IN THE SUPREME COURT OF TEXAS
444444444444
NO . 11-0441
444444444444
IN RE MICHAEL N. BLAIR , RELATOR
4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444
JUSTICE LEHRMANN , joined by CHIEF JUSTICE JEFFERSON , JUSTICE JOHNSON , and JUSTICE
WILLETT , dissenting.
In 1994, Michael Blair was convicted of and sentenced to death for a murder he did not
commit. In 2004, while still on death row for the murder conviction, Blair pled guilty to four counts
of molesting a child and began serving life sentences for those convictions. The murder conviction
was set aside in 2008, and Blair then began his quest for compensation under the Tim Cole Act. See
TEX . CIV . PRAC. & REM . CODE §§ 103.001–.154.
For the reasons stated in the plurality opinion, I agree that, to the extent the Comptroller
preserved the argument, Blair is not procedurally barred from seeking judicial review in this Court
of the Comptroller’s denial of his second application for compensation under the Tim Cole Act.
More specifically, I do not believe the Act requires claimants to submit an application to cure to the
Comptroller after a denial of compensation “if there is nothing to cure.” ___ S.W.3d at ___. Nor
do I believe the Act prohibits successive applications.
However, I also join Part IV of JUSTICE BOYD ’S concurrence and would hold that Blair’s
2004 felony conviction does not foreclose Blair’s eligibility for any compensation under the Act.
The plain language of the Act, when properly construed in context, confirms that an applicant who
is convicted of a felony (meaning the act of conviction, not the status of being convicted) after he
becomes eligible for compensation is not wholly deprived of such eligibility. See TEX . CIV . PRAC.
& REM . CODE § 103.154(a) (“[C]ompensation payments to a person under this chapter terminate if,
after the date the person becomes eligible for compensation . . . , the person is convicted of a crime
punishable as a felony. Compensation payments terminate under this subsection on the date of the
subsequent conviction.”) (emphasis added). Under this section, the compensation payments to which
Blair was otherwise entitled for the wrongful murder conviction terminated upon, but were not
nullified by, the 2004 conviction. As the concurrence notes, while such a result may not be
“desirable under the circumstances of this case,” neither is it “absurd for the State to compensate
Blair for the ten years he spent on death row for a murder he did not commit.” ___ S.W.3d at ___.
I would conditionally grant mandamus relief and order the Comptroller to compensate Blair
for time served prior to his conviction in 2004. Accordingly, I respectfully dissent.
_________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: August 23, 2013
2