Supreme Court of Texas
══════════
No. 21-0127
══════════
In re G.S.,
Relator
═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════
JUSTICE LEHRMANN, concurring.
I agree with the Court that application of the Tim Cole Act’s plain
language forecloses G.S.’s entitlement to compensation. The Act
provides a purely statutory cause of action, and “statutory proceedings
are strictly governed by the statute of their creation.” Tex. Emp.
Comm’n v. Int’l Union of Elec., Radio & Mach. Workers, 352 S.W.2d 252,
254 (Tex. 1961). I write separately to express my concern that this
statutory language will, in some cases, deny relief to the very people the
Act was intended to compensate: those wrongfully imprisoned for crimes
they did not commit. Perhaps it is worth the Legislature’s revisiting
some of the Act’s language to avoid that result.
As the Court explains, the Act provides three methods by which
a claimant may establish eligibility for compensation: (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). The
common thread among these methods is the claimant’s innocence of the
crime for which he was sentenced. However, the specific eligibility
requirements strike me as creating the potential for the denial of
compensation for two reasons unrelated to whether the claimant was
wrongfully imprisoned for a crime for which he is innocent.
First, as this case demonstrates, timing can have a significant, if
not dispositive, effect on eligibility. The order of the pertinent events is
as follows:
• G.S. was sentenced to seven years’ imprisonment after
pleading guilty to indecency with a child.
• The Court of Criminal Appeals granted G.S.’s petition for writ
of habeas corpus based on ineffective assistance of counsel,
reversed his conviction, and remanded for a new trial.
• The district attorney received written declarations from
individuals stating that G.S.’s alleged victim admitted to them
that she had fabricated the accusations against him.
• The district attorney moved to dismiss the case “pending
further investigation.”
• Shortly thereafter, the alleged victim submitted a written
declaration admitting that she had falsely accused G.S.
2
• On the district attorney’s motion, the trial court expunged all
records regarding G.S.’s arrest and conviction.
Because G.S. was granted habeas relief before any of the evidence
of false accusations came to light, the relief was not “based on a court
finding or determination that [G.S.] is actually innocent of the crime for
which [he] was sentenced.” Id. § 103.001(a)(2)(B). It stands to reason
that had such evidence surfaced earlier, G.S. would have been entitled
to habeas relief on actual-innocence grounds and thus eligible for
compensation under the Tim Cole Act. Similarly, because the district
attorney moved to dismiss before the definitive exculpatory evidence—
the alleged victim’s own admission of making false allegations—was
received, the attorney did not make any statements in the motion
regarding G.S.’s actual innocence. Id. § 103.001(a)(2)(C). Again, had
the case not already been dismissed, it is likely that the district attorney
would have filed a motion with the requisite statutory language
regarding a lack of credible evidence and the attorney’s belief of G.S.’s
actual innocence. Indeed, the district attorney’s moving to expunge all
records of the arrest and conviction reinforces that likelihood. That G.S.
is not eligible for compensation under the Tim Cole Act because he
obtained habeas relief and dismissal too soon—even though the evidence
now points overwhelmingly to his innocence—strikes me as counter to
the Act’s overarching purpose.
As the Court notes, the Comptroller has suggested that G.S. could
still qualify for compensation by, among other things, “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
requirement.” Ante at 12 n.5. Assuming that is correct, it bears on my
3
second concern about the Act’s language: a claimant’s entitlement to
compensation can hinge on the apparently unbridled discretion of the
state’s attorney to include, or not include, the requisite language in a
motion to dismiss following receipt of exculpatory evidence. 1 See TEX.
CIV. PRAC. & REM. CODE § 103.001(a)(2)(C)(ii) (describing the third
method of eligibility for compensation as being “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”). The state’s attorney could have many reasons for
declining to include such language, some legitimate and some improper.
And I see no basis on which to conclude the district attorney here has
acted based on questionable motives or for any other inappropriate
reason; indeed, the district attorney moved to dismiss “pending further
investigation” at a time when the case against G.S. was still being
evaluated and, ultimately, moved to expunge all arrest and conviction
records. However, tying compensation eligibility to the state’s attorney’s
exercise of discretion in this way could easily lead to the denial of
compensation to a person who by all accounts should receive it.
For these reasons, the Legislature should consider amending the
Act to address these concerns and to at least attempt to ensure that
individuals who should be eligible for compensation under the Tim Cole
1 The Comptroller’s other suggestions for G.S.’s proving eligibility—
petitioning the Legislature for a private bill or seeking an amendment to the
Act—are similarly speculative.
4
Act are eligible. With these additional thoughts, I join the Court’s
opinion and concur in the judgment.
Debra H. Lehrmann
Justice
OPINION DELIVERED: April 22, 2022
5