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;

  1. The Legislature may grant aid or compensation... Approval by AG not required.

  2. 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.

  3. improperly fined or imprisoned - adjudicated fact of 1999. Heimlich improperly fined and imprisoned. Final, not subject to relitigation, new review, or reversal.
  4. 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:

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