Judge shoots down Perry's motion to dismiss criminal charges

The criminal case alleging Gov. Rick Perry misused his power will be allowed to continue, according to a ruling by a Texas district court judge Tuesday.

Gov. Perry was indicted in August on felony charges of abuse of official capacity and coercion of a public servant for allegedly threatening the Travis County district attorney after she was convicted of drunk driving. The indictment claimed the governor said that if the DA, Rosemary Lehmberg, did not resign that he would cut funding to her office.

Perry’s legal team, headed by Galveston personal injury lawyer Tony Buzbee, argued that the special prosecutor in the case did not properly take the oath of office.

Senior District Judge Bert Richardson concluded Nov. 18 that special prosecutor (also knows as attorney pro tem) Michael McCrum’s authority “was not voided” by procedural irregularities when the oath of office was administered.

He also ruled that Perry’s attorneys waited too long to raise their objections.

Richardson wrote that prior to a Nov. 6 hearing regarding McCrum’s authority, both parties were asked if they wanted another judge to be assigned, and that “both parties confirmed on numerous occasions, both on and off the record, that they did not want another judge to preside over this hearing.”

“There was no motion to recuse made by either party, despite the offer by (McCrum) to voluntarily recuse himself,” the ruling states.

Perry’s lawyers also claimed that McCrum was not authorized to proceed because there was no written order appointing him, he did not sign the Oath of Office, the anti-bribery statement was not properly filed and that Perry did not have access to certain documents that should have been available in the public record.

According to the ruling, it was Judge Richardson himself that administered the Oath of Office to McCrum on Aug. 19, 2013.

“It is important to note that the Attorney Pro Tem Oath of Office and Statement of Officer (anti-bribery statement) have been on file with the Travis County District Clerk’s office, and available to the public, since Aug. 22, 2013,” Richardson wrote, with emphasis on the sentence in bold type on the original document.

He wrote that under the Texas Code of Criminal Procedure, no written order is explicitly required.

In addition, Richardson concluded “it is the actual taking of the Oath of Office, not the signature on the oath,” that satisfies the law.

As for the argument that McCrum took the oath before he signed and filed the anti-bribery statement, Richardson states that both the oath and the statement were signed at the same time.

The judge agreed that the Texas Constitution does give instructions that the anti-bribery statement is to be signed and filed with the Secretary of State before taking the Oath of Office, but concludes that the procedural irregularities do not void McCrum’s authority. He cited several cases that concluded that procedural irregularities does not render the oath void.

Richardson’s ruling does not address three other pending motions that argue the charges against Perry should be dropped because they are based on unconstitutional state laws, improperly criminalize politics and limit gubernatorial power.

As the Record previously reported, in April 2013, Travis County District Attorney Rosemary Lehmberg, a Democrat, was arrested and pleaded guilty to drunk driving. She reportedly had a blood alcohol content almost three times the legal limit, and is seen acting belligerently in a jailhouse video.

Perry, a likely Republican candidate for president in 2016, said Lehmberg’s behavior was inappropriate and asked her to resign. She refused, and the indictment alleges that Perry threatened to veto funding to her public corruption unit if she didn’t step down.

Lehmberg was jailed on a to 45-day sentence, and still would not resign.

A grand jury investigated Lehmberg for judicial misconduct but decided she did not need to be removed from office.

Perry later did veto the funding request, cutting $7.5 million from the Public Integrity Unit, which is part of the Travis County District Attorney’s Office.