In an extraordinary announcement on Friday, a Texas special prosecutor released the indictment of Gov. Rick Perry on two felony counts relating to Perry’s veto of an appropriation for a public corruption unit in the Travis County District Attorney’s Office.

District Attorney Rosemary Lehmberg headed a public corruption unit in Austin and that unit had recently investigated the Cancer Prevention and Research Institute of Texas, reputedly aPerry-supported venture. Lehmberg was arrested and pleaded guilty to drunk driving.

Perry then demanded that Lehmberg resign, on the threat that the appropriation for the unit would be vetoed. She did not resign and the appropriation was vetoed. Perry stated on June 14:

“Despite the otherwise good work 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. This unit is in no other way held accountable to state taxpayers, except through the State budgetary process. I therefore object to and disapprove of this appropriation.”

The day after the indictment was announced, August 16, Perry issued a press release which reemphasized that his veto was in good faith: “Just as I have[,] following every legislative session during my service as governor, I exercised this authority to veto funding for an office whose leadership had lost the public’s confidence by acting inappropriately and unethically.”

Thus far, Perry’s actions are nothing more than the normal political goings-on between a Republican governor and a Democratic District Attorney with jurisdiction over corruption in the state capital, Austin. But the special prosecutor’s criminal indictment of Perry inflates a political dog-fight into constitutional theater.

Count I of the indictment alleges that Perry violated Texas Penal Code section 39.02, abuse of official capacity. Under subsection (a)(2), Perry allegedly “misused [by veto] government property or any other thing of value belonging to the government [the appropriation] which came into his custody or possession in order to harm another [Lehmberg].”

Some perspective on what section 39.02 was meant to cover is provided by subdivision (d). This prohibits prosecution for a “discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons” only because of “the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.” In other words, the statute was initially intended to apply to garden-variety public servant appropriation of benefits which would normally accrue to the state.

Count II of the indictment alleges a violation of Texas Penal Code section 36.03, coercion of a public servant. Under subdivision (a)(1), Perry allegedly “by means of coercion [threat of veto and veto] attempt[ed] to influence a public servant [Lehmberg] in a specific exercise of his official power or a specific performance of his official duty or influences or attempt[ed] to influence a public servant to violate the public servant’s known legal duty [by demanding Lehmberg’s resignation].”

Some sense of what section 36.03 was meant to accomplish is contained in subdivision (c). The subdivision created an exception “that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body.” Were it not for this exception, a government official who attempts to influence a public servant would be prosecutable under the statute.

In summary, the indictment first takes on Perry’s role as governor by claiming that an appropriation passed by the Legislature but unapproved by the Executive is government property which cannot be withheld by veto without violating the law. The accusation begs the question of whether the appropriation belonged more the State of Texas or Travis County. Even more bemusing is the issue of whether the appropriation was more the Legislature’s or the Executive’s.

The answer is that the Legislature passes appropriations and the Executive may veto them. Section 14, Article 4, of the Texas Constitution clearly states that the Executive may disapprove any bill passed by the Legislature and that the bill does not become law until a veto is overridden by the Legislature. Moreover, there is no limitation on the Executive’s discretion in exercising a veto.

Therefore, Count I is wholly defective because the appropriation never became state property because it was never enacted into law. Even assuming it was state property at the time of the veto, there is absolutely no legal limitation on the discretion of the Executive in exercising the veto. Other penal statutes cover the possible situations where a governor has an improper motive in using the veto, e.g. bribery, but in this case there is no allegation of an improper motive other than the one in section 39.02, that Perry intended to harm Lehmberg by inducing her to resign.

The normal “harm,” such as misappropriation of state funds, is readily conceptualized. (E.g. Neal v. State, 689 S.W.2d 420 (Tex.Cr.App.1984)) The jurisprudence commonly addresses official pettifoggery, such as appropriating a Texas university aircraft to fly to a son’s Louisiana graduation. (Margraves v. State, No. 1354-99 (Tex.Ct.Crim.App. 2000)) However, in an exhaustive analysis of state law governing provisions such as section 39.02, the Ninth Circuit concluded: “[T]his kind of statute is intended to cover more than cash bribery or cash extortion.   Official misconduct can be criminal when advantages other than money accrue to the public servant in the wrongful exercise of office.” Thus, sexual gratification is a harm prosecutable under the statute. (People v. Camacho, No. 94-10593 (9th Cir. 1996))

Margraves baldly states that “harm” must be defined “on a case-by-case basis, for it would be impossible for the Legislature to specifically describe in the statute every possible act that would amount to criminal misuse of government property. Would shaming Lehmberg into resigning amount to “harm” under the statute, even under the expansive definition of the term in the Ninth Circuit case? It wouldn’t seem so because no court has ever recognized political harm as actionable under section 39.02.

Perry’s defalcation under section 39.02 might run afoul of the suggestion in Margraves that conduct under these statutes “does not implicate constitutionally-protected conduct.” Thus, a motion to quash the indictment will surely raise the political harm issue as a matter of law, while at trial, the issue of Lehmberg’s injury will surely be tested as an issue of fact.
The prosecution theory is no clearer with Count II. Is Perry “a member of the governing body of a governmental entity [who, in] an official action taken [as] the member of the governing body” attempted to influence the action of a public official by threatening a veto, such that he qualifies as exempt from prosecution within the exception stated in section 36.03(c)? The office of governor seems more than colorably within the terms of the subsection.

The first comment to Rule 3.8, Special Duties of A Prosecutor, ABA Model Rules of Professional Conduct states that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” One aspect of this special role is whether the prosecutor should file charges on a new and untested theory of the case. Given the scarcity of judicial resources, is there a measurable public benefit which outweighs the uncertainty of conviction? Is a unique application of criminal statutes colorable enough to uphold the rule of law?
The Perry prosecution is essentially novel. The prosecution must willingly concede that it is attempting to criminalize a constitutional act, a veto, which as of now turns only on the discretion of the governor and which is unaccompanied by any independent allegation of improper motive such as bribery. Yet it is willing to spend judicial resources for years to litigate an issue which probably will be decided in favor of Executive discretion and the separation of powers.

Secondly, the prosecution is suspect as engaging in a tit-for-tat follow-up to a purely political act, the elimination of funding for a political rival. Some consideration must be made that the common man or woman will read the use of judicial process as a continuation of political war. Can a system of laws withstand such a wide-spread suspicion?