## IN THE SUPREME COURT O F TEX AS

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### I N R E 

### M IC H A E L 

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. B L A IR 

### , R E L A T O R

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O N P E T I T I O N F O R W R I T O F M A N D A M U S

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J U S T I C E L E H R M A N N , joined by C H I E F J U S T I C E J E F F E R S O N , J U S T I C E J O H N S O N , and J U S T I C E W I L L E T T , dissenting.
I n 1994, Michae l Bla ir was convicted of and sentenc ed to death for a murder he did not commit. I n 2004, while still on death row for the murder conviction, Bla ir pled g uilty to four counts of molesting a child and beg an serving life sentenc es for those convictions. The murder conviction
was set aside in 2008, and Bla ir then beg an his quest for compensa tion under the Tim Cole Act. See T E X . C I V . P R A C . & R E M . C O D E §§ 103.001–.154. For the rea sons stated in the plurality opinion, I ag ree that, to the extent the Comptroller prese rved the argument, Bla ir is not proce durally barr ed from seeking judicial revie w in this Court of the Comp t ro ller’s denial of his second application for compensa tion under the Tim Cole Act. More specific ally , I do not believe the Act require s claimants to submit an application to cure to the Comptroller after

a denia l of compensation “if there is nothing to cur e.” ___ S.W.3d at ___. Nor do Ibelieve the Act prohibits succe ssive applications.Howeve r, I also join Part I V of J U S T I C E B O Y D ’ S co ncurr ence and would hold that Bla ir’s

2004 felony conviction does not fore close Blair’s eligibility for any compensa tion under the Act. The plain lang uag e of the Act, when proper ly construed in context, confirms that an applicant who is convicted of a felony (mea ning the act of conviction, not the s tatus of being convicted) after he become s elig ible for compensa tion is not wholly deprive d of such elig ibilit y . See T E X . C I V . P R A C . & R E M . C O D E § 103.154(a) (“[C] ompensation pay ments to a person under this chapte r terminate if, after the date the person become s elig ible for compensa tion
. . . , the person is convicted of a crime punishable as a felony
. Compensation pay ments terminate under this subsection on the date of the subsequent convic tion .”) (empha sis added)
. Under this s e c ti o n , th e c o mp e n s a ti o n pay ments to which Blair was otherwise entitled for the wrong ful murder conviction terminated upon, but wer e no t
n u l l i fi ed b y , the 2004 conviction. As the concur renc e notes, while such a result may not b e “desira ble under the circ umstances o f t h i s case,” neither is it “absur d for the State to compensa te Bla ir for the ten y ear s he spent on death row for a murder he did not commit.” ___ S.W .3d at ___. I would conditionally g rant mandamus relief and order the Comptroller to compensa te Bla ir for time ser

ved prior to his convic tion in 2004. According ly , Irespe ctfully dissent.

_________________________________ Debr a H. L ehrma

nn J ustice
OP INION DELIVERED: Aug ust 23, 2013

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