The state is officially challenging an appeals court ruling last month that dismissed one of two counts in the abuse-of-power indictment against former Gov. Rick Perry.
State Prosecuting Attorney Lisa McMinn on Friday asked the state's highest criminal court to reverse the decision by the Austin-based 3rd Court of Appeals, which tossed out the charge that Perry coerced a public servant when he tried to force Travis County District Attorney Rosemary Lehmberg out of office. The state's involvement ratchets up scrutiny of the ruling, the first major breakthrough in the more than yearlong case for Perry, a Republican who is now running for president.
McMinn's appeal also puts her in the company of Perry's legal team, which has its own challenge pending before the Texas Court of Criminal Appeals. Recognizing the potential for an "unnecessary, significant expenditure of resources," special prosecutor Michael McCrum on Monday requested a hold on all trial court proceedings while the case plays out at the Court of Criminal Appeals.
McMinn was expected to file her appeal, saying earlier this month that the state had an interest in the ruling because the 3rd Court of Appeals struck as unconstitutional a part of the Texas penal code that defines coercion.
In a filing with the Court of Criminal Appeals that became available Monday, McMinn argued the 3rd Court of Appeals "erroneously blended two different First Amendment doctrines" when it tackled the coercion issue. McMinn also suggested the court failed to take into account all the potential consequences of declaring the statute unconstitutional.
Tony Buzbee, Perry's top lawyer, has said he understands why the state has a problem with the ruling, "but that doesn't change the fact that the statute is unconstitutional." Perry's legal team is also asking for the Texas Court of Criminal Appeals to get involved, though for a different reason: It would like the court to dismiss the remaining charge against Perry, which alleges he abused his power in dealing with Lehmberg.
Perry's lawyers are pushing for a quick resolution, asking to skip oral arguments in their bid for what is known as discretionary review. McMinn, meanwhile, is requesting oral arguments before the Court of Criminal Appeals, citing the seriousness of the constitutional issues raised by the earlier ruling.
The case against Perry stems from his threat to veto state funding for the public integrity unit in the Lehmberg's office unless the Democrat stepped down following a drunken-driving arrest. The unit handles ethics complaints against statewide officials.
Disclosure: Tony Buzbee was a major donor to The Texas Tribune in 2012.