Special Prosecutor Says Perry Should Appear in Court

Gov. Rick Perry should not be excused from all hearings leading up to his felony trial, the special prosecutor in the criminal case said in a motion filed Wednesday.

Gov. Rick Perry speaks to the media and supporters after being booked at the Travis County Justice Center on August 19, 2014.
Gov. Rick Perry speaks to the media and supporters after being booked at the Travis County Justice Center on August 19, 2014.  Bob Daemmrich

Gov. Rick Perry should not be excused from all hearings leading up to his felony trial because the governor is no different than "any other citizen of Texas," the special prosecutor in the criminal case said in a motion filed Wednesday.

"The state does object to Mr. Perry's request to be permitted to not appear in court at all 'future non-evidentiary hearings' in this case," wrote Mike McCrum, the San Antonio lawyer who was appointed special prosecutor in the case. "From carpenters to lawyers to judges accused of anything from tickets to federal felonies, all are expected to appear in court."

McCrum's statements came in a three-page response to a request by Perry lawyer David Botsford to Visiting Judge Bert Richardson that the governor be excused from an Oct. 13 court hearing and all other hearings before his trial.

Botsford cited the governor's schedule and his job as the reasons that Perry be excused.

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"Indeed, there is absolutely no question that Governor Perry will appear whenever the Court requires his presence, for trial or otherwise," Perry lawyers Tony Buzbee, Tom Phillips and David Botsford wrote in their motion on Monday. "At the same time, his duties and responsibilities to the citizens of Texas and his pre-existing commitments relating thereto are appropriate factors for the Court's consideration.” 

In August, a grand jury indicted Perry on charges of coercing a public servant and abusing his official capacity as governor. The charges are related to Perry threatening to veto $7.5 million in state funds to the Travis County district attorney’s office if DA Rosemary Lehmberg refused to heed his request to step down following her drunken driving conviction. Perry vetoed the funding for the public integrity unit, which is a part of the Travis County DA’s office, after Lehmberg refused to resign. Perry has said that the charges were politically motivated.

The governor turned himself in for booking last month. After his mugshot and fingerprints were taken by sheriff's deputies, Perry held a rally outside the courthouse, and his office tweeted a photo of himself going out for ice cream afterwards.  

Now with only one brief court hearing held so far, filings between the special prosecutor and the governor's defense team have taken a more pointed tone.

"It is certainly not unusual for a judge to waive a defendant's presence at a non-evidentiary pretrial hearing," the Perry legal team wrote. "This is normally addressed by a verbal request to the Court, and in 37 years of practicing criminal defense, Mr. Botsford has never encountered a prosecutor who opposed such a request, in state or federal court. However, due to Mr. McCrum's opposition, this motion is being filed."

McCrum rejected the Perry team's assertion that having the governor excused from pretrial hearings was nothing out of the ordinary.

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"The common practice in Travis County, Texas, is that defendants must appear at all pretrial court settings, regardless of whether it is anticipated the court setting will be 'evidentiary' in scope," McCrum wrote.

McCrum also accused the governor's legal counsel of asking for "special favor" by requesting a “blanket” waiver of appearance to all pre-trial hearings for the governor. 

Disclosure: Tony Buzbee is a major donor to The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.