In RE COLTON LESTER v. the State of Texas, 602 S.W.3d 469

Background

In 2013 the Court of Criminal Appeals held Penal Code §33.021(b) (online solicitation of a minor) unconstitutional in Ex parte Lo.
In 2014 sixteen-/seventeen‑year‑old Colton Lester sent a sexual text to a minor and was charged, pleaded guilty to attempted online solicitation, received deferred adjudication, later had probation revoked, and was sentenced to prison; he served about two years before obtaining habeas relief.
Lester applied for wrongful‑imprisonment compensation under the Tim Cole Act (Tex. Civ. Prac. & Rem. Code §103.001(a)(2)(B)), which requires habeas relief based on a court finding of actual innocence; the Comptroller denied the claim.
The Comptroller’s eligibility decision is a purely ministerial duty under the Act and is reviewable by mandamus to the Texas Supreme Court.
The central factual/legal point: the Court of Criminal Appeals had declared §33.021(b) unconstitutional before Lester’s conduct, so the soliciting offense did not exist when he acted.
The Supreme Court granted conditional mandamus, holding Lester entitled to Tim Cole Act compensation because his conduct was not a crime when committed (he is therefore actually innocent).

Issues

Issue	Lester's Argument	State/Comptroller's Argument	Held
Whether Lester is entitled to Tim Cole Act compensation under §103.001(a)(2)(B) because his habeas relief was based on actual innocence	Lester: yes—he was actually innocent because §33.021(b) was already unconstitutional when he acted	Comptroller/State: no—his papers did not show actual innocence; reliance on precedents like Fournier to deny relief	Held: Yes. Court: his conduct was not criminal when committed, so he is actually innocent and entitled to compensation
Whether “actual innocence” under the Tim Cole Act is confined to Herrera (new evidence) or Schlup (gateway) habeas doctrines	Lester: Act should cover cases where the conduct was not a crime when committed	State: Allen limits Act’s actual‑innocence meaning to Herrera/Schlup frameworks	Held: Actual innocence under the Act includes Herrera claims, Schlup claims, and the narrow class where the acts were not criminal when committed
Whether the Supreme Court may decide the Tim Cole Act issue now or whether law‑of‑the‑case/Criminal Appeals’ disposition bars this Court	Lester: mandamus is proper; Tim Cole Act is civil and reviewed de novo by this Court	Prosecuting Attorney: law‑of‑the‑case forbids construing the Criminal Appeals’ order differently here	Held: Law‑of‑the‑case does not bar this separate civil mandamus; Court may interpret the Act de novo
Whether Ex parte Fournier controls and precludes an actual‑innocence finding here	Lester: distinguish Fournier because there petitioners acted when the statute was valid; here statute was already invalid	State: Fournier shows petitioners who committed the acts cannot be “actually innocent”	Held: Fournier is distinguishable and consistent—Fournier petitioners’ conduct occurred when the statute was criminal, Lester’s did not

Key Cases Cited

Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (holding §33.021(b) unconstitutional)
In re Allen, 366 S.W.3d 696 (Tex. 2012) (explaining "actual innocence" as a habeas term of art and Tim Cole Act analysis)
Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015) (denying "actual innocence" for convictions under §33.021(b) where conduct occurred while statute was valid)
Herrera v. Collins, 506 U.S. 390 (1993) (describing substantive actual‑innocence claims based on newly discovered evidence)
Schlup v. Delo, 513 U.S. 298 (1995) (describing gateway/Schlup procedural actual‑innocence standard)
State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) (defining factual inquiry for actual innocence)
Reyes v. State, 753 S.W.2d 382 (Tex. Crim. App. 1988) (noting unconstitutional statutes are void from inception)
In re Smith, 333 S.W.3d 582 (Tex. 2011) (Tim Cole Act mandamus jurisdiction and background)
Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (describing law‑of‑the‑case doctrine)