April 15, 2018
TO: Steve Pier, Director, Governmental Relations Division Office of Attorney General
via Email: firstname.lastname@example.org
CC: Attorney General of Texas, Ken Paxton
FROM: Citizen of Texas, and of the United States of America; Ed Heimlich
Heimlich’s Claim in light of
NELSON v. COLORADO
Dear Steve Pier, Director, Governmental Relations Division Office of the Attorney General of Texas,
THANK YOU! Thank you for the letter from you dated March 22, 2018. This is a step in the right direction. But I want more and our Legislators deserve more. Their time is valuable. The Legislative session is very short. Our Legislators should not be burdened with conflicting information. There is no need for it if. You said in your letter: “We do not advocate or oppose legislation and we do not work for or against individuals.”
Another Letter – And why
I respectfully request another letter at your earliest convenience. I hope you do not consider this an unreasonable request. In the past I have been treated by some in the Office of the Attorney General as an adversary. But we are NOT adversaries. Now where in our Constitution does it stay that ours is an adversarial system. Such a system makes enemies of the people and their government. Both sides to any controversy, whether in or out of the judicial division, should be looking for truth and justice.
I respectfully remind you, and whomever else in the AG Office you share this with, that your job is not to “win”. Your job is not to defeat the people of Texas, of which I am one. We did not create government so that we could be punished, oppressed, defeated, by those employed in government. We created government to preserve, protect, and defend our individual, god-given, inherent and inalienable Rights. We created a Constitution and Laws to direct our government in that purpose. ALL laws must t viewed with that purpose and construed for that intent.
Your duty, and the duty of all in the Office of the Attorney General, is to “preserve, protect, and defend the Constitution and Laws of the United States and of this State”. Your duty to represent the State in litigation is secondary to that primary duty. Sometimes this requires that you allow the other side to prevail in a matter of litigation or controversy. Doing so does not constitute a defeat or a loss. It constitutes an act of Honor of the Law and compliance with your Constitutionally mandated duty.
Sometimes that duty will put you at odds, and in opposition, to actions of those in the Judicial Division, and even those in your own Division, the Executive, when they are acting contrary to the preservation, protection, and defense of Laws that secure the Rights of the Individual. That is the purpose for the division of powers and the requirement of an Oath for all, including you. (TX Const. Art. 16, Sec. 1)
Do You Agree?
It was not until well into last session that I became aware that a memorandum from the Office of the Attorney General was working against my legislative measure. The information therein is illegal because it is being utilized to defeat a legislative measure I’d put before our Legislators. It either contains misrepresentations of Law and Fact; or, presents information in such a way as to result in Legislators drawing conclusions that are no different than would result from deliberate misrepresentations. I can tell from the reaction and questions from legislators and staff after they received it. The information contained therein is inaccurate.
Going forward; How can we be sure that no one among the 4,000 in the Office of the Attorney General are utilizing the influential name of the Office to defeat my legislative measure? Only by a letter produced by a joint collaboration between myself and your office, signed by our Attorney General, that I can then present to our Legislators. Will you help me with this?
I request a letter that comes not from you but through you. I request a letter from Ken Paxton, our Attorney General, signed by him. This will enable our Legislators to know whose information they should rely on for their deliberations. Other information they may receive, or may have received, from others in the Office of the Attorney General will then become inconsequential.
Accurate Information for our Legislators
You and I agree that the members of our Texas Legislature should have ‘accurate’ answers to their questions. Quoting your letter;
“should you continue to petition the Legislature to place a claim in the Miscellaneous Claims Bill, you will cause legislative members to ask the Office of Attorney General about the validity of those claims. We have no choice but to respond accurately to those questions.”
This letter will insure they have accurate answers. I want a letter I can present to our Texas Legislature that accurately informs our Legislators of the situation surrounding my claim. There has been disagreement between myself and Office of the AG in this regard. We can agree to disagree and let the Legislature decide on how to settle the disagreement.
There are also many aspects of my cause on which we agree. These should be included with any statement from the Attorney General regarding my claim. I believe this essential and necessary as it will help to prevent our Legislators and their staff from getting an inaccurate impression.
One such fact on which we agree is mentioned in your letter and is the very cause for my legislative measure. In your letter you state: “The fact is that an appeals court overturned the judgment for payment.”
I AGREE! I have advised our Legislators of this fact. I tell them it is why the Final Judgment I secured is not included in the list of Judgments your Office provides for inclusion in the miscellaneous claims and judgments act. I tell them this is why a legislative measure is needed to address that appellate court ruling. This requires the members of our Legislature an accurate understanding of the ruling and and be accurately informed of the limitations of the ruling.
I also tell them (1) the law forbid the AG from another appeal, but a Judge chose to disregard the law; and, (2) the resulting memorandum opinion is invalid. The overturned judgment remains valid under the law. Hence, the need for a legislative measure.
Where We Can Agree to Disagree
Your letter goes on to state:
That was done long ago and consequently there is no valid court judgment for payment currently standing. Whether that should or should not have happened is simply not a matter I or anyone else here can decide. It is a record of fact and we must abide by that. ”
I disagree on two counts. I am of the opinion and belief that;
- The Attorney General has a legal and ethical duty to tell our Legislators that should not have happened (See Statutory Law and Rule 3.03(c) of the TDRPC);Or, if our Attorney General chooses to refused to comply that Law then I request,
- The Attorney General inform our Legislators it is within their power to address the appellate court’s interpretation of their law and to find it to be an erroneous interpretation.
We may choose to disagree as to whether or not that should or should not have happened. However; the Oath our Legislators take to preserve, protect, and defend their own laws requires they review appellate court interpretations of their law and vacate the resulting opinion or ruling when clearly erroneous. We can agree, and the law requires that we agree on this: The Legislature, as the makers of the statutory Law the appellate court interprets, have the power to review that interpretation of their statutory law. Can we agree on this?
In support of my opinion and belief of what the Attorney General must provide for presentation to our Legislators see Rule 3.03 (c) of the TDRPC, as follows.
Laws and Ethics governing conduct of Attorneys
Mandate Remedial Measures
The Laws and ethical considerations that govern the conduct of Attorneys, and in particular for Attorneys employed in positions of public trust, require our Attorney General to advise our Legislators that the review of the Final Judgment, and the overturning of it, should not have happened. The Office of the Attorney General erred. The Office, through it’s employees, acted in violation of the law by filing for another appellate court review.
Furthermore; Laws and ethical considerations require our Attorney General advise our Legislators that the appeal was barred by Law that deprived the Appellate Court of subject-matter jurisdiction. Because the Appellate Court lacked jurisdiction to enter an opinion the memorandum opinion is not valid.
It is not valid primarily due to the prior unanimous opinion and mandate from the same Court of Appeal on the same question. That Opinion and Mandate came before the Final Judgment and answered the question of liability and to subject matter jurisdiction of suit. The appeal was barred by provisions of our Texas Constitution, Statutory Law governing the jurisdiction of our Appellate Courts, and Rules of Court, as well as the doctrine of Res Judicata.
Pursuant to the Rules of Disciplinary Procedure and Ethical Rules governing the conduct of Attorneys those now under your supervision did not have legal authority (jurisdiction) to file the appeal. The Attorney General can take remedial measures and the law requires he do so. In this case we are not confined to the courts for legal remedial measure. Both parties have access to the tribunal known as the Texas Legislature. Remedial measures remain and are possible.
Allow me to share with you part of the criminal complaint I filed in November of 2007. Therein I cite the law that mandates remedial measures.
Criminal Complaint against an Assistant Attorney General
An Attorney, employed as a Public Servant (“public servant lawyer”) is subject to criminal prosecution for violating the Texas Disciplinary Rules of Professional Conduct (“TDRPC”). The TDRPC is not just a suggestion of ethical conduct. It is statutory law as it is created by direction of our Legislators to our Judicial Division. Our Texas Supreme Court refers to it as “law governing the conduct of attorneys”. Clearly, it is “law relating to the public servant’s office or employment” if a public servant is an Attorney.
Texas Penal Code:
§ 39.02. ABUSE OF OFFICIAL CAPACITY.
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment;
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
Texas Government Code:
§ 81.072. GENERAL DISCIPLINARY AND DISABILITY PROCEDURES.
(d) Each attorney is subject to the Texas Rules of Disciplinary Procedure and the Texas Disciplinary Rules of Professional Conduct.
Cynthia Alexander’s violations of law relating to her public servant office, as an Attorney, and pursuant to her employment in our Office of the Attorney General, as a licensed lawyer employed as a public servant, include, but are not limited to, the following:
Rule 3.03 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall [no discretion] make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
- The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.
In November of 2007 I was appalled by the misrepresentations of Fact and Law in the appellate brief filed by Asst. Attorney General Cynthia Alexander (now Burton) and exasperated with the 2 years of obstruction caused by a frivolous, illegal, appeal filed after I secured a Final Judgment on Oct. 3, 2005. I filed a criminal complaint against her. Rather than impose sanctions on her Judge Pemberton chose to cover-up for her and protect her with his absurd, illegal, and invalid memorandum opinion.
Through the experience of the past 25 years I have become all too aware that those employed in positions of public trust are given a pass on criminal acts they commit under the cover of their position. I can look only to their Honor, if they have any, for their compliance with our Constitution and Laws.
I believe we have an Honorable Attorney General. However; if he choose to not take the remedial action I’d like and chooses to stand by memorandum opinion as valid we can agree to disagree in regards to this statement of yours:
Whether that should or should not have happened is simply not a matter I or anyone else here can decide. It is a record of fact and we must abide by that. ”
While at the same time we can, and should, agree that our Texas Legislature does have jurisdiction, ie; the authority, under our Texas Constitution as law makers to decide if that should or should not have happened. The office of the Attorney General may choose to continue to abide by the conclusion of the memorandum opinion. But the Legislature is not bound by it. As the only division with the power of to make statutory law, and the power of the purse, the legislature can pass a legislative measure to pay any claim it chooses. Can we agree on this?
On What We Must Agree
– Limited Scope and Limited Finding of Court’s Memorandum Opinion –
An accurate response to questions from the Legislature would advise them of the limited scope, and limited finding, of the appeal that resulted in the memorandum opinion your Office has relied to assert “an appeals court overturned the judgment for payment.” This can be summed up in two sentences. One from the first paragraph and one from the concluding paragraph of the memorandum opinion .
From first paragraph:
“The State has appealed the judgment, contending that Heimlich’s claims are barred by sovereign immunity.”
From the last paragraph:
“Accordingly, we will reverse and render judgment dismissing Heimlich’s wrongful- imprisonment claim for want of subject- matter jurisdiction, and that Heimlich take nothing on his takings claim.”
In layman’s terms, Judge Pemberton asserts the court was closed to me by our Legislators.
Please Educate Legislative Staff – Avoid Misleading to Inaccurate Conclusions
Some Legislators, and their staff, are unfamiliar with the language of our Courts. What is sometimes referred to as legalese. If, as those in your office assert, our Legislators are your clients then you have a duty to translate the language of the courts, the legalese, so that they can then understand the legislative measure I have put before them. In layman terminology, or words of common meaning and understanding, the doctrine of sovereign immunity referred to says that Heimlich did not have permission to file a lawsuit against the government (“The State”) of Texas in a State of Texas Court.
An honorable Attorney General has a duty to advise our Legislators that the question of whether or not Heimlich can sue the State in State Court has no bearing on whether or not the State has a legal obligation to pay Heimlich’s claim.
Legal obligations can, and do, exist independent of whether or not an institution known as State Courts are available, accessible, or open to the person with a claim that is, pursuant to well established, previously adjudicated facts, and Constitutional law that is excepted from the powers of government, forever to remain inviolate, constitute a Legal Obligation. It is up to our Legislators to choose to honor the Law of our Texas Constitution, or not.
Unknown to all but a few other than Attorneys, and maybe even unknown to many Attorneys, our Texas Courts have established a distinction between suit and liability. A stipulation to liability is, as you know, an acknowledgment of a legal obligation. The State of Texas has a legal obligation to Heimlich, by it’s stipulation to liability prior to the trial on damages, even if it is later ruled that the Legislature had not waived sovereign immunity to suit. Or, to use language of identical meaning, the Legislature had not granted the Court subject-matter jurisdiction.
This distinction between permission to sue and admission of liability can be seen in Texas Law codified in the Civil Practice and Remeidies Code, 107.002 (b) A resolution granting permission to sue does not waive to any extent immunity from liability
The liability of the State is established by the establishment of a Constitution. If the State is not liable for violating the Texas Constitution then we have, in effect, no Constitution. This is axiomatic. The State is liable for property loss and economic damages that result from it’s violations, by and through those who act in it’s name, of those inherent, inalienable, Rights our Texas Bill of Rights and Laws intended to secure. The waiver of immunity from liability is found in our Texas Bill of Rights. It is exempted from the powers of government; forever to remain inviolate. In any event liability was established in the first two (2) appellate reviews. One in the Criminal Court case review, by the 14th Court of Appeals, and one in the Civil Court case review, by the 3rd in 2001 prior to the Final Judgment. The prior appellate review of the civil case resulted in a unanimous opinion and was followed by a mandate. This was followed by a stipulation to Liability by your Office, through your assistant attorney general assigned to the case, in writing filed of record and in oral declaration recorded by the court.
Therefore even if the Final Judgment was rendered invalid by a subsequent review that asserts no waiver of immunity from suit. The liability previously established remains. There remains a legal obligation of the State. What we may now refer to as a valid “claim” absent what you choose to refer to as a valid Final Judgment.
The language utilized by the Courts in Colorado, and by the United States Supreme Court in Nelson v. Colorado, is different than what is common in Texas Courts but the meaning is the same. In their language the trial court for the State of Colorado did not have ‘statutory authority’ to rule on the motions for restitution filed by two former criminal defendants. A lack of ‘statutory authority’ is the same as saying the court did not have ‘subject-matter jurisdiction‘. The waiver of liabilty, even if one chooses to believe it is required in this case, survived the subsequent review of my civil case and, pursuant to Nelson v. Colorado exists independent of ‘statutory authority’ / ‘subject matter jurisdiction’.
And finally, even if we should not agree on whether there is a “legal” obligation there is no disputing the fact the legislature can agree there is an obligation and, by legislative measure, make it “legal”.
Judge Pemberton was the author of the memorandum opinion relied on to thwart my prior legislative measures. On information I believe Judge Pemberton ruled singularly without the knowledge or participation of the other two Justices whose names he applied. That aside, his memorandum opinion that I always considered void ab initio has now been rendered void by a 7-1 decision of our United States Supreme Court. It stands as a legal nullity.
In light of Nelson v. Colorado I respectfully request our Attorney General agree to inclusion of the Final Judgment in the miscellaneous claims and judgment act as a ‘legally enforceable obligation of the State’.
NELSON v. COLORADO
On April 19, 2017 (Patriot’s Day) our United States Supreme Court decided the case of Nelson v. Colorado.
Held: The Exoneration Act’s scheme does not comport with the Fourteenth amendment’s guarantee of due process. Pp. 5-11
And Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary extraction. Pp. 6-8
Colorado’s scheme creates an unacceptable risk of erroneous deprivation of defendant’s property. The Exoneration Act conditions refund on defendant’s proof of innocence by clear and convincing evidence. But defendants in petitioner’s position are presumed innocent.
In the Appellate Court’s first review of Heimlich vs. The State of Texas, cause no. GN 100142, the Court established that liability existed under the Act providing Compensation for Persons Wrongfully Imprisoned enacted into Law by our Texas Legislators in 2001. In a memorandum opinion following another review of the Final Judgment the appellate court created a scheme identical to the scheme referred to in Colorado’s Exoneration Act as an excuse to deprive the court of subject-matter jurisdiction, aka, a waiver of immunity or statutory authority to suit. Such a scheme that has now been ruled a violation of the Fourteenth Amendment to the supreme Law of the Land – the Constitution of the United States of America. I respectfully remind the Office of the Attorney General that the purpose and intent of the Fourteenth Amendment is found in our Texas Constitution’s first Article, section 19, our Texas Bill of Rights.
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
If the act does not comport with fourteenth amendments guarantee of due process of law, in our supreme Law of the Land (US Const.) then it does not comport with the guarantee of due course of law established in Sec. 19 of Article 1 of our Texas Constitution.
I respectfully request the Office of the Attorney General review the case of Nelson v. Colorado. I’d like it to be mention it in the letter I am requesting from our Attorney General. I am already using the decision of our United States Supreme Court in Nelson v. Colorado in my petition to our Legislators for passage of a measure that would add my valid claim to the miscellaneous claims and judgments act in the upcoming session.
A Valid Claim survives the invalidated Final Judgment
Even if the Final Judgment is to be considered invalid, my claim survives and remains valid. The memorandum opinion said to have overturned the Final Judgment was limited to a finding on a legislative waiver of sovereign immunity as a waiver to suit in the Courts. It was not a finding on the legal obligation of the Public Treasury and it was not a finding on the waivers of sovereign immunity as to waiver to have liability established in the courts or by other means.
The Legal Obligation of the public treasury remains and the liability of the State of Texas, previously established by final appellate review, as well as stipulation by the Office of the Attorney General, survived. Furthermore; even if one chooses to doubt or question whether or not liability survived the ruling that overturned the Final Judgment then Nelson v. Colorado has re-established the States liability and reinforced the legal obligation of the public treasury.
I have the right as a Human Person, and as a Citizen of Texas, and as a Citizen of the United States, to petition the Legislators of my State to pass a legislative measure to pay the claim I have on the public treasury. Whether or not the Legislature chooses to pay my claim is a policy choice that is theirs alone to make. On this we can, and should, and must, pursuant to the Law, agree. I respectfully request a statement from you to that effect.
Heimlich’s taking claims is a claim for return of the property that he, alone, had a right to possess, manage, and control. It is a claim for property that is his by virtue of a valid, legal, contract between him and another private person. It is a claim for property that is his by virtue of statutory law of the State of Texas that vests ownership of all commission income with Heimlich, as a real estate Broker, at the time he acquired ownership of it. That property was taken from Heimlich by the State of Texas on an allegation the property belonged to the other party to a private legal contract with Heimlich. It was taken and then given away as restitution to this person on the State’s allegation that this person was a victim. The grounds for the reversal of Heimlich’s conviction for theft, with acquittal, was the legal finding that under the Law of Texas, what was taken from Heimlich as stolen property was, in fact, property that Heimlich owned. It was Heimlich’s property. The State of Texas stole from Heimlich property that the State of Texas had a duty to protect for Heimlich!
The State of Texas has a legal obligation to return it and restore to Heimlich the other property taken, damaged, and destroyed. Any question of this obligation has been settled by the United States Supreme Court decision in Nelson v. Colorado. No statutory authority or, if you prefer, waiver of sovereign immunity, or if you prefer, permission to sue the State, can be required by any Law or Court in Texas a State of the United States.
The value of the property taken, damaged, and destroyed has been adjudicated and established in Final Judgment in Cause No. GN 100142 in a Texas State District Court. That Final Judgment has, to date, remained unpaid due to a presumption of guilt Appellate Court Judge Robert Pemberton chose to impose on any who had been charged with a crime after their conviction had been invalidated by acquittal (finding of innocence). Nelson v. Colorado makes clear such grounds for refusing statutory authority to suit is an unconstitutional deprivation due process of law in our Courts. The memorandum opinion was void ab initio. It is now unquestionably a legal nullity.
Please provide me with a letter including information to the effect of the foregoing for presentation, by me as well as by you as Director of Governmental Relations for the Office of the Attorney General, to our Legislators. We should be presenting them with the same letter providing all the information they need. This should save them the trouble of calling on you and your office. I’m sure you have many other duties that require your time and attention. This will save you the trouble of repeating yourself. I look forward to your response.