United States Court of Appeals 

for the Fifth Circuit 

No. 21-20302 

Alfred Dewayne Brown, 

Plaintiff—Appellant, 

versus

City of Houston, Texas; Harris 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 case 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opinion should not be published and is not precedent except under the limited 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 

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I. Introduction 

Brown spent more than twelve years in state prison — ten on death 

row — because of his wrongful conviction for the murders of a Houston 

police officer and a store clerk. In 2017, following his release from 

incarceration, Brown filed this § 1983 action 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 which the person was sentenced.”1

 

Brown sought mandamus relief from the Texas Supreme Court after 

the Texas Office of the Comptroller rejected his application for Tim Cole Act 

compensation several times.2

 In December 2020, the Texas Supreme Court 

overturned the Comptroller’s decision and ordered the State to pay Brown 

the compensation he was owed under the Tim Cole Act.3 Texas then paid 

Brown’s Tim Cole Act claim. The instant 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. 

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impact of the following provision of the Act on his previously filed § 1983 

suit: 

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.4

The federal district court granted summary judgment in favor of 

Defendants-Appellees and dismissed Brown’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 employees seeking additional payment for 

the same wrongful conviction. The court 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 the 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. 

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2. the degree to which considerations of comity are relevant in 

light of the particular issue and case to be decided; and 

3. practical limitations on the certification process: significant 

delay and possible inability to frame 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 may 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 clear 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 the 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 knowingly 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). 

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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 compensation survive the 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: “The administrative remedy under the 

Tim Cole Act works to the exclusion of any other action ‘involving the same 

subject matter, including an action involving the person’s arrest, conviction, 

or length of confinement,’ and in doing 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 language at issue” here. 

Both sides hone in on the Texas Supreme Court’s decision in State v. 

Oakley,

11 but draw opposite conclusions after analyzing the court’s reasoning. 

In that case, the court analyzed “whether claims for compensation under 

Chapter 103 can be brought against the 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). 

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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 abdicate our mandate to decide 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 applies. We have no reason to believe that certification 

will cause unnecessary delay. When asked about certification at oral 

argument, neither side objected to the 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.

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answered our questions time and again. We have every confidence 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 same subject matter against any 

governmental units or employees that was filed before the 

claimant received compensation 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)). 

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