Former Perry Lawyer Picked to Hear Appeal in Perry Indictment

Rick Perry may be somewhat familiar with one of the judges picked to hear an appeal in the criminal case against him. 

That's because Justice Bob Pemberton has worked for the former governor, representing him in court as his deputy general counsel. After that job, Perry appointed him to the 3rd Court of Appeals, which is now considering a request from Perry's lawyers to dismiss the abuse-of-power charges against him.

Pemberton also clerked for Tom Phillips, the retired chief justice of the Texas Supreme Court who is now on Perry's defense team. Pemberton's website features a photo of him being sworn in by Phillips — "his friend, supporter, and former boss." 

In addition to once working for Perry, being appointed by Perry and having clerked for one of Perry's current lawyers, Pemberton has been a political supporter of the former governor. Pemberton chipped in $1,000 for Perry's 2002 re-election campaign, according to state records.

The justice's connections to Perry are unusual, even in a state under yearly scrutiny for a judicial system critics say is too tainted by politics. Judicial elections in Texas are partisan, and the 3rd Court of Appeals is controlled by Republicans. 

Judges are bound to have some connection to Perry, the longest-serving governor in Texas history, but Pemberton's relation is beyond the pale, according to some good-government experts.

"That court has always acted in a partisan manner, but in this case, Justice Pemberton should definitely recuse himself," said Craig McDonald, head of Texans for Public Justice, a liberal-leaning watchdog group responsible for the complaint that led to Perry's indictment. "There should definitely be a recusal." 

According to the Texas Rules of Civil Procedure, a judge must recuse himself or herself in any proceeding in which "the judge’s impartiality might reasonably be questioned."

Perry appointed Pemberton to the 3rd Court of Appeals in 2003. Pemberton was elected to finish the unexpired term in 2004 then was re-elected to full six-year terms in 2006 and 2012. 

Pemberton did not respond to return a call and email Friday afternoon, and a court representative said he could not comment on the situation. In an email, Perry attorney Tony Buzbee rejected the need for Pemberton recuse himself. 

"Is it a conflict that our trial judge used to be supervised by the special prosecutor and that the trial judge then appointed the special prosecutor? I do not think it is a conflict or a story," Buzbee said.

Judge Bert Richardson, who is now on the Court of Criminal Appeals, continues to oversee the Perry case. He was appointed after Travis County judges recused themselves from hearing the case. He appointed Mike McCrum as special prosecutor. McCrum used to supervise Richardson when the two worked at the U.S. attorney's office in San Antonio.

On Wednesday, the parties in the case were notified that three judges had been tapped to hear the appeal: Justices Scott Field, Scott David Puryear and Pemberton. 

Perry's lawyers are working to persuade the appeals court to dismiss the indictment against the former governor, who was indicted last year on charges he abused his office and coerced a public servant. Perry's attorneys are seeking to reverse a decision in January by Richardson to let the case proceed. 

Perry's lawyers have also filed a separate request to Richardson to quash the indictment, which was amended by prosecutors.

The indictment stems from Perry's threat to veto state funding for the public integrity unit unless Travis County District Attorney Rosemary Lehmberg resigned following a drunken driving arrest. She refused to step down, and he followed through on his threat. 

Terri Langford contributed to this report.

Disclosure: Tony Buzbee was a major donor to The Texas Tribune in 2012. A complete list of Tribune donors and sponsors can be viewed here.