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To the Honorable Attorney General Ken Paxton,

Request for correction of false statements of law and fact

I will presume it is not intentional but any implication from the Office of the Attorney General that Heimlich's innocence was less than actual is a misrepresentation of the Law and of the Facts. The Law and the Facts have been adjudicated to final conclusion in the long course of litigation that began with State v. Heimlich and ended with Heimlich v. State. The Office of the Attorney General has a fiduciary duty to the State it represents, and to the Public it serves, to correct the misrepresentation; or, to correct any incorrect impression. An incorrect impression constitutes an unintentional misrepresentation.

To achieve this it is requested the Attorney General call the Chairs of the Senate Finance Committee and House Appropriations Committee to advise them that the payment of the Final Judgment Heimlich secured upon the State is not opposed by the Office of the Attorney General. Alternatively, a letter from the Attorney General or a single point of contact assigned to insure that no unintentional misrepresentation is made and past incorrect impressions are corrected.

The last word on the Heimlich case is a memorandum opinion of Justice Pemberton in 2008 . The ruling is found in the second paragraph and the last. Justice Pemberton wrote:

In State v. Young we determined that the legislature in chapter 103 intended to waive sovereign immunity only for claimants who obtained habeas corpus relief from their convictions based on “actual innocence.” No. 03-07-00572-CV, ___ S.W.3d___, ___Tex. App.—Austin July 31, 2008, no pet. h). Young controls here and, under its analysis, Heimlich’s wrongful-imprisonment claim is barred by sovereign immunity. We also conclude that Heimlich’s takings claim is supported by legally insufficient evidence. 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.

All Attorneys have a duty to know, the structure of our courts. A licensed Attorney should know but may not, or may have forgotten, if they do not practice appellate law; But, an Appellant Attorney will recognize that the ruling in the second review of the case of Heimlich v. State is in the second paragraph until you get to the end where the same is repeated; “dismissed for want of subject-matter jurisdiction”, “barred by sovereign immunity”, and possibly most important of all this statement, “Young controls here”, referring to State v. Young.

To translate for those who are not Attorneys or do not practice in the Appellate Courts this is what it means in simple, layman, terms. It means, according to at Judicial Official that wrote this opinion, the Legislature did not grant permission to Heimlich to bring a lawsuit against the State of Texas. It also means you must look to State v. Young. A memorandum opinion has to be grounded on a prior opinion that established a firm precedent. In this case, State v. Young. Therefore the State v. Young opinion must be read to avoid being misled by, or getting the wrong impression, from the immaterial and irrelevant comments of author of the memorandum opinion. The ruling that controls heremust be looked at. And here is the conclusion in Young;

we must conclude that the legislature intended to provide a remedy solely to the wrongfully convicted who cannot for whatever reason, obtain relief through available direct appeals.

Justice Pemberton wrote 'cannot' in the Young brief. He must have meant 'did not' because both Young and Heimlich DID obtain relief from their convictions. This helps reveal Justice Pemberton's mindset, his bias, his prejudice. He is treating Heimlich and Young as if they remain convicted and are seeking relief from that conviction. But there is no conviction! It was reversed. Not simply reversed, but an acquittal was ordered as well in Heimlich's case. He was found not guilty, he was found innocent, and he was found innocent by a standard that equates to Actual Innocence.

Those who practice appellate law in cases where the State (government) is a defendant also know that the courts split hairs over suit and liability. The legislature may have granted permission for suit, but liability is limited. Conversely, The State may be liable (have a legal obligation) but the courts say the legislature did not grant permission for suit ('waive immunity' / give courts 'subject matter jurisdiction'). An example is the administrative claims process through the comptroller used to compensate victims of wrongful imprisonment and crime victim's compensation. The State has assumed liability but has not granted permission to suit.

The issue of liability of the State (a finding of legal obligation) must be viewed has having been established by the 3rd Court of Appeals in the prior review and in the trial court as a question of fact. Justice Pemberton must have recognized this or he would have used language different from "lack of subject matter jurisdiction" and "waiver of sovereign immunity" and "Young controls here", which are questions of law - not of fact. These terms apply only to permission to bring a suit. The Liability of the State remains.

The establishment of Heimlich's actual innocence came when he obtained relief from his conviction on direct appeal. A mandate of acquittal followed when the Court of Criminal Appeals found no cause for review. Heimlich's Actual Innocence is now a fact, an adjudicated fact, not subject to new review or reversal. Similarly; Young's conviction was reversed on direct appeal. As you know, A Writ of Habeas Corpus to obtain relief from a conviction becomes necessary only if relief from a conviction was not obtained on direct appeal. Justice Pemberton's interpretation of the statutory waiver allowed compensation only if the conviction held on direct appeal and again held if previously reviewed upon petition to the Court of Criminal Appeals. Also from the Young ruling;

In this jurisprudential context, the legislature's use of the phrase "has been granted relief based on actual innocence" thus connotes both a specific standard of proof and a procedural framework through which such relief is obtained--a writ of habeas corpus.

"ultimately obtained acquittal on grounds of legal insufficiency of the evidence in his direct appeal. We conclude that it does not include such claimants, but instead manifests the legislature's intent to limit chapter 103's waiver solely to claimants who have obtained habeas corpus relief".

Justice Pemberton, writing for an intermediary Court of Appeals, did not have jurisdiction to rule on Actual Innocence when Actual Innocence had already been established by another intermediary Court following submission of his case to the higher court, the Texas Court of Criminal Appeals. For him to publish an opinion stating, or implying, that Heimlich's innocence as anything other than actual is libelous. It is, as well, a misrepresentation of law and fact for which remedial measures are required. The same is true if it should come from the Office of the Attorney General.

The following of a recorded conversation with Chief Justice Rose of the Third Court of Appeals proves that the rest of the memorandum opinion is commentary that misrepresents the law and the facts, or is interpreted in such a way as to give a false impression that misrepresents the law and the facts. Heimlich's Actual Innocence, as the phrase is understood and applied by the Courts when ruling on a Writ of Habeas Corpus, has been established and is not subject to review or reversal. Here are the questions given to Justice Rose and his answers. It is, as well, common knowledge to any who know the structure of our Texas Courts. It is required knowledge of any licensed to practice law.

Can a Court of Appeals ('COA') overturn a finding, implied by operation of law, by the Texas Court of Criminal Appeals?

Answer: NO.

Can the Texas 3rd COA overturn or reverse findings of fact and law of the Texas 14th COA?

Answer: NO.

Can a District Court, in a Civil Trial, overturn or reverse finding Law and order of Acquittal by a COA?

Answer: NO.

As you know; the accused in a criminal case is presumed innocent at trial, but if the verdict is guilty the burden is now on the defendant and the burden the defendant must meet is very high to over come the presumption of guilt. Even higher than beyond a reasonable doubt if he is to obtain relief from the conviction with an acquittal. Is this Correct?

Answer: Yes.

CONCLUSION: The foregoing confirms that Justice Pemberton and the 3rd COA did not have jurisdiction to rule on Heimlich's innocence, actual or otherwise, and that any implication to that affect is a false statement of law and fact for which all Attorneys have a duty to take remedial measures to correct.

Justice Pemberton must know Heimlich's innocence, actual or otherwise, was not an issue he could rule on. But he hid the only possible excuse for depriving Heimlich of his right to restitution in the Young opinion. It is there that we see his absurd interpretation of the statute as limited to those whose actual innocence came only after they failed to prove it on direct appeal. He then gives the impression in his memorandum opinion on the State's appeal Heimlich's Final Judgment that a question of guilt or innocence was at issue. His opinion reveals a malice, an animosity, and an intent to harm Heimlich. The motive is obvious from the footnotes. Justice Pemberton hates those who are pro se. A review of his record also reveals that he never rules in favor of a criminal defendant. He never reverses a conviction. The commission on judicial misconduct would not act. But the court of public opinion can and will, if this becomes necessary.

Legal Insufficiency of the evidence with acquittal

is synonymous with actual innocence

As any Attorney with knowledge of appellate law in Texas knows the burden to obtain relief from a conviction with an acquittal is greater, the bar is higher, than it is to get an acquittal at trial. The burdens is "beyond a reasonable doubt in the light most favorable to the prosecution". By contrast; at trial, the presumption of innocence mandates that evidence and law be in the light most favorable to the accused.

For a finding of 'legal insufficiency of the evidence' the standard is even higher this it is for a finding of factual insufficiency of the evidence. A legal insufficiency finding requires that the Court of Appeals look only at evidence that favors conviction and ignores evidence that does not. Because the burden so great, the bar set so high, our Texas Court of Criminal appeals has found in cases of review granted on a writ of habeas corpus that 'actual innocence' and 'legal insufficiency of the evidence' are legal phrases of identical meaning. They are synonymous and require acquittal.

The word acquittal is as a technical term utilized in the courts, and in common meaning, is synonymous with innocent and synonymous with not guilty. A person licensed to practice law has a duty to know this and to tell others that these are terms of identical meaning.

By contrast relief from conviction on grounds of factual insufficiency of the evidence on review granted on writ of habeas corpus can result in relief from a conviction without a finding of not-guilty, innocence or acquittal. This finding by the Texas Court of Criminal Appeals can result in relief from the conviction with the case being sent back to the trial court where the prosecution then chooses to not retry the case. As a result there are many popularly referred to as exonerees have been compensated by the State of Texas for an imprisonment found to have been wrongful. They were released on new evidence that found factual insufficiency of the evidence and the State chose to not retry the case. They gained “relief from the conviction on habeas corpus”, as required by the statute for an administrative claim for compensation, but there was no ruling of an acquittal, or finding of not-guilty, or finding by the court of Actual Innocence. The well known case of Michael Morton is an example.

By contrast in Heimlich's case there was no crime. The State, and even the appellate court that ordered the acquittal, implied their might have been a crime if Heimlich had not paid the agent when payment was due. While this may provide cover for the State Actors involved it is obvious to any licensed to practice law to be misleading and a false statement of law.

IF, that was Heimlich's intent, and IF that had occurred, it would have been a breech of contract. Upon an action in the civil courts it might be found to be a debt. Our Texas Constitution bars imprisonment for debt. A debt, or inability to pay a debt, is not a crime. A crime is an action or omission that constitutes an offense as established by statutory law as an offense that may be prosecuted by the State. An act or omission that (1) does not constitute an offense; and (2) may not be prosecuted by the State, is not a crime! Obviously, without a crime there cannot be guilt or the opposite of Actual Innocence. People are not inherently guilty. Actual Innocence is their birthright and their natural state of being. Surely this is taught in Law School and known by all Attorneys. It is taught to all Christians and re affirmed every Easter. It is a natural Right secured by our US Constitution as the presumption of innocence.

People are entitled to their own opinions and can use words in a colloquial manner to express their opinions. Judicial Officials and Officers of the Court have a duty to avoid doing so when the result is, even if unintentional, a false statement of material fact or law. Remedial measures are required.

The remedial legal measures - that is; the payment of the Final Judgment - remains possible. Our Legislature is a 'Tribunal'. All that is required is for our Attorney General to acknowledge that the Legislature can make an appropriation for the payment of it. Please let them know that you are not opposed to the appropriation as the question of whether or not it is a legal obligation of the State is a question for the Legislature.

Thank you for your prompt attention to this matter,

CC: Chief Justice Rose and Justice Robert Pemberton