No. 13-15-00063-CR

In the Court of Appeals 

for the Third District of Texas at Austin 

____________________________________ 

EX PARTE JAMES RICHARD “RICK” PERRY

____________________________________ 

APPEAL FROM THE DENIAL OF APPLICATION FOR WRIT OF HABEAS CORPUS

STATE OF TEXAS V.JAMES RICHARD “RICK” PERRY

D-1-DC-14-100139 

IN THE DISTRICT COURT FOR THE 390TH 

JUDICIAL DISTRICT, TRAVIS COUNTY, TEXAS

___________________________________ 

APPELLEE’S SUPPLEMENTAL BRIEF 

____________________________________ 

 

MICHAEL MCCRUM DAVID GONZALEZ 

TEXAS BAR NO. 13493200 TEXAS BAR NO. 24012711 

DISTRICT ATTORNEY PRO TEM ASST. DISTRICT ATTORNEY PRO TEM

TRAVIS COUNTY, TEXAS TRAVIS COUNTY, TEXAS

700 N. St. Mary’s St., Ste. 1900 206 East 9

th Street, Ste. 1511 

San Antonio, Texas 78205 Austin, Texas 78701 

Tel: (210) 225-2285 Tel.: (512) 381-9955 

Fax: (210) 225-7045 Fax: (512) 485-3121 

ATTORNEYS FOR THE STATE OF TEXAS 

ACCEPTED

03-15-00063-CR

5240283

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/11/2015 10:58:13 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/11/2015 10:58:13 PM JEFFREY D. KYLE Clerk
i

TABLE OF CONTENTS

Index Of Authorities ................................................................................................. ii

Questions.................................................................................................................. vi

Summary Of Response...............................................................................................1

Response ....................................................................................................................2

I. Facts developed in trial court are relevant when the interpretation and 

meaning of the critical allegations in the indictment are in dispute................2

A. Principles of justiciability require remand to the trial court. .....................4

1. No factual record thwarts the justiciability of the overbreadth 

challenge.....................................................................................................6

2. The vagueness challenge should also be reserved until after trial. ......10

B. Appellant’s as-applied claims improperly rely upon an interpretation 

of what is alleged in the indictment..........................................................11

1. Appellant must present evidence to be entitled to relief 

on his claims of Speech or Debate privilege. ...........................................15

2. Appellant must present evidence to be entitled to relief 

on his claim of legislative immunity. .......................................................16

3. Appellant must present evidence to be entitled to relief 

on his claim of separation of powers immunity. ......................................16

Prayer .......................................................................................................................17

Certificate of Compliance ........................................................................................19

Certificate Of Service...............................................................................................20
ii

INDEX OF AUTHORITIES

Cases

281 Care Comm. v. Arneson, 

638 F.3d 621 (8th Cir. 2011) ..................................................................................8

Alabama State Fed'n of Labor, Local Union No. 103, 

United Broth. of Carpenters & Joiners of Am. v. McAdory, 

325 U.S. 450 (1945)................................................................................................4

Barnes v. State, 

116 S.W.2d 408 (1938)...........................................................................................2

Bd. of Trustees of State Univ. of New York v. Fox,

492 U.S. 469 (1989)............................................................................................7, 8

Bell v. State, 

243 S.W. 1095 (1922).............................................................................................2

Broadrick v. Oklahoma,

413 U.S. 601 (1973)............................................................................................7, 8

Buchanan v. State, 

52 S.W. 769 (1899).................................................................................................2

Colautti v. Franklin, 

439 U.S. 379 (1979)..............................................................................................11

Costello v. United States, 

350 U.S. 359 (1956)................................................................................................2
iii

Ely v. State, 

582 S.W.2d 416 (Tex. Crim. App. 1979). ............................................................10

Ex parte Boetscher, 

812 S.W.2d 600 (Tex. Crim. App. 1991). ............................................................12

Ex parte Bohannan,

350 S.W.3d 116 (Tex.Crim.App.2011) ..................................................................6

Ex parte Heilman, 

456 S.W.3d 159 (Tex. Crim. App. 2015) .............................................................13

Ex parte Nelson,

815 S.W.2d 737 (Tex.Crim.App.1991) (per curiam) .............................................6

Ex parte Weise,

55 S.W.3d 617 (Tex.Crim.App.2001) ..................................................................14

Gallo v. State,

239 S.W.3d 757 (Tex.Crim.App.2007) ..................................................................6

Gonzales v. State, 

648 S.W.2d 684 (Tex.Cr.App.1983).....................................................................12

Gravel v. United States, 

408 U.S. 606 (1972)..............................................................................................15

Grayned v. City of Rockford, 

408 U.S. 104 (1972)..............................................................................................10

Greenbelt Coop. Publ'g Ass'n v. Bresler,

398 U.S. 6 (1970)....................................................................................................8

Guzman v. State, 

955 S.W.2d 85 (Tex. Crim. App. 1997). ..............................................................11
iv

Hampton v. State, 

86 S.W.3d 603 (Tex. Crim. App. 2002) ...............................................................11

Hoover v. Beto,

439 F.2d 913 (5th Cir.1971) .................................................................................14

Long v. State, 

931 S.W.2d 285 (Tex. Crim. App. 1996). ............................................................10

Meeks v. State,

692 S.W.2d 504 (Tex.Cr.App.1985).....................................................................12

N. A. A. C. P. v. Claiborne Hardware Co.,

458 U.S. 886 (1982)................................................................................................9

Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin,

418 U.S. 264 (1974)................................................................................................8

Org. for a Better Austin v. Keefe, 

402 U.S. 415 (1971)................................................................................................9

Papachristou v. City of Jacksonville, 

405 U.S. 156 (1972)..............................................................................................11

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc.,

971 S.W.2d 439 (Tex. 1998) .................................................................................4

Phillips v. State, 

362 S.W.3d 606 (Tex.Crim.App.2011). ...............................................................13

Proctor v. State, 

967 S.W.2d 840 (Tex. Crim. App. 1998). ............................................................13

Regional Rail Reorganization Act Cases,

419 U.S. 102 (1974)................................................................................................6
v

Renne v. Geary, 

501 U.S. 312 (1991)................................................................................................7

State ex rel. Watkins v. Creuzot,

352 S.W.3d 493 (Tex.Crim.App.2011) ..................................................................6

State v. Rosenbaum, 

910 S.W.2d 934 (Tex. Crim. App. 1994), on reh'g (Dec. 6, 1995)......................14

Stephenson v. State,

494 S.W.2d 900 (Tex.Cr.App.1973).....................................................................14

Texas Ass'n of Bus. v. Texas Air Control Bd., 

852 S.W.2d 440 (Tex. 1993). .................................................................................4

Watts v. United States, 

394 U.S. 705 (1969)................................................................................................9

Statutes

TEX. PENAL CODE § 1.07(a)(9)(F)..............................................................................2

TEX. PENAL CODE § 25.05(g)(2) ..............................................................................12

TEX. PENAL CODE § 36.03(a)(1) ................................................................................2

Other Authorities

13A WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, 

§ 3532.3, at 147 (2d ed.1984). ................................................................................4

NICHOL, Ripeness and the Constitution, 54 U. CHI. L.REV. 153, 169 (1987).........4

TERRI R. DAY, “Nasty as They Wanna be Politics:” Clean Campaigning and the 

First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009)......................................8
vi

QUESTIONS

1. How do actions in the trial court affect the justiciability of the issues

on appeal?

2. When Appellant directs this Court to look to “the face of the 

indictment” to resolve his claims, what happens when the language in 

the indictment changes? 
1

SUMMARY OF RESPONSE

After Appellant was indicted, he filed a writ claiming the indictment was 

invalid because the attorney pro tem was not properly sworn into office. The 

parties exchanges briefs, but the matter was only resolved when the trial court 

conducted a hearing. The hearing took only a few hours. All necessary facts and 

evidence were introduced by the State. The trial court rendered an opinion. The 

matter was settled. 

Though this writ also argues the State lacks authority to prosecute Appellant, 

the State should not be denied an opportunity to present its evidence. An 

indictment has never been the place for the State to plead its evidence, yet 

Appellant seeks final disposition in this case by challenging the sufficiency of the 

evidence alleged in the indictment. 

Facts provide a fulcrum for legal leverage, and absent a record, everything 

that happens in trial court is both relevant and necessary for the justiciability of the 

issues on appeal. Certainly all of Appellant’s as-applied challenges should 

necessarily rely upon factual evidence. Even the facial challenges could be better 

resolved if there were facts in the record. The resolution of these issues is made 

more difficult by the opposing sides’ conflicting interpretations of what are merely 

hypothetical facts. To avoid piecemeal litigation, principles of justiciability warrant 

remand to the trial court. 
2

RESPONSE

I. Facts developed in trial court are relevant when the interpretation 

and meaning of the critical allegations in the indictment are in 

dispute. 

By attempting to frame his appeal as limited solely to the statute and the 

indictment, Appellant is indirectly challenging the sufficiency of the evidence 

supporting the indictment. Importantly, courts have consistently refused to go 

behind the indictment when evidentiary matters are alleged.1 As Justice Black 

stated:

If indictments were to be held open to challenge on the ground that 

there was inadequate or incompetent evidence before the grand jury, 

the resulting delay would be great indeed. The result of such a rule 

would be that before trial on the merits a defendant could always 

insist on a kind of preliminary trial to determine the competency and 

adequacy of the evidence before the grand jury. This is not required 

by the Fifth Amendment. An indictment returned by a legally 

constituted and unbiased grand jury, like an information drawn by the 

prosecutor, if valid on its face, is enough to call for trial of the charge 

on the merits.2

Appellant’s arguments that Texas Penal Code Sections 36.03(a)(1) and 

1.07(a)(9)(F) are facially vague and overbroad are purely legal. But when 

Appellant asserts a right not to be tried, except for bribery, he challenges the 

sufficiency of evidence in the indictment. When he argues the right to speak to his 

 

1

See Barnes v. State, 116 S.W.2d 408 (1938) (insufficient evidence); Bell v. State, 243 S.W. 

1095 (1922) (illegal evidence); Buchanan v. State, 52 S.W. 769 (1899) (incompetent evidence).

2 Costello v. United States, 350 U.S. 359, 363 (1956).
3

staff in deliberations about a veto, he challenges the admissibility of evidence used 

to secure an indictment. And when he argues that he is being illegally prosecuted 

for a valueless veto and not for the underlying dollar amount of the Public Integrity 

Unit funding, he refers to mixed questions of fact and law. In doing so, Appellant 

is seeking exactly the kind of “preliminary trial” that Justice Black warned against.

These types of challenges are distinctly different than “purely legal” claims. 

In this appeal, Appellant seeks to challenge the evidence before the State has even 

presented it. For nine months the parties have exchanged hundreds of pages of 

briefs on these issues. 

We are no closer to a resolution. 

This would not be a complicated criminal case if there were already facts in 

the record. The scope of the indictment covers a narrow window of conduct. The 

evidence largely consists of lay witness testimony. The parties have established 

entrenched positions: Appellant argues he has a Constitutional right to make 

coercive threats and veto prosecutorial appropriations, and the State argues it has 

an absolute right to prosecute him for doing so based on his motives. 

A trial could resolve what legal briefs to this Court cannot. 

After a trial, with evidence then in the record, this Court could at that time 

be called upon to address every legal issue raised by Appellant. However, until 

such evidence is in the record, this Court is faced with deciding these legal issues 
4

by considering merely hypothetical facts and claims of concessions and admissions 

made by lawyers in briefs. Further, conflicting interpretations of these 

hypothetical facts will necessarily persist, permeating even the facial challenges to 

the statute.

A. Principles of justiciability require remand to the trial court. 

A justiciable controversy must be distinguished from an advisory opinion, 

which is prohibited under both the Texas and federal constitutions.3 The 

distinctive feature of an advisory opinion is that it decides an abstract question of 

law without binding the parties.4 The interests of justice are advanced and an 

effective judgment is rendered when the Court may apply the law to a concrete set 

of facts.5“Litigation based upon hypothetical possibility rather than concrete fact is 

apt to be poor litigation. The demand for specificity, therefore, stems from a 

judicial desire for better lawmaking.”6

In this case, after nine months of litigation, the only uncontroverted facts are 

that Appellant is the former Governor of Texas, that Rosemary Lehmberg is the 

elected District Attorney of Travis County, and that the funding for the Public 

 

3

Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

4

Id. at 444.

5 Alabama State Fed'n of Labor, Local Union No. 103, United Broth. of Carpenters & Joiners of 

Am. v. McAdory, 325 U.S. 450, 460 (1945)

6 Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex. 

1998) quoting Nichol, Ripeness and the Constitution, 54 U. CHI. L.REV. 153, 169 (1987); 13A 

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3532.3, at 147 (2d ed.1984).
5

Integrity Unit was eliminated. We also know that the offense took place in Travis 

County. Both sides have acknowledged that both Perry and Lehmberg are public 

servants. Finally, the indictment was returned within the statute of limitations. 

These types of facts are immutable. These types of facts are fixed. These types of 

facts are not subject to context or witness credibility or interpretation. 

But these are not the types of facts that resolve Appellant’s claims. These are 

the only facts for this Court to consider at this point because no other substantive 

hearings have been held. The trial court has been hampered thus far by Appellant’s 

continual attempts to resist getting to the facts. While neither the State’s proposed 

amendments to the indictment nor the Bill of Particulars alter the justiciability of 

Appellant’s facial challenges, because all other challenges involve a mixture of 

facts and law, trial court developments are necessary to resolve his claims. 

General principles of justiciability demand the development of a factual 

record. Without concrete facts to anchor legal analysis, any decision by this Court 

would be subject to appeal when the losing party argues that the Court decided the 

case on the wrong set of hypothetical facts. Any decision by the trial court on the 

pending motions to quash and objections to the Bill of Particulars will affect the 

cognizability of the as-applied challenges based upon the “face of the indictment.” 

The State could seek to amend the indictment again. The trial court could order the 

State to do so. Even if Judge Richardson denies the current two pending motions to 
6

quash, Appellant has the right to file additional motions to quash the indictment. 

Litigation in trial court will continue up until trial, and until trial, without a factual 

record, these will continued to be an unresolved issues. 

This is why the challenges raised here “on the face of the indictment” are 

nonjusticiable mixed questions of fact and law at this stage of the proceedings. 

Justiciability concerns not only the standing of litigants to assert particular claims, 

but also the appropriate timing of judicial intervention.7 A court may delay 

resolution of constitutional questions until a time closer to the actual occurrence of 

the disputed event, or when a better factual record might be available.8This places 

two principles in conflict: Appellant’s claim that he has a not right to be tried, and 

Justice Black’s opinion that the trial court is the best forum to resolve Appellant’s 

claims. 

1. No factual record thwarts the justiciability of the overbreadth

challenge. 

Trial court developments would not ordinarily matter to a facial challenge to 

a statute. But cases involving the First Amendment are different. In Renne v. 

 

7

See Regional Rail Reorganization Act Cases, 419 U.S. 102, 136–148 (1974); see also State ex 

rel. Watkins v. Creuzot, 352 S.W.3d 493, 504–06 (Tex.Crim.App.2011) (considering ripeness of 

criminal defendant's pretrial declaratory judgment claim that the State could not execute him); Ex 

parte Bohannan, 350 S.W.3d 116, 119–20 (Tex.Crim.App.2011) (analyzing justiciability of 

parolee's habeas claims); Gallo v. State, 239 S.W.3d 757, 780 (Tex.Crim.App.2007) (assessing 

justiciability of habeas challenge to the manner of an impending execution); Ex parte Nelson,

815 S.W.2d 737, 738–39 (Tex.Crim.App.1991) (per curiam) (determining applicability of an 

exception to mootness).

8 Regional Rail Reorganization Act Cases, at 143.
7

Geary, the Court addressed the propriety of resolving a facial challenge to the 

constitutionality of statute without first addressing its application to a particular set 

of facts.9The Court explained, “In some First Amendment contexts, we have 

permitted litigants injured by a particular application of a statute to assert a facial 

overbreadth challenge, one seeking invalidation of the statute because its 

application in other situations would be unconstitutional.”10 “[T]he better course 

might have been to address in the first instance the constitutionality of ... as 

applied in the context of [the voter pamphlets at issue].”11 Justice Kennedy 

explained the reason behind waiting for all the facts to be developed: 

The free speech issues argued in the briefs filed here have 

fundamental and far-reaching import. For that very reason, we cannot 

decide the case based upon the amorphous and ill-defined factual 

record presented to us. Rules of justiciability serve to make the 

judicial process a principled one. Were we to depart from those rules, 

our disposition of the case would lack the clarity and force which 

ought to inform the exercise of judicial authority.12

Justice Scalia said the same in Board of Trustee of State University of New York v. 

Fox:

It is not the usual judicial practice, however, nor do we consider it 

generally desirable, to proceed to an overbreadth issue unnecessarilythat is, before it is determined that the statute would be valid as 

applied. Such a course would convert use of the overbreadth doctrine 

 

9 Renne v. Geary, 501 U.S. 312, 323-24 (1991).

10 Id. at 323, citing Broadrick v. Oklahoma, 413 U.S. 601 (1973).

11 Id. at 324. 

12 Id.
8

from a necessary means of vindicating the plaintiff's own right not to 

be bound by a statute that is unconstitutional into a means of 

mounting gratuitous wholesale attacks upon state and federal laws. 

Moreover, the overbreadth question is ordinarily more difficult to 

resolve than the as-applied, since it requires determination whether 

the statute's overreach is substantial, not only as an absolute matter, 

but “judged in relation to the statute's plainly legitimate sweep,” [] and 

therefore requires consideration of many more applications than those 

immediately before the court. Thus, for reasons relating both to the 

proper functioning of courts and to their efficiency, the lawfulness of 

the particular application of the law should ordinarily be decided 

first.13

Further, First Amendment cases involving criticism or defamation against 

public officials are difficult to decide – even with a factual record. Courts and 

scholars constantly struggle to draw a line between knowingly or recklessly false 

statements and uses of rhetoric, exaggeration, and ideologically-derived facts. 14

The First Amendment cases cited by Appellant regarding coercive threats involve a 

rich description of the words spoken, the listener’s reaction, and the relationship 

between parties. In N. A. A. C. P. v. Claiborne Hardware Co. the Supreme Court 

 

13 Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 484-85 (1989) (emphasis 

added), quoting Broadrick v. Oklahoma at 615.

14 281 Care Comm. v. Arneson, 638 F.3d 621, 636 fn. 1 (8th Cir. 2011) citing Greenbelt Coop. 

Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (allegedly false statement that city council member 

blackmailed someone was “no more than rhetorical hyperbole”); Old Dominion Branch No. 496, 

Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974) (holding that the use of the 

word “traitor” could not be reasonably interpreted as a representation of fact because it was used 

“in a loose, figurative sense to demonstrate the union's strong disagreement with the views of 

those workers who oppose unionization”); Terri R. Day, “Nasty as They Wanna be Politics:” 

Clean Campaigning and the First Amendment, 35 Ohio N.U. L.Rev. 647, 652 (2009) (“Often 

characterized as hyperbole and overstatement, campaign speech is meant to persuade and, as 

such, tends toward exaggeration, to vilification ... and even to false statement.”) (internal 

quotation omitted).
9

was able to review 8 months of trial testimony from over 144 witnesses.15 The 

Court also included the entire text of the civil rights organizer’s speech and 

included it in the appendix to the opinion of the Court.16 In Org. for a Better Austin 

v. Keefe the Court had the benefit of the trial court testimony as well as copies of 

the leaflets at issue in the lawsuit.17 In Watts v. United States the Court had the 

benefit of hearing the facts elicited in a jury trial. In Watts, the Court was able to 

analyze the statement “If they ever make me carry a rifle the first man I want to get 

in my sights is L.B.J.” in the context of the political rally on the Washington 

Monument grounds.18 The Court noted that the crowd broke up into “small 

discussion groups” and that Watts “joined a gathering scheduled to discuss police 

brutality.”19

In each of these cases, the facts developed in the trial court were critical to 

the Court’s decision. No such details are present in record in this case. While 

some cases may be more complicated than others, it is the facts which provide a 

foundation for the judiciary’s analysis and the resulting guidance to lower courts. 

Courts cannot fully resolve claims having to guess at facts or glean them from an 

indictment. No complex issue in this appeal can be resolved simply by an 

exchange of assertions by the lawyers. 

 

15 N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 890 (1982).

16 Id., at 934-40.

17 Org. for a Better Austin v. Keefe, 402 U.S. 415, 417 (1971).

18 Watts v. United States, 394 U.S. 705, 706 (1969).

19 Id.
10

2. The vagueness challenge should also be reserved until after trial. 

The State’s proposed changes to the indictment do not affect a statutory 

vagueness challenge, and neither do trial court developments. But as with the 

overbreadth challenge, general principles of justiciability warrant the suggestion

that as-applied challenges should be addressed first.

Again, every single case cited in Appellant’s brief in support of his 

vagueness challenge was decided after a trial. By taking them up after the trial, an 

appellate court is able to decide both the as-applied challenge and the facial 

challenge at the same time in order to avoid piecemeal litigation. In Long v. State, 

the appellant was convicted under the stalking provision of the harassment statute 

and then advanced his claim that the statute was unconstitutionally vague on its 

face, as well as vagueas applied to his conduct.20 In Grayned v. City of Rockford, 

the appellant was convicted for his part in a demonstration in front a high school; 

again, after his conviction, he challenged the constitutionality of two ordinances.21

In Ely v. State, the appellant challenged the vagueness of the statute after the jury 

found him guilty of four misdemeanor convictions for deceptive business 

practices.22 

 

20 Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996).

21 Grayned v. City of Rockford, 408 U.S. 104, 105 (1972).

22 Ely v. State, 582 S.W.2d 416, 418 (Tex. Crim. App. 1979).
11

Even when the entire point of litigation is to challenge the constitutionality 

of a statute, such as in determining the meaning of “viability” in abortion cases, the 

appellate courts have still had the benefit of a trial.23 Similarly, in Papachristou v. 

City of Jacksonville, eight defendants successfully invalidated a vagrancy 

ordinance after they were convicted at trial.24

B. Appellant’s as-applied claims improperly rely upon an 

interpretation of what is alleged in the indictment.

The phrase “face of the indictment” is used 16 times in Appellant’s Brief; 

Appellant contends that all facts necessary for justiciability can be ascertained 

from the face of the indictment. But this necessarily means that this Court must 

then refer to trial court developments pertaining to the indictment.

Unlike the facial challenges, Appellant’s as-applied challenges are not based 

in pure law. “The meaning of words and phrases used in a statute is a question of 

pure law; and the application of the scope of a statute to specific, undisputed 

historical facts is a mixed question of law and fact.” 25 For example, the question of 

voluntariness of consent in a Fifth Amendment context presents a mixed question 

of fact and law. In such a case, before a factfinder could consider evidence 

obtained as a result of the consent, the factfinder would first need to determine, 

 

23 Colautti v. Franklin, 439 U.S. 379, 384 (1979).

24 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

25 Hampton v. State, 86 S.W.3d 603, 611 (Tex. Crim. App. 2002); see also Guzman v. State, 955 

S.W.2d 85 (Tex. Crim. App. 1997).
12

from the totality of all the circumstances, that the consent was voluntary.26 Every 

Fourth Amendment search and seizure question must turn on the facts of that 

particular case.27 The same is true on questions to be determined as a matter of law, 

such as whether a statement is material in a prosecution for aggravated perjury. 

The three as-applied challenges raised in Appellant’s writ require factual 

development beyond what can be determined simply by looking to the charging 

instrument. Appellant cites Ex parte Boetscher for the proposition that the Court 

can determine an as-applied challenge using the indictment alone. Few cases are 

as simple or unusual as Ex parte Boetscher. In Ex parte Boetscher, the Court 

decided an as-applied equal protection challenge on the face of the indictment 

because it was uncontroverted that the appellant lived out of state.28 On its face, the 

statute treated in-state residents differently from out-of-state residents.29 The 

appellant’s out-of-state residence was the gravamen of the enhanced penalty for 

criminal nonsupport of his Texas children.30 The issue was precise. His out-of-state 

residence was not subject to interpretation. The facts necessary for justiciability 

could be ascertained from the face of the indictment.

Ex parte Boetscher is an example of a “pure law” challenge that is 

 

26 Meeks v. State, 692 S.W.2d 504, 510 (Tex.Cr.App.1985).

27 Gonzales v. State, 648 S.W.2d 684, 687 (Tex.Cr.App.1983).

28 Ex parte Boetscher, 812 S.W.2d 600, 601 (Tex. Crim. App. 1991).

29 Id. at fn. 1, citing TEX. PENAL CODE § 25.05(g)(2) “An offense under this section is a felony of 

the third degree if the actor commits the offense while residing in another state.”

30 Id. at 602. 
13

justiciable using only the language in the indictment. These are the types of 

challenges limited to matters like limitations issue may be resolved using only the 

face of the indictment. In contrast to Appellant’s claims, two cases, Phillips v. 

State 31 and Proctor v. State,

32 illustrate that not all challenges “on the face of the 

indictment” are the same. Both Phillips and Proctor involved claims that 

prosecution was outside the statute of limitations. In those decisions, the Court of 

Criminal Appeals distinguished between two types of challenges: those challenges 

“based on facts” alleged in the indictment (like a tolling allegation), as opposed to 

claims that are “pure law,” that show that on the face of the indictment that 

prosecution is absolutely barred by the statute of limitations.33 The Court held that 

a “based on facts” challenge merely “gives rise to a limitations factual defense” 

because further factual development is required beyond simply the charging 

instrument. By contrast, a “pure law” challenge appears on the face of the 

instrument and therefore “gives rise to a statute-of-limitations bar” that constitutes 

a jurisdictional defect.34 Recently in Ex parte Heilman, the Court overturned 

Phillips’ distinction as it affected whether a statute of limitations defect can be 

waived. 35 But the explanation of what can be determined “on the face of the 

indictment” is still illustrative and demonstrates why Appellant’s claims are 

 

31 Phillips v. State, 362 S.W.3d 606 (Tex.Crim.App.2011).

32 Proctor v. State, 967 S.W.2d 840, 842 (Tex. Crim. App. 1998).

33 Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015).

34 Id. citing Phillips at 617. 

35 Id.
14

nonjusticiable.

Thus, the question becomes: Are the legal challenges in this appeal akin to 

the simple determination of whether the indictment pleads an offense within the 

statute of limitations, or are they more similar to more complex determinations as a 

matter of law, like voluntariness of consent or materiality of a statement? 36 If the 

answer is anything more than looking to the indictment to determine whether the 

prosecution is within the statute of limitations, the State should be entitled to 

present its evidence.

And that is exactly what we would ask this Court to allow to happen here. 

For nearly a century, the Court of Criminal Appeals has continuously held that 

pretrial writs are not be used to test the sufficiency of an indictment or to construe 

the meaning and application of a statute defining the offense charged in an 

indictment.37

The prosecution should be allowed to move forward to trial to present its 

evidence, after which, if Appellant is convicted, he can reurge his challenges in 

this Court with a clear factual record to elucidate the issues. A “preliminary trial” 

 

36 Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973) (citing Hoover v. Beto, 439 F.2d 

913 (5th Cir.1971)). See also State v. Rosenbaum, 910 S.W.2d 934, 947 (Tex. Crim. App. 1994), 

on reh'g (Dec. 6, 1995) (“Appellee's motion is in effect an effort to cause the judge to go behind 

the face of the indictment before trial to see if there is sufficient evidence to support the alleged 

‘materiality’ element in the offense of perjury.)

37 Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001).
15

such as rejected by Justice Black should not be allowed to proceed instead at this 

stage and in this Court. 

1. Appellant must present evidence to be entitled to relief on his 

claims of Speech or Debate privilege.

Whether a governor is entitled to Speech or Debate privilege is a purely 

legal issue. The Court may determine, as a matter of law, that a governor is not 

entitled to ever assert a Speech or Debate privilege under the separation of powers 

doctrine. However, it does not work the other way. In order to determine that this

Appellant - this governor - can indeed assert the privilege, and is therefore immune 

from prosecution in this case, requires specific facts to resolve the issue. This is 

why the Bill of Particulars and potential hearings in the trial court matter. 

If Appellant is eligible to assert the privilege, it is the trial court, in a 

hearing, that would determine if any evidence was obtained in violation of the 

privilege. In United States v. Gravel, the Supreme Court held that a United States 

Senator had no testimonial privilege from being questioned by a federal grand jury 

about whether he distributed classified government documents because the 

communications were outside the scope of legislative activity.38 The court also 

focused on whether the communication was “essential to the deliberations of the 

Senate” and whether the request by the grand jury would “threaten the integrity or 

independence of the Senate by impermissibly exposing its deliberations to

 

38 Gravel v. United States, 408 U.S. 606, 624–625 (1972).
16

executive influence.”39

The State’s Bill of Particulars articulates that Appellant was not engaged in 

communication that would be protected under the privilege. Appellant reads the 

same language in the Bill of Particulars and interprets it to mean that he is 

protected by the privilege. But whether or not the Speech or Debate privilege 

applies to the conduct in this case is a mixed question of fact and law. The pattern 

is consistent with all as-applied challenges in this writ: the Court may deny relief to 

Appellant as a matter of law, but in order for the Court to grant relief there must be 

facts in the record to support his claims. 

2. Appellant must present evidence to be entitled to relief on his 

claim of legislative immunity.

Whether a governor is entitled to legislative immunity is a purely legal issue. 

But whether or not Appellant’s actions in this case were official actions or actions 

made in his personal capacity require development of facts in the record. Thus, 

further developments in the trial court are necessary for justiciability.

3. Appellant must present evidence to be entitled to relief on his 

claim of separation of powers immunity.

Appellant further presents a purely legal issue in his claim of immunity 

based on separation of powers. The question here is whether the separation of 

 

39 Id. at 625. 
17

powers doctrine insulates a governor from judicial review over any of his 

constitutionally proscribed powers absent an allegation of bribery. Again, the 

Court may reject Appellant’s separation of powers argument on its face without 

any reference to the trial court developments. 

However, in addressing the as-applied challenge, the resolution of this issue 

depends on whether Appellant is being prosecuted for a political decision to veto 

an item of appropriation or, instead, for unlawfully misusing the Public Integrity 

funds to harm Ms. Lehmberg for not resigning. It is a question of fact, and the Bill 

of Particulars describes the basis for these facts in detail. 

PRAYER

While this is not a complicated case factually, the absence of a record makes 

this an unnecessarily complex case legally. Appellee respectfully prays that this 

Court uphold the constitutionality of the statutes at issue, or, in the alternative, 

remand this case to the trial court until a factual record is thoroughly established. 
18

 Respectfully submitted,

/s/ Michael McCrum

MICHAEL MCCRUM

State Bar No. 13493200

District Attorney Pro Tem

Travis County, Texas

700 N. St. Mary’s St., Suite 1900

San Antonio, TX 78205

Telephone: (210) 225-2285 

Facsimile: (210) 225-7045 

michael@mccrumlegal.com

/s/ David M. Gonzalez

DAVID M. GONZALEZ

Assistant District Attorney Pro Tem

Travis County, Texas

206 East 9th Street, Suite 1511

Austin, Texas 78701

Telephone: (512) 381-9955

Facsimile: (512) 485-3121

david@sg-llp.com

ATTORNEYS FOR

THE STATE OF TEXAS
19

CERTIFICATE OF COMPLIANCE

Pursuant to TEX.R.APP. P. 9.4(i), I hereby certify that this document was 

generated by a computer using Microsoft Word which indicates that the word 

count of this document except the table of contents, index of authorities, questions 

presented, signature, proof of service, certification, and certificate of compliance is 

4,380 words.

 /s/ Michael McCrum 

 Michael McCrum
20

CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2015, a true and correct copy of Appellee’s 

Brief was served on the following parties in accordance with the requirement of the 

Texas Rules of Appellate Procedure via electronic filing: 

 

David L. Botsford

Botsford & Roark

1307 West Ave.

Austin, TX 78701

(512) 479-8040 Facsimile

dbotsford@aol.com

Thomas R. Phillips

Baker Botts, L.L.P.

98 San Jacinto Blvd., Ste. 1500

Austin, TX 78701

(512) 322-8363 Facsimile

Tom.phillips@bakerbotts.com

Anthony G. Buzbee

The Buzbee Law Firm

600 Travis St., Ste. 7300

Houston, TX 77002

(713) 223-5909 Facsimile

tbuzbee@txattorneys.com

 

 /s/ Michael McCrum 

 Michael McCrum