Case No. 03

- 15

- 00063

- CR 

# In the Court of Appeals for the Third Judicial District, Austin, Texas

E X 

## P ARTE 

## J AMES 

## R ICHARD 

## “R ICK 

## ” P ERRY
Appeal from the Denial of the Writ of Habeas Corpus in the District Court for the 390th Judicial District Travis County, Texas, Case No. D-1- DC

- 14 -100139

B RIEF OF C ONSTITUTIONAL AND C RIMINAL L AW E XPERTS AS A MICI C URIAE I N S UPPORT OF THE A PPLICATION FOR A W RIT OF H ABEAS C ORPUS

Eugene Volokh California Bar No. 194464 Gary T. Schwartz Professor of Law UCLA S CHOOL OF L AW 385 Charles E. Young Dr. East Los Angeles, CA 90095 Tel.: (310) 206

- 3926 volokh@law.ucla.edu James C. Ho Texas Bar No. 24052766 Prerak Shah Texas Bar No. 24075053 Bradley G. Hubbard Texas Bar No. 24090174 G IBSON , D UNN & C RUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201

- 6912 Tel.: (214) 698

- 3264 Fax: (214) 571

- 2917 jho@gibsondu nn.com pshah@gibsondunn.com bhubbard@gibsondunn.com
C OUNSEL FOR A MICI C URIAE ACCEPTED 03-15-00063-CR 4945207 THIRD COURT OF APPEALS

AUSTIN, TEXAS 4/20/2015 9:05:19 AM JEFFREY D. KYLE

CLERKi T ABLE OF C ONTENTS Page Table of Authorities

................................ ................................ ................................ .. ii Statement of Interest of Amici

................................ ................................ .................. 1 Introduction

................................ ................................ ................................ ............... 5 Argument

................................ ................................ ................................ ................... 6 I. Count I of the I ndictment Should Be Dismissed, Because It Is Both Unconstitutional and Barred by Legislative Immunity.

.............. 6 A. Count I Violates the Constitutional Doctrine of Separation of Powers, Because the Legislature Cannot Criminalize the Exe rcise of a Governor’s Constitutional Veto Power.

................................ ................................ ................ 7 B. Governor Perry Cannot Be Prosecuted for His Veto, Because He Is Entitled to Absolute Legislative Immunity for Any Exercise of His Veto Power.

................................ ...... 11 II. Count II of the Indictment Should Be Dismissed, Because It Criminalizes Speech Protected by the First Amendment of the U.S. Constitution.

................................ ................................ ............... 20 Conclusion

................................ ................................ ................................ .............. 31 Certificate of Compliance

................................ ................................ ....................... 33 Certificate of Service

................................ ................................ .............................. 34ii T ABLE OF A UTHORITIES Page(s) Cases Armadillo Bail Bonds v. State , 802 S.W.2d 237 (Tex. Crim. App. 1990)

................................ .............................. 7 Bond v. Floyd , 385 U.S. 116 (1966)

................................ ................................ ............................. 27 Camacho v. Samaniego , 954 S.W.2d 811 (Tex. App.

— El Paso 1997, pet. denied)

................................ ... 13 Clinton v. Jones , 520 U.S. 681 (1997)

................................ ................................ ...................... 17, 18 D’Amato v. Superior Court , 167 Cal. App. 4th 861 (Cal. Ct. App. 2008)

................................ ................. 14, 15 Doe v. McMillan , 412 U.S. 306 (1973)

................................ ................................ ............................. 14 Dublin v. State , 742 N.E.2d 232 (Ohio Ct. App. 2000)

................................ ................................ . 14 Duncantell v. State , 230 S.W.3d 835 (Tex. App.

— Houston [ 14th Dist.] 2007, pet. ref’d)

................................ ................................ ................................ ..................... 26 Ex Parte Gill , 413 S.W.3d 425 (Tex. Crim. App. 2013)

................................ .............................. 8 Forrester v. White , 484 U.S. 219 (1988)

................................ ................................ ............................. 12 Fulmore v. Lane , 140 S.W. 405 (Tex. 1911)

................................ ................................ .................... 14 Garcetti v. Ceballos , 547 U.S. 410 (2006)

................................ ................................ ............................. 27T ABLE OF A UTHORITIES ( CONTINUED ) Page(s)

iii Grayned v. City of Rockford , 4 08 U.S. 104 (1972)

................................ ................................ ............................. 30 Hernandez v. City of Lafayette , 643 F.2d 1188 (5th Cir. 1981)

................................ ................................ ............. 13 In re Perry , 60 S.W.3d 857 (Tex. 2001)

................................ ............................... 11, 12, 13, 15 Irons v. R.I. Ethics Comm’n , 973 A.2d 1124 (R.I. 2009)

................................ ................................ ................... 15 Jenevein v. Willing , 493 F.3d 551 (5th Cir. 2007)

................................ ................................ ............... 27 Jessen Assocs., Inc. v. Bullock , 531 S.W.2d 593 (Tex. 1975)

................................ ................................ ................ 14 Jorgensen v. Blagojevich , 811 N.E.2d 652 (Ill. 2004)

................................ ................................ ............ 17, 18 Langever v. Miller , 76 S.W.2d 1025 (1934)

................................ ................................ .......................... 8 Meshell v. State , 739 S.W.2d 246 (Tex. Crim. App. 1987)

................................ .............................. 8 Pickering v. Bd. of Educ. , 391 U.S. 563 (1968)

................................ ................................ ............................. 27 Pickle v. McCall , 24 S.W. 265 (Tex. 1893)

................................ ................................ ...................... 14 Rangra v. Brown , 566 F.3d 515 (5th Cir. 2009)

................................ ................................ ............... 27 State v. Dankworth , 672 P.2d 148 (Alaska Ct. App. 1983)

................................ ................................ .. 15 State v. Hanson , 793 S.W.2d 270 (Tex. App.

— Waco 1990, no writ)

......................... 20, 21, 26, 30T ABLE OF A UTHORITIES ( CONTINUED ) Page(s)

iv State v. Holton , 997 A.2d 828 (Md. Ct. Spec. App. 2010)

................................ ............... 14, 18, 19 State v. Neufeld , 926 P.2d 1325 (Kan. 1996)

................................ ................................ .................. 14 Stockton v. Offenbach , 336 S.W.3d 610 (Tex. 2011)

................................ ................................ ................ 10 Tenney v. Brandhove , 341 U.S. 367 (1951)

................................ ................................ ................ 12, 14, 15 United States v. Brewster , 408 U.S. 501 (1972)

................................ ................................ ............................... 9 United States v. Dowdy , 479 F.2d 213 (4th Cir. 1973)

................................ ................................ ............... 15 United States v. Gillock , 445 U.S. 360 (1980)

................................ ................................ ............................. 17 United States v. Mandel , 415 F. Supp. 997 (D. Md. 1976)

................................ ................................ .......... 16 United States v. Mandel , 415 F.Supp. 1025 (D. Md. 1976)

................................ ................................ ......... 16 United States v. Stevens , 559 U.S. 460 (2010)

................................ ................................ ............................. 25 Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442 (2008)

................................ ................................ ............................. 25 Watts v. United States , 394 U.S. 705 (1969)

................................ ................................ ............................. 20 Statutes T EX
. P ENAL C ODE § 36.03(a)(1)

................................ ................................ ....... 21, 27 T EX
. P ENAL C ODE § 39.02(a )(2)

................................ ......................... 6, 8, 10, 11, 15T ABLE OF A UTHORITIES ( CONTINUED ) Page(s)

v Constitutional Provisions T EX
. C ONST . art. II, § 1

................................ ................................ .............................. 7 T EX
. C ONST . art. III, § 21

................................ ................................ ......................... 11 T EX
. C ONST . art. IV, § 14

................................ ................................ ........................... 7 U.S. C ONST . art. I § 6

................................ ................................ ............................... 11 Other Authorities Alex Spilius & Jon Swaine, Anthony Weiner Resigns over Lewd Twitter Photographs , T ELEGRAPH (U.K.) , June 16, 2011

................................ .... 23 Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks , M AIN J USTICE (Oct. 13, 2009), avail able at http://www. mainjustice.com/ 2009/10/13/doggett

- no - retreat

- on - us - attorney

- picks/

................................ ......... 30 Federalist No. 51 (Madison)

................................ ................................ .................... 20 Hardball with Chris Matthews , MSNBC, Sept. 5, 2007, transcript available at http://www.nbcnews.com/id/20623566/ns/msnbc

hardball_with_chris_matthews/t/hardball

- chris

- matthews

- sept

.......................... 23 Lawmakers Decry Abuses Within Texas Yo uth Commission , T EXAS S ENATE N EWS , Feb. 27, 2007

................................ ................................ ............... 23 Neil Munro, Priebus: Obama Executive Amnesty Is A ‘Nuclear Threat , ’ T HE D AILY C ALLER (Nov. 7, 2014), available at http://dailycaller.com/2014/11/07/priebus

- obama

- executive

amnesty

- is

- a - nuclear

- threat

................................ ................................ ................. 29 P erry: Board to Resign , W AXAHACHIE D AILY L IGHT , Mar. 15, 2007

..................... 23 President Barack Obama, Remarks by the President in a Press Conference (Nov. 5, 2014), available at http://www.whitehouse.gov /the

- press - o ffice/2014/11/05/remarks

- president

- press - conference

..................... 291 S TATEMENT OF I NTEREST OF A MICI Amici are an ideologically diverse coalition of experts in the fields of
constituti onal and criminal law

— including former judges, solicitors general, prosecutors, criminal defense lawyers, constitutional litigators, and professors on both sides of the aisle

. They represent virtually the entire political spectrum and have no personal or political stake in this case. They submit this brief for one simple reason : They are committed to the rule of law, and do not wish to see the law tarnished or distorted for purel y partisan political purposes. Floyd Abrams has served as counsel in many of the highest

- profile First Amendment cases of the modern era, including representing T he New York Times in the Pentagon Papers c ase . His most recent book is F RIEND OF THE C OURT : O N

THE F RONT L INES WITH THE F IRST A MENDMENT ( 2013). Michael Barone is a Resident Fellow at th e American Enterprise Institute and the principal co

- author of T HE A LMANAC OF A MERICAN P OLITICS
. Ashutosh Bhagwat is a Professor of Law at UC Davis School of Law. He has published extensively on issues relat ing to freedom of expression. Jeff Blackburn is the Founder and Chief Counsel of the Innocence Project of Texas , an organization dedicated to securing the release of those wrongfully convicted of crimes in Texas and educating the public about the causes an d effects of wrongful convictions.2

Paul Coggins is a former United States Attorney for the N orthern District of Texas ( 1993

- 2001 ) , appointed by President Bill Clinton. Alan Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School , and is one of the most well

- known civil liberties advocates in the country.
Raul A. Gonzalez is a former Justice on the Texas Supreme Court ( 1984

- 1998 ) , appointed by Governor Mark White and later elected as a Democrat. James C. Ho is a former Solicitor General of Texas ( 2008

- 2010 ) and a former Chief Counsel to the United States Senate Subcommittee on the Constitution (2003

- 2005)

. Daniel Lowenstein is a Professor of Law , Emeritus , at UCLA School of Law. He is also the Director of the UCLA Center for the Liberal Ar ts and Free
Institutions and a former chair of the California Fair Political Practices Commission, appointed by Governor Jerry Brown. Michael W. McConnell is the Richard and F rances Mallery Professor of
Law at Stanford Law School and the Executive Director of the Stanford Constitutional Law Center . He is also a former J udge on the U.S. Court of Appeals for the Tenth Circuit ( 2002

- 2009 )

.3

John T. Montford is a former District Attorney for Lubbock County, a forme r Texas State Senator (D

- Lubbock) , and the first Chancellor of the Texas Tech University System. Michael Mukasey is a former Attorney General of the United States (2007

- 2009) and a former judge on the U.S. District Court for the Southern District of
New Yo rk (1987

- 2006).
T h e o d ore B. Olson is a former Solicitor General of the United States (2001

- 2004) and a former Assistant Attorney General for the Office of Legal Counsel at the United States Department of Justice (1981

- 1984)

. Harriet O’Neill is a former Justice on the Texas Supreme Court (1999

- 2010), a former Justice on the Fourteenth Court of Appeals of Texas (1995

- 1998), and a former Judge on the 152nd District Court of Texas (1993

- 1995). Nathaniel Persily is the James B. McClatchy Professo r of Law at Stanford Law School and served as the Senior Research Director for the Presidential Commission on Election Administration formed by President Barack Obama.
Ken neth W. Starr is a former Solicitor General of the United States (1989

- 1993) and a fo rmer J udge on the U.S. Court of Appeals for the D.C. Circuit (1983

- 1989)

.4

Johnny Sutton is a former United States Attorney for the Western District of Texas (2001

- 2009), appointed by President George W. Bush, and a former Associate Deputy Attorney General at the United States Department of Justice. Eugene Volokh is the Gary T. Schwartz Professor of La w at UCLA School of Law. He also runs UCLA’s First Amendment Amicus Brief Clinic and is the
author of T HE F IRST A MENDMENT AND R ELATED S TATUTES (5th ed. 2013). 1

1 Amici’s institutional affiliations are provided only for purposes of identification. No counsel for a party authored this brief in whole or in part, and no counsel or party made a moneta ry contribution int ended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to its preparation or submission. See T EX
. R. A PP
. P. 11

.5 I NTRODUCTION Governor Rick Perry announced that he would exercise his constitutional authority to veto a bill if another political official did not do what he wanted . The n he vetoed th a t bill. F or these two ordinary political acts, Governor Perry has been indicted on felony charges

. B oth counts of the i ndictment are un constitutional and must be dismissed immediately . The first count

— which criminalizes Governor Perry’s veto of a bill

— violates the separation of powers enshrined in the Texas Constitution . The Legislature is not allowed to criminalize the exercise of powers that the Constitution specifically confers on the Governor , including the veto power

. And t he second count

— which criminalizes Governor Perry’s threat to veto a bill if Travis County D istrict Attorney Rosemary Lehmberg did not resign her
office

— violates the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. Governor Perry “threatened” to perform an
act that the Texas Constitution specifically r eserve s to him (a veto) in order to encourage a public official to engage in a lawful act ( a resignation). That is constitutionally protected speech

. * * * We as amici take no position on the politics that led to this indictment. Reasonable people can di sagree on the political tactics employed by both Governor6

Perry and his opponents. But to turn political disagreement into criminal prosecution is disturbing . To do so with an indictment riddled with constitutional
infirmities is even worse . The indictment of Governor Perry demands this Court’s swift intervention. The writ of habeas corpus should be granted and this prosecution should come to
an end.
A RGUMENT I. Count I of the Indictment Should Be Dismissed, Because It Is Both Unconstitutional an d Barred by Legislative Immunity. Count I of the i ndictment essentially alleges that Governor Perry violated Section 39.0 2 (a)(2) of the Texas Penal Code when he vetoed a bill that would have
funded the continued operation of the Public Integrity Unit of the Travis County District Attorney’s office. The prosecution alleges that Governor Perry exercised this veto “with intent to harm another”

— namely, District Attorney Rosemary Lehmberg and the Public Integrity Unit. But this Count suffers from two independent ly fatal flaws: (1) the Legislature is not allowed to criminalize the G overnor’s exercise of his veto power, and (2) Governor Perry is entitled to absolute legislative immu nity for any exercise of that veto power.7

A . Count I Violates the Constitutional Doctrine of Separation of Powers, Because the Legislature Cannot Criminalize the Exercise of a Governor’s Constitutional Veto Power . 1. The T exas Constitution vests in the G ov ernor the absolute authority to veto appropriations bills. See T EX
. C ONST . art. IV, § 14

. The G overnor is entitled to decide which laws he “approv[es ]” and which he disapproves

— without any constraint from the Legislature , or from special prosecutors. Id

. T he Texas Constitution also includes an explicit separation of powers provision that sets for th the structure o f Texas government : The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein express ly permitted.
T EX
. C ONST
. art. II, § 1

. This express provision “reflects a belief on the part of those who drafted and adopted our state constitution that one of the greatest threats to liberty is the accumulation of excessive power in a single branch of government.” Armadillo Bail Bonds v. Sta te , 802 S.W.2d 237, 239 (Tex. Crim. App. 1990)

. “So important is this division of governmental power that it was provided for in the f irst section of the first article of the Constitution of the Republic of Texas, and alone it8

constituted article 2 of each succeeding Constitution.” Langever v. Miller , 76 S.W.2d 1025, 1035 (Tex. 1934)

. For these reasons, courts have long been vigilant about preventing any attempt by one branch of the government to encroach on the authority constitutionally secured to a different branch. Accordingly , “any attempt by one department of government to interfere with the powers of another is null and void.” Meshell v. State , 739 S.W.2d 246, 252 (Tex. Crim. App. 1987)

. The separation of powers provision is violated “when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its co nstitutionally assigned powers.” Ex Parte Gill , 41 3 S.W.3d 425, 431

- 32 (Tex. Crim. App. 2013)

. Y et the prosecution today claims t hat Section 39.02 (a)(2) criminalizes
Governor P erry’s veto of an appropriations bill. I f that were true, then the statute would be plainly unconstitutional. T he Legislature cannot make it a crime for the
G overnor to veto appropriation s bills, because that would obviously “ interfere [] with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers.” Id. Any such outlawing of the use of the veto power would unilaterally increase the Legislature ’s ow n power, by eviscerating the
G overnor’s power to veto legislation he does not “approve” of

— even though, under the Texas Constitution, every legi slative bill is subject to veto. T he9

Legislature cannot enact a statut e that constrain s that gubernatorial power , thereby enlarging its own

. Nor would the analysis be different if Governor Perry vetoed a bill “with intent to harm another.” The Texas Consti tution places no limits on the
G overnor’s exclusive power to decide which bills to give his “approval.” S o t he Legislature cannot empower the J udiciary to pass judgment on the Governor’s
intent behind a veto and accordingly chill the Governor’s exercise of his veto power through the prospect of criminal punishment

. 2. There are, of course, constitutional limi ts on the G overnor’s veto
power. T he Legislature can override a Governor’s veto with a two

- thirds vote

. The Legislature can threaten not to enact laws that the Governor supports if he continues to exercise his veto in a manner with which it disagree s . T he Legislature even has the power to impeach a Governor for a veto

. And of course, the people of this State could always vote a Governor out of office because of a veto.
Th e Legislature can also criminali ze acts of political corruption , such as the accept ance of a bribe in exchange for a veto. Notably, however , the illegal act in that circumstance is the acceptance o f the bribe

— not the veto itself

. S o a bribery prosecution would not trigger any of the separation of powers issues that plague
this prosecution

. See, e.g. , United States v. Brewster , 408 U.S. 501, 526 (1972) (“There is no need for the Government to show that appellee fulfilled the alleged10

il legal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.”).
N one of these constitution ally permissible acts authorize s criminal prosecution for the Governor’s exercise of his constitutionally prescribed veto
power . 3. I t is not necessary to read Section 39.0 2 (a)(2) in this clearly unconstitutional manner

. T here is no indication that the Legislature int ended for the statute to be so read

. This reading is the prosecution ’s own . This Court can, and should, avoid this constitutional controversy entirely , by declaring that the statute simply does not crimi nalize Governor Perry’s conduct

. As explained in further detail in the Governor’s application for a writ of habeas corpus and motion to quash the indictment , a Governor simply does not have “custody or possession” of a sum of money that starts out in the Texas Treasury, ends up in the Texas Treasury, and remains th roughout in the Texas Treasury

. Those funds are always in the custody of the Comptroller, not the Governor. Not only would this be the most natural reading of the statut ory text , but it would also avoid the constitutional infirmit ies raised by prosecuting Governor Perry for his veto. See, e.g. , Stockton v. Offenbach , 336 S.W.3d 610, 618 (Tex. 2011) (“We presume that when enacting legislation, the Legislature intends to11

comply with the state and federal constitutions, and we are obligated to avoid constitutional problems if possible.”) (quotations and citation omitted).
* * * The Constitution permits only two options : either (1) read Section 39.0 2 (a)(2) the way the prosecution does, and then declare the statute
unconstitutional , bec aus e it violates the separation of powers doctrine decreed in the Texas Constitution ; or (2) avoid the constitutional issue altogether, by interpreting the statute not to apply to a Governor’s veto of an a ppropriations bill

. Either way, Count I must be dismissed.
B. Governor Perry Cannot Be Prosecuted f or His Veto , Because He Is Entitled to Absolute Legislative Immunity for Any Exercise of His Veto Power . Count I also suffers from a separate yet equally fatal flaw: a Governor has absolute legislative immunity from any prosecution based on the exercise of his veto power. 1. L egislative immunity is a common law doctrine that flows from the Speech or Debate Clauses of the Texas and U.S. Constitutions. See In re Perry , 60 S.W.3d 857, 859 (Tex. 2001) (citing U.S. C ONST . art. I , § 6; T EX
. C ONST . art. III, § 21 ). It declares that “individuals acting in a legisl ative capacity are immune from liability for those actions.” Id

.12

The reason for this immunity is simple . A s the U.S. Supreme Court has explained, and the Texas Supreme Court has endorsed:

“ [T]he threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties. In many contexts, government officials are expected to make decisions that are impartial or imaginative, and that above a ll are informed by considerations other than the personal interests of the decisionmaker. Because government officials are engaged by definition in governing, their decisions will often have adverse effects on other persons. When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criter ia that ought to guide their conduct. ” Id. (alterations in original) (quoting Forrester v. White , 484 U.S. 219, 223 (1988) ). And for precisely tho se same reasons, th e motiv ation behind a legislative
act

— be it partisan, personal, or parochial

— is utterly irrelevant to the priv ilege of legislative immunity : The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to th e cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’ s speculation as to motives. Tenney v. Brandhove , 341 U.S. 367, 377 (1951)

. See also Perry , 60 S.W.3d at 859

- 60 (“The legislative immunity doctrine recognizes that it is not consonant with13

our scheme of government for a court to inquire into the motives o f legislators.”) (q uotations omitted).
2. Notably , legislative immunity extends to any official who is acting in

a legislative capacity, whether or not the official is a member of the Legislature

. For example , the Texas Supreme Court has held that legislative immunity protects the Attorney General and the Comptroller (who are usually executive officials) when they perform “legislative function s ” as members of the Legislative Redistricting Board

. Perry , 60 S.W.3d at 860

. “Courts have extended the legislative immunity doctrine beyond federal and state legislators to other individuals performing legitimate legislative functions , ” such as mayors, city
council vice

- presidents, and others. Id. Indeed, “ [a]ctions to which courts have extended absolute legislative immunity include a mayor’s veto of an ordi nance passed by a city council. ” Camacho v. Samaniego , 954 S.W.2d 811, 823 (Tex. App.

— El Paso 1997 , pet. denied ) (citing Hernandez v. City of Lafayette , 643 F.2d
1188 , 1194 (5th Cir. 1981) ). “[W]hen the mayor of a municipality vetoes an ordinance passed by the city’s legislative body, he performs a legislative function and is entitled to absolute immunity from a civi l suit complaining about actions taken in his legislative capacity.” Hernandez , 643 F.2d at 1194.
J ust as a mayoral veto is a legislative act subject to legislative immunity, so too is a gubernatorial veto

. Texa s law is clear that a gubernatorial veto is a14

legislative act, not an executive act. See , e.g. , Jessen Assocs., Inc. v. Bullock , 531 S.W.2d 593, 598 (Tex. 1975) ; Fulmore v. Lane , 140 S.W. 405, 411 (Tex. 1911) ; Pickle v. McCall , 24 S.W. 265, 268 (Tex. 1893)

. Thus, Governor Perry is immune from liability for his veto

. T his legislative immunity applies to criminal prosecutions as well as civil

s uits

. Indeed, t he core principle behind legislati ve immunity is to enable our

“ representatives to execute the functions of their office without fear of prosecution s , civil or criminal .” Tenne y , 341 U.S. at 373

- 74 (emphasis added)

. As courts have recognized, the “ level of intimidation against a local legislator arising from the threat of a criminal proceeding is at least as great a s the threat from a civil suit, ” so “the privilege or immunity enjoyed by local legislators should be ex tended to criminal proceedings. ” State v. Holton , 997 A.2d 828, 845, 856 (Md. Ct. Spec. App. 2010), aff’d , 24 A.3d 678 (Md. 2011) ( quotations omitted). 2

2 See also Doe v. McMillan , 412 U.S. 306, 312

- 13 (1973) (“Congressmen .

. . are immune from liability for their actions within the ‘legislativ e sphere,’ even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”) (citation omitted); D’Amato v. Superior Court , 167 Cal. App. 4th 861, 871 (Cal . Ct. App. 2008) (“The district attorney .

. . contends immunity applies only to civil suits, and does not extend to criminal prosecutions. We di sagree.”); City of Dublin v. State , 742 N.E.2d 232, 236 (Ohio Ct. App. 2000) (“‘legislative privilege’ embodies .

. . substantive immunity from civil and criminal li ability”); State v. Neufeld , 926 P.2d 1325, 1337 (Kan. 1996) (“[I]f a legislator’s conduct falls within a legitimate legislative sphere, legality of the conduct is not a pri mary concern.”).15

So Count I presents a particularly straightforward application of legislative immunity. A conviction under Section 39.02(a)(2) requires an inquiry into Governor Perry’s subjective state of mind. See T EX
. P ENAL C ODE § 39.02(a)(2) (requir ing “ intent to harm ”) . But “it is not consonant with our scheme of government for a court to inquire into the motives of legislators.” Perry , 60 S.W.3d at 859

- 60 (quotations omitted)

. “If the motives for a legislator’s legislative activities are suspect, the constitution requires that the remedy be public exposure; if the suspicions are sustained, the sanction is to be administered either at the ballot box or in the legislature itself .” State v. D ankworth , 672 P.2d 148 , 152 (Alaska Ct. App. 1983) . “ The claim of an unworthy purpose does not destroy the privilege

. . . . In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies.” Tenney , 341 U.S. at 377

- 78

. 3
3. The special prosecu tor argues that legislative immunity does not apply to a criminal prosecution of a Governor’s exercise of the veto power, relying

3 See also United States v. Dowdy , 479 F.2d 213, 266 (4th Cir. 1973) (“Once it was determined, as here, that the legislative function . . . was apparently being performed, the propriety and the motivation for the action taken, as well as the detail of the acts performed, are immune from judicial inquiry.”); Irons v. R.I. Ethics Comm’n , 973 A.2d 1124, 1131 (R.I. 2009 ) (“‘[A]s long as [a legislator’s] challenged actions, stripped of all considerations of intent and motive, were legislative in character, the doctrine of absolute legislative immunity protects them from such claims.’”); D’Amato , 167 Cal. App. 4th at 869 (“courts cannot inquire into the impetus or motive behind legislative action”) (quotations omitted).16

heavily on a single district judge ’s decision s in United States v. Mandel , 415 F. Supp. 997 (D. Md. 1976) , and United States v. Mandel , 415 F. Supp. 1025 (D. Md. 1976) . But th at case is in apposite. First, a crucial aspect of Mandel is not present here. The re, the district judge reasoned that “the rationale for immunity from criminal prosecution is wholly lacking” when a prosecution comes from the executive branch. Mandel , 415 F. Supp. at 1031. As the judge explained, “[t]he executive has no reason to fear for its independence as a co

- equal branch of government as a consequence of any criminal prosecution brought by itself.” Id

. But the executive branch in Texas is not unitary . T he Governor and the Attorney General are separately elected . Moreover, the power to bring criminal prosecution s in Texas is divided between the Attorney Genera l and local district attorneys, with the bulk of the authority in the hands of district attorneys. S o the chief executive of Texas does have reason to fear for his independence

— as evidenced by this very case, he is subject to criminal prosecution brought by officials wholly outside of his authority

. S econd, Gover nor Mandel was not entitled to legislative immunity in any
event. Mandel concerned the federal p rosecution of a state official. As t he U.S. Supreme Court has made clear , legislative immu nity does not apply in that context, because immunity derives from the separations of powers within a sovereign, not17

between sovereigns. See United States v. Gillock , 445 U.S. 360, 370 (1980)

. Mandel did not involve a state prosecution of a state official and is thus inapplicable to this case

. The special prosecutor also cites Jorgensen v. Blagojevich , 811 N.E.2d 652 (Ill. 2004) , and Clinton v. Jones , 520 U.S. 681 (1997) , to argue that legislative immunity should not apply in this case. But neither of those cases even remotely supports that position

. Jorgensen involved a suit against a governor in his official capacity to declare an official act unconstitutional. It had nothing to do with holding a governor personally liable, either civilly or criminally, for an official
act. Obviously Governor Perry can be sued in his official capacity when a plaintiff is seeking to decla re a government action unlawful. T hat happens all the time. But that h as nothing to do with trying to hold him persona lly liable for a legislative act, as is the case here

. Indeed, Jorgensen itself explicitly acknowledged this distinction: We note, moreover, that the Judges have not sought to hold the Governor personally liable for his actions , nor are they attempting to force him to take or to refrain from taking any particular action. He was named in the litigation because he was one of the state officials involved in the sequence of events which led to the failure of the Judges to receive their FY2004 COLAs. There is nothing unusual about his inclusion as a party. Examples of Illinois governors being joined as defendants in cases seeking declaratory and injunctive relief based on alleged violations of state constitutional and legal requirements are commonplace.18

Jorgensen , 811 N .E.2d at 6 66 (emphasis added). The special prosecutor curiously omitted this passage from his discussion of Jorgensen , even though it appears immediately before the passage that the special prosecutor chose t o block quote. See Appellee’s Br. 4 6

- 4 7

. This omission is telling. After all , th is passage shows that a governor would have legislative immunity if someone were seeking to hold him “personally liable for his actions , ” id

. — as the special pros ecutor is attempting to do here. Clinton is not helpful to the special prosecutor either. The Supreme Court there said that immunity does not apply to unofficial conduct

— but that it would apply to official acts. A s the Court explained, “[t]he principal rationale f or affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.” Clinton , 520 U.S. at 692

- 93. Here, Governor Perry is being held criminally l iable for an official act (a veto), not for any unofficial conduct, so he is entitled to immunity.
* * * Allowing Count I to proceed would utterly defeat the purpose of legislative immunity

. Just like legislators, governors acting in their legislative ca pacity “must enjoy the same ability to speak and act in their legislative capacities, without fear of retribution, either criminally or civilly, because of w hat they say or how they vote.” Holton , 997 A.2d at 856. Governors “may be called upon to answer for19

their legislative conduct to the citizens who elected them , which is what democracy is all about.” Id

. “[B] ut they may not be compelled to defend their legislative conduct to a prosecutor, to a grand jury or to a court.” Id

. And dangerous as the prosecution’s theory originally was, it has become even more striking with the amended indictment and bill of particulars filed on February 13, 2015 . Under the theory of t hat amended indictment , it is now a crime for the Governor to veto an appropriation

— or for any government official to do any official act

— for any purpose other than “for the sole benefit of the people of the State of Texas,” such as “for the benefit of any private or individual purpose, private business, political par ty, or other.” So if a prosecutor decides that a government official did something even in part because it benefit ed the official’s prospect of election to higher office , or improve d the standing of the official’s party, or just improved his reputation

— anything at all other than solely benefit ing the people of Texas

— that is enough for a criminal prosecution. This is far removed from the wisdom of the Framers, who recognized that pol iticians harbor personal ambitions as well as public

- spiritedness; that “[a] mbition must be made to counteract ambition ”; that “[t]h e interest of the man ” is an important aspect of defending “ the constitutional rights ” of his office; and that so long as me n are not angels, the law must actually rely on “the private interest of every individual” officeholder, and not just on officeholders’ “better20

motives,” as an important part of our political system. Federalist No. 51 (Madison)

. II. Count II of the Indictment Should Be Dismissed, Because It Criminalizes Speech Protected by the First Amendment of the U.S. Constitution . Count II of the indictment alleges that Governor Perry violated the law by “threatening” to use his veto powers if a government official did not resign her post. But he has every right to do just that. C riminalizing Governor Perry ’s threat to veto legislation violates his right to freedom of speech under the Texas and U.S. Constitution s . T his Count must also be dismissed.
1. A political official has the right to threaten to perform an official act in order to persuade another government official to engage in some other official
act . That is not a crime

— it is core political speech

. See, e.g. , Watts v. United
States , 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from what is constitutionally protected speech.”).
T he Waco Court of Appeals said precisely that in a similar case twenty

- five
years ago . See State v. Hanson , 793 S.W.2d 270 (Tex. App.

— Waco 1990, no writ) . In that case, a c ounty j udge “was charged with having made a threat to take action as a public official in an attempt to coerce another public official into perf orming an official act

. ” Id . at 272. Specifically, the defendant in Hanson threatened to terminate some of the county’s funding in order to coerce a district21

judge to fire a county auditor and to coerce a county attorney to revoke an individual’s probation. Id

. at 271

- 72. B oth the trial court and the c ourt of a ppeals correctly dismissed the charges. A s the c ourt explained , in this sort of political
context, “[c]oercion of a lawful act by a threat of lawful action is protected free expression.” Id

. at 272. So too here. Governor Perry has been charged with attempting to “coerce” a lawful , official act ( the voluntary resignation of a public official ) by threat en ing to take a lawful , official act ( the veto of an appropriations bill )

. 4 That is protected free expression , and the G overnor cannot be prosecuted for it. The prosecution attempts to distinguish Hanson by suggesting that Governor
Pe rry was acting unlawfully when he made his alleged “threat,” because he did not have the authority or control to request the resignation of D.A. Lehmberg. Appellee’s Br. 25. But g overnment officials are obviously allowed to use their powers to influence even those over whom they do not have direct supervision . A Senator may condition his vote for an appropriations bill on the resignation of a Cabinet Secretary, even though only the President can fire the Secretary. A President may threaten to veto a bil l unless Senators agree to ratify a treaty, even

4 We accept here for purposes of argument the specia l prosecutor’s position that D.A. Lehmberg’s resignation would have constituted an official act. But if leaving office is not an official act, then the elements of Section 36.03(a)(1) would not be satisfied, since that statute refers only to attempts to influence the exercise of “official power” or “official duty.”22

though the President has no authority to directly mandate the signing of the treaty. There is nothing criminal about th is sort of political hardball.
2

. T he consequences of allowing Governor Perry to be pro secuted under this law would be both far

- reaching and devastating

. The prosecution’s theory of the case would criminalize a vast swath of constitutionally protected

— and

common

—

political speech

. For example, i t would make it illegal for :

 a legislator to tell the Governor, “if you appoint John Smith to this position, I won’t vote for this law you want me to support”;

 a Governor to tell a legislator, “if you don’t amend this bill in a particular way, I’ll veto it”;

 a state legislator to tell a U.S. Senator, “if you vote for this federal bill, I’ll vote against this state law that you like ”;

 a legislator to tell the G overnor, “if you don’t resign, I’ll vote to impeach you”; or

 a government employee to tell his supervisor, “ if you don’t give me a raise, I’ll ask for a transfer to a different department.”
Nor need we limit ourselves to hypotheticals

. Consider, for examp le, what happened during the Texas Youth Commission controversy in 2007

. Countless

state legislators acros s the political spectrum demanded the resignation of the commissioners

— and threatened legislative action if they refused. “[Senator] Ogden said the Finance Committee is prepared to use the power of the purse to influence change at TYC .

. . . He said sig nificant changes will have to occur23

within TYC, enough for him to have confidence to recommend to his committee members that ‘any appropriation’ should go to the agency.” Lawmakers Decry Abuses Within Texas Youth Commission , T EXAS S ENATE N EWS , Feb. 27, 2007

. See also Perry: Board to Resign , W AXAHACHIE D AILY L IGHT , Mar. 15, 2007 (“[At] a meeting of the joint committee charged with addressing problems at the TYC, lawmakers asked for the resignation of the board members, going so far as to pass a vote of no confidence against the board.”). Likewise, when U.S. Senator Larry Craig was arrested for indecent conduct in a public restroom, “Republican leaders embarrassed by Craig’s behavior and news conference threatened to conduct hearings if Craig did not resign.” Hardball
wit h Chris Matthews , MSNBC ( Sept. 5, 2007 ) , transcript available at http://www.nbcnews.com/id/20623566/ns/msnbc

- hardball_with_chris_matthews /t/ hardball

- chris

- matthews

- sept

. And when it was revealed that U.S. Representative Anthony Weiner had sent sexually themed photographs of himself via Twitter, “his fate was sealed .

. . when party leaders in Congress and President Barack Obama began vociferously calling for him to go and threatened to remove him from various committees

. ” Alex Spilius & Jon Swaine, Ant hony Weiner Resigns over Lewd Twitter Photographs , T ELEGRAPH (U.K.) , June 16, 2011

.24

A ccording to the prosecution in this case, it would have been a crime under Texas law for any of tho se officials to demand the resignation of other officials , and then to inform the other officials of potential retaliatory legislative actions if they refused. That cannot be correct . What the Texas legislators did in 2007 , what the U.S. Senate Republican leadership did in 2007, and what the U.S. House
Democratic leadership did in 2011 was neither criminal nor capable of being criminalized

—

it w as protected political speech. And so too here. J ust as Texas legislators were entitled t o demand the resignation of the members of the Youth Commission , and just as members of Congress were entitled to demand the resignation of a Senator and a Representative who had disgraced their offices, Governor Perry was entitled t o demand the resignation of an official who he felt was no longer serving the best
interests of the Texans he was electe d to represent

— and to promise to use his constitutionally pr escribed veto power to achieve his goal. That i s protected speech , and the State cannot criminalize any of it.
3. Th e vast amount of protected speech that would be deemed criminal under the prose cution’s theory reveals another fundamental problem with this
C ount: the statute is unconstitutionally overbroad and therefore facially invalid. Thus, even though Governor Perry engaged in constitutionally protected expression, in fact no one can be prosecuted under this statute.25

A law is unconstitutionally overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Wash

. State Grange v. Wash

. State Republican Par ty , 552 U.S. 442, 449 n.6 (2008) (quotations omitted). And the possibility of prosecutorial discretion cannot save an overbroad statute. “[T ]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige . We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” United States v. Stevens , 559 U.S. 4 60, 480 (2010) . Here, the law

— as interpreted by the prosecution

— would plainly capture an overwhelming amount of protected speech. It is accordingly unconstitutionally overb road. 5
The prosecution does argue that the statute is not overbroad, because coercive threats are not entitled to First Amendment protection. Appellee’s Br. 14
& nn. 30

- 32 (citing Duncantell v. State , 230 S.W.3d 835, 843

- 44 (Tex. App.

—

5 T he prosecution argues that “if the court can identify any factual circumstance in which the statute is valid, the facial chal lenge must fail”

— and accordingly provides hypothetical applications of the statute that it claims would not violate the First Amendment. Appellee’s Br. 15

- 16. But that is the opposite of the overbreadth doctrine, which provides that a law must be faciall

y struck down so long as a “substantial number”

— not all

— of its applications ar e unconstitutional. “ [T] he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.” Broadrick v. Oklahoma , 413 U.S. 601, 612 (1973). The overbreadth doctrine is, in that sense , an exception to the traditional approach to facial challenge to statutes

— an exception that the prosecution seems to have forgotten.26

Houston [14th Dist.] 2007, pet. ref’d) ). But t hreatening to engage in an official act in order to “coerce” someone to take an official act is not a punishable threat; it is protected political speech. See Hanson , 793 S.W.2d at 272. And Duncantell provides no different. That case made the simple point that interfering with a police officer while he is on the s treet performing a law enforcement function is not expressive activity. See Duncantell , 230 S.W.3d at 844 (addressing interfer ence with a “ peace officer performing a duty imposed by law, such as investigating an accident or arresting a criminal suspect”). It does not mean that , for instance, a newspaper can be punished for harshly criticizing the police, even when that inte rferes with officers’ authority and thus makes it harder for the m to perform their duties

. It does not mean that a legislator can be punished for voting against a bill that would better fund police officer s , because that too would make it harder for police officers to perform their duties. Likewise, i t does

no t mean that a Governor can be punished for dem anding the resignation of a D.A

. simply because that would mean the D.A. would no longer be performing the
duties of a D.A

. 4

. The prosecution argues , for the first time on appeal , that Governor Perry’s speech is actually “ government speech ”

— and thus any regulation of his speech is wholly exempt from First Amendment scrutiny. See, e.g. , Appellee’s Br.27

9

- 10 & nn. 11

- 18 (citing Garcetti v. Ceballos , 547 U.S. 410, 422 (2006) ; Pickering v. Bd. of Educ. , 391 U.S. 563, 568 (1968) ). But the speech of elected officials at issue here is simply not government speech as defined by the Garcet ti line of cases

. 6 Indeed, c ommon sense demands that it not be government speech

. Does the special prosecutor truly believe that the
L egislature could , with a veto

- proof majority, prevent the Governor from saying anything at all on particular topics? Of course not

— yet that is precisely what the
L egislature could do if Governor Perry’s speech w ere deemed government speech. Moreover, even if this Garcetti argument is taken seriously, it is fu rther undermined by the fact that Section 36.03(a)(1) is not limited to speech by elected officials. See T EX
. P ENAL C ODE § 36.03(a)(1) (“ A person commits an offense if

. . .”) (emphasis added). It would also apply to newspaper publishers, advocacy groups, and average citizens who make legal statements in an attempt to influence legal acts (such as what Governor Perry did here). Criminalizing such speech is

6 See, e.g. , Jenevein v. Willing , 493 F.3d 551, 558 (5th Cir. 2007) (“We are persuaded that the preferable course ought not draw directly upon the Pickering

- Garcetti line of cases for sorting the free speech rights of employees elected to state office.”); Rangra v. Brown , 566 F.3d 515, 523

- 24 (5th Cir. 2009) (“None of the Supreme Court’s public employee speech decisions qualifies or limits the First Amendment’s protection of elected government offici als’ speech.”), on reh’g en banc , 576 F.3d 531 (5th Cir. 2009) (mooted). “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.” Bond v. Floyd , 385 U.S. 116, 135

- 37 (1966)

.28

plainly unconsti tutional

— and Section 36.03(a)(1) is thus unconstitutionally overbroad.
5. The prosecution also declares that “[t] he ‘Coercion of a Public Servant’ statute does not make the favored/disfavored expression distinction that would raise constitutional [ content

- discrimination] concern.” Appellee’s Br. 20.
But the prose cution offers no explanation for this statement

— which is unsurprising, because the statute is plainly content based. It specifically singles out speech that is intended to a ffect an act by a publ ic official.
6

. The prosecution oddly argues that the law is constitutional because “[w] here one public servant is threat ened by another public servant .

. . the possibility that the public servant speaker may assert First Amendment protection is precisely what makes the coercive threat so effective in seeking to influence the public servant listener. ” Appellee’s Br. 8. The prosecution concludes that “[t] his precisely is the legitimate basis for courts allowing the State to regulate and put limits on a pu blic servant’s speech with greater latitude than regulating speech of a private citizen. ” Id. But that cannot be right . Is the prosecution really arguing that if a public official has a First Amendment right to say something, the Legislature a ctually has a greater basis for regulating that speech? I f anything, the opposite is true: the29

First Amendment is particularly crucial when the Legislature is trying to restrict protected political speech in an attempt to diminish its effectiveness.
* * * Last year , President Obama threatened to issue various executive orders if Congressional Republicans refused to pass comprehensive immigration reform. See, e.g. , President Barack Obama, Remarks by the President in a Press Conference (Nov. 5, 2014), transcript avai lable at http://www.whitehouse.gov/the

press - office/2014/11/05/remarks

- president

- press - conference ; Neil Munro, Priebus: Obama Executive Amnesty Is A ‘Nuclear Threat , ’ T HE D AILY C ALLER ( Nov. 7, 2014 ) , available at http://dailycaller.com/2014/11/07/priebus

- obama

- execut ive

amnesty

- is

- a - nuclear

- threat

. The President later followed through on th at threat. To be sure, those executive actions are highly controversial and are currently the subject of litigation. But no one could seriously argue that President Obama’s political statements regarding those actions are unprotected by the First Amendment and subject to potential criminal prosecution.
So too here. Just as President Obama can tell Congressional Republicans (as he did at an official White House press conference ) : “You send me a bill that I can sign, and those executive actions go awa y”

— Governor Perry can tell a convicted30

government offici al essentially the same thing: “You resign , and my veto goes
away . ” Moreover, i f this prosecution is not immediately dismissed, the chilling effect on political discourse will be disastrous. Any public official who seeks to drive criminally or disgracefully behaving officials out of office will now rightly fear that a district attorney from the other side of the political spectrum would prosecute him

— just as Governor Perry is being prosecuted here today. 7 If Gove rnor Perry is forced to endure a criminal trial, then the damage will already be done

— even if he is ultimately acquitted

. The mere knowledge that an
indictment can be maintained would itself chill a vast spectrum of constitutionally protected political speech by other political officials

. See Hanson , 793 S.W.2d at 273 (“A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.”) (citing Grayned v. City of Rockford , 408 U.S. 104 , 108

- 09 (1972) ). The special prosecutor argues that there is no chilling effect, both because
the statute has been on the books for decades and because no speech has been chilled since the start of Governor Perry’s prosecution. Appellee’s Br. 16

- 17. As

7 See, e.g. , Andrew Ramonas, Doggett: No Retreat on U.S. Attorney Picks , M AIN J USTICE (Oct. 13, 2009), available at http://www.mainjustice.com/2009/10/13/doggett

- no - retreat

- on - us attorney

- picks/ (quoting statement of U.S. Representative Lloyd Doggett recommending “LULAC

- supported Michael McCrum” for appointment as U.S. Attorney by President Obama).31

to the first reason, of course the mere existence of the statute did not chill free speech. After all, until this special prosecutor came along, no one would have thought that they could be prosecuted for engaging in constitutionally protected political speech (as Hanson confirmed). As to the second reason, the special prosecutor m ight actually be correct that Governor Perry’s prosecution has not yet chilled any speech

— but that is only because most people (though not the special prosecutor and the district court ) expect the case to promptly end because of its obvious constitutional flaw s. But if it does not end immediately, that certainty will be shattered and the constitutional rights of public officials everywhere will be chilled. That is why an immediate writ of habeas corpus is necessary in this case

. This Court should announce

— ri ght now

— that it is unconstitutional to prosecute Governor Perry for his protected political speech

. C ONCLUSION The flaws in this indictment strike at the heart of the separation of powers doctrine enshrined in the Texas Constitution, as well as the freedom s protected by both the First Amendment of the U.S. Constitution and Article I, Section 8 of the Texas Constitution. So this prosecution must end immediately. The application for a writ of habeas corpus should be granted.32

DATED: April 19 , 2015

Eugene Volokh California Bar No. 194464 Gary T. Schwartz Professor of Law UCLA S CHOOL OF L AW 385 Charles E. Young Dr. East Los Angeles, CA 90095 Tel.: (310) 206

- 3926 volokh@law.ucla.edu Respectfully submitted,

/s/ James C. Ho James C. Ho Texas Bar No. 24052766 Prerak Shah Texas Bar No. 24075053 Bradley G. Hubbard Texas Bar No. 24090174 G IBSON , D UNN & C RUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201

- 6912 Tel.: (214) 698

- 3264 Fax: (214) 571

- 2917 jho@gibsondunn.com pshah@gibsondunn.com bhubbard@gibsondunn.com
C OUNSEL FOR A MICI C URIAE33 C ERTIFICATE OF C OMPLIANCE I hereby certify that this brief satisfies the word

- limit requirements for amicus briefs contained in the Texas Rules of Appellate Procedure, be ca use it contains a total of 7 , 244 words, excluding the portions that can be excluded pursuant to those same rules.

/s/ James C. Ho James C. Ho34 C ERTIFICATE OF S ERVICE I hereby certify that, on April 19 , 2015 , a true and correct copy of the foregoing was served via electronic mail on the following counsel of record for all parties in this case :

Michael McCrum District Attorney Pro Tem Travis County, Texas 700 N. St. Mary ’ s St., Suite 1900 San Antonio, TX 78205 David M. Gonzalez Assistant District Attorney Pro Tem Travis County, Texas 206 East 9th Street, Suite 1511 Austin, TX 78701 Counsel for the State of Texas Anthony G. Buzbee T HE B UZBEE L AW F IRM JPMorgan Chase Tower 600 Travis Street, Suite 7300 H ouston, TX 77002 Thomas R. Phillips B AKER B OTTS LLP 98 San Jacinto Boulevard, Suite 1500 Austin, TX 78701 David L

. Botsford B OTSFORD & R OARK 1307 West Avenue Austin, TX 78701 Counsel for Applicant

/s/ James C. Ho James C. Ho