Highest Criminal Court in Texas to Hear Perry Case

Posted by Patrick Svitek - The Texas Tribune on
Photo by Bob Daemmrich

The criminal case against former Gov. Rick Perry is hanging in the balance Wednesday as the state's highest criminal court takes it up in what could be the most consequential moment yet for the indictment. 

The Texas Court of Criminal Appeals is set to hear oral arguments in the case at 9 a.m. in downtown Austin, a two-hour proceeding that could lead to the remaining charge against Perry being dismissed — or to the case moving closer to trial. The court is not expected to immediately rule Wednesday, but the hearing could be key in shaping the fate of a case that has dogged Perry for more than 15 months.

Perry, who abandoned his second bid for the White House in September, remains accused of overstepping his authority for trying to force the resignation of Travis County District Attorney Rosemary Lehmberg in 2013. He had threatened to veto state funding for her office's public integrity unit unless she resigned following a drunken driving arrest.

At this point, the case is simultaneously unfolding at the Court of Criminal Appeals and the trial court level. The special prosecutor in Perry's case, Michael McCrum, had requested a hold on all trial court proceedings while the Court of Criminal Appeals makes its decision. However, that bid was rejected in October after Perry's lawyers voiced their opposition.

At issue Wednesday is a ruling earlier this year by a state appeals court that dismissed one of the two felony charges against Perry: coercion of a public servant. Perry's lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge. The state also got involved, appealing the ruling because it struck down a part of the Texas penal code that defines coercion.

Last month, the Court of Criminal Appeals agreed to review the indictment, giving both Perry's side and State Prosecuting Attorney Lisa McMinn the opportunity to make their cases why the July ruling by the 3rd Court of Appeals should not stand. Oral arguments were originally set for Nov. 4 but were moved to Wednesday after David Botsford, the lead attorney on the appeal for Perry, raised an objection due to a preplanned vacation.

On Wednesday, the Court of Criminal Appeals will allot one hour each for oral arguments in the two appeals. Each hour will be split between Perry's lawyers and the state. 

Botsford will have some help Wednesday as he argues why the rest of the indictment should be thrown out. He has yielded 10 minutes of his time to Eugene Volokh, a prolific law professor from the University of California, Los Angeles who has been a vocal critic of the case from the get-go.

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