In RE COLTON LESTER v. the State of Texas

IN THE SUPREME COURT OF TEXAS
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No. 18-1041
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IN RE COLTON LESTER, RELATOR
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ON PETITION FOR WRIT OF MANDAMUS
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Argued January 29, 2020
JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE GREEN, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BUSBY, and JUSTICE BLAND
joined.
JUSTICE BOYD filed a dissenting opinion.
JUSTICE BLACKLOCK filed a dissenting opinion, in which JUSTICE BOYD joined as to
Part I.
The sole issue in this original mandamus proceeding is whether relator Colton Lester is
entitled to wrongful-imprisonment compensation under the Tim Cole Act.1 We conclude that
Lester is entitled to Tim Cole Act compensation because the conduct for which he was
imprisoned was not a crime at any time during his criminal proceedings. We therefore
conditionally grant Lester’s petition for writ of mandamus.
1
The Tim Cole Act is codified in Chapter 103 of the Texas Civil Practice & Remedies Code. See TEX.
CIV. PRAC. & REM. CODE §§ 103.001–.154. The chapter is titled “Compensation to Persons Wrongfully
Imprisoned,” but since 2009 the statute has been known as the Tim Cole Act. See Act of May 27, 2009, 81st Leg.,
R.S., ch. 180, § 1, 2009 Tex. Gen. Laws 523 (“This Act shall be known as the Tim Cole Act.”). Tim Cole died of an
asthma attack in 1999 while incarcerated for aggravated sexual assault. DNA evidence later cleared Cole of the
charges, and in 2010 Cole received the State’s first posthumous pardon. See In re Smith, 333 S.W.3d 582, 583 n.1
(Tex. 2011).
I
This is an egregious case of the criminal-justice system gone wrong. In 2013, the Court
of Criminal Appeals ruled that Section 33.021(b) of the Texas Penal Code (Online Solicitation of
a Minor) was unconstitutional. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). In 2014,
seventeen-year-old Lester attempted to sexually proposition a minor over text message. Lester
was charged with attempted online solicitation of a minor under Section 33.021(b), a third-
degree felony, even though the Court of Criminal Appeals had already declared the statute
unconstitutional. Unaware that his prosecution was illegal, Lester pleaded guilty to the charge
and received a five-year deferred adjudication sentence. Lester’s probation was later revoked,
and Lester was sentenced to three years in prison. He ultimately served two years in prison
before obtaining relief on his first petition for a writ of habeas corpus. After his release, Lester
applied for compensation under the Tim Cole Act. His application was denied. Lester then filed
an application to cure, but that application was also denied. Lester subsequently filed this
original proceeding.
The Tim Cole Act entitles certain wrongfully imprisoned individuals to compensation
from the State. The Texas Comptroller of Public Accounts has the duty to determine eligibility
for Tim Cole Act compensation. TEX. CIV. PRAC. & REM. CODE § 103.051(b)(1). This duty is
purely ministerial. Id. § 103.051(b-1). The Act further provides that an applicant may challenge
the Comptroller’s denial of compensation by bringing an action for mandamus relief. Id.
§ 103.051(d)–(e). This Court has exclusive jurisdiction to mandamus the Comptroller, as an
executive officer of the State, and thus the mandamus action must be filed as an original
proceeding here. See TEX. GOV’T CODE § 22.002(c) (providing that only the Supreme Court has
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authority to issue writs of mandamus against executive officers of the state); In re Smith, 333
S.W.3d 582, 585 (Tex. 2011).
The Tim Cole Act provides several avenues for compensation, but only one is at issue
here. Texas Civil Practice & Remedies Code Section 103.001(a)(2)(B) provides that a
wrongfully imprisoned 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.” Lester
contends that he is “actually innocent” of the crime of online solicitation of a minor because the
Court of Criminal Appeals had already declared Section 33.021(b) unconstitutional before Lester
sent the offending text message.
II
In In re Allen, 366 S.W.3d 696, 706 (Tex. 2012), we acknowledged that “actual
innocence” is a “legal term of art [that] has acquired a technical meaning in the habeas corpus
context.” There are two types of actual-innocence claims in Texas habeas law. Id. at 703 (citing
Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002)). First, Herrera claims are
substantive claims in which a petitioner “asserts that newly discovered evidence establishes an
applicant’s innocence.” Id.; see also Herrera v. Collins, 506 U.S. 390 (1993). “The most
familiar Herrera-type cases are those in which DNA testing leads to exoneration of the
applicant.” Allen, 366 S.W.3d at 703. Second, Schlup claims are 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. at 704 (quoting Schlup v. Delo, 513 U.S. 298,
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315 (1995)). Thus, a petitioner may succeed on a Schlup claim only if the petitioner’s claims for
habeas relief are procedurally barred.
Here, Lester does not have any “newly discovered evidence” on which to base a Herrera
claim. Lester’s habeas petition also was not procedurally barred, eliminating the need for a
Schlup gateway claim. Thus, Lester does not have either type of actual-innocence claim
currently recognized in Texas habeas law.
However, habeas actual-innocence jurisprudence—and our related decision in Allen—is
based on the assumption that the petitioner’s alleged conduct was criminal at the time it was
committed. For example, in Allen, petitioner Billy Frederick Allen was charged with murder.
366 S.W.3d at 701. There was no question—before, during, or after Allen’s criminal trial—that
Allen’s alleged actions, if proven, constituted a crime. Rather, Allen relied on newly discovered
exculpatory evidence to successfully argue that (1) he probably did not commit the crime, so the
court should consider his procedurally barred successive habeas petition (a Schlup claim); and
(2) his counsel was unconstitutionally deficient, entitling him to relief. Ex parte Allen, Nos. AP-
75580, AP-75581, 2009 WL 282739 (Tex. Crim. App. Feb. 4, 2009). We ultimately concluded
that Allen was entitled to Tim Cole Act compensation because his successful Schlup claim
brought him within the “narrow class of cases that satisfy the actual innocence standard.” Allen,
366 S.W.3d at 710. But again, our decision assumed that Allen’s conduct would have been
criminal had the state been able to prove that Allen in fact committed the murders for which he
was charged.
Here, as a matter of historical fact, Lester’s conduct was not a crime at the time it was
committed because the Court of Criminal Appeals had already declared the online-solicitation
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statute unconstitutional. Lester is therefore actually innocent in the same way that someone
taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such
crime exists. Just because existing actual-innocence jurisprudence does not contemplate
something as outrageous as Lester’s case does not mean that Lester, who committed no crime, is
anything but actually innocent.
Our decision today does not conflict with the Court of Criminal Appeals’ decision in Ex
parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015). In Fournier, as in this case, the
petitioners sought habeas relief on the ground that their convictions for online solicitation of a
minor under Section 33.021(b) were unconstitutional. Id. at 790. Although the Fournier Court
concluded that the petitioners were entitled to habeas relief, the Court held that the petitioners
were not “actually innocent” of the crime for which they were convicted. Id. at 793. The Court
reasoned that the petitioners were not “actually innocent” of the crime of online solicitation of a
minor because the “conduct on which the criminal prosecution was based still exists as a matter
of historical fact.” Id.The State urges us to adopt Fournier’s reasoning here: Lester admits that he, in fact, sent
the text message in question, so the State reasons that Lester cannot be “actually innocent” of the
crime. Again, however, the Fournier decision assumes that the underlying conduct would have
been a crime if proven. See id. at 797 (Alcala, J., concurring) (“[The petitioners] did commit acts
that, at the time those acts were committed, were considered criminal under the laws of this
State.” (emphasis added)). Indeed, Fournier acknowledged that a petitioner is actually innocent
when the petitioner “did not, in fact, commit the charged offense or any of the lesser-included
offenses.” Id. at 792 (quoting State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App. 2010)).
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The Fournier petitioners were charged under Section 33.021(b) before the Court of Criminal
Appeals declared the statute unconstitutional. Id. at 790. Thus, the Fournier petitioners did, “in
fact, commit the charged offense” of online solicitation of a minor. Id. at 792. In contrast, the
Court of Criminal Appeals had already declared Section 33.021(b) unconstitutional at the time
Lester sent the offending text message, and Lester’s prosecution under that statute was illegal
from its inception. Lester therefore could not have “commit[ted] the charged offense” of online
solicitation of a minor because that offense, in fact, no longer existed. Id.; see also Reyes v.
State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988) (“[A]n unconstitutional statute, as a general
rule, amounts to nothing and accomplishes nothing and is no law.”). Lester did not commit acts
that, at the time those acts were committed, were criminal under the laws of the State. See
Fournier, 473 S.W.3d at 797 (Alcala, J., concurring). Thus, Fournier is consistent with our
holding today.2
Both dissents see Fournier differently. Justice Blacklock’s dissent observes that the
Court of Criminal Appeals used similar language in its orders granting relief in this case and in
Fournier. Post at ___. Thus, because the Court of Criminal Appeals expressly rejected the
Fournier petitioners’ actual-innocence theory, Justice Blacklock concludes that we must do the
same here. Justice Blacklock also emphasizes that the Tim Cole Act requires an applicant’s
2
In its amicus brief, the State Prosecuting Attorney asserts that the law-of-the-case doctrine prohibits this
Court from concluding that Lester is actually innocent under the Tim Cole Act. Specifically, the Prosecuting
Attorney contends that the Court of Criminal Appeals did not adjudicate the issue of Lester’s actual innocence; thus,
“[t]his Court would intrude upon the [Court of Criminal Appeals’] jurisdiction if it construed the [Court of Criminal
Appeals’] disposition contrary to the plain text of its order granting relief.” However, as the Prosecuting Attorney
acknowledges in its brief, the law-of-the-case doctrine only applies in a “subsequent appeal in the same case.”
Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). This mandamus action is not a subsequent appeal of
Lester’s criminal case; it is not part of Lester’s criminal case at all. The Tim Cole Act is a civil statute that this
Court interprets de novo. Allen, 366 S.W.3d at 703. Thus, our decision today—which concerns only the meaning of
“actual innocence” under the Tim Cole Act—does not encroach on the Court of Criminal Appeals’ criminal-law
jurisdiction. See TEX. CONST. art. V, § 3 (providing that this Court’s jurisdiction “shall extend to all cases except []
criminal law matters”).
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supporting papers to “clearly indicate on their face” that the applicant was granted relief on
actual-innocence grounds. Id. at ___; TEX. CIV. PRAC. & REM. CODE § 103.051(b-1). In light of
Fournier, Justice Blacklock argues, Lester could not have made such a showing. Post at ___.
However, this approach elevates form over substance. At bottom, Justice Blacklock
would limit Tim Cole Act compensation to only those cases in which the Court of Criminal
Appeals expressly states that the petitioner is actually innocent. See id. at ___. We do not see
the Act as so limited. First, the Act does not include this express requirement. And second, from
a practical perspective, such a limited approach would essentially prohibit any further litigation
about who is eligible for compensation under the Act. We have already declined to adopt such a
rigid approach. See Allen, 366 S.W.3d at 709–10 (holding that the petitioner was entitled to Tim
Cole Act compensation, even though the Court of Criminal Appeals did not “explicitly state that
its holding [was] based on actual innocence”).
Justice Boyd’s dissent takes yet another view of Fournier. Justice Boyd first observes
the “well-established principle[]” that an unconstitutional statute is void from its inception. Post
at ___. Thus, according to Justice Boyd, all individuals convicted under an unconstitutional
statute must either be actually innocent from the beginning or not actually innocent at all. Id.
at ___. Put differently, the statute was void at all times; therefore, Justice Boyd argues, all
convictions secured under the statute are equally void, regardless of whether the conviction
occurred before or after the Court of Criminal Appeals declared the statute unconstitutional.
Thus, there can be no difference between the legal status of the Fournier petitioners’ convictions
(secured before the statute was declared unconstitutional) and Lester’s conviction (secured after
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the statute was declared unconstitutional). Because Fournier held that the petitioners in that case
were not actually innocent, Justice Boyd contends that Lester also cannot be actually innocent.
However, this approach blurs the lines between the distinct concepts of actual innocence
and legal innocence. Lester and the Fournier petitioners are all legally innocent because their
convictions were secured under an unconstitutional statute that was void from its inception.
However, actual innocence asks a different question: whether the petitioner “did not, in fact,
commit the charged offense or any of the lesser-included offenses.” Fournier, 473 S.W.3d at
792 (quoting Wilson, 324 S.W.3d at 598). Thus, actual innocence is not an inquiry into the legal
status of a petitioner’s conviction or the legal status of the statute in question. Rather, actual
innocence is an inquiry of historical fact. The Fournier petitioners did, in fact, commit the crime
of online solicitation because they committed certain acts that met each element of the online-
solicitation offense that was in force at that time. In contrast, as a matter of historical fact,
Lester’s actions did not constitute an offense at the time he committed them. Lester is therefore
actually innocent, while the Fournier petitioners are not. But nothing about the historical nature
of the actual innocence inquiry undermines the longstanding rule that an unconstitutional statute
is legally void from its inception. See Reyes, 753 S.W.2d at 383.
III
Finally, we acknowledge that parts of our Allen decision suggest that actual innocence
under the Tim Cole Act is limited to only Herrera or Schlup claims. See Allen, 366 S.W.3d at
708–09. However, that limiting language was immaterial to Allen’s central holding—which we
leave undisturbed—that Schlup claims are actual-innocence claims under the Tim Cole Act. See
id. at 710. While we acknowledge Justice Blacklock’s view that Allen should govern in its
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entirety, post at ___, the Allen decision did not contemplate the type of patently unjust (and
unconstitutional) prosecution before us today. We now hold that actual innocence under the Tim
Cole Act encompasses Herrera claims, Schlup claims, and that “narrow class of cases” in which
the petitioner’s actions were not criminal at the time the acts were committed. See Allen, 366
S.W.3d at 710.
The Court of Criminal Appeals, in granting Lester habeas relief, determined that Lester’s
conviction was “not valid” because the Court had declared the online-solicitation statute
unconstitutional before Lester’s conviction. Lester is therefore entitled to compensation under
the Tim Cole Act because he “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). Lester
is actually innocent because his wrongful conviction is based on conduct that was not a crime.
The Comptroller concluded, however, that Lester’s application for wrongful-imprisonment
compensation “did not meet the actual innocence requirement of [this provision].” Because it
did and the Comptroller’s duty under the Act is purely ministerial, we direct the Comptroller to
compensate Lester under the terms of the Tim Cole Act. We assume that the Comptroller will
comply, and a writ of mandamus will issue only in the event he fails to do so.
The petition for writ of mandamus is conditionally granted.
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________________________________
John P. Devine
Justice
OPINION DELIVERED: May 15, 2020
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