State Removal Notice

8/6/2019 State Removal Notice

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

RAIS BHUIYAN,

Plaintiff,

v.

RICK PERRY, Governor, State Civil Action No. 1:11-CV-

of Texas; BRAD LIVINGSTON, Executive Director, Texas Department

of Criminal Justice; ANGIE McCOWN,

Director, TDCJ Victim Services Division;

RISSIE OWENS, Member Texas Board

of Pardons and Paroles,

Defendants.

NOTICE OF REMOVAL1

NOW COME Defendants Brad Livingston, Angie McCown and Riss

and remove Cause No. D-1-GN-11-002118 from the District Court of Travi

Texas, to the United States District Court for the Western District of Texa

Division, pursuant to 28 U.S.C. 1441 and 1446.

1. On or about July 13, 2011, Plaintiff filed a petition seeking

relief against Defendants in Travis County District Court, Cause No. D-1-GN-1

2. Defendants have attached Attachment 1, which is incorporated

reference, all state-court pleadings, processes, and orders filed in Cause No. D-

002118 as required by 28 U.S.C. 1446(a), 1447(b) and 1449.

3. All served Defendants have consented to removal.

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5. Plaintiff demands relief for the alleged failure of Defendants to p

him notice of his rights and the opportunity to mediate with Mark Stroman

sc

to be executed on July 20, 2011 as a crime victim pursuant to TEX.CONST. Ar

and TEX.CODE CRIM.P. Arts. 56.02 and 56.13.

6. Among others claims based on federal law, Plaintiff asserts, th

U.S.C. 1983, substantial and disputed questions of federal law, including

limited to a violation of his First Amendment rights to free exercise of religion

14, 19) and freedom of association (Att. 1 at 20); violation of his due-process a

protection rights under the Fifth and Fourteenth Amendments (Att. 1 at 22); cla

the Eighth, Ninth and Tenth Amendments (Att. 1 at 23-24); and a claim to be fr

bill of attainder. (Att. 1 at 21)

7. Removal is proper in this case because:

a. This is an action in which the district court has original ju

founded on a claim or right arising under the Constitution, treaties or laws of t

States. 28 U.S.C. 1331. A district court has removal jurisdiction in any case

has original jurisdiction. 28 U.S.C. 1441(a). Gutierrez v. Flores, 543 F.3d 24

Cir. 2008). A federal question exists if there appears on the face of the compl

substantial, disputed question of federal law. Carpenter v. Wichita Falls In

Dist., 44 F.3d 362, 366 (5th

Cir. 1995).

b. Notice of removal must be filed within 30 days of rec



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Defendants received notice of Cause No. D-1-GN-11-002118 on or about July

Removal is therefore timely.

c. A case may be removed to a federal district and div

encompasses the state court where the matter was pending. 28 U.S.C. 144

Court is proper venue for removal because civil action No. D-1-GN-11-002118

and remains pending in the Travis County District Court.

WHEREFORE, Defendants remove this action from the Travis Count

Court to the United States District Court for the Western District of Texa

Division, pursuant to 28 U.S.C. 1441 and 1446.

Respectfully submitted,

GREG ABBOTTAttorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

BILL COBB

Deputy Attorney General for Civil

DAVID C. MATTAX

Director of Defense Litigation

DAVID A. TALBOT, JR.

Assistant Attorney GeneralChief, Law Enforcement Defense D



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P.O. Box 12548

Austin TX 78711-2548

(512) 463-2080/Fax (512) [email protected]

ATTORNEYS FOR DEFENDAN

NOTICE OF ELECTRONIC FILING

I, ALLAN K. COOK, Assistant General of Texas, do hereby certify th

electronically submitted a true and correct copy of the foregoing for filing in a

with the Electronic Case Files System of the Western District of Texas, on July

/s/ Allan K. Cook

ALLAN K. COOK

Assistant Attorney General

CERTIFICATE OF SERVICE

I, ALLAN K. COOK, Assistant Attorney General of Texas, certify t

and correct copy of the foregoing in addition to being served by electronic fil

was mailed, faxed to (713) 886-3811 and e-mailed to [email protected] on

2011:

Khurrum Wahid

Wahid Vizcaino LLP

6221 W. Atlantic Blvd.Margate FL 33063

Danalynn Recer

The Gulf Region Advocacy Center2307 Union St.



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FiledII July 13 P6:30Amalla Rodrlgu ez-M endoDIstii CledcTravis DistrictD-1-GN-11-002118IN THEl)ISTRICT COURT OFTRAViS CO UN TY , TEXAS

Trial Court Cause No.

RAIS BH UIY AN,Plainti ft

V.

RICK PE RR Y, GO VE RNO R,State Of Texas,BRAD LIViNGSTON, EX EC UT IVE DIRE CTO RTe xas DepartmentOfCrim inal Justice,ANG IE McCOWN, DIRECTORTDCJ Victim Service s DivisionRISS IE L. OWENS, Memb erTexas Board of Pardon s and Paroles

Defe ndan ts.

TO TH E HONORABLE DISTR ICT COURT IN AND FOR TR AV IS CO UN TY:COMPLAINT

PLA INTIFF files the following complaint, seeking in junctive rel ief and suchother equitable relief as the Court deems fit and just.

PARTIES1. The Plaintiff in this act ion is Rais Bhuiy an, who is a com petent adult citizen

of the United Sta tes and residen t of Dallas County, Texas.2. The Defendants in this ac tion are:

a. Rick Perry, Governo r, the State of Texas, who is an adult citizen of theUnited States and , for pu rposes of this litigation, is legally present inTravis Coun ty, Texas;

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b. Brad Living ston , the exe cutive director of the Texas Departm ent ofCriminal Justice (TDCJ), who is an adult citizen of the United Statesand, for purposes of this litigation, is legally present in Travis County,Texa s.

c. Angie McCown, Dir ecto r of t he V ictim Services Division of the TexasDepartm ent of Criminal Jus tice (TDCJ), who is an adult citizen of theUnited States and, for purp oses of this litigation, is legally prcscn t inTravis County, Texas.

d. Rissie L. Owens is a membe r of the Texas Board of Pa rdons andParole s, and is the perso n to whom subm issions are made forclem ency . She is assigned to Huntsville but , for purp oses of thislitigation , is legally present in Travis County, Texas .

3. All Defendan ts are sue d in their official capacities.JURISDICTION, VENUE, JURY TRIAL

4. Jurisdiction is appro priate purs uan t to Tex . Civ. P. & R. Code Tit. 5, Sec. 8.5. Venue is appropriate in Travis County , Texas, because the defendants are

lega lly situated there . Tex. Civ . P. & R. Code Tit. 5, Sec . 15.002.6. When it becomes procedurally necessary , Plaintiff notes that he intends to

assert his right to trial by jury. Tex. Const. Art. 1, 15; Tex. Civ. P. & R. Code Tit.5, Sec. 10.

STATEMENT OF MATERIAL FACTS7. The fo llow ing are the materials facts relev ant to Plaintiffs com plaint:

1. PLAINTIFFS DESIRE TO ENGAGE IN MEDIATIONAND RECONCILIATION8. Plaintiff is a United States citizen who is Muslim. His family come from

Bangla desh .

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9. While working in a Dallas convenience sto re in Septembcr 2001, Plainttfwas shot in the eye by Mark Str ,nan. Mr. Strman shot three people in threedifferen t inc idents in the wake of his siste rs deat h in the World Trade Center attacks.lie is currently scheduled to be executed on July 20, 2011 for capital murder.Plaintiff wishes to seek reconciliation with Mark Strman, and to pu rsue fullmediation wi th him.

10. Plaintiff fee ls thi s way because his parents ra ised him with there ligious pr inciple that he is best who can forgive easily. He believes, as a Muslim,tha t human life is precious and that no one has the righ t to take anothers life.

II. Plaintiff also see ks solace for the widows and children of murdervictim s Vasudev Pate l and Waqar Flasan, who are als o vic tims in this tragedy, andwho support Plaintiff in his efforts to seek reconciliation.

12. Plaintiff is strongly motivated by his religious be liefs. Forgiveness is along standing mechanism within many faith s, Islam being one of them, towards thehealing of the soul. As a Muslim, Plaintiff is of the belief that when he forgives orpromotes me rcy fo r his attacke r, the governme nt sho uld no longer have a du ty or arig ht to exact the ultimate punishment upo n Mr. Stroman.

13. Plaintiff understands that while he does not properly understand whyhe did what he did, Mark Strman recognizes tha t his actions were profoundly wrongand had a ter rible impact upon Plaintiff, as well as the families of Mr. Pa tel and Mr.1-lasan. Plaintiff understan ds tha t Mark Str rnan is very rem orsefu l for taking twolives, almost taking a third, and for the pain and suffering that he has caused.

2. PLAINTIFFS DESIRE FOR MEDIATION ANDRECONCILIATION14. Plaintiff stro ngly desires mediation and reconciliation, and has fo r a

long time.

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15. Plaintif f has neve r been informed of his right to such mediation by theState of Texas.

16. Plaint iff has not otherwise been shown the respect that is mandated bythe Texas Victims Bill of Rights.

17. Plaintif f was not given rneaningftil mental health assistance by theState of Texas to work through the terrible trauma that he suffe red during the crime.

18. Plain tiff was not informed by the State of Texas of his right to testifyto what he truly believed at trial, but was rather told he could only ask the questionsthat he was asked.

19. Plain tiff has not been accorded any of the rights that should, by law, behis inhis role asavictim.

20. Plaintiff is a victim. As such, he did not want to rush into a publicspo tligh t Had he only known his rights, he would have been quietly pressing for hisrights for a long time. There are various reasons why this was not possible.21. First , neither the TDCJ nor any other Texas official told him about hisright to mediation.

22. Second, he understood tha t it was not permissible for him to contactMark Strman and not permissible for Mark to contact him.

23. Only when he learned that an execution date had been se t for MarkStrman did it become clear that he had to act. He made clear in public his oppositionto executing Mark Strman a step he took after considerable thought, as he knew itwould cause him to relive a great deal of pain.

24. Only when he began to make his feelings known in public did he learnthat his rights as a victim had been ignored or trodden on for the past nine and a halfyears.

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25. Pl aint iff understands that Mark StrOman had also previously beeninformed by officials of the TDCJ that he could not Contact Plaintiff and the oiliervictims.

26. Pl aint iff understands, to a certain degree , why Mark StrOman acted ashe did. However, to a greater extent Plaintiff lacks understanding , and is looking forthese answers. lie anticipates that a full mediation and reconciliation process withMark will help him to reach this better understanding.

27. Plaintiff also understands to a certain exten t where Mark Strmanobtained the racist beliefs that partially drove him in 2001 now that he had seenevidence of Mark StrOmans terrible childhood and background. Plaintiff understandsthat Mark Stroman has, to a certain ex tent, been able to rehabilitate himself evenwhile on death row. Plainti ff is glad that this has been the case. However, Plaintiffunderstands that Mark Strman has a long way to go before he will properlyunderstand the reasons why he acted in the way he did, and fuily comprehend thetragedy of the racial beliefs that lie inherited from his stepfather.

28. Plaintiffs own ability to reach a cathartic point in his own recoverydepends very much on his being able to make full efforts to help Mark StrOman toreach his full potential, and to overcome the very negative lessons that he was tau ghtas a child.

29. This will inevitably be a process tha t will take time.3. PLAINTIFFS DEMAND FOR THE BENEFif OF THETDCJ MEDIATION PROCEDURES

30. Plaintiff did not know of his righ ts because no Texas official hadinfotmed him.

31. Mark Strman had been informed by Texas officials that it would be avioLation of TDCJ rules for him to contact Plaintiff. Only the dire straits of Mark

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enhance their chances fi,r parole approval. Through VOM/D, the victim mayreceive answers to ques tions , which may faci litate his /her healing and recovery .It provides offende rs the oppor tunity to take respons ib ili ty for their actions andto be accountable for the pain and su ffe ring (hose actions have caused.

See Texas Department of Criminal Justice, htLp ://www, tclci .sla(e.tx.us /vi ct i rn/victimvonij.htm.

37. The frequent ly asked questions on the TDCJ website include thefollowing queries and their answers:

When will the mediation take place?Every case is unique and the preparation process varies in length for each case .However , the prepa ratio n usually lasts between 4 and 6 months from the time amediator is ass igned to the case, and the actual mediation day.How long before a mediator is assigned to the case?There is a waiting list of individuals requesti ng media tion and many variablesaffect the length of waiting time. Meetin g with an offender is a very importan tstep, and the VOMD staff will make eve ry effort to begin each case as soon aspossible .Does the offender have to agree to mediation?Offender pa rticipatio n in VOMD is voluntary , but many offenders agree topartic ipa te . An offe nde r may decline further participation at any time prior toand inclu ding the day of the mediation. If the offender chooses not topa rti cip ate, other options are available in the med iatio n prog ram.Is it permissible to write or visit the offender prior to the mediation?Corresponding/visiting with the offender prior to mediation is highlydiscouraged during the med iatio n preparation process , as there is a chance of revictimization. Any correspondence with the offender prior to or after themed iatio n is required to go through the VOMD office.Can a support person come to the mediation session?This is something that will be discussed with the mediator and the VOMDProgram Superviso r. Victims are encouraged to have a support person in awaiting area of the prison du ring the mediation. Breaks will be taken as of ten asneeded during the meeting.




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See http://www.tdcj.state.tx.us/fag/fag-victim-vomd.htm. What this means, of course,is tha t it takes four to six months to ini tiate the process.

38. Mark StrOman cou ld not put Plaintiff on his visitation list, becauseoffenders are forbidden from adding their victims to the ir visitation lists.

39. The TDCJ has estab lished a rule tha t violent prisoners cart only eng agein mediation with the victim after the ir legal challenges to the ir conviction andsentence are concluded . This means in effect that capital defe ndants and their victims(or the famil ies of the deceased victims) the instance s where reconciliation wouldbear the greatest benefits can effe ctively not benefit from the rights under the law.

40. While in theory a victim could go through the ir offices victim -offender mediation /dialogue pro gram to meet with Mark Stroman, Plain tiff know s ofno occasion when this has been done with death ttw inm ates, however, bec ause theTDCJ policy is not to allow victim-of fender mediation /dialogue so long as theoffenders case is on appeal, and death row offenders cases are always on appea l.

41. In addition to the offe nder, bo th the offenders attorney and the AGwould have to consent to the dialogue . Even if PlaintifI Mark StrOman and Mr.Strmans attorney all consented , the Attorney General cart block the process withoutgiving public rea sons.

4. TDCJ DEFENDANTS 1JTERLY INEQUITABLEMANIPULATION 01? THE PROCESS42. If the process cannot begin until appe als the off ende rs case are

conc lude d, that means it is not possi ble for the mediation to begin in Petitioners caseuntil (at th e earliest ) roughly four months after the den ial of certiorari in Peti tioners

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case which took place on June 27 , 2011. Sfro nian v. TIwler, 2011 WI. 1324467(Julie 27, 201 1).

43. At the same tim e, it was the State of Te xas that set Mr. Strom an sexecution date for July 20, 2011. Thus, no ma tter what side one looks a this from,the State of Texas is trying to render nugutory the righ t to me diation.

REQUEST FOR INJUNCTIVE RELIEF44. Plaintiff seeks in junctive relief pursuan t to Te x. Civ. P. & R. Code Tit.

5, Sec. 106.002, Sec. 110.005 and other stat e statutes permitting such relief .45 . Defendant inte nds to exe cute Mark St rnian on July 20, 2011, at wh ich

time Defendant will ha ve rendered it im possible to repair the damage cau sed byD efe nda nts actions.

46. The on ly way to all ow for a m eaning ful re solution of this litigation isby preserving the status qua, and enjoining the Defendant from fur the r violatingPlaintiffs legal rights. Im m ediate injunctive relief is the refore ap prop riate.

CLAIMS FOR RELIEF47 . Plaintiff asserts the following claims fo r relief.DEFENDANTS HAVE VIOLATED THE LAW AND THEIR OWNREGULATIONS IN REFUSING TO ALLOW MEANINGFULMEDIATION BETWEEN PLAINTIFF (E VICTIM) AN D THE MANWHO SHOT HIM48. Plaintiff inco rp or ate s he re in all the allegations in this co mplaint that

both pr eced e and follow.49 . As a vic tim under Texas law, Plaintiff has a nu m be r of clear legal

rights :

1 Indeed, if Mr. Strtm an (reasonably enough) files additionaL challenge s to his conv ictio n andsen tence as has apparently happened the TDCJ rules do not even allow the process tobegin then.

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In Texas, victims of crime have the Crime Victims Bill of Rights, crea tedby the legisla ture in 1985. It has been amended and expanded during thepas t twenty years, and explic itly lists remedies and redress options that av ictim , guardian of a victim, or close relative of a deceased victim isentitled to ... within the criminal justice system . Of th e thirteen numberedrights, the twelfth is the right to request victim -offender mediati oncoordinated by the victim services division of the Texas Department ofCriminal Justice. This portion of the statute was not enacted until the77th legisla tiv e session in 2001 .

Patrick Drake, Victim -Offender Mediation j Texas: When Eye for Eye BecomesEye to Eye, 47 S. Tex. L. Rev. 647 (2006) (footnotes omitted).

50. The relevan t statute reads as follows:Art. 56.02. CRIME VICTIMS RIGHTS. (a) A victim , guardian of a victim , orclose re lative of a deceased victim is entit led to the following rights within thecriminal justice system:(1) the right to receive from law enforcement agencies adequate protectionfrom harm and threats of harm arising from cooperation with prosecutionefforts;(2) the right to have the magistra te take the safe ty of the victim or his familyinto consideration as an element in fixing the amount of ball for the accused;(3) the right, if requested , to be informed:(A) by the attorney representing the state of re levant court proceedings,including appellate proceedings, and to be info rmed if those proceed ings havebeen cance led or rescheduled prior to the event; and(B) by an appellate court of decisions of the court, aer the decisions areentered but before the decisions are made public;(4) the righ t to be informed, when requested, by a peace officer concerning thedefendan ts right to bail and the procedures in criminal investigations and by thedistric t attorneys office concern ing the general procedures in the crim inaljustice system , including general procedures in guilty plea nego tiati on s andarrangements , restitu tion, and the appeals and parole process;(5) the right to provide pertinent information to a proba tio n departmentconducting a presen tenc ing investigation conce rning the impact of the offe nseon the victim and his family by testimony, written statement, or any othermanne r prio r to any sentencing of the offender;(6) th e right to receive information regarding compensation to victims of crimeas provided by Subchapter B, including information related to the costs thatmay be compensated under that subchap ter and the amount of compensat ion ,

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elig ib ility for compensation, and procedures for applica tio n fo r compensationunder that subchapter, the payment for a medical examination under Article56.06 for a victim of a sexual assault, and when requested, to referral toavai lab le social service agencies tha t may offer add itional assis tance;(7) the right to be informed, upon request, of parole procedu res, to participatein the parole process, to be notified , if requested, of paro le proceedingsconcerning a defendant in the victims case, to provide to the Board of Pardonsand Paroles for inclusion in the defendants fil e inform ation to be considered bythe board prior to the parole of any defen dan t conv icted of any crime subject tothis subchapter, and to be notified, if requested, of the defendants release;(8) the rig ht to he provided with a waiting area, separate or secure from otherwitnesses, including the offender and relatives of the offender, before testifingin any proceed ing concerning the offe nder; if a separate waiti ng area is no tavai lable, other safeguards should be tak en to minimize the victims contactwith the offender and the offenders re la tives and witn esses, before and duringcourt proc eeding s;(9) the right to prompt return of any property of the victim that is held by a lawenforcement agency or the attorney for the sta te as ev idence when the propertyis no longer required for that purpose;(10) the right to have th e attorney for the state notify the employer of thevictim , if requested, of the necessity of the victims cooperat ion and testimonyin a proceeding that may necessitate the absence of the vic tim from work fo rgood cause;(11 ) the righ t to counse lin g, on request, regarding acqu ired immune deficiencysyndrome (A IDS) arid human irnmunodeficiency virus (H IV) infection andtesting for acquired immune deficie ncy syndrom e (A IDS), humanimmunodef ici ency virus (HIV) infection, an tib od ies to HIV, or in fecti on withany other probab le causa tiv e agent of AIDS, if the offe nse is an offense underSecti on 21 .02, 21.1 l(a)(1), 22.011, or22.021, Penal Code;(JV the right to requ es t victim-offender mediation coordinated by the vic timservices division ofth e Texas Department ofCriminal Justice;(13) the right to be informed of the uses of a vict im im pact statement and thestaternents pu rpose in the criminal justice system, to complete the victimimpac t statemen t, and to have the victim impact statement con side red:(A) by the atto rney representing the state and the judge before sentencing orbefore a plea bargain agreemen t is accepted; and(B) by the Board of Pa rdons and Paroles before an inmate is released on parole;(14 ) to the ex tent provided by Arti cles 56.06 and 56.065, fo r a vic tim of asexual assaul t, the right to a forensic med ical examination if, within 96 hours ofthe sexual assault, the assau lt is reported to a law enforcement agency or a

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forensic medical examination is othe rwis e conducted at a health care facility;and

(15) for a victim of an assault or sexual assau lt who is younger than 17 yea rs ofage or whose case involves fam ily violence , as def ined by Section 71 .004 ,Family Code, the right to have the court consider the impact on the victim of acontinuance requested by the defendant; if requested by the attorneyrep resenting the state or by coun sel for the defendant, the court shall state on therecord the reason for granting or denying the continuance.Tex. Code Crim. Proc. 56.02 (a) (emphasis supplied).

51. Given that the del ay in ass erting these rights is all due to Defen dantsand the ir agents failure to inform P1aintiff there can be no asse rtion tha t the failure toconduct meaningftil mediation is the fau lt of anyone but Defendants. Certainly, as avictim, Plaintiff cannot be expec ted to know his rights, and be told he must forfeitthem if he does not know of them. Ra ther, just as with the criminal defe ndantsfamous Miranda righ ts, it is the duty of those responsible for victim coordination toensure that vic tims are c learly informed of their rights, so that they may assert them.

52. Even were the re not a sta tutory basis for the right to mediation ,Defendants would still be requ ired to proceed in a fair and non-discrimina torymanner.

53. Rather, here , Defendants have made it impossible for essentia lly oneclass of victims to benefi t from mediation those whose firm rel igious beliefs prom ptt hem to seek mediation and rec onciliation in capital cases where the Defe ndants wantto execute the prisoner.

54. In thi s regard, Defendants actions are illegal. Tex. Civ. P. & R. CodeTit. 5, Sec. 106.001, prov ides :

Sec. 106.001. PROHIBITED ACTS . (a) An officer or employee of the sta teor of a political subd ivisi on of the sta te who is acting or pur porting to act in anoff icial capacity may not, because of a persons race, religion, co lor, sex , ornational origin:(1) reftise to issue to the person a license, pe rmi t, or certificate;

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(2) revoke or suspend the persons license, permit , or cert ili.cate;(3) refu se to perm it the person to use facilities open to the public and ow ned ,operated, or managed by or on behalf of the sta te or a political subdivision ofthe state;(4 ,) rfiise 10 permit (lie person to participate in a progran oiined, operated,or managed by or on behalfof the state or a political subdivi sion of the state:(5,) refi tse to grant a benefi t to the person;(6) impose an unreasonable bu rden on the person: or(7) refu se to award a contrac t to the person .

(emphasis supplied)55. Where there is a violation of this law , Tex. Civ. P. & R. Code Tit. 5,

Sec. 106 .002, provides for injunctive relief :Sec. 106.002. RE MED IES. (a) If a person has violated or there arereasonable grounds to believe a pers on is abo ut to vio late Secti on 106.00 1, theperson aggrieve d by the violation or threa tene d violation may sue forprevenilve relief inc luding a perm an en t or temporary ii!jzmction, are strain in g order, or any other order.(b) In an action under this section, un less the state is the prevailing par ty, thecourt may award the prevailing party reasonable attorneys fees as a part of thecosts. The states liabili ty fo r costs is the sam e as that of a private per son.

Tex. Civ. P. & R. Code Tit. 5, Sec. 106.002 (emphasis supp lied )56. Indeed, the action s of the agents of the State of Texas and the

Defendants in this case are not merely wrong , they are potentially criminal in nature:Sec. 106.003. PENALTIES . (a) A perso n comm its an off ense if the personknow ingly vio lates Section 106.001.(b) An offense under this sectio n is a misdemeanor punishable by:(1) a fine of not more than $1 ,000;(2) con fine men t in the county jail for not mo re than one year; or(3) both the fine and confinem ent.

Tex. Civ. P. & R. Code Tit. 5, Sec. 106.003.

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60. The Sta te of Texas and all of its officia l arm s, inc ludin g the Defendan tin thi s case, are bound to resp ect Plain tiffs rights under the Constitution of the Stateof Texas. This Court is similarly required to enforce tho se rights.

1. PLAINTIFF IS SUFFERING DISCRIMINATION BASEDON HIS RELIGIOUS BELLEFS61 . Plaintiff incorporates herein all the allegation s in this complaint tha t

both precede and follow.62. As previo usly stressed, Plaintiff is strongly motivated by his religious

bel iefs. Forgivenes s is a long standing mechanism within many faiths, Islam beingone of them, towa rds the healing of the sou l. As a Muslim, Plaintiff is of the beliefthat when he forgives, or promotes mercy for, his attacker the governm en t should nolonger have a duty or a rig ht to exactthe ultimate punishment upon Mr. St roman.

63. At the time of the trial process, in 2001-02 , it was the po licy of theprevious incum ben t in the Of fice of the District Attorney in Dalla s County to refuse aplea barga in to life if the victim refu ses to agree to the proposal in a capital case . Inanother cap ital case return ed for resentencing , the curre nt Dallas County DistrictAt torn eys sta ted ratio nale , pro vided to defense coun sel in writing, for seeking thedeath penalty wa s that the vic tims mother had rejecte d the defendant s offer to accepta sentence of incarceration for the remainder of his natural life. While this was aninappropriate delegation of the District Att orneys constitutional duty to exercisediscretion in narrowing the clas s of death-eligible pr isoners, it is also a clearindication tha t the Dallas County DA treats victims with one set of beliefs verydifferently than victims with another set of beliefs. While the office abdic ates its ownau thority in favor of the judgment of vict ims who seek vengean ce, it ignore s anddisregards the judgment of vic tim s whose fai th lead s them to seek avenues ofreconciliation.

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64. [t is also the overriding poli cy of the Governo r of the State of Texas torefuse clemency if the victim s opposc it.

65. It Is the po licy of the TDCJ to refuse mediation to those whosereligious belief s comp el them to see meaning ftil me diation wi th the perpetrators ofcapital crimes, even though the victims of other (ap pare ntly equal or lesser) crime sare allowed this right.

66. This vio lates the Texas Constitution . Tex. Const. Art. 1, 6(FREEDOM OF WORSH IP. All men have a natural and inde feasible right toworship Almighty God according to the dictates of their own con scie nces . No manshall be compelled to attend, ere ct or support any place of worship, or to maintain anyministry against his consent. No human authority ought, in any case whatever , tocontro l or inte rfere with the rights of conscience in matters of religion, and nopre ference shall ever be given by law to any rel igious society or mode of worship.But it sha ll be the duty of the Legislature to pass such laws as may be necessary toprotect equally every religious denomination in the peaceable enjoymen t of its ownmode of public wors hip.).

67. It als o violates Texas Jaw. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.001.prov ides :

(a) In this chapte r:(1) Free exerc ise of religion means an act or refusal to act tha t issubstantially motivated by sincere religious belief. In determining whether anact or refusal to act is substantially mo tivated by sincere re ligious belief underthis chapter, it is no t neces sary to determine tha t the act or refusal to act ismotivated by a cen tral par t or central requirement of the persons sincererel igiou s belieL(2) Government agency means:(A) this state or a munic ipali ty or oth er political subdivision of thi s state; and

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(13 ) any agency of th is stat e or a municipality or other political subd ivision ofthis state, including a department, bureau , board , commission, office, agency,council, or public institution of higher education.(b) In de termining whether an interest is a compelling governm ental interestunder Section 110.003, a cour t shall give weight to the interpretation ofcompelling inte rest in fede ral case law relating to the free exercise of religionclause of the First Am endmen t of the Unit ed States Constitution.Sec. 110.002. APPL ICA TION. (a) Th is chapter applies to any ordinance,rule, order, decision, prac tice, or other exercise of government al au thority.(b) This chapter applie s to an act of a government agency, in the exercise ofgovernmental auth ority, gra ntin g or re fusing to grant a governm ent bene fit toan indiv idual.(c) Th is chapter applies to each law of this state unless the law is expresslymade exempt from the application of this chapter by reference to this chapter.

Tex. Civ. P. & R. Code Tit. 5, Sec. 110.002.68. Texas law protects religious free dom :

Sec. 110.003. RE LIGIOUS FREEDOM PROTECTED. (a) Subject toSubsection (b) , a government agency may no t substantially burden a person sfre e exercise of religion.(b) Subsection (a) does not apply if the government agenc y demonstrates thatthe application of the bu rden to the person:(1) is in fu rtherance of a compelling governm ental inte rest; and(2 ) is the least restrictive means of furth ering that interest.(c) A governm ent agency that makes the demo nstration required bySubsection (b) is no t req uired to separately prove tha t the rem edy and penaltyprovisions of the law , ord inan ce, rule, orde r, decision, practice, or otherexercise of gov ernm ent al authority that im poses the substantial burden are theleast restr ictive means to ensure comp liance or to punish the fa ilure to comply.Tex. Civ. P. & R. Code Tit. 5, Sec. 110.003 .

69 . Texas law spe cifically provides for injunctive relief under the secircumstances:

Sec. 110.005. REMEDIES. (a) Any pe rson , other than a government agency,who successfully assert s a claim or defense under this chapter is en titled torec over:

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(2) the perso n was not inf ormed and did not oth erwise hav e knowled ge of theexe rcise of the governmenta l authority in lime to reasonably provid e thenotice.(c) A governmen t agency that rece ives a noti ce under Subsection (a) mayremedy the substantial bu rden on the persons free exercise of relig ion.(d ) A rem edy implemented by a government agency under this sec tion :(1) may be designed to reasonably remove the sub stan tial burden on thel,ersons free exercise of relig ion;(2) need not be implemented in a manner that resu lts in an exercise ofgovernmental autho rity that is the least restrictive me ans of furthering thegovernm ental inte rest, notwithstanding any other provision of this chapter;and(3) mu st be na rrow ly tailored to rem ove the particular burd en fo r which theremedy is implem ented.(e) A person with respect to whom a substantial burden on the per sons freeexercise of relig ion has been cured by a reme dy imp leme nted under thisscction may not bring an action under Section 110.005.(1) A person who complies with an inm ate grievance system as required underSection 50 1.008, Government Code , is no t required to provide a separatewritten notic e under Subsection (a). In conjunction with the inm ate grievancesystem, the governm ent agency may remedy a substantial bu rden on thepersons fre e exercise of religion in the manner desc ribed by, and subject to,Subsections (c), (d), and (e).(g) In dealing with a claim that a persons fre e exercise of religion has beensubstantially bu rdened in violation of this chapter, an inmate grievancesystem, including an inma te grievance system requ ired under Section 501.008 ,Government Code, must provide to the pe rson making the claim a statement ofthe government agencys rationa le fo r imposing the burd en, if any exists, inconnection with any adverse determination made in connection with the claim .

Tex. Civ . P. & R. Co de Tit. 5, Sec. 110.006.71. Under these circum stances, the timing is such that an injunction must

be issue d in order to pre serve the status quo.72. Plaintiff en joys the sam e rights to religious freedom unde r the federal

constitution and laws. See U.S. CONST. Amend. I.

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2. PLAINntr, IS BE ING DENIED THE EQUALPROTECTION OF THE LAW73. Pla intiff incorporates herein all the allegations in this complaint thatboth precede arid follow.74. Plaintiff has the right to equal rights and equal pro tecti on of the law s

under both the state and federal consti tu tio n. See Tex. Co nst. Art. I, 3 (EQUALRIGHTS . All free men, when they form a social compact, have equal rights, and noman, or set of men, is en titled to exclusive separ ate public emolum ents, or pr ivileges,but in consid eration of public servi ces.); Tex. Const. Art. I, 3a (EQUALITYUNDER THE LAW. Equality under the law sha ll not be denie d or ab ridged becauseof sex, race, color, creed, or natio nal origin. This amendme nt is self-operative.);U.S . CONST . Amend. V, XIV.

75. Defendan ts deny Plaintiff effective mediation where those who are thevictims of les ser crimes, or crime s that are perhaps essenti ally identical in all res pect sbut for Defendants plan to infl ic t capita l punishment on the pe rpetrator, en joy thisright.

3. THE RIGHT TO FREEDOM OF ASSOCIATION76. Plaintiff incorpo rates herein all the allegation s in th is complaint that

both pre cede and follow.77. Plaintiff enjoys the right under the Firs t Amendment to the Unit ed

States Constitution to freedom of assoc iation. See US CONST . AMEND . I(Congress shall make no law respecting an establishme nt of religion, or prohibitingthe free exe rcise the reof; or ab ridging the freedom of speech , or of the press; or theright of the people peaceab ly to assem ble, and to petition the Government for ared ress of gri evances.).

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85. Plaintiff has th e righ t to e njoy the Privileges and immun ities of othercitizens. See US CONST. ART , IL, Section 2, Clause I (The Ci tizen s of each Stateshall be entitled to all Privileges and Immunities of Citizens in the sev eral States.).While other citizens (and, indeed , even non-citizens) are allow ed to meet with MarkStrman, Plaintiff is not. While other victims are permitted meaningfi.il mediation,Plaintiff is not.

6. PLAINTIFF HAS BEEN DENIED DUE PROCESS OPLAW86. Plaintiff incorpo rates herein all the allegations in this com pla int that

both pre cede and follow.87. Plaintiff has a liberty interest in his rela tion ship with Mark Strman,

and his right to ass ocia te with h im , which cannot be taken from him arb itrarily, in aninequitab le fashion, or witho ut due process of law. See US CONST . AME ND. V(No perso n s hall ... be deprived of life, liberty, or property, wi thout due proce ss oflaw ....); US CONST. AMEND . XIV Sec tion 1 (M I persons born or na turalized inthe Unit ed States, and subject to the jurisdiction thereo f, are citizens of the UnitedStates and of the State where in they reside. No State sha ll make or enforce any lawwhich sha ll a bridge the privileges or immunities of citizens of the Un ited States; norshalL any State deprive any person of life, liberty, or proper ty, without due process oflaw; nor deny to any person within its jurisdict ion the equal pro tec tion of the laws.);see also Tex. Const. Art. 1, 19 (DEPRIVATION OF LIFE , LIBERTY, ETC .; DUECOURSE OF LAW . No citizen of this State sha ll be deprived of lif e, liberty,property, priv ileges or immunities, or in any manner dis franchised , excep t by the duecou rse of the law of the land).

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88. In this case, Plaintiff has been allowed no due process, and De fendan tis discriminating agains t him in a way that is inv idious, and based pure ly on theground tha t he is a victim .

7. PLAINTIFF IS BEING PUNISHED IN ANUNCONSTiTUTIONAL MANNER89. Plaintiff incorp orates herein all the allegations in this complaint that

both pre cede and follow.90. Plaintiff will suffer a grea t deal if he is no t perm itted a fair opportunity

to come to terms wi th the fact that he was shot in the face , and could have died, as aresult of Mark Strrn ans attack on him. In arbitrarily denying him the righ t toattempt to reach some degree of cathar sis on th is point , Defendant is inflicting cru eland unusua l punishment on him, and withou t due process. US CON ST. AM EN D.VIII (Excessive ba il shall no t b e requir ed, nor excessive fine s imposed, nor crue l andunusual punishments inflict ed .) ; Tex. Const . Art. I, 13 (EXCESSIVE BAlL ORF[NES ; CRUEL AND UNU SU AL PUNISHM EN T; REMEDY BY DUE COURSEOF LAW. Excessive bail shall not be required, nor excessive fines imposed , nor crue lor unusual punishment inf licte d. All court s shall be open, and every person for aninjury done him , in his land s, goods, person or reputation, shall have remedy by duecours e of law .)

8. PLAINTIFFS RIGHT TO RESPECT AND DIGNiTY91. Plaintiff incorporates herein all the allegations in this complaint that

both pre cede and fol low.92. Nothing in the US or Texas Constitution purports to take away

Pe titioners right, as a vict im , to seek positive mediation with the perpetrator of thecrime agains t him , Ma rk Strman. As a result, this rig ht inu res to him at least aspowerfu lly, and pe rhaps mo re powerf ul ly , then the righ t to privacy. See US . CON ST.

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AMEND. DC (Th e enumera tion in the Co nstitution, of cer ta in rights, shall not becon strued to deny or dispa rage others re tained by the people.); see also US CON ST.AMEND. X (T he powers not delegated to the United States by the Co nstitution, norprohib ited by it to the Sta tes, are reserved to th e States respectively , or to thepeople.).Ill. DEFENDANTS H A VE FAILED TO RESPECT PLAINTiFFS DIGNITYAND HIS RIGHTS UNDER THE TEXAS BILL OF RIGHTS

93. Plaintiff incorpo rates herein all the allegations in this com plaint tha tboth precede and follow.

94 . Tex. Const . Art. 1, 30 set s out the righ ts of crime victims:Sec. 30 . RiGH TS OF CRIME ViCTIMS . (a) A crime victim has thefollowing rights:(1) the right to be treated with fairness and with res pec t for the iicthn rdig nity and privacy through out the criminaljusiice proc ess; and(2) the right to be rea sonably protected from the accused throughout thecrim inal justice proces s.(b) On the request of a cr im e victim, the crime victim has the fo llowingrights:(I) th e righ t to no tifica tion of court proceedings;(2) the right to be present at all pu blic court proce edin gs related to theof fense, unless the victim is to testif and the court determines th at thevictim s testim ony wo uld be materially affected if the victim hears othertestimony at the trial;(3) the right to confer with a representative of the prosec utor s office;(4 ) the righ t to re stitu tion; and(5) th e rig ht to inf ormatIon ab ou t the co nviction, sent ence , im pr isonm en t, andrelease of the accus ed.

(Added Nov. 7, 1989) (emphas is suppl ied)95. Plaintiff has been and continue s to be, denie d his rights under the

Texas Constitution.

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CONCLUSION AND PRAYER FOR RELIEFWHEREFORE PLAINTIFF respectfully requests that (his Court enter an

order as follows:a. requiring that the defendant respond under an expedited schedule;b. enjoining the defendant from carrying ou t (he execution of Mark Strman

and entering an order preserving the stalits quo until such time as the complaint maybe resolved;

c. ordering discovery under an expedited schedule;d. ordering a trial by jury of the merits of the cause;e. granting Plaintiff damages in the sum of $[] in compensatory damages for

the violation of his rigbts;f granting Plaintiff damages in the sum of $11 in punitive damages for the

violation of his rights;g. granting an injunction requiring that t he Def enda nt s permit him a

meaningful opportunity for mediation and reconciliation;h. granting such other equitable relief as the Court may deem just and right.

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Jul 1311 04:llp

Thisj day ofJuly, 2011.

-:--ThTChurrum WahidWahid Vizcalno LL.P6221 W. Atlantic Blvdiviargate Fl 33063(305) 444-4303(305) 444-4302www.wvmlawfinmcomCounsel to Rais Bhuiyun+

Mr. Vahid is a member of the Bar of the State of Florida, and a Motion to4ppearPro Hac Vice accompanies this law suiL Mr. Wahid has submittedtherequired affidavit to t he Texas Bar Examiners. However, the non-residentacknowledgment letter will not be issued untiL the application has beensubmitted with a causc number for this action, so it cannot be submittedsimultaneousLy with the suitDana1in ReccrSBOT 007929352307 UnionHouston, Texas 77(107Office: (713) 8694722Mobile: (832) 969-0444Fax: (713)880-3811Local co-counsel for Mr . l3huyian+-Counsel axe actingpro bonn pzcblico on this case, given the importance of the issues.

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CERTIFICATE 01? SERVICE[hereby certify that I have caused the fo regoing pleading to be served on the defendants, via

hand delivery and/or overnight delivery to:Governor Rick PerryOffice of the GovernorState insurance Building1100 San JacintoAus tin , Texas 78701l3rad LivingslonTexas Department ofCriminal Justice Executive Director209 West 14th Street, 5th Floor,Pric e Daniel Building,Austin, Texas 78701Angie McCown,TDCJ Victim Serv ices Division,8712 Shoal Creek Blvd, Ste 265,Austin, Texas 78757Rissie L. OwensTcxas Board of Pardons and Paroles209 West 14th Street, Suite 500,Austin, Texas 78701.This 13th day of July 201 I.

DanaLynn Recer

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11July14 P2:54Amalla Rodrlguez-MendozDistii ClerkTra1e Dlstr1IN THE D-1-GN-ll-00211BDISTRICT COURT OFTRAV IS COUNTY, TEXAS

Trial Cou rt Cause No. D-I-GN-1 1-002118

RAIS BHUIYAN,Plaintiff,

V.

RICK PERRY, GOVERI4OR,State OfTexas,BRAD LIVINGSTON , EXECUTIVE DIRECTORTexas Depa rtm ent Of Crimina l Justice,ANG IE McCOWN, DiRECTORTDCJ Victim Services DivisionDefendants.

NOTICE OF HEARINGPlease take notice tha t an emergency hearing has been set r egarding the injunction to the

execution ofMark Strom an as requested by the Plaintiff. This hearing will be hea rd on Monday,July 18, 2011 at 3:00 p.m. in the 353rd Trav is County Distr ict Cour t before Ju dge Sulak .

Da ted: July 14, 2011

Khurrum WahidWah id Vizcaino LLP6221 W. Atlantic BlvdMargate Fl 33063(305) 444-4303(305)444-4302www.wvm law firm .com

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Counsel to Rais Bhuiyan+* Mr. Wahid is a member of the Bar of the State of Florida, and a Motion to Appear ProIlac Vice accompanies this law suit. Mr. Wahid has submitted the required affidavit tothe Texas Bar Exam iners. However, the non-res ident acknow ledgment letter will not beissued until the application has been submitted with a cause number for this action , so itcannot be submitted simul taneously with the suit.

Dana lynn RecerSBOT 007929352307 UnionHouston, Texas 77007Office: (713) 8694722Mobile: (832) 969-0444Fax : (713)880-3811Local co-counsel for Mr. Bhuyian++Counsel are acting pro bono publico on this case, given the impor tance of the issues.

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CERTIFICATE OF SERVICE

I hcrcby certify that I have caused the foregoing pleading to be served on the defendants, viahand delivery and/or overnight delivery to:

Governor Rick PerryOffice of the GovernorState Insurance Building1100 San JacintoAustin, Texas 78701Brad LivingstonTexas Department of Criminal Justice Executive Director209 West 14th Street, 5th Floor,Price Daniel Building,Austin, Texas 78701Angie McCown,TDCJ Victim Services Division,8712 Shoal Creek Blvd, Ste 265,Austin, Tcxas 78757Rissie L. OwensTexas Board of Pardons and Paroles209 West 14th Street, Suite 500,Austin, Texas 78701.This 14th day of July 2011.

Danalynn Recer

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ENTHEINSTRICT COURT OFTRAVIS COUNTY, TEXAS

Trial Court Cause No.

RAIS BHUIYAN,Plaintiff,

V.

RICK PERRY, GOVERNOR,State Of Texas,BRAD LJV1NGSTON, EXECUTIVE DIRECTORTexas Department Of Criminal Justice,ANGIE McCOWN, DIRECTORTDCJ Victim Services DivisionRISSIE L. OWENS, MemberTexas Board of Pardons and Paroles

Defendants.

MOTION FOR ADMISSION OF NON-RESIDENT COUNSELNOW INTO COURT through unde rsigned counsel comes Rais Bhuiyan to move this Court

to permit the appearan ce ofnon-residen t attorn ey Khurrum Wahid as counsel in this cause ofaction.In sup por t of this mo tion , undersigned counsel sta tes as follows:

1. Unders igned counsel will act as local counsel alo ngside non-res ident a ttorneyKhurrurn Wahid, of Florida.2. Mr. Wahid is acting in comp liance with the req uirements of Texas Governmen t Code

Sec tion 82.0361 concerning submission of an application and payment of a non-resident att orneyfee to the Texas Board of Law Examine rs, a process tha t cannot be comple ted until assignmen t ofa cause number to the law suit. He has also filed a Motion or Leave to Appear Pro Hue Vice

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with this Court. as requ ired by Rule XIX(a of the Rules Governing Admission I) the Bar ?tTexu.c (hereinaller Rule XIX).

5. Pu rsuant to subsection (b) of Rule XIX. undersigned counsel moves this Court toallow Mr. Wahid to appear in the cause of Ruis l3huiyan Periy cial., and states that 1 know Mr.Wah id to be a reputable attorney and recommend tha t he be granted permission to appear onbehalf ofMr. Bhuiyan in proceedings before this Court.

6. Mr. Wahid is awa re of the ethical standards required of attorneys licensed in Texasand has swo rn to observe those standards. Mr. Wahid does not appear frequen tly in Texa s courtsand has never engaged in the unau thorized practice of law. Thus, no good cause ex ist s fordenying his motion to appear before this court on a pro hac vice basis.

WHEREFORE. Mr. Bhuiyan prays that this Court will grant his Motion for Admission ofNon-Resident Counsel and pemiit Khurrum Wahid to appear before this Court.

Respectfully Subm itted,

Danalynn RecerTX Bar No. 007929352307 Union St.Houston, TX 77007Tel: (713) 869-4722Fax: (713) 880-3811

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CERTIFICATE OF SERVICEI hereby certify that I have caused the foregoing pleading to be served on the defendants. via -

hand delivery and/or overnight delivery:Governor Rick Per ryOllice of the GovernorState Insurance Building1100 San JacintoAustin, Texas 78701Brad LivingstonTexas Department of Criminal Justice Executive Director209 West 14th Street, 5th Floor,Price Daniel Building,Austin, Texas 78701Angie McCown.TDCJ Victim Services Division.8712 Shoal Creek Blvd. Ste 265,Austin, Texas 78757Rissie L. OwensTexas Board of Pardons and Paroles209 West 14th Street, Suite 500,Austin, Texas 78701.This day of July 2011.

Danalynn Recer

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.... i., a i v t. I pCase 1:11-cv-00603-LY Document 1-2 Filed 07/18/11 Page 5 of 37


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IN THEI)ISTRICT COURT OFTRAVIS COUNTY, TEXAS

frial Court Cause No.

RAIS BI{UIYAN,Plaintiff,

V.

RICK PERRY, GOVERNOR,State Of Texas,BRAD LIVINGSTON,EXECUTIVE DIRECTORTexas Department Of Criminal Justice,ANGIE McCOWN,DIRECTORTDCJ Victim Services DivisionRISSIE L OWENS, Member

Texas Board of Pardons aod ParolesDefendants.

MOTION TO APPEAR PRO HAC VICENOW COMES, Khurrum Wahid, a non-resident attorney, and mspectfully requests

permission to appear in this Honorable CourtPro Hac Vice on behalf ofRais Bhuiyan as reasonthcrcfore, and upon my oath,] state:

1. T have complied with the requirements of Texas Government Code Section 82.0361concerning payment of a non-resident attorney fee a the Board of Law Examiners. See attachedNon Resident Acknowledgment Letter dated July 13, 2011. Pursuant to Rule XIX(a) of theRules GoverningAthnis.siorz to the Bar of Texas, (hereinafter Rule )UX), I now make thiswritten, sworn motion seeking permission to appear before this court in cause ofRais Bhuiycin.

2. My primary office is 6221 W. Atlantic Blvd, Pompano Beach Fl, 33063.

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3. During Mr. Bhuiyans thai, I will be associated with Danalyim Recer, a practicinglawyer with offices at 2307 Union St., Houston, Texas 77007, phone (713)869-4722, fax(7 i 3)880-3811, and reachable through her offices. Ms. Recer is a member in good standing ofthe State Ba r ofTexas, ba r number #00792935. Ms. Recers Motion for Admission ofNonResident Co-counsel is attached as required by Rule XDC(b).

4. 1 have no t appeared nor sought leave to appear in any other Texas court within thepast two years.

5. 1 am an active member in good standing of the State Bars of Flonda and New York aswell as the federal courts of Southern District of Florida, Middle District of Florida, SouthernDistrict ofNew York, and the Eastern DLstrict ofNew York, the U.S. Court of Appeals for the11th Circuit and the U.S. Court ofAppeals lbr the 2nd Circuit

6. 1 have not been the subject of any disciplinary action by the bar or courts of anyjurisdiction during the last five years.

7. 1 have no t been denied admission to any state or federal court during the last fiveyears.

8. 1 am familiarwith the State Ba r Act, the State Bar Rules, and the Texas DisciplinaryRules of Professional Conduct governing the conductofmembers of the State Bar of Texas, andwill at all times abide by and comply with the same so long as Mr. Bhuiyans cause is pendingand I have no t withdrawn as counsel.

9. 1 have paid the non-resident attorney application fee to the Board ofLaw Examinersand attach proofof payment as required by Rule X]X(c).

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WHEREFORE, based on the foregoing, Khuxruni Wahid respecifluly prays this courtwill allow me to appcar in this matter Pro Ilac Vice on behalf of Rais Bhuiyan and for such otherand further relief that may be awarded at law or in cquity.

Signed under the pains and penalties of perjury.Respectfully Submitted,

IGiurrum WahidWabid Viwaino LU 6221 W. Atlantic BlvdPompano Beach, FL33063(305)4444303(305)4.44-4302

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CERTIFICATE OF SI3RVICEI hereby cer tify that I have caused the foregoing pleading to be served on the State of

inTexas, this 13th day of July 2O 1.

hurrum WahidWahid Vbcaino LLP6221 W. Atlantic BlvdPompano Beach, FL..33063(305)444-4303(305)444-4302

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FUed11 July 14 A11:46Amelia Rodrl guez-MendozDlsti1 Cla rk



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Trala DlatilctIN TIlE D-1-GN-11-0 02118DISTRICT COURT OFTRAVIS COUNTY , TEXASTrial Court Ca use No. D-I-GN-ll-002118

RA IS BHUrYAN,Plaintiff,

V.

RIC K PE RR Y, GOV ERN OR,State Of Texas,BRAD LIV ING STO N, EX EC UTIVE DIRECTORTexas Department Of Criminal Jus tice,AN GIE McCOWN, DIRECTORTDCJ Victim Se rvice s Division

Defendants.

TO THE HONORA BLE DISTRIC T CO URT IN AND FOR TRAVIS COUNTY:MEMORANDUM OF LAW

PLAINTIFF has filed a complaint seeking inj unctive re lief , and such otherequitable relief as the Court deems fit and just. He also files this mem orandum of lawin support of his comp laint.

THE RIGHTS OF THE VICTIM ARE NOW RECOGNIZED SUCHTHAT THEY SHOULD BE UNIVERSALLY RESPECTEDThe rights of the victims of crime have been recognized in all fifty sta tes,

mak ing victims participants, rather tha n mere witnesses, to the crimina l justicesystem. Texas has enacted a constitutional am endmen t on the subjec t. Tex. Co nst. art.1, 30. AlL the other 49 states either hav e enshrined this in their constitutions, or on

1 Ala. Const. Amend. No. 557; Alaska Const. art. 1, 24; Ar iz. Coust. art. II, 2 .1;Cal. Co nst. art. 1, 28; Cob. Const. art . II. , 16a; Conn. Cons t. art. 1, 8; FIa. Const.

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Tobolow sky. Victim Participation, 25 Crirn. & Civil Confinemen t at 24 n. 16 (notingthat in vanous oth er Eu ropean countries the victim still main tains the rig ht ofpro secution). Even today, private pro secutors are permitted in some U.S. states. 1L at32 n. 48 (Some states even authorize lim ited form s of private prosecution or privateassistance in public prosecutions, app roaches endorsed by som e commentators.).nde ed, there remain some areas of the law where the private party continues to be theone who actually brings the criminal action, and while the vict im can not be the onlypar ty to such pro ceedings, the victim can play a cen tral role.

The trend away from pr ivate inv olvemen t in crim ina l prosecutions caine aboutprim arily as a result of the perception that som e private prosecutions were co rrupt.The Twentieth Ce ntury initially saw a strong swing away from such proceedings, tothe extent that the victim became almost fo rgo tten:

Citing 725 ILL. COMP. STAT . ANN . 120/4.5 (West Supp. 1998); LA. REV.STAT. ANN. 46 :1844 (West Pamp. 1998); Carden as, supra note 3, at 372-98;Gittler, supra no te 25, at 150-63, 168-7 1; Abraham S. Gold stein, Defining the Role ofthe Victim in criminal Prosecution, 52 MISS. Li. 515, 547-61 (1982); EllenYarosbevsky, Balancing Victims Rights and Vigorous Advocacy for the Defendant,19 89 ANN. SURV. AM . L. 135 , 145-46 (1989).See Polo Fashions Inc. v. Stoc k Buyers mt 7 Inc. 760 698, 704 (6 Cir. 1985) (Ifthe United States Attorney sho uld decline to prosecute upon req uest, then the districtcourt may appoin t one or more dis interested attorney s to do so. In that even t, aga in,counse l for an inter ested party may be app ointed to assist. However, in this circuit anattorney fo r a party in underlying litigation may not conduct crim ina l contemptproceedings as sole or primary coun sel.); cf Richmond Black Police Qffier s Ass ii v.City ofRichmond , 548 F.2d 123, 129 Cir. 1977); Roberts v. Webs ter, 776 F.2 d607, 612 u6 (6 Cir. 1985) (allowing plaintiffs counsel to prosecute the contemptMr. Rogers, wh o sought to cause the Court to ho ld M r. Webster in civ il contempt,had the burden of est ablishing tha t Mr. Webster had disobeyed the ord ers of theDistrict Court); Hubbard v. Fleet Mortgage Co., 810 F.2d 778, 781 (8 Cir. 1987)(per curiam) (no improp riety hav ing civil cou nsel dea l with contempt procedure);Un ited States v. CrawfordEnter Inc ., 643 F.Supp. 370 , 380 (S.D . Tex . 1986) (findingit entirely proper for private attorney involved in th e c ivil action to prosecutorcriminal contempt proc eed ing), aff d in part, Petroleos Mexicanos v. Craiford Enter.Inc., 826 F.2d 392 , 399 n.12 (h Cir. 1987 ); but see Young v. Un ited States, 481 U.S.787 , 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) (d isapp roving the use of privateattorneys related to the litigation to prosecute crimina l contempt).

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The criminal justice system has long ftinctioned on the assumption thatcrime victims should behave like good Victorian children--seen but no theard. The Crime Victim& Rights Act sought to change this by makingvictims independent participants in the criminal justice process.

Kenna v. United States District court, 435 F.3d 101 1, 1013 (h Cir. 2006), citingScott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila LynnCrime Victims Rights Act, Pub. L. No. 108 -405 , 101-104, 118 Slat. 2260, 2261-65 (2004) (codified at 18 U.S.C. 3771).

Obviously society must excise corruption from the system of justice; it maywell be that society should discourage the cycle of revenge; bu t there was never anyroom fo r the criticism of victims who were interested in restorative justice, or whoadvocated compassion.

Ironically, it is these victims who have n ow lo st any voice in the judicialprocess.

H. PLAINTIFF, AS A MUSLIM, WISHES TO DO EVERYTHINGPOSSIBLE TOWARDS RECONCILING MUSLIMS AND OTHERAMERICANS, WHICH lIE FEELS HAS BEEN MADE ALL THE MOREIMPORTANT BY THE HATRED SPAWNED BY SOME IN RECENTYEARSPlaintiff is a Muslim. His family heralds from Bangladesh. When he

committed his crimes against Plaintiff and the other two victims, Mark Strman wa s aracist. Racism is rooted in prejudice; prejudice is a word that comes from pre-judgingpeople essentially, from ignorance. Plaintiff is gratified that Mark Strman appearsto have learned some lessons from the crime that he committed. Plaintiff hopes thatMark Strman can learn further lessons, and also help teach them to others who comefrom the same sad background of ignorance.

The first lesson that might come as a surprise to many people is that Islamic lawdoes not call for mandatory killing of everyone who commits murder, or the chopping



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off of hand s at Lhe first opportunity. Rather , while murder is obviously stronglycon dem ned, mercy is vigorously upheld:

...lfanyone kills a ... it would be as ifhe killed all pcople.Anclfunvonescnes a it iiould he as if he sav ed the l4 fe ofall peopleQuran 5:32 .

When it comes to the forgiveness of the killer, the translations ol the Quranmay read slightly differently. but the message is the same :

5:45 [Tran slation by Yusuf Au] We ordained th erein fo r them: Li fe forlife, eye for eye, nose or no se, ea r for ear, tooth for tooth , and woundsequal for equal. But fany one remUs the re taliation by way of charity, itis an act ofatoneinen t for himsef: And if any fail to judge by (the light of)what Allah hath rev ealed, they are no better than wrong-do ers.5:45 [Translation by Picklall] And We prescribed for them therein: Thelife for t he l ife, and the eye for the eye , and the nose for the nose, and theea r for the ear, and the too th for the too th , and for wounds retaliation. Butwhoso forgoeth fun the way of charity ii shall be expiatio,i for him.Whoso judgeth not by that wh ich Allah bath revealed: such are wrong-doers.42:40 [Tran slation by M Asad] Bu t [remember that an attempt at]requitin g evil may, too , become an evil: hence, whoever pardons [h is foe]and make s peace, his rew ard rest s wi th God - for, verily, He does not lov eevildoers.42:40 Translation by Yusuf Au] The rec omp ense fo r an injury is aninjury equal thereto (in degree): but if a person forgives and makesreconciliation, his reward is due from Allah, for Allah loveth not thosewho do wrong.

It is therefore central to Islam and to the religiou s bel ief s t hat drives Plaintiffin thi s case that a faithful Muslim should try to exercise mercy . It might becom pared to the admonition in the Bible, Blessed are the merciful for they shallobta in mercy. Matthew 5:vii. Under one interpretation, thi s mean s that if one doesnot show mercy, one canno t expect to receive it.

Perhaps it ha s been true in Christian society at various times, but the processof showing mercy is more integra ted into the Islam ic legal tradit ion today than it is inmany Western legal sys tem. Divat is defined as the amount of money that a

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perpetrator of an offense must pay to (he victim or his fani lly in COmpensatiOn for thecrime. An offer of cilyal might be accepted by the victim, or it might not, if it is . thenthe crime is forgiven. A form of dfyai existed in Arabia before Islam, but it wasformalized by the Islamic tradition. However, today, a victim can express the sameform of forgiveness with or without the payment of an actual sum ofmoney.

There are sonic crimes that were considered particularly threatening to thefabric of a nation. These are called Fasad-Fil-Arz, which technically meansHspreading mischief in the land and is interpreted to mean those crimes that affectthe community as a whole, and destabilize the society. Murder might be one;terrorism another. Even if a Diyat application has been submitted, in such cases thecourt is empowered to rule that Fasad-Fil-Arz applies, in which case the accused maybe convicted and sentenced. However, crucially, the court cannot condemn theaccused to death, only to a maximum term of years.

In Islam, then, the victim is hugely respected. This has not been Plaintiffsexperience of the judicial process in Texas to date. Plaintiff hopes tha t his work forreconciliation in this case may help educate and reconcile those of different faiths,and may also persuade those in political power to adopt a compassionate approachthat is similar to that described above.

A typical example of this may be seen in the law of Pakistan. See Pakistan PenalCode Section 311 (if the court considers that the principle of Fasad-Fil-Arz applies, orif all the heirs do no t waive the right to Qisas, the court can sentence a person to 14years of imprisonment; however, ifjust one heir waives Qisas, an execution cannot becarried out).6 In addition to expressing mercy, this tradition focuses attention on the fallibility ofhuman nature, and the possibility of error in t he l ega l system. The Quran expressesstrong concern at the dangers of venality in the justice system. While murder is listedas the second greatest sin, to make a false statement, or to give a false witness isl is ted soon after. Hadith of Sahii Bukhari, Volume 9, Book 83, Number 10.Furthermore, Islamic law imposes rigorous rules on the number, nature and reliabilityofwitnesses whose testimony is meant to support a capital conviction.

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victim was den ied the right to know of plea agreem



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ent or to he present at sentencing);&ate . IIe.ct, 320 N.W.2d 570, 574-75 (Iowa 1982) (reviewing petition, thoughultimately finding that petitioner did not fit the statutory de fin ition of victim).

lixus, there can be no dispute that this Court has jurisdiction to issue theinjunctive relief sought. Obviously, Plaintiffs legal rights cannot be respected if theDefendan ts kill Mark Strmnn next week, on July 20h His execution must beenjoined pending resolution of this case. Furthermore, the Defendants must beordered to al low mediation, to allow Plaintiff to appear in person before the Board ofPardons and Parole, and to respec t the other rights discussed in his complaint andbelow.

IV. DEFENDANTS HAVE NEVER GIVEN PLAINTIFFS NOTICE OF ILLSIGHTS AS A VICTIMThe State of Texas and its employees cannot violate the victims rights laws,

and think that they can just ignore Plaintiff when he complains. At the dawn of thisNation, in Marburyi Madison, 5 U.S. 137, 163, 2 L.Ed. 60 (1803), Justice Marshallwrote that [tjhe government of the United Stales has been emphatically termed agovernment of laws, and not of men. It will certainly cease to deserve this highappellation if the laws furnish no remedy for a violation of a vested legal righ t.

A century and a quarter later, Jus tice Brandeis continued along this theme in hisfam ous Ohnstead dissent:

In a governmen t of laws, existence of the government will be imperilled ifit fails to obse rve the law scrupulously. Our government is the potent, theomnipresent teacher. For good or ill, it teaches the whole peop le byexample. Crime is contagious. If the gove rnment becomes thelawbreaker, it breeds contempt for the law; it invites every man to becomea law unto himself; it invites anarchy.Olnistead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

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The purpo se of the vict ims ri



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ghts provisions in the bw is to provide preciselythe as sista nce and rehabilitation dis cussed in the complaint, and below. Bu t the re canbe no meaning ful right if the person possessing (hat right is not told about it. This isthe esse nce of due process. See 150 Cong. Rec. S 10911 (dai ly ed. Oct. 9, 2004 )(statement of Sen. Kyl) (Of course, fairness [to vict ims] includes the notion of dueprocess.).

Due proc es s requires that parties whose tight s are to be affected are entitled tobe heard and, in order that they may enjoy that right, they must first be notified.Fuentes v. Sheiin, 407 U.S. 67, 80 (1972), quoting, Baldwin v. Hale, 68 U.S. 223, 233(1963). To meet the minimum requ irem ents of due process, such notice must bemeaningful. Mullane v. central Hanover Bank Tr. Co., 339 U.S. 306, 313 (1950) (tosati sfy due process, notice must be reasonably calcu la ted , under all thecircumstances, to apprise int erested parties of the pendency of the action and affordthem an opportunity to present their objections .) .

One of the rights that victims have is to be given notice of thos e righ ts. See,e.g., Tex. Code Crirn. Proc. Ann. art. 56.08(b) (Vernon 2004) (re qui ring prosecutor togive victim not ice of cour t proceedings). Even where there exi sts no specific

See, e.g ., Ala. Code 15-23-62(8) (2000) (re qu iring law en forcem ent officers to givevictim s imtial description of their rights and the name and telephon e number of theoffice of the prosecuting atto rney to con tact for further information); Ariz. Re v. Stat.13-4409 (2001) (requiring prosecutor to pr ov ide no tice to victim of criminalproceedings; Conn. Gen. Stat. Ann. 51 -286c (2000) (requiring prosecutor to notifyvictim of any judicial procee dings related to the case); Del. Code Ann. tit. 11, 9411(200 1) (requiring Attorney Gene ral to prov ide information to vic tim inc luding noticeof the scheduling of court proc ee ding s and changes including trial date, case reviewand sentencing hearings) ; Ga. Code Ann. 17-17-8(b) (2004) (requiring prosecutorwhere possible to give victim prompt advance noti fication of any scheduled courtproc ee ding s); Ky. Rev. Stat. Ann. 421.500.5 (LexisNexis 1992) (requiringprosecutor to provide victim promp t notif ication , if possible, of judicial proceedingsrelating to the case); Me. Rev. Stat. Ann. tit. 15, 6101 (2003) (requiring prosecutor toprovide victims of certain crim es notice of any plea agreement and of trial da te) ;Mas s. Gen. Laws Ann. cli. 258B, 3 (W est 2004) (requirin g prosecutor to give victims9

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st.atutory duty imposed on the court, o r whe re the prosecutor proves



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incapable ofabiding by his statutory duty, the courts have taken it upon themselves to provide thenecessary notice. S ee United States i. Turner, 367 F.Supp.2d 319, 320 (E.D.N.Y.2005) (1 now direct the government to provide the court with sufficient infonnationabout the victims in this case to fulfill its independent obligation to ensure that thosevictims are afforded their rights. That information must include the name and contactinformation For each victim, or victims surrogate or lawful representative).

While nothing in the law required the Court to take action on behalf of thevictims, the Court in Turner was clearly upset that the prosecutor had no t fulfilled hisduty towards the victims:

When it became apparent that the alleged victims here had not beengiven specific notice of th e first two proceedings, J considered anadjournment as an alternative to further proceedings in violation of thevictims rights. Another alternative, and one that I concluded waspreferable under the circumstances, wa s to order the government toprovide a written summary or transcript of the proceedings to any victimwho was denied notice and to make it clear that I would hear any victimwiti) respect to whether the decision I made in the victims absence shouldbe reconsidered.

notice of various rights); Mich. Comp. Laws Ann. 780.755(1) (West 1998) (requiringprosecutor to give victims notice of court proceedings); Minn. Stat. Ann. 611 A.03(West 2003) (requiring prosecutor to give victim notice of plea agreement andsentencing hearing); N.M. Stat. Ann. 31-26-9(B) (LexisNexis 2004) (requiringprosecutor to provide victim with notice of scheduled court proceedings); N.Y.[Executive] Law. 646a (MeKinney 2005) (requiring prosecutor to provide notice ofcourt proceedings); S.D. Codified Laws 23A-28C-l (2004) (requiring prosecutor tonotify victim of certain hearings); Teen. Code Ann. 40-38-103 (2003) (requiringprosecutor to notify victim of times, dates, and locations of all pertinent stages in theproceedings); Utah Code Ann. 77-38-3 (2004) (requiring prosecutor to give victimnotice of important criminal justice hearings); Wis. Stat. Ann. 972.1 4(2m) (West1998) (Before pronouncing sentence, the court shall inquire of the district attorneywhether he or she ha s complied with 971.095(2) and with sub. (3)(b), whether any ofthe victims of a crime considered at sentencing requested notice of the date, time andplace of the sentencing hearing and, if so, whether the district attorney provided to thevictim notice of the date , time and place of the sentencing hearing.); Wyo. Stat. Ann.I -40-204(b)(i) (2004) (requiring prosecutor to inform victim about all hearings). Butsee Ohio Rev. Code Ann. 2930.06(C) (2005) (requiring court to give notice to victimof court proceedings).

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Id. at 324. United States v, fiigrassia, 2005 U.S. Dist. LEXIS 27817 (E.D.N.Y. Sept.



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7, 2005) (ordering the government to give written notice to all 200 victims in thecase). It goes without saying that the authorities have the duty to te ll victims whattheir rights are:

the Utah Supreme Court ha s held that prosecutors have the responsibilityto assist victims in exercising their rights.State v. Shaffer, 239 P.3d 285, 294 (Utah App. 2010), quoting State v. casey, 4 4 P .3 d756 (Utah 2002) (plea hearing reopened to cure failure to give notice to victim andopportunity to be heard)

The defendant in a criminal case is provided with counsel. Either the lawyer, orthe police, tell him about his r igh ts . See, e.g., Miranda . Arizona, 384 U.S. 436(1966). The victim is not provided with his ow n lawyer, bu t he does get to depend onthe lawyer for the state (usually the District Attorney) for an explanation of his rights.That is basic fairness. Indeed, surely no agent of the State is going to argue that thevictim should have fewer rights than the accused. Cf. Creekmore v. State, 860 S.W.2d880, 887 (Tex. CL App. 4, 1993) (For too long, the victims of crime have been leftou t of the criminal justice process. They are often regarded a s m er e witnesses of thestate or simply as troublesome spectators. This altitude gives an increasing number ofvictims and their families the impression the state is more concerned with the rights oft he c rim in al than with those of the victim), quoting HOUSE COMM. ONCRIMINAL JURISPRUDENCE, BILL ANALYSiS, Tex. H.B. 235, 69th Leg., R.S.(1985).

In this case, Plaintiffhas never been told his rights. When he fmally began tofigure them ou t for himself, the Defendants have done nothing bu t obstruct hisassertion of those rights. Thus, the Defendants axe equitably estopped from claiming

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that Plaintiffs intervention come s too late, even if that were an argument that had any



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me rit (which it does not).V. THE PROVISIONS OF THE TEXAS VICTIMS BILL OF RIGHTS AND

OTHER RELATED LAW ARE MANDATORY AND ENFORCEABLEPerhaps Defendants will argue that the Texas law s pro viding rights to the

victims of crime are just so much hot air, and are not really mean t to be enforceable.If tha t is an argument to be made , then Defendan ts are obviously mistaken.

The limited number of Texan cases on (he issues have made clear that the law sare enforceable. See , e.g., Montalo v. State , 315 S.W .2d 588, 595 (Te x. CL. App. I,2010 ) (The parties do not dir ectly address the future safety of the victims and thecommunity. I l Nevertheless, we assume, as we must, th at the trial court consideredthese factors in assessing bail.), citing Tex code Cr1,,:. Proc . Ann. Art 56. 02a)(2)(Vernon Supp. 2009) (A victim, guardian of a victim , or close relative of a deceasedvic tim is entitled to. .. the right to have the magistrate tak e the safe ty of the victim orhis family into consideration as an element in fix ing the amount of bail for theaccused).

One of the few cases to hold oth erwise was a panel in the T im McVeigh case ,the Oklahoma Bombing. (hilled States i McVeigh, 106 F.3d 325(0 Cir. 1997 ).Rather than wait for the Supreme Court to overturn the decision, Co ngress ste pped inand passed the crime Victims Rights Ac t (CVRA), 18 U.S.C . 3771 (2004), to makethe ir intentions clear . See Federal Judicial Center, The Crime Victims Rights Ac t of2004 and the Federal courts, at 1 (Oct. 24, 2005) (available at v.t ic .aov) (42U.S.C. 10606 (Victims Rights), now replaced by the CVRA, ... included a list ofvictims rights but did not provide any mean s of enforcement). Since the CVRAclarified the law, the cou rts have clearly defined the victims role in enforcin g theirrig hts. See Kenna v United States District Court, 435 F.3d 1011 (9h Cir. 2006) . Other

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states have similarly found the rights to be enforceable. London i. State, 1999 WL



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46543 at *2 (Alaska Ap p. Feb . 3, 1999) (ev en without enabling legislation, the tightsare self-executing and enf orceable).

VI . THE RIGHTS OF THE VICTIM INCLUDE THE RIGHT NOT TO BEREVICT1MISED BY THE LEGAL SYSTEMSo what are those righ ts? The first and one with wh ich surely everyone can

ag ree is the victims right not to be revictimized by the system. Harvard ProfessorLauren ce Tribe is one of the leading constitutional scholars or our day. He has writtenon the subject of avoiding the revictiniization of the pe rson who suffers at the bandsof the violent offender

Pursu ing and punishing criminals ma kes little sense unless society does soin a manner that fully respects the rights of their victims to be accordeddignity and respect, to be treated fai rly in all relevant procee ding s, and tobe assured a me aning ful opportunity to observe, and take part in suchproc eedings. These are the very kinds of rights with which ourConstitution is typically and properly concerned . The rights inquestion, rights ofcrime iicthns not to be vic timized yet again thr ough theprocesses by iihich goiermnent bodies and offic ials prosecu te, punish andrelease the accu sed or convicted offender, are indis puta bly basic humanrights tha t any civilized system of justice wou ld asp ire to protect andstrive never to violate.

Statement of Laurence Tribe, Proce ssor of Co nstitutional Law, Harv ard Law Schoo l,A proposed Constitutional Am endment to Protect Victims of crime: Hearings on SJRes 6 Before the Senate Committee on the Judiciaiy, 105h Co ng . 11(1997) (emphasissupplied).

Thus far , the Sta te of Texas has, sadly, done nothing but revictimize Plaintiffin this case. The Defendants and their officials failed to tell Plaintiff (or the othervictims family members) of their righ ts. The former Dallas District Attorney plowedahead with the death penalt y wi thou t ever discussing the issue with the victims. Theprosecution called Plaintiff at trial, told him to answer the questions asked, andchoreographed the trial so [hat it seem ed to the jurors who we re similarly betrayed

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tha t Plaintiff want ed the death penalty imposed. Plaintiff was never allowed to make a



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vict im impact statemen t befo re the jury or be for e the Court.Since tha t time, the ir pound of flesh exacted, the Defendants and their agents

have shown Plaintiff no respect at all. The Defendants told Mark Strm an that hecould no t contac t Plaintiff and effectively made Plaintiff one of the only peo ple on theplanet who was barred from visiting Mark Strman. No official told him about hisright to mediation, but when lie fmally learned abou t it he (and Mark Strma n) askedfor the process to be ini tiated. He has not heard back. He has asked for the righ t toappear in per son before the Pardon and Parole Board, and nobody has had thecourtesy to get back to him on it.

All in all, the De fendants have shown no respec t for a single right that hepossesses. Governor Perry decreed tha t April 10-16, 2011 , wou ld be Victims RightsWeek . I encourage all Texans, he said, to join in thi s effort by learning more aboutvictims rights and sup porting vic tims of crime whenever.possible. We can help ourfellow Texans on the roa d to recovery with compassion and respect.

These are tine wo rds. However , they do not appear to be backed up by action.Governor Perry has shown no compassion and no respect to Plaintiff; and neitherhave his agents.

VII. THE VICTIMS RIGHT TO FAIRNESS AND RESPECT IS A VERYREAL RIGHTMosE victims rig hts provisions provide that vic tims should be treated with

dig nity and respect. See 18 US. C. 3771(a)(2), (4), (8). Tex. Const. Art. 1, 30(a)( 1)(A crime vic tim has the following rig hts: (1) the right to be treated with fa irness andwith respec t for the victims dignity and privacy throughout the crim inal justicepro cess).See http://www.texansforegualiustice.ordocs/cvrw1 1. pd f.

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Th e courts have recognized that the right to dignity, fairness and respect is no t a



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hollow drum, bu t is an enforceable right. See RoinThy i. Schneider, 45 P.3d 685 , 688(Ariz. Ct. App. 2002) (right to liimess, dignity and respect to be free fromintimidation, harassment and abuse relevant to the question of whether a victimshould be fingerprinted over objection); Stale v. ONeill, 836 P .2d 393 , 394 (Ariz. Ct.App. 1991) (right to fairness, dignity and respect to be free from intimidation,harassment and abuse relevant to the issue of recording all witness interviews); Slatei. Broberg, 677 A.2d 602 , 612 (Md. 1996) (while t he r igh t to dignity, respect and

sensitivity is relevant to the issue, it does no t compel admission of in life picturesof the victim at trial); State v. Tininiendequas, 737 A.2d 55, 75-82 (N.J. 1999) (rightto fairness and dignity includes the right f or th e victims voice to be beard in thebalance when changing venue); State in the Interest ofKP., 709 A.2df315, 321 (N.J.Sup er . C t. 1 99 7) (language of fairness, compassion and respect create mandatoryand self-executing rights for victims); State v. Gonzales, 912 P.2d 2 97 , 3 00 (N.M.1996) (identifying right to dignity and privacy, but ruling in this case tha t i t does notpermit the selective assertion of privilege); State v. McDonald, 839 S.W.2d 854, 858-59 (Tex. 1992) (iight to fa irness gives the victim tight to access to the prosecutor, butno t an unfettered right to material about the defendant in the prosecutors file).

This right has simply been ignored in Plaintiffs case, and must be enforced bythis Court.

Vifi. THE VICTIM CLEARLY HAS THE RIGHT TO HAVE A SAY IN THEPROPER DISPOSiTION OF THE CASEPlaintiff also has the right to have a say in the disposition of the case. It should

have taken place prior to trial (where he would have advocated strongly for a pealprocess that could have spared everyone the years of heartache, and guaranteed that

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Mark Strman spent l if e in prison). Given that this right wa s denied to him, it must



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take place now.There is no question bu t that Plaintiff has this right:

It would be difficult to conceive of a more absurd result than to adopt aconstruction [of the victims right to address the court at all sentencingproceedings] which would prevent a victim ... from having a meaningfulopportunity to protest a plea bargain that will allow a defendant to escapethe punishment which the v ic tim ... feels is appropriate to the crime.[Such a] Construction would reduce the victims statement to an aridriti.ial ofmeaningless for

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