in Re G.S.

Supreme Court of Texas
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No. 21-0127
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In re G.S.,
Relator

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On Petition for Writ of Mandamus
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Argued January 11, 2022

JUSTICE BOYD delivered the opinion of the Court.

JUSTICE LEHRMANN filed a concurring opinion.

In this case involving a claim for wrongful-imprisonment
compensation under the Tim Cole Act, we are presented again with the
question of whether an applicant adequately established his “actual
innocence.” Although the applicant here essentially concedes he did not
establish his actual innocence exactly as the Act requires, he earnestly
contends he nevertheless proved his actual innocence and effectively
satisfied the Act’s requirements. But the Act specifies how an applicant
must prove his actual innocence, and we are not at liberty to modify or
relax those requirements. We deny mandamus relief.
 I.
Background

In September 2010, G.S. pleaded guilty to indecency with a child
and was sentenced to seven years’ imprisonment. Four years later, he
applied for a writ of habeas corpus, arguing that his attorney had
provided ineffective assistance by advising him that he would be eligible
for parole after serving a fourth of his sentence when, in fact, he would
not be eligible until he served half. After the attorney acknowledged he
provided incorrect advice, the trial court found that G.S. would not have
accepted the plea agreement had he known the truth about his parole
eligibility and recommended that the Court of Criminal Appeals grant
G.S. habeas relief. In an unpublished, per curiam opinion, the Court of
Criminal Appeals agreed with the recommendation, reversed G.S.’s
conviction based on ineffective assistance of counsel, and remanded the
case for a new trial. By the time G.S. was released from prison, he had
served three years, eight months, and two days.
While the case was pending in the trial court on remand, the
district attorney received written declarations from individuals who
stated that G.S.’s alleged victim had admitted to them that she had
fabricated the accusations. In June 2015, after receiving these
declarations, the district attorney moved that the case be dismissed
“pending further investigation.” The next month, the alleged victim
provided her own written declaration admitting she had “falsely
accused” G.S. to “punish” a woman with whom he was living at the time.
In September 2015, G.S. applied for wrongful-imprisonment
compensation under the Tim Cole Act. See TEX. CIV. PRAC. & REM. CODE

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§§ 103.001–.154. 1 He included with his application a copy of the Court
of Criminal Appeals’ opinion granting him habeas relief based on the
trial court’s findings that G.S.’s attorney gave him “erroneous advice
regarding parole eligibility” and that his “plea was involuntary due to
the reliance on that bad advice.” He also included a copy of the district
attorney’s motion to dismiss the charges. The motion was a preprinted
form with boxes to check to indicate the reason for dismissal, including
boxes for “The evidence is insufficient,” and “The complaining witness
has requested dismissal.” The district attorney checked only the box for
“other” and wrote “pending further investigation.”
The Texas Comptroller of Public Accounts denied G.S.’s
application for compensation, stating, “The habeas corpus order
included with your application does not meet the actual innocence
requirement,” and, “The motion to dismiss included with your
application does not contain the [statutorily] required statements from
the State’s prosecuting attorney, nor was there an affidavit containing
the required statements included with your application.” G.S. filed an
application to cure in November 2015 and included a copy of the alleged
victim’s written declaration recanting her accusations. The Comptroller
denied that application for the same reasons.
In October 2016, the district attorney recommended that all
records regarding G.S.’s arrest and conviction be expunged. The trial

1The Act, formerly known as the Texas Wrongful Imprisonment Act,
was renamed for Cole in 2009. See In re Lester, 602 S.W.3d 469, 471 n.1 (Tex.
2020) (discussing Cole’s history and receipt of the State’s first posthumous
pardon in 2010 after DNA evidence cleared him of the crime for which he had
been serving a twenty-five-year term of imprisonment at the time of his death).

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court granted expunction on October 20, 2016. Over the next four years,
G.S. filed four more applications for compensation, with which he
included copies of the expunction recommendation and order. The
Comptroller denied all four for the same reasons he denied the first two
applications. In addition, the Comptroller denied the last two
applications because G.S. filed them more than three years after the
district attorney dismissed the underlying case. See id. § 103.003
(imposing three-year limitation). G.S. filed his petition for writ of
mandamus in this Court on February 4, 2021. 2

II.
“Actual Innocence” under the Tim Cole Act

The Tim Cole Act provides compensation to those who have been
wrongfully imprisoned. The Act delegates to the Comptroller the duty to
determine a claimant’s eligibility. Id. § 103.051(b)(1). This duty is
“purely ministerial.” Id. § 103.051(b-1). When evaluating a claim for
compensation under the Act, the Comptroller “shall consider only” the
“verified copy of the pardon, court order, motion to dismiss, and
affidavit, as applicable, justifying the application for compensation.” Id.
§ 103.051(a)(2), (b-1). The documents must “clearly indicate on their face
that the person is entitled to compensation.” Id. § 103.051(b-1).

2 See TEX. CIV. PRAC. & REM. CODE § 103.051(e) (permitting claimant
who is ultimately denied compensation to “bring an action for mandamus
relief”); TEX. GOV’T CODE § 22.002(c) (“Only the supreme court has the
authority to issue a writ of mandamus . . . against any of the officers of the
executive departments of the government of this state . . . .”); see also TEX.
CONST. art. IV § 1 (“The Executive Department of the State shall consist of a
. . . Comptroller of Public Accounts . . . .”).

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 The Act provides “three distinct methods of establishing
eligibility for compensation.” In re Brown, 614 S.W.3d 712, 716 (Tex.
2020). Specifically, the application must establish that (1) the claimant
“has received a full pardon on the basis of innocence for the crime for
which the person was sentenced,” (2) the claimant “has been granted
relief in accordance with a writ of habeas corpus that is based on a court
finding or determination that the person is actually innocent of the
crime for which the person was sentenced,” or (3) the trial court
dismissed the charge against the claimant “based on a motion to dismiss
in which the state’s attorney states that no credible evidence exists that
inculpates the defendant and . . . the state’s attorney believes that the
defendant is actually innocent of the crime for which the person was
sentenced.” TEX. CIV. PRAC. & REM. CODE § 103.001(a)(2)(A)–(C). G.S.
does not claim to have received a pardon, so the first eligibility method
is not at issue here. But he claims he established a right to compensation
under both of the remaining eligibility methods.
A. Habeas relief based on an actual-innocence finding

G.S. first claims he is entitled to compensation because the Court
of Criminal Appeals granted him habeas relief “based on a court finding
or determination” that he “is actually innocent of the crime” for which
he was sentenced. Id. § 103.001(a)(2)(B). But neither the trial court,
which recommended that G.S. receive habeas relief, 3 nor the Court of

3 Under our habeas procedures, if the convicting court decides “there
are controverted, previously unresolved facts material to the legality of the
applicant’s confinement,” it makes findings and conclusions regarding the
applicant’s confinement and transmits those findings and its recommendation
to the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. art. 11.07, § 3(c)–

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Criminal Appeals, which granted that relief, made any such finding or
determination. The trial court found that G.S. was entitled to habeas
relief because he “demonstrated that he would not have pleaded guilty
and insisted on going to trial, but for trial counsel’s erroneous parole
eligibility advice.” And the Court of Criminal Appeals granted habeas
relief based on that finding, concluding that G.S.’s “plea was involuntary
due to the reliance on that bad advice.”
Nevertheless, G.S. argues he satisfied the Act’s second eligibility
method because the Court of Criminal Appeals impliedly or necessarily
found that he was actually innocent under a Schlup-type analysis. See
Schlup v. Delo, 513 U.S. 298 (1995). Specifically, he likens his
circumstances to those we addressed in In re Allen, 366 S.W.3d 696 (Tex.
2012), in which we held that the Court of Criminal Appeals implicitly
made a Schlup-type actual-innocence finding when it granted habeas
relief based on ineffective assistance of counsel. But Allen does not help

(d). The Court of Criminal Appeals shall then “enter its judgment remanding
the applicant to custody or ordering his release, as the law and facts may
justify.” Id. art. 11.07, § 5.
The Tim Cole Act does not specify whether the Comptroller may look to
the trial court’s findings of fact or recommendation in determining whether the
applicant is entitled to compensation. The Act says the Comptroller may
consider “only” the “verified copy of the . . . court order . . . justifying the
application for compensation.” TEX. CIV. PRAC. & REM. CODE § 103.051(b-1),
(a)(2) (emphasis added). But the Act also requires a showing that the
applicant’s habeas relief was “based on a court finding or determination that
the person is actually innocent of the crime for which the person was
sentenced.” Id. § 103.001(a)(2)(B) (emphasis added). We need not and do not
decide whether the Comptroller may consider any underlying trial-court
findings not expressly stated in the Court of Criminal Appeals’ opinion. In this
case, none of the trial-court findings addressed any issues of actual innocence.

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G.S. here because his habeas petition was not based on a Schlup-type
claim for relief.
As we recently explained, “‘actual innocence’ is a ‘legal term of art
[that] has acquired a technical meaning in the habeas corpus context.’”
In re Lester, 602 S.W.3d 469, 472 (Tex. 2020) (quoting Allen, 366 S.W.3d
at 706). This technical meaning encompasses two types of actual
innocence: the Herrera type, which asserts that a conviction was
substantively deficient because new evidence, such as DNA testing,
establishes the person’s actual innocence; and the Schlup type, which
involves “procedural claims that provide a ‘gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.’” Id. (citing Herrera v. Collins, 506 U.S.
390 (1993), and quoting Allen, 366 S.W.3d at 704, in turn quoting
Schlup, 513 U.S. at 315). Importantly, “a petitioner may succeed on
a Schlup claim only if the petitioner’s claims for habeas relief are
procedurally barred.” Id.
Schlup applies when a procedural bar prevents a claimant from
obtaining habeas relief despite the existence of new evidence
establishing the claimant’s actual innocence. Schlup, 513 U.S. at 315. A
defendant who establishes that his constitutional rights were violated
during a criminal prosecution—for example, by showing that his
counsel’s assistance was unconstitutionally ineffective—can generally
obtain habeas relief on that basis. See id. at 314. But various “procedural
obstacles”—for example, a statutory limitation on the number of habeas
petitions a defendant may file—can prevent the court from addressing
the merits of that constitutional claim unless the defendant can show

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that the procedural bar creates a “fundamental miscarriage of justice.”
Id. at 314–15 (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). A
defendant can show such a miscarriage of justice if he brings forth
evidence that he is actually innocent, thus avoiding the procedural bar
and giving him the opportunity to prove the alleged constitutional
deprivation. Id. at 315. So to prevail on a Schlup-type claim, the
defendant must establish both his actual innocence and the
constitutional error that caused his conviction despite his actual
innocence. Id. at 316.
The defendant in Allen asserted a Schlup-type claim, arguing
that new evidence established that he was actually innocent and that
his counsel’s ineffective assistance led to his conviction. Allen had to rely
on Schlup because he had already filed previous habeas applications
asserting ineffective assistance of counsel, resulting in a procedural bar
that prohibited him from filing another. See Allen, 366 S.W.3d at 702
(“Over his twenty-five years in prison, Allen filed several writs of habeas
corpus challenging [his] convictions.”). 4 The Court of Criminal Appeals
granted Allen habeas relief based on ineffective assistance of counsel,

4 See also TEX. CODE CRIM. PROC., art. 11.07, § 4 (“[A] court may not
consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously considered
application filed under this article because the factual or legal basis for the
claim was unavailable on the date the applicant filed the previous application;
or (2) by a preponderance of the evidence, but for a violation of the United
States Constitution no rational juror could have found the applicant guilty
beyond a reasonable doubt.”); Ex parte Allen, 2009 WL 282739, at *3 (Tex.
Crim. App. Feb. 4, 2009) (not designated for publication) (“This ‘[Schlup]
gateway’ has been codified in our post-conviction habeas corpus statute as a
requirement for relief for a subsequent application.”).

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but it did not expressly find in its order or opinion that Allen was
actually innocent. Nevertheless, we held that Allen was eligible for
wrongful-imprisonment compensation because, in light of the
procedural bar, the Court of Criminal Appeals could only have
addressed Allen’s ineffective-assistance claim if it first determined,
implicitly or explicitly, that Allen was actually innocent. Id. at 710.
In this case, G.S. sought habeas relief—and the Court of Criminal
Appeals granted it—based solely on his attorney’s ineffective assistance.
He did not make the claim of actual innocence that “accompanies” a
constitutional claim under Schlup. See Schlup, 513 U.S. at 316. Nor did
he need the Schlup gateway because his constitutional claim was not
procedurally barred and was, in fact, heard and ruled upon by the trial
court and the Court of Criminal Appeals. See In re Lester, 602 S.W.3d at
472 (“Lester’s habeas petition also was not procedurally barred,
eliminating the need for a Schlup gateway claim.”). So the Court of
Criminal Appeals was not required to find that G.S. was actually
innocent before it could rule on his ineffective-assistance claim. And so
we cannot conclude, as we did in Allen, that the Court necessarily or
implicitly did so. We thus conclude that G.S. has not established that he
is eligible for compensation on the ground that a court granted him
habeas relief based on a finding of actual innocence.
B. Dismissal based on prosecutor’s statements

Nor do we agree that G.S. has established eligibility for
compensation based on the Act’s third method. Under that method, a
claimant is eligible if the trial court dismissed the charge “based on a
motion to dismiss in which the state’s attorney states that no credible

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evidence exists that inculpates the defendant and . . . the state’s attorney
believes that the defendant is actually innocent of the crime for which
the person was sentenced.” TEX. CIV. PRAC. & REM. CODE
§ 103.001(a)(2)(C)(ii). Here, the trial court dismissed the case based on
the district attorney’s motion, but the motion stated only that the
district attorney wished to dismiss “pending further investigation.”
G.S. argues, however, that the district attorney’s subsequent
agreement to expunge G.S.’s records “ratifies the [alleged victim’s]
declaration and clearly indicates actual innocence.” But the Act does not
allow the Comptroller to consider the district attorney’s expungement
motion. See id. § 103.051(a)(2) (allowing consideration only of “a verified
copy of the pardon, court order, motion to dismiss, and affidavit, as
applicable, justifying the application for compensation”). And even if the
Comptroller could consider it, the motion did not provide the statutorily
required grounds for a court to find actual innocence.
To be eligible for compensation under the Act based on a district
attorney’s dismissal motion, the district attorney must both
acknowledge the lack of evidence and state his own belief that the
claimant is actually innocent. See id. § 103.001(a)(2)(C)(ii) (requiring
statements “that no credible evidence exists that inculpates the
defendant and . . . that the state’s attorney believes that the defendant
is actually innocent of the crime for which the person was sentenced”).
Here, neither the motion to dismiss nor the motion for expunction
expressed such a belief. Although the district attorney might have
sought dismissal and expunction because of the alleged victim’s
recantation, neither motion provides any “clear indication” of his reason,

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and nothing in the record compels or permits us to guess at the district
attorney’s motives.
Although the district attorney filed a motion to dismiss the
charges against G.S., the motion did not state that “no credible evidence
exists that inculpates” G.S. or that the district attorney “believes that
the defendant is actually innocent of the crime for which the person was
sentenced.” Id. Although the statute may not require that the motion
use those exact words, the dismissal motion here did not include any
language that could be construed as expressing the necessary
assertions. As a result, G.S. did not demonstrate eligibility for
compensation under the Act’s third method.

III.
Conclusion

The Tim Cole Act laudably provides compensation to those whom
the state has wrongfully imprisoned. But the Act itself creates that right
and controls whether and how a person can receive the compensation.
In the absence of a pardon based on actual innocence fulfilling the Act’s
first eligibility method, the Comptroller cannot grant compensation
unless a court order finds that the person is actually innocent or
dismisses the charges based on a motion asserting that he is actually
innocent. See id. § 103.051(b-1) (noting the Comptroller’s “purely
ministerial” duty to determine whether the documents submitted by the
applicant “clearly indicate on their face that the person is entitled to
compensation”). Because the documents G.S. submitted to the
Comptroller did not establish his actual innocence as the Act requires,

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G.S. has not proven his entitlement to compensation under the Act. 5 We
therefore deny his request for mandamus relief.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: April 22, 2022

5 We state no opinion on whether G.S. can ever prove his eligibility for
compensation. The Comptroller has suggested to this Court that G.S. could yet
qualify for compensation by convincing the district attorney to file a motion to
amend the trial court’s dismissal order in which the district attorney satisfies
the third eligibility method, see, e.g., Brown, 614 S.W.3d at 714–15 (noting that
the district attorney in that case moved to amend the trial court’s dismissal
order to include the statutory innocence grounds after Brown’s case had been
dismissed because witness testimony could not be corroborated), by petitioning
the legislature for a private bill, see, e.g., Act of May 23, 1957, 55th Leg., R.S.,
ch. 496, § 1, 1957 Tex. Gen. Laws 1429, 1438 (granting Kenneth Massey “aid
and compensation for serving a prison sentence for an offense for which he was
not guilty”), or by seeking an amendment to the Act. None of these alternatives
are relevant to our disposition in this case, and we do not pass judgment on
their viability.

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