AUSTIN (KXAN) — His record setting run as Texas governor and his presidential hopes are both finished, but Rick Perry still has a battle to wage in criminal court. The former governor was not in attendance on Wednesday when his defense attorneys and prosecutors made oral arguments before the Texas Court of Criminal appeals.
It is the latest attempt by Perry’s team of attorneys to clear him of all charges and at least one legal analyst believes they are in a good position to succeed.
“I don’t know if Governor Perry is going to win on both appeals, but based on the tenor of court questions, he is certainly in a position to win,” said attorney Brian Wice. Criminal cases against Texas politicians are not foreign to Wice. He is currently a special prosecutor in the case against Attorney General Ken Paxton and previously defended former congressman Tom DeLay.
Each side stated their case before the appeals court judges and much of the debate centered on if Perry’s promise to veto Public Integrity Unit funding is protected by the 1st amendment or if it constituted an abuse of power. Perry said he would veto PIU funding if Travis County District Attorney Rosemary Lehmberg did not resign following her drunk driving arrest in 2013. He made good on the promise when she remained in office. That led to abuse of power and coercion charges while Perry was still the sitting governor in 2014.
The arguments focused on a few key legal issues. Prosecutor Lisa McMinn said the facts of the case are typically presented in a trial before the Court of Criminal appeals is involved.
“My argument has only been that court precedent cannot be raised pre-trial and they have to wait until all the facts come in at trial,” she said. “If the court wants to change the precedent, they can do that.”
Another issue is if Perry was within his power as governor to veto funding in connection to Lehmberg’s place in office.
“The 1st amendment protects political officials arguing with each other, sometimes threatening each other with political retaliation,” said Eugene Volokh, a professor with the UCLA law school. Volokh is part of an amicus brief supporting the dismissal of charges against Perry.
Perry’s lawyers argued the threat to withdraw funding was protected “political speech” and not criminal. Based on what he heard at Wedneday’s hearing, Wice thinks judges may also have a hard time finding anything criminal about Perry’s veto.
“The (criminal) count involving so called political speech involved a definition of coercion which I think troubled a number of members of the court,” said Wice.
One of the two counts against Perry has already been dismissed by a lower appeals court, however the Court of Criminal Appeals could choose to reinstate or dismiss either or both. Wice estimated a decision could take 90-120 days and things are looking up for Perry.
“Based upon what I have heard today and based upon the law I read in briefs, the governor stands an excellent chance of going 2-0.”