AUSTIN (CN) – A Texas appeals court on Friday threw out one of two felony abuse of power charges hanging over former Gov. Rick Perry based on the Republican presidential candidate’s contention that it violates the First Amendment.
A three-judge panel of the Third Court of Appeals dismissed the coercion of a public servant charge because the statute “violates the First Amendment and, accordingly, cannot be enforced.”
Justice Bob Pemberton wrote that the former Texas governor’s abuse of official capacity charge will remain intact, however, because his “as applied” constitutional challenges cannot be played out through pretrial motions.
“As a consequence of these holdings, we affirm the district court’s denial of relief as to the ‘abuse of official capacity’ charge, because Perry’s ‘as-applied’ constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law,” Pemberton, a Republican first appointed to the court by Perry, wrote for the panel. “However, because the First Amendment bars enforcement of the statute on which the ‘coercion of a public servant’ charge is based, that charge must be dismissed.”
Last summer, a Travis County grand jury indicted Perry on two felony counts: abuse of official capacity and coercion of a public servant.
The Aug. 15, 2014, indictment came after Perry followed through on threats to pull funding from Travis County District Attorney Mary Lehmberg’s ethics investigation unit if she did not resign after a drunken-driving arrest.
When Lehmberg, a Democrat, refused, Perry issued a line-item veto that effectively stripped her office’s Public Integrity Unit of more than $7 million that had been earmarked by the Legislature during the 2013 session.Perry’s legal team seized the opportunity to proclaim victory for Perry Friday morning, who has steadfastly maintained his innocence. Since the early days of the indictment, Perry insisted that his actions were in line with the Texas governor’s veto authority and that the charges violate his free speech. Tony Buzbee, a Houston attorney leading Perry’s legal team, said that Friday’s ruling is a “clear step toward 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,” Buzbee said in a statement. “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.”
Prosecutors had argued to the appellate court that Perry’s First Amendment challenge was wrong and his veto threat criminal.
In a March 27 brief, Michael McCrum and David Gonzalez wrote that Perry was not immune from prosecution for “extortionist and quid pro quo threats” he made to Lehmberg after her 2013 drunken-driving arrest. They also argued that Perry was misapplying the legal principle of separation of powers “in his effort to avoid prosecution for his criminal acts.”
“Extortion and quid pro quo threats issued by a public servant are not forms of protected free expression,” the prosecutors say the March brief.
Perry has called the indictment politically motivated and a “criminalization of politics.”
Justices David Puryear and Scott Field Field, both Republicans, joined Pemberton in the 97-page ruling.
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