EXPOSING THE FRAUD, DECEPTION, & LIES
of Justice Robert ('Bob') Pemberton in his Memorandum Opinion
on the Heimlich lawsuit upon the State of Texas, July 31, 2008
The memorandum opinion if void. It is a legal nullity. This should be obvious to any with a license to practice law and any who knows what they should have learned in High School. As Chief Justice Rose confirmed in recorded conversation:
Justice Pemberton could not legally or ethically reverse the judgment of 1999 by the highest court in Texas on criminal matters. That is, the Texas Court of Criminal Appeals. It is the only Court in Texas with jurisdiction to define actual innocence and that court confirmed the finding of actual innocence in Heimlich's case.
Justice Pemberton could not legally or ethically use his position in the Texas Third (3rd) Court of Appeals to reverse in 2008 the Judgment of Acquittal (finding of actual innocence) of the court of equal standing, the Texas Fourteenth (14th) Court of Appeals.
Justice Pemberton could not legally or ethically use his position in the Texas Third (3rd) Court of Appeal in 2008 to reverse the Texas Third (3rd) Court of Appeal unanimous full panel opinion of 2003 that had been followed by a Mandate after time for review by the Texas Supreme Court, establishing liability & permission to sue (aka subject-matter jurisdiction for the lawsuit).
Justice Pemberton could not legally or ethically imply a civil trial is a criminal trial to prejudice the public against the plaintiff as a means to commit a theft of the plaintiff's $660,000 Final Judgment from a trial where he proved the value of his property unlawfully taken by the government exceeded that value.
Justice Pemberton could not legally or ethically violate the Law of our Texas Constitution that requires a minimum three (3) Justices on a panel to jointly review cases brought before them.
But he did. And to date he has not had the courage and integrity to take the remedial measures that law and ethics require. And to date none have had the courage or the honor to hold him accountable. Complaints to the Commission on Judicial Conduct, the State Bar, and the Legislature prove that some positions of public trust in Texas are exempt from the law and ethical obligations so harshly imposed on the subjects of Texas government (elsewhere they would be citizens of a State governed by the Rule of Law. In Texas the people have been relegated to the status of subjects).
Absurd Justification and Excuse
The absurdity of the justification used by the government of Texas (aka the State of Texas), acting through prosecutors in the criminal prosecution of Heimlich, and then used by Robert (Bob) Pemberton to cover-up and excuse their illegal and wrongful acts is obvious. That is; Obvious to any but those who are too blinded by titles given to people employed at tax-payer expense in positions of public trust. Many people have an average or less than average capacity for reason. Difficulty with algebra is one of many indicators. Many people have average or less than average ability for observation and comprehension. Unfortunately those lacking the ability to be unbiased and objectively reasonable make their way onto juries and into the Offices of the State Legislature. Some even become Prosecutors, Judges, or maybe even a Justice. But his educational background reveal his fraud, deception, and crimes are intentional. I pray enough of average and better ability will review this matter so that our Texas Constitution, and their Law, will be preserved, protected and defended from the assault of Robert (Bob) Pemberton.
Under the theory of the government prosecutors, and used by Justice Pemberton to excuse their unlawful acts, the employee owns the business in which they are employed. All revenue to the business is owned by the employee. This title of ownership gives the employee the ability to tell the government of Texas they fear the will not get paid on payday. On the basis of this fear the government of Texas can then seize (take) property from the business. Now with the property of the business in hand the owner, relegated by the government to an employee of those he employed, is labeled a thief. The property taken by the government is then presented to a jury as proof of his theft. The jury so blinded by the presumption of competence and integrity of those given a title of prosecutor and even more so one titled judge wearing a black robe implying religious authority, they follow their instructions to crucify the victim of government malfeasance.
Their theory is identical to that of Karl Marx and is the foundation of communist philosophy. Jesus was is a notable victim of a similar fraud prosecutors in his trial used to get a jury to demand his crucifixion.
Pemberton writes in his memorandum opinion, in paragraph 22:
The subject matter of Heimlich's takings claim is $5,050 in funds-representing the amount of the disputed commission check-that were seized from Heimlich's bank account in connection with his criminal prosecution. The funds were seized pursuant to a warrant, signed by a Harris County district judge, and were deposited into the court's register. ....
Heimlich characterized the seizure of the funds as actions as theft of his property under color of law and testified that he never recovered them. Beyond this the record is silent regarding the Harris County district court's ultimate disposition of the seized funds in light of the competing claims of ownership apparent in his criminal case. Contrary to Heimlich's understanding, the Fourteenth Court of Appeals did not decide that Heimlich owned these funds as opposed to the "piece of paper called [the commission] 'check Heimlich, 988 S.W.2d at 384-385.
THE FOREGOING IS THE MOST OBVIOUS AND EGREGIOUS MISREPRESENTATION OF ALL
There never was any "competing claims of ownership". The alleged victim testified that Heimlich was, and is, the owner! See the official court record. Justice Pemberton intervenes as counsel for the defendant government rather than as an impartial judge to devise this "competing claims of ownership" defense to the unlawful taking of Heimlich's property valued by Final Judgment at over $660,000. Any question of ownership of what was seized by the government, as acknowledged by Pemberton from Heimlich's bank account, was conclusively and finally determined in the criminal case and was the very grounds for the relief from conviction with a finding of actual innocence (acquittal)!
On page 4 of Pemberton's memorandum opinion he quotes from the Opinion of Justices in the Texas Fourteenth Court of Appeal upon their judgment of acquittal (finding of actual innocence). "Heimlich remained the only person with a legal ownership interest in the thing of value the check signified - the order to pay $5,050".
Pemberton's statement in paragraph 22 contradicts, is the exact opposite, of the quote from the Judgment of the Fourteenth Court of Appeals that appears in Pemberton's own memorandum opinion in paragraph 4! Pemberton diminishes the understanding and deflects the readers away from the understanding of others by i implying it is only "Heimlich's understanding". It is the understanding of:
- The alleged victim,
- The Justices of the
Texas Court of Appeals, 14th,
- The Justices of the Texas Court of
- And the Judge of the Texas District Court in Austin,
that Heimlich is the owner of the $5,050 in funds taken from Heimlich!
Only Pemberton does not understand, or feigns a lack of understanding that he projects onto Heimlich. Apparently as a ruse to deceive others so that Pemberton can deprive Heimlich of Justice.
Even the Attorney General understood Heimlich to be the owner! The Assistant Attorney General wrote in her brief that Heimlich 'owed' (was indebted to pay) a commission to the agent (complainant). A statement Heimlich took issue with as clearly noted in the court record and submitted to Justice Pemberton. See it here. There is a big difference between owed ("owed", having a debt, or obligation, to pay now - as opposed to in the future "owe") and own (having title to, a right to possess, manage, control).
Pemberton, as an Attorney and as a Justice, has a duty to accept the Final Conclusion of the Justices of the 14th Court of Appeals, those of the Court of Criminal Appeals, those of the 3rd Court of Appeals that reviewed this question of ownership, and recognized Heimlich as the owner and, therefor, innocence of any crime.
Pemberton's disagreement with the other Justices does not give him authority to violate the Law to which he is bound, if only bound by honor, to comply with. But he did. He stands in violation of the laws that govern his position of public trust.
Pemberton acknowledged the funds were seized (taken) from Heimlich's bank account by order of a Judge, acting in the name of the State of Texas, in a State District Court located in Harris County. The burden in the Civil Case is on the Defendant, the State of Texas, to prove the State returned the funds to Heimlich or to do so now. The State failed to present a defense. Now Pemberton can clearly be seen stepping out of his role as an objective Justice to become counsel for the Defendant raising a defense even the Attorney General considered too absurd to raise in their pleadings.
ADDITIONAL EXPOSURE OF JUDICIAL MISCONDUCT; FRAUD, DECEPTION, & LIES
Let me begin with the Law governing the conduct of attorneys. To be a Judge or Justice in Texas a person must be licensed to practice law. They continue to be bound to the law that governs attorneys when they accept the position of Judge, Justice, Attorney General, or any other position of employment in our government. If they should dispute or contradict anything written herein I request you report it to me, email@example.com, and to the State Bar of Texas.
LAW GOVERNING ATTORNEYS
Texas Disciplinary Rules of Professional Conduct
Rule 3.03 Candor Toward the Tribunal [The Legislature is a 'Tribunal']
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall 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.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.
The Conclusion, or the Ruling, on the Appeal of 2008
Edmund Heimlich was awarded a Final Judgment on finding of a District Court of Texas found the State of Texas liable to him for unlawful taking of his property, in the sum of $5,050 and for additional property loss caused by the wrongful imprisonment he suffered at the hands of the State. The Texas Attorney General appealed. This was the second appellate court review of this civil case by the Texas Third Court of Appeals. The matter had previously been reviewed and settled in a criminal case.
The conclusion of the review by the appellate court (Texas 3rd), according to a memorandum opinion authored by Justice Robert Pemberton, was that the Texas Legislature had not given Heimlich, and others who might be similarly situated, permission to sue the State. Pursuant to his tortured and labored perverse interpretation of the Texas Legislature's act of 2001 permission was denied to those who proved their actual innocence on direct appeal. Here are his exact words:
we must conclude that the legislature intended to provide a remedy solely to the wrongfully convicted who cannot [sic, did not], for whatever reason, obtain relief [from a conviction for a criminal offense] through available direct appeals.
Note that 'cannot' should be 'did not'. This error was either intentional to imply to the reader that Heimlich's conviction had not been reversed or it reveals the bias of Justice Pemberton. Some are too biased to be reasonable or objective. To them, all who are or ever were charged are guilty even if they prove their innocence!
The statute was established to provide compensation to those who obtained relief from a conviction. In other words; exonerated. A word that means officially found not guilty of criminal charges. An order of acquittal. A official finding of innocence. Any who read Chapter 103, codifying the Act of 2001, will see that the statute makes no distinction on where in our court system they succeed in proving their innocence and, in doing so, obtain relief from their conviction. But few will. They will assume that Justice Pemberton did and therefore accept his distinction. Some may read the statute will not recognize this unlawful, unconstitutional, legislating from be bench because they are ignorant of the structure of our Courts and Legal Procedure.
A brief review of the structure of our Courts and Legal Procedure
Difference between Criminal and Civil Matters
There are many, including some who are employed as staff for Texas Legislators, who are unfamiliar with the Court system in Texas and how the system works. There are level that begin with the Trial Court. Judgments in those courts can be appealed to the intermediate Courts known as Appellate. Those rulings are subject to additional review but those reviews are discretionary. That means the petition for review can be simply ignored. By doing so the ruling is said to have been affirmed by the denial. Equally important are the venues. There is the criminal venue and there is the civil venue. The law that governs the process in the criminal venue is very different from the law that governs the process in the civil venue. The Law also governs what may be determined in each and the implications of those determination. In summary;
Criminal venue determines guilt or innocence for the violation of a penal offense (a crime) that the government has been given, by the Legislature, the power to act as plaintiff. Often referred to as a prosecution. The prosecutor represents the government. They are not acting as an attorney for any private person or entity that might be involved as a complainant or referred to as a victim.
Civil venue determines liability. That is, civil venue exist to determine if one party is liable to another party and, if so, the remedy that may be allowed by law. By liable is meant has a Legal Obligation' to provide compensation or restitution. Only in this venue can a private party (non-government) enter as plaintiff by initiating a case against another party as defendant.
Criminal Guilt not possible in Civil Case
Until recently a victim of a criminal offense could not collect restitution from the perpetrator from a case in the criminal venue. They had to bring a separate action in a civil case. A person might be accused in a civil case of doing something that is violation of a penal law. But the Court can only find that they are liable to the plaintiff for restitution. Typically an award of money to compensate for their damages, property loss, pain and suffering.
In a civil case, guilt and innocence are NOT the subject matter of this venue. The Court, the Judge, and the Justices reviewing the case, do not have authority under the law to declare someone as guilty or innocent of a criminal offense in a civil case. To do so would be to make the matter a 'criminal law' matter.
Texas Constitution prohibits the Court from reversing an exoneration
in a criminal case in response to the exonerated bringing a civil case
See Art. 5, Sec. 5, of our Texas Constitution. JURISDICTION OF COURT OF CRIMINAL APPEALS.
The Court of Criminal Appeals shall have final appellate jurisdiction and its determinations shall be final in all criminal cases.
See also Texas Code of Criminal Procedure, Article 4.04, Section 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases and its determinations shall be final.
Our Texas Constitution limits what may be determined in a Civil Case
See Art. 5, Sec. 3, of
our Texas Constitution. JURISDICTION OF SUPREME COURT; (a) The
Supreme Court shall exercise the judicial power of the state except
as otherwise provided in this Constitution. Its jurisdiction shall
be co-extensive with the limits of the State and its determinations
shall be final except in criminal law matters. Its
appellate jurisdiction shall be final and shall extend to all cases
except in criminal law matters and as otherwise provided in this
Constitution or by law.
Motive of Pemberton and Judicial Bias
Many, if not most, who read the memorandum opinion of 2008 will get a very wrong impression of the ruling. Even those who have been to law school may be fooled. Indications are Pemberton structured and phrased his words with an intend to deceive as many as possible for the purpose of depriving Heimlich of Justice.
But Pemberton chose to disregard the rules and the law because:
Judges and Justices tend to try to cover up malfeasance by those employed in the criminal justice system.
Judges and Justices tend to be biased, to presume guilt, whenever someone is dragged into the criminal justice system.
That bias is enhanced if there was a conviction, even if the conviction was reversed with an exoneration (Exoneration is an acquittal. An acquittal is synonymous to a finding of innocence and determined to be not-guilty).
Heimlich was pro se. Pemberton, along with many other Attorneys and Judges simply hate the pro se. It's a matter of protection of their trade. It is a form of unionization and facilitates the creation of a trade monopoly. They do not want any pro se to succeed or others may become inspired to enter the public courts without paying an Attorney to act on their behalf. Although our courts are paid for by us, the public, Attorneys collectively treat our courts as their domain, their exclusive turf, and try to sabotage the efforts of those who cannot afford or refuse to pay for their services.
DETAILING THE FRAUD, DECEPTION and LIES
I. Memorandum Opinion
What you need to know about a memorandum opinion is that they reviews conducted by one Justice. Our Texas Constitution mandates a three (3) Justice panel review and rule on appeals. However; to expedite the movement of cases the Appellate courts will sometimes issue a Memorandum Opinion. A memorandum opinion is to be used only when the law is well-established. Although the names of three (3) Justices may appear on a memorandum opinion they are usually the result of a review by only one Justice. The name another two Justices may appear but they have not reviewed the case or have not read the memorandum opinion on which their name appears. They trust the lone Justice and so they turn a blind eye to the use of their name, and to the violation of the Texas Constitution's requirement a three (3) Justice Review of all cases brought before them.
It is virtually certain the State's appeal of the Final Judgment Heimlich secured in 2008 was reviewed only by Justice Pemberton and the memorandum opinion written by Justice Pemberton in 2008 was not read by the other two Justices whose name appears on it. Here is how we know;
II. Precedent Procedure Violated
By well established law is meant the question is one that has previously been ruled on by this appeals court on more than one occasion and the question has always be answered with the same conclusion. A precedent has, therefore, been well-established.
or more recent, stand as 'law' until and unless there is a change made
by a full panel review of that appellate court or the precedent becomes
over ruled by a higher court. When that happens the case that brought
about the reversal of the precedent is affected but all prior cases
stand and continue to be governed by the prior precedent.
An example would be the death penalty. The US Supreme Court ruled the death penalty unconstitutional in 1972. In 1977 the US Supreme Court reversed it's precedent and the death penalty was once again considered within the bounds of the Constitution. What the Court did not do was then go back and reverse the relief given to those who were awaiting execution in 1972, or allow those who had been convicted between 1972 and 1977 to be re-sentenced and given the death penalty. Even if the crime in 1976 was identical to a crime in 1978 the person guilty in 1976 was spared the death penalty while the person sentenced in 1976 was executed. The same is process of law holds in the civil venue.
A. The Precedent in 2003
On the question of whether or not a person exonerated on direct appeal, by a finding of legal insufficiency of the evidence, was entitled to compensation under the Wrongful Imprisonment Act as it stood between 2001 and 2008: the Opinion of 2003, in Heimlich v. State, established the precedent. The established law was set by the Third Court of Appeals in it's review of the Heimlich case in which the summary judgment granted the State was reversed with the Court finding that under the laws created by our Texas Legislature the State was liable and Heimlich had been given permission to sue the State for his damages. That was in 2003.
B. The Change in 2008
The Young case was filed several years later and was not ruled on until 2008. Young relied on the Heimlich as the precedent, the established law, as the Courts interpretation of the Statute. Young Opinion As with the death penalty example the ruling on Young in 2008 would affect Young, and cases thereafter. But as confirmed by the recorded conversation with Chief Justice Rose, and as any licensed attorney has a duty to know, the 3rd Court of Appeals could not [Lawfully and ethically] then use the ruling in Young to reverse the ruling, and mandate, the 3rd Court of Appeals rendered in the Heimlich case in 2003!
SIDE NOTE: I've learned I must insert lawfully and ethically because many presume that if a Judge, Justice, or other Attorney (Prosecutors, Asst. AG) employed at public expense does something unlawful or unethical, and get away with it, then it must be legal or ethical. Experience and observation prove they routinely violate the law and act with a total disregard for any ethics standards. They do it because they have learned they can get away with it. No one will hold them accountable or sanction them for it. They often even get promoted because of it. But for some reason the general public tends to think government employed attorneys are ethical and act within the boundaries of the law.
C. Pemberton pulls a fast one to punish the pro se
Only with a memorandum
opinion could Justice Pemberton slip this one by the other Justices
whose name he applied to his memorandum opinion. Once he had done so it
became a fait-acompli and the members of the court close ranks to allow
this fraud to stand without correction.
What might have been proper
and allowed by the Rules of Court would have been to rule as they did on
Young but dismiss the unlawful second appeal in the appeal by the State
of the Heimlich Final Judgment because the question of subject matter
jurisdiction (State liability and permission to sue the State) had been
previously established. This would have created a conflict that would
have then been taken up by the Texas Supreme Court to be resolved for
Young and future cases.
III. Perverse and
Deceptive Presentation of the Law
Pemberton's memorandum opinion concludes with a dismissal of Heimlich wrongful-imprisonment claim for lack of subject-matter jurisdiction. Those who are not familiar with legal procedure and legal terminology 'lack of subject-matter jurisdiction' means the Court is of the opinion the Texas Legislature did not give Heimlich permission to sue the State.
Court, as led by Pemberton writing both the Opinion in Young and the
memorandum opinion in Heimlich, came up with a novel and strange
interpretation of the wrongful imprisonment statute. But a person has to
read the Opinion in Young or they will be cleverly misled to an
incorrect conclusion from what they read in the memorandum opinion on
Heimlich's case. Here it is from Young:
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".
we must conclude that the legislature intended to provide a remedy solely to the wrongfully convicted who cannot [sic, did not], for whatever reason, obtain relief through available direct appeals.
HOWEVER: By hiding the forgoing in the Young opinion, and then having the only reference to the foregoing being the statement in the memorandum opinion that "Young controls here and, under its analysis, Heimlich's wrongful-imprisonment claim is barred by sovereign immunity, he is able to misled most who read it to think the dismissal was due to Pemberton's reversal of the acquittal of Heimlich established by the Court of Criminal Appeals in 1999!
The Conclusion of the Court
The Court concluded that if a person proves their innocence on direct appeal and are exonerated they are not entitled to compensation. Only those who fail to prove their innocence on direct appeal, and again by petition to the Court of Criminal Appeals, necessitating a Writ of Habeas Corpus before they finally obtain relief from the conviction (exoneration / acquittal) are entitled to bring a lawsuit upon the State for wrongful-imprisonment.
Pemberton drew this bizarre conclusion is from the history of the development of the compound phrase in our courts. 'actual innocence' found it's first usage when a Court of another State denied a Writ of Habeas Corpus brought by a person facing execution but for whom new evidence revealed actual innocence. The law of that State barred any review of any conviction that had been upheld on direct appeal. Thus began the development by US Supreme Court, and later the Courts of Texas, the establishment of a precedent that says all courts must be open to a Writ of Habeas Corpus if new evidence or a previously unaddressed Constitutional error reveals the probability of actual innocence. This opens an otherwise closed court to an new review that may result in a finding of innocence and, therefore, relief from the conviction. But it does not change the substance of innocence. An acquittal, also known as a finding of innocence, or not guilty, is identical, in substance, to actual innocence!
But the way this is phrased in Young, and in particular in Heimlich, the impression is given that the acquittal, the innocence, the exoneration or what might also be called “relief from the conviction for actual innocence” would be subject to a new review and even reversal with a new finding of guilt in a CIVIL case. A lawsuit brought by the exonerated, wrongfully imprisoned, person would subject them to re-conviction of the offense they had been exonerated of!
This is not permitted by our Texas
Constitution. Robert Pemberton, as an Attorney and as a Justice in our
Texas Court of Appeals has a duty to know the Constitutional and
Statutory limits of his authority. Or what is otherwise known as
'jurisdiction' of the court. He had no jurisdiction, no authority, under
our Texas Constitution and Statutory Law to rule on Heimlich, or Young's,
innocence or, if you prefer, their actual innocence.
Constitution prohibits the Court from reversing an exoneration
in a criminal case in
response to the exonerated bringing a civil case
Article 5, Section 5, of our Texas Constitution titled Jurisdiction of Court of Criminal Appeals.
The Court of Criminal Appeals shall have final appellate jurisdiction and its determinations shall be final in all criminal cases. That's the Law of our Texas Constitution. And in our Code of Criminal Procedure, Article 4.04, Section 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases and its determinations shall be final.
and the limit on jurisdiction of
our Courts in Civil Cases;
Sec. 3. JURISDICTION OF SUPREME COURT; WRITS; CLERK. (a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.
Now you should clearly see that (1) Justice Pemberton and the Court only ruled that, under their 'interpretation' the Legislature did not give permission to sue to those who were exonerated on direct appeal, rather than later; and, (2) Justice Pemberton, and the Third Court of Appeals, did not have jurisdiction (authority) to rule on Heimlich innocence, or his actual innocence in the Civil Case Heimlich brought. But take a look at how Pemberton presents this in his memorandum opinion to deceive the reader and prejudice them against Heimlich.
Words phrased to deceive and misrepresent
I am now going to provide you with the memorandum opinion. But I am going to show when Justice Pemberton misrepresents the facts, misrepresents the law, or manipulates words to mislead those who read what he writes so that they will draw conclusion that equates to a misrepresentation of the facts and the law. His words are italicized.
1. First he misrepresents the case brought by Heimlich
Virtually all of the damages were based on claims Heimlich had asserted under Texas's wrongful imprisonment statute, chapter 103 of the civil practice and remedies code.
Correct presentation of facts:
Virtually all of the damages were confined by the Third Court of Appeals in it's 2003 review of Heimlich's claim to those allowed by the Texas Legislature in it's wrongful imprisonment act of 2001, codified in chapter 103 of the Texas civil practice and remedies code. Here is a link to the Opinion of 2003 & the Mandate (non reversible) that followed. There you will find the Third Court of Appeals wrote as follows:
Heimlich sued for compensation under constitutional and statutory provisions. He cited several constitutional provisions that he claimed were violated. See Tex. Const. Art. I, § § ,2,3,9,10,16,17-19,28, &30(2), art. § 51-c.
Heimlich based his chapter 103 claim on his imprisonment pending his appeal of a theft conviction in which he ultimately obtained a reversal on legal-insufficiency grounds.
Heimlich's imprisonment was found to be wrongful when he obtained relief from the conviction with an acquittal on direct appeal. In substance there is no difference between relief from conviction by a pardon for innocence from an appellate court on direct appeal and relief from conviction obtained when a showing of actual innocence allows a writ of habeas corpus to open the criminal courts of Texas for an otherwise barred review of a closed case.
he presents the conclusion in a way certain to result in
an impression that is equal to a misrepresentation
The State has appealed the judgment, contending that Heimlich's claims are barred by sovereign immunity. 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.
By acts of the Texas Legislature permission to bring a lawsuit upon the State of Texas was granted to those who have been wrongfully imprisoned by the State. In Young we devised a technical definition of the phrase actual innocence to be used in claims upon the State of Texas brought by subchapter C of chapter 103 - Filing of Suit. That technical definition of the compound word phrase, actual innocence, those who were exonerated on direct appeal are barred from compensation from the State for the wrongful imprisonment they suffered and any property loss caused by the State of Texas. To protect the public fisc the Texas Legislature and the Texas Courts cannot allow the State to be sued in the Courts of Texas for violations of the Texas Bill of Rights that result in wrongful imprisonment and private property being taken, damaged, or destroyed by the government of Texas.
3. He misrepresents the background facts
The circumstances giving rise to this appeal are summarized in Heimlich v. State, 988 S.W2d 382 (Tex App-Houston [14th Dist 1999, pet denied), and Heimlich State, 107 S 3d 643 (Tex. App.-Austin 2003, no pet). Heimlich, a licensed real estate broker, was charged with felony theft in connection with a dispute with an associated real estate salesperson involving a $5,050 commission check. The salesperson received the commission check for funds owed to him.
NOTE: Pemberton gives recognition to the two prior Final Judgments on the case, or what is also known as 'the law of the case'. But he then proceeds to misrepresent the facts and the law that has already been established in the public record and in these prior judgments. I believe he cleverly assumes that if he gives recognition to these case others will not bother to refer to them for verification. Thus his misrepresentation will go unnoticed.
The circumstances giving rise to this appeal are well established in the public record. Heimlich, a licensed real estate broker, was owed fees from a real estate agent licensed under Heimlich's sponsorship and by contract with Heimlich. Concerned that the agent was trying to avoid paying Heimlich for his services Heimlich exercised his right secured by the common law of the Uniform Commercial Code and in the Texas Business and Commerce code to ask his bank to withhold payment on a post-dated check he had given his agent. In response the agent went a prosecutor for the State and induced the prosecutor to commit a theft of $5,050 from Heimlich's bank account.
4. Pemberton misrepresents the Law and
for the criminal court finding of Heimlich's actual innocence
However, the commission check was made payable to Heimlich because he was the salesperson's sponsoring broker. Heimlich, 988 S.W.2d at 382-83 & n.3. The salesperson allegedly was induced by Heimlich to surrender the commission check to Heimlich in exchange for a post-dated check from Heimlich paying the salesperson the commission amount. Heimlich later issued an order to stop payment on the post-dated check he had written and given to the salesperson.
The commission check was made payable to Heimlich because Heimlich is the owner of the commission. A Broker, pursuant to Texas Law known as the Texas Real Estate Licensing Act, and pursuant to the standard industry contract between a Broker and the agents that ask them for Broker Sponsorship & Services, is the owner of all commission revenue of the Brokerage owned by the Broker. In this case, Heimlich as Broker Owner. Heimlich gave the agent a post dated, payable to the agent because the agent picked up the check payable to Heimlich and used his unlawful possession of it to induce Heimlich into allowing the agent to deposit the check payable to Heimlich, into Heimlich's bank account. The agent then used this post-dated check to claim ownership of the funds that only Heimlich, by law, had ownership of and title to.
Quoting the direct appeal through which Heimlich obtained relief from the conviction with a finding of actual innocence, Pemberton writes;
"Heimlich remained the only person with a legal ownership interest in the thing of value the check signified - the order to pay $5,050". It acknowledged that "obviously, Heimlich could have appropriated the money by gaining possession of the commission funds, using them from his own personal use, and refusing to tender payment to the complainant in the amount and at the time called from in their contract". "the majority observed that "the complainant's swift action may have been the factor that kept Heimlich from committing the alleged crime".
The State tried to excuse their unlawful taking of Heimlich's property, a taking that made it impossible for payment to the agent to come due. The State prosecutor did so by asserting that if not for the State's swift action of taking the property a theft by either the Broker or the Agent may have occurred in the future. The majority acknowledged this theory of the State as absurd. If the Broker had not paid the agent or the Agent had not paid the agent for his services, the would not have been any crime. There would be a breach of contract, or a contract dispute, that the parties could resolve in a lawsuit filed in the civil courts.