in re johnnie lindsey petition

8/6/2019 In Re Johnnie Lindsey Petition

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No. _______________________

IN THE

SUPREME COURT

IN RE JOHNNIE LINDSEY,

Relator

Original Proceeding

PETITION FOR WRIT OF MANDAMUS

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

Attorneys for Relator,

Johnnie Lindsey


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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 COUNSEL

Relator Counsel for Relators

Johnnie Lindsey Kristopher E. MooreState Bar No. 24060300HARRISON &HULL,L.L.P.1575 Heritage Dr., Ste. 204McKinney, Texas 75069Telephone: 214-585-0094

Fax: 214-585-0097

Respondent

The Honorable Susan Combs Martin CherryTexas Comptroller of Public Accounts General Counsel, TexasP.O. Box 13528 Comptroller of Public AccountsAustin, Texas 78711-3528 111 E. 17th Street

Austin, Texas 78774Telephone: 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 alarge portion of his claim under the Compensationto Persons Wrongfully Imprisoned statute incontravention of authority from this Court . . . . . . . . . . . . . . . 5

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. This Courts recent decision in In re SmithdictatesRelators eligibility for payment of additional compensationunder CPRC 103.001(a)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. Comptrollers inconsistent course of behavior inrelation to the Compensation Act frustrates legislativeintent to ensure consistent application of lawand avoid unnecessary legal expense . . . . . . . . . . . . . . . . . . . . 12

Issue II: Whether Johnnie Lindsey is eligible for additionalcompensation for the time he spent imprisoned whenhe should not have been . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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


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CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

INDEX OF AUTHORITIES

Cases

Ex Parte Henderson645 S.W.2d 469 (Tex.Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Ex Parte Phillips2008 Tex. Crim. App.Unpub. LEXIS 714 (Tex.Crim.App. 2008) . . . . . . . . . . . 16

Ex Parte Williams257 S.W.3d 711 (Tex.Crim.App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Herrera v. Collins806 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 TaylorNo. 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitution

Tex. Const. Art. III 51(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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, 68

th

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


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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,


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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 incontravention of authority from this Court.

2. Whether Johnnie Lindsey is eligible for additional compensation for thetime he spent imprisoned when he should not have been.


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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).


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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 hisclaim 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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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.

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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 Smithdecision. 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 Relatorseligibility 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 concurrent-

sentence 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


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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) forany part of a sentence in prison during which the person wasalso serving a concurrent sentence for another crime to whichSubsection (a) does not apply.

Compensation Act, 103.001(b). The Comptroller, who was the respondent in

Smithas 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 Smithdecision sided with the broad interpretation and determined that

where a claimant would not have been in prison but forthe 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


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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 enforcementtogether, 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 undersentence of death, shall be released to mandatory supervision byorder of the Board when the calendar time he has served plus anyaccrued good conduct time equal the maximum term to which hewas 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 theirclassification 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 whilethe inmate is classified as a Class II inmate.

(3) 10 additional days for each 30 days actuallyserved 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 Smithdecision 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 theCompensation 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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2 Counsel for Ronald Taylor, Kristopher Moore, is the same attorney who now represents Johnnie Lindsey in the

present proceeding.

13

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 Id. at 8. Further,


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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 Smithwas 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 Smithruling 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 10-

year 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 compensationfor 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. MooreState Bar No. 24060300HARRISON &HULL,L.L.P.1575 Heritage Dr., Ste. 204

McKinney, TX 75069Telephone: 214-585-0094Fax: 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 CombsTexas Comptroller of Public AccountsP.O. Box 13528Austin, Texas 78711-3528Telephone: (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.

2. Relators request to Respondent to reconsider, dated June 21, 2011.

3 Respondents Decision Complained of: Comptroller Letter Denying ClaimRedetermination dated December 30, 2009.

4. Relators application to cure, filed November 16, 2009.

5. Respondents notification of partial denial, dated November 2, 2009.

6. Relators Original Application for Compensation filed September 17, 2009.

7. Affidavit of Johnnie Lindsey.


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8. Affidavit of Michelle Moore.

9. Act of May 27, 1979, 65th Leg. R.S., ch. 347 (S.B. 152).

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).

12. Comptrollers Letter to Supreme Court regarding payment to Ronald GeneTaylor, dated March 11, 2011.

13. Motion to Dismiss, In re Ronald Gene Taylor, No. 10-0050.

14. TDCJ Correspondence on Agency files of Steven Phillips.

15. Excerpts of deposition of Steven Phillips.

16. Correspondence of Board of Pardons and Paroles to Open RecordsRequest regarding Steven Phillips.

in re johnnie lindsey petition

Documents