Does a governor have ‘custody or possession’ of funds the legislature wants to appropriate, in a bill that he vetoes?


Texas Gov. Rick Perry (R) makes a statement regarding his grand jury indictment on charges of abuse of power at the Texas State Capitol in Austin on Saturday. (EPA/Ashley Landis)

Count I of the indictment of Texas Gov. Rick Perry alleges that,

[Rick] Perry, with intent to harm another, to-wit, Rosemary Lehnberg and the Public Integrity Unit of the Travis County District Attorney’s Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant, such government property being monies in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into defendant’s custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.

The relevant statute, Texas Penal Code § 39.02, provides,

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 … 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.

And “misuses” is defined to mean,

“Misuse” means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant;
(C) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
(D) a limited purpose for which the property is delivered or received.

Yet I don’t see how this can possibly apply to Perry’s behavior, which is “carr[ying] out a promise [using his veto power] to nix $7.5 million over two years for the public integrity unit run by the office of Travis County District Attorney Rosemary Lehmberg. The Democratic official was convicted of drunken driving, but refused Perry’s repeated calls to resign.”

1. To begin with, the law applies to a public servant’s misusing property that is in his “custody or possession.” What property was in the governor’s custody or possession? The $7.5 million, if it had been appropriated, would have been in the custody or possession of the district attorney, not the governor.

But, more important, this money was never appropriated, precisely because of the governor’s veto. Presumably this $7.5 million remained in the Texas State Treasury, so if it is was in anyone’s “custody or possession,” it would have been in the custody or possession of the Texas Comptroller of Public Accounts.

The power to sign or veto appropriations, of course, does give the governor some power to direct the distribution or nondistribution of money. That is an important power. But it doesn’t carry within “custody or possession” of the money, just like a juror or judge deciding whether to order plaintiff to pay defendant money doesn’t thereby acquire “custody or possession” of the money being paid.

2. Beyond this, how does vetoing the appropriation qualify as “misuse,” in the sense of “dealing with” the $7.5 million “contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant”? I think I understand what this language means in typical cases — for instance, if there’s an agreement (perhaps even an implied agreement) that certain property (say, city-owned trucks managed by the defendant) is to be used for city business and not to haul away material from the defendant’s own private demolition site.

But what sort of “agreement” is there under which the governor “holds” the $7.5 million that he can either choose to allow the DA’s office to receive or order returned to the Texas State Treasury (especially given that the governor never actually had access to the $7.5 million for his own purposes)? Presumably the prosecutor is planning to prove some such “agreement” in court, but I can’t imagine what it might be. Moreover, while for a typical public servant, his employers (or the legislature) can require certain agreements about the use of property as a condition of his employment, I don’t think the legislature may impose such agreements on the governor (nor do I know of their ever having tried to do this).

Also, how does vetoing the approriation constitute as “dealing with” the $7.5 million “contrary to the oath of office of a public servant”? The Texas governor’s oath is, “I, _______________________, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.” Is the prosecution’s theory that vetoes of appropriations are criminal if they are not seen as “faithful[] execut[ion of] the duties of the office of Governor” — though deciding whether or not to “approv[e]” a bill is itself part of the duties of that office? Or is it that such vetoes are criminal if they do not “to the best of [the Governor's] ability preserve, protect, and defend the [federal and state] Constitution and laws”? It’s hard to see what plausible interpretation of the statute the prosecutor has, at least one that isn’t hopelessly vague and politically manipulable.

3. Finally, the Texas Constitution expressly reserves the veto power to the governor. The governor is entitled to decide which laws he “approv[es]” and which he disapproves — without constraint from the legislature, or from county-level district attorneys. The legislature certainly can’t make it a crime for the governor to veto its appropriation bills; that would deny the governor the power that the Texas Constitution gives him.

Nor can the legislature make it a crime, I think, for the governor to veto its appropriation bills as an attempt to influence some government official’s behavior — behavior that is commonplace in the political process, and that is likewise within the governor’s exclusive power to decide which bills to give his “approval.” To be sure, the legislature can make it a crime for the governor to accept bribes in exchange for a veto; but there the crime is the acceptance of the bribe, not the veto itself. In the words of the Supreme Court in United States v. Brewster (1972), upholding a federal bribery statute against a federal constitutional challenge, “There is no need for the Government to show that appellee fulfilled the alleged illegal bargain; acceptance of the bribe is the violation of the statute, not performance of the illegal promise.” Likewise, a prosecutor can’t interpret Texas Penal Code § 39.02 as criminalizing certain uses of the governor’s veto power.

As Patterico noted, Count I of the indictment rests on the theory that it was the veto itself (and not, as with Count II, the threat of the veto) that was a crime. That can’t be so, I think, given the governor’s power to choose what bills to veto.

As I mentioned in my post about Count II of the indictment, I’m not an expert on these Texas statutes; if I am in error here, please let me know, and I’ll be glad to correct the error. But at this point, it seems to me that Count I is just as unsound as Count II.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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