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 

USDC No. 4:17-CV-1749 

Before Wiener, Graves, and Duncan, Circuit Judges.

Jacques L. Wiener, Jr., Circuit Judge:

We previously certified a question to the Texas Supreme Court in this 

matter, asking whether the Tim Cole Act, Texas Civil Practice and Remedies 

Code §§ 103.001 et seq., bars maintenance of a federal lawsuit involving the 

same subject matter that was filed before the claimant received compensation 

under the Tim Cole Act. Having received a response from the Texas 

Supreme Court, we AFFIRM the judgment below. 

United States Court of Appeals 

Fifth Circuit 

FILED 

April 19, 2023 

Lyle W. Cayce 

Clerk 

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I. Facts and Procedural Background 

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

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

police officer and a store clerk. In 2015, the state district court granted the 

Harris County District Attorney’s motion to dismiss the charges against 

Brown, and Brown was released from prison. 

In 2016, Brown filed a petition with the Texas Office of the 

Comptroller for compensation under the Tim Cole Act, which provides state 

compensation to individuals who have been wrongfully convicted of state 

crimes in state courts.1

 His petition was denied because (1) it was not based 

on a finding that Brown was “actually innocent,” (2) Brown had not received 

a pardon, and (3) the district attorney had not filed a qualifying motion. In 

March 2019, following an investigation into Brown’s claim of actual 

innocence, the Harris County District Attorney filed a motion to dismiss the 

charges against Brown, which the state court granted. In May 2019, Brown 

filed another petition for compensation under the Tim Cole Act. It too was 

denied. Following that rejection, Brown sought a writ of mandamus from the 

Texas Supreme Court.2

 In December 2020, the Texas Supreme Court 

overturned the Comptroller’s decision and ordered the State of Texas to pay 

Brown the compensation he was owed under the Tim Cole Act.3 The State 

then paid Brown’s Tim Cole Act claim. 

1 TEX. CIV. PRAC. & REM. CODE § 103.001(a). Under this 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.” Id. 

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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While Brown was pursuing compensation under the Tim Cole Act, he 

brought a 42 U.S.C. § 1983 action in federal district court in June 2017.4

Brown alleged that the City of Houston, Harris County, and various state 

officials had violated his Fifth, Eighth, and Fourteenth Amendment rights 

because of his wrongful prosecution, conviction, and detention in state 

custody.5

 Some claims survived a motion to dismiss, and others were 

dismissed without prejudice.6 Defendants-Appellees eventually moved for 

summary judgment. 

In May 2021, the federal district court granted summary judgment in 

favor of Defendants-Appellees and dismissed the remainder of Brown’s 

§ 1983 claims with prejudice.7

 In doing so, the court explained that “[a] 

state’s payment for wrongful conviction under the [Tim Cole] Act provides 

immunity to suits against state and local governmental entities and 

employees seeking additional payment for the same wrongful conviction.”8

The court reasoned that “the Texas Supreme Court would likely . . . 

conclude that § 103.153(b) bars Brown’s lawsuit.”9

 The court acknowledged, 

however, 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.”10 Brown timely appealed.

4 Brown v. City of Houston, 297 F. Supp. 3d 748, 756–57 (S.D. Tex. 2017). 

5 Id. 

6 Id. at 778. 

7 Brown v. City of Houston, 538 F. Supp. 3d 725, 735 (S.D. Tex. 2021). 

8 Id. at 731. 

9 Id. 

10 Id. at 730. 

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This appeal addresses the viability of Brown’s federal lawsuit under 

§ 1983. It is uncontested that Brown met the criteria of the Tim Cole Act and 

received compensation under it, but the parties dispute the impact of 

§ 103.153(b) of the Tim Cole Act on Brown’s federal suit. Section 103.153(b) 

states: 

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.11

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 simply maintaining his earlier-filed lawsuit and that the statute’s plain 

language only proscribes bringing an action subsequent to receiving Tim Cole 

Act compensation. Defendants-Appellees, on the other hand, assert that 

“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.”12 They contend that the Tim Cole Act presents an 

open offer of settlement to which Brown knowingly and willingly agreed. 

 In April 2022, we certified 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 

11 TEX. CIV. PRAC. & REM. CODE § 103.153(b). 

12 (emphasis added). 

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governmental units or employees that was filed before the 

claimant received compensation under that statute?13

In February 2023, the Texas Supreme Court answered in the affirmative, 

explaining that “Brown’s acceptance of Tim Cole Act compensation means 

that he has agreed not to ‘bring’ a lawsuit in any forum against governmental 

entities or employees that involves the same subject matter as his Tim Cole 

Act claim. ‘Bringing’ an action in this context entails maintaining it.”14 We 

now analyze the district court’s grant of Defendants-Appellees’ summary 

judgment motion in light of this clarified meaning of § 103.153(b) of the Tim 

Cole Act. 

II. Standard of Review 

“We review a grant of summary judgment de novo, applying the same 

legal standards as the district court.”15 Summary judgment is proper “if the 

movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.”16 “We view the evidence 

in the light most favorable to the nonmovant and draw all reasonable 

inferences in that party’s favor.”17 

13 Brown v. City of Houston, No. 21-20302, 2022 WL 989364, at *3 (5th Cir. Apr. 1, 

2022), certified question answered sub nom. Brown v. City of Houston, 660 S.W.3d 749 (Tex. 

2023). 

14 Brown, 660 S.W.3d at 759–60. 

15 Tex. Ent. Ass’n, Inc. v. Hegar, 10 F.4th 495, 504 (5th Cir. 2021) (quoting Certain 

Underwriters at Llyod’s, London v. Axon Pressure Prods. Inc., 951 F.3d 248, 255 (5th Cir. 

2020)). 

16 FED. R. CIV. P. 56(a). 

17 King v. U.S. Bank, N.A., 853 F. App’x 971, 973 (5th Cir. 2021). 

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III. Analysis 

Because the Texas Supreme Court had not yet answered the certified 

question, the district court made an Erie guess that Brown’s federal suit was 

barred because of his receipt of compensation under the Tim Cole Act.18 The 

district court analyzed past instances when the Texas Supreme Court had 

interpreted the Tim Cole Act, then held that “presented with the facts in this 

case, the Texas Supreme Court would . . . conclude that § 103.153(b) bars 

Brown’s lawsuit.”19 The Texas Supreme Court later concluded in response 

to our certified question that Brown’s federal lawsuit is barred by his 

acceptance of Tim Cole Act compensation.20 

IV. Conclusion 

We therefore AFFIRM the district court’s grant of summary 

judgment in favor of Defendants-Appellees and its dismissal of Brown’s 

remaining § 1983 claims with prejudice. 

18 Brown, 538 F. Supp. 3d at 731–32. 

19 Id. at 730–31. 

20 Brown, 660 S.W.3d at 759–60 (internal quotation marks omitted). 

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