Defense Attorney in Dallas BRODEN & MICKELSEN LLP .: FEDERAL, STATE & CRIMINAL APPEALS

A Legal Analysis of the Rick Perry Indictment for Non-Lawyers

A Legal Analysis of the Rick Perry Indictment for Non-Lawyers

As everyone with a passing interest in politics now knows, a special prosecutor in Texas has charged Governor Rick Perry with two felony charges. Those charges are “abuse of official capacity” and “coercion of a public servant.”  Because those are not everyday criminal charges like burglary or assault, it is worth taking a look at these offenses to understand what the special prosecutor is exactly trying to allege.

First, abuse of official capacity under section 39.02 of the Texas Penal Code requires the prosecutor to prove, that Governor Perry misused government property (in this case, an amount greater than $200,000).  Misuse is defined, in relevant part, as “deal[ing] with property contrary to an agreement under which the public servant holds the property or the limited purpose for which the property is delivered or received.”

The indictment alleges that Perry violated this statute by misusing the Texas Legislature appropriation for the Travis County District Attorney’s Public Integrity Unit, by threatening to veto that funding unless District Attorney Lehmberg resigned after her embarrassing arrest for driving while intoxicated.  Although this is not alleged in the indictment, there are numerous media accounts that Lehmberg’s Public Integrity Unit was investigating whether Perry campaign contributors had received favors when being awarded grants from a Texas state agency that conducts cancer-fighting research.  Likely, the special prosecutor believes he can show that Perry used the drunk-driving incident as a pretext to cause Lehmberg to resign so he could appoint his own replacement, and, in doing so; establish that Perry committed the crime of “abuse of official capacity.”

It should be noted that there are constitutional freedom of speech and due process issues here.  The statutes definition of misuse is vague but the Texas Court of Criminal Appeal upheld the constitutionality of the statute in Murgraves v. State, 34 S.W.3d 912, 921 (Tex. Crim. App. 2000).

The second charged offense is coercion of a public servant.  In general this statute requires a prosecutor to prove that a defendant influences or attempts to influence a public servant in a specific exercise of his official power or violate a known legal duty.  In this case the special prosecutor alleges that Perry violated this offense, by attempting to influence Lehmberg to violate her known legal duty to carry out her responsibilities as district attorney by threatening to veto the funding of the public integrity unit.  This statute is a misdemeanor offense unless the coercion is a threat to commit a felony.  The felony offense the special prosecutor is asserting was used to coerce Lehmberg is the first charge, abuse of official capacity by threatening the veto.

Of special note here is the fact that the statue provides an exception, and specifically states that it is legal for a public servant to attempt to influence another by taking a legal action.  This exception would appear to clearly apply to the act of vetoing the funding for the public integrity unit.  It appears, however, the special prosecutor believes this provision does not apply in this case because Perry threatened to veto the appropriation, and according to the special prosecutor that does not constitute an official action, only the actual act of a veto would qualify.  Clearly a significant freedom of speech or constitutionally vague issue arises from this hair splitting distinction.

Given the shaky legal basis of this indictment a conviction of Governor Perry seems unlikely.  Although Governor Perry would appear likely to prevail in the courtroom, it remains to be seen whether his reputation will be tarnished to such a degree by the release of tawdry details about the hardball political maneuvers he employed attempting to get Lehmberg out of office.  The embarrassing disclosure of Lehmberg’s behavior when she was arrested for driving while intoxicated should end her future political aspirations.  In addition, the Quixotic indictment will likely do special prosecutor’s Michael McCrum’s career no favors.  The most likely winners in this whole unseemly window into Texas political life will be Rick Perry’s defense team.

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