Judge Denies Rick Perry Lawyers' Bid to Throw Out Case

by | November 20, 2014

By Chuck Lindell and Tony Plohetski

The criminal case against Gov. Rick Perry can proceed, a state district judge ruled Tuesday.

Perry's legal team had argued that the two felony charges against the governor must be voided because special prosecutor Michael McCrum did not properly take an oath of office when he began working on the case, negating every act performed over the past 15 months _ including the indictment accusing Perry of abusing the powers of his office.

Senior District Judge Bert Richardson disagreed, ruling that McCrum could not be disqualified simply because he failed to strictly follow the Texas Constitution's instructions on how to take the oath of office.

"This court concludes that Mr. McCrum's authority was not voided by the procedural irregularities in how and when the oath of office ... was administered," Richardson said in a 16-page order.

What's more, Richardson ruled, Perry's lawyers waived the right to object because they had waited too long to complain about the prosecutor's oath of office.

Tony Buzbee, Perry's lead lawyer, said he was disappointed that Richardson ruled that "substantial compliance with the constitution is good enough."

"We respectfully disagree with the judge, but, as always, will respect the court's decisions," he said.

Buzbee said he was eagerly awaiting Richardson's ruling on a separate, broader challenge arguing that the charges should be tossed out because they are based on unconstitutional state laws and because they improperly criminalize politics and limit gubernatorial power.

"We are confident we will ultimately prevail and expect a favorable ruling ending this case, hopefully by the end of November," Buzbee said.

The Texas Constitution requires elected and appointed public officials to take an oath of office vowing to faithfully execute their duties and uphold the U.S. and Texas constitutions and laws. Officials also must swear that they had offered no bribes to gain the office.

Perry's legal team argued that McCrum signed his anti-bribery statement shortly after taking the oath of office _ the wrong order of events as required by the Texas Constitution _ and that he failed to sign his oath of office.

Richardson, however, said Texas courts have frequently ruled that such procedural irregularities do not invalidate an official's authority as long as the oath of office was taken. Richardson added that, because he was the judge who administered McCrum's oath, there was no doubt the proper words were spoken.

"I intend to keep working hard on this matter that directly affects how we want our government to run in Texas," McCrum said after the decision.

Tuesday's ruling was the second piece of good news this week for McCrum, who on Monday was cleared of an unrelated contempt of court charge in a case out of San Antonio.

The contempt charge arose from a 2013 trial in which McCrum defended a woman who was charged with and ultimately convicted of intoxication manslaughter after she drove the wrong way down an interstate, causing a head-on crash that killed two men. Tests determined the woman had a blood-alcohol level three times the legal limit.

After the trial, prosecutors argued that McCrum should be held in contempt for telling his client's former addiction counselor to "get lost for a while" and not be available to testify at the sentencing phase of the trial.

McCrum could have faced up to six months in jail, but a state district judge declined to find him in contempt.

Perry was indicted by a Travis County grand jury in August on felony charges of abuse of official capacity and coercion of a public servant. The indictment arose from his threat last year that Travis County District Attorney Rosemary Lehmberg had to resign after her April 2013 drunken driving conviction or lose $7.5 million for the Public Integrity Unit housed in her office.

Lehmberg refused to step down, and Perry carried out the threat by using his line-item veto authority in the state budget.

Additional material from staff writer Tim Eaton.

(c)2014 Austin American-Statesman, Texas