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INFORMED CITIZENS
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Dear Honorable Ken Paxton, Attorney
General,
As a Constitutional
Conservative we are confident you agree that restitution is due for
property loss suffered by the victim of violations of constitutionally
secured Rights. Heimlich is such a victim and he has proven this to the
satisfaction of our Texas Courts. However; our Legislators have
requested our Attorney General provide them with reassurance of their
power to appropriate the remedy due Heimlich. We respectfully request
our Attorney General acknowledge, via letter or singular point of
contact for our Legislators, that the
plain language of the 1956 amendment found in our Texas Constitution as
Section 51-c of Article III provides;
The Legislature may
grant aid or compensation... Approval by AG not
required.
To any person,
meaning the Legislature can do so on a case by case basis. No
statutory "waiver of sovereign immunity" required. The Amendment is
the waiver.
improperly fined or
imprisoned -
adjudicated fact of 1999. Heimlich
improperly fined and imprisoned. Final, not subject to relitigation,
new review, or reversal.
for which he or she
is not guilty
- adjudicated fact of 1999.
Heimlich not guilty, innocent, acquitted, innocence actual. Final,
not subject to relitigation, new review, or reversal.
The forgoing clauses are from
Article III of the Texas Constitution, Sec. 51-c.
titled AID OR COMPENSATION TO PERSONS IMPROPERLY
FINED OR IMPRISONED:
The Legislature may grant aid and compensation to any
person who has
heretofore paid a fine or served a sentence in prison, or who may
hereafter
pay a fine or serve a sentence in prison, under the laws of this
State for an
offense for which he or she is not guilty, under such
regulations and
limitations as the Legislature may deem expedient.
A letter to the effect of the foregoing, or a singular point of contact
in the Office of the Attorney General, will enable filing of the
attached resolution for the payment of
the attached
Final Judgment.
Background
Heimlich is asking our
Legislature to pay a Final Judgment for damages suffered as a result of
violations of his Rights secured by our US and Texas Constitutions. The
Texas Court of Appeals, in a 2003 review, found The State liable but
limited his remedy to damages pursuant to a legislative Act of 2001
providing compensation for Wrongful Imprisonment.
Thereafter the trier of fact also found the
State Liable and the Attorney General stipulated to Liability both in
writing and orally on the record in open court.
Those unfamiliar with
the language of the courts may not recognize that a 'liability' is
a 'legal obligation'. The State, by and through the
AG, admitted it has a legal obligation to Heimlich.
After the entry of a
Final Judgment on damages the State, represented by the Office of the
Attorney General (OAG), then appealed. At issue in this appeal was an
assertion by the AG the legislature had not waived immunity to suit. By
contesting the legislature's waiver by statute the State is saying that
although it has a 'legal obligation' to Heimlich the Texas legislature
has closed the Courts to Heimlich as a means to remedy. But according to
staff in our Legislature this is not the picture that has been portrayed
by the OAG to legislative staffers who call the OAG. They shift the
blame to the OAG for the injustice Heimlich continues to suffer by the
refusal of the State to honor it's legal obligation and pay its debt to
Heimlich.
Legislators say they
are being told, by your Office, that “subsequent to the judgment the
State appealed and the appellate court found for the State”, or that
“the Final Judgment was reversed”, or “the AG is opposed to
payment”. This evades the fact that these Judgments remain
Final, not subject to relitigation:
The FINAL
finding of acquittal (synonymous with not-guilty and innocent) in
1999;
The FINAL
finding of Liability (a Legal Obligation) in 2003; and
The FINAL
finding of Actual Economic Damages (property taken) in 2005.
These Judgments remain FINAL, and as Officers of the Court, must be
accepted by the Attorney General and all who act in his name via
employment in the Office of the Attorney General. A 2008 memorandum
opinion in response to the appeal of Final Judgment of 2005 ruled the
Legislature had not waived immunity to suit. The Justice who wrote that
opinion did not have jurisdiction to overturn or overrule the finding of
acquittal or the finding of the liability (the legal obligation) of the
State. He choose to not address the finding of damages.
We contend, and the
authors of the statute agree,
the statutory waiver of suit turned on the question of actual innocence
and that this question was, by
statute, a question for the 'tier of fact', AKA, the Trial Court, alone.
The appellate court did not have jurisdiction to answer this question.
The AG said as much when,
after the appellate review of 2003 found, sue sponte, actual innocence.
Or, what may also be referred to
as the Legislature's waiver of immunity from suit. This was followed by
the OAG's stipulation of liability and request for trial on damages.
It was AG that demanded a
ruling on the matter by the trial court! Trial on this issue alone was
had by the 'trier of fact',
in 2004, and the trial court found
actual innocence in Heimlich's case and entered summary judgment for
Heimlich and, therefore liability of the State.
Thus the technical definition of the phrase created by the appellate
court in 2008, in later appeal, is void ab initio and a legal nullity.
Properly and Constitutionally the question of Heimlich's guilt or
innocence, actual or otherwise, could not be re-litigated. A mandate
from the Court of Appeals in 1999 followed the submission of this case
to our Court of Criminal Appeals. The Office of the AG as an Office of
the Court must accept a decision of our highest criminal court in Texas
finding Heimlich was not guilty and finding that he was improperly fined
& imprisoned. It is a decision that is not subject to review or reversal
by lower courts, or even the Texas Supreme Court, in response to
Heimlich's civil suit. A suit brought in pursuit of his inherent and
inalienable right to restitution. This inherent, unalienable, Right to
Remedy for the injury done to him in his lands, goods, person or
reputation, is by common law secured by Section 13 of Article I of our
Texas Constitution as, pursuant to Section 29, exempt from the powers of
government, forever to remain inviolate.
Holding a position with the power of the Office of the Attorney General
you, and those employed under you in that office, can violate the
inviolate and deprive Citizens of their inherent, inalienable, Rights.
So, too, can our Judicial Officials. Our Legislators will turn a blind
eye. Absent extensive national and international publicity it is
unlikely there will be any consequences for this treason against our
Constitution and against our form of government. But Texans are our
people and Texas is our State, as well as yours. Causing our people
embarrassment or bringing our State into disrepute is not something we
desire. We appeal to you and your conscience. Act on this and act now
because it is the right thing to do.
The
Real Issue
So let us address
the real issue; The State's concern expressed by the OAG in it's
briefs, in it's oral arguments, and in testimony to the legislature, has
been consistent. It is fear that allowing victims of wrongful
imprisonment to file suit would “open the floodgates” to
litigation against the State.
This is no longer a
concern in this matter because (1) subsequent revisions to the statutory
waiver eliminated the subchapter that provided for the filing of a
lawsuit. All claims for wrongful imprisonment compensation are now
administrative through the Comptroller's Office. And, (2) Heimlich is
now proceeding pursuant to an amendment to our Texas Constitution. A
resolution pursuant to this amendment will not open the floodgates to
litigation. It will address only the matter of Heimlich's Final
Judgment. This will provide Heimlich with the restitution that justice
demands while it saves the State from the potential of publicity that
would damage the States reputation and hinder the State's economic
development.
Heimlich is asking the Office of the
Attorney General (OAG) to correct the impression given by legislators
that the Office of the Attorney General is to blame for the refusal of
the Legislature to honor it's legal obligation and end the State's
obstruction of Justice for Heimlich.
The
Court of our Texas Legislature now has the ball
Legislators and their staffer's need the help of the Office of the
Attorney General to understand that the ball is back in the
Legislature's Court (both figuratively and literally). The Legislature
can waive immunity to suit by grant to any individual permission to sue
the State, pursuant to Chapter 107. Or the Legislature may grant aid and
compensation to Heimlich as a person who was, by decision upheld by our
Texas Court of Criminal Appeals, found not-guilty and found to have been
improperly imprisoned, pursuant to Constitutional Amendment in section
51-c of Article III. That is the article that grants power to the
Legislature. Approval by the Attorney General is not required. Please
provide us with a letter to this effect.
A
Moral, as well as a Legal, Obligation
There remains a legal and moral
obligation of the State. A common law / natural law obligation to honor
the inherent and inalienable Right of Restitution Heimlich has as a
Human Person and as a Citizen. It is an obligation the Office of the
Attorney General has stipulated to in court records and in statements of
record made in open court. But our legislators are being given the
impression that our AG thinks Heimlich is guilty of something when it is
a fact of public record, and an adjudicated fact not subject to review,
that he is not-guilty.
We'd like a letter from the Attorney General that we may present to
Legislators. A letter that will free the Office of the Attorney General
from calls on this matter and prevent any distortion in communication.
Alternatively a singular point of contact in the Office of the Attorney
General with an understanding on the foregoing points to confirm to
obvious for those in the Legislature who might otherwise not recognize
the obvious, or question what the Amendment to our Constitution
provides.
The acknowledgment
of the forgoing from the Attorney General, by letter or by a singular
point of contact, will defeat the unintentional (we pray it was
unintentional) obstruction of justice encountered in prior attempts to
secure Restitution for the economic damages Heimlich suffered as a
result of improper actions by those who acted in the name of the State
of Texas in 1993 and 1995.
The obstruction has been caused by those who conflate an question of
whether or not the Legislature granted permission to Heimlich to sue the
State with a question of whether or not he was guilty of the crime for
which he was charged. Pursuant to our Texas Constitution the mandate of
the 14th Court of Appeals in 1999, as a Mandate that followed review by
the Texas Court of Criminal Appeals of the reversal AND ACQUITTAL
(synonymous with not-guilty and finding of innocence in every
dictionary) in the criminal action is not subject to
review and reversal in a civil action for damages brought upon
the State by the not-guilty, innocent, person that was improperly
imprisoned.
Respectfully, Rogert Borgelt,
Attorney, and Ed Heimlich, Citizen
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