[Perry argues that § 36.03(a)(1)] criminalizes a “virtually endless” array of threats that are in the nature of “ordinary give and take” between and among the public servants who are not excepted by subsection (c). He posits hypothetical examples that include:
At least to the extent each hypothetical threat would be aimed at bringing about some specific action on the part of another public servant, we agree that Perry’s illustrations would indeed come within section 36.03(a)(1)’s proscription, as written. Each example would, in terms of the statutory language, represent a “public servant” (under the Penal Code’s broad definition) seeking “by means of coercion” (defined, again, as a “threat” to “take or withhold action as a public servant” that, while “harmful” or detrimental to another, need not be unlawful) to “influence or attempt to influence” (i.e., bring about) some “specific exercise” or “specific performance” of another public servant’s duties or powers (which also need not be unlawful, nor beyond the first public servant’s powers to demand or require).
And it is not difficult to think of other similar examples. Among them, it has occurred to the members of this panel that unless appellate court justices can shoehorn themselves into subsection (c)’s exception, section 36.03(a)(1) would seemingly put at risk that time-honored practice whereby one justice will seek changes to another justice’s draft majority opinion by threatening to write a dissent exposing flaws in the other’s legal reasoning. Similar concerns would arise regarding the standard letter our Clerk issues to prompt action whenever briefs or records are late, in which he warns of imminent dismissal if the deficiency is not promptly rectified, at least when the party in interest is a government entity or official.
One’s view of section 36.03(a)(1) is further informed by considering its implications as it incorporates a portion of paragraph (F) that Perry has not challenged in this case — a threat “to cause a public servant to take or withhold action.” Within the literal scope of this prohibition would be ordinary citizens who make credible threats to obtain legislative or judicial remedies as a means of prompting some action by a local government official, not to mention members of the media who might have to resort to similar means of persuasion in order to overcome governmental foot-dragging on Public Information Act requests. We mention this not to plant ideas in the minds of local prosecutors across Texas who may be inclined to protect their fellow public servants, but to provide stark demonstration that section 36.03(a)(1) and the “coercion” definition it incorporates were not crafted with the sort of precision necessary to avoid First Amendment problems when, as with these statutes, government purports to criminalize speech.