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Soft On Crime: The Governor’s Indictment Thrown Out

The blaring above-the-fold headline in many Texas papers today (February 25, 2016) describes how the Texas Court of Criminal Appeals determined that former Governor Rick Perry committed no crime when he used his government position to coerce local law enforcement into shutting down hundreds of pending criminal investigations into official misconduct.

His defense team did a masterful job of convincing the public generally that he was being prosecuted for having exercised his constitutional authority to veto line-item budget appropriations, when in fact the criminal charges against him had absolutely nothing to do with the actual act of vetoing a legislative appropriation.

I’ve written about this before. The crime wasn’t the veto. The crime was the coercive threat. It is a crime to abuse public authority, using threats to suborn criminal investigations and thereby attempt to induce a public official to act against their own and the public’s best interests.

Here’s some relevant coverage:

https://www.texastribune.org/2016/02/24/texas-high-court-dismisses-rick-perry-indictments/

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/24/charges-against-rick-perry-dismissed-by-texas-high-court-on-constitutional-grounds/

More significant than the outcome is the decision by the Court of Criminal Appeals (influenced by amicus briefing on First Amendment free-speech issues provided by Eugene Volokh and others) that the coercion statute (Texas Penal Code Section 36.03) itself is overbroad as written, and therefore unconstitutional. Here’s a copy of the Texas Court of Criminal Appeals decision in .pdf format: Ex Parte Perry, No. PD-1067-15, Texas Crim. App. (February 24, 2016).

It is a tricky, difficult thing to successfully draft a criminal statute that addresses communication. If someone foments armed revolution, are they committing a crime, or are they just behaving like an average Twitter account holder?

If someone passes a note to a bank teller that reads, “This is a hold-up,” is that someone robbing the bank, or are they just complaining about how long they’ve been waiting in line? Sure, that someone’s wearing a ski mask, but it’s cold outside. And they’re carrying a gun, but maybe that’s just to celebrate their Second Amendment open-carry rights.

I believe the coercion statute was constitutional — it  had a chilling effect only on public expression to the extent that it criminalized credible abuses of office. The statute didn’t prohibit a public official from expressing an opinion, making a case, or shouting from the rooftops. It prohibited a public official possessing the actual capacity to abuse office from holding the public hostage with the threat to exercise that capacity.

 

Woodlands RUD Criminal Lawsuits Covered In Houston Press Story

Of personal interest is this well-written and detailed article from the Houston Press about the ongoing prosecutions for illegal voting in the 2010 Woodlands Road Utility District No. 1 bond and officer election. Kudos to Steve Miller for pulling together a fairly complicated topic.

Charles Kuffner (in his excellent Off the Kuff blog) had reposted the story on Valentines Day, and surprised me by writing that he didn’t know until now that road utility districts were a thing. This statement from a politically active, deeply informed, and publicly influential Houston-area resident and journalist is troubling, given that he lives in a part of the state that has an astonishingly high density of almost invisible special law political subdivisions, and given that politics is his passion.

Mr. Kuffner’s residence places him in nine different political taxing entities, some of which he certainly knows about (Harris County, City of Houston, Houston ISD, Houston Community College District), some of which he may be unaware of (Harris County Flood Control District, Port of Houston Authority, Harris County Department of Education, Harris County Hospital District), and one that I strongly suspect he is unaware of (Greater Northside Management District). Not all of these entities have elected boards – for instance, the flood control district board is selected by the county commissioners, and the management district board is selected by the Houston city council).

But all of the districts have the authority to call and conduct elections, set tax rates and collect property taxes, and enact other policies that have a direct impact on Mr. Kuffner and his neighbors. All of the entities have websites, are subject to the Texas Public Information Act and the Texas Open Meetings Act, and conduct regular meetings that are open to the public. Admittedly, none of the districts are as peculiarly organized as the Woodlands RUD No. 1, as that is a political entity of a type more commonly encountered in the unincorporated territory of a county. But as Mr. Kuffner drives through the counties in and around the greater Houston area, he will cross the boundaries of hundreds of municipal utility districts, road districts, water control districts, emergency services districts, management districts, and other special law districts, all of which directly or indirectly affect the lives and welfare of his friends and colleagues.

The scope of his political “beat” has suddenly and perhaps unexpectedly become much broader.