One of Two Charges Dropped against Former Texas Governor in Abuse-of-Power Case

by Matt Clarke

One criminal charge has been dismissed in an abuse-of-power case filed against ex-Texas Governor Rick Perry, but a second charge remains pending that stems from his attempt to force the resignation of the district attorney for Travis County, Texas following her drunk driving arrest in 2013. The state appellate court ruling dismissing one of the charges drew praise from attorneys representing the former presidential candidate, while Perry’s critics viewed it as vindication that the criminal charges were not politically motivated.

The Third Court of Appeals dismissed a charge of coercion of a public servant in July 2015, finding that the law used to bring the charge violated Perry’s free speech rights.

“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,” the appellate court wrote in a unanimous ruling. See: Ex parte Perry, 2015 Tex. App. LEXIS 7662 (Tex. App. July 24, 2015).

Perry still faces one count of abuse of official capacity, filed following the April 12, 2013 arrest of Travis County D.A. Rosemary Lehmberg, a Democrat, for DWI. Perry threatened to veto $7.5 million in funding for the Travis County Public Integrity Unit unless Lehmberg agreed to resign. The unit – which investigates alleged corruption by public officials and at the time was looking into allegations of corruption and mismanagement in a project championed by Perry – was part of Lehmberg’s office.

When Lehmberg refused to step down, Perry followed through on his threat and vetoed the funds for the Public Integrity Unit. That move caught the eye of Texans for Public Justice, a watchdog group, which filed the original complaint against Perry. A subsequent grand jury investigation led to Perry’s indictment on the two charges on August 15, 2014, and he was booked into the Travis County jail, fingerprinted and had his mugshot taken.

Perry’s chief counsel, Tony Buzbee, called the appellate court decision “a clear step towards victory for the rule of law. The only remaining count we believe to be a misdemeanor, and the only issue is whether the governor’s veto – or any veto in the absence of bribery – can ever be illegal,” he said. “The appeals court made clear that this case was questionable. The remaining charge is hanging by a thread, and we are confident that once it is put before the court, it will be dismissed on its face.”

But Texans for Public Justice executive director Craig McDonald countered that the former governor’s troubles are by no means over.

“The ruling by the all-Republican three-judge panel underlines the fact that the charges filed against Perry are not the result of a partisan witch hunt,” he said in a written statement. “The governor has a legitimate statutory role in the legislative process. The governor had no authority over the district attorney’s job.”

Perry defended his veto at the time, saying he axed funding for the anti-corruption unit because Lehmberg was not fit to remain in office.

“Despite the otherwise good work [of] the Public Integrity Unit’s employees, I cannot in good conscience support continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence,” he stated.

In clarifying the abuse-of-power charges, prosecutors said Perry was legally entitled to veto legislation but was not entitled to use the powers of his office illegally “for the benefit of any private or individual purpose, private business, political party or other” improper cause.

“The state will prove that defendant Perry did not approve of historic 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,” prosecutors stated.

In its decision dismissing one of the charges against Perry, the Court of Appeals held that the coercion law fashioned by the Texas legislature was written in such a way that a public official could not know what was political maneuvering and what was an illegal threat. The court cited an earlier case in which a trial judge had dismissed similar charges against a county judge, calling the coercion law unconstitutionally vague.

Lehmberg pleaded guilty to the 2013 DWI charge and was sentenced to 45 days in jail and a $4,000 fine – the toughest penalty for DWI in Texas; however, she insisted she would not resign as district attorney, and remains in office today. [See: PLN, Oct. 2014, p.56; Sept. 2013, p.56].

“First of all I want to apologize again for my behavior,” Lehmberg said in a statement to reporters in December 2013. “I have said over and over it is unexcusable, and I have tried to do everything I can to fix it, and I will continue to do everything in my power to make sure there is never a repeat.”

Video surveillance at the Travis County Sheriff’s Office showed an often combative and argumentative Lehmberg when she was booked for DWI. She denied that she was drunk, and at one point deputies handcuffed her for “making threats” that she would put them in jail.

Arresting officers described Lehmberg in their report as “excited, insulting and cocky” and smelling of alcohol, with slurred speech and “watery, bloodshot and glassy” eyes. Deputies noted that she had participated in a field sobriety test but balked at performing some of it. They described her balance as wobbly and her gait “staggering and unsure.” Police found an open bottle of vodka on the passenger side of her car.

On June 19, 2015, Texas Governor Greg Abbott signed a law transferring the Public Integrity Unit from Travis County to the Texas Rangers Department of Public Safety. The law allows state officials and lawmakers accused of ethics violations to face prosecution in their home districts, even if the offenses occurred in the state capital in Austin.

Supporters of the change said voters in the officials’ home districts will give them a better venue for their trials, away from the Democratic stronghold of Travis County, where Austin is located. They cite Lehmberg’s DWI conviction as evidence of a double standard.

But Texans for Public Justice and the advocacy group Public Citizen blasted the new law, claiming it will make ethics investigations nearly impossible because local prosecutors will be reluctant to pursue charges against elected officials who are often friends and colleagues.

Sources: Austin American-Statesman; www.nytimes.com; www.washingtonpost.com; www.dallasnews.com; www.austinchronicle.com; KOKE.FM Austin; www.chron.com; Indictment #DIDC14100139, District Court of Travis County, Texas (2014); www.khou.com; www.cnn.com

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