Full opinion text
OPINION Bob Pemberton, Justice This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves “unique circumstances” that “have been widely reported, argued, and discussed by many with no standing in the case.” Whatever the focus of such commentary, our disposition of this appeal turns on legal issues — primarily procedural in nature — that may be of somewhat less public renown. To summarize the proceedings below, the appellant — James Richard “Rick” Perry, who until recently served as Governor of Texas — sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,” the distinct court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did — under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus. Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we respectfully disagree with the district court — the statute on which the “coercion of a public servant” is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced. As a consequence of these holdings, we affirm the district court’s denial of relief as to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed. BACKGROUND The indictment Through an indictment returned by a Travis County grand jury, appellant Perry has been charged with two counts. Count I alleges that Perry violated section 39.02, subsection (a)(2) of the Texas Penal Code — “Abuse of Official Capacity”— which in pertinent part makes it an offense for a “public servant,” “with intent to harm ... another,” to intentionally or knowingly “misuse government property ... that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” Count II alleges that Perry violated Penal Code section 36.03(a)(1) — “Coercion of Public Servant” — which makes it an offense for a person, “by means of coercion” (a term defined under the Penal Code to include “a threat, however communicated, ... to take or withhold action as a public servant”) to “influence” or attempt to “influence” a “public servant” to certain ends. Although the parties are continuing to litigate the precise content of the indictment before the district court, it suffices for present purposes to note their general agreement that both charges relate to alleged conduct by Perry preceding or relating to his line-item veto of a legislative appropriation to fund the “Public Integrity Unit,” then housed within the Travis County District Attorney’s Office, while he was serving as Governor of Texas. In response to the indictment, Perry has vigorously disputed that the alleged conduct actually equals a crime under either of- the statutes under which he was charged, properly construed, and he urges that any prosecution for such conduct would infringe not only his personal free-speech rights under the Texas and federal constitutions, but also core powers vested in all Texas governors by the Texas Constitution. Were the pending criminal charges civil claims instead, Perry would have in his defensive arsenal an array of procedural mechanisms through which he could raise such challenges to the legal viability of the State’s theories at the outset and possibly obtain dismissal prior to trial — e.g., special exceptions, motions for summary judgment, and the recently created motion to dismiss a cause of action that “has no basis in law or fact,” with possible immediate recourse to appellate courts in the event such relief was denied at the trial level. But the pretrial remedies presently available to defendants in Texas criminal cases are more limited— as the Texas Court of Criminal Appeals has put it, “trial on the merits” remains “ ‘the main event.’ ” Whether it is sound policy to draw such a distinction between defendants faced with loss of property versus loss of liberty is not a question that this intermediate appellate court is empowered to address — we are instead duty-boúnd to follow 'that existing law unless and until the Legislature or the Court of Criminal-Appeals instructs us otherwise. Proceedings below This appeal arises from Perry’s attempt to invoke one of the pretrial remedies that potentially may be available to defendants in Texas criminal cases — an application for a pretrial writ of habeas corpus. Generally described, a criminal defendant may obtain pretrial habeas corpus relief from a trial court when he or she is (1) “restrained” or “confined” (2) illegally and (3) does not possess what is deemed an .“adequate remedy by appeal” against such restraint or confinement. Further, an. applicant who is denied that relief at the trial level, such as Perry, has a right to appeal that order, a potential avenue for obtaining what amounts. to interlocutory appellate review regarding a pending prosecution. There has been no dispute that Perry is “restrained” in the sense required for pretrial habeas relief pursuant to each of the two charges alleged in the indictment. As for the remaining requirements for such relief, he has challenged the legality of his restraint pursuant to’ Count I of the indictment (“Abuse of Official Capacity”) on nine distinct constitutional grounds: 1. Section 39.02(a)(2) [of the Texas Penal Code] violates the Fifth and Fourteenth Amendments to the Constitution of the United States as applied because its prohibitions of “misuse” of “government property - ... that has come into the [Governor’s] custody or possession” is unconstitutionally vague as a' matter of law if extended to a mere gubernatorial veto of any appropriation of State funds. 2. Section 39.02(a)(2) violates Article I, Sections 10 and 19 of the Texas Constitution as applied because its prohibition of “misuse” of ‘government property ... that has come into the [Governor’s] custody or possession” is unconstitutionally vague as a matter of law if extended to a mere gubernatorial veto of any appropriation of State funds. 3. Section 39.02(a)(2) is unconstitutional as applied because it infringes upon the Governor’s absolute constitutional right and duty to approve or disapprové “items of appropriation” under Article IV, Section 14 of the Texas Constitution. 4. Section 39.02(a)(2) is unconstitutional as applied because it violates the separation of powers between the various departments of government that is guaranteed to the People by Article- II, Section ■ 1 of the Texas Constitution. 5. Because a governor acts in a constitutionally-prescribed legislative capacity in vetoing legislation, Section 39.02(a)(2) is unconstitutional as applied because it violates the protection afforded by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution. 6. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, Count I of the indictment is void because it is ■ necessarily based on evidence privi- • leged by the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution. 7. Because the Governor was acting in a legislative capacity in vetoing the appropriation at issue, trial on Count I of the indictment is barred as a matter of law because the State could only sustain its burden, if at all, by introducing evidence privileged by the Speech and Debate Clause of Article III, Section 21 of [t]he Texas Constitution. 8. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his rights under the Free Speech guarantee of the First Amendment to the Constitution of the United States. 9. Section 39.02(a)(2) is unconstitutional as applied because Governor Perry had the right to do any and all acts of which he is charged in the exercise of his-rights under the Free Speech guarantee of Article I, Section 8 of the Texas Constitution. Regarding Count II (“Coercion of Public Servant”), Perry has brought the following constitutional claims: 1.. Section 36.03(a)(1) violates the First .and Fourteenth Amendments to the United States Constitution because, -. as enacted into law, it is unconstitutionally overbroad on its face. 2. Section 36.03(a)(1) violates Article I, Section 8 of-the Texas Constitution • because, as enacted into law, it is unconstitutionally overbroad on its face. 3. Section 36.03(a)(1) violates the First and Fourteenth ’Amendments to the United States Constitution because, " as enacted into law, it is unconstitu- ’ tionally vague on its face. 4. Section 36.03(a)(1) violates Article I, .Section 8 of the Texas Constitution because, as enacted into law, it is unconstitutionally vague on its face. 5. Section 36.03(a)(1) violates the,First, .. Fifth, and Fourteenth Amendments to the United States Constitution because it is unconstitutionally vague as applied. 6. Section -36.03(a)(1) violates Article I, Sections 8, 10, and 19 of-the Texas Constitution because it is unconstitutionally vague as applied. 7. Section 36.03(a)(1) violates the First, Fifth, and Fourteenth Amendments to the United States Constitution because it is unconstitutionally over-broad as applied. 8. Section 36.03(a)(1) violates Article I, Sections 8, 10, and 19 of the Texas Constitution because it is unconstitutionally overbroad as applied. 9. Section 36.03(a)(1) is unconstitutional as applied because it infringes upon the Governor’s absolute constitutional right and duty to approve or disapprove “items of appropriation” under Article IV, Section 14 of the Texas Constitution. 10. Section 36.03(a)(1) is unconstitutional as applied because it violates the separation of powers between the various departments of government that is guaranteed to the People by Article II, Section 1 of the Texas Constitution. 11. Section 36.03(a)(1) .is unconstitutional as applied because it violates the Speech and Debate Clause of Article III, Section 21 of the Texas Constitution. As the district court observed, the claims raised by Perry are “unique,” “important,” and “certainly deserve careful consideration in an appropriate forum.” The court even went as far as to term “compelling” Perry’s arguments regarding the Separation of Powers and the Speech and Debate Clause. However, the district court was bound, as are we, to adhere to Court of Criminal Appeals precedents instructing lower courts that we cannot reach the merits of any claim presented through pretrial habeas, however meritorious it may potentially be, without first determining, as a “threshold” matter, that the claim is properly “cognizable” through that procedural mechanism — that is, whether the court can properly decide the merits of the claim at that juncture or must leave it to be addressed through other trial-level proceedings and any subsequent post-conviction appellate remedy. This requirement rests on jurisprudential policies, frequently emphasized by the Court of Criminal Appeals in recent years, that “pretrial habeas, followed by interlocutory appeal, is an ‘extraordinary remedy ” and should not be “ ‘misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.’ ” The court has similarly stressed that “[a] defendant may use a pretrial writ of habe-as corpus only in very limited circumstances”. and that the remedy “should be reserved for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be best served by interlocutory review.” The district court thus proceeded immediately to that threshold inquiry and determined, without hearing evidence, that, under “the current state of the law in Texas,” only Perry’s challenges to the constitutionality of the statutory basis for the “Coercion of Public Servant” charge “on its face” — i.e., claims 1-4 regarding Count II — were cognizable in pretrial habeas. As for the remaining claims — sixteen in all, including all of Perry’s claims regarding Count I — the district court concluded each was not cognizable — as the district court put it, “the court’s hands are tied” (emphasis in original) — because the claim asserted an “as applied” constitutional challenge. Accordingly, the district court denied relief as to the sixteen claims asserting “as applied” challenges without reaching their merits. Although it did reach the merits of the facial constitutional challenges it held to be cognizable, the court rejected them. On appeal, Perry insists that both sets of rulings were in error. COGNIZABILITY ISSUES We will begin with Perry’s arguments relating to the sixteen “as applied” claims the district court declined to reach, because these arguments concern a threshold issue and because Perry devotes the majority of his issues on appeal to arguing the claims’ cognizability and merits. Perry’s specific contentions are best understood against the backdrop of the “the current state of the law in Texas” on which the district court relied. The Court of Criminal Appeals has held that “as applied” constitutional challenges are not cognizable in pretrial ha-beas corpus The district court emphasized several recent Court of Criminal Appeals decisions addressing the extent to which an “as applied” constitutional challenge to a penal statute can be properly decided through pretrial proceedings, including pretrial habeas corpus, in lieu of awaiting trial on the merits and any post-conviction appeal. As the Court of Criminal Appeals has explained, an “as applied” constitutional challenge “concedes the general constitutionality of the statute, but asserts that the.statute is unconstitutional as applied to [the defendant’s] particular facts and circumstances.” In contrast, a “facial” constitutional challenge seeks to establish that the.statute is unconstitutional and unenforceable as to any person. As between these two classifications, the district court concluded that each of the sixteen claims it did not reach was an “as applied” challenge because if asserted that a penal statute violated constitutional limitations as it would operate against Perry’s particular circumstances — with emphasis on his unique duties and powers as Governor — as opposed fo contending that some constitutional defect rendered the statutes unenforceable as to anyone against whom it could be applied, Indeed, as the district court noted, Perry himself phrased virtually all of these claims in terms of the statutes’ constitutionality “as applied ” to him and his role as Governor at the time. Having classified the sixteen claims as “as applied” challenges, the district court looked to Ex parte Weise, in which the Court of Criminal Appeals granted review to address “whether a pretrial writ of ha-beas corpus may issue on the ground that a penal statute is being unconstitutionally applied because of the allegations in the indictment or information.” The applicant, Weise, had been charged with illegal dumping and sought pretrial habeas corpus on the basis that the illegal-dumping statute was unconstitutional “as applied” to him- because the charging instrument did not allege a mens rea. In evaluating whether pretrial habeas was available as a remedy, the court emphasized a longstanding general rule that pretrial habeas corpus is not available to “test the sufficiency of the charging instrument. The' Court of Criminal Appeals acknowledged, however, that it had also recognized certain “exceptions” to this general rule that it had deemed to fall into a broader category of cases in which it had long permitted pretrial habeas relief where “the alleged defect would bring into question the trial court’s power tof proceed:” One such “exception,” the court noted, was where the face of the charging ■ instrument showed that the prosecution was barred by limitations. Another recognized “exception” noted by the Weise court — and of more direct relevance here — is a complaint that a statute defining the charged offense is unconstitutional on its face, as this would mean that “there is no valid statute and the charging instrument is void.” The Court of Criminal Appeals concluded that Weise’s complaint did not fit under any of these recognized exceptions that would , permit his claim to be raised through pretrial habeas corpus. It observed that Weise was not making a challenge to the facial constitutionality of the statute, nor “claiming that the trial court' lacked the power to proceed.”' Instead, the court reasoned, “he is claiming that the statute as applied, via the information is unconstitutional because it fails to allege a mens rea.” It termed this sort of challenge, “in reality, simply an attack on the charging instrument,” Absent any “alleged ... deficiencies that we have recognized as cognizable on habeas corpus,” the court held that the . issue of whether the illegal-dumping statute required a culpable mental state “is not. yet. ripe for review.” In addition to Weise, the district court also looked to the Court of Criminal Appeals’s more recent decision in Ex parte Ellis. Ellis involved an attempt by defendants to raise by pretrial habeas and subsequent appeal what they had styled as a “facial” vagueness challenge to Texas’s money-laundering statute. The-thrust of this challenge, however, was not that the statute was vague in all of its applications, but that it was unconstitutionally vague if it was construed to apply to checks, an issue of eventual significance in the underlying prosecution. The district court denied relief, and that ruling was appealed to this Court. This Court affirmed the district court’s ruling, concluding that the money-laundering statute was not unconstitutionally vague, but its reasoning toned on a holding that the statute did not apply to checks. The Court of Criminal Appeals granted the State’s request for review and held that the defendants’challenge was not cognizable because, in the court’s view, the defendants “did not really advance a facial challenge.” Specifically, the'court reasoned that the defendants had presumed there were some valid applications of the money-laundering statute and had thus “advanced an ‘as applied’ claim that was disguised as a facial challenge.” Citing Weise, the Ellis court emphasized the longstanding rule that “pretrial habeas is not available to test the sufficiency of the charging instrument.” Nor, the Ellis court added, could the remedy be used “to construe the meaning and application of the statute defining the offense charged.”' Additionally,'while aeknowl-edging that “[pjretrial habeas can be used to bring a facial challenge-to the constitutionality of the statute that defines the offense,” the Court of Criminal Appeals stressed that the remedy “may-not be,used to advance an ‘as applied’ challenge,” again citing Weise for that proposition. “Addressing the ‘as applied’ substance of the claim,” the high court held, thus “resulted in a circumvention of the pretrial habeas cognizability limitations.” Another Court of Criminal Appeals case of significance to the district court was Lykos v. Fine. Lykos arose out of a pending capital murder case in which the State had given notice of its intent to seek the death penalty. The defendant filed a novel pretrial motion seeking a ruling declaring the death-penalty sentencing statute unconstitutional “as applied” to him, and attempted to demonstrate by pleadings and proof that he faced what he claimed to be an unconstitutionally high systemic risk of wrongful conviction or other error at trial. After the trial court set an evidentiary hearing on the motion, the State sought to bar the proceedings via mandamus and prohibition, challenging the trial court’s legal authority to conduct such a hearing before trial, Concluding that “there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the ‘as applied’ constitutionality of a state penal or criminal procedural statute” and,that the trial court, consé-quently, was “acting beyond the scope of his lawful authority,” the Court of Criminal Appeals conditionally granted relief. In reaching that conclusion, the Court of Criminal Appeals relied heavily on the view that “as applied” constitutional challenges could only be brought “during or after a trial on the merits, for it is only then that the trial judge and reviewing courts could have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.” The court also relied upon prior decisions in which it had emphasized that the Legislature had not seen fit to provide criminal courts procedural mechanisms by which they could grant “declaratory judgments” or test, prior to trial, the sufficiency of evidence supporting or defeating the elements of charged offenses. In that regard, the court cited with approval a 1950 case, Ex parte Hammonds, in which it had refused to entertain a pretrial habeas claim seeking determination of whether a set of agreed facts submitted by the parties constituted the crime of rape. In Hammonds, the court had observed that “[i]n Texas, procedure such as demurrer to the evidence, declaratory judgment or pre-trial judgment, in criminal cases, is not recognized,” and refused to allow pretrial habeas to be used to achieve effectively the same ends. Emphasizing Weise, Ellis, and Lykos, the district court concluded that “[tjhe Texas Court of Criminal Appeals has made it crystal clear that a trial court has no authority to consider the merits of a pretrial writ of habeas corpus based upon an ‘as applied’ challenge to the constitutionality of a statute” and held that this principle barred it from reaching the merits of the sixteen claims it had classified as “as applied” constitutional challenges. But Perry insists these precedents are distinguishable Although not disputing that the sixteen claims each assert a form of “as applied” constitutional challenge rather than what is generally considered a facial one, Perry insists his particular “as applied” challenges are nonetheless cognizable in pretrial habeas, notwithstanding the Court of Criminal Appeals precedents discussed above, for two related sets of reasons. First, while acknowledging that the Court of Criminal Appeals in Ellis “has made the broad statement that pretrial habeas ‘may not be used to advance an ‘as applied’ challenge,’” Perry insists that the high court’s jurisprudence is actually more nuanced than the district court assumed. He reasons that the “as applied” constitutional challenges that have been the concern of the Court of Criminal Appeals in cases like Ellis and Lykos refer only to challenges that, as a practical matter, could not be determined without recourse to evidence. While such evidentiary development may be necessary to assert “typical as-applied challenges,” Perry maintains, this is not true of all “as applied” challenges, because some “can be decided solely by reference to the indictment and the statute.” In fact, Perry urges, the Court of Criminal Appeals has previously entertained on pretrial habeas this very sort of “as-applied-to-the-indictment” challenge, as he terms it, in a 1991 decision, Ex parte Boetscher, In that case, Boetscher, a resident of Michigan, was indicted in Lubbock County for criminal nonsupport of his children, which the then-applicable version of the Penal Code enhanced to a felony on the sole basis that he had resided out of state at the time the offense was allegedly committed. Boetscher sought relief by pretrial habeas corpus, and the Court of Criminal Appeals summarized his contentions as “argu[ing] that [the enhancement provision], as applied to the unusual circumstances of his case, denies him equal protection [under the Fourteenth Amendment] because it makes his alleged conduct a felony, rather than a misdemeanor, ‘solely because he is not a resident of Texas.’ ” There is no indication in the opinion that the State disputed the cog-nizability of Boetscher’s equal-protection challenge in pretrial habeas, and the Court of Criminal Appeals did not address that issue beyond dropping a footnote stating, “We have previously entertained pretrial habeas corpus proceedings challenging the constitutionality of penal statutes.” In support of that assertion, the court cited two cases, Ex parte Crisp, and Ex parte Psaroudis. Crisp involved a facial challenge to amendments to the Controlled Substances Act that was founded on an asserted defect in the bill caption. Psaroudis, on the other hand, addressed whether there was a “valid statute under which [the defendant] can be charged” without any explicit reference to an asserted constitutional defect; the court instead construed the Controlled Substances Act to determine whether the statute prohibited the acts with which the applicant had been charged, possession or delivery of hashish. The Boetscher court preceded its analysis of the claim by quoting the indictment “in relevant part,” noting allegations that Boetscher had failed to provide child support for his children in Lubbock County and that “the defendant was then residing in another state, to-wit: Michigan.” The court subsequently observed that statutory amendments had changed the enhancement provisions, which had previously applied to persons who committed the offense in Texas and then fled the state, to “provide a felony penalty for all defendants who commit the offense while simply residing in another state.” This new enhancement scheme, the court concluded, “plainly implicates one of the basic rights of all Americans,” the right to travel, and was thus deemed invalid under the Equal Protection Clause of the Fourteenth Amendment unless “the government can show it is truly necessary to the promotion of a compelling governmental interest.” Because the State had not attempted to make any such showing, the court went on to hold that “the equal protection clause of the Fourteenth Amendment prohibits the application of [the enhancement provision] to appellant under this indictment.” In closing, the court expressly disclaimed any opinion as to whether'the statute could be applied against “nonsupport offenders who commit the offense in this state and then flee.” . Perry argues that his sixteen “as-applied-to-the-indictment” constitutional challenges are like those the Court of Criminal Appeals reached in Boetscher. As Perry sees it, his indictment, on its face, establishes that he “is being prosecuted for' a veto and an alleged veto threat,” infringing not only his personal free-speech rights and immunities-he possesses under the Speech and Debate Clause, but also the separation of powers mandated by the .Texas Constitution, amounting to unlawful interference with the policymaking branches by entities within the Judicial Department. In these ways, Perry reasons, his indictment is akin to the one in Boetscher, which facially revealed that the ¡State was seeking to impose penalties on the applicant that hinged on the fact that he resided in Michigan, violating the right to travel. Just, as Boetscher was permitted to challenge the constitutionality of the enhancement provision “as applied” to his circumstances via pretrial habeas, Perry urges, hé is likewise permitted to bring his “as-applied-to-the-indictment” challenges that way. Perry’s second set of arguments draws . upon additional jurisprudential policy justifications that the Court of Criminal Appeals ’ has sometimes invoked when permitting pretrial habeas relief in other contexts. Foremost ■ among these áre cases where the high court has permitted the use of pretrial habeas to assert constitutional protections that it perceived would be effectively undermined otherwise.' These have included claims regarding'bail and those seeking to assert the protection against double jeopardy. Perry regards the double-jeopardy cases as particularly instructive here because that constitutional protection entails a “right not to be tried” that must be vindicated before trial if it is to be effective. The same is true of his claims under the Texas Constitution’s Separation-of-Powers provision and Speech and Debate Clause, Perry insists, because these protections shield public officials not only from ultimately being held criminally liable based on acts within their scope, but also from being subjected to prosecution based on those acts at all. Perry further, asserts that pretrial habe-as relief would not only be the best (if not exclüsivé) means.of protecting his substantive rights, as compared to trial and appeal, but would also serve the broader jurisprudential policy interest of conserving judicial resources. In this regard, Perry argues that his “as-applied-to-the-indictment” constitutional challenges are the “functional equivalent” of facial constitutional challenges, turning on questions of law that require no evidentiary development and could be resolved by appellate courts as well as trial courts could. He adds that favorable resolution of his claims would compel his immediate discharge from restraint, another consideration in the Court of Criminal Appeals’s pretrial habeas jurisprudence. And besides these judicial policy considerations, Perry urges, immediate resolution of his claims via pretrial habeas and appeal is, compelled by the separation-of-powers concerns . he has invoked, “[t]he paramount public interest in the effective functioning of state institutions, in general,. and the untrammeled exercise of the line-item veto by the governor in particular.” In short, Perry maintains that prudential limitations that the Court of Criminal Appeals has imposed on the pretrial habeas corpus remedy within the .Judicial Department should not serve to facilitate a m.ore serious ongoing infringement by that Department on the other governmental branches. The State attacks Perry’s proposed distinctions The State responds that the district court was correct — the Court of Criminal Appeals’s decisions in Ellis, Wéise, and Lykos ultimately control and are fatal to Perry’s attempt to assert his sixteen “as-applied-to-the-indictment” claims via pretrial habeas corpus. As for Perry’s reliance on Boetscher, the State grants that the Court of Criminal Appeals permitted there an “as-applied equal protection challenge on the face of the indictment” via pretrial habeas. However, the State insists, “[f]ew cases are as simple or unusual as Ex parte Boetscher” observing that the challenged statute “[o]n its face .:. treated in-state residents differently from out-of-state residents,'” that Boetscher’s “out-of-state residence was the gravamen of the enhanced penalty,”, and that the indictment’s allegation that Boetscher lived out of state was uhcontroverted and “not subject to interpretation.” Under those particular- circumstances, in the State’s view, Boetscher’s equal-protection challenge amounted to a “ ‘pure law” challenge that is justiciable using only the language in the indictment.” ' In this regard, the State draws comparisons to the Court of Criminal Appeals’s jurisprudence regarding cognizability of limitations-básed challenges to chargiiig instruments. As the high ‘court noted in Weise, it has long recognized an “exception” against the general rule barring pretrial habeas challenges to “test the sufficiency” of the charging instrument “when the pleading, on its face, shows that the offense charged ' is barred ' by limitations.”' But this principle has been further refined, as the State emphasizes, by a distinction between challenges based on charging instruments that establish an “incurable,” “irreparable,” and “absolute” limitations bar to prosecution, versus those that complain of asserted deficiencies in a “tolling paragraph,” “explanatory averment,” or “innuendo allegations” that would “suffice to show that the charged offense is not, at least on the face of the indictment, barred by limitations.” Only the former category — which the high court has elsewhere termed a “pure law” limitations defense — is deemed cognizable in pretrial habeas; the latter — what the court has labeled a “limitations factual defense” — is not. The State urges that Perry’s “as-applied-to-the-indictment” constitutional challenges are far removed from the “pure law” challenge addressed in Boetscher and analogous limitations cases, requiring factual development beyond what can be determined from the face of the indictment alone. In fact, as the State emphasizes, the parties have continued to litigate the precise content of the indictment — the predicate of Perry’s “as-applied-to-the-indictment” challenges — before the district court in the interim since that court issued the order on appeal, with the State having since filed a “Bill of Particulars & Amendment of Indictment” that purports to add “further clarity” to the asserted factual bases for both counts, and Perry objecting to that filing on numerous grounds and moving to quash. Among other changes, the State’s filing purports to. modify Count I, which in its original form did not allege explicitly that Perry’s supposed “misuse [of] government property” made the basis for the charge consisted of a gubernatorial veto — a central premise of Perry’s “as-applied-to-the-indictment” constitutional challenges. The new language would include specific allegations that Perry’s “misuse [of] government property” underlying Count I was his use of “the lawful power of gubernatorial veto for an unlawful purpose, to-wit: eliminating funding for the Public Integrity Unit after Ms. Lehmberg refused to resign from her elected position as Travis County District Attorney.” Leaving aside any such uncertainties regarding the content of the indictment, the State contends more broadly that Perry’s “as-applied-to-the-indictment” challenges rest upon myriad speculations, hypotheses, and interpretations as to what the underlying facts actually are and how the two statutes at issue would apply to them— e.g., precisely what then-Governor Perry said and did, whether these facts would constitute violations of Penal Code sections 36.03(a)(1) and 39.02(a)(2), and whether any such applications of the statutes would violate the constitutional provisions he has invoked. This factual record will exist only after evidence is presented at trial, the State insists, and Perry’s attempts to adjudicate them via pretrial habeas amount ultimately to the sorts of impermissible pretrial challenges to the sufficiency of the indictment, attempts “to construe the meaning and application of the statute defining the offense charged,” “declaratory judgment” claims, and “as applied” constitutional challenges that the Court of Criminal Appeals condemned in Ellis and Weise. The State further emphasizes additional Court of Criminal Appeals precedents that have refused pretrial habeas relief in other contexts when the court perceives evidentiary development at trial to be necessary or beneficial in resolving the claim. Perry’s “as applied” constitutional challenges are not cognizable under the Court of Criminal Appeals’s current precedents Perry’s arguments ultimately amount to assertions about what Texas pretrial habe-as law currently is, on one hand, and what Perry contends it ought to be, on the other. With regard to the existing law, the Court of Criminal Appeals has sent us lower courts the following unequivocal messages through its current pretrial ha-beas jurisprudence: • Pretrial habeas and subsequent appeals are “extraordinary” remedies that are properly available “only in very limited circumstances.” • Pretrial habeas typically cannot be used to test the sufficiency of a charging instrument or to determine the legal effect of particular facts under a criminal statute. These limitations are grounded not only in concerns about the ripeness of material underlying facts before the evidence is presented at trial, but also a traditional reluctance by the high court (as emphasized in Lykos) to permit pretrial habeas to be used to achieve the effect of procedural mechanisms, such as a declaratory-judgment statute, that the Legislature has heretofore not seen fit to provide Texas criminal courts. In fact, in the Hammonds case cited by the Lykos court, the Court of Criminal Appeals held for these reasons that pretrial habeas cannot be used to obtain a determination regarding the construction and application of a criminal statute even to underlying facts to which the parties had agreed. • An “exception” to .this general rule is where the applicant asserts that the statute under which he or she is being prosecuted is unconstitutional on its face because, if successful, the challenge would establish that “there is no valid statute and the charging instrument is void.” .The distinguishing characteristic of a.facial challenge, to a penal- statute, as the Court of Criminal Appeals emphasized in Ellis and later in Lykos, is that it contends the statute ' is unconstitutional regardless against whom it is applied, such that it can be décided based on the face of the- statute alone, without regard to a defendant’s particular circumstances. • If a constitutional challenge to a criminal statute does not assert that the statute is wholly void, Ellis instructs us that it is to be classified as an “as applied” challenge, and that “[p]retrial habeas ... may not be used to advance an ‘as applied’ challenge.” Weise similarly held that pretrial ha-beas was unavailable for a claim purporting to challenge the constitutionality of a penal statute as it had been applied in the charging instrument, concluding that the claim ultimately fell under the general rule prohibiting the use of the writ to challenge the sufficiency of a charging instrument. Lykos adds that “as applied” constitutional challenges characteristically require development through evidence presented at trial and cannot be decided at an earlier juncture. As the district court concluded, these precedents would appear to make “crystal clear” that Perry’s “as-applied-to-the-indictment” claims are not cognizable in pretrial habeas. The closest existing Court of Criminal Appeals authority that Perry offers to support a contrary conclusion is Boetscher. That case, which predates Weise, Ellis, and Lykos by a decade or more, is somewhat difficult to reconcile with those more recent decisions, and the Psaroudis case, on which Boetscher partly founded its cognizability holding, would appear to be squarely inconsistent with them. At least one respected secondary authority has suggested that some Court of Criminal Appeals cognizability decisions from that earlier era “fail[ed] at the time to have fully embraced the distinction [between] challenges to statutes on their faces and as applied” and would likely be decided differently' by the high court today. As for the Court of Criminal ■ Appeals’s own pronouncements, it has never explicitly overruled Boetscher, but amid its synthesis of Texas pretrial- habeas law in Weise, the court cited Boetscher as an illustrative case where it had held facial constitutional challenges to be cognizable in pretrial habeas. Whether this aspect of Weise would imply -support for Perry’s notion that “as-applied-to-the-indictment” challenges are deemed tantamount to facial challenges and are thus cognizable, represents an after-the-fact attempt by the Court of Criminal Appeals to recharacterize Boetscher in line with its current views regarding the cognizability of “as applied” challenges, or neither, is unclear. Without more definite guidance from the Court of Criminal Appeals, we must continue to follow Boetscher and, as neither case purported to overrule it, view it as an unstated qualification to the holdings of Ellis and Weise that “as applied” constitutional challenges are not cognizable in pretrial habeas. However, we agree” with the State that Perry’s “as-applied-to-the-indictment” claims are distinguishable from those addressed in Boetscher. The factual bases for Boetscher’s “as applied” challenge were straightforward and readily ascertainable from the face of his indictment: he was being prosecuted for child-support nonpayment, with a penalty enhancement because he resided in Michigan. The opinion reflects no dispute regarding either the underlying,, fact of Boetscher’s Michigan residency or that the statute made him susceptible to higher penalties solely for , that reason. Consequently, while employing “as applied” phrasing, the Court of Criminal Appeajs’s analysis resembled that in a conventional facial challenge — the inquiry centered on the language of the statute itself, concluding that the statute’s “classification scheme ... implicates one of the basic rights of all Americans,” the right to travel. Perry’s “as applied” challenges, by contrast, are intertwined not only with disputes about what the underlying facts are — indeed, disputes even about what underlying facts have been alleged in the indictment — but also with disputes about whether those facts would constitute violations of the statutes under which he is charged. These features of his “as-applied-to-the-indictment” claims, unlike those in Boetscher, implicate jurisprudential policies against using pretrial habeas to test the sufficiency, of allegations in a charging instrument or to obtain a “declaratory judgment” oi; otherwise determine the legal effect of particular facts under a criminal statute prior to trial. In these ways, Perry’s “as-applied-to-therindictment” claims more closely resemble the “as-applied” claims addressed in Ellis and Weise, and we accordingly conclude that those decisions, rather than Boetscher, control here. Under Ellis and Weise, Perry’s “as-applied-to-the-indictment” claims are not cognizable in pretrial habe-as. While the subject matter of these claims may indeed be “important,” and “worthy of careful consideration,” as the district court acknowledged, that consideration alone has not been a controlling determinant for the Court of Criminal Appeals. Perry’s remaining rationales for limiting or avoiding the effect of Ellis and Weise are ultimately rooted not in any existing controlling precedent of the Court of Criminal Appeals, but broader “factors” he identifies in what he terms the high court’s “evolving jurisprudence regarding cogniza-bility in pretrial habeas.” As we have already emphasized, this Court is not empowered to “evolve” or otherwise alter the binding effect of the Court of Criminal Appeals’s controlling precedents, even if we might perceive sound justifications for doing so. Such changes are the prerogative of the high court itself, and until it so acts, we remain bound by Ellis and Weise. Similarly, “ [a]s an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court [or the Texas Court of Criminal Appeals] unless and until the high court[s] overrule! ] them or the Texas Legislature supersedes them by statute.’ ” In similar instances where that principle has required us to reject proposed modifications of the existing law that would conflict with higher court precedents, litigants have sometimes succeeded later in obtaining the desired change in a higher court or from the Legislature. But unless and until such changes occur here, Perry’s “as-applied-to-the-indictment” challenges are not cognizable in pretrial habeas corpus. As a final note regarding cognizability of these “as applied” challenges, we acknowledge a broader concern raised by Perry and also by amici who support him — in their view, this case represents an instance where a defendant has been made to face criminal charges of dubious legal viability (and/or politically motivated origins) and will inevitably be vindicated, the only question being at what point in the proceedings this will occur. In such circumstances, they urge, the opportunity and eventuality of obtaining a favorable judgment at trial or on appeal will often do little to rectify the harm the defendant suffers to reputation, professional standing, and the like during the meantime. In fact, they suggest, inflicting such harms may be the primary goal of those who pursue the charges. We express no opinion at this juncture as to whether these characterizations of the charges pending against Perry are accurate — the more relevant observation now is that similar things were said of the proceedings that gave rise to Ellis and related cases, yet it was only through trial and post-judgment appeals that the now-former public official at the center of the cases was able to refute the legal viability of the charges against him. Under Ellis and similar decisions of the Court of Criminal Appeals, such potential harms incurred by defendants in the meantime, however considerable they may be, are simply deemed insufficient in themselves to provide a basis for relief through pretrial habeas corpus. If the Texas criminal justice system should operate differently, that change must come from the Court of Criminal Appeals or the Legislature. As the law stands now, the district court did not err in denying Perry pretrial habe-as relief on all sixteen of his claims that assert “as applied” constitutional challenges. And because these include the sole claims Perry asserts regarding Count I (“Abuse of Official Capacity”), we affirm the district court’s denial of relief as to that charge. But as to Count II (“Coercion of Public Servant”), there remain to be considered Perry’s alternative facial constitutional challenges. FACIAL CONSTITUTIONAL CHALLENGES In claims 1-4 concerning Count II, Perry challenges the facial constitutionality of the statute on which that charge is based, section 36.03(a)(1) of the Penal Code, as it incorporates the relevant portion of the Penal Code’s definition of “coercion.” These claims are grounded in the established doctrines of “overbreadth” and “vagueness” that derive from the “freedom of speech” guaranteed by the First Amendment to the United States Constitution, which has been applied to the states through the Fourteenth Amendment. Although Perry has also based these claims on the Texas Constitution’s free-speech provision, Article I, Section 8, his arguments, at least on appeal, rely entirely on case decisions applying the First Amendment, and he does not identify any feature of the Texas provision that would cause it to operate any differeritly than its federal counterpart. Accordingly, we will'fdcus our analysis enttfely on the First Amendment protection and jurisprudence. The First Amendment prohibits over-broad and vague speech restrictions The First Amendment over-breadth doctrine holds 'that a statute is facially invalid if, as written,'"if sweeps within its coverage a “substantial” amount of First Amendment-protected expression as compared to any activity it proscribes constitutionally. The doctrine thus presumes that the challenged statute might otherwise have some legitimate applications, contrary to the typical character of facial challenges, and it follows that a party may bring an overbreadth challenge without regard to whether he would otherwise have suffered a constitutional violation from the • statute’s application, an exception to typical standing requirements. This result is deemed justified by concerns that the statute would otherwise suppress or “chill” the. constitutionally protected free expression of numerous persons not before the court. The Court of Criminal Appeals, quoting the United States Supreme Court, recently summarized these underlying jurisprudential policies in Ex parte Lo: “The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the- latter. The Constitution requires the reverse.” This rule reflects the judgment that “[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the- possibility that protected speech of others may be muted[.]” But because the overbreadth doctrine departs from normal''standing concepts and has broader effects than case-by-case adjudication — the constitutional defect is not merely a bar to the statute’s enforcement against a particular defendant, but causes the statute to be invalidated altogether — the high courts have emphasized that the overbreadth doe-trine is “strong medicine” that should be employed “sparingly” and “only as a last resort,” and “must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted.” Consequently, before a court invalidates a statute for overbreadth, the statute’s reach to impermissible applications “ ‘must ■ be not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’” Otherwise, “whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, ás-sertedly, may not be applied.” The vagueness doctrine, on the other hand, derives in part from due-process notice concerns that require a criminal law to be sufficiently clear to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited while also establishing determinate guidelines for láw enforcement. According to the Texas Court of Criminal Appeals in Ellis, a facial vagueness challenge ordinarily must demonstrate that a criminal law fails this standard “in all of its applications.” However, “ ‘[w]hen a statute ■ is capable • of reaching First Amendment freedoms, the doctrine of vagueness ‘demands a greater degree of - specificity than in other contexts’ ” for reasons similar to those, underlying the over-breadth doctrine — “to preserve adequately the right of free expression because ‘uncertain meanings inevitably, lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden, areas were clearly marked.’ ” Thus; “where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression” or be struck down. Likewise,, when a vagueness challenge involves First Amendment considerations, a criminal law may be held invalid on its face, as with an overbroad law, “even if the law has some valid application” and “even though it may not be unconstitutional as applied to that defendant’s conduct.” However, “‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’” Furthermore, the concern of the vagueness doctrine “ ‘is not the possibility that it will be sometimes difficult to determine whether the incriminating fact [the statute] establishes has been proved; but rather the indeterminancy of precisely what that fact Jg > » The State does not dispute that Perry’s claims asserting that Penal Code section 36.03(a)(1) is unconstitutionally overbroad and vague “on its face” are, in both form and substance, facial constitutional challenges, as opposed to being “disguised” as-applied claims of the sort Ellis condemned. Nor does the State dispute that facial constitutional challenges like these are cognizable in pretrial habeas corpus — in fact, the Court of-Criminal Appeals has recently decided both facial overbreadth and vagueness challenges to criminal statutes that had been raised through that procedural mechanism, — or that the district court could properly reach the merits of both challenges here. On appeal, however, the State urges us to decline to reach Perry’s appeal of the district court’s decision rejecting those challenges on the merits. Instead, the State argues, we should remand those claims to the district court, allow proceedings there to run their course, and weigh in only when and if warranted by an appeal from a judgment after trial. To support that notion, the State cites language from Supreme Court decisions emphasizing the jurisprudential policies favoring judicious use of the overbreadth doctrine as an alternative to awaiting “as applied” constitutional challenges raised through case-by-case adjudication. It also argues more generally that analysis of First Amendment facial challenges tends to benefit from development of a full evi-dentiary record at trial, as opposed to relying on more abstract analysis of the statutory language and its hypothetical implications. While such considerations might inform application of the overbreadth doctrine here, we cannot agree that they, permit us to defer or avoid addressing Perry’s facial challenges altogether. The State does not cite, nor are we aware of, any Court of Criminal Appeals decision where the court has deemed these considerations to impact the eognizability of a facial over-breadth or vagueness challenge on pretrial habeas or the subsequent availability of appellate relief. To the contrary, the Court of Criminal Appeals’s holdings instruct us that trial and appellate courts should reach facial constitutional challenges at the pretrial habeas stage because they implicate “the trial court’s power to proceed,” a jurisdiction-like concern. These decisions leave us no more discretion to defer addressing Perry’s facial challenges at this juncture, as the State urges, than they permit us to decide his “as-applied-to-the-indictment” challenges now, as he insists. ■ Accordingly, we proceed to the merits of Perry’s facial constitutional challenges. Whether a statute is facially unconstitutional is a question of law that we review de novo. We begin by inquiring whether Penal Code section 36.03(a)(1), as it incorporates the relevant portion of the Code’s “coercion” definition, reaches a substantial amount of First Amendment-protected activity. The “first step” in that analysis “is to construe the challenged statute,” as “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Section 36.03(a)(1) is an expansive criminal prohibition of speech When construing statutes, we ordinarily focus on the literal text and determine the objective meaning of thie words the Legislature used, as “the text of the statute is the law, in the sense that it is the only thing actually adopted by the legislators” and it “is the only definitive evidence of what the legislators,... had in mind when the statute was enacted into law.” Penal Code section 36.03(a), titled “Coercion of a Public Servant or Voter,” states: (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' performance of 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. The focus of the offense created by section 36.03(a)(1) is thus the use of “coercion” to “influence” (i.e., bring about or cause), or attempt to so “influence,” certain behavior of a “public servant.” Other Penal Code provisions require that these actions must be committed intentionally or knowingly. ■ Consequently, a person violates section 36.03(a)(1). if he employs “coercion” with the conscious objective or desire, or actual awareness of, bringing about, or in' an attempt to bring about, the behavior' of a “public servant” described in the statute. In both the' legal arena and ordinary usage, the precise parameters of “coercion” and when it occurs have often been elusive, although the concept frequently denotes some sort of impingement on a listener’s free will or autonomy through force or threat.- As “coercion” is used in the Texas Penal Code, however, the Legislature has defined the term more specifically. This definition currently appears in paragraph (9) of the Code’s general definitions provision, section 1.07(a): “Coercion” means a threat, however communicated: (A) to commit an offense; (B) to inflict bodily injury in the future on the person threatened or another; (C) to accuse a person of any offense; (D) to expose a person to hatred, contempt, or ridicule; (E) to harm the credit or business repute of any person; or (F) to take or withhold action as a public servant or to cause a public servant to take or withhold action. Thus, the defining feature of “coercion” under the Penal Code is “a threat ” to do or perform one or more of the six types of acts specified in paragraphs (A)-(F) of the definition. And, as confirmed by the phrase “however, communicated ” that immediately follows “threat,” the Legislature has limited “coercion” to speech and excluded means of compulsion that might be considered non-communicative in nature, such as bare physical force. Further guidance regarding the nature of these “threats” is found in Olivas v. State, where the Court of Criminal Appeals examined “the meaning of the term ‘threaten’ as used in the Penal .Code” in order to identify the elements of the Code’s assault-by-threat prohibition. After observing that “[t]he word ‘threaten’ is not statutorily defined in the Penal Code,” the court turned to, and cited approvingly, .the . following definition of “threaten” from Webster’s: 1. to declare an intention of hurting or punishing; to make threats against; 2. to be a menacing indication of (something dangerous, evil, etc.); as the clouds threaten rain or a storm; 3. to express intention to inflict (injury, retaliation, etc.); 4. to be a source of danger, harm, etc., to. The court similarly quoted a definition of “threat” from Black’s Law Dictionary: “A communicated intent to inflict harm or loss on another or another’s property.” Because the court couched its analysis in terms of determining the meaning of “threaten” “as used in the Penal Code,” we must presume that it would ascribe a similar meaning to “threat” as used in the Penal Code’s “coercion” definition. Accordingly, “threat” as used there would denote a declared or expressed intention “of hurting or punishing” or “to inflict injury,” a “menacing indication of ... something dangerous or evil,” or “a source of danger [or] harm” that is communicated to another through speech. It also seems implicit in the notion of such a “threat” that the communication would be sufficiently specific to generate expectation that the actor could and would actually carry out particular harm on a particular person, thereby excluding more generalized complaints or advocacy. In turn, paragraphs (A)-(F) of the definition specify six ca