No.

_______________________

IN THE SUPREME COURT IN RE JOHNNIE LINDSEY, Relator

Original Proceeding

PETITION FOR WRIT OF MANDAMUS

Kristopher E. Moore State Bar No. 24060300 HARRISON & HULL, L.L.P. 1575 Heritage Dr., Ste. 204 McKinney, TX 75069 Telephone: 214-585-0094 Fax: 214-585-0097

Attorneys for Relator, Johnnie Lindsey

No. ______________________

IN RE JOHNNIE LINDSEY IDENTITY OF PARTIES AND COUNSEL Relators certify that the following is a complete list of parties, the attorneys, and any other person who has an interest in the outcome of this lawsuit: PARTIES Relator Johnnie Lindsey COUNSEL Counsel for Relators Kristopher E. Moore State Bar No. 24060300 HARRISON & HULL, L.L.P. 1575 Heritage Dr., Ste. 204 McKinney, Texas 75069 Telephone: 214-585-0094 Fax: 214-585-0097

Respondent The Honorable Susan Combs Texas Comptroller of Public Accounts P.O. Box 13528 Austin, Texas 78711-3528 Martin Cherry General Counsel, Texas Comptroller of Public Accounts 111 E. 17th Street Austin, Texas 78774 Telephone: 512-936-4446 Fax: 512- 475-1218

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TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Standard of Review in Mandamus Proceeding . . . . . . . . . . . . . . . 5 Issue I: Whether the Comptroller erred in denying Relator a large portion of his claim under the Compensation to Persons Wrongfully Imprisoned statute in contravention of authority from this Court . . . . . . . . . . . . . . . 5 A. B. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 This Courts recent decision in In re Smith dictates Relators eligibility for payment of additional compensation under CPRC 103.001(a)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 6 Comptrollers inconsistent course of behavior in relation to the Compensation Act frustrates legislative intent to ensure consistent application of law and avoid unnecessary legal expense . . . . . . . . . . . . . . . . . . . . 12 Whether Johnnie Lindsey is eligible for additional compensation for the time he spent imprisoned when he should not have been . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C.

Issue II:

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

INDEX OF AUTHORITIES Cases Ex Parte Henderson 645 S.W.2d 469 (Tex.Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Ex Parte Phillips 2008 Tex. Crim. App.Unpub. LEXIS 714 (Tex.Crim.App. 2008)

. . . . . . . . . . . 16

Ex Parte Williams 257 S.W.3d 711 (Tex.Crim.App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Herrera v. Collins 806 U.S. 390 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 In re Arcadia Ins. Co., 279 S.W.3d 777 (Tex. App.Amarillo July 9, 2007, no pet.)(orig. proceeding)

.............. 5

In re Billy Frederick Allen No. 10-0886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 In re Billy James Smith 333 S.W.3d 582 (Tex. March 4, 2011) . . . . . . . . . . . . 4,5,6,7,8,10,13, 14, 15, 16 In re Covenant Health Sys. 223 S.W.3d 423 (Tex. App.Amarillo 2006, no pet.)(orig. proceeding) . . . . . . . 5 In re Ronald Gene Taylor No. 10-0050 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Madison v. Parker 104 F.3d 765 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13 Malchi v. Thaler 211 F.3d 953 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Pruett v. Texas 468 F.2d 51 (5th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Schlup v. Delo 513 U.S. 298 (1995) Constitution Tex. Const. Art. III 51(c) .......................................... 1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Const. Art. V 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statutes Tex. Gov. Code 22.002(b) & (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Tex. Civ. Prac. & Rem. Code Ann. 103.001-103.052 . . . . 1,2,4,5,6,7,13,16,17,18 Tex. Rev. Civ. Stat. Art. 6181-1 (West Supp. 1982) . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Rev. Civ. Stat. Art. 6184a (West Supp. 1983) . . . . . . . . . . . . . . . . . . . . . . . 12 Tex. Code Crim. P. Art. 42.12 15(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Act of March 28, 1983, 68th Leg. R.S., ch. 375 (S.B. 640) . . . . . . . . . . . . . . . . . . 11 Senate Comm. On State Affairs, Bill Analysis, Tex. H.B. 417, 82d Leg., R.S. (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

No. ______________ IN THE SUPREME COURT IN RE JOHNNIE LINDSEY Original Proceeding

PETITION FOR WRIT OF MANDAMUS INTRODUCTION Relator, Johnnie Lindsey, submits this petition for writ of mandamus complaining of the partial denial of his claim for compensation for wrongfully imprisoned persons by the Honorable Susan Combs, Texas Comptroller of Public Accounts. STATEMENT OF THE CASE The Underlying Proceeding: Relator, Johnnie Lindsey filed a claim for compensation for wrongful imprisonment by the State of Texas with the Texas Comptroller of Public Accounts, which was partially denied. Tex. Const. art. III, 5I(c); Tex. Civ. Prac. & Rem. Code Ann. 103.001 et. seq. The Respondent: The respondent is the Honorable Susan Combs, Texas Comptroller of Public Accounts of the State of Texas. Respondents Action: Relator filed his original application for compensation for wrongful imprisonment with the Respondent on September 17, 2009. On November 2,

2009, Respondent notified Relator his claim had been approved in part and denied in part. Relator filed an appeal seeking to cure the defects of which he had been notified by Respondent. Then, on December 30, 2009, Respondent denied Relators request for reconsideration of his claim for wrongful imprisonment compensation.

STATEMENT OF JURSIDCTION This Court has jurisdiction to entertain the petition and to issue a writ by virtue of Chapter 103, 103.051 (e), Texas Civil Practice and Remedies Code where jurisdiction over this original proceeding also lies pursuant to Tex. Gov. Code 22.002(b) & (c) and Tex. Const. Art. V 3(a).

ISSUES PRESENTED 1. Whether the Comptroller erred in denying Relator a large portion of his claim under the Compensation to Persons Wrongfully Imprisoned statute in contravention of authority from this Court. Whether Johnnie Lindsey is eligible for additional compensation for the time he spent imprisoned when he should not have been.

2.

STATEMENT OF FACTS Relator, Johnnie Lindsey, was arrested and jailed on October 17, 1982. Twenty-five years, eleven months, and two days later he was released after DNA conclusively established his innocence of the aggravated sexual assault charge on which he was serving a life sentence in a Texas prison. (Appx. Tab 7 at 23). Originally, Johnnie Lindsey was charged with attempted rape. Lindsey adamantly maintained his innocenceeven petitioning to plead his case directly to the grand jury. (Appx. Tab 7 at 24). Lindsey was appointed counsel to represent him and, despite his protestations of innocence, the attorney countered that because the case boiled down to a he said, she said matter pitting him against a young white woman, he had no hopes of success, and he would not prepare a defense in the case. Id. Lindsey petitioned the court for new counsel but was unsuccessful. Id. After his defense counsel returned with an eight-year plea deal and an ultimatum, Lindsey accepted the deal. He pled guilty on the basis that he would spend no more than four years in prison. Id.; see also (Appx. Tab 8 at 27). The Dallas County District Attorney, shortly after Johnnie Lindsey entered the Texas prison system, obtained a warrant and charged Lindsey with a sexual assault that had occurred more than a year prior to the crime for which he had pled guilty. Id. The sexual assault had occurred in the same park in which it was alleged Lindsey had attempted to rape a woman and the assault involved a young black man and a white victim. Id. The prosecutor utilized Lindseys guilty plea against him to obtain a conviction and life sentence on the charge of aggravated sexual assault. For Lindsey, his four years in prison came and went while he served out a life
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sentence and worked to get that conviction overturned. Beginning in 2003, Lindsey attempted to obtain DNA testing. It took five different motions, filed over five years, with no response before Lindsey was appointed counsel and testing was allowed. (Appx. Tab 7 at 25). In September 2008, DNA results proved his innocence and he was released from custody. Id. On April 24, 2009, Governor Rick Perry signed a pardon on the basis of innocence for the aggravated sexual assault. (Appx. Tab 6 at 15-16). On September 8, 2009, Lindsey filed an application with the Comptroller claiming compensation under the Compensation to Persons Wrongly Imprisoned Act, 103.001 et. seq., TEX. CIV. PRAC. & REM. CODE, (hereinafter the Compensation Act). (Appx. Tab 6 at 11-22). On November 2, 2009, the Comptroller denied an 8-year portion of Lindseys claim stating he was ineligible for compensation while serving a concurrent sentence. (Appx. Tab 5 at 9). Lindsey appealed, citing to an Attorney General Opinion, as well as documents establishing as a matter of law that but for the wrongful conviction Johnnie Lindsey would not have served a full 8 years in prison on his concurrent sentence. (Appx. Tab 5 at 6-8). On December 30, 2009, Comptroller denied reconsideration and affirmed her interpretation that Lindsey was ineligible for compensation during time he served his concurrent sentence. (Appx. Tab 3 at 4-5). On March 4, 2011, this Court handed down its decision in In re Billy James Smith, 333 S.W.3d 582 (Tex. March 4, 2011), construing the portion of the Compensation Act related to concurrent sentences. As a result, Johnnie Lindsey obtained legal representation and asked the Comptroller to reconsider her denial. The Comptroller refused a review of the denial. (Appx. Tab 1 at 1).

ARGUMENT AND AUTHORITIES I. Standard of Review in a Mandamus Proceeding Mandamus is an extraordinary remedy available only in limited circumstances. In re Covenant Health Sys., 223 S.W.3d 423, 425 (Tex. App.Amarillo 2006, no pet.)(orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. In re Arcadia Ins. Co., 279 S.W.3d 777 (Tex. App.Amarillo July 9, 2007, no pet.)(orig. proceeding). Such is the case here where the only relief afforded a claimant for compensation for wrongful imprisonment is to file a writ of mandamus and it must be filed with this Court. Tex. Civ. Prac. & Rem. Code 103.051(d); Smith, 333 S.W.3d at 585. As the discussion below details, this Court has very recently ruled on this exact issue. See Smith, 333 S.W.3d at 589-90. There is, therefore, controlling authority on point. The Respondent has ignored this Court by denying a large portion of Lindseys claim under the Compensation Act; thereby forcing Lindsey to expend additional time and financial resources to hire legal representation and file this petition with the Court. Issue I: Whether the Comptroller erred in denying Relator a large portion of his claim under the Compensation Act in contravention of authority from this Court. A. Introduction

The primary issue at hand is whether the Comptroller, in light of this Courts decision in In re Billy James Smith, 333 S.W.3d 582 (Tex. March 4, 2011), has violated a clearly imposed legal duty by not paying Johnny Lindsey his additional compensation due and/or has abused her discretion by not reviewing her decision once the Courts opinion was announced. The Compensation Act, 103.051(b-1), states: The
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comptrollers duty to determine the eligibility of a claimant under this section is purely ministerial. This language is clear and unambiguous. In making her determination, the Comptroller must apply the law as it is found and determine a claimants eligibility based upon the documents provided and the law in effect. The Comptroller violated her duty in two specific instances. As will be discussed further below, the law in effect at the time of Relators original application was the law as announced by this Court in the Smith decision. Therefore, the Comptroller violated her duty in December 2009 with her first denial of compensation as she was statutorily duty-bound to compensate Relator just as she was bound to fully compensate Billy Smith, Greg Wallis, and Ronald Taylor. Further, she most recently abused her discretion by refusing to review her decision regarding Mr. Lindsey in light of this Courts decision in Smith. B. This Courts recent decision in In re Smith dictates Relators eligibility for payment of additional compensation under CPRC 103.001(a)(2)(B) This Courts decision granting a mandamus brought by Billy James Smith, declared how the statute at issue in the present case should be construed. Smith, 333 S.W.3d at 589-90. Asked to construe the provision of the Compensation Act related to concurrent sentences, this Court held: [S]ection 103.001(b)s concurrentsentence restriction does not apply when the wrongful conviction is the cause of the person serving a concurrent sentence in prison. Id. at 590. This precise and clear holding by the Court directly applies to Johnnie Lindseys application creating a duty for the Comptroller to supplement the compensation previously approved. 1
1

As mandamus relief was granted in Smith, the Court recognized that in construing the law as she did in November 2009, the Comptroller abused her discretion. As such, the same standard should apply to her November 2009 determination of Lindseys eligibility, as well.

In Smith, this Court was asked to decide between two viable alternate constructions of the Compensation Statute related to the concurrent-sentence restriction. Id. at 588. This provision states: 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. Compensation Act, 103.001(b). The Comptroller, who was the respondent in Smith as in the case at hand, argued the Court should adopt a very narrow and technical construction. Id. Conversely, the relator argued for a broad interpretation. Id. The Smith decision sided with the broad interpretation and determined that where a claimant would not have been in prison but for the wrongful conviction, then the imprisonment was wrongful and the claimant is entitled to compensation. Id. at 590. Billy James Smith was serving a sentence on parole in 1986 when he was convicted of sexual assault. Id. at 584. After DNA testing exonerated Smith, he was released from prison and, in 2009, applied for compensation. Id. The Comptroller denied a portion of that claim on the basis that Smith continued to serve a concurrent sentence on an unrelated charge. Id. at 585. Smith petitioned this Court for mandamus relief, claiming the Comptroller violated her duty when she reduced Smiths award. Id. Smith argued that he should be compensated for all time he spent imprisoned when he should not have been. Id. at 587. This Court, in siding with Smiths construction of the statute, recognized that the crux of the matter was whether the conviction caused an innocent individual to wrongfully spend time in prison. This reasoning recognized and gave weight to the
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Acts apparent purpose which according to its title is, Compensation to Persons Wrongfully Imprisoned. Id. at 590. Therefore, where the Legislature clearly intended to compensate a person for time he wrongfully spent in prison, the concurrent-sentence restriction should not be applied to bar compensation for such time. The Court found that, despite serving a sentence on a prior unrelated conviction, Billy Smith only served concurrent time in prison because he was wrongly convicted. As such, the Court conditionally granted Smiths writ and instructed the Comptroller to comply with [the] opinion and adjust Smiths compensation under the Act accordingly. Id. Like Billy Smith, Johnnie Lindsey would have never spent eight years in a Texas prison but for his wrongful conviction, and this is not a matter of conjecture. Mandatory supervision is thusly named because it imposes upon the State a verifiable obligation to release an inmate on a specified date. It is a sort of bargain between the State and the inmate that if the inmate behaves appropriately, the State rewards this behavior and will honor this reward. Further, it provides both a strong incentive to an inmate to conform his conduct to a certain standard while allowing an accused to enter into a plea bargain with an understanding of the practical effect of his plea. As originally decided by the United States Supreme Court and applied by the Fifth Circuit Court of Appeals, Texas mandatory supervision scheme created a liberty interest for inmates insofar as those good-conduct credits were concerned. Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997); see also Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000).

Release on mandatory supervision for an eligible inmate, therefore, was a

nondiscretionary function of the law and protected by the Fourteenth Amendment. As such, Lindsey is due the equal protection of the law every inmate was due in 1982. In 1972, the Fifth Circuit determined that good time credits could not be denied an inmate while he awaited appeal of his conviction. Pruett v. Texas, 468 F.2d 51 (5th Cir. 1972). At the time, Texas law allowed for denial of good time when an inmate

challenged his conviction on the sole basis that an inmate was appealing. Id. at 53. The Fifth Circuit found that, standing alone, neither the provision allowing the denial of good time nor the statute on accrual of good time violated the Fourteenth Amendment. The court decided, however, that their enforcement together, that allowed some to benefit from good time while denying its benefits to other, was clearly a denial of the equal protection of the laws which abridges the privileges of a citizen of the United States and deprives him . . . of liberty without due process of law. Id. at 55. In this case, Lindsey does not complain of the constitutionality of any of the statutes granting good time credits, mandating his release, or compensating him for his wrongful imprisonment. And, in fact, when the law is applied as this Court has previously said it ought to be, no constitutional question is raised as to the enforcement of all these statutes together. However, the Comptrollers decision to disregard Lindseys good time credits and his right to a mandatory early release does deny Lindsey equal protection under the law without due process. Ex parte Henderson, 645 S.W.2d 469

(Tex.Crim.App. 1983). It was only by an unconstitutional act of the State that he was imprisoned and denied his release. Herrera v. Collins, 806 U.S. 390, 417 (1993); Schlup v. Delo, 513 U.S. 298, 315 (1995) (stating that the very act of imprisoning an innocent person is a violation and fundamental miscarriage of justice regardless of the process afforded him). Now to refuse Lindsey the recognition of those credits and corresponding
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compensation, especially in light of this Courts decision in Smith, once again violates Lindseys constitutionally-guaranteed rights. Lindseys rights as an inmate in Texas were governed by Texas statute. It is well settled that an inmates eligibility for mandatory supervision is controlled by the mandatory supervision statute in effect on the date of the commission of the offense for which the inmate is incarcerated. Ex Parte Williams, 257 S.W.3d 711, 712 n. 1 (Tex.Crim.App. 2008). As the Relator pled guilty to a crime occurring on October 17, 1982, both the Comptroller and this Court may look to the language of the applicable law as it existed at that time. Article 42.12 15(c) of the Texas Code of Criminal Procedure read in 1982: A prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the Board when the calendar time he has served plus any accrued good conduct time equal the maximum term to which he was sentenced. The law clearly guaranteed Lindsey the ability to earn release far earlier than October 1990 once his good conduct time was calculated. The question simply remains, then, as to how Johnnie Lindseys good conduct time should be calculated. In 1982, while Lindsey was still incarcerated in Dallas County, the pertinent statute read: (a) Inmates shall accrue good conduct time based upon their classification as follows: (1) 20 days for each 30 days actually served while the inmate is a Class I Inmate; (2) 10 days for each 30 days actually served while the inmate is classified as a Class II inmate. (3) 10 additional days for each 30 days actually served if the inmate is a trusty.

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Act of May 27, 1979, 65th Leg. R.S., ch. 347 (S.B. 152) (Appx. Tab 9 at 29) codified at Tex. Rev. Civ. Stat. Art. 6181-1 (West Supp. 1982). In 1983, however, the Legislature acted under more pressure to deal with overcrowding in the prisons and amended the law to grant even greater access to good time credit. Act of March 28, 1983, 68th Leg. R.S., ch. 375 (S.B. 640) (Appx. Tab 10 at 34). Section (a)(3), recited above, was amended so that an inmate designated as a trusty could receive between 10 and 25 days in addition to the 20 already received. Id. An inmate in Lindseys position, classified as a state-approved trusty III, could receive as many as 45 good conduct day credits for every 30 days of calendar time. Id. Under the law, Lindsey had to wait at least three months after entering prison before being named a trusty. Tex. Rev. Civ.Stat. Art. 6184a (West Supp. 1983). But he still earned good time credits both while incarcerated in the county jail and when first entering prison. While the Relators specific time records are not available, it is known that Relator was named a trusty and spent nearly his entire imprisonment working as a tailor. (Appx. Tab 7 at 4). As such, for most of his imprisonment Lindsey earned as much as 45 good conduct time credits for every 30 calendar days served. By making a calculation informed by the then-current law, it can be calculated that, with maximum earning, Lindsey should have been released by approximately April of 1986. The following demonstrates this figure: Eight Year Sentence = 2,920 days imprisonment October 17, 1982 to December 8, 1982 (county jail time) 52 calendar days + 20 good time credits = 72 days

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December 8, 1982 to March 8, 1983 (first three months in prison) 91 calendar days + 60 good time credits = 151 days March 9, 1983 to September 1, 1983 (trusty earning prior to S.B. 640) 177 calendar days + 180 good time credits = 357 days September 2, 1983 to April 1, 1986 (as state-approved Level III trusty) 942 calendar days + 1,413 good time credits = 2,355 days Total Calendar Time + Good Time Credits by April 1, 1986 = 2,935 days

The 2,935 days assumes 30 days of good conduct credit for every 30 days imprisonment after trusty eligibility on March 9, 1986 and 45 days of good conduct time after enactment of S.B. 640 on September 1, 1983. As such, by April 1, 1986, Lindsey would have exceeded the required 2,920 and, by application of law, would have been mandatorily released. This is a mandatory release more than four years prior to when Lindseys sentence in prison actually ran because of the wrongful conviction. The application of the mandatory supervision laws demonstrate with an absolute certainty that Relator would never have served the full terms of his concurrent sentence but for his wrongful conviction. As such, after the point at which Lindsey should have been mandatorily released, he served that time wrongfully imprisoned. To deny him compensation for that time both ignores the Smith decision construing the Compensation Act and denies Lindsey access to those good time credits without the due process of law. Madison, 104 F.3d at 768. C. Comptrollers inconsistent course of behavior in relation to the Compensation Act frustrates legislative intent to ensure consistent application of law and avoid unnecessary legal expense In 2011, the Legislature made it known that it was concerned with the legal costs associated with obtaining compensation for the wrongly convicted. Senate Comm. On State Affairs, Bill Analysis, Tex. H.B. 417, 82d Leg., R.S. (2011) (Appx. Tab 11 at 36).
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As such, H.B. 417 was passed restricting legal fees and how they must be reported. Id. Clearly, the Legislature would like to reduce the necessity of attorney involvement in the compensation process. As such, the Legislature has endeavored to draft a statute that can be applied fairly and consistently. The cases cited below, however, demonstrate that the law is not being carried out with enough consistency to ensure the equal protection of the rights of all wrongfully convicted individuals. For this reason, individuals like Johnnie Lindsey are forced to incur legal expenses to enforce their rights and seek redress from this Court for a mandate that the Comptroller simply follow the law consistently. i. Ronald Taylor

Ronald Taylor petitioned this Court in 2010 for a writ of mandamus on the basis the Comptroller had violated her legal duty under the law when she construed the same concurrent-sentence restrictions to deny him as much as ninety percent of his compensation. Petition, In re Ronald Gene Taylor, No. 10-0050, at 2. Filed alongside the case of Billy James Smith and Gregory Wayne Wallis, most of the issues were the same as that of Smith. However, Taylors case did contain an issue regarding revocation of parole that created an issue in his application similar to Johnnie Lindsey. Id. at 8. Taylors parole was revoked on procedural grounds that were unrelated to his wrongful conviction. Id. at 3. Counsel for Taylor argued that, despite the revocation, he never would have served out the entire remaining sentence on the unrelated crime because of mandatory supervision laws in place in the 1990s.2
2

Id. at 8. Further,

Counsel for Ronald Taylor, Kristopher Moore, is the same attorney who now represents Johnnie Lindsey in the present proceeding.

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because the law at that time also stated Taylor could get his good-conduct time credits reinstated after revocation, his time in prison would have been substantially shorter. Id. at 9. Unfortunately, the wrongful conviction completely denied Ronald Taylor access to mandatory supervision. Like in Smith, Taylors attorneys pointed out that but for the wrongful conviction, he would never have spent the roughly fourteen years in prison that he did. Id. at 17. Counsel conceded, however, that he might not be eligible to receive compensation for all his prison time given the fact his parole was violated on procedural grounds. Id. at 9. When Smith was decided, the Comptroller did not apply this Courts decision and calculate a downward adjustment for the time that Taylor conceded he probably would have otherwise spent in prison after his revocation. Instead, the Comptroller promptly determined that the Smith ruling applied so that Taylor should be paid in full. (Appx. Tabs 12-13 at 40-48). Lindsey does not disagree with the Comptrollers ultimate decision regarding Ronald Taylor. There were indications in the evidence submitted in his case that, though the revocation was procedural, it was merely a maneuver to keep Taylor in prison pending what turned out to be his wrongful conviction. Petition, In re Taylor, at 3. In this way, by paying Taylor, the Comptroller was carrying out the law to the fullest intent and spirit of the Legislaturecompensating for time spent wrongfully imprisoned. The Comptrollers action did not, however, accord with her position in other proceedingsnamely the denial of this claim and another proceeding currently pending

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before this court, In re Billy Frederick Allen, No. 10-0886. Here and in Allen, the Comptroller takes a more strict approach construing the statute very narrowly. ii. Steven Phillips

Steven Phillips was arrested and charged with a string of sexually-related crimes arising from a crime spree in Dallas in May of 1982. He ultimately was convicted or pled guilty to 11 counts with varying sentences imposed. Six of these convictions carried 10year sentences that discharged while Phillips was serving a 40-year sentence in prison on other charges. (Appx. Tabs 14-15 at 49, 60). Phillips was released from prison and declared innocent of this 1982 crime spree in 2009. Ex parte Phillips, 2008 Tex. Crim. App. Unpub. LEXIS 714 (Tex.Crim.App. 2008). However, the Court of Criminal Appeals was only petitioned for, and only granted, relief on the longer sentences for which Phillips was still in prison in 2009. Therefore, when Steven Phillips filed his application for compensation in late 2009, he still had six 10-year concurrent sentences on which he had not been granted relief. The Comptroller originally denied Phillips compensation for 10 years worth of imprisonment, much as she did Lindsey, Smith, Taylor, and Wallis at that time. (Appx. Tab 15 at 5). However, as to Steven Phillips, the Comptroller ultimately changed her mind and decided to pay him in full even prior to this Court making a determination in Smith. Phillips has never received a pardon or a declaration of actual innocence as to those six sentences of 10-years that discharged in 1992. (Appx. Tab 14 at 49); (Appx. Tab 16 at 64). Again, as with Taylor, Lindsey does not argue that the Comptroller should not

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have paid Phillips. On the contrary, Phillips proved his innocence as to those 1982 crimes though he only received relief as to part of them. As a practical matter, and according to the spirit of the Compensation Act, Phillips was wrongly imprisoned on all charges and should have been paid. It raises the question, however, as to how the Comptrollers office is setting the criteria for determining eligibility. All of the cases named above raise this issue. In some cases the Comptroller would impose a very narrow, technical construction of the law to deny compensation to an exoneree. In other cases, such as Phillips, the Comptroller chooses to follow the spirit of the law and pay a complete claim even where it is not technically required under the Compensation Act. This inconsistent construction and application of the law raises issues of equal protection rights under the Fourteenth Amendment and demonstrates the Comptrollers violation of her legal duties. Issue II: Whether Johnnie Lindsey is eligible for additional compensation for the time he spent imprisoned when he should not have been.

It is undisputed that Mr. Lindsey meets the criteria outlined in Section 103.001. (Appx. Tabs 6-7, at 11-26). Lindsey was incarcerated in 1982, convicted in 1983, and in 2009 his DNA was compared to DNA obtained in the investigation of the 1981 sexual assault case. It was determined that he was not the person who left the DNA at the scene of the crime. The Governor granted him a pardon on the basis of actual innocence. Therefore, Lindsey became eligible for compensation under Section 103.001 on April 24, 2009, after serving a total of more than 22 years wrongly imprisoned for a crime he did not commit.

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It is uncontroverted that Lindsey served in whole or in part a sentence in prison under the laws of this State and has been granted relief on the basis of actual innocence of the crime for which he was sentenced. It is uncontroverted that Lindseys application met the procedural guidelines outlined under chapter 103. Finally, it is also

uncontroverted that Lindsey spent more than 22 years more than he should have incarcerated in a Texas prison for a crime he did not commit. It is only contested as to whether Lindsey should be compensated for those years. PRAYER For these reasons, Relator respectfully prays that this Court grant this writ of mandamus directing the Honorable Susan Combs to withdraw her denial of December 30, 2009, and redetermine Relators compensation based upon a reduction under Section 103.001(b), Tex. Civ. Prac. & Rem. Code only for prison time Relator would have served in the absence of his wrongful conviction.

Respectfully submitted,

Kristopher E. Moore State Bar No. 24060300 HARRISON & HULL, L.L.P. 1575 Heritage Dr., Ste. 204 McKinney, TX 75069 Telephone: 214-585-0094 Fax: 214-585-0097 Attorneys for Relator, Johnnie Lindsey

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CERTIFICATE OF SERVICE A true and correct copy of the above and foregoing Petition for Writ of Mandamus was sent to the following on the 15th day of August, 2011: Via CMRRR: The Honorable Susan Combs Texas Comptroller of Public Accounts P.O. Box 13528 Austin, Texas 78711-3528 Telephone: (512) 463-4444

Kristopher Moore

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No. ________________________

IN THE SUPREME COURT IN RE JOHNNIE LINDSEY, Relator

Original Proceeding

APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS

Relator, Johnnie Lindsey , submits the following documents in support of the petition for writ of mandamus: 1. Correspondence from Respondent reaffirming December 30, 2009, denial, dated June 27, 2011. Relators request to Respondent to reconsider, dated June 21, 2011. Respondents Decision Complained of: Comptroller Letter Denying Claim Redetermination dated December 30, 2009. Relators application to cure, filed November 16, 2009. Respondents notification of partial denial, dated November 2, 2009. Relators Original Application for Compensation filed September 17, 2009. Affidavit of Johnnie Lindsey.
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2. 3

4. 5. 6. 7.

8. 9. 10. 11.

Affidavit of Michelle Moore. Act of May 27, 1979, 65th Leg. R.S., ch. 347 (S.B. 152). Act of March 28, 1983, 68th Leg. R.S., ch. 375 (S.B. 640). Senate Comm. On State Affairs, Bill Analysis, Tex. H.B. 417, 82d Leg. R.S. (2011). Comptrollers Letter to Supreme Court regarding payment to Ronald Gene Taylor, dated March 11, 2011. Motion to Dismiss, In re Ronald Gene Taylor, No. 10-0050. TDCJ Correspondence on Agency files of Steven Phillips. Excerpts of deposition of Steven Phillips. Correspondence of Board of Pardons and Paroles to Open Records Request regarding Steven Phillips.

12.

13. 14. 15. 16.

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