Anybody with the ability to read and with average or better ability for comprehension of what they read can see that the Texas Third Court of Appeals, under the direction of Justice Robert Pemberton, was legislating from the bench in 2008 in the case of Marion Young v. State of Texas, for wrongful imprisonment, which Justice Pemberton then unlawfully applied to the case of Heimlich v. State of Texas for wrongful imprisonment. Legislating from the bench is putting it nicely.
More accurately it is a destruction of the Law created by the Texas Legislature. Our Legislators take an oath to preserve, protect, and defend our Constitution, and their own law, from destruction by the Judiciary. But they tend kow tow to the other divisions of government. Some things to keep in mind as you read the statutory law of our Legislators and compare it to the 'interpretation' of it by Justice Roberty Pemberton;
- Nowhere is there any hint that permission to sue is
limited to those whose relief came by Writ, after they failed to
secure relief on direct appeal.
- An acquittal in the Judicial Division is the equivilante of a
pardon for innocence in the Executive Division of government.
Technically, a "pardon" is forgiveness for a crime that someone has
been convicted of, by the Governor (the Executive Division). In the Heimlich
case there is no crime, and no conviction (reversed), so
there is nothing to
pardon. His 'pardon for innocence' has
already been granted by the Judicial Division of government. IT'S
KNOWN AS AN ACQUITTAL!
- Even if we were to disregard the Texas Constitutions limit on the Jurisdiction of our Courts, to allow the actual innocence established in the criminal venue to be subject to new trial and reversal in the civil venue, this provision of the following statute would apply; (a) If the trier of fact finds that the petitioner is entitled to compensation. An appellate court is barred by the 6th amendment from being a 'trier of fact'. Only a trial court is. The Legislature clearly made actual innocence a question of fact to avoid judicial manipulation by excuse it is a question of law.
CHAPTER 103. COMPENSATION TO PERSONS WRONGFULLY IMPRISONED
SUBCHAPTER A. ELIGIBILITY AND CHOICE OF COMPENSATION METHOD
§ 103.001. Claimants Entitled to Compensation
(a) A person is entitled to compensation if:
(1) the person has served in whole or in part a sentence in prison under the laws of this state;
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or
(B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced.
(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.002. Choice of Compensation Method
A person entitled to compensation under Section 103.001 may proceed by following the provisions for administratively awarded compensation under Subchapter B or by filing suit under Subchapter C, but a person may not seek compensation under both Subchapters B and C.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.003. Limitation on Time to File
Not later than the third anniversary of the date the person received the pardon or was found not guilty as required by Section 103.001, a person seeking compensation under this chapter must:
(1) file an application with the comptroller for compensation under Subchapter B; or
(2) file suit against the state for compensation under Subchapter C.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
NOTE: Subchapter B has been moved to end because it is not applicable to the Young or Heimlich cases.
SUBCHAPTER C. FILING SUIT
§ 103.101. Waiver of Immunity; Filing Suit
(a) A person may bring a suit against the state under this subchapter, and the state's immunity from the suit is waived.
(b) The suit must be initiated by a verified petition alleging that the petitioner is entitled to compensation.
(c) The suit shall be brought in a court of competent jurisdiction either in the county of the petitioner's residence at the time the suit is commenced or in Travis County.
(d) Citation must be served on the state by serving the attorney general. The attorney general shall represent the state in the proceeding.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.002 and amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
The petitioner must establish by a preponderance of the evidence that the petitioner is entitled to compensation and the amount of compensation to which the petitioner is entitled.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.003 and amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.103. Insufficient State Defenses
The following are not defenses to an action brought under this chapter:
(1) the judgment of conviction in the trial that resulted in the claimant's imprisonment; or
(2) an indictment, information, complaint, or other formal accusation.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.004 by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.104. Admissible Evidence
(a) In the suit, the court may admit as evidence the record of the trial at which the petitioner was convicted and the pardon or proclamation issued to the petitioner by the governor.
(b) The court may also admit all court papers, orders, docket notations, or other writings of record in any court in this state as proof of the facts set forth in the writings.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.004 and amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
(a) If the trier of fact finds that the petitioner is entitled to compensation, the petitioner is entitled to:
(1) expenses incurred by the petitioner in connection with all associated criminal proceedings and appeals and in connection with obtaining the petitioner's discharge from imprisonment, including any fine or court costs paid and reasonable attorney's fees, including reasonable attorney's fees for prosecuting the lawsuit under this subchapter;
(2) wages, salary, or other earned income that was lost as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment; and
(3) medical and counseling expenses incurred by the petitioner as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment.
(b) In determining the sum of money owed to the petitioner, the trier of fact may not deduct any expenses incurred by the state or any of its political subdivisions in connection with the arrest, prosecution, conviction, and wrongful imprisonment of the petitioner, including expenses for food, clothing, shelter, and medical services.
(c) Total damages assessed under this subchapter may not exceed $500,000. (This limitation was repealed in 2007. See letter from Senator Rodney Ellis)
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.006 and amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
SUBCHAPTER D. PAYMENTS AND LIMITATIONS
§ 103.151. Administrative Payment of Compensation
(a) The comptroller shall make the first installment payment due an applicant under Subchapter B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date the comptroller grants the application.
(b) The comptroller shall pay the amount of the second installment payment on the first anniversary of the date of the first installment.
(c) If appropriated funds are insufficient to pay the amount due an applicant, money shall be paid under the procedure described by Section 103.152.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.152. Payment of Compensation
(a) Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled to payment under Subchapter B or C and the amounts due for each claimant to the governor, the lieutenant governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may appropriate the amount needed to pay each claimant the amount owed.
(b) Not later than September 1 of the year in which an appropriation under this chapter has been made by the legislature, the comptroller shall pay the required amount to each claimant.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.153. Employees Not Liable After Payment of Compensation
(a) In this section, "employee" and "governmental unit" have the meanings assigned by Section 101.001.
(b) A person who receives compensation under this chapter may not bring any action involving the same subject matter, including an action involving the person's arrest, conviction, or length of confinement, against any governmental unit or an employee of any governmental unit.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.154. Termination of Payments
(a) Compensation payments to a person under this chapter terminate if, after the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime punishable as a felony. Compensation payments terminate under this subsection on the date of the subsequent conviction.
(b) Compensation payments to a person under this chapter terminate on the date of the person's death. Any payments scheduled to be paid after that date are credited to the state and may not be paid to any other person, including the person's surviving spouse, heirs, devisees, or beneficiaries under the person's will, or to the person's estate.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
SUBCHAPTER B. ADMINISTRATIVE PROCEEDING
§ 103.051. Application Procedure
(a) To apply for compensation under this subchapter, the claimant must file with the judicial section of the comptroller's office:
(1) an application for compensation provided for that purpose by the comptroller;
(2) a verified copy of the pardon or court order justifying the application for compensation; and
(3) a statement provided by the Texas Department of Criminal Justice verifying the length of incarceration.
(b) The comptroller shall determine:
(1) the eligibility of the claimant; and
(2) the amount of compensation owed to an eligible claimant.
(c) The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not later than the 45th day after the date the application is received.
(d) If the comptroller denies the claim, the comptroller must state the reason for the denial. Not later than the 10th day after the date the denial is received, the claimant must submit an application to cure any problem identified. Not later than the 45th day after the date an application is received under this subsection, the comptroller shall determine the claimant's eligibility and the amount owed.
(e) If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may bring an action for mandamus relief.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.052. Amount and Timing of Compensation
(a) A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:
(1) $25,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years, if the time served is less than 20 years; or
(2) $500,000 if the time served is 20 years or more.
(b) A person who is owed an amount of compensation equal to or greater than $50,000 shall be paid in two equal annual installments.
(c) If requested by the claimant,
the Texas Department of Mental Health and Mental Retardation shall
provide appropriate counseling for one year to the claimant at a
mutually agreed-on location at no charge to the claimant.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
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CIVIL PRACTICE & REMEDIES CODE
CHAPTER 103. COMPENSATION TO PERSONS WRONGFULLY IMPRISONED
SUBCHAPTER A. ELIGIBILITY AND CHOICE OF COMPENSATION METHOD
§ 103.001. CLAIMANTS ENTITLED TO COMPENSATION.
(a) A person is entitled to compensation if:
(1) the person has served in whole or in part a sentence in prison under the laws of this state; and
(2) the person:
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or
(B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced.
(b) A person is not entitled to compensation under Subsection (a) for any part of a sentence in prison during which the
person was also serving a concurrent sentence for another crime to which Subsection (a) does not apply.
Acts 1985, 69th Leg., ch.
959, § 1, eff. Sept. 1, 1985. Amended
by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.002. CHOICE OF
COMPENSATION METHOD. A person entitled to compensation
under Section 103.001 may proceed by
following the provisions for administratively awarded compensation under Subchapter B or by filing suit under Subchapter C, but a person may not seek compensation under both Subchapters B and C.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended
by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.003. LIMITATION ON TIME TO FILE. Not later than the third anniversary of the date the person received the pardon or was found not guilty as required by Section 103.001, a person seeking compensation under this chapter must:
(1) file an application with the comptroller for compensation under Subchapter B; or
(2) file suit against the state for compensation under Subchapter C.
Acts 1985, 69th Leg., ch.
959, § 1, eff. Sept. 1, 1985. Amended
by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
SUBCHAPTER B. ADMINISTRATIVE PROCEEDING
§ 103.051. APPLICATION PROCEDURE.
(a) To apply for compensation under this subchapter, the claimant must file with the
comptroller's judiciary section:
(1) an application for compensation provided for that purpose by the comptroller;
(2) a verified copy of the pardon or court order justifying the application for compensation;
(3) a statement provided by the Texas Department of Criminal Justice verifying the length of incarceration; and
(4) a certification of the claimant's actual innocence of the crime for which the claimant was sentenced that is signed by the attorney representing the state in the prosecution of felonies in the county in which the sentence was rendered.
(b) The comptroller shall determine:
(1) the eligibility of the claimant; and
(2) the amount of compensation owed to an eligible claimant.
(c) The comptroller must make a determination of eligibility and the amount owed as required by Subsection (b) not later than the 45th day after the date the application is received.
(d) If the comptroller denies the claim, the comptroller must state the reason for the denial. Not later than the 10th day after the date the denial is received, the claimant must submit an application to cure any problem identified. Not later than the 45th day after the date an application is received under this subsection, the comptroller shall determine the claimant's eligibility and the amount owed.
(e) If the comptroller denies a claim after the claimant submits an application under Subsection (d), the claimant may bring an action for mandamus relief.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
Amended by Acts 2003, 78th Leg., ch. 1310, § 1, eff. June 20,
22003.
§ 103.052. AMOUNT AND TIMING OF COMPENSATION.
((a) A person who meets the requirements of Section 103.001 is entitled to compensation in an amount equal to:
(1) $25,000 multiplied by the number of years served in prison, expressed as a fraction to reflect partial years, if the
time served is less than 20 years; or
(2) $500,000 if the time served is 20 years or more.
(b) A person who is owed an amount of compensation equal to
or greater than $50,000 shall be paid in two equal annual
installments.
(c) If requested by the claimant, the Texas Department of
Mental Health and Mental Retardation shall provide appropriate
counseling for one year to the claimant at a mutually agreed-on
location at no charge to the claimant.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
SUBCHAPTER C. FILING SUIT
§ 103.101. WAIVER OF IMMUNITY; FILING SUIT. (a) A person may bring a suit against the state under this subchapter, and
the state's immunity from the suit is waived.
(b) The suit must be initiated by a verified petition alleging that the petitioner is entitled to compensation.
(c) The suit shall be brought in a court of competent jurisdiction either in the county of the petitioner's residence at the time the suit is commenced or in Travis County.
(d) Citation must be served on the state by serving the attorney general. The attorney general shall represent the state in the proceeding.
Acts 1985, 69th Leg., ch.
959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.002 and amended by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.102. STANDARD OF
PROOF. The petitioner must establish by a
preponderance of the evidence that the petitioner is
entitled to compensation and the amount of compensation to which the petitioner is entitled.
Acts 1985, 69th Leg., ch.
959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.003 and amended by Acts 2001, 77th Leg.,
ch. 1488, § 1, eff. June 15, 2001.
§ 103.103. INSUFFICIENT STATE DEFENSES. The following
are not defenses to an action brought under this chapter:
(1) the judgment of conviction in the trial that
resulted in the claimant's imprisonment; or
(2) an indictment, information, complaint, or other
formal accusation.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.004 by Acts 2001, 77th Leg., ch. 1488, §
1, eff. June 15, 2001.
§ 103.104. ADMISSIBLE EVIDENCE. (a) In the suit, the
court may admit as evidence the record of the trial at which the
petitioner was convicted and the pardon or proclamation issued to
the petitioner by the governor.
(b) The court may also admit all court papers, orders,
docket notations, or other writings of record in any court in this
state as proof of the facts set forth in the writings.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.004 and amended by Acts 2001, 77th Leg.,
ch. 1488, § 1, eff. June 15, 2001.
(a) If the trier of fact finds that the petitioner is entitled to compensation, the petitioner is
entitled to:
(1) expenses incurred by the petitioner in connection with all associated criminal proceedings and appeals and in connection with obtaining the petitioner's discharge from
imprisonment, including any fine or court costs paid and reasonable attorney's fees, including reasonable attorney's fees for prosecuting the lawsuit under this subchapter;
(2) wages, salary, or other earned income that was lost as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment; and
(3) medical and counseling expenses incurred by the petitioner as a direct result of the arrest, prosecution, conviction, or wrongful imprisonment.
(b) In determining the sum of money owed to the petitioner, the trier of fact may not deduct any expenses incurred by the state or any of its political subdivisions in connection with the arrest, prosecution, conviction, and wrongful imprisonment of the
petitioner, including expenses for food, clothing, shelter, and medical services.
(c) Total damages assessed under this subchapter may not
exceed $500,000.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.
Renumbered from § 103.006 and amended by Acts 2001, 77th Leg.,
ch. 1488, § 1, eff. June 15, 2001.
SUBCHAPTER D. PAYMENTS AND LIMITATIONS
§ 103.151. ADMINISTRATIVE PAYMENT OF COMPENSATION.
(a) The comptroller shall make the first installment payment due an applicant under Subchapter B, to the extent that funds are available and appropriated for that purpose, not later than the 30th day after the date the comptroller grants the application.
(b) The comptroller shall pay the amount of the second
installment payment on the first anniversary of the date of the
first installment.
(c) If appropriated funds are insufficient to pay the amount
due an applicant, money shall be paid under the procedure described
by Section 103.152.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.152. PAYMENT OF COMPENSATION.
(a) Not later than November 1 of each even-numbered year, the comptroller shall provide a list of claimants entitled to payment under Subchapter B or C and the amounts due for each claimant to the governor, the lieutenant governor, and the chair of the appropriate committee in each house of the legislature so that the legislature may
appropriate the amount needed to pay each claimant the amount owed.
(b) Not later than September 1 of the year in which an appropriation under this chapter has been made by the legislature, the comptroller shall pay the required amount to each claimant.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.153. EMPLOYEES NOT LIABLE AFTER PAYMENT OF COMPENSATION.
(a) In this section, 'employee' and 'governmental unit' have the meanings assigned by Section 101.001.
(b) A person who receives compensation under this chapter
may not bring any action involving the same subject matter,
including an action involving the person's arrest, conviction, or
length of confinement, against any governmental unit or an employee
of any governmental unit.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.
§ 103.154. TERMINATION OF PAYMENTS.
(a) Compensation payments to a person under this chapter terminate if, after the date the person becomes eligible for compensation under Section 103.001, the person is convicted of a crime punishable as a felony. Compensation payments terminate under this subsection on the date of the subsequent conviction.
(b) Compensation payments to a person under this chapter
terminate on the date of the person's death. Any payments scheduled
to be paid after that date are credited to the state and may not be
paid to any other person, including the person's surviving spouse,
heirs, devisees, or beneficiaries under the person's will, or to
the person's estate.
Added by Acts 2001, 77th Leg., ch. 1488, § 1, eff. June 15, 2001.