By David Pasztor, Cox News Service

AUSTIN, Texas -- Precisely what former President Bush said that day in November 1998 is lost to memory. But whatever it was roused University of Texas student Thomas Markovich from his seat in the gallery of the Texas House.

"At some point I think Bush made a reference to Nicaragua," said Kenneth Houp, one of Markovich's attorneys. "That's when Markovich stood up and yelled (an expletive) and was hauled off by the gendarmes."

The 'gendarmes' were officers from the Texas Department of Public Safety, who arrested Markovich for the Class B misdemeanor of disrupting a meeting. Now, more than three years later, the Texas Court of Criminal Appeals has decided that Markovich should stand trial for heckling the ex-president.

The 6-3 decision handed down yesterday raises troublesome constitutional issues, Houp said, particularly in a city where chiding politicians is a well-established form of public discourse.

"Heckling, even if it is rude, is protected by the First Amendment, especially when you have a politician up on the stand," he said.

Bush was speaking at the Texas Book Festival in the House chamber when some audience members began yelling at him. Many more in the packed chamber applauded Bush. Three men were arrested, including Markovich, UT journalism Professor Robert Jensen and Michael Corwin.

Charges against Jensen and Corwin were dismissed long ago, but the case against Markovich has lingered.

Initially, a state district judge dismissed the case, finding that the state law Markovich was charged with breaking is too vague to protect a person's right to free speech. But Travis County Attorney Ken Oden pressed on, persuading the Third Court of Appeals to reinstate the charge. Markovich appealed that ruling to the state's highest criminal court, which agreed with the appeals court. So, for now, the charge stands.

Oden said Markovich may well have pushed beyond his First Amendment protections, by "substantially impairing" Bush's speech, because Bush stopped talking after Markovich abruptly yelled.

"You cannot intentionally disrupt a public address to the extent that the speaker cannot even speak and then hide behind the First Amendment to avoid accountability for your actions," Oden said. "Civility in public meetings is roughed up from time to time, but it's not completely dead. The speaker has a right to be heard and the audience has a right to hear him, and those are important First Amendment rights, too."

Oden said a trial is the proper way to determine if Markovich's utterance did break the law.

Houp said he must now decide whether to appeal to the U.S. Supreme Court or prepare for a possible trial, which might mean bringing the former president back to town.

"I don't know how the state can make their case without putting Bush on the stand and having him testify that this 'disrupted' his speech," Houp said.

Markovich, meanwhile, is hard to find. He transferred to a California school after the incident, and his lawyers don't know how to contact him. If found, tried, and convicted, he could face jail time of up to six months, a fine of up to $2,000, or both, Oden said.

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