Leal, Humberto Jr.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-41,743-03 EX PARTE HUMBERTO LEAL, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 1994-CR-4696-W3 IN THE 186TH DISTRICT COURT BEXAR COUNTY Price, J., filed a concurring statement in which Johnson and Alcala, JJ., joined. CONCURRING STATEMENT There is no dispute that allowing the applicant's execution to go forward without first affording him a hearing in satisfaction of the International Court of Justice's judgment in the Avena case, (1) would violate the United States's treaty obligations under the Vienna Convention on Consular Relations, (2) the Optional Protocol, (3) and Article 94 of the United Nations Charter (4)--obligations that are binding on Texas by way of the Supremacy Clause of the United States Constitution. (5) The United States Supreme Court has acknowledged as much, while holding that the various treaty provisions that bind the United States to comply with an ICJ decision are not self-executing, and thus require legislation for their implementation. (6) To date, no such legislation has passed. Lamentably, the applicant finds himself in possession of an apparent right under international law without an actual remedy under domestic law. (7) To satisfy the requirements of Article 11.071, Section 5(a)(1), (8) justifying a subsequent application for writ of habeas corpus and a stay of execution, the applicant invokes proposed legislation that was introduced two weeks ago in Congress that would obligate the federal courts (but not state courts) to conduct the kind of hearing that the Avena case mandates before he may be executed consistent with our treaty obligations. Though this is apparently the third time implementing legislation has been introduced in Congress, the applicant's experts assure us that the current bill enjoys widespread bipartisan support as well as the support of the Executive Branch. Even so, the legislative process being what it is, the bill is not likely to pass until the end of this calendar year at the earliest. I agree with the Court that pending legislation constitutes neither new law nor new facts--at least not new facts entitling the applicant to relief--in contemplation of Article 11.071, Section 5(a)(1). The applicant asks us, alternatively, to treat his application as an original writ application, unhindered by the restraints of Article 11.071. But the application seeks relief from a capital conviction and/or punishment, and it is my understanding that "Article 11.071 presently provides the exclusive procedure for the exercise of this Court's original habeas jurisdiction when the applicant seeks relief from a judgment imposing a penalty of death." (9) Nor does the nascent legislation create a compelling enough reason to reopen the applicant's initial writ application, as we did in Ex parte Moreno. (10) In my view, the applicant currently lacks a basis for a remedy in our state courts in Texas. This does not mean he lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. (11) And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant's execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant's right under international law. (12) By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass. (13) In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do. (14) With these comments, I regretfully concur in the Court's order. FILED: June 27, 2011 DO NOT PUBLISH 1. Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31). 2. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. 3. Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 18, 1961, Art.I, 21 U.S.T. 326, T.I.A.S. No. 6820. 4. U. N. Charter art. 94, para. 1. 5. U. S. Const. art. VI, cl. 2. 6. 552 U.S. 491 (2008). 7. See Medellin v. Texas, 554 U.S. 759, 763-64 (2008) (Breyer, J., dissenting) (observing that, in earlier Medellin opinion, "this Court, while recognizing that the United States was bound by treaty to follow the ICJ's determination as a matter of international law, held that that determination did not automatically bind the courts of the United States as a matter of domestic law."). 8. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). 9. Ex parte Alba, 256 S.W.3d 682, 698 (Tex. Crim. App. 2008) (Price, J., dissenting). 10. 245 S.W.3d 419, 428-29 (Tex. Crim. App. 2008). 11. Tex. Const. art. 4, § 11. 12. Id. 13. Id. 14. See Medellin v. Texas, supra, at 536 (Stevens, J., concurring) ("One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas' duty in this respect is all the greater since it was Texas that--by failing to provide consular notice in accordance with the Vienna Convention--ensnared the United States in the current controversy.").