In Re Allen

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 10-0886
444444444444

IN RE BILLY FREDERICK ALLEN, RELATOR

4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444

Argued January 12, 2012

JUSTICE WAINWRIGHT delivered the opinion of the Court.

Under the Tim Cole Act (Act or TCA), formerly known as the Texas Wrongful Imprisonment

Act, a wrongfully imprisoned person may seek compensation from the state for the period of

wrongful imprisonment.1 TEX . CIV . PRAC. & REM . CODE § 103.001(a). A person is entitled to

compensation if the person 1) has served in whole or in part a sentence in prison under the laws of

this state, and 2) has been granted habeas relief on a court determination that he is “actually

innocent” of the crime for which he was sentenced.2 TEX . CIV . PRAC. & REM . CODE § 103.001(a)(1),

(a)(2)(B). Additionally, the applicant’s supporting documentation must clearly indicate on its face

that the person is entitled to compensation. TEX . CIV . PRAC. & REM . CODE § 103.051 (b-1). For the

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The statute’s namesake, Timothy Cole, was convicted and sentenced to twenty-five years in prison for
aggravated sexual assault. He maintained his innocence, but died of an asthma attack in 1999 while incarcerated. He
was exonerated years later by DNA evidence, and in 2010, Governor Rick Perry granted him the state’s first posthumous
pardon. See In re Smith, 333 S.W .3d 582, 583 n.1 (Tex. 2011); Act of May 27, 2009, 81st Leg., R.S., ch. 180, § 1, 2009
Tex. Gen. Laws 523 (naming the Act after Tim Cole).

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Relator seeks compensation solely on the basis of 103.001(a)(2)(B). A wrongfully imprisoned person may
also seek compensation on other grounds under the TCA, but they are not at issue in this case.
reasons that follow, we hold that Billy Frederick Allen is entitled to compensation under the TCA,

and we conditionally grant the petition for writ of mandamus.

Relator Billy Frederick Allen seeks compensation from the state following the Texas Court

of Criminal Appeals’ grant of habeas relief. See Ex parte Allen, Nos. AP-75580, AP-75581, 2009

WL 282739 (Tex. Crim. App. 2009) (not designated for publication). The first requirement of

serving time in a Texas prison is not at issue in this original proceeding, as Allen served almost

twenty-six years in prison under the laws of this state. On the second requirement, Allen asserts that

the Court of Criminal Appeals granted relief on the basis of “actual innocence,” and that he,

therefore, is eligible for compensation from the state. This is the crux of the dispute: What does the

legal term “actual innocence” in the TCA mean?

Allen sought habeas relief from the Court of Criminal Appeals on a Schlup-type claim of

actual innocence based on alleged constitutional violations and his actual innocence. See Schlup v.

Delo, 513 U.S. 298 (1995); Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The Court

of Criminal Appeals recognizes two types of “actual innocence” claims. The first—a Herrera

claim—is a substantive claim in which the person asserts a “bare claim of innocence based solely

on newly discovered evidence.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002);

see also Elizondo, 947 S.W.2d at 208. A court finding that a Herrera claim has been established

means that the applicant has shown “by clear and convincing evidence that, despite the evidence of

guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light

of the new evidence,” and that the claimant should be exonerated. Ex parte Brown, 205 S.W.3d 538,

545 (Tex. Crim. App. 2006) (citations omitted).

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 The other “actual innocence” claim, a Schlup-type claim, is a procedural gateway through

which a petitioner must pass to have his otherwise barred constitutional claim considered on the

merits. Schlup, 513 U.S. at 315. A court finding that a Schlup claim has been established means that

the applicant has shown that the constitutional error at trial probably resulted in the conviction of one

who was actually innocent. Ex parte Spencer, 337 S.W.3d 869, 878 (Tex. Crim. App. 2011).

Application is made to the Texas Comptroller of Public Accounts, who is authorized to

determine eligibility and the amount of monetary compensation owed to the claimant. TEX . CIV .

PRAC. & REM . CODE § 103.051(a), (b). After receiving habeas relief from the Court of Criminal

Appeals, Allen applied for compensation from the Comptroller. To establish his claim, Allen

included in his application verified copies of the Court of Criminal Appeals’ opinion, the mandate

issued by the Court of Criminal Appeals, a letter written by Charley Valdez of the Texas Department

of Criminal Justice verifying the length of incarceration, copies of Allen’s birth certificate, a divorce

decree, a birth certificate of his child, and a copy of State v. Young, 265 S.W.3d 697

(Tex. App.—Austin 2008, pet. denied). The Comptroller denied the claim, asserting that it did not

meet the requirements of the TCA. The Comptroller contends that the court order (the Court of

Criminal Appeals’ opinion) did not establish Allen’s actual innocence as required by Section

103.051(b-1). Allen submitted an application to cure to the Comptroller, and the Comptroller again

denied his application as not meeting the actual innocence requirement of Section 103.051(b-1).

TEX . CIV . PRAC. & REM . CODE § 103.051 (d). Allen submitted the same enclosures with his

application to cure, but provided the Comptroller with a letter brief supporting his belief that Schlup-

type claimants also are eligible for compensation.

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 The Comptroller’s duty in determining eligibility is purely ministerial. TEX . CIV . PRAC. &

REM . CODE § 103.051(b-1). The Comptroller’s denial of a claim is not reviewable by appeal, but

a claimant may seek review through a mandamus proceeding. TEX . CIV . PRAC. & REM . CODE

§ 103.051(e). “The original proceeding must be filed in this Court because only the Supreme Court

may issue a writ of mandamus against an officer of the executive department of this state, such as

the Comptroller.” In re Smith, 333 S.W.3d 582, 585 (Tex. 2011) (citing A & T Consultants, Inc. v.

Sharp, 904 S.W.2d 668, 672 (Tex. 1995)); see TEX . CONST . art. V, § 3 (a), TEX . GOV ’T CODE

§ 22.002(c). This Court’s general authority to issue a writ of mandamus extends to “order or compel

the performance of a judicial, ministerial or discretionary act or duty that, by state law, the officer

or officers are authorized to perform.” Smith, 333 S.W.3d at 585 (quoting TEX . GOV ’T CODE

§ 22.002(c)); TEX . CONST . art. V, § 3 (a). Together with the TCA, the Constitution and the

Government Code vest this Court with authority over this original mandamus proceeding. See

Smith, 333 S.W.3d at 585.

We decide 1) whether a grant of habeas relief on a Schlup-type claim merits compensation

under the TCA as a writ based on a court finding of actual innocence, and if so, 2) whether the Court

of Criminal Appeals’ decision clearly indicated on its face that the writ was based on a court finding

or determination of actual innocence.

BACKGROUND & PROCEDURAL HISTORY

In 1983, the City of University Park Police Department arrested and charged Allen with the

murders of Raven Dannelle Lashbrook and James Perry Sewell. After a jury trial, Allen was

convicted of both murders and received 99-year concurrent sentences. Allen appealed, and the court

of appeals affirmed the convictions. Allen v. State, Nos. 05-83-01297-CR, 05-83-01298-CR

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(Tex. App.—Dallas 1985, pet. ref’d). The Court of Criminal Appeals denied his petition to review

the convictions. See TEX . R. APP . P. 69.1.

The writ of habeas corpus is provided by the Texas Constitution and “is the remedy to be

used when any person is restrained in his liberty.” TEX . CONST . art. I, §12; TEX . CODE CRIM . PROC.

art. 11.01. The purpose of a writ of habeas corpus is to obtain a speedy and effective adjudication

of a person’s right to liberty from unlawful or unconstitutional restraint. Ex parte Kerr, 64 S.W.3d

414, 419 (Tex. Crim. App. 2002) (citing Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“the very

purpose of the writ of habeas corpus [is] to safeguard a person’s freedom from detention in violation

of constitutional guarantees”)).

Over his twenty-five years in prison, Allen filed several writs of habeas corpus challenging

the convictions. In May 2004, Allen filed the underlying habeas application pro se with the Court

of Criminal Appeals, alleging ineffective assistance of counsel and denial of a fair trial. Ex parte

Allen, Nos. AP-75580, AP-75581, 2009 WL 282739, at *3 (Tex. Crim. App. 2009) (not designated

for publication). In a December 2005 order, the Court of Criminal Appeals recognized that this was

the first writ that Allen had filed since its decision in Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim.

App. 1996). In Elizondo, the Court of Criminal Appeals held for the first time that “claims of actual

innocence are cognizable by this Court in a postconviction habeas corpus proceeding where the

punishment assessed is death or confinement.” Id. at 205. The Court of Criminal Appeals then

remanded the matter to the trial court, as the trial court had recommended a new trial with one of

Allen’s previous writs. Allen, 2009 WL 282739, at *3. The trial court issued supplemental findings,

but “did not make any specific findings regarding the issues in this case.” Id. The trial court stated

that 1) trial counsel had not been ineffective, but that 2) applicant should be granted a new trial

5
because actual innocence claims were now cognizable, and 3) because the evidence of innocence was

“so strong that the Court cannot have confidence in the outcome of the trial.” Id.

Later in 2009, the Court of Criminal Appeals considered Allen’s application on the basis of

actual innocence, holding that the claims “were not barred by the Texas Code of Criminal Procedure,

Article 11.07, Section 4, ‘[b]ecause Applicant’s prior or actual innocence claims were denied at a

time when such claims were not cognizable on habeas review.’” Id. (citing the December 2005

order). Allen “presented a Schlup-type claim of actual innocence as a procedural gateway through

which to raise his otherwise barred constitutional claim of ineffective assistance of trial counsel.”

Id. at *1. On February 4, 2009, the Court of Criminal Appeals held “that applicant is entitled to

relief” on his Schlup-type claim. Id. The Court of Criminal Appeals held that “it is not surprising

that the habeas court found that the newly discovered evidence ‘of innocence [was] so strong that

[it could not] have confidence in the outcome of the trial.’ We agree.” Id. at *9. After the Court

of Criminal Appeals granted habeas relief, Allen filed an application for compensation with the

Comptroller.

DISCUSSION

This Court is the only court holding original jurisdiction over the matter as the Respondent

Comptroller is an executive officer of the state. Smith, 333 S.W.3d at 585; see TEX . GOV ’T CODE

§ 22.002(c). Although mandamus will not issue to control an officer’s legitimate exercise of

discretion, it may issue to enforce the performance of a ministerial act. Smith, 333 S.W.3d at 585

(citations omitted). In determining eligibility of a claimant for compensation, the Comptroller shall

only consider the verified copies of the pardon, court order, motion to dismiss, and affidavit, if

applicable. TEX . CIV . PRAC. & REM . CODE § 103.051 (a)(2), (b-1). The Comptroller’s eligibility

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determination is ministerial and mandamus may issue to review the denial of a claim. TEX . CIV .

PRAC. & REM . CODE § 103.051 (b-1), (e).

This case turns on construction of the Tim Cole Act. The construction of a statute is a

question of law that we review de novo. Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156,

160 (Tex. 2011) (citation omitted). Our task is to effectuate the Legislature’s expressed intent. Id.

1. Whether a Schlup-type Claim Merits Compensation Under the TCA

The first issue presented to this Court is whether habeas relief from a Schlup-type claim is

a writ based on a court finding of actual innocence. If it is, it merits compensation under the TCA.

A claimant is entitled to compensation if relief has been granted “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.” TEX . CIV . PRAC. & REM . CODE § 103.001(a)(2)(B). The

Comptroller asserts that the Legislature never intended persons like Allen, claimants who present

Schlup-type claims, to be eligible for compensation under the TCA. Instead, the Comptroller argues

that only Herrera-type claimants are eligible for compensation, as their claims are “bare-innocence”

claims of actual innocence.

Whether compensation may be awarded under the TCA depends, in the first instance, on

determinations in the criminal courts of the merits of the applicant’s conviction. The judgments of

the criminal courts are taken as established for our purpose, and we thereafter apply the civil law

component of the TCA. We, therefore, first review the relevant criminal law.

“Claims of actual innocence are categorized either as Herrera-type claims or Schlup-type

claims.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002). A Herrera claim is a

substantive claim in which the person asserts a “bare claim of innocence” based solely on newly

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discovered evidence. Brown, 205 S.W.3d at 544 (citing Ex parte Tuley, 109 S.W.3d 388, 390 (Tex.

Crim. App. 2002)). A Herrera petitioner asserts that newly discovered evidence establishes an

applicant’s innocence. See Herrera, 506 U.S. at 390. The most familiar Herrera-type cases are

those in which DNA testing leads to exoneration of the applicant.

In addition to Herrera, a habeas applicant may raise actual innocence claims that are asserted

constitutional violations in his trial but are procedurally barred by Article 11.07 of the Code of

Criminal Procedure. Review of subsequent applications for habeas corpus relief are prohibited, as

Section 4 of Article 11.07, Texas Code of Criminal Procedure, “restricts habeas applicants to ‘one

bite of the apple’ except in specified circumstances . . . .” Ex parte Santana, 227 S.W.3d 700, 703

(Tex. Crim. App. 2007) (quoting Ex parte Torres, 943 S.W.2d 469, 473–74 (Tex. Crim. App. 1997);

see also Ex parte Brooks, 219 S.W.3d 396, 399 (Tex. Crim. App. 2007). The subsequent-application

provision “limits an inmate to one application for writ of habeas corpus except in exceptional

circumstances.” Brooks, 219 S.W.3d at 399. Once an applicant files an application challenging the

conviction, all subsequent applications regarding the same conviction must meet one of the two

conditions set forth in § 4(a)(1) & (2). Santana, 227 S.W.3d at 703; TEX . CODE CRIM . PROC . art.

11.07, § 4(a)(1), (2).3

This second type of innocence claim—a Schlup claim—is one that “‘does not by itself

provide a basis for relief,’ but is intertwined with constitutional error that renders a person’s

3
Article 11.07, section 4(a) prohibits review of subsequent applications for a writ of habeas corpus except in
limited circumstances. The application must establish one of the following exceptions: 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. T EX . C OD E C RIM . P RO C .
art. 11.07, § 4(a)(1), (2).

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conviction constitutionally invalid.” Brown, 205 S.W.3d at 544–45 (citing Schlup v. Delo, 513 U.S.

298, 315 (1995)). Unlike a Herrera claim, which is substantive, a Schlup-type claim is procedural:

it provides a “gateway through which a habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” Schlup, 513 U.S. at 315. Allen pursued a Schlup-

type claim in the Court of Criminal Appeals. He asserted a constitutional claim for ineffective

assistance of counsel, which coupled with a proper defense of his case at trial would probably have

concluded in a not guilty verdict.

The Supreme Court defined actual innocence in a Schlup-type claim. According to Schlup

v. Delo, actual innocence:

does not merely require a showing that a reasonable doubt exists in the light of the
new evidence, but rather that no reasonable juror would have found the defendant
guilty. It is not the district court’s independent judgment as to whether reasonable
doubt exists that the standard addresses; rather the standard requires the district court
to make a probabilistic determination about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.

513 U.S. 298, 329 (1995). In Schlup, “the petitioner raised a claim of actual innocence in an effort

to bring himself within ‘the narrow class of cases’ implicating a fundamental miscarriage of justice

as an exception to a showing of cause and prejudice for failure to raise the claim in an earlier writ.”

Elizondo, 947 S.W.2d at 208 (citing Schlup, 513 U.S. at 298). Successful Schlup claimants are the

“extraordinary” cases. Brooks, 219 S.W.3d at 400. The Court of Criminal Appeals recognizes that

Texas law “allows review of the merits in the exceptional circumstances of a constitutional violation

resulting in the conviction of one who is actually innocent of the offense.” Id. at 401. To grant

Schlup relief, an applicant must meet the threshold requirement of showing that a constitutional

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violation led to a miscarriage of justice due to the incarceration of someone who is actually innocent.

Id.; see also Ex parte Thompson, 179 S.W.3d 549, 557 n.19 (Tex. Crim. App. 2005) (“Applicant

argues that his ‘factual innocence’ claim is cognizable under Schlup v. Delo . . . . But it is not.

Applicant makes no showing that he is innocent of capital murder or that the State violated his

constitutional rights by trying him before his accomplice, Sammy Butler.”).

The two claims require applicants to meet different burdens of proof to obtain habeas relief.

Establishing a bare claim of actual innocence, or a Herrera claim, is a “Herculean task.” Brown, 205

S.W.3d at 545. To succeed on a Herrera claim, the habeas applicant must “unquestionably

establish” his actual innocence, and show “clear and convincing evidence that no reasonable juror

would have convicted him in light of the new evidence.” Elizondo, 947 S.W.2d at 209. Herrera

applicants are “required to meet a higher threshold to obtain relief because, when the trial has been

constitutionally error free, the conviction is entitled to the utmost respect.” Ex parte Spencer, 337

S.W.3d 869, 877–78 (Tex. Crim. App. 2011).

A Schlup claimant, on the other hand, need only show that he is “probably” actually innocent,

meaning “more likely than not that no reasonable juror would have convicted him in the light of the

new evidence.” Elizondo, 947 S.W.2d at 209; see also Schlup, 513 U.S. at 326–27. The lower

standard is justified because the conviction “may not be entitled to the same degree of respect of one,

such as Herrera’s, that is the product of an error-free trial.” Schlup, 513 U.S. at 316. To obtain relief

on a Schlup claim, the claimant must therefore show that the constitutional error at trial probably

resulted in the conviction of one who was actually innocent. Spencer, 337 S.W.3d at 878.

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 a) Compensation for Wrongfully Imprisoned Persons in Texas

Wrongfully imprisoned persons have not always been entitled to compensation from the

state. In re Smith, 333 S.W.3d at 585. In 1955, the people adopted a constitutional amendment

granting the Legislature power to grant aid and compensation to persons who have served prison

sentences for offenses of which they were not guilty, “under such regulations and limitations that the

Legislature may deem expedient.” TEX . CONST . art. III, § 51-c. Ten years later, the Legislature

enacted the first wrongful-imprisonment compensation statute. Act of May 28, 1965, 59th Leg.,

R.S., ch. 507, 1965 Tex. Gen. Laws 1022, 1022–1024. A person was entitled to compensation if “he

is not guilty of the crime for which he was sentenced.” Id. at 1022. Almost thirty years later, the

Supreme Court decided Herrera v. Collins and Schlup v. Delo. 506 U.S. 390 (1993); 513 U.S. 298

(1995).

Following the Supreme Court’s lead, in 1996 the Court of Criminal Appeals recognized in

Texas that the “incarceration of an innocent person is as much a violation of the Due Process Clause

as is the execution of such a person.” Elizondo, 947 S.W.2d at 205. The applicant presented the

Court of Criminal Appeals with a Herrera-type claim, and the Court turned to Schlup for guidance

and modified the standard to be applied in Herrera-type claims. Id. at 208–09; Franklin, 72 S.W.3d

at 677. The Court of Criminal Appeals granted relief based on the Herrera-type claim at issue, and

confirmed that “claims of actual innocence” include both Herrera-type claims and Schlup-type

claims. Id. at 675 (citing Elizondo, 947 S.W.2d at 208).

The Legislature amended the TCA following the Supreme Court’s decisions in Herrera and

Schlup and after the Court of Criminal Appeals recognized both types of habeas “actual innocence”

claims. In 2001, the Legislature changed the language of the Act to compensate a person who has

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been “granted relief on the basis of actual innocence of the crime for which the person was

committed.” Act of May 18, 2001, 77th Leg., R.S., ch. 1488, 2001 Tex. Gen. Laws 5280,

5280–5284. No longer did the legislation require “not guilty,” but instead adopted the term “actual

innocence,” used in Herrera, Schlup, and Elizondo.

The TCA does not define the term “actual innocence.” Words and phrases that have acquired

a technical or particular meaning, whether by legislative definition or otherwise, shall be construed

accordingly. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); TEX . GOV ’T CODE

§ 311.011 (b). The Comptroller also admits that the Legislature intended the technical meaning of

the term “actual innocence” when it changed the TCA in 2001. “Actual innocence” is a legal term

of art, which has acquired a technical meaning in the habeas corpus context.4

We presume the Legislature is aware of relevant case law when it enacts or modifies statutes.

“A statute is presumed to have been enacted by the legislature with complete knowledge of the

existing law and with reference to it.” Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 301 (Tex.

1990) (citation omitted). “Language in a statute is presumed to have been selected and used with

care, and every word or phrase in a statute is presumed to have been intentionally used with a

meaning and a purpose.” State v. K.E.W., 315 S.W.3d 16, 21 (Tex. 2010) (citations omitted). The

term “actual innocence” has a particular meaning within habeas corpus jurisprudence, in that it is

a particular type of claim “that may be raised in a collateral attack on a conviction.” Ex parte Tuley,

109 S.W.3d at 390; see also Ex parte Brown, 205 S.W.3d at 545 (“We have stated that ‘any person

who has once been finally convicted in a fair trial should not be permitted to wage, and we do not

4
A “term of art” is a word or phrase having a specific, precise meaning in a given specialty, apart from its
general meaning in ordinary contexts. B LACK ’S L AW D IC TIO N ARY 1610 (9th ed. 2009).

12
permit him to wage, a collateral attack on that conviction without making an exceedingly persuasive

case that he is actually innocent.’”) (citing Elizondo, 947 S.W.2d at 205).

The Legislature is presumed to have known about both types of “actual innocence” claims

in habeas corpus jurisprudence when it modified the Act to change “not guilty” to “actual

innocence,” since, before the 2001 Amendment, the Supreme Court had decided both Herrera

(1993) and Schlup (1995) and the Court of Criminal Appeals had recognized both types of habeas

claims in Texas. Herrera, 506 U.S. at 390; Schlup, 513 U.S. at 298; Elizondo, 947 S.W.2d at 202.

Even more to the point, we need not presume legislative awareness of the changing habeas

jurisprudence because in 1999 the Legislature amended the subsequent application provisions in the

Code of Criminal Procedure to accommodate Schlup-type claims. Act of May 18, 1999, 76th Leg.,

R.S., ch. 803, 1999 Tex. Gen. Laws 3431, 3431–3436. The Legislature responded to Schlup by

updating Articles 11.07 and 11.071 of the Habeas Corpus Reform Act to provide exceptions

allowing review of subsequent habeas writs if the legal basis for the writ had not existed in federal

or state appellate courts previously.5 TEX . CODE CRIM . PROC. art. 11.07 § 4(a); TEX . CODE CRIM .

PROC. art. 11.071 § 5(a)(2); Ex parte Reed, 271 S.W.3d 698, 733 (Tex. Crim. App. 2008) (citing Ex

parte Brooks, 219 S.W.3d at 399). The Court of Criminal Appeals noted that “[b]ecause Article

11.071 Section 5(a)(2) was enacted in response to the Supreme Court’s decision in Schlup, we

conclude that the standards set forth for evaluating a gateway-actual-innocence claim announced by

the Supreme Court should guide our consideration of such claims under Section 5(a)(2).” Ex parte

Reed, 271 S.W.3d at 733. The Court of Criminal Appeals determined that the Legislature amended

5
“Article 11.071 provides the procedure for death-penalty cases. The language in Article 11.071, section
5(a)(2) is identical to that in Article 11.07, section 4(a).” Brooks, 219 S.W .3d at 399 n.6.

13
the Code of Criminal Procedure in recognition of and to provide for consideration of Schlup-type

habeas claims.

Because the Legislature changed the statutory term “not guilty” to “actual innocence”

following federal and state jurisprudence, from both the United States Supreme Court and the Texas

Court of Criminal Appeals, and adopted writ provisions in the Code of Criminal Procedure in

response to Schlup, we conclude the Legislature intended the legal term of art, “actual innocence,”

to include both Herrera and Schlup claims in the TCA.

b) Respondent’s Policy Arguments

The Comptroller argues that, as a matter of policy, the state should only compensate persons

who were wrongfully imprisoned and subsequently found not guilty of the crime for which they

served time. In other words, she contends the state should only compensate applicants who establish

Herrera-type actual innocence claims. That is a plausible policy. However, the Legislature has

drawn no distinctions between the two types of “actual innocence” claims. The “actual innocence”

language of the TCA includes both types of claims and provides no indication that Schlup-type

claims are precluded.

We acknowledge that there are potential problems in the TCA—such as compensating

someone now who later could be retried and found guilty, that may result in compensating someone

temporarily who is actually guilty of the crime. The TCA addresses this concern to a degree by

terminating compensation payments if the person is convicted of a crime punishable as a felony.

TEX . CIV . PRAC. & REM . CODE § 103.154(a) (providing that payments terminate on the date of the

subsequent conviction). Still, while unlikely, it is conceivable that the state could compensate

someone who is later found guilty of the crime. Just as someone could be imprisoned for a crime

14
he did not commit, the state could erroneously compensate someone who committed the crime for

which he was incarcerated. The imperfection of humanity means that the state may make mistakes,

but that possibility does not vitiate the government’s interest in avoiding injustice. See Schlup, 513

U.S. at 324–25.

Here, it appears unlikely that Allen will be retried or found guilty. In granting habeas relief

to Allen, the Court of Criminal Appeals also “remand[ed] him to the custody of the Sheriff of Dallas

County.”6 2009 WL 282739, at *9. Since the Court of Criminal Appeals granted habeas relief and

Allen filed his application with the Comptroller, the 195th Judicial District Court of Dallas County,

in which his case had been tried, dismissed all pending criminal charges against Allen. The District

Attorney of Dallas filed a Motion to Dismiss the charges based on the destruction in 2007 of all

physical evidence, the death of one fact witness, the failing memory of another fact witness, and the

effect of the passage of time from the trial on the memory of other fact witnesses and the health of

yet other surviving witnesses. The District Attorney concluded that these circumstances “render the

State unable to prosecute the Defendant for the offense at this time.”

The Comptroller correctly points out that these are important policy issues, and they may be

addressed with the Legislature because her policy arguments cannot prevail over the words of the

6
The Court of Criminal Appeals remanded Allen to the custody of the Sheriff of Dallas County. W hile Allen
received habeas relief on a Schlup-type claim, the Court of Criminal Appeals consistently utilizes a similar procedure
for Herrera-claimants as well. See, e.g., Ex parte Henton, 2006 W L 362331, at *1 (Tex. Crim. App. 2006) (vacating
the judgment and sentence of a successful Herrera claimant yet ordering that applicant be “remanded to the custody of
the Sheriff of Dallas County so that he may answer the charges against him.”); Ex parte Byars, 176 S.W .3d 841, 842
(Tex. Crim. App. 2005) (granting Herrera relief and instructing applicant to be “remanded to the custody of the Sheriff
of Jefferson County to answer to the indictment.”); Ex parte Tuley, 109 S.W .3d 388, 397 (Tex. Crim. App. 2002)
(granting Herrera relief but returning applicant to “the custody of the convicting court so that he may answer the charges
against him.”); Ex parte Elizondo, 947 S.W .2d 202, 210 (Tex. Crim. App. 1996) (granting Herrera relief but returning
“applicant to the custody of the county from which he was received so that he may answer the charges against him.”).

15
statute.7 The role of the judicial branch in our government is important but that role “is not to

second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results;

rather, our task is to interpret those statutes in a manner that effectuates the Legislature’s intent.”

McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003). “[T]he Court must adopt the interpretation

of the statute that is most faithful to its text . . . . ‘If Congress enacted into law something different

from what it intended, then it should amend the statute to conform to its intent.’” Harbison v. Bell,

556 U.S. 180, 199 (2009) (Thomas, J., concurring) (quoting Lamie v. United States Trustee, 540 U.S.

526, 542 (2004)).

The Legislature changed the key statutory language from “not guilty” to “actual innocence”

following the Court of Criminal Appeals’ recognition of both Herrera and Schlup as “actual

innocence” claims in Texas. Since then, the Legislature has amended the Act three times, in 2007,

2009, and 2011, giving itself ample opportunities to distinguish between Herrera and Schlup if so

desired, but it did not.8 Where legislative enactments unambiguously direct our path, we must

follow. Therefore, we conclude that habeas relief from a Schlup-type claim merits compensation

under the Act as a writ based on a court finding of actual innocence.

7
Allen submits documentation that the Comptroller made these policy arguments to the Legislature and they
were not adopted. However, the language of the TCA renders it unnecessary to consider legislative history.

8
The Legislature has amended the TCA numerous times to make significant changes for claimants, including,
but not limited to, raising the level of compensation, removing the cap on compensation, allowing child support
payments, offering tuition aids, and limiting excessive fees charged by attorneys who assist those seeking compensation.
The Innocence Project lauds the Legislature for its improvements to the TCA: “Social services provided by Texas are
also the best in the nation, including job training, tuition credits and access to medical and dental treatment.” Executive
Summary: “Making Up For Lost Time: W hat the W rongfully Convicted Endure and How to Provide Fair
Compensation,” T he Innocence Project, at 22, available at:
www.innocenceproject.org/docs/Innocence_Project_Compensation_Report.pdf. All Internet materials as visited M ay
15, 2012 and available in clerk of Court’s file. Additionally, The Innocence Project recognizes that Texas, along with
only four other states, meets the recommended compensation standard. Id. at 20.

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 The Legislature has provided for compensation to individuals who have been granted habeas

relief based on “actual innocence.” This is a narrow class of claimants within a larger class of

individuals who obtain habeas relief.9 The Court of Criminal Appeals has emphasized that Texas

recognizes only two types of “innocence” claims—Herrera and Schlup claims. Brown, 205 S.W.3d

at 544. Recognizing only two types of “innocence” claims is consistent with the legislatively-

identified narrow class of claimants who are entitled to compensation. Indeed, a number of other

types of habeas claims fall outside compensable actual innocence claims. See e.g., Ex parte Vaughn,

2003 WL 21467074 (Tex. Crim. App. 2003) (not designated for publication) (granting habeas relief

to file petition for discretionary review); Puckett v. State, 801 S.W.2d 188 (Tex.App.—Houston

[14th Dist.] 1990, writ denied) (challenging the penal statute); Ex parte Wagner, 905 S.W.2d 799

(Tex.App.—Houston [14th Dist.] 1995, no writ) (challenging a void judgment); TEX . CODE CRIM .

PROC. art. 11.07.

2. Whether the Order Clearly Indicated on its Face that it was Based on Actual Innocence

The second issue is whether the Court of Criminal Appeals’ decision clearly indicated on its

face that the writ was based on a court finding or determination of actual innocence. The

Comptroller argues that the habeas order does not clearly indicate on its face that Allen was granted

relief based on actual innocence. Rather, the Comptroller argues Allen was granted relief, at most,

for his ineffective assistance of counsel claim. According to the Comptroller, Schlup never satisfies

9
The parties did not supply this Court with the number of persons compensated by the state for wrongful
imprisonment. According to The Innocence Project, through the year 2009, there had been forty people in Texas
exonerated for crimes they did not commit. “250 Exonerated: Too Many W rongfully Convicted.” The Innocence
Project, available at www.innocenceproject.org/news/250.php. This statistic, however, does not indicate whether the
person received compensation from the state.

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§ 103.001(a)(2)(B) because the claim is not based on actual innocence, but is instead a gateway

claim to escape a procedural bar.

The Act states that a person is entitled to compensation if the person “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.” TEX . CIV . PRAC. &

REM . CODE § 103.001(a)(2)(B). Further, the documents must clearly indicate on their face that the

person is entitled to compensation. TEX . CIV . PRAC. & REM . CODE § 103.051 (b-1). Therefore, in

order for Allen to be eligible for compensation under the TCA, the Court of Criminal Appeals’

determination must be based on actual innocence. We consider whether the court order was granted

or rendered on the basis of the claimant’s actual innocence. See TEX . CIV . PRAC. & REM . CODE

§ 103.051 (b-1).

The Court of Criminal Appeals’ opinion on its face determines that Allen was actually

innocent. The grant of habeas relief means that the Court of Criminal Appeals held that Allen

showed actual innocence by a preponderance of the evidence, passing through the gateway to have

his ineffective assistance of counsel claim considered on the merits. Actual innocence remains an

essential part of the Schlup claim, for without the court finding actual innocence, the writ would be

denied. Brooks, 219 S.W.3d at 400–01. This credible claim of actual innocence “serves to bring the

petitioner within the ‘narrow class of cases’ implicating a fundamental miscarriage of justice.” Id.

at 400 (citing Schlup, 513 U.S. at 315). The Court of Criminal Appeals held that “it is not surprising

that the habeas court found that the newly discovered evidence ‘of innocence [was] so strong that

[it could not] have confidence in the outcome of the trial.’ We agree.” Allen, 2009 WL 282739,

at *9.

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 The Court of Criminal Appeals granted habeas relief to Allen based on his Schlup-type claim,

bringing him into the narrow class of cases that satisfy the actual innocence standard. We do not

agree with the Comptroller that Allen’s relief is based, at most, on ineffective assistance of counsel,

because that finding alone would be insufficient to grant habeas relief under Schlup. Even if a court

does not explicitly state that its holding is based on actual innocence, implicitly the court must find

that the applicant is actually innocent to grant relief on a Schlup claim. See Brooks, 219 S.W.3d at

401. We do not read the Court of Criminal Appeals’ opinion as indicating it failed to find actual

innocence as to Allen’s conviction. Therefore, because the Court of Criminal Appeals granted

habeas relief on a Schlup claim, Allen’s court order clearly indicates on its face that relief was based

on actual innocence.

CONCLUSION

The petition for writ of mandamus is conditionally granted, and we instruct the Comptroller

to comply with this opinion and compensate Allen under the terms of the Tim Cole Act. A writ of

mandamus will issue only upon the failure to do so.

________________________________________
Dale Wainwright
Justice

OPINION DELIVERED: May 18, 2012

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