Medellin, Ex Parte Jose Ernesto

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.

AP-75,207

EX PARTE JOSE ERNESTO MEDELLIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO.

675430 FROM THE 339 TH DISTRICT COURT

OF

HARRIS COUNTY

Cochran , J., filed a concurring

opinion, in which Johnson , and

Holcomb , JJ., joined .

O

P I N I O N

I join all of the Court = s opinion except for Section IIIB

dealing with the Presidential Memorandum.

I am unable to conclude that a memorandum from the President to his

Attorney General constitutes the enactment of federal law that is binding on

all state courts. This memorandum,

discussing compliance with the decision of the International Court of Justice

in Avena, looks much more like a memo than a law. The Solicitor General, in his amicus brief,

has attached a copy of the President = s memo, entitled A Memorandum for the Attorney

General[,] @ as well as a copy of a letter

written by Attorney General Alberto R. Gonzales to The Honorable Greg Abbott,

the Attorney General of the State of Texas, discussing that memo. We normally do not consider documents that

are attached to briefs for the truth of the matters contained within them. [1] But of course this Court may always take

judicial notice of laws because laws are printed and promulgated in official

government volumes and are readily available to any interested member of the

public. [2]

Presidential proclamations and

Executive orders, except those which do not have general applicability and

legal effect or are effective only against federal agencies, are drafted,

reviewed, and promulgated in a specific manner and then published in the

Federal Register. [3] This memo is not written in the manner

prescribed for Presidential Proclamations or Executive Orders. It is written in a private memo style. I am unable to find a copy of this memo

published in the Federal Register. In

fact, the only public publication of this memo that I can find is on the White

House Press Release Internet website. [4] I cannot accept the proposition that binding

federal law, either through Congressional enactment or Executive Order, can be

accomplished through a Presidential press release of a private memorandum

directed to the Attorney General. Thus,

I cannot accept the premise that the President = s memo to his Attorney General is

federal law that could supercede and obviate a clear and explicit Texas

statute. [5] Thus, I find it unnecessary to undertake a

separation of powers analysis as does the majority.

Filed: November 15, 2006

Publish

[1]

See Ex parte Simpson , 136 S.W.3d 660, 668 (Tex. Crim. App. 2004) ( A There is no provision in article 11.071

that permits either the State or the habeas applicant to submit original

evidence directly to this Court.

Evidentiary affidavits, letters, transcripts, or other documents relating

to a habeas claim should not be attached to motions or briefs, and they shall

not, and will not, be considered by this Court. @ )

Surety Ins. Co. of Cal. v. State , 556 S.W.2d 329, 331 (Tex. Crim. App. 1977)

(exhibits attached to a brief cannot be considered A as

these papers are not part of the official record @ );

Ex parte Schoen , 460 S.W.2d 923, 925

(Tex. Crim. App. 1970) (supporting papers pertaining to an extradition

cause, attached to a document in the appellate record, are not properly before

the court because they were not introduced during the habeas proceeding).

[2] See Plaster v. State , 567 S.W.2d 500,

502 (Tex. Crim. App. 1978); Mosqueda v. Albright Transfer & Storage Co. ,

320 S.W.2d 867, 876 (Tex. Civ. App. B Fort

Worth 1959, writ ref = d

n.r.e.) (op. on reh = g). In Mosqueda , the court of civil

appeals suggested that Texas courts

must take judicial notice of the laws

of the United States, including all the public acts and resolutions of Congress

and proclamations of the president thereunder. Administrative rules adopted by

boards, departments, and commissions pursuant to federal statutes are also matters

of judicial knowledge. When such

regulations are published in the Federal Register a federal statute provides

that their contents shall be judicially noticed.

Id. (quoting Roy R. Ray & William F. Young, Jr., Texas

Law of Evidence Civil and Criminal '

172 (2d ed. 1956)).

[3]

See generally 44 U.S.C. '

1505(a)(1) ( A Documents

having general applicability and legal effect means any document issued under

proper authority prescribing a penalty or course of conduct, conferring a

right, privilege, authority, or immunity, or imposing an obligation, and

relevant or applicable to the general public, members of a class, or persons in

a locality, as distinguished from named individuals or organizations . . . @ ).

The Presidential Executive Order of September 9, 1987, stipulates the

manner in which proposed Executive orders and proclamations are to be prepared,

printed, and published: these

requirements include:

(g) Proclamations issued by the

President shall conclude with the following described recitation-- A IN WITNESS WHEREOF, I have hereunto set

my hand this -------- day of -------, in the year of our lord --------, and of

the Independence of the United States of America, the --------.

. . .

Sec. 2. Routing and approval of

drafts.

(a) A proposed Executive order or

proclamation shall first be submitted, with seven copies thereof, to the

Director of the Office of Management and Budget, together with a letter, signed

by the head or other properly authorized officer of the originating Federal

agency, explaining the nature, purpose, background, and effect of the proposed

Executive order or proclamation and its relationship, if any, to pertinent laws

and other Executive orders or proclamations.(b) If the Director of the Office

of Management and Budget approves the proposed Executive order or proclamation,

he shall transmit it to the Attorney General for his consideration as to both

form and legality.. . . Sec. 3. Routing and certification of originals and

copies. (a) If the order or proclamation is signed by the President, the

original and two copies thereof shall be forwarded to the Director of the

Office of the Federal Register for publication in the Federal Register.(b) The

Office of the Federal Register shall cause to be placed upon the copies of all

Executive orders and proclamations forwarded as provided in subsection (a) of

this section the following notation, to be signed by the Director or by some

person authorized by him to sign such notation:

A Certified

to be a true copy of the original. @

[4]

http://www.whitehouse.gov/news/releases/2005/02/20050228‑18.html.

[5]

Ironically, the very law that the President = s

memo would supercede, article 11.071 of the Texas Code of Criminal Procedure,

is a legislative enactment that the President, while Governor of the State of

Texas, signed into law on June 7, 1995. See

A The Habeas Corpus Reform Act, @ 74 th Leg., R.S., ch.319, ' 1, 1995 Tex. Gen. Laws 2764 .