*1 sibility plaintiffs injuries. Although for a misused, appropriate
it must not
cases the protects unlawful acts doctrine integrity legal system.
doctrine abrogated by has been either comparative responsibility scheme
Chapter Section 93.001’s affirmative
defense. Because the Court does not
agree, respectfully dissent. BLAIR,
In re Michael N. Relator.
No. 11-0441.
Supreme Court Texas.
Argued Oct. 2012. Aug.
Decided 2013.
Rehearing Denied Oct. *2 Hodge, Attorney,
Daniel T. First Asst. Mattax, General, David Director of De- C. Litigation, Attorney fense Office of the General, Abbott, Greg Attorney Gener- W. Texas, Mitchell, al of Jonathan F. Solicitor General, General, Attorney of the Office Oort, Kevin D. Deputy Van Chief—Finan- Div., Litigation Philip cial & Tax A. Lion- General, berger, Attorney Office of General, Assistant Solicitor J. William III, Attorney “Bill” Office of the Cobb TX, General, Austin, Respondent Texas Comptroller of Public Accounts. Lockwood, Michael G. Kiester Lockwood LLP, Jr., Roy E. & Ciccone Greenwood Law, Austin, TX, Attorney Philip Alan Lubbock, Law, Wischkaemper, Attorney at TX, for Relator N. Blair. Michael Justice HECHT announced the decision opinion, delivered an Court and GREEN, GUZMAN, Justice which Justice joined. and Justice DEVINE Act1 person Tim Cole entitles a wrongfully imprisoned who has been State, pay- from the but “if, ments terminate after the date the eligible person becomes ..., is convicted of a crime punishable felony.”2 issue requires payments case is whether the for a felon who remains incarcerated 103.154(a). §§ Prac. 1. Tex Civ. 103.001-.154. court,
conviction that occurred before he became
to the district
confessing to molest-
compensation.
it
ing
We conclude
the children of a witness who later
deny
does not and therefore
relief.
against
testified
him in the murder trial.
*3
An investigation led to four indictments for
lengthy
Michael N. Blair has a
criminal
child,
indecency with a
committed in 1992
1988,
18,
age
record.
In November
1993,
and
pleaded
which Blair
guilty in
felonies,
charged
was
with two
burglary of
June 2004. He
given
was
four life sen-
child,
indecency
a habitation and
with a
tences, three consecutive and one concur-
years’
and sentenced to 10
imprisonment
rent. He continues to serve these sen-
each,
on
the sentences to run concurrently.
tences
likely spend
and will
the rest of his
He served 18 months of those sentences
life in prison.
paroled
and
in April
parole
was
1990. His
was
2008,
revoked after he was arrested in Sep-
the Court of
Appeals
Criminal
tember 1993 for the murder of a seven-
set aside Blair’s murder conviction based
year-old girl, Ashley
later,
Estelle. A year
on DNA evidence establishing his actual
he was convicted
innocence,5
and sentenced to death.3
and the State dismissed the
Though
staunchly
charge.
2009,
maintained that he
In June
Blair applied to
murder,
was innocent of
he freely admitted
the Comptroller for more than
million
$1
having sexually
abused
children on
having
wrongfully
been
2001,
many
journal-
1993,
occasions. In June
incarcerated from
when he was ar-
ist who
murder,
interviewed him on death
2004,
row re-
rested for
when he was
ported
he acknowledged having
sexu-
sentenced for the 1992-1993 sexual abuse
ally
children,
assaulted more than a dozen
offenses.6 The
initially de-
was,
boys
girls,
both
and
“by
his own
nied Blair’s
because he had not
accounts, ... a serial
provided
child molester”.4 In
a court order showing his “actual
2003,
execution,
awaiting
still
Blair wrote
innocence” of murder7 and had not “ne-
25,
Ashley’s
2008)
prompted
curiam) (not
3.
death
(per
designated for
heightened
("The
next
reporting,
finds,
its
session to enact
publication)
trial court
'The State
registration,
supervision requirements,
that,
light
of Texas has conceded
punishments,
persons
and stricter
convict
record,
remaining inculpatory evidence in the
ed of sexual
assault
a child. The enact
has established
[Blair]
clear and convinc
"Ashley’s
ments were called
Laws”. See Act of
ing
juror
evidence that no reasonable
would
26, 1995,
R.S.,
256,
May
Leg.,
74th
ch.
light
newly
have convicted him in
discover
(SB 111) (amending
Tex. Gen. Laws 2190
”).
ed
evidence.’
[DNA]
42.18,
Tex.Code Crim. Proc. arts. 42.12 and
493.017);
adding
§
Act of
Tex. Gov't Code
$100,000
sought compensation
per
6. Blair
19, 1995,
R.S.,
257,
May
Leg.,
74th
ch.
year allowed for death row inmates at the
(SB 149)
Tex. Gen.
(amending
Laws 2194
time,
period
years,
days.
for a
of 10
See
adding
§
42.12 and
Tex.Code Crim. Proc.
Tex.
25, 2007,
R.S.,
May
Leg.,
Act of
80th
ch.
4512g-1);
May
Rev.Civ. Stat. Ann. art.
Act of
2,
(codi-
§
2007 Tex. Gen. Laws 4054
19, 1995,
R.S.,
Leg.,
74th
ch.
1995 Tex.
103.052(a-
fied as Tex. Civ. Prac. & Rem.Code
(SB 267) (amending
Gen. Laws 2197
Tex.Rev.
D).
Civ. Stat. Ann. art. 6252-13c. 1 and Tex.Code
42.01, 42.12, 42.18,
arts.
Crim. Proc.
time,
requirement
7. At the
60.051).
applicant
"granted
was that
had been
relief on the
basis
actual innocence of the
Hilburn,
Jacque
Creep Really
4.
Did This
Kill
crime for which the
was sentenced.”
Estell?,
(June 2001).
Ashley
Magazine
D
27, 2001,
R.S.,
May
Leg.,
Act of
77th
ch.
Blair,
AP-75,954
(codi-
parte
Ex
Nos.
and AP-
2001 Tex. Gen. Laws 5280
75,955,
Tex.Crim.App. Unpub.
LEXIS
fied as
Civ.
Prac.
103.001(a)(2)(B)).
(Tex.Crim.App.
gues purpose help that the of the Act fully imprisoned person is in the reentry released inmates rebuild their lives and reintegration process in covering reintegrate society, into which would not living expenses following discharge, in an be advanced by paying $10,000.”13 to amount not to exceed And prison. someone still in the Texas Correctional Office on Offend- result, could have intended so absurd a ers with Impairments Medical Mental continues, required and therefore to assist wrongfully impris- literally. the Act cannot read persons oned in obtaining medical and dental services.14 The ar- persuaded We are not provid gues that these two provisions latter show ing support rejoining society policy State’s is to aid a wrong- or even only, principal, purpose fully imprisoned person only after dis- compensation required by the Act. For charge, not while he imprisoned, remains 103.001(c), thing, one Section two para payment and that of compensation below graphs provision just quoted, decedent’s simply beneficiaries is an ex- *5 states that a person “[i]f deceased would ception that proves the rule. But these be entitled to under Subsec provisions strongly suggest that the com- (a)(2) living, including if a person pensation required by the Act is different posthumous pardon, who received a the the simple from support provisions the heirs, person’s legal representatives, and provide for reintegration society into and estate are entitled to lump-sum compen is reparation better viewed as for the ....”12 requires sation The Act thus com done wrong in the State’s name. pensation paid to be even wrongful ly person rejoin convicted society cannot Act, And from the history of the that he because is For another thing, dead. compelling. view is adopted First justice criminal 1965,15 officials have a responsi legislative Act contained find- for bility helping wrongfully convicted in that ings wrongfully persons convicted mates return society to is indepen provided should be “compensation to reim- compensation required dent by the compensate burse and them for their loss- Act. The Department of Criminal Justice es.” The Act a allowed cause of action statutorily is tasked “developing] against the State for “compensation” for comprehensive plan to ensure the $25,000 success “damages” specifically, up to for — reentry ful reintegration and of wrongful physical pain suffering, and mental and ly imprisoned persons the community into plus necessary all reasonable medical following discharge”, incurred, including “the provi expenses total both not to sion of wrong- $50,000.17 financial assistance aid a 2001, to In exceed the Act was 103.001(c). 28, § 1965, 12. R.S., May Leg., 59th ch. 507, 1, (codified § 1965 Tex. Gen. Laws 1022 501.102(b). § 13. Tex. Gov't Code 1176a, 1-7). §§ as Tex Penal art. Code Act was recodified as Tex.Rev.Civ. 614.021(b). Stat. Ann. 14. Tex. Health § Safety Code 6252-25, 1973, § art. in1 and later as Tex. 15. A adopted constitutional amendment §§ 103.001-.007. Act Prac. & Civ. Rem Code Legislature "grant 1956 authorized aid 17, R.S., 1985, 959, 1, May Leg., § 69th ch. any person who has Tex. Gen. Laws 3307-3308. paid heretofore a fine or served sentence in prison, pay who hereafter a fine or (former 1176a, § 17. Id. Tex Penal Code art. prison, serve sentence under the laws 6252-25, § Ann art. Stat. Tex.Rev.Civ. State for an offense for which he or she 103.006). Civ. Prac. & Rem.Code II, guilty”. Tex. Const. art. 51-c. reentry of an inmate’s related to costs claimant could revised.18 A substantially society. into expenses to recover the State sue pro- criminal in his attorney fees incurred Moreover, first ex- discharge obtaining ceedings and costs, it created for those hibited concern plus wages lost imprisonment, above, remedy: as noted independent Alternative- expenses given incurred.19 institutions were justice medical criminal wrongfully impris- assist responsibility to an administrative provided the Act ly, society.24 But reentering persons oned simply request remedy: a claimant could until decades after not occur this did $25,000 Comptroller of from the payment wrongful im- paid for had been damages impris- wrongfully was year each for prisonment. recovery capped way, was Either oned.20 $500,000.21 com- per-year In at correct $50,000, or was raised pensation interpret to work will not statutes courts death, a $100,000 person sentenced though But it would be absurd results.25 recovery support child provision wrongfully to a payments to make absurd during impris- that became due payments him in reenter assist convicted added, society re- a time when he remains cap ing and the was onment money cannot use imprisoned and per-year compensa- moved.22 certainly absurd to it is purpose,26 sentences, $80,000 all raised tion was *6 wrong while for the done pay reparation damages the cause action for simply It he is incarcerated. is still abolished, only the administrative leaving Legislature.27 policy choice for Thus, Act’s years, 48 remedy.23 all been back- compensation schemes have agree with the thus cannot We damages ward-looking, providing either be Comptroller that claim must re Blair’s suffered, or what actually incurred or with the jected because it is inconsistent liquidated damages based amounts to is another diffi purpose. Act’s But there required compensa culty time served. The with Blair’s claim. person, wrongfully convicted has never been based on due by the Act Carreras, M.D., R.S., 2001, Marroquin, 27, Leg., E.g. ch. 25. P.A. v. May Jose 18. Act of 77th 5280, 1488, 1, (Tex.2011) (“We 68, § 2001 Gen. Laws 5282 ... inter- Tex. 73 (codified result.”); Code, ch. as pret to avoid an absurd see statutes Tex. & Rem. Civ. Prac. 103). Reading also Bryan & A. Antonin Scalia Garner. 2012) ("A (Thomson/West provision Law Id. former Tex. Civ. Prac. See 19. judicially disregarded or cor- be either 2009, 27, 103.105(a), repealed by May § Act of (when an the correction is rected as error R.S., 180, 12, Gen. Leg., 2009 Tex. 81st ch. failing textually simple) if to do so would 523, Laws 526. per- disposition that no reasonable result in approve.”). §§ 20. Id. 103.051-.052. son could 21. Id. 103.105. Cnty. Harris Democratic Exec. 26. See Thiel v. 891, (Tex.1976) (re Cmte., R.S., Leg., May ch. Act 80th 22. fusi 1190, 2, ng accept interpretation 4055. an of a statute Gen. Laws of a futile that “would convict Leg., May R.S. ch. 81st 23. act"). and foolish 3-5, 180, §§ 523- 2009 Tex. Gen. Laws 524. not, course, validity consider the 27. We do approach. of such an §§ 10-15. here, nature, exceptions applicable pay- is certain and in modifying communi- only through annuity.28 ty able supervision, impose Section particular condi- 103.154(a)states: tions “if ... the defendant is convicted” of certain crimes.31
[Cjompensation payments person to a if, ... terminate after the date the per- 103.154(a), In Section phrase, eligible son becomes for compensation convicted”, “is can reasonably be read to ..., person is convicted of a crime refer to the claimant’s only status and not punishable felony. Compensation guilt adjudicated.32 moment is Thus payments terminate under this subsec- construed, the statute denies compensation tion on the date of subsequent con- payments for wrongful imprisonment to a viction.29 who, claimant during time he would them, receive is convicted of a felony, re argues provision, gardless of when the conviction was adju payments to a felony convicted of a dicated, whether before or after he became only terminate if the conviction first occurs eligible compensation. The second after he becomes compensation, sentence if adjudication clarifies that it occurs before. But argu- occurs after the date eligibility, compen ment assumes that “is convicted” refers ceases, sation though the claimant is not adjudication. to the act of The day required to refund payments already re however, adjudication, assuming ceived. For the adjudicated claimant be nothing still, has changed, person, eligibility, fore payments never begin, and used, convicted. Thus the phrase refers to refund is not an issue. Though payments the convict’s status —he stands convicted begin, never the right or is adjectives under conviction. Other claimant would have can afterward be said similarly can read this dual sense. to “terminate” the moment it arises. example, For a visiting judge assigned *7 to a day case the the order is signed statutory text thus admits of two Likewise, long assignment as the lasts. linguistically reasonable interpretations, person a in military one, service is detached to consequences but the conditioning special assignment day the order is- compensation on the date conviction is ad- long are, think, sues and as as it judicated, remains in effect. plainly we unreason- phrase, Texas statutes use the “is convict- able. This is not because a person who ed”, to refer to person’s status. For remains incarcerated should not be com- example, Article 42.12 of pensated. the Texas Code policy That is a decision for the of Criminal Procedure provides Rather, that a Legislature. granting or denying judge “after conviction ... place compensation [ ] based on the date a convic- the defendant on community supervi- adjudicated, tion is rather than on the sion.” judge statute authorizes the convicted, of having plainly status been is impose to specific condition on “a defen- unreasonable it because treats similar situ- dant who is convicted” of disparately. offenses of a ations If “is convicted” refers 103.154(a). § 28.Tex. Civ. Id. Pay § Prac. & Rem.Code 103.053. 29. unit, see ments to state disbursement 101.0302, 42.12, 3(a). § support Fam.Code for child 30. owed Tex.Code Crim. Proc. art. wrongfully pay convicted are sum, 13H(b); 22(a)(4)(A). lump able in a §§ Tex. Civ. Prac. & 103.052(c), payments as are ato decedent’s beneficiaries, 103.001(c). § id. 103.154(a). 32. Tex Civ &Prac. Rem.Code status, eligible felony. all from this deterrence Apart to the claimant’s claim- flawed felony argument, any ants are treated alike: those under we are unable to discern paid compensation. conviction are not But justification granting denying for com- phrase if the refers instead to the act of pensation based on the date of conviction claimant whose adjudication, the conviction felony. for another day occurs the before he is for eligible pause response We to add a word in compensation payments entitled to for is opinion, the concurring which would hold life, the remainder while the claim- to follow proce- Blair failed the Act’s day ant whose conviction occurs next dures, though does not compensation. never receives The unrea- make argument, and that Blair’s sec- a result is sonableness such manifest application improper it ond is because is this case. It would entitle Blair over the first. same as $800,000 paid to be while remains on three imprisoned he consecu- point, On the first the concurrence imposed tive life sentences even argues compensa that a claimant denied nothing though would receive if he had must, prerequisite seeking as a felony day been convicted after he review, judicial application submit became in 2008. cure to Comptroller, even if there is Despite consequences, such might there 103.051(d) nothing to cure. Section states: justification yet construing be some “is day “Not later than the 30th date an act. might convicted” refer to One received, the denial claimant must that the argue compensa- threat of loss of submit an problem cure tion, it begun, once has deters further Plainly, identified.”33 no identified activity. criminal But the threat does cured, problem no application can be nothing to An pre-eligibility deter crimes. notes, required. As concurrence verge being inmate on the eligible for “cure” mean does not “reconsider”. After compensation might not be discouraged compensa first denial of a crime before committing the deter- tion, Blair what he filed called a motion for made, certainly mination is as he would be reconsideration, and should have called an Further, prosecutor, afterward. knowing cure, provided a cure charged that an inmate with a crime was problems Comptrol identified: the compensation, about to qualify might *8 ler’s mistaken view that Blair had not been delay proceedings criminal that ensure actually determined be innocent of mur payments be denied. If would Blair had der, parole and the effect of the revocation. confessed to molestation in child 2009 in- After denial of Blair’s stead of delaying conviction until af- review, application, second now on there ter his eligibility compensation was cure. nothing wrongful imprisonment for murder would a legal compensa stated basis for denying have denied payments him which correct, that, if Blair not cure. would have been entitled had could conviction level, Even if not swiftly. apply followed At a more a claimant does to cure a basic 103.154(a) problem Section not even in the denial of we compensation, does hint that rather, deterrence are not that might purpose; pre be its it convinced the failure strongly suggests judicial compensation that not cludes review. proce is The Act’s paid to be a claimant a applied incarcerated for dures should not be to trick un- 103.051(d). 33. Tex. Civ. & Rem Code Prac. BOYD,
wary applicants out of the joined Justice to Part IV are they due. Justice WILLETT and Justice LEHRMANN, concurring decision. point,
As for the second the Act applications, not prohibit does successive join I cannot Justice Hecht’s construc- even when circumstances have 103.154(a) tion of section Tim Cole changed, and the absence of such I Act because do agree that it “a is one be prohibition, we believe should not linguistically alternative”; reasonable even judicially imposed. concurrence con “just it does achieve a and reasonable cedes that a denial of is not result,” language the Legislature chose judicata subsequent application, res of a 103.154(a) simply use section will not apply but it would bar to much same Ante at 851. it. support I agree But having relieve the to decide petition for mandamus must be de- multiple applications. We do not regard nied, albeit a different reason: denying the burden of petitioner comply failed to with the Act’s given previously oppres reasons mandatory procedural requirements. sive, so, but if it repeat should become therefore concur in the judgment denying enjoined, applications cannot be the Legis petition. lature wish to an appropriate consider remedy. Prohibiting applica successive
tions, requiring unnecessary applica like I. cure, unnecessarily impedes
tions to Background seeking
claimant compensation. presume “We ... the Legis Michael arrested just lature intended a re reasonable charged with the abduction and murder by enacting sult statute.”34 We will [a] seven-year-old girl. Blair was out on arbitrary not read a statute to draw dis time, parole at following his convictions tinctions resulting in unreasonable conse burglary 1988 for of a habitation and quences linguistically when there sexual molestation of a child. After alternative, reasonable as there is with arrest, pa- the State revoked Blair’s 103.154(a). Section we con Accordingly, required role and him to serve out Comptroller correctly clude de remainder of the for his 1988 sentences compensation. nied Blair’s claim for Although convictions. Blair claimed inno- petition mandamus denied. cence, a him jury capital convicted mur- in September der The trial court opinion Justice BOYD filed an sentence, imposed a death and Blair was decision, concurring in the in Part IV of row, placed on death where he also contin- *9 which Justice WILLETT and Justice his ued serve concurrent sentences joined. LEHRMANN the 1988 convictions. The courts appellate affirmed Blair’s murder conviction and dissenting Justice LEHRMANN filed a sentence, but he opinion, which Justice death continued to seek Chief JEFFERSON, throughout Justice habeas the ensu- corpus JOHNSON and relief joined. years. Justice WILLETT ing Scott, Indep. presumed just
34. Presidio Sch. Dist. v. that ... a and reasonable 927, (Tex.2010) (citing intended....”). result is Tex. Gov’t 311.021(3)) ("In statute, enacting it Code murder row, with either Blair or the 2002, Blair associated still on death In while 2008, the 25, sentences for his concurrent the Court of completed On June victim. con- In while Blair convictions. (CCA) an order Appeals issued Criminal his innocence his efforts establish tinued petition for of habeas granting Blair’s writ conviction, voluntarily he on the murder setting the conviction corpus, aside murder that he and letters interviews disclosed sentence, Blair had finding and In these con- child molester. was a serial convincing evi by clear “established fessions, descrip- detailed provided Blair have juror no reasonable would dence that chil- sexual assaults of tions of numerous of discovered light newly him convicted victims. and identified several his dren Blair, Nos. AP- parte evidence.” See Ex Blair attorney charged then The district AP-75,955, 75,954 WL sexually molesting two counts of with four 2008) (per June (Tex.Crim.App. *1 he children identified. the curiam) (not designated publication). charges pleaded guilty these Blair granted the district The trial court then sentences, life three given four was attorney’s charges motion to dismiss Thus, even consecutively. to run them 28, 2008, and, July Blair was trans his inno- prove in his efforts to successful death row to another correc and avoid ferred from capital cence of murder likely unit, he would remain penalty, death where he continues to serve tional rest of his life. prison following time four life sentences. for which line summarizes the convictions Ultimately, DNA tests established prison the relevant during Blair served that were crucial certain hairs and fibers periods: in the murder case could not evidence 10, 2009, sexually molesting chil- July applica- filed an life sentences
On Blair then-applicable statutory dren. At Comptroller’s judiciary sec- tion with the $100,000 per requested year, rate of Blair requesting compensation under payment just over million.1 Act, $1 Imprisonment now Wrongful Texas Tim Act. See Tex. Civ. known as the Cole contained incorrect §§ In his 103.001-.154. information, security he later filed Prac. social so he acknowledged Blair application, providing documentation correct additional not entitled to “for addition- receiving information. After part during a sentence ... documentation, [he] which Comptroller agreed al serving was also a concurrent sentence to treat as if had 103.001(b). he 4, 2009, Yet another crime.” it on August submitted even he was sought though actually nearly date had it he filed 18, 2009, September in month On charge arrested on murder earlier. first began serving forty-fifth day August 1993 until *10 (but relying recently yet Although acknowledged enacted effec- 1. Blair that the 27, tive) May governed request, he amendments. See Acts of of the Act his version R.S., 180, 2, 14(b), Leg., annuity §§ ch. requested payments lifetime 81st also equal lump-sum payment, 2009 Tex. Gen. Laws an amount to the Comptroller issued a determination deny- might only thus compen- entitled to ing grounds Blair’s on the sation wrongful imprisonment (1) the CCA’s order did not establish that 2002 until 2004. But Blair argued that he Blair was obtained habeas relief based on actu- nevertheless entitled to “substantially (2) innocence, al more” than that application did because the State had negate parole “not whether a revoked his concurrent sentence because of the served, wrongful was arrest on the prison parole, either in or on murder charge. for another crime or crimes.” Shortly after Blair filed his motion for reconsideration, the Texas Board of Par- denial, receiving
After (at dons and Paroles the urging of Blair’s Blair’s counsel obtained from the Texas counsel) issued an order rescinding (TDCJ) Department of Criminal Justice 1993 parole revocation. On October corrected certificate of Blair’s time served 2009, Blair’s counsel a copy submitted discovered, in prison and apparently for this Comptroller, order to the along with a time, that the first State had revoked document entitled “Motion to Reconsider parole Blair’s on the 1988 convictions and Supplemental Documents,” Curing arguing thus Blair had served those sentences con- that, light of the Board’s order rescind- currently with the death sentence from ing revocation, parole Blair was enti- September until 2002. On 1993-2004, tled to compensation for as he Blair’s counsel sent an email to Comp- requested in his original application. troller, “formally” requesting an extension ten-day deadline to appli- submit an 9, 2009, On November forty-two days cation to cure. The following day, the after Blair filed his second motion for re- Comptroller denied that request, noting consideration, issued a that the give statute did not the Comptrol- determination, second again denying authority ler to grant such an extension. application. determination, the Comptroller agreed to consider Blair’s 28, 2009, September On day the tenth two motions for single reconsideration as a after the Comptroller’s denial of Blair’s “application to cure” under the Act. But compensation, Blair filed a the Comptroller denied the claim on the document entitled “Motion for Reconsider- ground because, that Blair was not ation of Denial of Compensation for convictions, due to the 2004 Blair was “in- Wrongful Incarceration and Submission of carcerated and will remain so indefinitely” Newly Discovered Evidence” and a docu- and, “[sjimply put, Mr. currently Blair “Objection ment entitled to Denial of Ex- man, not a required free by the Act.” tension Time for Curing of Record.” In reconsideration, his motion for Blair chal- determination, Unlike her first lenged the Comptroller’s denial of ap- Comptroller’s second determination did plication compensation. Responding to not deny the claim on the ground that the denial, ground the first Blair argued CCA’s order failed to establish Blair’s ac- that the CCA’s order did did, however, establish on its tual innocence. She restate face that Blair actually that, was position innocent of her even if Blair eligi- were Responding ble, murder. to the second his “concurrent sentences for his 1988 ground, crimes, attached TDCJ’s amend- regardless parole whether his ed time credit certificate and acknowl- revocation for those recently crimes was that, edged revocation, parole rescinded, due to the constitute a concurrent sentence concurrently Blair had prison 103.001(b),” served purposes sen- of Section tences for the 1988 convictions until thus he entitled to *11 854 “currently and because he is incarcerated concurrently served be-
for the time he indefinitely.” will so remain The Comptroller 1993 tween and by inviting letter the November 9 closed 2010, 28, January peti- filed a On Blair application to cure: Blair to submit another in mandamus in this writ of Court submit Mr. Blair wish to another “Should 10-0067, styled In re Michael Cause No. regarding this denial cure ar- petition, In that Blair Nawee Blair. letter, later he do so not than in Comptroller should the had erred gued that letter, finding imprisonment of this his current receipt from the denial that days and ineligible compensation makes him will Comptroller’s promptly the office prohibited com- in that the statute finding curing additional docu- any reconsider concurrently time pensation for the he ments, any, arguments further that if de- served for the 1988 convictions. We light Blair to submit Mr. want 9, 2010, April on petition nied Blair’s in this denial letter.” the stated bases rehearing May motion for on we denied his 2009, later, 18, days November Nine on 28, 564,- Sup.Ct. 2010. See 53 J. Comptroller’s accepted Blair invitation 2010). S.W.3d-(Apr. “Sup- submitted a document entitled later, on we Nine months March In Motion to Cure.” this docu- plemental Smith, in In issued decision re our ment, nothing Blair that in the argued that the “concurrent- which we held Act’s statute plain language of the authorized does apply sentence restriction not Comptroller deny the claim on the conviction the cause of wrongful currently impris- that still ground he is person serving a concurrent sentence addition, again argued Blair that oned. (Tex.2011). prison.” 333 S.W.3d be compensation the amount should not out, this con- points holding As Blair was due the concurrent sentences reduced (stated trary Comptroller’s position to the following the Blair served from 1993-2002 determinations, in her and second but first for the parole revocation of 1988 crimes. third) that, eligible not her Blair were forty-two days On December eligible he would compensation, submission, after Blair’s November 1993-2002, for the when he period a third Comptroller issued determination serving concurrent sentences for time, denying claim. This and the murder con- convictions (as in her second Comptroller determina- viction. tion) rely ground did not on the that the 29, 2011, On March filed a new Blair order did not establish actual inno- CCA Comptroller, seeking (unlike first two cence and her determina- compensation on the same on which bases tions) did not sen- address concurrent previous he had relied in his submissions. Instead, tences for the 1988 convictions. In this which Blair referred to application, solely relied on the claim,” as his that argued “second that “not a ground Blair is entitled changed “the law has been a substantial he im- compensation” because remained Supreme manner Court decision.” molestation prisoned the sexual convic- that, urged justice He “for equity,” again tions. The reasoned Comptroller petition- should “reconsider Legislature “clearly Chap- that intends er’s second claim” and reconsider “docu- provided only ter 103 to be ments in the case for original submitted eligible they in order applicants of this Specifically, consideration claim.” might put together argued their lives back prior de- release,” Blair is must their and that termination
855
due to the concurrent
be reduced
sentence
the statute” to resolve those claims. State
for the 1988 convictions was erroneous
(Tex.2007)
58,
v. Oakley, 227 S.W.3d
of
in In
light
our decision
re Smith. Fi-
(relying on statutory language to deter
nally, he asserted that the 2009 version of
Chapter
mine that
are not
claims
as
application
the Act
governed
signable). “The construction
aof
statute
$850,000
just
was
to receive
entitled
over
question
is a
of
law
we review de
under
compensation
the amended
rate.
novo,” and
task is to
“[o]ur
effectuate the
13, 2011,
On May
Comptroller
issued Legislature’s expressed intent.” In re Al
a determination denying Blair’s new claim len,
696,
(Tex.2012).
366 S.W.3d
Our
First,
grounds.
Comptroller
on three
legislative
search for
begins
intent
claim
“virtually
noted that
new
was
the statute’s language: “Legislative intent
original
identical” to the
claim and thus
is best
legislative
revealed in
language.”
grounds
must be
on the
denied
same
—Gen.,
S.W.3d -,
In re
of Att’y
Office
Second,
the first.
rea-
Comptroller
-,
(Tex.
854785,
8,
2013 WL
at *4
Mar.
application
soned that
new
was effec-
2013). When the
language
statute’s
is un
tively a challenge to the denial of
first
ambiguous and
not
does
lead to absurd
“already
which
application,
fully
had
been
results, our
search also ends
there:
adjudicated
finally
Finally,
resolved.”
clear,
“Where text
text
is determina
Comptroller asserted that
re Smith
States,
Entergy
tive.”
Inc. v. Sum
Gulf
bearing”
had “no
on the Comptroller’s de-
mers,
(Tex.2009).
433,
282 S.W.3d
cision because she based her determination
on any
solely
not
concurrent
but
sentence
will
apply
We
not
rules of construction
ground that,
on the
“as was stated in the
or other extrinsic
aids
the statute is
Comptroller’s final denial letter of Decem-
ambiguous.
not
Fitzgerald v. Advanced
30, 2009, ...
ber
Blair
not a person
Inc.,
864,
Spine
Sys.,
Fixation
996 S.W.2d
entitled
Chapter
(Tex.1999);
City
865-66
see
Rockwall v.
of
103.”
(Tex.2008)
Hughes, 246 S.W.3d
Blair did not
an application
submit
(“When a
language
statute’s
clear
response
cure in
the May
13 denial.
unambiguous, it is inappropriate to resort
Instead,
9, 2011,
on June
he filed
peti-
to rules
of construction
extrinsic aids to
tion for writ of mandamus that we address
Instead,
language.”).
construe the
we
today.
challenges
word,
take the
its
Legislature at
as the
denial of
his second
on a single
truest measure of what it intended is what
ground:
imprisonment
his current
does
it enacted. See
Mgmt.
Alex
disqualify
him from compensation for
Sheshunoff
Servs.,
Johnson,
L.P. v.
209 S.W.3d
the time he
wrong-
served
under the
(Tex.2006).
651-52
ap
This text-based
ful
conviction. The
disagrees
proach requires
study
with Blair’s construction
us to
language
of the Act
but
responds
also
specific
did
section at issue in the con
duty
have a
to consider Blair’s second
text
the statute
whole.
as a
In re Office
—
for the same
Gen.,
at -,
of Att’y
2013 WL
the Comptroller previously denied.
*4;
at
Fitzgerald,
Standard Review Co., v. Am. Nat’l Ins. Ins. (Tex. 853-54, “As 2012 WL Chapter entirely May 103 claims are *8 creation, 2012). statutory look we to the words *13 in a to suit the State against tion or file
III. Act of jurisdiction. See competent court of The Tim Cole 1488, 18, 2001, R.S., Leg., 77th ch. May 1956, amended of Texas people In the (for- 5280, 1, Laws § 2001 Tex. Gen. the authorize the Texas Constitution § 103.002 merly Tex. Prac. Rem Code & Civ. compensa aid “grant legislature (“A compen- person entitled (repealed)) has a fíne or any person “paid who tion” by following the may proceed ... sation ... prison in for a sentence served provisions administratively awarded for guilty.” or she is not for which he offense Subchapter by B or under compensation Legisla III, § art. 51-e. C, per- a Subchapter but filing suit under Tex. Const. imprison wrongful the first enacted ture under both may compensation son not seek 1965, it C.”). and later codified year, statute ment B and That same Subchapters Imprisonment Act Wrongful the Texas the Act to remove legislature as amended the leaving the adminis- litigation option, 103 of Civil Practices and Chapter the the Allen, pro- the authorized process In re 366 trative Remedies Code. See 11, 2009, Smith, May 81st See Act 699-700; cedure. In re at S.W.3d R.S., 180, 12(1), (2), § 2009 Tex. Leg., ch. 585; at see also Tex. Civ. Prac. (repealing section §§ 103.001-.154. Laws Gen. Rem.Code C). subchapter Although 103.002 and amended the the compensa- filed a suit for Blair could have ways pertinent are Act in two July pursue elected to tion First, compensa it excluded from appeal. process. through claim the administrative served under a concurrent time process, the Act For the administrative crime which the for another for sentence procedures which a establishes detailed wrongfully convicted. See person was services, obtain claimant benefits 18, 2001, R.S., 77th ch. May Leg., Act of Comp- on the imposes certain duties 5280, 5283; 1488, § 2001 Tex. Gen. Laws pro- these for the administration of troller 103.001(b)(“A § Tex. Civ. Prac. & Rem.Code cedures. See Prao. & Rem.Code Civ. is un person not entitled compensa- §§ qualify 103.001-.154. To (a) any part of a Subsection sen der tion, claimant file an a “must” person during which the prison tence “not later than the with the serving a sentence for was also concurrent anniversary of the date” the claimant third (a) to which Subsection does another crime pardon granted or was habeas received Second, provided it apply.”). ter relief of innocence. Id. corpus on basis “if, compensation payments af mination of § The claimant “must” file certain 103.003. person becomes ter the date application, including documents with 103.001, Section under pardon order copy verified court punisha is convicted of crime provided by a statement the TDCJ felony. Compensation payments ble as verifying length of the incarceration. this subsection terminate 103.051(a). receipt Upon ap- § Id. conviction.” See subsequent date plication, Comptroller “shall” deter- 18, 2001, R.S., ch. May Leg., Act of 77th and the eligibility mine the claimant’s 5283; 1488, § 2001 Tex. Gen. Laws owed, any compensation id. amount § 103.154. Prac. & Tex. Civ. 103.051(b), by considering § “shall” do so sought compensation Blair first When must verified documents that ac- only the 103.051(b- the Act a claimant to July permitted company application, id. 1), “not than the administratively apply compen- and “must” do so later either day 45th date Comptroller’s judiciary with the sec- sation 103.051(c). Comp- received.” Id. because he has been convicted of child duty eligibility troller’s to determine is molestation, currently imprisoned for 103.051(b-l). “purely ministerial.” convictions, those likely and will remain in prison for the rest his life. According If determines that the *14 eligible compensation, claimant is for she to the Comptroller, purpose the of the Act claimant, to payment “shall” make the the help is to released inmates rebuild their the “to extent that funds are available and lives reintegrate into society they after purpose, for appropriated not later are released from prison, purpose and this the 30th the day than date the comp would not be paying advanced compen- grants application.” the troller Id. sation to someone who is in prison for 103.151(a). If, hand, § on the other other crimes spend and will the rest of his claim, Comptroller denies the she “must life there. The could not have state reason denial.” Id. result, intended so absurd a the Comptrol- 103.051(d). Then, § version of continues, ler and therefore the Act cannot claim, Act applicable Blair’s to be read literally. Justice Hecht rejects an application claimant “must” submit to this argument, pointing to several of the “not later 10th day cure than the after the provisions Act’s that demonstrate that date denial is received.” See Act of helping reintegrate the claimant into soci- 18, 2011, R.S., May 698, 5, Leg., § 82nd ch. ety legislative is not the Act’s sole purpose. (amending Tex. Gen. Laws point, Hecht, On agree this 103.051, § Civ. Justice Tex. Prac. & Rem Code currently which for the gives thirty claimant reasons he has described. cure). to days submit an application to But goes Justice Hecht on to hold that Comptroller The then “shall” re-determine 103.154(a) section bars Blair from receiv- eligibility and the amounts owed “not later ing compensation, and I do not agree with the 45th day” than after she receives the his construction of that section. Section to If cure. Id. the Comptroller 103.154(a)provides: denies the claim after the claimant submits cure, “may” an the claimant [Compensation payments to a person bring then an action for mandamus relief. if, ... terminate after the date the per- 103.051(e). Id. The mandamus action son becomes eligible compensation “must filed in only this Court because ..., is convicted of a crime Supreme Court issue a writ of punishable felony. Compensation as against mandamus officer the execu payments terminate under this subsec- State, department tive such this as the subsequent tion on the date of con- Smith, Comptroller.” In re 333 S.W.3d at viction. 585. 103.154(a).2 Tex. Civ. PRAC. &
IV. Although neither Blair nor the Comptrol- Impact of Other Convictions 103.154(a) argues ler applies section case,3 this Justice Hecht concludes that contends that Blair is eligible provision receive preemptively terminates provision apply This compensa- does not 3. The contends that "[s]ection 103.154(a) support payments tion for child is irrelevant Blair's claim” be- and interest imprisonment cause Blair’s current renders support arrearages. child Id. ineligible him in the first 103.154(a), (c). 103.154(a) place. agrees that section that oc- right compensation.4 “subsequent But that is not conviction” squared cannot be with the stat- “after” date of position eligibility. curred By plain language. express its ute’s Thus, I Hecht that disagree with Justice 103.154(a) terms, com- section terminates linguistical section 103.154 “admits two payments if the claimant is con- pensation interpretations.” Ante at ly reasonable per- felony victed of date “after “is alone phrase 849. While the convicted” eligible compensation.” becomes son subject than reasonable to more one added). (emphasis Because Blair interpretation, the statute a whole is convicted of child molestation before subject one. See Prac. Civ. compensation, there is became *15 103.154; see also TGS-NO- Rem Code “subsequent “terminate” no conviction” to Combs, v. Geophysical PEC Co. payments. agree parties his I with the (Tex.2011) (“Language 103.154(a) apply. that section does not See apart be context. interpreted cannot from id. meaning a word am appears that phrase Justice Hecht contends that the may be biguous when viewed isolation convicted” not the act of “is refers “to analyzed clear the word come is adjudication,” to the of the but status it.”). that If light terms surround a person claimant as who “stands convict- Legislature compensa the intended to bar that, felony. agree of a I under some ed” tion for all claimants who ever been had circumstances, phrase the “is convicted” felony, convicted of a whether before or reasonably interpreted mean could be they eligible compensa after become for convicted,” “stands but not in the context tion, may it could have done so still do and that statute. statute states But we read may so. not into the statute if, the payments “terminate the date contrary that is legislative directly intent ... eligible person becomes the is Legislature language to the selected punishable convicted of a crime as a felo- Lottery and enacted into law. See Tex. ny. Compensation payments terminate DeQueen, v. State Comm’n First Bank under this subsection the date of (2010) (“[W]e must subsequent (emphases conviction.” Id. take statutes as we find them first and and added). “terminate,” For payments intent primarily Legislature’s seek the process, or at payment right least the language. are responsible its Courts payments, receive must have commenced legislation, for are omissions but we place, in some form in the first a true and responsible interpreta fair “after” “subsequent” clarify terms (internal written.”) tion of the law as it is that a conviction that “terminates” omitted). citation Even if payments yet one that has not occurred we believe “may when the claimant have eligible becomes to re- made a mistake” in 103.154(a), the payments. may wording ceive While Blair their of section we empowered “stand of child ‘fix’ convicted” molestation after “are not mistake he eligible payments, disregarding statutory became to receive direct clear apply paid does not to him for reason different 4. The seeks through annuity. an See Tex Civ. Prac. he was convicted of other before crimes 103.154(a) 103.053. If ter- section eligible Rem.Code he became while payment annuity minates the date from 103.154(a) only applies
section to an individu- convictions, of Blair's child molestation becoming al convicted of other crimes after annuity payments begin to Blair never will compensation. place. the first language it”) that does not create absurdi motivates scores of enact others to (citation ty.” may omitted). it be Though Moreover, reasonable- desirable circumstances of this ness is not the standard for eschewing case, it is not for the to plain rather, absurd State statutory language; “[i]f a compensate years Blair for the ten statute is clearly, worded we must honor spent on death row for murder he did plain its language, unless interpreta- not commit. tion would lead to absurd results.” Combs v. Health Care Servs. Corp., 401 S.W.3d Importantly, the Legislature expressly (Tex.2013) 623, 629 added). (emphasis prohibited claimants com- receiving assert, Justice Hecht does not and do not pensation time served when serv- reasonably assert, think he could it ing sentence for another crime in addi- would absurd distinguish Act to tion to the crime of which claimant is past between present crimes in decid- innocent. Tex. Civ. PRAC. & ing who compensation. receive Even 103.001(b). The Legislature has thus if this distinction “seems strange” I—and impact addressed the other convictions *16 agree do not that it is an unusual or unrea- that occur the claimant becomes before sonable distinction to make—“we read un- eligible compensation, so has done ambiguous they written, statutes as are by denying compensation for time they not as make the most policy sense.” convictions, served on by those other not denying eligibility compensation com- pletely. light statute, of the language See id. Justice Hecht of contends I statute, conclude that Blair’s 2004 pro- construction of the while “lin- convictions reasonable,” hibit him guistically receiving has from compensation for unreasonable time served in consequences beginning because treats it convictions 2004 but do not prohibit him differently depending they receiving compensation on whether oc- for time prior cur or after served before the date the that date. eligible becomes V.
the Tim Act. at Cole Ante 849. He ac- knowledges that such a distinction could Comply Failure to with Procedural light reasonable the deterrent Requirements effect termination of could contends that we (but have on future past crimes deny petition should Blair’s for writ of crimes), then rejects but that basis for the mandamus because she did not abuse her distinction on the ground that the statute by discretion denying appli- Blair’s second does not indicate Legislature that the cation. At least in of a mate- absence so Ante motivated. at 849. change circumstances, rial argues, she
But we must construe statutes duty based she was “under no to reconsider her enacted, text the not on denial Blair’s resubmitted claim” be- speculation about legislators’ individual clearly that, cause “the Act contemplates motivations. See denied, Pac. Gas Elec. v. once Co. a mandamus action is as it State Energy Res. case, ended, Conservation & Dev. inwas matter Comm’n, 461 U.S. 103 S.Ct. and no further proceedings on the same (1983) (“[Ijnquiry leg- L.Ed.2d into claim are contemplated.” agree, I al- islative unsatisfactory motive is often an though conclude Blair’s failure to venture. legislator What one comply procedural motivates require- other vote for a statute is necessarily what precludes ments also his claim. This mandates step-by-step a Tim each of the Act’s previously has observed
Court step next may proceed to follow he “required claimant is before Act Cole com process, to obtain the and the claimant must statutory procedures certain Smith, he seek all before plete steps In re compensation,” added), we not had relief from the but have mandamus (emphasis procedures deny eligibility. these occasion to address decision' language I read the detail. As Language 1. Plain statute, compensa- Blair cannot receive above, Tim Act’s As described Cole (1) repeated- he seeks because tion that prescribed process applies administrative procedur- with the Act’s ly comply failed to “must,” “may,” different directives— deadlines, are requirements and which al procedural steps: “shall”—for different means for mandatory and are exclusive (cid:127) The claimant “must” file compensation under the obtaining by specified documenta- accompanied obtaining judicial Comp- review the years three of an within (2) determination, and eligibility troller’s order, or relief.5 pardon, pro- application-for-compensation the Act’s applica- multiple not authorize cedure does (cid:127) eli- “shall” determine petitions tions or for writ of mandamus con- gibility and the amount owed at least compensation, the same sidering only specified documenta- change in material circum- absence forty-five so tion and “must” do within stances. application.6 days receiving *17 (cid:127) claim, Comptroller grants If the the “Must,” “May,” A. and “Shall” the within payment she “shall” make Legislature the To whether thirty days, determine the funds are extent statutory provision to be man intended a appropriated.7 available datory, plain meaning of “we consider the (cid:127) claim, Comptroller If the denies the act, used, the the as well as entire words (cid:127) “must” reason for the she state the object, and the conse its nature and denial, and from each con quences that would follow (cid:127) appli- “must” an claimant submit Wilkins, Chem. Co. v. struction.” Helena days (thirty cation to cure within ten (Tex.2001) 486, Al (quoting 47 S.W.3d 494 days under the current version of Sinclair, 958, bertson’s, Inc. v. 984 S.W.2d Act).8 (Tex.1999); Mills, Bewley v. 961 Chisholm (cid:127) an application If claimant submits 943, (1956)). 400, 155 Tex. 945 cure, again “shall” plain language hold that the would determine and the amounts eligibility provisions, by Tim procedural Cole Act’s forty-five days.9 owed within light considered their terms and (cid:127) whole, Legisla claim Act as If the denies the demonstrates cure, satisfy after an the claim- ture’s intent that claimant must 5280, § 5283 5. Tex. Prac. & Rem.Code 103.003. (enacting Tex. Civ. Prac. & Laws Civ. 103.051(d)); 18, Act § Rem.Code May (c). 103.051(b-1), §Id. 6. R.S., Leg., 2011 Tex. Gen 82nd ch. § (amending Prac. Laws Tex. Civ. & § 7. Id. 103.151. 103.051(d)). § Rem.Code 103.051(d); § 8. see Act of June 103.051(d). Leg., § 77th ch. Tex. Civ Prac R.S. § Tex. Gen. bring statute, “may” ant then an action documents listed in the within years mandamus relief.10 three as eligibility, a condi- precedent tion Legislature expressly The has defined the Act.11 each with limited ex of these directives: ceptions, when statute uses the term (cid:127) If Blair satisfied this prerequisite, “must,” recognizes it “creates or a condi the Comptroller then had a duty to precedent,” Code Gov’t determine eligibility and the 311.016(3); § a statute term uses the owed, by amount considering only the “shall,” “imposes it id. duty,” statute; documents listed in the 311.016(2); and when a statute uses the a duty she had deny claim the “may,” discretionary term it “creates au clearly documents did not indicate on thority grants permission power,” or or a their face that Blair was entitled to 311.016(1). apply id. These definitions compensation.12 statutes, to all which “unless context in (cid:127) determination, phrase appears necessarily the word or forty-five within days, that Blair was requires a or different construction” “a eligible and her statement of the provid different is expressly construction reasons that he were by ed statute.” Tex. Gov’t Code 311.016. precedent conditions to Blair’s obli- Tim Act does not an provide Cole gation to file to cure terms, meaning alternative for these days.13 within ten below, as nothing discussed in the Act (cid:127) the Comptroller After satisfied these contextually compels a contrary construc conditions, Blair’s of an filing applica- fact, “may,” tion. giving words days tion to cure within ten was a “must,” and in the procedural “shall” Act’s precedent condition further provisions their plain meaning, specified obligation duty by Comptrol- Con Code of ler.14 struction, in an orderly results administra
tive process for claimants to com receive (cid:127) timely If Blair an applica- submitted pensation undue delay without burden or cure, to Comptroller the a had for the or the Comptroller. claimants See duty eligibility to redetermine 103.051. § Tex. Civ. Prac. &Rem.Code forty-five days.15 within Thus, I construe the statutorily-required (cid:127) permission Blair had bring to an ac- process following in the manner: tion for if the Comp- mandamus relief
(cid:127) Blair file an application had to denied after troller his claim he sub-
compensation, accompanied by the application an cure.16 mitted to 103.051(e). (enacting § 10. Prac. & Rem.Code Tex. Civ. 103.051(d)). § 103.003, 11. Tex. § & Civ. Prac. Rem.Code 103.051(a); 311.016(3). § Tex.Gov't Code 15, R.S., Leg., 15. Act of June 77th See 1, § ch. 2001 Tex. Gen. Laws 103.051(b), (b- 12. § & Rem Tex. Civ. Prac. Code (enacting & 1); 311.016(2). Tex. Civ. Prac. Rem.Code § Tex. Gov’t Code 103.051(d)); § Prac. & Tex Civ. Rem.Code 103.051(c), (d); 13. Tex Civ. Prac. § & Rem.Code 103.051(d); 311.016(2). § § Tex. Gov’t.Code 311.016(3). § Tex.Gov't Code 103.051(e); § 16. Tex. Civ Prac. & Rem.Code R.S., Leg., 14. See Act of June 2001 77th 311.016(1). § Tex. Gov’t.Code ch. 2001 Tex. Gen. Laws § her eligibility subjects of the Act the determination The Nature of 2. — authority. See mandamus Consequences of Court’s Construction Allen, (d), (e); 103.051(a), § In re id. procedural the Act’s This construction of Smith, 701; In re 333 S.W.3d at S.W.3d is consistent requirements used, the words but plain meaning the of whole, judicial review of the procedure its the Act as a nature also consis Comptroller’s decision is likewise consequences that follow object, and Wilkins, as a The Act 47 tent with the Act whole. See from the construction. “duty Comptroller’s provides that (identifying at 494 considerations construction). eligibility a claimant” is Comp determine the obligates It ministerial,” 103.051(b-l), but, § “purely id. expediency act with relative troller to could, general a claimant step process, in the conditions the thus at each law, compel previ seek a writ mandamus Comptroller’s duty on claimant’s to make a determination Comptroller that will filing of documents assist ous Comptroller if the failed to performing duty. eligibility See do Comptroller provided by § so within the time statute. 103.051. Civ. Tex. Prao. See, Smith, e.g., at 585 only participant subject In re claimant is (“The ex authority mandamus prerequisites Comp Court’s procedural —the timely performance duty compel performance of her to tends order or troller’s ‘to judicial, discretionary eligibility and state the ministerial or determine reasons that, law, act or state the officer or duty her of a claim is condition denial ”) (cit obligation perform.’ officers authorized to to the claimant’s are precedent 22.002(c) § days ing within and application fide an to cure ten Tex. Gov’t Code (d). 3). V, 103.051(c), the denial. id. Const. art. But See has under the Act support the claimant’s also afforded claimants As specific judicial avenue for review of the ing documentation assist the claim, evaluating Comptroller’s deny decision to eligibility, Comptrol of reasons for her the claimant filed cure ler’s statement denial required and complied the claim assist the claimant his efforts with the other steps. of- the Tex. Civ. Prac. & Rem Code to cure cause See 103.051(e). denial. has To Blair to seek mandamus
But once
satisfied
allow
review
*19
the
duty by providing
Comptroller’s
the claimant
of
substantive decision
her
with
denial,
filing
application
the reasons for
the
shifts without first
to cure
her
onus
Comptroller’s duty to re-
comply
invoking
to the claimant to
his
the
back
with
timely
eligibility
render
duty
application
file an
to cure.
determine his
would
the
103.051(d).
optional
§
process
process
See id.
The Act’s
statute’s re-determination
(though
Comp-
for the
for an
to cure
redetermina-
claimants
not
troller), contrary
the
to the
mandato-
eligibility give
tion of
both
claimant
statute’s
respect
opportunity
ry language
the
one
with
to both the
Comptroller’s actions
any
correct
errors. A claimant’s failure to
claimant’s
103.051(a)-(d).
§
And
satisfy
part
process
timely
this
actions. See id.
his
of
—a
precludes
him from substantive review of the correctness of
cure—
in
step
quest
Comptroller’s eligibility
to the next
determination
proceeding
stage
compensation;
any
compensa-
and the
fail-
is available at
of the
(e)
process,
language
her
part
process
ure to fulfill
of this
subsection
—re-
863
form”)
grants permission
that
for a mandamus
(quoting Tex. Civ. Prac. & Rem Code
74.251(a))
action
denies
claim
comptroller
(emphasis added);
a
“[i]f
Edwards
an application
Lime, Ltd.,
after the claimant
Aquifer
submits
Auth. v. Chem.
291
(Tex.2009)
superfluous.
is
[to cure]”
S.W.3d
404-05
(holding
Tex. Civ. Prac. &
103.051(e);
see also
that provision
Columbia
in Edwards Aquifer Author-
Rem Code
Colinas,
Hogue,
ity
Med. Ctr.
Las
Inc. v.
Act that “declaration of historical use
of
(Tex.2008) (“The
1,1994]”
271 S.W.3d
must be filed
or before March
[on
interpret
prohibited
Court must not
statute
a
late-filed applications) (empha-
added);
manner
part
that renders
of the stat
sis
see also Helena
Co. v.
Chem.
Wilkins,
(Tex.2001)
superfluous.”).
ute
or
meaningless
47 S.W.3d
(holding that
use
“must” in Texas Seed
Moreover, the Legislature's creation of a
Arbitration Act meant
purchaser
that “the
right
to review under expressly defined
must submit
the claim to arbitration as
legislative
circumstances
a
evidences
ex-
provided by
chapter
this
prereqidsite
a
pectation
right
that the same
to review is
to the
purchaser’s
exercise
right to
when those
available
circumstances are
maintain a legal
against
action
the label-
present.
Indus.,
See
Inc.
PPG
v.
er”).
Ctrs.
Ltd. P’ship,
Partners
JMB/Houston
(Tex.2004) (“When
Aquifer,
Edwards
we observed:
a
Legislature
right
remedy
includes
or
haveWe
said that
word ‘must’ is
“[t]he
part
another,
one
code but
it in
omits
given a mandatory
meaning
fol-
what
precisely
by
lowed
a noncompliance penalty” but
intended,” and “we must honor that differ-
this
suggest
does not
pen-
when no
ence.”);
(“In
311.034
Tex. Gov’t Code
cf.
alty
prescribed,
is
“must” is non-manda-
preserve
legislature’s
order to
interest
tory.
“When the statute is silent [re-
state fiscal
managing
through
matters
garding
penalty
noncomplianee],
appropriations
process, a statute shall
purpose
we have looked to
guid-
its
not be
of sovereign
construed as waiver
ance.” The EAAA
suggest
does not
immunity
unless the waiver is effected
applicant
that an
can be
fined
a late
clear and unambiguous language....
Stat-
filing
that the water allocated should
suit,
utory prerequisites
including
be reduced accordingly.
pen-
notice,
provision
jurisdictional
are
re-
alty the
suggests
EAAA
late
quirements
against
all suits
a govern-
applications will not be considered.
entity.”).
mental
(citation omitted);
This procedural construction Act’s purpose to determine conse- proper requirements is also consistent *20 quences.”). precedent Court’s analogous in situations.
See, M.D., Carreras, too, e.g., only by Jose P.A. v. Here penalty suggested (Tex.2011) Marroquin, 339 72 S.W.3d Tim Cole Act for a claimant’s to failure (holding liability mandatory that health care claim- take in step application ants’ failure to process include authorization form is that he has not invoked the with precluded notice claimants from avail- Comptroller’s duty responsive to take ac- and, ing statutory tolling provi- themselves of an the case of failure to file (d), provided sion because statute that “notice to cure under subsection (e)’s be accompanied by may must the authorization avail of not himself subsection process, party’s and one step of the next review avenue substantive step at statutory duty each eligibili- of fulfillment of Comptroller’s redetermination compli to either a process gives of the rise that the ty determination —a mentary duty right under the statute. duty to make absent has no 103.051; & Rem Code See Tex. Civ. Prac. cure. to (address White, 288 at 395-96 S.W.3d cf. readily distinguishable from This case is statutorily-mandated to include ing failure instances when a statute’s context those from hear right of of review notice limited we not the term dictated that construe compliant timely sus ing otherwise precedent. “must” to create a condition letter). pension enforcing The effect of Wilkins, (al See, at e.g., S.W.3d mandatory procedures as written Act’s Seed Arbitration Act made though Texas deprive non-compliant does not claimants filing to precedent a condition arbitration they had at common law or that rights suit, context of the statute demonstrat rather, Act; of the exist outside to file “within ed that failure arbitration statutory the Act’s failing effect of to fulfill necessary permit to effective in the time that claimant prerequisites is plants under field condi spection un receive the benefits otherwise available suit) (applying not bar tions” did Wilkins, 47 492- der the Act. S.W.3d at Cf. 64.002, 64.006(a)); City Agric. §§ Code comply to (declining construe failure to White, v. 395-96 DeSoto 288 S.W.3d requirement promptness bar suit (Tex.2009) (holding police sus chiefs action). law cause And common omitting statutorily required letter pension Blair right because the process appeal information about by seeks created the Act did not deprive hearing suspension did exam law, Open exist at common Courts jurisdiction suspended iner of over officer’s provision of the is not Texas Constitution appeal require reinstatement of offi I, 13; art. implicated. See Tex. Const. cer); § 311.016 see also Tex. Gov’t Code Votteler, also see Sax v. exception general construc (providing (Tex.1983) (holding right that “the 665-66 tion of term “must” when “the context bring a well-established common law appears or phrase which the word neces effectively cannot be abro cause of action construction.”). sarily requires a different gated legislature absent a showing statutory is not a scheme that ex- This legislative basis for the statute penalty pressly an alternative provides outweighs the the constitutional denial of procedural require- to fulfill failure its redress”). ly-guaranteed right of ments, expec- nor does the indicate an Application tation that who fail to fulfill the claimants comply procedur- with the procedural requirements permitted will failed to anyway. necessary to au- proceed precedent al conditions Cf. Wilkins, (observing grant thorize this Court to him the relief 495-96 statutory provision jury consider- he seeks in this action for mandamus. Af- regarding appli- findings ation of arbitrator’s de- ter denied his first cation, lay bringing indicated that he filed a “Motion for Reconsidera- arbitration days, ten then delay did not intend to bar tion Denial” within suit). statutory procedures for com- filed another “Motion to Reconsider” twen- *21 not, and ty-three days under the Tim Act are not later. We need pensation Cole not, step required Act requirements mere notice in would hold that the Blair —each process tenth-day filing title an “Application the serves as foundation the to his to rather than “Motion for Recon- statute Cure” makes no such distinction between Denial,” grounds but future sideration of claimants for denial. states only It that “[i]f the comptroller claim, the should follow that to denies practice avoid confu- comptroller event, must state the reason any sion. In the Act did for the permit denial,” thirty days and within after the subsequent Blair to file the “Motion to received, denial is “the claimant must Reconsider,” sub Comptroller should mit an application any problem to cure not have it. Nor considered should the identified.” Tex. Civ. Prac. & Rem invited, accepted, have consid- Code 103.051(d). § importantly, More the stat ered, subsequent or ruled on Blair’s “Sup- ute specifically permits only mandamus Cure,” plemental Motion to as the Act comptroller “[i]f denies a claim does not authorize action following the application claimant an submits un application denial of an to cure other than (d) i.e., der application Subsection an to ”— petition for writ mandamus. Once 103.051(e). § cure. procedural These an application Blair’s deadline to file to “musts” precedent,” create “conditions see passed, ability cure to his submit informa- 311.016(3), (and and we ceased, Tex. Gov’t Code tion to the Comptroller and his Blair) by are bound them. There is noth was to remaining avenue seek manda- ing unreasonable or even undesirable Instead, mus relief as the allows. he giving about the claimant and the Comp continued to additional submit documents troller a second to achieve right chance Comptroller, to the then relied on the result —within statutorily provided information documents to support those timeframe —even when the his first petition. mandamus Blair failed legal denies claim for reasons rather comply procedural the Act’s re- than paperwork. a defect in the Other quirements application in his first for com- statutes contain similar time-sensitive but pensation, petition and we denied his first mandatory second chances. Adminis for mandamus. (APA), trative Procedure Act for example, Then, contending that was entitled to requires a rehearing pre motion for as a file a second for the application same relief requisite appeal from most contested (a below), contention I discuss further 2001.145(a) cases. See Tex. Gov’t Code application submitted a successive (“A timely rehearing motion a pre and, denial, upon the Comptroller’s imme- requisite appeal to an in a contested case diately sought mandamus relief without ”). except.... application Like an to cure cure, filing first application as the Act, under the Tim Cole motion for statute says he “must” do. Since this is rehearing under the APA must be filed the denial for which he now seeks manda- with a days certain number of after the mus, his an application failure to submit decision, agency’s like the Comptrol following cure denial of ler’s of eligibility re-determination is, itself, application his second a reason Act, agency the Tim has Cole a certain deny we must petition. days number of to act on the motion. See Justice disagrees Hecht the Act 2001.146(a), (c) id. (twenty days to file required Blair an application to file to cure forty-five days motion for rehearing, act motion). before seeking mandamus relief a second on I agree with Jus While time; not require statute does an ap- tice Hecht that an to cure cure, plication according to Justice not the same as a “motion for reconsidera Hecht, tion,” compensa- and likewise neither these is the “legal rehearing,” is denied on a basis.” But same as a “motion for all of
866 pur judicata. process of res The filings general principles have the same these opportunity poten to correct a pose the Tim obtaining compensation under —an none of tially erroneous decision—and It admin unique Act is that Act. is Cole inherently are limited to the correc them not by Comptroller and does istered specific one of error. See tion of kind un proceeding to a “contested case” lead Dellana, v. 849 Tex. Water Comm’n the APA. der Cf. Tex. Gov’t Code (Tex.1993) (observing that 810 S.W.2d 2001.003(1) (defining a “contested case” rehearing predeces under APA motion ratemaking proceeding, including as “a designed agen statute is to “allow sor licensing legal in which the proceeding, or cy opportunity to correct the error or duties, are rights, privileges party or of a it”) to defend prepare (quoting Suburban agency to be determined a state Comm’n, Corp. v. Pub. Util. Util. ”) adjudicative hearing opportunity an (Tex.1983)). 358, 365 added). (emphasis Comptroller’s de eligibility of ministerial and termination is Applications B. Successive solely must be based on the verified docu petition Comptroller’s re- Blair’s and the ments filed with the it is not application; when, if also raise the sponse question of an in adjuratory process the result ever, claimant appli- file successive Comptroller in a judicial which acts petitions cations or mandamus successive quasi-judicial capacity. See Prac. after the an earlier Civ. has denied Thus, Comp 103.051. we application and have denied an earlier & Rem Code eligibility, troller’s determination of even relief. I would petition mandamus final, ef that, judicata does have res although judicata hold res does not applications Igal v. petitions, Brightstar bar successive fect. Tech. Cf. Info. them, permit (Tex.2008) Inc., does least Grp., 250 S.W.3d materially changed the absence of circum- (res judicata generally applies to TWC stances. judicial final orders because TWC acts deciding capacity wage par claims and
1. Res Judicata adequate had “an to liti opportunity ties judi- that res contends gate their claims an adversarial through application cata bars Blair’s be- second in which process finally decided dis TWC Comptroller’s cause determination of fact”); puted issues of Coal. Cities agency Blair’s first final is a Util. Rates v. Pub. Util. decision. the “final Affordable responds (Tex. Tex., Comm’n rule” agency applies only decision when an (PUC 1990) hearing and final order on rate acting fol- agency judicial capacity precluded re-litigation increase of same is lowing a contested hearing, testimonial here, subsequent see when, proceeding); sue PUC apply and it does not duty States v. Min. comptroller’s “purely ministerial.” also United Utah Constr. & Co., Blair also contends denial that this Court’s 384 U.S. S.Ct. petition (1966) first (administrative for writ of mandamus pro L.Ed.2d 642 was not decision on the merits and thus ceeding preclusive can have effect when judicata has no res effect. agency acting the administrative “is in a judicial capacity disputed resolves is agree neither the sues of fact it which the properly before prior determination nor this eligibility parties adequate have had previous opportunity relief Court’s denial of mandamus bars second under the litigate”).
867 Nor does this Court’s of Blair’s denial forth sets a series of specific previous petition -writ of mandamus procedural that, requirements together, judicata have res effect. of provide The doctrine a simple and process efficient judicata implicated only by res prior “a those who wrongfully were imprisoned to final on determination the merits.” Trav- obtain the compensation they to which are Joachim, Ins. elers Co. v. 315 process S.W.3d entitled. But the require- includes (Tex.2010) ments, 862 (listing judi- elements of res requirements and these are manda- cata). Our of petition denial first tory. Blair’s Justice Hecht’s construction of for writ of mandamus was not determi- Act as permitting multiple applications by on nation the merits. See In re AIU Ins. the same claimant on based the same Co., (Tex.2004) wrongful imprisonment renders these (“[Tjhis Court’s grant petition mandatory failure to requirements meaningless. for writ of an adjudica- mandamus is not For example, a claimant who failed to file of, on, nor (now even a comment the merits an application cure days to within ten any respect, of a case in including days) whether thirty of the Comptroller’s initial available.”). mandamus relief was denial could negate statutory deadline by simply starting the process over. Statutory Language This recently prohibited Court this kind Although judicata res does not bar of deadlines procedural circumvention subsequent application for compen- analogous an City circumstance. See sation, we must still determine whether Jones, v. Houston Estate 388 S.W.3d the Act itself permits successive applica- (Tex.2012). Houston, In City we tions. Blair places contends that the Act held that a of appeals may court not hear no limit on the number of applications an interlocutory appeal from the denial of may file seeking compensation, same governmental plea jurisdic- unit’s to the as long as he files them within the stat- tion if the plea merely re-urges the same three-year ute’s period. limitation grounds argued a prior plea to Comptroller argues prohibits that the Act jurisdiction. Id. at (construing 666-67 successive applications, at least in the ab- 51.014(a)(8)). Tex. Civ. Prac. & intervening sence of an change material “[pjermitting We noted that appeals under circumstances, holding because otherwise circumstances such these would effec- filing “could lead to futile of seriatim tively the requirement ap- eliminate applications of same denied claim de- peals from interlocutory orders must spite changed no during circumstances twenty filed within days after chal- three-year Act’s period, forcing limitations lenged signed” gov- order is because the re-deny the same claim ernmental just unit could re-file the plea over and over again.” Young See Truck- jurisdiction twenty days had ex- Comm’n, ing, v. Inc. R.R. pired. See id. We concluded because writ) (hold- (Tex.App.-Austin no city’s plea jurisdiction second that, ing once an order becomes adminis- “did assert a ground, new [it] final, tratively agency does have substantively reconsider,” motion authority inherent reopen proceed- which the statute did not authorize inter- ing can reconsider order its locutory appeal. Id. provided statute or a showing circumstances). changed too, Justice Hecht Here permitting Blair file a sec- agrees Blair; with I agree the Comp- pursue ond mandamus relief troller. the Comptroller’s denial of his second *24 claim under the on the same at ant based compensation,
application for same same facts. in change circum- absent a material least stances, “effectively the Act’s eliminates” Change in Circum- 3. Material in City id. As procedural See deadlines. stances Houston, application Blair’s second argues appli- that successive Blair next another compensation just was
the same if permitted should at least cations of his untimely for reconsideration request change in circum- there was a material Justice See id. original application. applica- of a prior after the denial stances express- not that the Act does Hecht notes tion, case here. he contends is the which filing duplicative Blair from ly prohibit there has Comptroller disagrees that proce- detailed But the Act’s applications. in circumstances. change been a material necessarily con- provisions prohibit dural and there- agree Comptroller, with the its mandates or that conflicts with duct whether a material fore I need not decide ineffective, like al- entirely them renders justify could ever change circumstances re-filing applications lowing redundant application. a successive deadlines procedural renders the statutes change of to a material Attempting show meaningless. circumstances, that our argues Blair first change in re created a decision Smith seeking The conduct at issue com- here — application. justifies Spe- that his new law something the Act—is not pensation under holding our in In cifically, Blair notes that independent has to right do Comptrol- contrary re to the Smith was place limits on Act. Unlike statutes conclusion, in to Blair’s first response ler’s no reason for a existing rights, there is that Blair could not be application, limited right statute that creates a 1993-2002, when he period for the right e.g., compen- circumstances — for the serving concurrent sentences Act’s are satis- procedures sation convictions. But the did 1988 identify all circumstances fied—to other deny Blair’s ultimately application Comp- does exist. The right which on that ground. Although she relied power grant troller has no determination, ground in first she did her except power like Blair claimants not do so in her second or her third. granted by Act. Tex. Natural Res. Cf. Thus, re was not our decision in In Smith v. Lakeshore Conservation Comm’n Util. material to the denial of (Tex.2005) (ob- Co., 868, compensation, Blair’s first serving principle” that “well-established change in the and could not constitute “may agencies exercise administrative application. justify law to a successive that the confers powers those Next, Legisla- Blair contends that express upon language, in clear and [them] Act also ture’s amendments really cannot erect and exercise what justifies change constitute a in the law that for the power amounts new additional Among application. second other purpose expediency.”); of administrative things, the 2009 amendments increased the also Geophysical, see TGS-NOPEC to claim- lump-sum compensation available (identifying provi- ants under the Act and added a new agency). an administrative annuity Acts of payments. sion See reasons, 11, 2009, S., all I would hold For of these R. May Leg., 81st ch. multiple 526. The permit ap- Legis- that the Act does not 2009 Tex. Gen. Laws expressly provided that in- plications petitions by the same claim- lature sation, “applies only lump-sum payment creased at least absence mate- ... change to an rial circumstances. date filed on or after effective of this ignore Blair invites the Court 14(a), Act,” annuity payments §id. but the Act’s procedural requirements, as a matter
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In re
The Act claimants follow the steps deadlines, process by specific this VI. imposes duty ministerial on the Conclusion Comptroller to determine the claimant’s if, if, I Blair agree eligibility that the Tim Cole Act but the claimant meets does for provide not “termination” of his those requirements. Blair failed Because right felony on con- to comply requirements, based with those he is victions that he not eligible occurred before became to receive compensation. compensation, for the fact permit did not Blair to file a second and, prison did, he remains in those conviction even it he failed to does him preclude eligibility days un- file an to cure ten within plain language der the Act. But I applica- denial agree with the that the Act tion—a review. prerequisite mandamus permit does not Blair to eschew the Act’s therefore concur in the decision Court’s procedural deny petition file a requirements or succes- for writ manda- application seeking sive mus. compen- same added). conviction.”) LEHRMANN, quent (emphasis Chief joined
Justice JEFFERSON, JOHNSON, section, compensation pay- this Justice Under Justice WILLETT, dissenting. enti- Justice to which Blair was otherwise ments tled murder conviction wrongful Blair convicted of In Michael was by, upon, but were not nullified terminated to death for a murder he and sentenced conviction. As the concurrence still while did commit. notes, such a result not be while conviction, row the murder Blair death under the circumstances of “desirable molesting four counts of pled guilty to case,” it neither is “absurd the State serving life sentences for began child the ten compensate years The murder conviction those convictions. spent on death row for a murder he did then began set and Blair aside *26 at 859. commit.” S.W.3d quest compensation under the Tim Act. Cole See & Tex. Civ. Prac. Rem.Code conditionally grant I would mandamus §§ 103.001-154. Comptroller to com- relief and order the plurality For the reasons stated in the pensate prior Blair for time served to his that, agree I to the extent opinion, Accordingly, respect- in 2004. I conviction argument, Blair preserved the fully dissent. procedurally seeking is not barred Comp- in this judicial review Court of his
troller’s denial second
compensation under the Tim Cole Act. specifically,
More I do not believe the Act
requires claimants submit an
to cure after a denial of nothing “if there cure.” NATHAN, Petitioner, H. Marc at 850. Nor do believe the prohibits applications. successive v. However, join I also Part IV Justice WHITTINGTON, Stephen Respondent. Boyd’s concurrence would hold that felony Blair’s 2004 conviction does not No. 12-0628. eligibility compen- foreclose Blair’s Act. plain language sation Supreme under of Texas. Court Act, properly construed Aug. context, applicant confirms who is felony (meaning the convicted of a act of
conviction, being not the status of convict-
ed) eligible compen- after he becomes wholly deprived eligi-
sation is not of such
bility. See Tex. Civ. Prao. 103.154(a)(“[Cjompensation payments if, person chapter terminate person date becomes ..., is con- punishable felony.
victed of a crime as a
Compensation payments terminate under
this subsection on the date the subse-