Judge: Perry Must Attend Oct. 31 Court Hearing

Gov. Rick Perry will have to make a Halloween appearance in an Austin courtroom, a judge ruled Monday.

During a status conference with prosecutors and Perry's attorneys, visiting Judge Bert Richardson outlined plans to take up two matters raised by the governor's legal team on Oct. 31. But because this next hearing involves more than scheduling, the judge has ruled that he wants Perry to be present. 

"The governor will be here on the 31st," said Tony Buzbee, one of Perry's attorneys. 

The first to be tackled at the next hearing is the defense’s argument that San Antonio lawyer Michael McCrum was improperly sworn in to prosecute the criminal case against Perry. The second matter is a request by the defense that an official transcript of grand jury testimony be viewed by the judge privately, to determine whether information that would prove Perry's innocence had been included in the testimony.

Perry is charged with abusing his official power by threatening to veto $7.5 million in state funds for the state's public integrity unit unless Travis County District Attorney Rosemary Lehmberg, a Democrat, stepped down following a 2013 drunken driving conviction. The Travis County DA's office oversees the public integrity unit. Lehmberg refused to resign, and Perry vetoed the money.

Perry did not attend Monday's hearing because his lawyers said the governor would be out of the country, attending a state economic mission in Europe. Richardson ruled earlier that while Perry was excused from Monday's hearing, he would not get a pass to skip evidentiary hearings like the one coming up on Oct. 31. 

In a motion to dismiss Perry’s indictment, the governor's lawyers said that paperwork needed to properly swear in McCrum as prosecutor was not properly filled out or filed. They say McCrum is "acting illegally" because procedural requirements were "overlooked."

During Monday's hearing, Richardson — who had originally appointed McCrum as special prosecutor — insisted that McCrum was sworn in properly. He added that any missing paperwork regarding McCrum's oath of office would be reconciled.

"Clearly some of the documents were available, but they were in the wrong file," Richardson said.

After the hearing, Buzbee said he believed the issue was very much alive. 

"I've seen some paperwork. I'm not sure it resolves the issue, but we'll take it up on the 31st," Buzbee said, adding that if McCrum were not properly sworn in, the entire indictment against the governor should be dismissed. 

McCrum told reporters he had no doubt the he was properly sworn in. 

"Everything was done appropriately," McCrum said. "I have every confidence that we're going to move forward." 

McCrum said the defense request regarding the grand jury testimony is the first such request he's seen in his career. "It's quite unusual," he said.

Without a transcript of the witness testimony, "this court will be unable to ascertain whether a pervasive violation" of Perry's right to carry out legislative activity with immunity from prosecution, as protected by the Texas and U.S. Constitutions, has occurred, the governor's lawyers wrote in the filing. 

The Perry legal team has also filed a request to dismiss the indictment because Perry was acting in his official capacity as governor. That motion will be the subject of a Nov. 7 hearing. 

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