Rick Perry Beats Abuse of Power Charges

By Casey C. Sullivan, Esq. on February 26, 2016 | Last updated on March 21, 2019

Texas's highest criminal court, the Court of Criminal Appeals, dismissed abuse of power charges against former Governor Rick Perry on Wednesday, bringing to an end a long-running battle over Perry's actions while in office.

A grand jury had indicted Perry in 2014, charging him with abusing the power of the governor's office by pressuring a state district attorney to step down and vetoing financing for the anti-corruption office she helmed.

Perry Takes on the Prosecutor

The case centered on a dispute between the governor and Rosemary Lehmberg, a district attorney for Travis County. Prior to the veto, Lehmberg had been arrested for drunk driving. Governor Perry demanded that she step down from her position and threatened that, should she not, he would veto $7.5 million in state funding for her anti-corruption office. She didn't and he did, which lead to an eventual indictment after Texans for Public Justice filed an ethics complaint against the governor.

Among other charges, Perry was accused of "abuse of official capacity" and coercing a public servant. Under Texas law, abuse of official capacity occurs when a public officer, with intent to harm another, intentionally and knowingly misuses his office. Coercion occurs when someone, "by means of coercion," attempts to influence a public servant in the exercise of his or her public duty. Both are felonies.

No Coercion, No Abuse of Power

A lower court had dismissed the charges of coercion, finding them in violation of Perry's First Amendment rights. The Criminal Court of Appeals agreed.

The abuse of official capacity charge fared no better. The court found the charges lacking in a multitude of ways. By limiting the governor's ability to use the veto power, the statute violated the Texas Constitution's separation of powers clause. Unlike the federal Constitution, Texas has an explicit separation of powers which is violated when one branch "unduly interferes" with another's ability to exercise its assigned powers.

Further, the statute was overbroad, violating the First Amendment, the court found. As the court noted, the abuse of power statute could be used to criminalize routine "threats" made by public servants, such as a threat by the governor to veto a bill unless it's amended or a threat by a public defender to appeal a motion to suppress unless a favorable plea agreement is made.

The law's "unconstitutional applications are many," the court explained, and a narrow reading of the statute would be insufficient to cure it of them.

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