# Medellin, Ex Parte Jose Ernesto > Court of Criminal Appeals of Texas · November 15, 2006 URL: https://www.frixlaw.com/law-library/cases/2937303 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 15, 2006 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2937303 ## Opinion text 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 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2937303. Public record. Not legal advice.