Editor's note: This story has been updated throughout.
Lawyers for Gov. Rick Perry on Friday filed a request to dismiss the indictment against the governor, saying paperwork needed to properly swear in the prosecutor appointed to shepherd the case was not properly filled out or filed.
"Insofar as the records on file in these cases reflect, [special prosecutor Michael] McCrum, the purported attorney pro tem, is acting illegally because the basic procedural requirements have been overlooked," attorneys Tony Buzbee, Tom Phillips and David Botsford wrote in their filing with Travis County’s 390th District Court. The lawyers wrote that their allegations were based upon the district clerk's files in the case.
McCrum, who obtained the indictment against Perry in August, told The Texas Tribune that he was indeed sworn in.
"I don't know what they're talking about," said McCrum, who was sworn in as special prosecutor in August 2013 and again in 2014.
Perry is charged with abusing his official power by threatening to veto $7.5 million in state funds from the state's public integrity unit unless Democratic Travis County District Attorney Rosemary Lehmberg stepped down following a 2013 drunken driving arrest and conviction. The Travis County DA's office oversees the state-financed public integrity unit. Lehmberg refused to resign, and Perry vetoed the money.
Because the case involves Lehmberg's office, a special prosecutor outside of the agency was appointed. McCrum was appointed by Visiting Judge Bert Richardson.
A copy of McCrum’s 2013 oath of office was obtained by the Tribune from the Travis County district clerk’s office. Form 2204, as it is known, has McCrum’s name printed in as the person taking an “oath of office.”
Another blank line for the “signature of officer” is signed by the judge in the case, Richardson, who was also appointed to oversee the case.
It differs from a similar form for a second lawyer appointed to assist McCrum, David Gonzalez. That oath of office form has Gonzalez’s signature, not the judge’s.
According to the Texas criminal code, an oath by someone like McCrum, who is operating in the place of an assistant district attorney or a district attorney “pro tem,” must be filed with the clerk.
As for the forms and how they are supposed to be filled out, that’s not specified in the code.
However, Perry’s attorneys point to how the clerk’s office does not have paperwork verifying DA Rosemary Lehmberg’s recusal from the case and other paperwork.
An email to the clerk’s office regarding those forms was not immediately answered.
Disclosure: Tony Buzbee has been a major donor to The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.