Perry Scandal Heats Up As Judge Appoints A Special Prosecutor

A grand jury is now being assembled to investigate and consider charges against Texas Gov. Rick Perry and Travis County District Attorney Rosemary Lehmberg, the September 5 San Antonio Express News reported.

The assembling of the grand jury will be handled by San Antonio Judge Bert Richardson. Because the grand jury will be working on both the Lehmberg and Perry cases, two investigations that were previously entirely separate are effectively being merged.

The special prosecutor for the Lehmberg case, former Brazos County District Attorney Bill Turner, was appointed in late June (June 29 Brazos-College Station Eagle). Turner was appointed by San Antonio Judge David Peeples. The appointment of the Perry special prosecutor–former prosecutor Michael McCrum–did not occur until mid-August. Thus, the Lehmberg investigation had been proceeding for more than two months without a grand jury.

Significantly, it was only after the appointment of the Perry special prosecutor that a grand jury was made available to the two proceedings. Moreover, it was the judge who appointed the Perry special prosecutor–not the one who appointed the Lehmberg special prosecutor–who took the initiative to assemble a grand jury.

The Lehmberg complaint was filed by a former competing candidate against her, Rick Reed. The allegation is that Lehmberg obstructed justice in connection with her drunk driving arrest earlier this year to which she pleaded guilty.

Perry’s prosecution was started by a complaint from a citizens’ watchdog group, Texans for Public Justice. TPJ alleged that Perry may have violated one or more of four criminal statutes by first demanding the resignation of Lehmberg and then, when she did not resign, vetoing the state funding of the Travis County Public Integrity Unit, in retaliation. Gov. Perry’s veto statement expressly stated that the reason for his veto was Lehmberg’s failure to resign.

In Texas, the governor has no supervisory power whatsoever over the Travis County district attorney which is a completely separate office elected by the voters of that county. However, had she resigned, Perry would have appointed a successor to serve until the next election. Travis County is historically solidly Democratic in its voting, and so any Perry-appointed successor would likely have served only the unexpired term.

Because the governor has no supervisory power over the district attorney, his demand that she resign and his subsequent vetoing of the funding for the Public Integrity Unit was seen by the TPJ as an abuse of power. The four criminal statutes cited by the TPJ as possibly having been violated by Perry are all first level misdemeanors (up to one year in prison), but Perry may also have exposure under Texas’s Penal Code provision on Obstruction and Retaliation (PC Section 36.06) which is a third degree felony (two to ten years in prison).

Even more significant than these criminal prosecutions, though, is the de-funding of the Public Integrity Unit. The purpose of the Public Integrity Unit is to investigate and prosecute political crimes that may have been committed by public office holders. In the past, for instance, it has prosecuted former House Majority Leader Tom DeLay, a Republican, and various Democrats including the late Jim Mattox, then Texas’s Attorney General. This function has historically been performed by the office of the District Attorney of Travis County because that county contains the state’s capital, Austin, and thus is often the proper venue for such prosecutions.

The Travis County Commissioners Court, which has available to it only tax funds from residents of that county, has restored a portion of the funding of the Public Integrity Unit, so that it can continue to exist, but without the larger state funding vetoed by Gov. Perry, the Unit will be less viable and will have to cut staff and caseload.

Furthermore, at the time of the veto, the Public Integrity Unit was investigating whether any malfeasance occurred in connection with a state cancer prevention and research organization which potentially implicated political allies of Perry.

The Texas Attorney General has virtually no criminal function. Thus, if abuse of power is to be challenged in Texas, it generally must be done by the Public Integrity Unit. That Unit is not involved in either of the special prosecutions of Perry and Lehmberg because of the district attorney’s connection to both matters.

In Texas, all of the statewide offices, as well as both houses of its legislature, are held by Republicans. Because Travis County generally votes Democratic, the Public Integrity Unit is essentially the only meaningful check on unchallenged one party rule in Texas. Accordingly, Perry’s actions could also be viewed as a pretext for further consolidating Republican power in the state.

Edited and published by CB

Dan Boyd is a founding director of the Roosevelt Institute ( and serves on its Board of Governors. He is a lifelong progressive and a Dallas-based trial and appellate lawyer.