Is the indictment of Texas Gov. Rick Perry inconsistent with a Texas Court of Appeals precedent (as to the ‘coercion’ count)?

Texas Gov. Rick Perry has been indicted for violating Texas Penal Code § 36.03, which provides:

A person commits an offense if by means of coercion he … 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 ….

(Gov. Perry was also indicted under another statute, which I discuss in another post.) Texas Penal Code § 1.07 in turn defines “coercion” to mean,

a threat, however communicated:

(A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or another;
(C) to accuse a person of any offense;
(D) to expose a person to hatred, contempt, or ridicule;
(E) to harm the credit or business repute of any person; or
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

In context, the only applicable subdefinition seems to (F), because here’s what the backstory seems to be (and the indictment echoes this):

The indictments for abuse of official capacity and coercion of a public servant came late Friday, after a special prosecutor spent months calling witnesses and presenting evidence that Perry broke the law when he carried 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.

The theory thus seems to be that Gov. Perry “threat[ened]” “to take … action as a public servant” by vetoing the appropriations in “attempt[ing] to influence [Lehmberg]” in “specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney for the County of Travis” (the last quote is from the indictment).

But — though I stress that I’m not an expert on this Texas statute — it seems to me that we’ve seen this movie before (okay, maybe playing in a small art house to a tiny audience). Here are the facts of State v. Hanson (Tex. Ct. App. 1990):

The state alleged that [County Judge Regina Hanson] intentionally and knowingly threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.

So we see here a threat to take action as a public servant in attempting to influence another public servant — a district judge — in specific performance of his official duty. What did the court say in Hanson?

Threats may portend either lawful or unlawful action. First Amendment protection is extended to the former but not the latter. Therefore, a criminal statute that seeks to punish threats must clearly distinguish between an actionable or true threat and protected speech.

Judge Hanson had to guess at the meaning of section 36.03(a)(1) and its application to her official conduct because section 36.01(1)(F) [now 1.07(a)(9)(F) -EV] failed to give fair warning of the nature of the threat prohibited. Did the term “threat” encompass a threat of lawful action or only prohibit a threat of unlawful action?

Judge Hanson was the budget officer for Bosque County and the presiding officer of the commissioners’ court. She had jurisdiction over misdemeanants on probation. Bosque County could legally terminate its funding of employees in the district attorney’s office or district clerk’s office, and Judge Hanson could legally request the county attorney to institute proceedings to revoke a misdemeanant’s probation. Likewise, the district judge had the legal authority to terminate the county auditor, and the county attorney was the appropriate official to file a motion to revoke a misdemeanant’s probation. Assuming the allegations were true, Judge Hanson could have lawfully taken the actions threatened, and the district judge and county attorney, had they acted as she desired, would have acted lawfully.

Coercion of a lawful act by a threat of lawful action is protected free expression. See [Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983)]. Could Judge Hanson threaten to use her lawful authority and prerogatives of office to coerce other public officials into taking lawful actions which she or the commissioners’ court deemed expedient or desirable, or should she refrain from doing so out of fear of prosecution? What is and what is not lawful conduct cannot be left to such conjecture. Section 36.01(1)(F) was not drawn with the narrowness and precision required when legislating within the realm of the First Amendment.

A preeminent purpose of the First Amendment is to guarantee free and unfettered political discussion within government and among the citizenry. Consequently, those who enter the political arena are fair game for sharp attacks inflicted by both the electorate and the elected. The hurly-burly world of courthouse politics is an arena where robust debate, often accompanied by blunt, caustic and even intemperate and vituperative language, is the by-product of public officials clashing over divisive issues. However, as long as the means are peaceful and their actions lawful, the boundaries of their political debate cannot be measured for constitutional protection by conventional standards of acceptability.

Freedom of speech must encompass the liberty of elected officials to discuss matters of public concern without prior restraint or fear of punishment. 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.

Section 36.01(1)(F) was unconstitutionally vague when applied to Judge Hanson’s alleged conduct. This constitutional defect was transmitted to section 36.03(a)(1) by the impermissibly vague definition of “coercion.” These penal provisions violated due process because they did not give Judge Hanson fair notice of what type of threat was prohibited, failed to provide a clear, objective standard by which those charged with enforcement could assess her alleged conduct for its legality, and had a potential of inhibiting the exercise of her protected free expression as a public official.

The Hanson court did note that the relevant subdefinition of “coercion” was amended, effective 1989 — before the court decision but after Judge Hanson’s conduct — to apply only to “a threat, however communicated … to unlawfully take or withhold action as a public servant, or to cause a public servant to unlawfully take or withhold action.” But it turns out that, after the Hanson decision, the definition was amended back (effective 1994) to remove the “unlawfully.”

Now maybe this could be read as making the statute no longer vague, by implicitly making it clear (given the addition and then removal of the “unlawfully”) that threats of lawful action as a public servant would indeed be a crime. Yet this would leave the statute as unconstitutionally overbroad, given the court’s statement that “Coercion of a lawful act by a threat of lawful action is protected free expression,” at least in a context such as Hanson’s — or Perry’s.

Even without Hanson, it seems to me, the statute — as understood in the indictment — is unconstitutionally overbroad. It would, for instance, punish clearly protected speech such as, “If you Legislators enacts a bill with this language rather than the version I like, I will veto it,” since that too would be “threat[ening]” “to take … action as a public servant” by vetoing the bill in “attempt[ing] to influence” legislators in “specific performance of [their] official duty,” namely drafting and enacting legislation. But Hanson strikes me as even more clearly authoritative on the matter.

(UPDATE [3:34 am]: Note that § 36.03 now has an exception in it, which it didn’t have back when the Hanson incident took place, for situations where “the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and … the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body [including deliberations by the governing body of a governmental entity].” But that appears to apply just to actions, not to the influencing person’s threats of action; indeed, the premise of the Perry prosecution must be that a mere threat of a veto isn’t an “official action.” And the Hanson decision was all about the First Amendment protection extended to threats of lawful government action — the kinds of threats that Judge Hanson, and now Governor Perry, engaged in — and not to actual official action itself.)

To be sure, Hanson is a decision from the Tenth Court of Appeals (Waco), and the indictment is in Travis County, in the Third Court of Appeals (Austin). Still, an appellate precedent from any of the Texas courts seems like quite the strike against such a prosecution, especially since I know of no contrary precedent. For a different but similar decision from another state, see State v. Steiger (Ariz. Ct. App. 1989).

I stress again, though, that I’m not an expert on this statute, or on Texas criminal law more generally. If I have fallen into error here, please let me know and I will gladly correct the analysis!

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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Eugene Volokh · August 15