ANY who think those who sacrificed their lives at the Alamo did so to leave Texans a government free to wrongfully put them in prison with impunity is ignorant of Texas History and is a TRAITOR to the cause for which they, and all others since, have given the ultimate sacrifice. My case is a means to expose them to the people of Texas. 

On this anniversary of the Alamo I ask those serving in positions of public trust to REMEMBER!

THIS IS THE ALAMO FLAG !

It is the Flag of the Nation of which Texas was a part. But with the number 1824 on it. This was to convey the cause for their rebellion. It was the refusal of the government to honor the unalienable Rights secured by the Constitution of 1824. 

A Legislature full of cowards?

The Right to Remedy for property unlawfully taken by the government, and for the time in prison for a crime for which a person is not-guilty, is an Unalienable Right. Or what today is referred to in International Law as a HUMAN RIGHT. A Right that no government can claim under color of law they can deprive an Individual of. To do so is A CRIME AGAINST HUMANITY. Any who acknowledge a supreme being knows it is a crime that God does not sanction and for which God will, in God’s time, take vengeance. My service to God and Humanity is to do as Jesus, Paul, and the other disciples did, regardless of the risk of harm from cowards. I will inform others that the government of Texas has become a lawless regime due to a Legislature full of cowards.

If there are any brave Legislators, both elected and unelected, then they need to step forward. As Public Servants your duty extends beyond your own compliance with the law. You must demand that others in positions of public trust comply as well. This is the only means by which your Oath or Duty to “preserve, protect, and defend the Constitution and Laws of the United States and of this State” can be honored. BE COURAGEOUS. You are from the “Home of the Brave”. 

As noted by our Texas Supreme Court in the Cause NO. 20-0340; IN RE SALON A LA MODE. JUSTICE BLACKLOCK, joined by JUSTICE GUZMAN, JUSTICE BOYD, and JUSTICE DEVINE, concurring in the denial of the petition for writ of mandamus.

“The Constitution is not suspended when the government declares a state of disaster.” All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic…..all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution.”

In re Abbott, No. 20-0291, 2020 WL 1943226, at *1. April 23, 2020.

FOR YOURSELF, and THOSE YOU LOVE, and YOUR POSTERITY

I am not asking you to exercise courge for me. I’m asking you to exercise bravery FOR YOURSELF and FOR THOSE YOU LOVE. A Human Right is a Universal Right. When you deprive others of that Right you deprive yourself, those you love and care about, your children and your posterity, of that Right. You, or they, may be the next victim of an unlawful taking of private property and be put in prison to cover the crimes of those in positions of public trust. 

To our Elected Legislators – HONOR YOUR OATH OF OFFICE.  

To our Unelected Legislators – HONOR YOUR DUTY TO YOUR OFFICE.

You are in a position of public trust. Be worthy of that trust. 

COMPLY WITH THE LAW AND 

DEMAND OTHERS IN POSITIONS OF PUBLIC TRUST COMPLY AS WELL!

REMEMBER THE ALAMO and follow their example of bravery. 

IGNORANCE IS NO EXCUSE

Ignorance is no excuse for you to violate the Law. How can any say they are qualified to accept a position, and compensation for a position, to make law but then claim ignorance of the law or an inability to interpret the laws they make? 

I have a Right to know the Law. You, in our Legislature, as law makers (both elected and hired) have a DUTY to know it. Our Legislature has an abundance of licensed lawyers who have a duty to know the law as well. All in our Legislature have a duty to know that the people of Texas tell you what the law is in our Texas Constitution. You then make law “in pursuance thereof” – not contrary to. These are laws that YOU have a duty to DICTATE to the Attorney General and to any in the Judiciary who tries to impose a law contrary to the unalienable, human, Rights our Laws are written to secure. Any in our law making division that allows any in the Executive or the Judiciary to trample the Rights of a private citizen is a coward. 

The Positive Law is Clear and Unambiguous

Any who have been to law school or studied law knows the definition of Positive Law. It is law that specifies Rights of Individuals. It is law that mandates what a government shall do and mandates what a government shall not do. It is law directed against the government, and those who act in the name of government, to provide people with the Protection of the Law.  As such it cannot be ‘interpreted’ against the people!

The Final Judgment I have remains a FINAL Judgment, and therefore a binding legal obligation of the State it flows from POSITIVE LAW. All attempts to interpret positive laws as contrary to, rather than in pursuance thereof, the intent and purpose of the positive law is VOID. the positive Law of our Texas Constitution’s bill of Rights, later amendments directed at correcting violations of our Bill of Rights, and statutory laws that, as laws made in pursuance thereof, must also be positive laws that facilitate the enjoyment of an unalienable Human Right. Any interpretation to the contrary is VOID!

Texans have been blessed with a wonderful BILL OF RIGHTS given to each and all regardless of race, color, ethnicity, or any other distinguishing characteristic. It is written in the language common to the people of this land. Any who know that language can interpret the meaning. Unfortunately many throughout our history have been deprived of their Rights by the biased, the prejudiced, the racists, in positions of public trust who use the color of law they referred to as ‘common law’ to enslave and oppress fellow Texans. They have tried to tell the people that they cannot ‘interpret’ their own law. These incompetents and traitors have introduced nonsensical translations from the common law of a foreign jurisdiction to overrule the law of our Texas Constitution. The ‘common law’ they referred to was NOT Law common to the people of this Land. It has no authority in this Jurisdiction. The Law common to the people of Texas begins with the Law written by them into their Constitution!  Those of anglo-european descent have not suffered as much but they, too, have often been victimized. The threat to the anglo-european is greater today than at any other time since 1836. 

The Sovereign for this Land

Contrary to what Confederate Slave owners used to justify their crimes against Humanity the STATE, ie; the government, is NOT the Sovereign and does NOT enjoy any ‘sovereign immunity’. Artificial Persons HAVE NO RIGHTS. They have Privileges that cannot supersede the Rights of Humans. The preamble of our Texas Constitution recognizes that author, and therefore the sovereign, for this land: 

PREAMBLE

Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution.

Final Say on What the Law Is

Unlike any possible interpretation of our Federal Constitution our Texas Constitution is very explicit in saying who has the final say on what the Law is. It is NOT our Judicial Division. It is NOT our Attorney General. It is NOT our Legislature. It is The People of Texas and ALL LAWS TO THE CONTRARY ARE VOID!

ARTICLE 1. BILL OF RIGHTS

Sec. 29.  BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE.  To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Sanctity of Contracts, Prohibition of Ex Post Facto and Retroactive Law

Of particular relevance to my case is Article 16 proving my innocence cannot be anything other than actual and that no ex post facto law can make asking my bank to place a stop pay order on a post-dated check secured by undue coercion a crime. And that no retroactive law can be applied to the Final Judgment I secured to reverse that Final Judgment.

ARTICLE 1. BILL OF RIGHTS

Sec. 16.  BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS.  No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

Right to Restitution and 

Right to Remedy secured 

via Due Process of Law in a COURT!

Section 17 is law common to the people of Texas and Positive Law directed against the government to insure victims of taking, damage, or destruction of private property by the government, including the unlawful takings I suffered, have compensation. 

Section 13 leaves no doubt in the mind of any reasonable and objective person with average comprehension ability to understand it’s intent to secure access to a Court to acquire the full remedy due for government inflicting the injury of bail, fines, other damage to goods, to a person and their reputation, and other punishment on those who are acquitted (the well established definition of acquittal is “an official judgment in a court of law that someone is not guilty of the crime for which they were accused”) or otherwise found not guilty.  Again this is POSITIVE LAW directed against the government that cannot be perverted by any government to be against the Right of the people it is intended to secure. Section 29 prohibits all divisions of government from the ability to do so  and declares all “laws to the contrary are void” if any should attempt. 

ARTICLE 1. BILL OF RIGHTS

Sec. 13.  EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

NOTE it states “ALL COURTS SHALL BE OPEN.” No discretion. Any law that closes the Courts via the assertion the government is above the law via sovereign immunity is VOID

NOTE it states “EVERY PERSON for an injury done to him, in his lands, goods, person or reputation, SHALL have remedy.” No discretion. Any law that deprives an injured party of remedy is VOID. 

Because this is POSITIVE LAW directed against the government the due course of law clause is to insure the Right to Remedy is honored. Procedural law cannot be made to, nor interpreted to the effect of, depriving people of the Right the law is intended to protect with the due course of law. Any law to that effect is “excepted from the powers of government” and among the “all laws to the contrary are void”

The Timothy Cole act of 2009 does not apply to my Final Judgment as my case was filed long before that act. Even if it did the provisions of that Act that close the courts and deprive those wrongfully imprisoned of Remedy because the Appellate Court reversed the conviction and found them Not Guilty (actual innocence) rather than a later reversal by Writ after the conviction was upheld on Appellate Review is unquestionably unconstitutional, pursuant to our Texas Constitution, VOID! Of null effect. A Legal Nullity not binding on any in government. To the contrary, the Law binding on those in government requires the unconstitutional provisions be ignored. 

TEXAS SUPREME COURT on ACTUAL INNOCENCE

On May 15 2020 our Texas Supreme Court affirmed what the Fourteenth Court of Appeals found in my case in 1999, in the criminal case, and what the Texas Third Court of Appeals found again in my case in 2003 in the Civil case. My Innocence is Actual because the act of asking your bank to withhold payment on a post dated check was not then, and is not now, a crime. 

Here is a recent case on point.

In re Lester, 602 S.W.3d 469 (Tex. 2020)

“We conclude that Lester is entitled to Tim Cole Act compensation because the conduct for which he was imprisoned was not a crime at any time during his criminal proceedings.”

In In re Allen, 366 S.W.3d 696, 706 (Tex. 2012), we acknowledged that “actual innocence” is a “legal term of art [that] has acquired a technical meaning in the habeas corpus context.” There are two types of actual-innocence claims in Texas habeas law. Id. at 703 (citing Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002)). First, Herrera claims are substantive claims in which a petitioner “asserts that newly discovered evidence establishes an applicant’s innocence.” Id.; see also Herrera v. Collins, 506 U.S. 390 (1993). “The most  familiar Herrera-type cases are those in which DNA testing leads to exoneration of the applicant.” Allen, 366 S.W.3d at 703. Second, Schlup claims are procedural claims that provide  a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 704 (quoting Schlup v. Delo, 513 U.S. 298, 

315 (1995)). Thus, a petitioner may succeed on a Schlup claim only if the petitioner’s claims for habeas relief are procedurally barred.

Here, Lester does not have any “newly discovered evidence” on which to base a Herrera claim. Lester’s habeas petition also was not procedurally barred, eliminating the need for a Schlup gateway claim. Thus, Lester does not have either type of actual-innocence claim  currently recognized in Texas habeas law.

However, habeas actual-innocence jurisprudence—and our related decision in Allen—is based on the assumption that the petitioner’s alleged conduct was criminal at the time it was committed. For example, in Allen, petitioner Billy Frederick Allen was charged with murder.  366 S.W.3d at 701. There was no question—before, during, or after Allen’s criminal trial—that Allen’s alleged actions, if proven, constituted a crime. Rather, Allen relied on newly discovered exculpatory evidence to successfully argue that (1) he probably did not commit the crime, so the court should consider his procedurally barred successive habeas petition (a Schlup claim); and (2) his counsel was unconstitutionally deficient, entitling him to relief. Ex parte Allen, Nos. AP- 75580, AP-75581, 2009 WL 282739 (Tex. Crim. App. Feb. 4, 2009). We ultimately concluded that Allen was entitled to Tim Cole Act compensation because his successful Schlup claim brought him within the “narrow class of cases that satisfy the actual innocence standard.” Allen, 366 S.W.3d at 710. But again, our decision assumed that Allen’s conduct would have been criminal had the state been able to prove that Allen in fact committed the murders for which he was charged.

Here, as a matter of historical fact, Lester’s conduct was not a crime at the time it was committed because the Court of Criminal Appeals had already declared the online-solicitation

statute unconstitutional. Lester is therefore actually innocent in the same way that someone taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such crime exists. Just because existing actual-innocence jurisprudence does not contemplate something as outrageous as Lester’s case does not mean that Lester, who committed no crime, is anything but actually innocent.

CONCLUSION

The Final Judgment in the The Final Judgment of record October 3, 2005 in Cause No. GN 100142 entitled Edmund Bryan Heimlich vs. The State of Texas remains a Legal Obligation of The State of Texas. Refusal to pay or delay in payment is Obstruction of Justice and a Criminal Offense under Federal Law, 18 USC 242, for DEPRIVATION OF RIGHTS UNDER COLOR OF LAW, as well as an Act of Official Oppression in violation of Texas Penal Law. Violators are criminals even if those with the duty to do so decline to prosecute due to fear of your political clout. 

Ed Heimlich, March 6, 2021

ANY who think those who sacrificed their lives at the Alamo did so to leave Texans a government free to wrongfully put them in prison with impunity is ignorant of Texas History and is a TRAITOR to the cause for which they, and all others since, have given the ultimate sacrifice. My case is a means to expose them to the people of Texas. 

On this anniversary of the Alamo I ask those serving in positions of public trust to REMEMBER!

THIS IS THE ALAMO FLAG 

It is the Flag of the Nation of which Texas was a part. But with the number 1824 on it. This was to convey the cause for their rebellion. It was the refusal of the government to honor the unalienable Rights secured by the Constitution of 1824. 

A LEGISLATURE FULL OF COWARDS ?

The Right to Remedy for property unlawfully taken by the government, and for the time in prison for a crime for which a person is not-guilty, is an Unalienable Right. Or what today is referred to in International Law as a HUMAN RIGHT. A Right that no government can claim under color of law they can deprive an Individual of. To do so is A CRIME AGAINST HUMANITY. Any who acknowledge a supreme being knows it is a crime that God does not sanction and for which God will, in God’s time, take vengeance. My service to God and Humanity is to do as Jesus, Paul, and the other disciples did, regardless of the risk of harm from cowards. I will inform others that the government of Texas has become a lawless regime due to a Legislature full of cowards.

If there are any brave Legislators, both elected and unelected, then they need to step forward. As Public Servants your duty extends beyond your own compliance with the law. You must demand that others in positions of public trust comply as well. This is the only means by which your Oath or Duty to “preserve, protect, and defend the Constitution and Laws of the United States and of this State” can be honored. BE COURAGEOUS. You are from the “Home of the Brave”. 

REMINDER FROM OUR TEXAS SUPREME COURT

As noted by our Texas Supreme Court in the Cause NO. 20-0340; IN RE SALON A LA MODE. JUSTICE BLACKLOCK, joined by JUSTICE GUZMAN, JUSTICE BOYD, and JUSTICE DEVINE, concurring in the denial of the petition for writ of mandamus.

“The Constitution is not suspended when the government declares a state of disaster.” All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic…..all of us—the judiciary, the other branches of government, and our fellow citizens—must insist that every action our governments take complies with the Constitution.”

In re Abbott, No. 20-0291, 2020 WL 1943226, at *1. April 23, 2020.

FOR YOURSELF, and THOSE YOU LOVE, and YOUR POSTERITY

I am not asking you to exercise courge for me. I’m asking you to exercise bravery FOR YOURSELF and FOR THOSE YOU LOVE. A Human Right is a Universal Right. When you deprive others of that Right you deprive yourself, those you love and care about, your children and your posterity, of that Right. You, or they, may be the next victim of an unlawful taking of private property and be put in prison to cover the crimes of those in positions of public trust. 

To our Elected Legislators – HONOR YOUR OATH OF OFFICE.  

To our Unelected Legislators – HONOR YOUR DUTY TO YOUR OFFICE.
You are in a position of public trust. Be worthy of that trust. 

COMPLY WITH THE LAW AND 

DEMAND OTHERS IN POSITIONS OF PUBLIC TRUST COMPLY AS WELL!

REMEMBER THE ALAMO and follow their example of bravery. 

IGNORANCE IS NO EXCUSE

Ignorance is no excuse for you to violate the Law. How can any say they are qualified to accept a position, and compensation for a position, to make law but then claim ignorance of the law or an inability to interpret the laws they make? 

I have a Right to know the Law. You, in our Legislature, as law makers (both elected and hired) have a DUTY to know it. Our Legislature has an abundance of licensed lawyers who have a duty to know the law as well. All in our Legislature have a duty to know that the people of Texas tell you what the law is in our Texas Constitution. You then make law “in pursuance thereof” – not contrary to. These are laws that YOU have a duty to DICTATE to the Attorney General and to any in the Judiciary who tries to impose a law contrary to the unalienable, human, Rights our Laws are written to secure. Any in our law making division that allows any in the Executive or the Judiciary to trample the Rights of a private citizen is a coward. 

The Positive Law is Clear and Unambiguous

Any who have been to law school or studied law knows the definition of Positive Law. It is law that specifies Rights of Individuals. It is law that mandates what a government shall do and mandates what a government shall not do. It is law directed against the government, and those who act in the name of government, to provide people with the Protection of the Law.  As such it cannot be ‘interpreted’ against the people!

The Final Judgment I have remains a FINAL Judgment, and therefore a binding legal obligation of the State it flows from POSITIVE LAW. All attempts to interpret positive laws as contrary to, rather than in pursuance thereof, the intent and purpose of the positive law is VOID. the positive Law of our Texas Constitution’s bill of Rights, later amendments directed at correcting violations of our Bill of Rights, and statutory laws that, as laws made in pursuance thereof, must also be positive laws that facilitate the enjoyment of an unalienable Human Right. Any interpretation to the contrary is VOID!

Texans have been blessed with a wonderful BILL OF RIGHTS given to each and all regardless of race, color, ethnicity, or any other distinguishing characteristic. It is written in the language common to the people of this land. Any who know that language can interpret the meaning. Unfortunately many throughout our history have been deprived of their Rights by the biased, the prejudiced, the racists, in positions of public trust who use the color of law they referred to as ‘common law’ to enslave and oppress fellow Texans. They have tried to tell the people that they cannot ‘interpret’ their own law. These incompetents and traitors have introduced nonsensical translations from the common law of a foreign jurisdiction to overrule the law of our Texas Constitution. The ‘common law’ they referred to was NOT Law common to the people of this Land. It has no authority in this Jurisdiction. The Law common to the people of Texas begins with the Law written by them into their Constitution!  Those of anglo-european descent have not suffered as much but they, too, have often been victimized. The threat to the anglo-european is greater today than at any other time since 1836. 

The Sovereign for this Land

Contrary to what Confederate Slave owners used to justify their crimes against Humanity the STATE, ie; the government, is NOT the Sovereign and does NOT enjoy any ‘sovereign immunity’. Artificial Persons HAVE NO RIGHTS. They have Privileges that cannot supersede the Rights of Humans. The preamble of our Texas Constitution recognizes that author, and therefore the sovereign, for this land: 

PREAMBLE

Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution.

FINAL SAY ON WHAT THE LAW IS RESTS WITH YOU !

Unlike any possible interpretation of our Federal Constitution our Texas Constitution is very explicit in saying who has the final say on what the Law is. It is NOT our Judicial Division. It is NOT our Attorney General. It is NOT our Legislature. It is The People of Texas and ALL LAWS TO THE CONTRARY ARE VOID!

ARTICLE 1. BILL OF RIGHTS

Sec. 29.  BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE.  To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Sanctity of Contracts,

Prohibition of Ex Post Facto and Retroactive Law

Of particular relevance to my case is Article 16 proving my innocence cannot be anything other than actual and that no ex post facto law can make asking my bank to place a stop pay order on a post-dated check secured by undue coercion a crime. And that no retroactive law can be applied to the Final Judgment I secured to reverse that Final Judgment.

ARTICLE 1. BILL OF RIGHTS

Sec. 16.  BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS.  No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

Right to Restitution and 

Right to Remedy secured 

via Due Process of Law in a COURT!

Section 17 is law common to the people of Texas and Positive Law directed against the government to insure victims of taking, damage, or destruction of private property by the government, including the unlawful takings I suffered, have compensation. 

Section 13 leaves no doubt in the mind of any reasonable and objective person with average comprehension ability to understand it’s intent to secure access to a Court to acquire the full remedy due for government inflicting the injury of bail, fines, other damage to goods, to a person and their reputation, and other punishment on those who are acquitted (the well established definition of acquittal is “an official judgment in a court of law that someone is not guilty of the crime for which they were accused”) or otherwise found not guilty.  Again this is POSITIVE LAW directed against the government that cannot be perverted by any government to be against the Right of the people it is intended to secure. Section 29 prohibits all divisions of government from the ability to do so  and declares all “laws to the contrary are void” if any should attempt. 

ARTICLE 1. BILL OF RIGHTS

Sec. 13.  EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

NOTE it states “ALL COURTS SHALL BE OPEN.” No discretion. Any law that closes the Courts via the assertion the government is above the law via sovereign immunity is VOID

NOTE it states “EVERY PERSON for an injury done to him, in his lands, goods, person or reputation, SHALL have remedy.” No discretion. Any law that deprives an injured party of remedy is VOID. 

Because this is POSITIVE LAW directed against the government the due course of law clause is to insure the Right to Remedy is honored. Procedural law cannot be made to, nor interpreted to the effect of, depriving people of the Right the law is intended to protect with the due course of law. Any law to that effect is “excepted from the powers of government” and among the “all laws to the contrary are void”

The Timothy Cole act of 2009 does not apply to my Final Judgment as my case was filed long before that act. Even if it did the provisions of that Act that close the courts and deprive those wrongfully imprisoned of Remedy because the Appellate Court reversed the conviction and found them Not Guilty (actual innocence) rather than a later reversal by Writ after the conviction was upheld on Appellate Review is unquestionably unconstitutional, pursuant to our Texas Constitution, VOID! Of null effect. A Legal Nullity not binding on any in government. To the contrary, the Law binding on those in government requires the unconstitutional provisions be ignored. 

TEXAS SUPREME COURT on ACTUAL INNOCENCE

On May 15 2020 our Texas Supreme Court affirmed what the Fourteenth Court of Appeals found in my case in 1999, in the criminal case, and what the Texas Third Court of Appeals found again in my case in 2003 in the Civil case. My Innocence is Actual because the act of asking your bank to withhold payment on a post dated check was not then, and is not now, a crime. 

Here is a recent case on point.

In re Lester, 602 S.W.3d 469 (Tex. 2020)

“We conclude that Lester is entitled to Tim Cole Act compensation because the conduct for which he was imprisoned was not a crime at any time during his criminal proceedings.”

In In re Allen, 366 S.W.3d 696, 706 (Tex. 2012), we acknowledged that “actual innocence” is a “legal term of art [that] has acquired a technical meaning in the habeas corpus context.” There are two types of actual-innocence claims in Texas habeas law. Id. at 703 (citing Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002)). First, Herrera claims are substantive claims in which a petitioner “asserts that newly discovered evidence establishes an applicant’s innocence.” Id.; see also Herrera v. Collins, 506 U.S. 390 (1993). “The most  familiar Herrera-type cases are those in which DNA testing leads to exoneration of the applicant.” Allen, 366 S.W.3d at 703. Second, Schlup claims are procedural claims that provide  a “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 704 (quoting Schlup v. Delo, 513 U.S. 298, 

315 (1995)). Thus, a petitioner may succeed on a Schlup claim only if the petitioner’s claims for habeas relief are procedurally barred.

Here, Lester does not have any “newly discovered evidence” on which to base a Herrera claim. Lester’s habeas petition also was not procedurally barred, eliminating the need for a Schlup gateway claim. Thus, Lester does not have either type of actual-innocence claim  currently recognized in Texas habeas law.

However, habeas actual-innocence jurisprudence—and our related decision in Allen—is based on the assumption that the petitioner’s alleged conduct was criminal at the time it was committed. For example, in Allen, petitioner Billy Frederick Allen was charged with murder.  366 S.W.3d at 701. There was no question—before, during, or after Allen’s criminal trial—that Allen’s alleged actions, if proven, constituted a crime. Rather, Allen relied on newly discovered exculpatory evidence to successfully argue that (1) he probably did not commit the crime, so the court should consider his procedurally barred successive habeas petition (a Schlup claim); and (2) his counsel was unconstitutionally deficient, entitling him to relief. Ex parte Allen, Nos. AP- 75580, AP-75581, 2009 WL 282739 (Tex. Crim. App. Feb. 4, 2009). We ultimately concluded that Allen was entitled to Tim Cole Act compensation because his successful Schlup claim brought him within the “narrow class of cases that satisfy the actual innocence standard.” Allen, 366 S.W.3d at 710. But again, our decision assumed that Allen’s conduct would have been criminal had the state been able to prove that Allen in fact committed the murders for which he was charged.

Here, as a matter of historical fact, Lester’s conduct was not a crime at the time it was committed because the Court of Criminal Appeals had already declared the online-solicitation

statute unconstitutional. Lester is therefore actually innocent in the same way that someone taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such crime exists. Just because existing actual-innocence jurisprudence does not contemplate something as outrageous as Lester’s case does not mean that Lester, who committed no crime, is anything but actually innocent.

CONCLUSION

The Final Judgment in the The Final Judgment of record October 3, 2005 in Cause No. GN 100142 entitled Edmund Bryan Heimlich vs. The State of Texas remains a Legal Obligation of The State of Texas. Refusal to pay or delay in payment is Obstruction of Justice and a Criminal Offense under Federal Law, 18 USC 242, for DEPRIVATION OF RIGHTS UNDER COLOR OF LAW, as well as an Act of Official Oppression in violation of Texas Penal Law. Violators are criminals even if those with the duty to do so decline to prosecute due to fear of your political clout. 

Ed Heimlich, March 6, 2021