While Gov. Rick Perry’s attorneys argued the criminal case against the governor should be dismissed, Judge Bert Richardson refused to rule on pretrial motions Monday in Perry’s absence and set a hearing date
for Oct. 31.

Perry’s attorneys said the judge should order the prosecution, led by special prosecutor Michael McCrum, to produce transcripts of the grand jury testimony so Richardson can review previous requests to dismiss the indictment. They also want a review of McCrum’s oath when he was sworn in to assume Travis County District Attorney Rosemary Lehmberg’s responsibilities, which Perry’s attorneys claim was not
filed correctly.

Richardson said Perry will have to appear in court to resolve these issues and will have to be present at any hearing that is not just a procedural matter. Perry did not appear in court Monday because of a ruling by Richardson on Sept. 26 that permitted him to skip the hearing. 

“Based on what’s been filed, I can’t see how we can go forward without resolving this,” Richardson said.

It’s unusual for defense attorneys to request transcripts of grand jury testimony, according to McCrum.

“I’ve never seen it in almost 30 years of practice, where a defense lawyer is trying to make a district attorney have grand jury testimony transcribed,” McCrum said.

McCrum said he is confident his oath was properly administered. Richardson set a Nov. 7 deadline to respond to two motions to quash the case after Perry’s attorneys argued the indictment violates the governor’s constitutional rights.

Tony Buzbee, one of Perry’s lawyers, said Perry will appear at the next hearing Oct. 31, when the issues of the grand jury transcripts and whether McCrum was properly sworn in will be discussed.

Perry was originally indicted in August by a grand jury for abuse of official capacity and coercion of a public servant. The charges are related to Perry’s attempts to force the resignation of Lehmberg after she was arrested for drunken driving in April 2013.

When Lehmberg refused to resign from her position, Perry vetoed legislation in June 2013 that would provide $7.5 million in state funds to the district attorney’s Public Integrity Unit. He had previously threatened to take such actions against Lehmberg.

The charges against Perry carry punishments of 5-99 years and 2-10 years, respectively, each with fines of up to $10,000.