# United States Court of Appeals **for the Fifth Circuit**

No. 21-20302

Alfred Dewayne Brown, Plaintiff—Appellant ,

versus City of Houston, Texas; Ha rris County, Texas; Breck McDaniel; Ted C. Bloyd; D. L. Robertson, Defendants—Appellees

.

Appeal from the United States District Court for the Southern District of Texas

Before Wiener, Graves, and Duncan, Circuit Judges

. Per Curiam: * Plaintiff-Appellant Alfred Dewayne Brown challenges the dismissal of his 42 U.S.C. § 1983 lawsuit. His ca se presents a novel and significant question of Texas state law, so we certify to the Texas Supreme Court.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 1, 2022 Lyle W. Cayce Clerk Case: 21-20302 Document: 00516264337 Page: 1 Date Filed: 04/01/2022No. 21-20302

2 I. Introduction Brown spent more than twelve years in state prison — ten on death row — because of his wrongful conv iction for the murders of a Houston police officer and a store clerk. In 2017, following his release from incarceration, Brown filed this § 1983 ac tion in federal district court based on his wrongful prosecution and conviction. Back in 1965, Texas instituted the Tim Cole Act, Tex. Civ. Prac. & Rem. Code §§ 103.001 et seq . It provides state compensation to individuals who have been wrongfully convicted of state crimes in state courts. Under the statute, “[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 . . . has received a full pardon on the basis of innocence for the crime for whic h the person was sentenced.” 1 Brown sought mandamus relief from the Texas Supreme Court after the Texas Office of the Comptroller reje cted his application for Tim Cole Act compensation several times. 2 In December 2020, th e Texas Supreme Court overturned the Comptroller’s decision and ordered the State to pay Brown the compensation he was ow ed under the Tim Cole Act. 3 Texas then paid Brown’s Tim Cole Act claim. The instan t litigation addresses the viability of Brown’s federal lawsuit filed under § 1983 in 2017, long before he recovered under the Tim Cole Act.
It is uncontested that Brown has met the criteria of the Tim Cole Act and has received compensation under it. What the parties dispute here is the

1 Id. § 103.001(a).

2 For a more extensive background of the case, see In re Brown , 614 S.W.3d 712, 713-16 (Tex. 2020).

3 Id. at 723-24. Case: 21-20302 Document: 00516264337 Page: 2 Date Filed: 04/01/2022No. 21-20302

3 impact of the following provision of the Act on his previously filed § 1983 suit: A person who receives compensa tion under this chapter may not bring any action involving the same subject matter, including an action involving th e person’s arrest, conviction, or length of confinement, agains t any governmental unit or an employee of any governmental unit. 4 The federal district court granted summary judgment in favor of Defendants-Appellees and dismissed Brow n’s § 1983 case with prejudice. In doing so, that court explained that : “A state’s payment for wrongful conviction under the [Tim Cole] Act provides immunity to suits against state and local government entities and emplo yees seeking additional payment for the same wrongful conviction. The cour t concludes that, presented with the facts in this case, the Texas Supreme Court would likely . . . conclude that § 103.153(b) bars Brown’s lawsuit.” The district court noted that this case presents “a novel issue of Texas law” as “[t]he Texas Supreme Court has considered the Tim Cole Act several times, but it has not addressed the specific issue presented here.” II. Standard for Certification to the Texas Supreme Court The Texas Supreme Court “may answer questions of law certified to it by any federal appellate court if th e certifying court is presented with determinative questions of Texas law having no controlling Supreme Court precedent.” 5 We consider three factors in determining whether to certify: 1. the closeness of the question and the existence of sufficient sources of state law;

4 Tex. Civ. Prac. & Rem. Code §103.153(b) (emphasis added).

5 Tex. R. App. Proc. 58.1. Case: 21-20302 Document: 00516264337 Page: 3 Date Filed: 04/01/2022No. 21-20302

4 2. the degree to which considerations of comity are relevant in light of the particular issue an d case to be decided; and 3. practical limitations on the ce rtification process: significant delay and possible inability to fr ame the issue so as to produce a helpful response on the part of the state court. 6 No party to the instant litigation has moved to certify the question to the Texas Supreme Court, but we ma y certify a question sua sponte. 7 “[C]ases like this one—‘where important state interests are at stake and the state courts have not provided clea r guidance on how to proceed,’—are candidates for certification.” 8 III. Application Brown contends that he may maintain his § 1983 suit because he filed it before he received compensation under th e Tim Cole Act. He explains that he is only maintaining his earlier-filed lawsuit but the statute’s plain language only proscribes bringing an action subsequent to receiving Tim Cole Act compensation. Defendants-Appellees assert that in analyzing case law, “the Texas Supreme Court understands § 103.153(b) [as providing that] the State’s payment provides immunity to suits against state and local governmental entities and employees seeking additional payment for the same wrongful conviction.” 9 They contend that the Tim Cole Act presents an open offer of settlement to which Brown know ingly and willingly agreed.

6 In re Gabriel Inv. Grp., Inc. , 24 F.4th 503, 507 (5th Cir. 2022) (quoting Silguero v. CSL Plasma, Inc. , 907 F.3d 323, 332 (5th Cir. 2018)).

7 In re Norris , 413 F.3d 526, 526-27 (5th Cir. 2005).

8 Silguero , 907 F.3d at 333 (citations omitted) (quoting In re Katrina Canal Breaches Litig. , 613 F.3d 504, 509 (5th Cir. 2010)).

9 (emphasis added). Case: 21-20302 Document: 00516264337 Page: 4 Date Filed: 04/01/2022No. 21-20302

5 As the district court noted, the Texas Supreme Court has not decided whether the Tim Cole Act’s provision that bars a person who has already received compensation thereunder from subsequently bringing any action involving the same subject matter, also bars the continued maintenance of a previously-filed lawsuit. To phrase the puzzle another way, can a lawsuit filed before the receipt of Tim Cole Act compen sation survive th e Act’s litigation bar? Defendants-Appellees reference the Texas Supreme Court’s opinion in Brown’s own case seeking Tim Cole Act compensation. In a footnote, the court summarized the Tim Cole Act: “T he administrative remedy under the Tim Cole Act works to the exclusion of any other action ‘involving the same subject matter, including an action invo lving the person’s arrest, conviction, or length of confinement,’ and in do ing so, the Legislature has spared governmental units, governmental employees, and the wrongfully imprisoned the uncertainty and expense of litigation.” 10 Brown counters that Defendants-Appellees’ reliance on this footnote is “misplaced” because it “does not purport to decide the issue before the Court, even comment upon it, or construe the lang uage at issue” here.
Both sides hone in on the Texa s Supreme Court’s decision in State v. Oakley , 11 but draw opposite conclusions afte r analyzing the court’s reasoning. In that case, the court analyzed “whe ther claims for compensation under Chapter 103 can be brought against th e State (1) by an assignee, or (2) after settling with another unit of government.” 12 The wrongfully convicted plaintiff in that case had filed his civil rights claims against the City of Austin

10 614 S.W.3d at 723 n.60 (citing Tex. Civ. Prac. & Rem. Code §103.153).

11 227 S.W.3d 58 (Tex. 2007).

12 Id. at 59 (emphasis added). Case: 21-20302 Document: 00516264337 Page: 5 Date Filed: 04/01/2022No. 21-20302

6 and received a settlement from the city. 13 He then filed his Tim Cole Act claims. 14 Brown takes from the case that “the Texas Supreme Court stated that § 103.153(b): (1) ‘explicitly makes sequence important,’ and (2) ‘plainly prohibits those who receive compensation from the State from then suing local government entities or employees.’” 15 In contrast, DefendantsAppellees conclude that “the Texas Supreme Court suggested that once the State has paid Tim Cole Act compensation, §103.153 (b) ‘grants immunity to local government entities.’” 16 “We do not ‘lightly abdi cate our mandate to deci de issues of state law when sitting in diversity.’” 17 But, in enacting the Tim Cole Act, Texas waived its sovereign immunity so as to compensate those who had been wrongfully convicted.
Texas courts should decide in the first instance the extent to which that statutory waiver applie s. We have no reason to believe that certification will cause unnecessary delay. When asked about certification at oral argument, neither side objected to th e case being presented to the Texas Supreme Court. 18 That court “has graciously accepted and promptly

13 Id. at 59-60.

14 Id. at 60.

15 (quoting id. at 63) (emphasis added by Brown).

16 (quoting id. )

17 In re Deepwater Horizon , 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v. Lead Indus. Ass’n, Inc. , 106 F.3d 1245, 1248 (5th Cir. 1997)).

18 See Silguero , 907 F.3d at 333. Case: 21-20302 Document: 00516264337 Page: 6 Date Filed: 04/01/2022No. 21-20302

7 answered our questions time and again. We have every confiden ce that it will do so here too.” 19
IV. Conclusion
We Certify the following question to the Texas Supreme Court: Does Section 103.153(b) of the Tim Cole Act bar maintenance of a lawsuit involving the sa me subject matter against any governmental units or employees that was filed before the claimant received compensa tion under that statute? “We disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the question certified.” 20

19 Fire Prot. Serv., Inc. v. Survitec Survival Prods., Inc. , 18 F.4th 802, 805 (5th Cir. 2021) (citation omitted).

20 Janvey v. GMAG, L.L.C. , 925 F.3d 229, 235-36 (5th Cir. 2019) (quoting Janvey v. Golf Channel, Inc. , 792 F.3d 539, 547 (5th Cir. 2015)). Case: 21-20302 Document: 00516264337 Page: 7 Date Filed: 04/01/2022