Letter to Public Integrity Unit - Illegal Coercion by Sen Whitmire

August 29, 2014

Travis County District Attorney Rosemary Lehmberg

ATTN: Public Integrity Unit

509 W. 11th St.

Austin, TX 78701

By FedEx

RE: Illegal coercion by Senator John Whitmire

Dear District Attorney Lehmberg:

I write on behalf of the Conservative Action Fund (CAF), an organization dedicated to preserving fundamental principles of limited, constitutional government, including the separation

of powers. Like scores of observers nationwide of all political stripes, CAF is deeply troubled by

the indictment of Governor Rick Perry, apparently for the mere exercise of his constitutional

veto authority as the Governor of Texas. Governor Perrys actions were entirely ethical and appropriate, and the criminal statute under which he is being prosecuted is blatantly

unconstitutional. We hope and expect that Governor Perrys constitutional challenges to the prosecution will be successful.

Despite its glaring constitutional problems, acting under the auspices of the Public

Integrity Unit (PIU) of the Travis County DAs office, Special Prosecutor Michael McCrum initiated this prosecution of the Governor. If your office is intent on prosecuting Governor Perry

for exercising his lawful legislative authority (the veto) to encourage action by another public

servant (Lehmberg), then we suppose that you would be troubled to know of two publicly

documented violations of the same criminal statute by a powerful Texas Democrat. Senator John

Whitmire, the most senior member of the Texas Senate, who has represented District 15 in the

Houston area since 1983, recently flexed his legislative authority in order to coerce a specific

action from public servants at the University of Houston. While we do not believe that Senator

Whitmire should be prosecuted any more than should Governor Perry, Senator Whitmires actions squarely implicate the very same provision upon which the prosecution of Perry is based.

I. Elements of the indictment against Governor Perry

Count II of the indictment against the Governor (coercion of a public servant) is premised on article 36.03 of the Texas Penal Code. That article provides in relevant part that

[a] person commits an offense if by means of coercion heinfluences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official

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Page 2 of 6

duty. Tex. Pen. Code art. 36.03 (West 2013) (emphasis added).1 As defined in the Penal Code, coercion is not limited, as one would naturally expect, to threats of unlawful or unethical action. Instead, coercion means, in relevant part, a threat, however communicated[,] to take or withhold action as a public servant, or to cause a public servant to take or withhold action. Tex. Pen. Code 1.07(9)(F) (West 2013). So a public official in Texas apparently risks criminal

prosecution simply by threat[ening] to exercise his lawful authority to achieve a policy objective.

According to count II of Mr. McCrums indictment, Governor Perry violated article 36.03 by threatening to veto legislationto provide funding for the continued operation of the Public Integrity Unit of the Travis County [DA]s Office unless Travis County [DA] Rosemary Lehmberg resigned from her official position as elected [DA]. This was a criminal act, the indictment alleges, because Perrys veto threat was an attempt to intentionally or knowingly influence[] or attempt[] to influence Rosemary Lehmberg, a public servantin the specific performance of her official duty, to wit: the duty to continue to carry out her responsibilities as

the elected [DA] for the County of Travis.

II. Criminal coercion perpetrated by Senator John Whitmire

If Governor Perrys actions can give rise to a felony prosecution, then Senator Whitmires threats against the leaders of the University of Houston this month, and his coercion of the Texas Department of Criminal Justice in 2011, are equally criminal.

A. Whitmire coerces University of Houston President Renu Khator

The Houston Chronicle ran a story August 19, 2014, under the following headline: UH president, under pressure from senator, kills on-campus living requirement. See Benjamin Wermund, UH president, under pressure from senator, kills on-campus living requirement,

HOUSTON CHRON., Aug. 19, 2014, attached as Exhibit B. The Chronicle explains that on Friday,

August 15, the University of Houston issued a news release announcing the University would

require freshmen to live on campus beginning in the fall of 2015. As of August 15, the plan

seemed set. However, that changed fast once Senator Whitmire learned of the plan, apparently by reading about it in the media. The Chronicle obtained text messages between Whitmire and

UH President Renu Khator from Saturday, August 16. The following are excerpts from the

conversation:

Whitmire: Sounds like we need to talk. I think you have overstepped on this one.

Expect lots of push back.

Khator: Waiver is for anyone who gives any reason at allany reason including financial, religious, family. Eleven other universities in Texas (not UT and A&M)

are successfully using them. Students are fully supportive.

Whitmire: You and somebody did not think this through.

1 A copy of article 36.03 is attached hereto as Exhibit A.

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Khator: It is on board agenda. Has not been done yet. Will think more so we do

the right thing.

Whitmire: I would like to know who came up with this. I will stop dead and pass

leg if I need to.

Khator: I am sorry to have disappointed you.

Whitmire rebukes UH president via texts for proposed freshman living requirement, HOUSTON

CHRON., Aug. 19, 2014, attached as Exhibit C.

The Chronicle reports that Whitmire and Khator spoke by phone, and then the text

messages resumed:

Khator: Are you still upset? The issue was going only as information/option to

board and I have already killed any further consideration on it. Can you please not

forgive? Is there anything I can do to ensure you it is killed from consideration?

You are the best critic/friend I have so I killed it on Saturday myself.

Anyway, it is now killed even from consideration and we will listen and learn.

Thank you.

Id.

These reports reveal that the University of Houston was moving forward to approve a

plan requiring freshmen to live on campus, but immediately killed consideration of the plan as a direct result of Senator Whitmires threat to stop [it] dead and pass leg[islation] if I need to. Senator Whitmires threats apparently caused serious concern for the head of the University of Houston, because after their phone conversation, President Khator still felt the need to follow up

in writing, practically begging the State Senator for forgiveness, and repeatedly assuring him that

she had killed the plan.

As noted above, article 36.03 prohibits influenc[ing] or attempt[ing] to influence a public servant in a specific exercise of his official power or a specific performance of his official

duty by means of coercion. And again, coercion includes a threat, however communicatedto take or withhold action as a public servant. Senator Whitmire directly attempted to influenceand did in fact influencea public servant (the UH President)2 in a specific exercise of [her] official power. He achieved such influence by means of coercion,

2 Public servant means a person elected, selected, appointed, employed, or otherwise designated as one

of the following: (A) an officer, employee, or agent of government. Tex. Pen. Code art. 1.07(a)(41)(A). As an officer of the University of Houston, a publicly-funded institution of higher

learning, see Tex. Educ. Code 111.01 et seq., Renu Khator is a public servant within the meaning of the penal code. See, e.g., Smith v. State, 959 S.W.2d 1, 7 (Tex. App.Waco 1997, pet. refd) (Texas A&M University Vice-President for Finance and Administration was a public servant under the penal

code); Brown v. State, No. 13-05-711-CR, 2007 WL 2012902 (Tex. App.Corpus Christi Jul. 12, 2007) (affirming conviction of University of Houston employee for theft by a public servant).

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Page 4 of 6

that is, by threatening to takeaction as a public servant in the Legislature if UH did not bow to his demand.

Indeed, it would appear that Senator Whitmires conduct provides an even stronger basis for prosecution than does the Governors. The statute prohibits coercing a public servant in a specific exercise of his official power or a specific performance of his official duty. Tex. Pen. Code art. 36.03(a)(1) (emphasis added). Even aside from the statutes constitutional infirmities, Perrys alleged demand that Lehmberg resign her post entirely arguably does not constitute coercion of a specific exercise of her authority (such as, for example, changing the DAs policy on a specific topic, or handling a specific case according to the Governors demand). By contrast, Senator Whitmire clearly coerced the UH President as to a specific exercise of [her] official powerkilling the proposed campus residency requirement.

Just as the Governor possesses constitutional authority to veto appropriations,3 state

legislators like Senator Whitmire possess the authority to initiate and vote on legislation. Under

the theory of the indictment, if Governor Perry committed a crime by threatening to exercise his

veto power unless Lehmberg resigned, then Senator Whitmire committed a crime by threatening

to pass legislation unless UH killed its proposed residency policy.

But that is not all. If such actions are criminal in Texas, then Senator Whitmire must be

prosecuted as a repeat offender.

B. Senator Whitmire coerces Executive Director of TDCJ.

In 2011, Senator Whitmire was incensed at the Texas Department of Criminal Justices (TDCJ) policy of entertaining last meal requests from death row inmates after a particularly egregious abuse of the policy by inmate Lawrence Russell Brewer. The New York Times

reported that [i]n a phone call and letter to the executive director of the state prison agency, Mr. Whitmire asked that the agency end the practice of last meals or he would get the State

Legislature to pass a bill doing so. Manny Fernandez, Texas Death Row Kitchen Cooks its Last Last Meal, N.Y. TIMES, Sept. 23, 2011, at A17, attached as Exhibit D. Senator Whitmire actually memorialized the smoking gun evidence you will need for prosecution of this earlier violation of article 36.03, because he made the threat by means of a letter on official Senate

letterhead. In correspondence dated September 22, 2011 and addressed to Brad Livingston,

Executive Director of the TDCJ, Senator Whitmire wrote that he ha[s] yielded to TDCJ judgment in the past, but now enough is enoughI am asking that you end this practice immediately or I am prepared to do so by statute next session. See Exhibit E. The New York Times reported that merely hours after Whitmires threats, TDCJ terminated the practice.

***

As indicated in my introduction, Conservative Action Fund believes article 36.03(a)(1) is

plainly unconstitutional and unenforceable. Your offices prosecution of Governor Perry for transparently exercising his constitutional veto authority threatens to eviscerate the separation of

powers, a bedrock principle of American constitutional government.4

3 TEX. CONST. art. IV, 14.

4 Aside from that, common sense dictates that the public would be disserved if a Governor felt he must

silently issue vetoes without prior warning simply to avoid a threat of criminal prosecution.

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The constitutional injury is compounded further, however, when a dangerous and

unconstitutional statute is enforced along partisan lines. Your investigation of Governor Perry

was prompted by a complaint filed by Craig McDonald of Texans for Public Justice, a partisan

liberal enterprise whose name takes on an Orwellian character when one considers that it exists

for the purpose of suppressing free political speech and activity of conservatives while

simultaneously defending its own practice of refusing to disclose its donors.5 Faced with

nationwide blowback from even liberal critics such as the New York Times editorial board,

McDonald took to Politico Magazine in an attempt to defend his complaint. He began by

assuring critics that upon reading in an Austin newspaper of the Governors threat to veto Public Integrity funding, he knewthen and therethat Texass longest-serving governor had broken the law. He then explains that Texans for Public Justice

filed our criminal complaint before Perry vetoed Public Integrity funding. After

all, it was the governors threatsnot his vetothat broke Texas law prohibiting an official from using the power of his or her office to coerce another official into

taking an action, such as resignation.

Craig McDonald & Andrew Wheat, Why liberal pundits are wrong about the Perry indictment,

POLITICO MAGAZINE, Aug. 21, 2014.6

Apparently, Mr. McDonald and his liberal group did not read the stories about Senator

Whitmires 2011 threat, although it was reported widely, even garnering attention in The New York Times. And maybe Texans for Public Justice have not yet had time to digest the multiple

prominent stories by the Houston Chronicle recounting Senator Whitmires (very effective) coercion of UH President Renu Khator this month.

While the political crimes of Senator Whitmire may have escaped the notice of our

mutual trustees at Texans for Public Justice, your office is now aware of two publicly

documented instances of the coercion of a public servant by a well-known and powerful Democrat.

5 We do not disclose the identities of our individual donors, McDonald said. Because we often

challenge the powerful, we do not want to subject our supporters to the retaliation or intimidation that we

face and this past week of hate mail, threats and intimidation justifies that policy. Tim Eaton, Group that brought Rick Perry complaint has focused on Republicans, AUSTIN AMERICAN-STATESMAN, Aug.

23, 2014. We are pleased Mr. McDonald agrees with us that there are limits to the governments power to require disclosure of nonprofit donors.

6 Available at http://www.politico.com/magazine/story/2014/08/rick-perry-indictment-liberals-

110229.html#ixzz3BkeednZr.

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In light of these very serious (even Perry-esque?) transgressions, I am afraid that if your

office refuses to investigate and prosecute Whitmire, your prosecution of Perry for the same

crime will appear to be just as partisan as the selective complaints filed by Texans for Public Justice. Neither the Travis County DAs Office, nor the Public Integrity Unit, can afford to bear any further damage to its credibility. It seems your only options are to mete out unconstitutional

justice on a nonpartisan basis orbetter yetacknowledge the serious legal and public policy problems with this statute, and halt the prosecution of Governor Perry. The people of Texas are

well-served by a Governor who explains the circumstances under which he will veto legislation

beforehand.

Very respectfully,

Jerad Najvar

Encl.

cc:

The Hon. John Whitmire

Special Prosecutor Michael McCrum

Anthony G. Buzbee, THE BUZBEE LAW FIRM

Thomas R. Phillips, BAKER BOTTS LLP

David L. Botsford, BOTSFORD & ROARK

Craig McDonald, Texans for Public Justice

Ross Ramsey, Texas Tribune

Peggy Fikac, San Antonio Express-News

David Saleh Rauf, San Antonio Express News

Jonathan Tilove, Austin American-Statesman

Paul J. Weber and Jim Vertuno, Associated Press

Exhibit A

36.03. Coercion of Public Servant or Voter, TX PENAL 36.03

2014 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes AnnotatedPenal Code (Refs & Annos)

Title 8. Offenses Against Public AdministrationChapter 36. Bribery and Corrupt Influence (Refs & Annos)

V.T.C.A., Penal Code 36.03

36.03. Coercion of Public Servant or Voter

Currentness

(a) A person commits an offense if by means of coercion he:

(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performanceof his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty; or

(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.

(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which eventit is a felony of the third degree.

(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influencethe public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts toinfluence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection,the term official action includes deliberations by the governing body of a governmental entity.

CreditsActs 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 67, 1, 3, eff. Sept. 1,1989; Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Notes of Decisions (12)

V. T. C. A., Penal Code 36.03, TX PENAL 36.03Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.

Exhibit B

8/23/2014 UH president, under pressure from senator, kills on-campus living requirement - Houston Chronicle

http://www.houstonchronicle.com/news/education/article/UH-president-under-pressure-from-senator-kills-5699012.php 1/3

EDUCATION

UH president, under pressure from senator, kills on-campus living requirementBy Benjamin Wermund

August 19, 2014 | Updated: August 21, 2014 8:59pm

After a lengthy exchange with an angry state senator on Saturday, University of Houston Chancellor and

President Renu Khator killed a plan to require most freshmen to live on campus, according to text messages

the Houston Chronicle obtained Tuesday.

In the exchange with Sen. John Whitmire, Khator went from defending the plan to assuring the Houston

Democrat she had ordered a halt to it.

"I have already killed any further consideration on

it," Khator said in one message after Whitmire had

denounced the idea as insensitive to student needs

and UH history. "Can you please forgive?"

In making the proposal, administrators had pointed

to data that showed students make better grades,

take more classes and have a better chance of

graduating in four years when they live on campus.

The plan seemed set on Friday, when UH issued a

news release saying freshmen would have to live

on campus starting in the fall of 2015. The release

has been removed from the university's website, where it was posted as recently as Monday.

UH officials confirmed Tuesday that the proposal had been scrapped, but did not comment further.

Back to drawing board

The fallout over the weekend highlights conflicting views of UH's mission as the university strives to become

a top-tier research institution. Khator came to UH six years ago as a transformative figure, drawing

widespread praise for bold leadership. Part of her push has been to make UH a residential institution, rather



RELATED

than the commuter school it has long been.

But Whitmire, a UH alumnus, warned that the university should not lose sight of its historic role as a place for

working-class students to get a quality education. Living on campus is unaffordable for some students,

Whitmire said.

The conflict played out in the text messages he exchanged with Khator.

"You totally discount people like me that lived in an apartment with my mother and worked," Whitmire told

Khator in one text. "You are very insensitive to UH experience."

Khator said she was sorry and would be "going back to the drawing board."

The UH proposal included exemptions for students who are married or have children, or who live with their

parents within 20 miles of campus. Whitmire told Khator that these exceptions wouldn't include gay students,

described 20 miles as an arbitrary distance, and said the plan would "just run kids away from UH and

start a firestorm." His suggestion: "You need better advisors."

The two eventually had a phone conversation, and Khator texted Whitmire afterward to ask if he was still

upset.

"Is there anything I can do to ensure you it is killed from consideration?" she wrote. "You are the best

critic/friend I have so I killed it on Saturday itself."

Sen. Ellis also opposed

Whitmire was not alone in opposing the plan.

State Sen. Rodney Ellis, a Democrat whose district includes the university, said it's best that the plan was

killed. Ellis said living on campus helped him graduate from Texas Southern University in three years in the

1970s, but acknowledged the cost of college has increased greatly since then.

"I could get behind the idea of encouraging or incentivizing students to live on campus, provided they're able

to afford it, but I don't think it should be a requirement," Ellis said in a statement. "The cost of higher

education is much higher than it was in the '70s, so any policy proposals have to take that into consideration.

With that said, I understand why UH is trying to find new ways to increase graduation and retention rates

now that the Legislature is tying dwindling state funds to a school's graduation rate."



Read the texts between Khator and Whitmire

2013 Hearst Newspapers, LLC.

Exhibit C

8/23/2014 Whitmire rebukes UH president via texts for proposed freshman living requirement - Houston Chronicle

http://www.houstonchronicle.com/news/article/Whitmire-rebukes-UH-president-via-texts-for-5699232.php 1/2

US & WORLD

Whitmire rebukes UH president via texts for proposedfreshman living requirementHOUSTON CHRONICLE

August 19, 2014

Excerpts of text messages exchanged Saturday between University of Houston Chancellor and President

Renu Khator and state Sen. John Whitmire of Houston:

8:45 a.m.

Khator: You will read about UH requiring

freshmen living outside 20-mile radius and not

married to live on campus. Easy waivers to others.

It is to change the culture and create new

expectation. Applies only to full time freshmen.

Darrin (Darrin Hall, UH director of governmental

relations) sent our statement to your office

yesterday.

Whitmire: Sounds like we need to talk. I think

you have overstepped on this one. Expect lots of

push back.

Khator: Waiver is for anyone who gives any reason at all - any reason including financial, religious, family.

Eleven other universities in Texas (not UT and A&M) are successfully using them. Students are fully

supportive.

Whitmire: You and somebody did not think this through.

Khator: It is on board agenda. Has not been done yet. Will think more so we do the right thing.

9:15 a.m.

Whitmire: I would like to know who came up with this. I will stop dead and pass leg if I need to.

8/23/2014 Whitmire rebukes UH president via texts for proposed freshman living requirement - Houston Chronicle

http://www.houstonchronicle.com/news/article/Whitmire-rebukes-UH-president-via-texts-for-5699232.php 2/2

Khator: I am sorry to have disappointed you.

(Whitmire and Khator have a phone conversation, then the texts resume.)

10:05 a.m.

Khator: Are you still upset? The issue was going only as information/option to board and I have already

killed any further consideration on it. Can you please not forgive? Is there anything I can do to ensure you it

is killed from consideration? You are the best critic/friend I have so I killed it on Saturday itself.

Whitmire: Well the (Chronicle) article really set me back. It is so unfounded with lack of realism of the

people I represent and UH serves that I am not going to stop until your administration understands their

mission. Furthermore you totally mishandled presenting this to me and legislators.

10:49 a.m.

Khator: We will learn. Media has misled everyone by portraying it as if it done deal. They love to create

sensation and we were idiots to allow it.

Anyway, it is now killed even from consideration and we will listen and learn. Thank you.

2013 Hearst Newspapers, LLC.

Exhibit D

8/23/2014 Texas Death Row Kitchen Cooks Its Last Last Meal - NYTimes.com

http://www.nytimes.com/2011/09/23/us/texas-death-row-kitchen-cooks-its-last-last-meal.html?_r=0&pagewanted=print 1/2

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September 22, 2011

Texas Death Row Kitchen Cooks Its LastLast MealBy MANNY FERNANDEZ

HOUSTON For decades, Texas inmates scheduled to be executed had at least one thing to

look forward to: a last meal. Earl Carl Heiselbetz Jr. ordered two breaded pork chops and three

scrambled eggs in 2000. Frank Basil McFarland asked for a heaping portion of lettuce and four

celery stalks in 1998. Doyle Skillern ate a sirloin steak in 1985.

But state prison officials decided on Thursday to end the practice of giving last meals to inmates

about to be executed, their decision coming the day after they honored an elaborate meal

request from Lawrence Russell Brewer, one of the men convicted in the 1998 racially motivated

dragging death of James Byrd Jr. in Jasper.

Before Mr. Brewer was executed by lethal injection in the Huntsville Unit on Wednesday, he

was given the last meal of his request: two chicken-fried steaks with gravy and sliced onions; a

triple-patty bacon cheeseburger; a cheese omelet with ground beef, tomatoes, onions, bell

peppers and jalapeos; a bowl of fried okra with ketchup; one pound of barbecued meat with

half a loaf of white bread; three fajitas; a meat-lovers pizza; one pint of Blue Bell Ice Cream; a

slab of peanut-butter fudge with crushed peanuts; and three root beers.

The meal outraged State Senator John Whitmire, a Houston Democrat and chairman of the

Senate Criminal Justice Committee. In a phone call and letter to the executive director of the

state prison agency, Mr. Whitmire asked that the agency end the practice of last meals or he

would get the State Legislature to pass a bill doing so.

The prison agencys executive director, Brad Livingston, responded hours later, telling Mr.

Whitmire that the practice had been terminated, effective immediately, and that death row

inmates scheduled for execution would receive the same meal served to other inmates in the

unit.

I believe Senator Whitmires concerns regarding the practice of allowing death row offenders

to choose their last meal are valid, Mr. Livingston said in a statement.

MORE IN U.S.

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8/23/2014 Texas Death Row Kitchen Cooks Its Last Last Meal - NYTimes.com

http://www.nytimes.com/2011/09/23/us/texas-death-row-kitchen-cooks-its-last-last-meal.html?_r=0&pagewanted=print 2/2

Mr. Whitmire said his opposition to last meals had little to do with the cost of the meals, when

the state budget is stretched thin. He said it was a matter of principle. He never gave his

victim an opportunity for a last meal, Mr. Whitmire said of Mr. Brewer. Why in the world are

you going to treat him like a celebrity two hours before you execute him? Its wrong to treat a

vicious murderer in this fashion. Let him eat the same meal on the chow line as the others.

Mr. Brewer did not eat his last meal, and Mr. Whitmire said he felt that the inmate had ordered

it in an attempt to make a mockery out of the process.

Officials with the prison agency, the Texas Department of Criminal Justice, said they did not

have data on how much the last meals cost the state. They said the kitchen staff at the

Huntsville Unit, where executions take place, tried to accommodate inmates requests within

reason, using food in the prison kitchen. The requests are normally made about two weeks

before the scheduled execution.

Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group

based in Washington, said the decision to do away with last meals seemed petty. If the last

meal process has been abused, then maybe it warrants changing, but there are a lot more

serious abuses that have gone on in terms of lack of due process in Texas, Mr. Dieter said.

Inmates would much prefer a last lawyer to a last meal.

Exhibit E

Documents

Letter to Public Integrity Unit - Illegal Coercion by Sen Whitmire