involves.”

That opinion was echoed by the two dissenting judges, including Judge Lawrence Meyers who wrote, “The majority opinion has repealed more statutes and made more new law than Governor Perry did in the last session of the legislature when he tried to muscle out the elected Travis County District Attorney.”

The Cogdell Law Firm is a full service criminal litigation and appellate law firm. We provide client-focused representation at all stages of the process, whether our clients are seeking to avoid charges, have been charged, or are seeking reversal of a conviction on appeal. When results matter most, contact Dan Cogdell at (713) 426-2244 or [email protected]