The two felony charges against Gov. Rick Perry will be challenging to prove in court, criminal law experts said Friday.
The most serious charge, abuse of official capacity, was bumped up to a first-degree felony — with prison time of up to 99 years — because the value of government property allegedly misused by Perry exceeded $200,000.
The charge goes back to the 2013 legislative session, when Perry carried out his threat to veto $7.5 million in biennial state funding for Travis County’s Public Integrity Unit unless District Attorney Rosemary Lehmberg resigned after her 2013 guilty plea for driving while intoxicated.
According to Friday’s indictment by a Travis County grand jury, Perry’s actions were done with “intent to harm” Lehmberg and the Public Integrity Unit, which investigates and prosecutes public corruption.
Prosecutors will face two challenges in making the felony stick, said University of Texas law professor Jennifer Laurin.
First, they will have to prove that Perry misused “government property, services, personnel or any other thing of value belonging to the government” — the definition of abusing his office, Laurin said.
In other words, she said: “Is the manner in which Perry dealt with these funds proscribed anywhere?”
Second, the law requires prosecutors to prove that Perry intended to harm Lehmberg and knowingly violated state law in doing so, Laurin said.
“State of mind is always a difficult thing to have to prove. But I would say that here it’s particularly difficult because the statute suggests that the state may have to show that the governor actually knew that what he was doing was illegal,” Laurin said. “This is a crime that, as it’s defined, does seem to suggest that ignorance of the law might be an excuse.”
The second charge, coercion of a public servant, accused Perry of improperly trying to force Lehmberg to resign from office.
A person commits the crime, a third-degree felony with a prison term of up to 10 years, if they attempt to influence public officials in the performance of their “official duty.”
The law also contains a potential defense for Perry, exempting those who are part of a governmental body and tried to exert influence as part of their job.
“Public officials arguably do that all the time,” Laurin said. “That defense clearly is designed to give some leeway to government officials so that they’re not caught up in the broad terms of the statute.”
Jerry Dowling, professor emeritus of criminal justice at Sam Houston State University in Huntsville and author of “Texas Criminal Law: Principles and Practices,” said the law typically sets a high bar before an act is deemed a crime.
“I’m not quite sure what one might choose to present to a jury to show that there’s harm and coercion in this context. A punch in the nose, that’s harm, that’s pretty clear. But at what point does a governmental official, with discretion about how the government operates and spends its money, cross the line into criminal conduct?” Dowling said.
The charges against Perry are relatively rare, adding a distinct set of challenges, he said.
“The state has largely escaped having massive numbers of people being prosecuted for abuse of their office, so we don’t have much having to do with judicial interpretation or experience in dealing with these,” Dowling said.
“Everyone knows what’s going to happen in a murder trial — what you’ve got to prove, what evidence can be presented, even what questions you can ask,” Dowling said. “But when you’re dealing with unusual-type offenses, there’s just not much guidance there.
“Even juries sort of know what’s going on in a murder trial,” he said. “To me, for something like this, the jury would be a little bit bewildered about what’s going on.”
The 2 charges
• Abuse of official capacity: “A public servant commits this offense if, with the intent to obtain a benefit or with the intent to harm or defraud another … he intentionally or knowingly misuses government property, services, personnel or any other thing of value belonging to the government.”
A first-degree felony, punishable by up to 99 years in prison and a $10,000 fine.
• Coercion of a public servant: “A person commits this offense if … he influences or attempts to influence a public servant in a specific exercise of official power or a specific performance of official duty.”
A third-degree felony, punishable by up to 10 years in prison and a $10,000 fine.