Governor Perry: Oops #2
August 24, 2014 § 1 Comment
A Travis County grand jury has charged Governor Rick Perry with having violated two sections of the Texas Penal Code: 39.02 and 36.03. Those sections are as follows:
§ 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant’s office or employment; or (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is: (1) a Class C misdemeanor if the value of the use of the thing misused is less than $20; (2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ; (3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500; (4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000; (5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000; (6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or (7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.
Sec. 36.03. COERCION OF PUBLIC SERVANT OR VOTER. (a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.
The Factual Background
The Travis County District Attorney presides over the Public Integrity Unit, an agency charged with investigating and prosecuting public officials who are found to have misused their authority in some corrupt or criminal manner. That unit is funded with money appropriated by the Legislature.
In April, 2013, acting on a phone tip from a motorist in Austin, the police arrested Travis County District Attorney Rosemary Lehmberg and charged her with DWI. A video of her arrest and jailing, later released to the media, showed her behaving in a drunken and embarrassing way. She plead guilty and served half of a 45 day jail sentence.
DA Lehmberg is a Democrat. Perry is a Republican.
On June 14, 2013, Governor Perry vetoed the appropriation of funding for the Public Integrity Unit. Before doing so, he publicly demanded the resignation of DA Lehmberg and stated that, unless she resigned, he would veto the funding. She refused to resign. According to press reports, the Governor and members of his staff engaged in negotiations before June 14, offering to appoint a Democrat to replace Lehmberg if she would resign. Those negotiations were not successful.
At the time the funding was vetoed, the Public Integrity Unit was engaged in an investigation of possible criminality related to the handling of millions of dollars worth of public funding for a cancer research facility. There were allegations that supporters and large contributors to the political campaigns of the Governor and other GOP officials were wrongfully benefited.
According to press reports, two other Texas District Attorneys were found guilty of DWI in the recent past, during Perry’s term of office. One of those DWI charged involved the DA’s collission with another motorist. The Governor took no notice of those convictions, nor did he question the budgets for the offices of those DA’s. Both of them were Republicans.
The Facts Surrounding the Indictments
In June, 2013, Texans for Public Justice, a liberal group, filed a criminal complaint against the Governor, charging him with wrongfully using the threat of a veto to force the resignation of DA Lehmberg.
Ms Lehmberg recused herself from any action or decision based on that complaint.
A District Judge in San Antonio, a Republican appointed by then Governor George W. Bush, appointed Mike McCrum to act as special prosecutor to handle the complaint. McCrum had served as an assistant U.S. Attorney when G.W. Bush was President. His nomination to become U.S. Attorney was supported by Republican Senators John Cornyn and Key Bailey Hutchinson.
McCrum, according to a report by a San Antonio reporter, interviewed over 40 witnesses in the course of investigating the charges against Perry. He presented the evidence to the Travis County grand jury which, as stated, handed down a “true bill”, reflecting their opinion that there was cause to believe that Perry had committed crimes,, sufficient to warrant a trial based on those charges.
The Issues and the Non-Issues
Governor Perry has not been charged with wrongfully exercising his right to veto the funding for the Public Integrity Unit. He has not been charged with publicly calling for DA Lehmberg to resign. Like any citizen, he was and is free to express his opinion about her or any other public official. Perry’s indictment does not have anything to do with whether or not DA Lehmberg should have, or should now, resign and discontinue her duties as District Attorney. That is a matter for her and the voters of Travis County to decide.
It is a crime, however, for him or any other public official, to use his authority to force, or to try to force, another public official to stop performing his or her duties, or to perform them in some way contrary to his or her oath of office. That is what Rick Perry is charged with having done.
So, all the high-toned pontificating by the likes of Professor Alan Dershowitz and David Axelrod about the “sketchy” charges and the “criminalization of politics” has more to do with their cherished images of moral rectitude than with their understanding of the facts and the law.
As usual, the Texas Observer has the best balanced account of the controversy I have read. Here is a link.