NO. 03-15-00063-CR 

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

_________________________________________

EX PARTE JAMES RICHARD “RICK” PERRY

_________________________________________

APPELLANT’S SUPPLEMENTAL SUBMISSION

THE BUZBEE LAW FIRM

Anthony G. Buzbee

State Bar No. 24001820

JPMorgan Chase Tower

600 Travis Street, Suite 7300

Houston, Texas 77002

Tbuzbee@txattorneys.com

Telephone: 713.223.5393

Facsimile: 713.223.5909

BOTSFORD & ROARK

David L. Botsford

State Bar No. 02687950

1307 West Ave.

Austin, Texas 78701

dbotsford@aol.com

Telephone: 512.479.8030

Facsimile: 512.479.8040

BAKER BOTTS L.L.P.

Thomas R. Phillips

State Bar No. 00000102

98 San Jacinto Blvd., Suite 1500

Austin, Texas 78701-4078

tom.phillips@bakerbotts.com

Telephone: 512.322.2500

Facsimile: 512.322.2501

ACCEPTED

03-15-00063-CR

5088006

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/29/2015 3:53:04 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/29/2015 3:53:04 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

Page

Table of Contents....................................................................................................... i

Table of Authorities.................................................................................................. ii

1. Justiciability. ..............................................................................................1

2. Relevance of Intervening Trial Court-Level Developments. ....................5

Prayer For Relief........................................................................................................7

Certificate of Compliance ..........................................................................................8

Certificate of Service .................................................................................................8

i
TABLE OF AUTHORITIES

Page(s)

CASES

Carey v. Brown,

447 U.S. 455 (1980)..............................................................................................6

Ex parte McCullough,

966 S.W.2d 529 (Tex. Crim. App. 1998) .............................................................2

Org. for a Better Austin v. Keefe,

402 U.S. 415 (1971)..............................................................................................6

Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,

971 S.W.2d 439 (Tex. 1998) ................................................................................1

Puckett v. State,

801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)..................6

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993) ................................................................................2

Virginia v. Black,

538 U.S. 343 (2003)..............................................................................................6

Watts v. United States,

394 U.S. 705 (1969)..............................................................................................6

Williams v. Lara,

52 S.W.3d 171 (Tex. 2000) ..................................................................................2

ii
NO. 03-15-00063-CR 

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

_________________________________________

EX PARTE JAMES RICHARD “RICK” PERRY

_________________________________________

APPELLANT’S SUPPLEMENTAL SUBMISSION

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW Appellant, James Richard “Rick” Perry, by and through his 

counsel of record, and pursuant to the Court’s directive of April 28, 2015, would 

respectfully show this Honorable Court the following:

None of the intervening trial court-level developments has any impact on the 

justiciability of the constitutional issues raised in Governor Perry’s appeal. The 

only possible relevance to this Court of the State’s attempt to amend its pleadings 

and submit a bill of particulars comes in two admissions made by the State that are 

directly relevant to Appellant’s Issues IV through VII. 

1. Justiciability. 

Issues of justiciability, such as mootness and ripeness, implicate a court’s 

subject matter jurisdiction. Patterson v. Planned Parenthood of Hous. & Se. Tex., 

Inc., 971 S.W.2d 439, 442-43 (Tex. 1998). Because Texas courts lack 

1
jurisdiction to render advisory opinions, Tex. Ass’n of Bus. v. Tex. Air Control Bd., 

852 S.W.2d 440, 444 (Tex. 1993), a controversy must exist between the parties at 

every stage of a legal proceeding for Texas courts to have and retain jurisdiction. 

Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000). 

This Court has jurisdiction over Governor Perry’s appeal because of the trial 

court’s denial of his application for writ of habeas corpus. Ex parte McCullough, 

966 S.W.2d 529, 531 (Tex. Crim. App. 1998). None of the intervening trial 

court-level developments affects the cognizably or ripeness of Governor Perry’s 

appeal. The issues he raises in this Court must be determined prior to any trial, 

because they seek to vindicate his constitutional right not to be tried in the first 

instance. As reflected by the transcription of the February 3, 2015, pretrial 

hearing, 3RR 11-12, 16-22, neither Governor Perry nor the State requested a stay 

of the trial court proceedings pending resolution of this appeal.1

 The only way 

that intervening trial court-level developments could have any impact on his 

appellate issues would be for the trial court to quash both counts of the indictment 

and the State not to appeal that order. Such a complete and final trial court 

victory would, of course, moot this appeal by eliminating the illegal restraint that 

1 Governor Perry did inform the trial court that if his appeal had not been resolved prior 

to any trial date, he would seek a stay of the trial in order to protect the constitutional rights he 

seeks to vindicate here. 3RR at 11-12, 16-22.

2

 
forms the basis of his application for writ of habeas corpus.2

The State’s “Bill of Particulars and Amendment of Indictment,” filed on 

February 13, 2015, does not address any of the constitutional issues raised by 

Governor Perry in his appeal to this Court. Nothing in Governor Perry’s appeal is 

undermined or altered by the State’s purported efforts to provide further notice to 

the trial court, the defendant, and the world of how Governor Perry allegedly 

violated the law. 

At the outset, the Court should note that the trial court has not yet ruled upon 

whether to permit the State’s “bill of particulars” or its proposed amendment of 

Count II. Governor Perry has objected to all of the State’s new pleadings 

because, among other things, the “bill of particulars” is unauthorized by Texas law, 

the proposed amendment of Count II conflicts with facts necessarily found by the 

grand jury to support the original, current version of Count II, the proposed 

amendment to Count II still fails to negate the statutory exception of Section 

36.03(c), and the proposed amendment to Count II contains allegations that are 

manifestly contradicted by undisputed facts and law. These objections are 

important to Governor Perry, of course, but they are not relevant to this appeal.3

2 If the trial court quashed only one of the two counts and the State did not appeal that 

order, then the issues solely relating to the quashed count would become moot.

3 In response to Governor Perry’s “objections” and his January 30, 2015, “Third Motion 

to Quash,” the State filed two pleadings on April 17, 2015. Thereafter, on April 28, 2015, 

3

 
Even if all of Governor Perry’s objections are overruled, the new pleadings will 

not strengthen the State’s opposition to the relief Governor Perry seeks here, and 

indeed they may weaken it, as discussed below in subsection 2. To respond fully 

to the Court’s questions, however, Governor Perry will assume for purposes of this 

discussion that the trial court will overrule his objections, allow the proposed 

amendment of Count II, and conclude that the State’s” bill of particulars” resolves 

his current, pending motions to quash.

The State’s proposed amendment of Count II is merely a further attempt to 

negate the statutory exception of Section 36.03(c). Nothing in Governor Perry’s 

appeal relates to that exception, so nothing in the proposed amendment would 

affect this Court’s resolution of Governor Perry’s constitutional claims. 

Similarly, the State’s “bill of particulars” has no effect on this Court’s resolution of 

the constitutional issues raised in Governor Perry’s appeal.

In sum, there is a live controversy between the State and Governor Perry in 

the context of his appeal to this Court, based on the illegal restraint imposed upon 

him by virtue of the indictment and his bond. That controversy is based on 

Governor Perry filed his “Consolidated Reply to the Prosecution’s Pleadings of April 17, 2015,”

which have not yet been transmitted to this Court. Nothing in any of these pleadings has any 

impact upon the issues raised in Governor Perry’s appeal, except as otherwise mentioned below 

in subsection 2, below. Although not necessarily reflected by the record currently before this 

Court, Governor Perry represents to the Court that there are no settings currently scheduled in 

the trial court and the State is in the process of producing discovery. 

4

 
constitutional issues which directly impact the State’s ability to proceed with this 

prosecution. None of those issues have been rendered moot by any of the 

intervening trial court-level developments. This Court has jurisdiction and the 

issues are ripe for this Court’s review.

2. Relevance of Intervening Trial Court-Level Developments. 

While, as discussed above, the subsequent developments in no way 

compromise or diminish Governor Perry’s right to habeas corpus relief, the State 

has made two admissions in its pleadings that make the outcome even clearer in 

this Court. 

First, in its “bill of particulars,” the State concedes that the gravamen of 

Count I was a misuse of Governor Perry’s constitutional right to veto items of 

appropriation. To the extent that this Court may have shared the trial court’s 

concern that Count I did not specifically utilize the term “veto,” see CR472 n.6; 

CR454-457, the State’s concession should obviate that concern. This concession 

adds force to, but is not necessary for, the arguments previously advanced by 

Governor Perry to bar a trial on Count I. 

Second, in its April 17, 2015, “Response to Defendant’s Third Motion to 

Quash” at 19, the State admitted that the alleged threat upon which Count II is 

based is “not a true threat.” Supplemental Clerk’s Record filed April 27, 2015 at 

88. As pointed out in Governor Perry’s April 28, 2015, “Consolidated Reply to the 

5
Prosecution’s Pleadings of April 17, 2015” at 8-9, this dispositive concession 

mandates that Count II be quashed because prosecuting anything less than a “true 

threat” violates the First Amendment and the corresponding free speech guarantee 

of the Texas Constitution,4 even where the threat is otherwise coercive.5

 This 

admission thus requires this Court to sustain Issue VII, which attacks the 

constitutionality of the prosecution on Count II, but it has no direct effect on Issue 

I or II. 

4 See e.g., Virginia v. Black, 538 U.S. 343, 359 (2003)(defining “true threats” as 

“statements where the speaker means to communicate a serious expression of an intent to 

commit an act of unlawful violence”); Watts v. United States, 394 U.S. 705, 707-08 (1969) 

(“What is a threat must be distinguished from what is constitutionally protected speech” because 

of the “profound national commitment to the principle that debate on public issues should be 

uninhibited, robust, and wide open, and that it may well include vehement, caustic, and 

sometimes unpleasantly sharp attacks on government and public officials”). See also Puckett v. 

State, 801 S.W.2d 188, 194 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)(holding that 

statements by a defendant indicted under the retaliation statute, Section 36.06(a), “could 

reasonably be interpreted” as a “true threat” reflecting an “intent to kill or injure,” and hence not 

protected speech).

5 See N.A.A.C.P v. Claiborne Hardware Co., in which the Supreme Court explained that 

“speech does not lose its protected character . . . simply because it may embarrass others or 

coerce them into action.” 458 U.S. 886, 910 (1982) (emphasis added). There, the organizer 

of a civil rights boycott had warned that boycott breakers would be “disciplined,” and that “if we 

catch any of you going into any of them racist stores, we’re gonna break your damn neck.” Id. 

at 902. The Court acknowledged that such statements “might have been understood as inviting 

an unlawful form of discipline or, at least, as intending to create a fear of violence.” Id. at 927. 

These “coercive” statements were far closer to classic, violent “threats” than anything Governor 

Perry allegedly said given the allegations of Count II and the State’s concession, yet the First 

Amendment still protected them because expression on public issues ‘has always rested on the 

highest rung of the hierarchy of First Amendment values.” Id. at 913 (quoting Carey v. Brown, 

447 U.S. 455, 467 (1980)); see also Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) 

(“The claim that . . . expressions were intended to exercise a coercive impact on respondent does 

not remove them from the reach of the First Amendment. Petitioners plainly intended to 

influence respondent’s conduct by their activities; that is not fundamentally different from the 

function of a newspaper.” (emphasis added)). 

6

 
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully 

prays that this Honorable Court reverse the district court’s denial of relief, sustain 

his issues as to cognizability and the merits of his constitutional issues, and bar 

trial on both counts of the indictment and/or dismiss both counts of the indictment, 

or for such other relief to which this Court determines he is entitled. 

Respectfully submitted, 

THE BUZBEE LAW FIRM

/ s / Anthony G. Buzbee

Anthony G. Buzbee

State Bar No. 24001820

JPMorgan Chase Tower

600 Travis Street, Suite 7300

Houston, Texas 77002

Telephone: 713.223.5393

Facsimile: 713.223.5909

Tbuzbee@txattorneys.com

BAKER BOTTS L.L.P.

/ s / Thomas R. Phillips

Thomas R. Phillips

State Bar No. 00000102

98 San Jacinto Blvd

Suite 1500

Austin, Texas 78701-4078

Telephone: 512.322.2500

Facsimile: 512.322.2501

tom.phillips@bakerbotts.com

BOTSFORD & ROARK

/ s / David L. Botsford

David L. Botsford

State Bar No. 02687950

1307 West Avenue

Austin, Texas 78701

Telephone: 512.479.8030

Facsimile: 512.479.8040

dbotsford@aol.com

7
CERTIFICATE OF COMPLIANCE

I hereby certify that excluding the portions of this petition exempted by Tex.

R. App. P. Rule 9.4(i)(1), this brief contains 1,128 words as calculated by the word 

processing program I used. 

/ s / David L. Botsford

David L. Botsford

CERTIFICATE OF SERVICE

This is to certify that a true and complete copy of this document has been 

emailed to Mr. Michael McCrum at michael@McCrumlaw.com and to Mr. David 

Gonzalez at david@sg-llp.com on the same date that it was electronically filed 

with the Clerk of the Court.

/ s / David L. Botsford

David L. Botsford

8