Medellin, Ex Parte Jose Ernesto

Opinion

   IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                NO. AP-75,207

                              EX PARTE JOSÉ ERNESTO MEDELLÍN, Applicant

                          ON APPLICATION FOR A WRIT OF HABEAS CORPUS

                        CAUSE NO. 675430 FROM THE 339^TH DISTRICT COURT

                                                          OF HARRIS COUNTY

Price, J., filed a concurring opinion.

                                                      CONCURRING OPINION

I agree with the majority=s analysis and rationale, and, therefore, join the majority.  Nevertheless, I write separately to advise law enforcement of this State to honor the provisions of Article 36 of the Vienna Convention and apprise foreign nationals of their rights under the treaty.

A key issue, however, is the question of whether Article 36 of the Vienna Convention even confers individual rights upon detained foreign nationals.  I believe it does.  Pertinent language of the treaty states Aif [the detained foreign national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post . . . .@^[1]  Since a foreign national may request that the consular official be notified, it is quite logical to conclude that it is the foreign national=s personal decision to make whether the consulate is or is not notified.  This decision is not left to public or diplomatic officials; rather, the detainee is to decide.  Furthermore, the treaty explicitly directs a consular officer to desist in aiding a detained national if that is the national=s desire.^[2]  This language provides additional support for the position that Article 36 creates individual rights for the signatory-nation=s citizenry.  It is apparent that the power of choice is left to the foreign national.  Though the United States Supreme Court has not directly ruled on this issue, a strong voice on that Court favors the position that individual rights are conferred by the Vienna Convention.^[3]

Article 36 of the Vienna Convention provides foreign nationals the option to invoke their right of access and communication with the consular officer.^[4]  Without being aware of this option, the vast majority of nationals arrested will almost certainly fail to invoke this right and succumb to our procedural default rules.  Since I agree with the majority=s application of procedural default to Article 36, I find it all the more imperative for a foreign national in the custody of law enforcement in this State to be informed of his treaty rights.  Unless he is informed of what his rights are under the Vienna Convention, those rights will be of no use to him.  One must be aware of these rights before one can properly exercise them.  Not only is it imperative as a practical matter, Article 36 compels it.^[5]

So long as the United States recognizes the Vienna Convention on Consular Relations, this State and all law enforcement that fall within its boundaries are required to faithfully comply with the Convention=s agreed-upon provisions.^[6]  The fact that this State borders a foreign nation only amplifies the need for authorities to be well-versed in the language of Article 36.  I believe this does not create an undue burden on law enforcement, but brings to light an obligation that must be fulfilled in the same manner we all hope is reciprocated by other nations whose detained nationals might be United States citizens.  With these additional comments, I respectfully join the majority.

Filed     November 15, 2006

Publish

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^[1]

 Vienna Convention on Consular Relations and Optional Protocol on Disputes (AVienna Convention@) art. 36(1)(b), done April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.

^[2]

 Id. at art. 36(1)(c).

^[3]

 See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2688 (2006) (Ginsberg, J., concurring) (agreeing with the dissent of Justice Breyer, Justice Stevens and Justice Souter that the Vienna Convention Agrants rights that may be invoked by an individual in a judicial proceeding@).  Since the Court decided the case on procedural default grounds, the majority in Sanchez-Llamas assumed, without deciding, that the treaty grants individual rights.  Id. at 2674.

^[4]

 Vienna Convention art. 36(1), supra fn. 1.

^[5]

 See Vienna Convention art. 36(1)(b), supra fn. 1 (AThe said authorities shall inform the person concerned without delay of his rights under this sub-paragraph[.]@).

^[6]

 U.S. Const. art. VI, cl. 2.