Texas appellate courts have been historically consistent in the view that a pretrial writ of habeas corpus, followed by an interlocutory appeal, is an extraordinary remedy that should be extended only in the rarest of circumstances. The rule has been that neither the trial court nor an appellate court can entertain a pretrial habeas petition when there is an adequate remedy by appeal. Put simply, pretrial constitutional challenges should be resolved in the post-conviction direct appeal process, not the pretrial habeas writ process.


The only two and indisputable exceptions to this limited pretrial role of habeas corpus are double jeopardy and bail challenges. Writing for the TDCCA Journal in 2011, John Stride identified several additional exceptions that have been recognized in extraordinary circumstances:


  • Failure to timely charge after arrest (e.g., pre-indictment delay);
  • Facial challenge to a statute (i.e., claim that a statute is unconstitutionally vague in all applications);
  • Extradition;
  • Collateral estoppel;
  • The existence of probable cause to believe that a person is guilty of an offense; and
  • Affliction with disease.


Ex-Governor Gets Special Treatment


Former Texas Gov. Rick Perry used none of these exceptions to mount a pretrial habeas corpus challenge to a felony criminal charge brought against him by a Travis County grand jury in 2014—“abuse of official capacity” which is found in Section 39.02 of the Texas Penal Code.


The former governor, and failed presidential candidate, made an “as-applied” challenge that Section 39.02, even though generally constitutional, operated unconstitutionally as to him because of his then position as governor (a “separation of powers” claim). Such “as-applied” challenges have been generally off limits in pretrial habeas corpus challenges.


No Ordinary Criminal


But Rick Perry was the governor. He was not an ordinary criminal defendant mounting a pretrial challenge, as would be demonstrated in his unusual treatment by his friends in the Court. A defendant filing this type of appeal is generally called an “appellant” by the court. The Texas Court of Criminal Appeals (TEX CRIM APP), however, elected to call the former governor “Perry.” The majority opinion cited United States v. Nixon as a precedent for the non-appellant reference. The “Perry” reference drew the ire of Judge Cheryl Johnson who, in dissent, said:


“[T]his case has been greatly affected by who it involves. In no other appeal I have read during the seventeen years that I have served on this court has appellant been called anything other than ‘appellant.’”


Perry Case Cites Similarities to Nixon


As for the “Nixon” reference, Judge Johnson aptly pointed out that Nixon was still president when the Supreme Court decided his case. Rick Perry, of course, was no longer governor when the TEX CRIM APP decided his case.


The Texas Lawyer pointed out that criminal defense attorneys will see the ruling as a door in which to walk through “more types of constitutional claims [other than separation of power claims] before a trial.”


“The creative lawyer will see lots of opportunities in this opinion, not only procedurally to raise challenges to their charges pretrial, but also substantive to raise as-written challenges,” Houston criminal defense attorney and First Amendment advocate, Mark Bennett was quoted by the legal journal. “It’s procedural and substantive Christmas for the defense bar. We just need to use our imaginations to how best to use it. I anticipate many more constitutional challenges to indictments.”


“Come on, Get Over it” Rationale of Bush v. Gore?


While there may be room for this optimism, we suspect the TEX CRIM APP will weasel out of allowing the common defendants access to the court through “Perry’s writ” by adopting something akin to the Bush v. Gore rationale that “its conclusion is limited to the present case.”


As current Chief Justice John Roberts expressed during his confirmation hearing, the limitation “was not meant to deprive the decision of all precedential weight but, rather to make clear the facts of the case were unique,” the decision still lacks any real precedential authority.


This was made clear by the late Justice Antonin Scalia who firmly believed that Bush v. Gore offered no precedential guidance. Referring to the decision, Scalia infamously stated: “Come on, get over it.”


Opinion Poorly, Insincerely Reasoned


Writing in the March 2007 edition of the Yale Law School Legal Scholarship Repository, Chad W. Flanders raised the question “Is Bush v. Gore good law?”


“ … According to many – including many law professors – the answer to the question is clearly no, because Bush v. Gore was a poorly, even insincerely, reasoned decision: the case isn’t good law because the reasons it gave for its decisions were bad ones, of dubious coherence, and cobbled together (it was alleged by some) in ordered to defend a desire political outcome.”


Court Found Desired Political Outcome


We feel the same way about the Perry decision: the TEX CRIM APP ruled as it did to achieve “a desired political outcome;” namely, that only a governor, not an ordinary criminal defendant, can present an “as-applied” statutory challenge in a pretrial habeas proceeding. This conclusion is supported by a brief statement made by Chief Judge Sharon Keller in the court’s majority opinion:


“The nature of the constitutional right at issue entitled him (Perry, the governor) to raise these claims by pretrial habeas corpus.”


Special Case for a Special Defendant


Shannon Edmonds of the Texas District & County Attorneys Association reached a conclusion just as restrictive:


“It seems very narrowly drafted to me,” Edmonds told the Texas Lawyer. “If he hadn’t been governor and suffered potential harm unique to a public official like a governor, it would be hard to apply this holding to other cases … I think prosecutors are going to try to distinguish Ex Parte Perry based on its unique circumstances, and argue this did not open the barn door for all these other cases to get out.”


Lisa McMinn, the State Prosecuting Attorney who represented the State against Perry, agreed.


“We don’t see that many public officials charged with a crime, first of all, and a challenge to the prosecution based on ‘it violates separation of powers,’” she told the legal journal. “So any precedential value it would have it not going to be used that often.”


McMinn added that while the majority of judges agreed Perry had made a cognizable claim before trial, they could not agree on the reasons why they reached that conclusion.


“It’s not binding law unless you have a majority of judges that agree on the rationale,” she added. “It has precedential value as to the outcome—‘Yes, it’s cognizable in this case’—but in terms of future cases, the only thing I think they all agreed on—or five of them agreed on—was that it’s cognizable but for different reasons.”


Texas Politics from the Court of Criminal Appeals


Judge Meyers, in the dissenting opinion, went straight to the point.  The majority opinion, the judge said, “has decided to employ any means necessary” in order to vacate the indictments against Perry.  “The majority opinion has repealed more statutes and made more law than Governor Perry did in the last session of the legislature when he tried to muscle out the elected Travis County District Attorney.”  The state’s highest criminal court “traded the repercussions of a challenge in the political arena for the embarrassment of manufacturing an opinion that in not based on either law or fact, Judge Meyers concluded.


Sounds like Bush v. Gore to us—cobbled together fuddle-muddle that we will all be told one day by a judge of the Texas Court of Criminal Appeals to, “come on, get over it.”


Perry’s Escape form Reminiscent of Tom Delay’s


What is striking, in contrast to the gracious holding of the Court in Perry’s case, is the cold-hearted indifference this Court has demonstrated when rejecting legitimate claims of potentially innocent defendants who had filed writs of habeas corpus.  As Judge Meyers’ lamented, while referencing Tom Delay’s political escape from a felony criminal conviction, the “real shame of [the Perry decision] is that while ordinary applicant’s request to this Court for writs of habeas corpus are often rejected or their paths to relief narrowed, the majority has decided, for the second time in the last two years, to give special treatment to a government official.”


Texas politics as usual….